28 USC Rule 27. Depositions Before Action or Pending Appeal
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Before Action.
(1) Petition. A person who desires to perpetuate testimony regarding
any matter that may be cognizable in any court of the United States may
file a verified petition in the United States district court in the
district of the residence of any expected adverse party. The petition
shall be entitled in the name of the petitioner and shall show: 1, that
the petitioner expects to be a party to an action cognizable in a court
of the United States but is presently unable to bring it or cause it to
be brought, 2, the subject matter of the expected action and the
petitioner's interest therein, 3, the facts which the petitioner desires
to establish by the proposed testimony and the reasons for desiring to
perpetuate it, 4, the names or a description of the persons the
petitioner expects will be adverse parties and their addresses so far as
known, and 5, the names and addresses of the persons to be examined and
the substance of the testimony which the petitioner expects to elicit
from each, and shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the petition, for
the purpose of perpetuating their testimony.
(2) Notice and Service. The petitioner shall thereafter serve a
notice upon each person named in the petition as an expected adverse
party, together with a copy of the petition, stating that the petitioner
will apply to the court, at a time and place named therein, for the
order described in the petition. At least 20 days before the date of
hearing the notice shall be served either within or without the district
or state in the manner provided in Rule 4(d) for service of summons;
but if such service cannot with due diligence be made upon any expected
adverse party named in the petition, the court may make such order as is
just for service by publication or otherwise, and shall appoint, for
persons not served in the manner provided in Rule 4(d), an attorney who
shall represent them, and, in case they are not otherwise represented,
shall cross-examine the deponent. If any expected adverse party is a
minor or incompetent the provisions of Rule 17(c) apply.
(3) Order and Examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice,
it shall make an order designating or describing the persons whose
depositions may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be
taken in accordance with these rules; and the court may make orders of
the character provided for by Rules 34 and 35. For the purpose of
applying these rules to depositions for perpetuating testimony, each
reference therein to the court in which the action is pending shall be
deemed to refer to the court in which the petition for such deposition
was filed.
(4) Use of Deposition. If a deposition to perpetuate testimony is
taken under these rules or if, although not so taken, it would be
admissible in evidence in the courts of the state in which it is taken,
it may be used in any action involving the same subject matter
subsequently brought in a United States district court, in accordance
with the provisions of Rule 32(a).
(b) Pending Appeal. If an appeal has been taken from a judgment of a
district court or before the taking of an appeal if the time therefor
has not expired, the district court in which the judgment was rendered
may allow the taking of the depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in the district
court. In such case the party who desires to perpetuate the testimony
may make a motion in the district court for leave to take the
depositions, upon the same notice and service thereof as if the action
was pending in the district court. The motion shall show (1) the names
and addresses of persons to be examined and the substance of the
testimony which the party expects to elicit from each; (2) the reasons
for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions to be taken and
may make orders of the character provided for by Rules 34 and 35, and
thereupon the depositions may be taken and used in the same manner and
under the same conditions as are prescribed in these rules for
depositions taken in actions pending in the district court.
(c) Perpetuation by Action. This rule does not limit the power of a
court 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.)
Note to Subdivision (a). This rule offers a simple method of
perpetuating testimony in cases where it is usually allowed under equity
practice or under modern statutes. See Arizona v. California, 292 U.S.
341, 54 S.Ct. 735, 78 L.Ed. 1298 (1934); Todd Engineering Dry Dock and
Repair Co. v. United States, 32 F.2d 734 (C.C.A.5th, 1929); Hall v.
Stout, 4 Del. ch. 269 (1871). For comparable state statutes see
Ark.Civ.Code (Crawford, 1934) 666-670; Calif.Code Civ.Proc. (Deering,
1937) 2083-2089; Ill.Rev.Stat. (1937) ch. 51, 39-46; Iowa Code
(1935) 11400-11407; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 233, 46-63;
N.Y.C.P.A. (1937) 295; Ohio Gen.Code Ann. ((Throckmorton, 1936)
12216-12222; Va.Code Ann. (Michie, 1936) 6235; Wisc.Stat. (1935)
326.27-326.29. The appointment of an attorney to represent absent
parties or parties not personally notified, or a guardian ad litem to
represent minors and incompetents, is provided for in several of the
above statutes.
Note to Subdivision (b). This follows the practice approved in
Richter v. Union Trust Co., 115 U.S. 55, 5 S.Ct. 1162, 29 L.Ed. 345
(1885), by extending the right to perpetuate testimony to cases pending
an appeal.
Note to Subdivision (c). This preserves the right to employ a
separate action to perpetuate testimony under U.S.C., Title 28, (former)
644 (Depositions under dedimus potestatem and in perpetuam) as an
alternate method.
Note. Since the second sentence in subdivision (a)(3) refers only to
depositions, it is arguable that Rules 34 and 35 are inapplicable in
proceedings to perpetuate testimony. The new matter (in subdivisions
(a)(3) and (b)) clarifies. A conforming change is also made in
subdivision (b).
The amendment effective October 1949, substituted the words ''United
States district court'' in subdivision (a)(1) and (4) for ''district
court of the United States''.
The reference intended in this subdivision is to the rule governing
the use of depositions in court proceedings. Formerly Rule 26(d), that
rule is now Rule 32(a). The subdivision is amended accordingly.
The amendments are technical. No substantive change is intended.
Persons before whom depositions may be taken, see rule 28.
28 USC Rule 28. Persons Before Whom Depositions May Be Taken
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Within the United States. Within the United States or within a
territory or insular possession subject to the jurisdiction of the
United States, depositions shall be taken before an officer authorized
to administer oaths by the laws of the United States or of the place
where the examination is held, or before a person appointed by the court
in which the action is pending. A person so appointed has power to
administer oaths and take testimony. The term officer as used in Rules
30, 31 and 32 includes a person appointed by the court or designated by
the parties under Rule 29.
(b) In Foreign Countries. In a foreign country, depositions may be
taken (1) on notice before a person authorized to administer oaths in
the place in which the examination is held, either by the law thereof or
by the law of the United States, or (2) before a person commissioned by
the court, and a person so commissioned shall have the power by virtue
of the commission to administer any necessary oath and take testimony,
or (3) pursuant to a letter rogatory. A commission or a letter rogatory
shall be issued on application and notice and on terms that are just and
appropriate. It is not requisite to the issuance of a commission or a
letter rogatory that the taking of the deposition in any other manner is
impracticable or inconvenient; and both a commission and a letter
rogatory may be issued in proper cases. A notice or commission may
designate the person before whom the deposition is to be taken either by
name or descriptive title. A letter rogatory may be addressed ''To the
Appropriate Authority in (here name the country).'' Evidence obtained in
response to a letter rogatory need not be excluded merely for the reason
that it is not a verbatim transcript or that the testimony was not taken
under oath or for any similar departure from the requirements for
depositions taken within the United States under these rules.
(c) Disqualification for Interest. No deposition shall be taken
before a person who is a relative or employee or attorney or counsel of
any of the parties, or is a relative or employee of such attorney or
counsel, or is financially 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.)
In effect this rule is substantially the same as U.S.C., Title 28,
(former) 639 (Depositions de bene esse; when and where taken;
notice). U.S.C., Title 28, (former) 642 (Depositions, acknowledgements,
and affidavits taken by notaries public) does not conflict with
subdivision (a).
Note. The added language (in subdivision (a)) provides for the
situation, occasionally arising, when depositions must be taken in an
isolated place where there is no one readily available who has the power
to administer oaths and take testimony according to the terms of the
rule as originally stated. In addition, the amendment affords a more
convenient method of securing depositions in the case where state lines
intervene between the location of various witnesses otherwise rather
closely grouped. The amendment insures that the person appointed shall
have adequate power to perform his duties. It has been held that a
person authorized to act in the premises, as, for example, a master, may
take testimony outside the district of his appointment. Consolidated
Fastener Co. v. Columbian Button & Fastener Co., C.C.N.D.N.Y. 1898, 85
Fed. 54; Mathieson Alkali Works v. Arnold Hoffman & Co., C.C.A.1st,
1929, 31 F.2d 1.
The amendment of clause (1) is designed to facilitate depositions in
foreign countries by enlarging the class of persons before whom the
depositions may be taken on notice. The class is no longer confined, as
at present, to a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent of the United States. In a
country that regards the taking of testimony by a foreign official in
aid of litigation pending in a court of another country as an
infringement upon its sovereignty, it will be expedient to notice
depositions before officers of the country in which the examination is
taken. See generally Symposium, Letters Rogatory (Grossman ed. 1956);
Doyle, Taking Evidence by Deposition and Letters Rogatory and Obtaining
Documents in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 37
(1959); Heilpern, Procuring Evidence Abroad, 14 Tul.L.Rev. 29 (1939);
Jones, International Judicial Assistance: Procedural Chaos and a
Program for Reform, 62 Yale L.J. 515, 526-29 (1953); Smit,
International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031,
1056-58 (1961).
Clause (2) of amended subdivision (b), like the corresponding
provision of subdivision (a) dealing with depositions taken in the
United States, makes it clear that the appointment of a person by
commission in itself confers power upon him to administer any necessary
oath.
It has been held that a letter rogatory will not be issued unless the
use of a notice or commission is shown to be impossible or impractical.
See, e.g., United States v. Matles, 154 F.Supp. 574 (E.D.N.Y. 1957);
The Edmund Fanning, 89 F.Supp. 282 (E.D.N.Y. 1950); Branyan v.
Koninklijke Luchtvaart Maatschappij, 13 F.R.D. 425 (S.D.N.Y. 1953). See
also Ali Akber Kiachif v. Philco International Corp., 10 F.R.D. 277
(S.D.N.Y. 1950). The intent of the fourth sentence of the amended
subdivision is to overcome this judicial antipathy and to permit a sound
choice between depositions under a letter rogatory and on notice or by
commission in the light of all the circumstances. In a case in which
the foreign country will compel a witness to attend or testify in aid of
a letter rogatory but not in aid of a commission, a letter rogatory may
be preferred on the ground that it is less expensive to execute, even if
there is plainly no need for compulsive process. A letter rogatory may
also be preferred when it cannot be demonstrated that a witness will be
recalcitrant or when the witness states that he is willing to testify
voluntarily, but the contingency exists that he will change his mind at
the last moment. In the latter case, it may be advisable to issue both
a commission and a letter rogatory, the latter to be executed if the
former fails. The choice between a letter rogatory and a commission may
be conditioned by other factors, including the nature and extent of the
assistance that the foreign country will give to the execution of
either.
In executing a letter rogatory the courts of other countries may be
expected to follow their customary procedure for taking testimony. See
United States v. Paraffin Wax, 2255 Bags, 23 F.R.D. 289 (E.D.N.Y.
1959). In many non-common-law countries the judge questions the witness,
sometimes without first administering an oath, the attorneys put any
supplemental questions either to the witness or through the judge, and
the judge dictates a summary of the testimony, which the witness
acknowledges as correct. See Jones, supra, at 530-32; Doyle, supra, at
39-41. The last sentence of the amended subdivision provides, contrary
to the implications of some authority, that evidence recorded in such a
fashion need not be excluded on that account. See The Mandu, 11 F.Supp.
845 (E.D.N.Y. 1935). But cf. Nelson v. United States, 17 Fed.Cas. 1340
(No. 10,116) (C.C.D.Pa. 1816); Winthrop v. Union Ins. Co., 30
Fed.Cas. 376 (No. 17901) (C.C.D.Pa. 1807). The specific reference to the
lack of an oath or a verbatim transcript is intended to be illustrative.
Whether or to what degree the value or weight of the evidence may be
affected by the method of taking or recording the testimony is left for
determination according to the circumstances of the particular case, cf.
Uebersee Finanz-Korporation, A.G. v. Brownell, 121 F.Supp. 420 (D.D.C.
1954); Danisch v. Guardian Life Ins. Co., 19 F.R.D. 235 (S.D.N.Y.
1956); the testimony may indeed be so devoid of substance or probative
value as to warrant its exclusion altogether.
Some foreign countries are hostile to allowing a deposition to be
taken in their country, especially by notice or commission, or to
lending assistance in the taking of a deposition. Thus compliance with
the terms of amended subdivision (b) may not in all cases ensure
completion of a deposition abroad. Examination of the law and policy of
the particular foreign country in advance of attempting a deposition is
therefore advisable. See 4 Moore's Federal Practice 28.05-28.08 (2d
ed. 1950).
The amendments are clarifying.
The amendments are technical. No substantive change is intended.
Certification and filing of depositions by officer, see rule 30.
Compensation of person taking deposition, see section 1821 of this
title.
Foreign witnesses, depositions of, see section 1781 of this title.
Letters rogatory, failure to respond, see rule 37.
Taking responses to written interrogatories and preparation of
record, see rule 31.
Waiver as to disqualification of officer, see rule 32.
28 USC Rule 29. Stipulations Regarding Discovery Procedure
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Unless the court orders otherwise, the parties may by written
stipulation (1) provide that depositions may be taken before any person,
at any time or place, upon any notice, and in any manner and when so
taken may be used like other depositions, and (2) modify the procedures
provided by these rules for other methods of discovery, except that
stipulations extending the time provided in Rules 33, 34, and 36 for
responses to discovery may be made only with the approval of the court.
(As amended Mar. 30, 1970, eff. July 1, 1970.)
There is no provision for stipulations varying the procedures by
which methods of discovery other than depositions are governed. It is
common practice for parties to agree on such variations, and the
amendment recognizes such agreements and provides a formal mechanism in
the rules for giving them effect. Any stipulation varying the
procedures may be superseded by court order, and stipulations extending
the time for response to discovery under Rules 33, 34, and 36 require
court approval.
28 USC Rule 30. Depositions Upon Oral Examination
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) When Depositions May Be Taken. After commencement of the action,
any party may take the testimony of any person, including a party, by
deposition upon oral examination. Leave of court, granted with or
without notice, must be obtained only if the plaintiff seeks to take a
deposition prior to the expiration of 30 days after service of the
summons and complaint upon any defendant or service made under Rule
4(e), except that leave is not required (1) if a defendant has served a
notice of taking deposition or otherwise sought discovery, or (2) if
special notice is given as provided in subdivision (b)(2) of this rule.
The attendance of witnesses may be compelled by subpoena as provided in
Rule 45. The deposition of a person confined in prison may be taken
only by leave of court on such terms as the court prescribes.
(b) Notice of Examination: General Requirements; Special Notice;
Non-Stenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if
known, and, if the name is not known, a general description sufficient
to identify the person or the particular class or group to which the
person belongs. If a subpoena duces tecum is to be served on the person
to be examined, the designation of the materials to be produced as set
forth in the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by
the plaintiff if the notice (A) states that the person to be examined is
about to go out of the district where the action is pending and more
than 100 miles from the place of trial, or is about to go out of the
United States, or is bound on a voyage to sea, and will be unavailable
for examination unless the person's deposition is taken before
expiration of the 30-day period, and (B) sets forth facts to support the
statement. The plaintiff's attorney shall sign the notice, and the
attorney's signature constitutes a certification by the attorney that to
the best of the attorney's knowledge, information, and belief the
statement and supporting facts are true. The sanctions provided by Rule
11 are applicable to the certification.
If a party shows that when the party was served with notice under
this subdivision (b)(2) the party was unable through the exercise of
diligence to obtain counsel to represent the party at the taking of the
deposition, the deposition may not be used against the party.
(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.
(4) The parties may stipulate in writing or the court may upon motion
order that the testimony at a deposition be recorded by other than
stenographic means. The stipulation or order shall designate the person
before whom the deposition shall be taken, the manner of recording,
preserving and filing the deposition, and may include other provisions
to assure that the recorded testimony will be accurate and trustworthy.
A party may arrange to have a stenographic transcription made at the
party's own expense. Any objections under subdivision (c), any changes
made by the witness, the witness' signature identifying the deposition
as the witness' own or the statement of the officer that is required if
the witness does not sign, as provided in subdivision (e), and the
certification of the officer required by subdivision (f) shall be set
forth in a writing to accompany a deposition recorded by
non-stenographic means.
(5) The notice to a party deponent may be accompanied by a request
made in compliance with Rule 34 for the production of documents and
tangible things at the taking of the deposition. The procedure of Rule
34 shall apply to the request.
(6) A party may in the party's notice and in a subpoena name as the
deponent a public or private corporation or a partnership or association
or governmental agency and describe with reasonable particularity the
matters on which examination is requested. In that event, the
organization so named shall designate one or more officers, directors,
or managing agents, or other persons who consent to testify on its
behalf, and may set forth, for each person designated, the matters on
which the person will testify. A subpoena shall advise a non-party
organization of its duty to make such a designation. The persons so
designated shall testify as to matters known or reasonably available to
the organization. This subdivision (b)(6) does not preclude taking a
deposition by any other procedure authorized in these rules.
(7) The parties may stipulate in writing or the court may upon motion
order that a deposition be taken by telephone. For the purposes of this
rule and Rules 28(a), 37(a)(1), 37(b)(1), and 45(d), a deposition taken
by telephone is taken in the district and at the place where the
deponent is to answer questions propounded to the deponent.
(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections. Examination and cross-examination of witnesses may proceed
as permitted at the trial under the provisions of the Federal Rules of
Evidence. The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone acting under
the officer's direction and in the officer's presence, record the
testimony of the witness. The testimony shall be taken stenographically
or recorded by any other means ordered in accordance with subdivision
(b)(4) of this rule. If requested by one of the parties, the testimony
shall be transcribed. All objections made at the time of the
examination to the qualifications of the officer taking the deposition,
or to the manner of taking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the proceedings, shall
be noted by the officer upon the deposition. Evidence objected to shall
be taken subject to the objections. In lieu of participating in the
oral examination, parties may serve written questions in a sealed
envelope on the party taking the deposition and the party taking the
deposition shall transmit them to the officer, who shall propound them
to the witness and record the answers verbatim.
(d) Motion To Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and
upon a showing that the examination is being conducted in bad faith or
in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is pending or the court
in the district where the deposition is being taken may order the
officer conducting the examination to cease forthwith from taking the
deposition, or may limit the scope and manner of the taking of the
deposition as provided in Rule 26(c). If the order made terminates the
examination, it shall be resumed thereafter only upon the order of the
court in which the action is pending. Upon demand of the objecting
party or deponent, the taking of the deposition shall be suspended for
the time necessary to make a motion for an order. The provisions of
Rule 37(a)(4) apply to the award of expenses incurred in relation to the
motion.
(e) Submission to Witness; Changes; Signing. When the testimony is
fully transcribed the deposition shall be submitted to the witness for
examination and shall be read to or by the witness, unless such
examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall
be entered upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition shall then
be signed by the witness, unless the parties by stipulation waive the
signing or the witness is ill or cannot be found or refuses to sign. If
the deposition is not signed by the witness within 30 days of its
submission to the witness, the officer shall sign it and state on the
record the fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together with the reason, if
any, given therefor; and the deposition may then be used as fully as
though signed unless on a motion to suppress under Rule 32(d)(4) the
court holds that the reasons given for the refusal to sign require
rejection of the deposition in whole or in part.
(f) Certification and Filing by Officer; Exhibits; Copies; Notice
of Filing.
(1) The officer shall certify on the deposition that the witness was
duly sworn by the officer and that the deposition is a true record of
the testimony given by the witness. Unless otherwise ordered by the
court, the officer shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked ''Deposition
of (here insert name of witness)'' and shall promptly file it with the
court in which the action is pending or send it by registered or
certified mail to the clerk thereof for filing.
Documents and things produced for inspection during the examination
of the witness, shall, upon the request of a party, be marked for
identification and annexed to the deposition and may be inspected and
copied by any party, except that if the person producing the materials
desires to retain them the person may (A) offer copies to be marked for
identification and annexed to the deposition and to serve thereafter as
originals if the person affords to all parties fair opportunity to
verify the copies by comparison with the originals, or (B) offer the
originals to be marked for identification, after giving to each party an
opportunity to inspect and copy them, in which event the materials may
then be used in the same manner as if annexed to the deposition. Any
party may move for an order that the original be annexed to and returned
with the deposition to the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to the deponent.
(3) The party taking the deposition shall give prompt notice of its
filing to all other parties.
(g) Failure To Attend or To Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition
fails to attend and proceed therewith and another party attends in
person or by attorney pursuant to the notice, the court may order the
party giving the notice to pay to such other party the reasonable
expenses incurred by that party and that party's attorney in attending,
including reasonable attorney's fees.
(2) If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon the witness and the witness
because of such failure does not attend, and if another party attends in
person or by attorney because that party expects the deposition of that
witness to be taken, the court may order the party giving the notice to
pay to such other party the reasonable expenses incurred by that party
and that party's attorney in attending, including reasonable attorney's
fees.
(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.)
Note to Subdivision (a). This is in accordance with common practice.
See U.S.C., Title 28, (former) 639 (Depositions de bene esse; when
and where taken; notice), the relevant provisions of which are
incorporated in this rule; Calif.Code Civ.Proc. (Deering, 1937) 2031;
and statutes cited in respect to notice in the Note to Rule 26(a). The
provision for enlarging or shortening the time of notice has been added
to give flexibility to the rule.
Note to Subdivisions (b) and (d). These are introduced as a
safeguard for the protection of parties and deponents on account of the
unlimited right of discovery given by Rule 26.
Note to Subdivisions (c) and (e). These follow the general plan of
(former) Equity Rule 51 (Evidence Taken Before Examiners, Etc.) and U.
S. C., Title 28, (former) 640 (Depositions de bene esse; mode of
taking), and (former) 641 (Same; transmission to court), but are more
specific. They also permit the deponent to require the officer to make
changes in the deposition if the deponent is not satisfied with it. See
also (former) Equity Rule 50 (Stenographer-Appointment-Fees).
Note to Subdivision (f). Compare (former) Equity Rule 55
(Depositions Deemed Published When Filed).
Note to Subdivision (g). This is similar to 2 Minn. Stat. (Mason,
1927) 9833, but is more extensive.
This amendment corresponds to the change in Rule 4(d)(4). See the
Advisory Committee's Note to that amendment.
Subdivision (a). This subdivision contains the provisions of
existing Rule 26(a), transferred here as part of the rearrangement
relating to Rule 26. Existing Rule 30(a) is transferred to 30(b).
Changes in language have been made to conform to the new arrangement.
This subdivision is further revised in regard to the requirement of
leave of court for taking a deposition. The present procedure,
requiring a plaintiff to obtain leave of court if he serves notice of
taking a deposition within 20 days after commencement of the action, is
changed in several respects. First, leave is required by reference to
the time the deposition is to be taken rather than the date of serving
notice of taking. Second, the 20-day period is extended to 30 days and
runs from the service of summons and complaint on any defendant, rather
than the commencement of the action. Cf. Ill. S.Ct.R. 19-1, S-H
Ill.Ann.Stat. 101.19-1. Third, leave is not required beyond the time
that defendant initiates discovery, thus showing that he has retained
counsel. As under the present practice, a party not afforded a
reasonable opportunity to appear at a deposition, because he has not yet
been served with process, is protected against use of the deposition at
trial against him. See Rule 32(a), transferred from 26(d). Moreover,
he can later redepose the witness if he so desires.
The purpose of requiring the plaintiff to obtain leave of court is,
as stated by the Advisory Committee that proposed the present language
of Rule 26(a), to protect ''a defendant who has not had an opportunity
to retain counsel and inform himself as to the nature of the suit.''
Note to 1948 amendment of Rule 26(a), quoted in 3A Barron & Holtzoff,
Federal Practice and Procedure 455-456 (Wright ed. 1958). In order to
assure defendant of this opportunity, the period is lengthened to 30
days. This protection, however, is relevant to the time of taking the
deposition, not to the time that notice is served. Similarly, the
protective period should run from the service of process rather than the
filing of the complaint with the court. As stated in the note to Rule
26(d), the courts have used the service of notice as a convenient
reference point for assigning priority in taking depositions, but with
the elimination of priority in new Rule 26(d) the reference point is no
longer needed. The new procedure is consistent in principle with the
provisions of Rules 33, 34, and 36 as revised.
Plaintiff is excused from obtaining leave even during the initial
30-day period if he gives the special notice provided in subdivision
(b)(2). The required notice must state that the person to be examined
is about to go out of the district where the action is pending and more
than 100 miles from the place of trial, or out of the United States, or
on a voyage to sea, and will be unavailable for examination unless
deposed within the 30-day period. These events occur most often in
maritime litigation, when seamen are transferred from one port to
another or are about to go to sea. Yet, there are analogous situations
in nonmaritime litigation, and although the maritime problems are more
common, a rule limited to claims in the admiralty and maritime
jurisdiction is not justified.
In the recent unification of the civil and admiralty rules, this
problem was temporarily met through addition in Rule 26(a) of a
provision that depositions de bene esse may continue to be taken as to
admiralty and maritime claims within the meaning of Rule 9(h). It was
recognized at the time that ''a uniform rule applicable alike to what
are now civil actions and suits in admiralty'' was clearly preferable,
but the de bene esse procedure was adopted ''for the time being at
least.'' See Advisory Committee's note in Report of the Judicial
Conference: Proposed Amendments to Rules of Civil Procedure 43-44
(1966).
The changes in Rule 30(a) and the new Rule 30(b)(2) provide a formula
applicable to ordinary civil as well as maritime claims. They replace
the provision for depositions de bene esse. They authorize an early
deposition without leave of court where the witness is about to depart
and, unless his deposition is promptly taken, (1) it will be impossible
or very difficult to depose him before trial or (2) his deposition can
later be taken but only with substantially increased effort and expense.
Cf. S.S. Hai Chang, 1966 A.M.C. 2239 (S.D.N.Y. 1966), in which the
deposing party is required to prepay expenses and counsel fees of the
other party's lawyer when the action is pending in New York and
depositions are to be taken on the West Coast. Defendant is protected
by a provision that the deposition cannot be used against him if he was
unable through exercise of diligence to obtain counsel to represent him.
The distance of 100 miles from place of trial is derived from the de
bene esse provision and also conforms to the reach of a subpoena of the
trial court, as provided in Rule 45(e). See also S.D.N.Y. Civ.R. 5(a).
Some parts of the de bene esse provision are omitted from Rule 30(b)(2).
Modern deposition practice adequately covers the witness who lives more
than 100 miles away from place of trial. If a witness is aged or
infirm, leave of court can be obtained.
Subdivision (b). Existing Rule 30(b) on protective orders has been
transferred to Rule 26(c), and existing Rule 30(a) relating to the
notice of taking deposition has been transferred to this subdivision.
Because new material has been added, subsection numbers have been
inserted.
Subdivision (b)(1). If a subpoena duces tecum is to be served, a
copy thereof or a designation of the materials to be produced must
accompany the notice. Each party is thereby enabled to prepare for the
deposition more effectively.
Subdivision (b)(2). This subdivision is discussed in the note to
subdivision (a), to which it relates.
Subdivision (b)(3). This provision is derived from existing Rule
30(a), with a minor change of language.
Subdivision (b)(4). In order to facilitate less expensive
procedures, provision is made for the recording of testimony by other
than stenographic means -- e.g., by mechanical, electronic, or
photographic means. Because these methods give rise to problems of
accuracy and trustworthiness, the party taking the deposition is
required to apply for a court order. The order is to specify how the
testimony is to be recorded, preserved, and filed, and it may contain
whatever additional safeguards the court deems necessary.
Subdivision (b)(5). A provision is added to enable a party, through
service of notice, to require another party to produce documents or
things at the taking of his deposition. This may now be done as to a
nonparty deponent through use of a subpoena duces tecum as authorized by
Rule 45, but some courts have held that documents may be secured from a
party only under Rule 34. See 2A Barron & Holtzoff, Federal Practice
and Procedure 644.1 n. 83.2, 792 n. 16 (Wright ed. 1961). With the
elimination of ''good cause'' from Rule 34, the reason for this
restrictive doctrine has disappeared. Cf. N.Y.C.P.L.R. 3111.
Whether production of documents or things should be obtained directly
under Rule 34 or at the deposition under this rule will depend on the
nature and volume of the documents or things. Both methods are made
available. When the documents are few and simple, and closely related
to the oral examination, ability to proceed via this rule will
facilitate discovery. If the discovering party insists on examining
many and complex documents at the taking of the deposition, thereby
causing undue burdens on others, the latter may, under Rules 26(c) or
30(d), apply for a court order that the examining party proceed via Rule
34 alone.
Subdivision (b)(6). A new provision is added, whereby a party may
name a corporation, partnership, association, or governmental agency as
the deponent and designate the matters on which he requests examination,
and the organization shall then name one or more of its officers,
directors, or managing agents, or other persons consenting to appear and
testify on its behalf with respect to matters known or reasonably
available to the organization. Cf. Alberta Sup.Ct.R. 255. The
organization may designate persons other than officers, directors, and
managing agents, but only with their consent. Thus, an employee or
agent who has an independent or conflicting interest in the litigation
-- for example, in a personal injury case -- can refuse to testify on
behalf of the organization.
This procedure supplements the existing practice whereby the
examining party designates the corporate official to be deposed. Thus,
if the examining party believes that certain officials who have not
testified pursuant to this subdivision have added information, he may
depose them. On the other hand, a court's decision whether to issue a
protective order may take account of the availability and use made of
the procedures provided in this subdivision.
The new procedure should be viewed as an added facility for
discovery, one which may be advantageous to both sides as well as an
improvement in the deposition process. It will reduce the difficulties
now encountered in determining, prior to the taking of a deposition,
whether a particular employee or agent is a ''managing agent.'' See
Note, Discovery Against Corporations Under the Federal Rules, 47 Iowa
L.Rev. 1006-1016 (1962). It will curb the ''bandying'' by which
officers or managing agents of a corporation are deposed in turn but
each disclaims knowledge of facts that are clearly known to persons in
the organization and thereby to it. Cf. Haney v. Woodward & Lothrop,
Inc., 330 F.2d 940, 944 (4th Cir. 1964). The provisions should also
assist organizations which find that an unnecessarily large number of
their officers and agents are being deposed by a party uncertain of who
in the organization has knowledge. Some courts have held that under the
existing rules a corporation should not be burdened with choosing which
person is to appear for it. E.g., United States v. Gahagan Dredging
Corp., 24 F.R.D. 328, 329 (S.D.N.Y. 1958). This burden is not
essentially different from that of answering interrogatories under Rule
33, and is in any case lighter than that of an examining party ignorant
of who in the corporation has knowledge.
Subdivision (c). A new sentence is inserted at the beginning,
representing the transfer of existing Rule 26(c) to this subdivision.
Another addition conforms to the new provision in subdivision (b)(4).
The present rule provides that transcription shall be carried out
unless all parties waive it. In view of the many depositions taken from
which nothing useful is discovered, the revised language provides that
transcription is to be performed if any party requests it. The fact of
the request is relevant to the exercise of the court's discretion in
determining who shall pay for transcription.
Parties choosing to serve written questions rather than participate
personally in an oral deposition are directed to serve their questions
on the party taking the deposition, since the officer is often not
identified in advance. Confidentiality is preserved, since the
questions may be served in a sealed envelope.
Subdivision (d). The assessment of expenses incurred in relation to
motions made under this subdivision (d) is made subject to the
provisions of Rule 37(a). The standards for assessment of expenses are
more fully set out in Rule 37(a), and these standards should apply to
the essentially similar motions of this subdivision.
Subdivision (e). The provision relating to the refusal of a witness
to sign his deposition is tightened through insertion of a 30-day time
period.
Subdivision (f)(1). A provision is added which codifies in a
flexible way the procedure for handling exhibits related to the
deposition and at the same time assures each party that he may inspect
and copy documents and things produced by a nonparty witness in response
to subpoena duces tecum. As a general rule and in the absence of
agreement to the contrary or order of the court, exhibits produced
without objection are to be annexed to and returned with the deposition,
but a witness may substitute copies for purposes of marking and he may
obtain return of the exhibits. The right of the parties to inspect
exhibits for identification and to make copies is assured. Cf.
N.Y.C.P.L.R. 3116(c).
The subdivision permits a party to name a corporation or other form
of organization as a deponent in the notice of examination and to
describe in the notice the matters about which discovery is desired.
The organization is then obliged to designate natural persons to testify
on its behalf. The amendment clarifies the procedure to be followed if
a party desires to examine a non-party organization through persons
designated by the organization. Under the rules, a subpoena rather than
a notice of examination is served on a non-party to compel attendance at
the taking of a deposition. The amendment provides that a subpoena may
name a non-party organization as the deponent and may indicate the
matters about which discovery is desired. In that event, the non-party
organization must respond by designating natural persons, who are then
obliged to testify as to matters known or reasonably available to the
organization. To insure that a non-party organization that is not
represented by counsel has knowledge of its duty to designate, the
amendment directs the party seeking discovery to advise of the duty in
the body of the subpoena.
Subdivision (c). Existing. Rule 43(b), which is to be abrogated,
deals with the use of leading questions, the calling, interrogation,
impeachment, and scope of cross-examination of adverse parties,
officers, etc. These topics are dealt with in many places in the Rules
of Evidence. Moreover, many pertinent topics included in the Rules of
Evidence are not mentioned in Rule 43(b), e.g. privilege. A reference to
the Rules of Evidence generally is therefore made in subdivision (c) of
Rule 30.
Subdivision (b)(4). It has been proposed that electronic recording
of depositions be authorized as a matter of course, subject to the right
of a party to seek an order that a deposition be recorded by
stenographic means. The Committee is not satisfied that a case has been
made for a reversal of present practice. The amendment is made to
encourage parties to agree to the use of electronic recording of
depositions so that conflicting claims with respect to the potential of
electronic recording for reducing costs of depositions can be appraised
in the light of greater experience. The provision that the parties may
stipulate that depositions may be recorded by other than stenographic
means seems implicit in Rule 29. The amendment makes it explicit. The
provision that the stipulation or order shall designate the person
before whom the deposition is to be taken is added to encourage the
naming of the recording technician as that person, eliminating the
necessity of the presence of one whose only function is to administer
the oath. See Rules 28(a) and 29.
Subdivision (b)(7). Depositions by telephone are now authorized by
Rule 29 upon stipulation of the parties. The amendment authorizes that
method by order of the court. The final sentence is added to make it
clear that when a deposition is taken by telephone it is taken in the
district and at the place where the witness is to answer the questions
rather than that where the questions are propounded.
Subdivision (f)(1). For the reasons set out in the Note following
the amendment of Rule 5(d), the court may wish to permit the parties to
retain depositions unless they are to be used in the action. The
amendment of the first paragraph permits the court to so order.
The amendment of the second paragraph is clarifying. The purpose of
the paragraph is to permit a person who produces materials at a
deposition to offer copies for marking and annexation to the deposition.
Such copies are a ''substitute'' for the originals, which are not to be
marked and which can thereafter be used or even disposed of by the
person who produces them. In the light of that purpose, the former
language of the paragraph had been justly termed ''opaque.'' Wright &
Miller, Federal Practice and Procedure: Civil 2114.
The amendments are technical. No substantive change is intended.
Amendment of this rule embraced by the order entered by the Supreme
Court of the United States on November 20, 1972, effective on the 180th
day beginning after January 2, 1975, see section 3 of Pub. L. 93-595,
Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of
this title.
Discovery and production of documents and things for inspection,
copying, or photographing, see rule 34.
Effect of taking or using depositions, see rule 26.
Errors or irregularities in depositions, effect, see rule 32.
Motion to suppress deposition, see rule 32.
Notary public and other persons authorized to administer oaths
required by laws of the United States, see section 2903 of Title 5,
Government Organization and Employees.
Objections to admissibility of deposition, see rule 26.
Orders for protection of party on written interrogatories, see rule
33.
Persons before whom deposition may be taken, see rule 28.
Place of examination, see rule 45.
Power of person appointed by court to take deposition to administer
oaths and take testimony, see rule 28.
Scope of examination, see rule 26.
Stipulations regarding discovery procedure, see rule 29.
Subpoena for taking depositions, see rule 45.
Time of taking depositions, see rule 26.
United States magistrates, power to administer oaths and take
depositions, see section 636 of this title.
Waiver of objections, see rule 32.
28 USC Rule 31. Depositions Upon Written Questions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Serving Questions; Notice. After commencement of the action, any
party may take the testimony of any person, including a party, by
deposition upon written questions. The attendance of witnesses may be
compelled by the use of subpoena as provided in Rule 45. The deposition
of a person confined in prison may be taken only by leave of court on
such terms as the court prescribes.
A party desiring to take a deposition upon written questions shall
serve them upon every other party with a notice stating (1) the name and
address of the person who is to answer them, if known, and if the name
is not known, a general description sufficient to identify the person or
the particular class or group to which the person belongs, and (2) the
name or descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions may be
taken of a public or private corporation or a partnership or association
or governmental agency in accordance with the provisions of Rule
30(b)(6).
Within 30 days after the notice and written questions are served, a
party may serve cross questions upon all other parties. Within 10 days
after being served with cross questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served
with redirect questions, a party may serve recross questions upon all
other parties. The court may for cause shown enlarge or shorten the
time.
(b) Officer To Take Responses and Prepare Record. A copy of the
notice and copies of all questions served shall be delivered by the
party taking the deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by Rule 30(c), (e), and
(f), to take the testimony of the witness in response to the questions
and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the questions received by the
officer.
(c) Notice of Filing. When the deposition is filed the party taking
it shall promptly give notice thereof to all other parties.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
Aug. 1, 1987.)
This rule is in accordance with common practice. In most of the
states listed in the Note to Rule 26(a), provisions similar to this rule
will be found in the statutes which in their respective statutory
compilations follow those cited in the Note to Rule 26(a).
Confusion is created by the use of the same terminology to describe
both the taking of a deposition upon ''written interrogatories''
pursuant to this rule and the serving of ''written interrogatories''
upon parties pursuant to Rule 33. The distinction between these two
modes of discovery will be more readily and clearly grasped through
substitution of the word ''questions'' for ''interrogatories''
throughout this rule.
Subdivision (a). A new paragraph is inserted at the beginning of
this subdivision to conform to the rearrangement of provisions in Rules
26(a), 30(a), and 30(b).
The revised subdivision permits designation of the deponent by
general description or by class or group. This conforms to the practice
for depositions on oral examination.
The new procedure provided in Rule 30(b)(6) for taking the deposition
of a corporation or other organization through persons designated by the
organization is incorporated by reference.
The service of all questions, including cross, redirect, and recross,
is to be made on all parties. This will inform the parties and enable
them to participate fully in the procedure.
The time allowed for service of cross, redirect, and recross
questions has been extended. Experience with the existing time limits
shows them to be unrealistically short. No special restriction is
placed on the time for serving the notice of taking the deposition and
the first set of questions. Since no party is required to serve cross
questions less than 30 days after the notice and questions are served,
the defendant has sufficient time to obtain counsel. The court may for
cause shown enlarge or shorten the time.
Subdivision (d). Since new Rule 26(c) provides for protective orders
with respect to all discovery, and expressly provides that the court may
order that one discovery device be used in place of another, subdivision
(d) is eliminated as unnecessary.
The amendments are technical. No substantive change is intended.
Written interrogatories of a party, see rule 33.
28 USC Rule 32. Use of Depositions in Court Proceedings
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Use of Depositions. At the trial or upon the hearing of a motion
or an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who was
present or represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the following
provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness, or
for any other purpose permitted by the Federal Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public
or private corporation, partnership or association or governmental
agency which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds: (A) that the witness
is dead; or (B) that the witness is at a greater distance than 100
miles from the place of trial or hearing, or is out of the United
States, unless it appears that the absence of the witness was procured
by the party offering the deposition; or (C) that the witness is unable
to attend or testify because of age, illness, infirmity, or
imprisonment; or (D) that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena; or (E)
upon application and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard
to the importance of presenting the testimony of witnesses orally in
open court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the offeror to introduce any other part
which ought in fairness to be considered with the part introduced, and
any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect the right
to use depositions previously taken; and, when an action has been
brought in any court of the United States or of any State and another
action involving the same subject matter is afterward brought between
the same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefor. A deposition
previously taken may also be used as permitted by the Federal Rules of
Evidence.
(b) Objections to Admissibility. Subject to the provisions of Rule
28(b) and subdivision (d)(3) of this rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
((c) Effect of Taking or Using Depositions.) (Abrogated Nov. 20,
1972, eff. July 1, 1975)
(d) Effect of Errors and Irregularities in Depositions.
(1) As to Notice. All errors and irregularities in the notice for
taking a deposition are waived unless written objection is promptly
served upon the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a
deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(3) As to Taking of Deposition.
(A) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the ground of
the objection is one which might have been obviated or removed if
presented at that time.
(B) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection thereto is
made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Rule
31 are waived unless served in writing upon the party propounding them
within the time allowed for serving the succeeding cross or other
questions and within 5 days after service of the last questions
authorized.
(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under Rules
30 and 31 are waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after such defect is, or
with due diligence might have been, ascertained.
(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.)
This rule is in accordance with common practice. In most of the
states listed in the Note to Rule 26, provisions similar to this rule
will be found in the statutes which in their respective statutory
compilations follow those cited in the Note to Rule 26.
As part of the rearrangement of the discovery rules, existing
subdivisions (d), (e), and (f) of Rule 26 are transferred to Rule 32 as
new subdivisions (a), (b), and (c). The provisions of Rule 32 are
retained as subdivision (d) of Rule 32 with appropriate changes in the
lettering and numbering of subheadings. The new rule is given a
suitable new title. A beneficial byproduct of the rearrangement is that
provisions which are naturally related to one another are placed in one
rule.
A change is made in new Rule 32(a), whereby it is made clear that the
rules of evidence are to be applied to depositions offered at trial as
though the deponent were then present and testifying at trial. This
eliminates the possibility of certain technical hearsay objections which
are based, not on the contents of deponent's testimony, but on his
absence from court. The language of present Rule 26(d) does not appear
to authorize these technical objections, but it is not entirely clear.
Note present Rule 26(e), transferred to Rule 32(b); see 2A Barron &
Holtzoff, Federal Practice and Procedure 164-166 (Wright ed. 1961).
An addition in Rule 32(a)(2) provides for use of a deposition of a
person designated by a corporation or other organization, which is a
party, to testify on its behalf. This complements the new procedure for
taking the deposition of a corporation or other organization provided in
Rules 30(b)(6) and 31(a). The addition is appropriate, since the
deposition is in substance and effect that of the corporation or other
organization which is a party.
A change is made in the standard under which a party offering part of
a deposition in evidence may be required to introduce additional parts
of the deposition. The new standard is contained in a proposal made by
the Advisory Committee on Rules of Evidence. See Rule 1-07 and
accompanying Note, Preliminary Draft of Proposed Rules of Evidence for
the United States District Courts and Magistrates 21-22 (March, 1969).
References to other rules are changed to conform to the
rearrangement, and minor verbal changes have been made for
clarification. The time for objecting to written questions served under
Rule 31 is slightly extended.
Subdivision (e). The concept of ''making a person one's own
witness'' appears to have had significance principally in two respects:
impeachment and waiver of incompetency. Neither retains any vitality
under the Rules of Evidence. The old prohibition against impeaching
one's own witness is eliminated by Evidence Rule 607. The lack of
recognition in the Rules of Evidence of state rules of incompetency in
the Dead Man's area renders it unnecessary to consider aspects of waiver
arising from calling the incompetent party witness. Subdivision (c) is
deleted because it appears to be no longer necessary in the light of the
Rules of Evidence.
Subdivision (a)(1). Rule 801(d) of the Federal Rules of Evidence
permits a prior inconsistent statement of a witness in a deposition to
be used as substantive evidence. And Rule 801(d)(2) makes the statement
of an agent or servant admissible against the principal under the
circumstances described in the Rule. The language of the present
subdivision is, therefore, too narrow.
Subdivision (a)(4). The requirement that a prior action must have
been dismissed before depositions taken for use in it can be used in a
subsequent action was doubtless an oversight, and the courts have
ignored it. See Wright & Miller, Federal Practice and Procedure: Civil
2150. The final sentence is added to reflect the fact that the Federal
Rules of Evidence permit a broader use of depositions previously taken
under certain circumstances. For example, Rule 804(b)(1) of the Federal
Rules of Evidence provides that if a witness is unavailable, as that
term is defined by the rule, his deposition in any earlier proceeding
can be used against a party to the prior proceeding who had an
opportunity and similar motive to develop the testimony of the witness.
The amendment is technical. No substantive change is intended.
The Federal Rules of Evidence, referred to in subd. (a)(1), (4), are
set out in this Appendix.
Amendment of this rule embraced by the order entered by the Supreme
Court of the United States on November 20, 1972, effective on the 180th
day beginning after January 2, 1975, see section 3 of Pub. L. 93-595,
Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of
this title.
Notary public and other persons authorized to administer oaths
required by laws of the United States, see section 2903 of Title 5,
Government Organization and Employees.
Rejection of deposition by court after refusal to sign, see rule 30.
28 USC Rule 33. Interrogatories to Parties
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Availability; Procedures for Use. Any party may serve upon any
other party written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a
partnership or association or governmental agency, by any officer or
agent, who shall furnish such information as is available to the party.
Interrogatories may, without leave of court, be served upon the
plaintiff after commencement of the action and upon any other party with
or after service of the summons and complaint upon that party.
Each interrogatory shall be answered separately and fully in writing
under oath, unless it is objected to, in which event the reasons for
objection shall be stated in lieu of an answer. The answers are to be
signed by the person making them, and the objections signed by the
attorney making them. The party upon whom the interrogatories have been
served shall serve a copy of the answers, and objections if any, within
30 days after the service of the interrogatories, except that a
defendant may serve answers or objections within 45 days after service
of the summons and complaint upon that defendant. The court may allow a
shorter or longer time. The party submitting the interrogatories may
move for an order under Rule 37(a) with respect to any objection to or
other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters
which can be inquired into under Rule 26(b), and the answers may be used
to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or
contention that relates to fact or the application of law to fact, but
the court may order that such an interrogatory need not be answered
until after designated discovery has been completed or until a pre-trial
conference or other later time.
(c) Option To Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, including a
compilation, abstract or summary thereof, and the burden of deriving or
ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party served, it is a sufficient answer to
such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit or inspect such
records and to make copies, compilations, abstracts or summaries. A
specification shall be in sufficient detail to permit the interrogating
party to locate and to identify, as readily as can the party served, the
records from which the answer may be ascertained.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.
July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980.)
This rule restates the substance of (former) Equity Rule 58
(Discovery -- Interrogatories -- Inspection and Production of Documents
-- Admission of Execution or Genuineness), with modifications to conform
to these rules.
Note. The added second sentence in the first paragraph of Rule 33
conforms with a similar change in Rule 26(a) and will avoid litigation
as to when the interrogatories may be served. Original Rule 33 does not
state the times at which parties may serve written interrogatories upon
each other. It has been the accepted view, however, that the times were
the same in Rule 33 as those stated in Rule 26(a). United States v.
American Solvents & Chemical Corp. of California, D.Del. 1939, 30
F.Supp. 107; Sheldon v. Great Lakes Transit Corp., W.D.N.Y. 1942, 2
F.R.D. 272, 5 Fed.Rules Serv. 33.11, Case 3; Musher Foundation, Inc.,
v. Alba Trading Co., S.D.N.Y. 1941, 42 F.Supp. 281; 2 Moore's Federal
Practice, 1938, 2621. The time within which leave of court must be
secured by a plaintiff has been fixed at 10 days, in view of the fact
that a defendant has 10 days within which to make objections in any
case, which should give him ample time to engage counsel and prepare.
Further in the first paragraph of Rule 33, the word ''service'' is
substituted for ''delivery'' in conformance with the use of the word
''serve'' elsewhere in the rule and generally throughout the rules. See
also Note to Rule 13(a) herein. The portion of the rule dealing with
practice on objections has been revised so as to afford a clearer
statement of the procedure. The addition of the words ''to
interrogatories to which objection is made'' insures that only the
answers to the objectionable interrogatories may be deferred, and that
the answers to interrogatories not objectionable shall be forthcoming
within the time prescribed in the rule. Under the original wording,
answers to all interrogatories may be withheld until objections,
sometimes to but a few interrogatories, are determined. The amendment
expedites the procedure of the rule and serves to eliminate the strike
value of objections to minor interrogatories. The elimination of the
last sentence of the original rule is in line with the policy stated
subsequently in this note.
The added second paragraph in Rule 33 contributes clarity and
specificity as to the use and scope of interrogatories to the parties.
The field of inquiry will be as broad as the scope of examination under
Rule 26(b). There is no reason why interrogatories should be more
limited than depositions, particularly when the former represent an
inexpensive means of securing useful information. See Hoffman v.
Wilson Line, Inc., E.D.Pa. 1946, 9 Fed.Rules Serv. 33.514, Case 2;
Brewster v. Technicolor, Inc., S.D.N.Y. 1941, 2 F.R.D. 186, 5 Fed.Rules
Serv. 33.319, Case 3; Kingsway Press, Inc. v. Farrell Publishing
Corp., S.D.N.Y. 1939, 30 F.Supp. 775. Under present Rule 33 some courts
have unnecessarily restricted the breadth of inquiry on various grounds.
See Auer v. Hershey Creamery Co., D.N.J. 1939, 2 Fed.Rules Serv.
33.31, Case 2, 1 F.R.D. 14; Tudor v. Leslie, D.Mass. 1940, 1 F.R.D.
448, 4 Fed.Rules Serv. 33.324, Case 1. Other courts have read into the
rule the requirement that interrogation should be directed only towards
''important facts'', and have tended to fix a more or less arbitrary
limit as to the number of interrogatories which could be asked in any
case. See Knox v. Alter, W.D.Pa. 1942, 2 F.R.D. 337, 6 Fed.Rules Serv.
33.352, Case 1; Byers Theaters, Inc. v. Murphy, W.D.Va. 1940, 3
Fed.Rules Serv. 33.31, Case 3, 1 F.R.D. 286; Coca-Cola Co. v.
Dixi-Cola Laboratories, Inc., D.Md. 1939, 30 F.Supp. 275. See also
comment on these restrictions in Holtzoff, Instruments of Discovery
Under Federal Rules of Civil Procedure, 1942, 41 Mich.L.Rev. 205,
216-217. Under amended Rule 33, the party interrogated is given the
right to invoke such protective orders under Rule 30(b) as are
appropriate to the situation. At the same time, it is provided that the
number of or number of sets of interrogatories to be served may not be
limited arbitrarily or as a general policy to any particular number, but
that a limit may be fixed only as justice requires to avoid annoyance,
expense, embarrassment or oppression in individual cases. The party
interrogated, therefore, must show the necessity for limitation on that
basis. It will be noted that in accord with this change the last
sentence of the present rule, restricting the sets of interrogatories to
be served, has been stricken. In J. Schoeneman, Inc. v. Brauer,
W.D.Mo. 1940, 1 F.R.D. 292, 3 Fed.Rules Serv. 33.31, Case 2, the court
said: ''Rule 33 . . . has been interpreted . . . as being just as
broad in its implications as in the case of depositions . . . It makes
no difference therefore, how many interrogatories are propounded. If
the inquiries are pertinent the opposing party cannot complain.'' To the
same effect, see Canuso v. City of Niagara Falls, W.D.N.Y. 1945, 8
Fed.Rules Serv. 33.352, Case 1; Hoffman v. Wilson Line, Inc., supra.
By virtue of express language in the added second paragraph of Rule
33, as amended, any uncertainty as to the use of the answers to
interrogatories is removed. The omission of a provision on this score
in the original rule has caused some difficulty. See, e.g., Bailey v.
New England Mutual Life Ins. Co., S.D.Cal. 1940, 1 F.R.D. 494, 4
Fed.Rules Serv. 33.46, Case 1.
The second sentence of the second paragraph in Rule 33, as amended,
concerns the situation where a party wishes to serve interrogatories on
a party after having taken his deposition, or vice versa. It has been
held that an oral examination of a party, after the submission to him
and answer of interrogatories, would be permitted. Howard v. State
Marine Corp., S.D.N.Y. 1940, 4 Fed.Rules Serv. 33.62, Case 1, 1 F.R.D.
499; Stevens v. Minder Construction Co., S.D.N.Y. 1943, 3 F.R.D. 498,
7 Fed.Rules Serv. 30b.31, Case 2. But objections have been sustained to
interrogatories served after the oral deposition of a party had been
taken. McNally v. Simons, S.D.N.Y. 1940, 3 Fed.Rules Serv. 33.61, Case
1, 1 F.R.D. 254; Currier v. Currier, S.D.N.Y. 1942, 3 F.R.D. 21, 6
Fed.Rules Serv. 33.61, Case 1. Rule 33, as amended, permits either
interrogatories after a deposition or a deposition after
interrogatories. It may be quite desirable or necessary to elicit
additional information by the inexpensive method of interrogatories
where a deposition has already been taken. The party to be
interrogated, however, may seek a protective order from the court under
Rule 30(b) where the additional deposition or interrogation works a
hardship or injustice on the party from whom it is sought.
Subdivision (a). The mechanics of the operation of Rule 33 are
substantially revised by the proposed amendment, with a view to reducing
court intervention. There is general agreement that interrogatories
spawn a greater percentage of objections and motions than any other
discovery device. The Columbia Survey shows that, although half of the
litigants resorted to depositions and about one-third used
interrogatories, about 65 percent of the objections were made with
respect to interrogatories and 26 percent related to depositions. See
also Speck, The Use of Discovery in United States District Courts, 60
Yale L.J. 1132, 1144, 1151 (1951); Note, 36 Minn.L.Rev. 364, 379
(1952).
The procedures now provided in Rule 33 seem calculated to encourage
objections and court motions. The time periods now allowed for
responding to interrogatories -- 15 days for answers and 10 days for
objections -- are too short. The Columbia Survey shows that tardy
response to interrogatories is common, virtually expected. The same was
reported in Speck, supra, 60 Yale L.J. 1132, 1144. The time pressures
tend to encourage objections as a means of gaining time to answer.
The time for objections is even shorter than for answers, and the
party runs the risk that if he fails to object in time he may have
waived his objections. E.g., Cleminshaw v. Beech Aircraft Corp., 21
F.R.D. 300 (D.Del. 1957); see 4 Moore's Federal Practice, 33.27 (2d
ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure 372-373
(Wright ed. 1961). It often seems easier to object than to seek an
extension of time. Unlike Rules 30(d) and 37(a), Rule 33 imposes no
sanction of expenses on a party whose objections are clearly
unjustified.
Rule 33 assures that the objections will lead directly to court,
through its requirement that they be served with a notice of hearing.
Although this procedure does preclude an out-of-court resolution of the
dispute, the procedure tends to discourage informal negotiations. If
answers are served and they are thought inadequate, the interrogating
party may move under Rule 37(a) for an order compelling adequate
answers. There is no assurance that the hearing on objections and that
on inadequate answers will be heard together.
The amendment improves the procedure of Rule 33 in the following
respects:
(1) The time allowed for response is increased to 30 days and this
time period applies to both answers and objections, but a defendant need
not respond in less than 45 days after service of the summons and
complaint upon him. As is true under existing law, the responding party
who believes that some parts or all of the interrogatories are
objectionable may choose to seek a protective order under new Rule 26(c)
or may serve objections under this rule. Unless he applies for a
protective order, he is required to serve answers or objections in
response to the interrogatories, subject to the sanctions provided in
Rule 37(d). Answers and objections are served together, so that a
response to each interrogatory is encouraged, and any failure to respond
is easily noted.
(2) In view of the enlarged time permitted for response, it is no
longer necessary to require leave of court for service of
interrogatories. The purpose of this requirement -- that defendant have
time to obtain counsel before a response must be made -- is adequately
fulfilled by the requirement that interrogatories be served upon a party
with or after service of the summons and complaint upon him.
Some would urge that the plaintiff nevertheless not be permitted to
serve interrogatories with the complaint. They fear that a routine
practice might be invited, whereby form interrogatories would accompany
most complaints. More fundamentally, they feel that, since very general
complaints are permitted in present-day pleading, it is fair that the
defendant have a right to take the lead in serving interrogatories.
(These views apply also to Rule 36.) The amendment of Rule 33 rejects
these views, in favor of allowing both parties to go forward with
discovery, each free to obtain the information he needs respecting the
case.
(3) If objections are made, the burden is on the interrogating party
to move under Rule 37(a) for a court order compelling answers, in the
course of which the court will pass on the objections. The change in
the burden of going forward does not alter the existing obligation of an
objecting party to justify his objections. E.g., Pressley v. Boehlke,
33 F.R.D. 316 (W.D.N.C. 1963). If the discovering party asserts than an
answer is incomplete or evasive, again he may look to Rule 37(a) for
relief, and he should add this assertion to his motion to overrule
objections. There is no requirement that the parties consult informally
concerning their differences, but the new procedure should encourage
consultation, and the court may by local rule require it.
The proposed changes are similar in approach to those adopted by
California in 1961. See Calif.Code Civ.Proc. 2030(a). The experience
of the Los Angeles Superior Court is informally reported as showing that
the California amendment resulted in a significant reduction in court
motions concerning interrogatories. Rhode Island takes a similar
approach. See R. 33, R.I.R.Civ.Proc. Official Draft, p. 74 (Boston
Law Book Co.).
A change is made in subdivision (a) which is not related to the
sequence of procedures. The restriction to ''adverse'' parties is
eliminated. The courts have generally construed this restriction as
precluding interrogatories unless an issue between the parties is
disclosed by the pleadings -- even though the parties may have
conflicting interests. E.g., Mozeika v. Kaufman Construction Co., 25
F.R.D. 233 (E.D.Pa. 1960) (plaintiff and third-party defendant); Biddle
v. Hutchinson, 24 F.R.D. 256 (M.D.Pa. 1959) (codefendants). The
resulting distinctions have often been highly technical. In
Schlagenhauf v. Holder, 379 U.S. 104 (1964), the Supreme Court rejected
a contention that examination under Rule 35 could be had only against an
''opposing'' party, as not in keeping ''with the aims of a liberal,
nontechnical application of the Federal Rules.'' 379 U.S. at 116.
Eliminating the requirement of ''adverse'' parties from Rule 33 brings
it into line with all other discovery rules.
A second change in subdivision (a) is the addition of the term
''governmental agency'' to the listing of organizations whose answers
are to be made by any officer or agent of the organization. This does
not involve any change in existing law. Compare the similar listing in
Rule 30(b)(6).
The duty of a party to supplement his answers to interrogatories is
governed by a new provision in Rule 26(e).
Subdivision (b). There are numerous and conflicting decisions on the
question whether and to what extent interrogatories are limited to
matters ''of fact,'' or may elicit opinions, contentions, and legal
conclusions. Compare, e.g., Payer, Hewitt & Co. v. Bellanca Corp., 26
F.R.D. 219 (D.Del. 1960) (opinions bad); Zinsky v. New York Central
R.R., 36 F.R.D. 680 (N.D.Ohio 1964) (factual opinion or contention good,
but legal theory bad); United States v. Carter Products, Inc., 28
F.R.D. 373 (S.D.N.Y.1961) (factual contentions and legal theories bad)
with Taylor v. Sound Steamship Lines, Inc., 100 F.Supp. 388 (D.Conn.
1951) (opinions good), Bynum v. United States, 36 F.R.D. 14 (E.D.La.
1964) (contentions as to facts constituting negligence good). For lists
of the many conflicting authorities, see 4 Moore's Federal Practice
33.17 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and
Procedure 768 (Wright ed. 1961).
Rule 33 is amended to provide that an interrogatory is not
objectionable merely because it calls for an opinion or contention that
relates to fact or the application of law to fact. Efforts to draw
sharp lines between facts and opinions have invariably been
unsuccessful, and the clear trend of the cases is to permit ''factual''
opinions. As to requests for opinions or contentions that call for the
application of law to fact, they can be most useful in narrowing and
sharpening the issues, which is a major purpose of discovery. See
Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md.
1967); Moore, supra; Field & McKusick, Maine Civil Practice 26.18
(1959). On the other hand, under the new language interrogatories may
not extend to issues of ''pure law,'' i.e., legal issues unrelated to
the facts of the case. Cf. United States v. Maryland & Va. Milk
Producers Assn., Inc., 22 F.R.D. 300 (D.D.C. 1958).
Since interrogatories involving mixed questions of law and fact may
create disputes between the parties which are best resolved after much
or all of the other discovery has been completed, the court is expressly
authorized to defer an answer. Likewise, the court may delay
determination until pretrial conference, if it believes that the dispute
is best resolved in the presence of the judge.
The principal question raised with respect to the cases permitting
such interrogatories is whether they reintroduce undesirable aspects of
the prior pleading practice, whereby parties were chained to
misconceived contentions or theories, and ultimate determination on the
merits was frustrated. See James, The Revival of Bills of Particulars
under the Federal Rules, 71 Harv.L.Rev. 1473 (1958). But there are few
if any instances in the recorded cases demonstrating that such
frustration has occurred. The general rule governing the use of answers
to interrogatories is that under ordinary circumstances they do not
limit proof. See e.g., McElroy v. United Air Lines, Inc., 21 F.R.D.
100 (W.D.Mo. 1967); Pressley v. Boehlke, 33 F.R.D. 316, 317 (W.D.N.C.
1963). Although in exceptional circumstances reliance on an answer may
cause such prejudice that the court will hold the answering party bound
to his answer, e.g., Zielinski v. Philadelphia Piers, Inc., 139 F.Supp.
408 (E.D.Pa. 1956), the interrogating party will ordinarily not be
entitled to rely on the unchanging character of the answers he receives
and cannot base prejudice on such reliance. The rule does not affect
the power of a court to permit withdrawal or amendment of answers to
interrogatories.
The use of answers to interrogatories at trial is made subject to the
rules of evidence. The provisions governing use of depositions, to
which Rule 33 presently refers, are not entirely apposite to answers to
interrogatories, since deposition practice contemplates that all parties
will ordinarily participate through cross-examination. See 4 Moore's
Federal Practice 33.29(1) (2 ed. 1966).
Certain provisions are deleted from subdivision (b) because they are
fully covered by new Rule 26(c) providing for protective orders and
Rules 26(a) and 26(d). The language of the subdivision is thus
simplified without any change of substance.
Subdivision (c). This is a new subdivision, adopted from Calif.Code
Civ.Proc. 2030(c), relating especially to interrogatories which require
a party to engage in burdensome or expensive research into his own
business records in order to give an answer. The subdivision gives the
party an option to make the records available and place the burden of
research on the party who seeks the information. ''This provision,
without undermining the liberal scope of interrogatory discovery, places
the burden of discovery upon its potential benefitee,'' Louisell, Modern
California Discovery, 124-125 (1963), and alleviates a problem which in
the past has troubled Federal courts. See Speck, The Use of Discovery
in United States District Courts, 60 Yale L.J. 1132, 1142-1144 (1951).
The interrogating party is protected against abusive use of this
provision through the requirement that the burden of ascertaining the
answer be substantially the same for both sides. A respondent may not
impose on an interrogating party a mass of records as to which research
is feasible only for one familiar with the records. At the same time,
the respondent unable to invoke this subdivision does not on that
account lose the protection available to him under new Rule 26(c)
against oppressive or unduly burdensome or expensive interrogatories.
And even when the respondent successfully invokes the subdivision, the
court is not deprived of its usual power, in appropriate cases, to
require that the interrogating party reimburse the respondent for the
expense of assembling his records and making them intelligible.
Subdivision (c). The Committee is advised that parties upon whom
interrogatories are served have occasionally responded by directing the
interrogating party to a mass of business records or by offering to make
all of their records available, justifying the response by the option
provided by this subdivision. Such practices are an abuse of the
option. A party who is permitted by the terms of this subdivision to
offer records for inspection in lieu of answering an interrogatory
should offer them in a manner that permits the same direct and
economical access that is available to the party. If the information
sought exists in the form of compilations, abstracts or summaries then
available to the responding party, those should be made available to the
interrogating party. The final sentence is added to make it clear that
a responding party has the duty to specify, by category and location,
the records from which answers to interrogatories can be derived.
28 USC Rule 34. Production of Documents and Things and Entry Upon Land
for Inspection and Other Purposes
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Scope. Any party may serve on any other party a request (1) to
produce and permit the party making the request, or someone acting on
the requestor's behalf, to inspect and copy, any designated documents
(including writings, drawings, graphs, charts, photographs,
phonorecords, and other data compilations from which information can be
obtained, translated, if necessary, by the respondent through detection
devices into reasonably usable form), or to inspect and copy, test, or
sample any tangible things which constitute or contain matters within
the scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom the request is served; or (2) to permit
entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling
the property or any designated object or operation thereon, within the
scope of Rule 26(b).
(b) Procedure. The request may, without leave of court, be served
upon the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that
party. The request shall set forth the items to be inspected either by
individual item or by category, and describe each item and category with
reasonable particularity. The request shall specify a reasonable time,
place, and manner of making the inspection and performing the related
acts.
The party upon whom the request is served shall serve a written
response within 30 days after the service of the request, except that a
defendant may serve a response within 45 days after service of the
summons and complaint upon that defendant. The court may allow a
shorter or longer time. The response shall state, with respect to each
item or category, that inspection and related activities will be
permitted as requested, unless the request is objected to, in which
event the reasons for objection shall be stated. If objection is made
to part of an item or category, the part shall be specified. The party
submitting the request may move for an order under Rule 37(a) with
respect to any objection to or other failure to respond to the request
or any part thereof, or any failure to permit inspection as requested.
A party who produces documents for inspection shall produce them as
they are kept in the usual course of business or shall organize and
label them to correspond with the categories in the request.
(c) Persons Not Parties. A person not a party to the action may be
compelled to produce documents and things or to submit to an inspection
as provided in Rule 45.
(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.)
In England orders are made for the inspection of documents, English
Rules Under the Judicature Act (The Annual Practice, 1937) O. 31, r.r.
14, et seq., or for the inspection of tangible property or for entry
upon land, O. 50, r.3. Michigan provides for inspection of damaged
property when such damage is the ground of the action. Mich.Court Rules
Ann. (Searl, 1933) Rule 41, 2.
Practically all states have statutes authorizing the court to order
parties in possession or control of documents to permit other parties to
inspect and copy them before trial. See Ragland, Discovery Before Trial
(1932), Appendix, p. 267, setting out the statutes.
Compare (former) Equity Rule 58 (Discovery -- Interrogatories --
Inspection and Production of Documents -- Admission of Execution or
Genuineness) (fifth paragraph).
Note. The changes in clauses (1) and (2) correlate the scope of
inquiry permitted under Rule 34 with that provided in Rule 26(b), and
thus remove any ambiguity created by the former differences in language.
As stated in Olson Transportation Co. v. Socony-Vacuum Oil Co.,
E.D.Wis. 1944, 8 Fed.Rules Serv. 34.41, Case 2, ''. . . Rule 34 is a
direct and simple method of discovery.'' At the same time the addition
of the words following the term ''parties'' makes certain that the
person in whose custody, possession, or control the evidence reposes may
have the benefit of the applicable protective orders stated in Rule
30(b). This change should be considered in the light of the proposed
expansion of Rule 30(b).
An objection has been made that the word ''designated'' in Rule 34
has been construed with undue strictness in some district court cases so
as to require great and impracticable specificity in the description of
documents, papers, books, etc., sought to be inspected. The Committee,
however, believes that no amendment is needed, and that the proper
meaning of ''designated'' as requiring specificity has already been
delineated by the Supreme Court. See Brown v. United States, 1928, 276
U.S. 134, 143, 48 S.Ct. 288 (''The subpoena . . . specifies . . . with
reasonable particularity the subjects to which the documents called for
related.''); Consolidated Rendering Co. v. Vermont, 1908, 207 U.S.
541, 543-544, 28 S.Ct. 178 (''We see no reason why all such books,
papers and correspondence which related to the subject of inquiry, and
were described with reasonable detail, should not be called for and the
company directed to produce them. Otherwise, the State would be
compelled to designate each particular paper which it desired, which
presupposes an accurate knowledge of such papers, which the tribunal
desiring the papers would probably rarely, if ever, have.'').
Rule 34 is revised to accomplish the following major changes in the
existing rule: (1) to eliminate the requirement of good cause; (2) to
have the rule operate extrajudicially; (3) to include testing and
sampling as well as inspecting or photographing tangible things; and
(4) to make clear that the rule does not preclude an independent action
for analogous discovery against persons not parties.
Subdivision (a). Good cause is eliminated because it has furnished
an uncertain and erratic protection to the parties from whom production
is sought and is now rendered unnecessary by virtue of the more specific
provisions added to Rule 26(b) relating to materials assembled in
preparation for trial and to experts retained or consulted by parties.
The good cause requirement was originally inserted in Rule 34 as a
general protective provision in the absence of experience with the
specific problems that would arise thereunder. As the note to Rule
26(b)(3) on trial preparation materials makes clear, good cause has been
applied differently to varying classes of documents, though not without
confusion. It has often been said in court opinions that good cause
requires a consideration of need for the materials and of alternative
means of obtaining them, i.e., something more than relevance and lack of
privilege. But the overwhelming proportion of the cases in which the
formula of good cause has been applied to require a special showing are
those involving trial preparation. In practice, the courts have not
treated documents as having a special immunity to discovery simply
because of their being documents. Protection may be afforded to claims
of privacy or secrecy or of undue burden or expense under what is now
Rule 26(c) (previously Rule 30(b)). To be sure, an appraisal of
''undue'' burden inevitably entails consideration of the needs of the
party seeking discovery. With special provisions added to govern trial
preparation materials and experts, there is no longer any occasion to
retain the requirement of good cause.
The revision of Rule 34 to have it operate extrajudicially, rather
than by court order, is to a large extent a reflection of existing law
office practice. The Columbia Survey shows that of the litigants
seeking inspection of documents or things, only about 25 percent filed
motions for court orders. This minor fraction nevertheless accounted
for a significant number of motions. About half of these motions were
uncontested and in almost all instances the party seeking production
ultimately prevailed. Although an extrajudicial procedure will not
drastically alter existing practice under Rule 34 -- it will conform to
it in most cases -- it has the potential of saving court time in a
substantial though proportionately small number of cases tried annually.
The inclusion of testing and sampling of tangible things and objects
or operations on land reflects a need frequently encountered by parties
in preparation for trial. If the operation of a particular machine is
the basis of a claim for negligent injury, it will often be necessary to
test its operating parts or to sample and test the products it is
producing. Cf. Mich.Gen.Ct.R. 310.1(1) (1963) (testing authorized).
The inclusive description of ''documents'' is revised to accord with
changing technology. It makes clear that Rule 34 applies to electronic
data compilations from which information can be obtained only with the
use of detection devices, and that when the data can as a practical
matter be made usable by the discovering party only through respondent's
devices, respondent may be required to use his devices to translate the
data into usable form. In many instances, this means that respondent
will have to supply a print-out of computer data. The burden thus
placed on respondent will vary from case to case, and the courts have
ample power under Rule 26(c) to protect respondent against undue burden
of expense, either by restricting discovery or requiring that the
discovering party pay costs. Similarly, if the discovering party needs
to check the electronic source itself, the court may protect respondent
with respect to preservation of his records, confidentially of
nondiscoverable matters, and costs.
Subdivision (b). The procedure provided in Rule 34 is essentially
the same as that in Rule 33, as amended, and the discussion in the note
appended to that rule is relevant to Rule 34 as well. Problems peculiar
to Rule 34 relate to the specific arrangements that must be worked out
for inspection and related acts of copying, photographing, testing, or
sampling. The rule provides that a request for inspection shall set
forth the items to be inspected either by item or category, describing
each with reasonable particularity, and shall specify a reasonable time,
place, and manner of making the inspection.
Subdivision (c). Rule 34 as revised continues to apply only to
parties. Comments from the bar make clear that in the preparation of
cases for trial it is occasionally necessary to enter land or inspect
large tangible things in the possession of a person not a party, and
that some courts have dismissed independent actions in the nature of
bills in equity for such discovery on the ground that Rule 34 is
preemptive. While an ideal solution to this problem is to provide for
discovery against persons not parties in Rule 34, both the
jurisdictional and procedural problems are very complex. For the
present, this subdivision makes clear that Rule 34 does not preclude
independent actions for discovery against persons not parties.
Subdivision (b). The Committee is advised that, ''It is apparently
not rare for parties deliberately to mix critical documents with others
in the hope of obscuring significance.'' Report of the Special Committee
for the Study of Discovery Abuse, Section of Litigation of the American
Bar Association (1977) 22. The sentence added by this subdivision
follows the recommendation of the Report.
The amendment is technical. No substantive change is intended.
This amendment reflects the change effected by revision of Rule 45 to
provide for subpoenas to compel non-parties to produce documents and
things and to submit to inspections of premises. The deletion of the
text of the former paragraph is not intended to preclude an independent
action for production of documents or things or for permission to enter
upon land, but such actions may no longer be necessary in light of this
revision.
Motion for production of documents, etc., see form 24, Appendix of
Forms.
Consequences of failure to comply with order, see rule 37.
Perpetuation of testimony, order and examination, see rule 27.
Subpoena for production of documentary evidence, see rule 45.
Summary judgment, continuance to procure discovery opposing, see rule
56.
28 USC Rule 35. Physical and Mental Examinations of Persons
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Order for Examination. When the mental or physical condition
(including the blood group) of a party or of a person in the custody or
under the legal control of a party, is in controversy, the court in
which the action is pending may order the party to submit to a physical
or mental examination by a suitably licensed or certified examiner or to
produce for examination the person in the party's custody or legal
control. The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made.
(b) Report of Examiner.
(1) If requested by the party against whom an order is made under
Rule 35(a) or the person examined, the party causing the examination to
be made shall deliver to the requesting party a copy of the detailed
written report of the examiner setting out the examiner's findings,
including results of all tests made, diagnoses and conclusions, together
with like reports of all earlier examinations of the same condition.
After delivery the party causing the examination shall be entitled upon
request to receive from the party against whom the order is made a like
report of any examination, previously or thereafter made, of the same
condition, unless, in the case of a report of examination of a person
not a party, the party shows that the party is unable to obtain it. The
court on motion may make an order against a party requiring delivery of
a report on such terms as are just, and if an examiner fails or refuses
to make a report the court may exclude the examiner's testimony if
offered at trial.
(2) By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party examined
waives any privilege the party may have in that action or any other
involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine the party in respect
of the same mental or physical condition.
(3) This subdivision applies to examinations made by agreement of the
parties, unless the agreement expressly provides otherwise. This
subdivision does not preclude discovery of a report of an examiner or
the taking of a deposition of the examiner in accordance with the
provisions of any other rule.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
Aug. 1, 1987; Nov. 18, 1988, Pub. L. 100-690, title VII, 7047(b), 102
Stat. 4401; Apr. 30, 1991, eff. Dec. 1, 1991.)
Physical examination of parties before trial is authorized by statute
or rule in a number of states. See Ariz.Rev.Code Ann. (Struckmeyer,
1928) 4468; Mich.Court Rules Ann. (Searl, 1933) Rule 41, 2; 2
N.J.Comp.Stat. (1910), N.Y.C.P.A. (1937) 306; 1 S.D.Comp.Laws (1929)
2716A; 3 Wash.Rev.Stat.Ann. (Remington, 1932) 1230-1.
Mental examination of parties is authorized in Iowa. Iowa Code
(1935) ch. 491-F1. See McCash, The Evolution of the Doctrine of
Discovery and Its Present Status in Iowa, 20 Ia.L.Rev. 68 (1934).
The constitutionality of legislation providing for physical
examination of parties was sustained in Lyon v. Manhattan Railway Co.,
142 N.Y. 298, 37 N.E. 113 (1894), and McGovern v. Hope, 63 N.J.L. 76,
42 Atl. 830 (1899). In Union Pacific Ry. Co. v. Botsford, 141 U.S.
250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891), it was held that the court
could not order the physical examination of a party in the absence of
statutory authority. But in Camden and Suburban Ry. Co. v. Stetson,
177 U.S. 172, 20 L.Ed. 617, 44 L.Ed. 721 (1900) where there was
statutory authority for such examination, derived from a state statute
made operative by the conformity act, the practice was sustained. Such
authority is now found in the present rule made operative by the Act of
June 19, 1934, ch. 651, U.S.C., Title 28, 723b (see 2072) (Rules in
actions at law; Supreme Court authorized to make) and 723c (see 2072)
(Union of equity and action at law rules; power of Supreme Court).
Subdivision (a). Rule 35(a) has hitherto provided only for an order
requiring a party to submit to an examination. It is desirable to
extend the rule to provide for an order against the party for
examination of a person in his custody or under his legal control. As
appears from the provisions of amended Rule 37(b)(2) and the comment
under that rule, an order to ''produce'' the third person imposes only
an obligation to use good faith efforts to produce the person.
The amendment will settle beyond doubt that a parent or guardian
suing to recover for injuries to a minor may be ordered to produce the
minor for examination. Further, the amendment expressly includes blood
examination within the kinds of examinations that can be ordered under
the rule. See Beach v. Beach, 114 F.2d 479 (D.C. Cir. 1940).
Provisions similar to the amendment have been adopted in at least 10
States: Calif.Code Civ.Proc. 2032; Ida.R.Civ.P. 35; Ill.S-H Ann. c.
110A, 215; Md.R.P. 420; Mich.Gen. Ct.R. 311; Minn.R.Civ.P. 35;
Mo.Vern.Ann.R.Civ.P. 60.01; N.Dak.R.Civ.P. 35; N.Y.C.P.L. 3121;
Wyo.R.Civ.P. 35.
The amendment makes no change in the requirements of Rule 35 that,
before a court order may issue, the relevant physical or mental
condition must be shown to be ''in controversy'' and ''good cause'' must
be shown for the examination. Thus, the amendment has no effect on the
recent decision of the Supreme Court in Schlagenhauf v. Holder, 379
U.S. 104 (1964), stressing the importance of these requirements and
applying them to the facts of the case. The amendment makes no
reference to employees of a party. Provisions relating to employees in
the State statutes and rules cited above appear to have been virtually
unused.
Subdivision (b)(1). This subdivision is amended to correct an
imbalance in Rule 35(b)(1) as heretofore written. Under that text, a
party causing a Rule 35(a) examination to be made is required to furnish
to the party examined, on request, a copy of the examining physician's
report. If he delivers this copy, he is in turn entitled to receive
from the party examined reports of all examinations of the same
condition previously or later made. But the rule has not in terms
entitled the examined party to receive from the party causing the Rule
35(a) examination any reports of earlier examinations of the same
condition to which the latter may have access. The amendment cures this
defect. See La.Stat.Ann., Civ.Proc. art. 1495 (1960); Utah
R.Civ.P.35(c).
The amendment specifies that the written report of the examining
physician includes results of all tests made, such as results of X-rays
and cardiograms. It also embodies changes required by the broadening of
Rule 35(a) to take in persons who are not parties.
Subdivision (b)(3). This new subdivision removes any possible doubt
that reports of examination may be obtained although no order for
examination has been made under Rule 35(a). Examinations are very
frequently made by agreement, and sometimes before the party examined
has an attorney. The courts have uniformly ordered that reports be
supplied, see 4 Moore's Federal Practice 35.06, n.1 (2d ed. 1966); 2A
Barron & Holtzoff, Federal Practice and Procedure 823, n. 22 (Wright
ed. 1961), and it appears best to fill the technical gap in the present
rule.
The subdivision also makes clear that reports of examining physicians
are discoverable not only under Rule 35(b) but under other rules as
well. To be sure, if the report is privileged, then discovery is not
permissible under any rule other than Rule 35(b) and it is permissible
under Rule 35(b) only if the party requests a copy of the report of
examination made by the other party's doctor. Sher v. De Haven, 199
F.2d 777 (D.C. Cir. 1952), cert. denied 345 U.S. 936 (1953). But if
the report is unprivileged and is subject to discovery under the
provisions of rules other than Rule 35(b) -- such as Rules 34 or
26(b)(3) or (4) -- discovery should not depend upon whether the person
examined demands a copy of the report. Although a few cases have
suggested the contrary, e.g., Galloway v. National Dairy Products
Corp., 24 F.R.D. 362 (E.D.Pa. 1959), the better considered district
court decisions hold that Rule 35(b) is not preemptive. E.g., Leszynski
v. Russ, 29 F.R.D. 10, 12 (D.Md. 1961) and cases cited. The question
was recently given full consideration in Buffington v. Wood, 351 F.2d
292 (3d Cir. 1965), holding that Rule 35(b) is not preemptive.
The amendments are technical. No substantive change is intended.
The revision authorizes the court to require physical or mental
examinations conducted by any person who is suitably licensed or
certified.
The rule was revised in 1988 by Congressional enactment to authorize
mental examinations by licensed clinical psychologists. This revision
extends that amendment to include other certified or licensed
professionals, such as dentists or occupational therapists, who are not
physicians or clinical psychologists, but who may be well-qualified to
give valuable testimony about the physical or mental condition that is
the subject of dispute.
The requirement that the examiner be suitably licensed or certified
is a new requirement. The court is thus expressly authorized to assess
the credentials of the examiner to assure that no person is subjected to
a court-ordered examination by an examiner whose testimony would be of
such limited value that it would be unjust to require the person to
undergo the invasion of privacy associated with the examination. This
authority is not wholly new, for under the former rule, the court
retained discretion to refuse to order an examination, or to restrict an
examination. 8 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE 2234
(1986 Supp.). The revision is intended to encourage the exercise of this
discretion, especially with respect to examinations by persons having
narrow qualifications.
The court's responsibility to determine the suitability of the
examiner's qualifications applies even to a proposed examination by a
physician. If the proposed examination and testimony calls for an
expertise that the proposed examiner does not have, it should not be
ordered, even if the proposed examiner is a physician. The rule does
not, however, require that the license or certificate be conferred by
the jurisdiction in which the examination is conducted.
Subd. (a). Pub. L. 100-690, 7047(b)(1), substituted ''physical
examination by a physician, or mental examination by a physician or
psychologist'' for ''physical or mental examination by a physician''.
Subd. (b). Pub. L. 100-690, 7047(b)(2), inserted ''or psychologist''
in heading, in two places in par. (1), and in two places in par. (3).
Subd. (c). Pub. L. 100-690, 7047(b)(3), added subd. (c).
Consequences of failure to submit to examination, see rule 37.
Perpetuation of testimony, order and examination, see rule 27.
28 USC Rule 36. Requests for Admission
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Request for Admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action
only, of the truth of any matters within the scope of Rule 26(b) set
forth in the request that relate to statements or opinions of fact or of
the application of law to fact including the genuineness of any
documents described in the request. Copies of documents shall be served
with the request unless they have been or are otherwise furnished or
made available for inspection and copying. The request may, without
leave of court, be served upon the plaintiff after commencement of the
action and upon any other party with or after service of the summons and
complaint upon that party.
Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court may
allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the
matter, signed by the party or by the party's attorney, but, unless the
court shortens the time, a defendant shall not be required to serve
answers or objections before the expiration of 45 days after service of
the summons and complaint upon that defendant. If objection is made,
the reasons therefor shall be stated. The answer shall specifically
deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter. A denial shall fairly
meet the substance of the requested admission, and when good faith
requires that a party qualify an answer or deny only a part of the
matter of which an admission is requested, the party shall specify so
much of it as is true and qualify or deny the remainder. An answering
party may not give lack of information or knowledge as a reason for
failure to admit or deny unless the party states that the party has made
reasonable inquiry and that the information known or readily obtainable
by the party is insufficient to enable the party to admit or deny. A
party who considers that a matter of which an admission has been
requested presents a genuine issue for trial may not, on that ground
alone, object to the request; the party may, subject to the provisions
of Rule 37(c), deny the matter or set forth reasons why the party cannot
admit or deny it.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is
admitted or that an amended answer be served. The court may, in lieu of
these orders, determine that final disposition of the request be made at
a pre-trial conference or at a designated time prior to trial. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred in
relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal
or amendment of the admission. Subject to the provision of Rule 16
governing amendment of a pre-trial order, the court may permit
withdrawal or amendment when the presentation of the merits of the
action will be subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment will
prejudice that party in maintaining the action or defense on the merits.
Any admission made by a party under this rule is for the purpose of the
pending action only and is not an admission for any other purpose nor
may it 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.)
Compare similar rules: (Former) Equity Rule 58 (last paragraph,
which provides for the admission of the execution and genuineness of
documents); English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 32; Ill.Rev.Stat. (1937) ch. 110, 182 and Rule 18
(Ill.Rev.Stat. (1937) ch. 110, 259.18); 2 Mass.Gen.Laws (Ter.Ed.,
1932) ch. 231, 69; Mich.Court Rules Ann. (Searl, 1933) Rule 42;
N.J.Comp.Stat. (2 Cum.Supp. 1911-1924) N.Y.C.P.A. (1937) 322, 323;
Wis.Stat. (1935) 327.22.
Note. The first change in the first sentence of Rule 36(a) and the
addition of the new second sentence, specifying when requests for
admissions may be served, bring Rule 36 in line with amended Rules 26(a)
and 33. There is no reason why these rules should not be treated alike.
Other provisions of Rule 36(a) give the party whose admissions are
requested adequate protection.
The second change in the first sentence of the rule (subdivision (a))
removes any uncertainty as to whether a party can be called upon to
admit matters of fact other than those set forth in relevant documents
described in and exhibited with the request. In Smyth v. Kaufman,
C.C.A.2d, 1940, 114 F.2d 40, it was held that the word ''therein'', now
stricken from the rule (said subdivision) referred to the request and
that a matter of fact not related to any document could be presented to
the other party for admission or denial. The rule of this case is now
clearly stated.
The substitution of the word ''served'' for ''delivered'' in the
third sentence of the amended rule (said subdivision) is in conformance
with the use of the word ''serve'' elsewhere in the rule and generally
throughout the rules. See also Notes to Rules 13(a) and 33 herein. The
substitution (in said subdivision) of ''shorter or longer'' for
''further'' will enable a court to designate a lesser period than 10
days for answer. This conforms with a similar provision already
contained in Rule 33.
The addition of clause (1) (in said subdivision) specifies the method
by which a party may challenge the propriety of a request to admit.
There has been considerable difference of judicial opinion as to the
correct method, if any, available to secure relief from an allegedly
improper request. See Commentary, Methods of Objecting to Notice to
Admit, 1942, 5 Fed.Rules Serv. 835; International Carbonic Engineering
Co. v. Natural Carbonic Products, Inc., S.D.Cal. 1944, 57 F.Supp. 248.
The changes in clause (1) are merely of a clarifying and conforming
nature.
The first of the added last two sentences (in said subdivision)
prevents an objection to a part of a request from holding up the answer,
if any, to the remainder. See similar proposed change in Rule 33. The
last sentence strengthens the rule by making the denial accurately
reflect the party's position. It is taken, with necessary changes, from
Rule 8(b).
Rule 36 serves two vital purposes, both of which are designed to
reduce trial time. Admissions are sought, first to facilitate proof
with respect to issues that cannot be eliminated from the case, and
secondly, to narrow the issues by eliminating those that can be. The
changes made in the rule are designed to serve these purposes more
effectively. Certain disagreements in the courts about the proper scope
of the rule are resolved. In addition, the procedural operation of the
rule is brought into line with other discovery procedures, and the
binding effect of an admission is clarified. See generally Finman, The
Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371
(1962).
Subdivision (a). As revised, the subdivision provides that a request
may be made to admit any matter within the scope of Rule 26(b) that
relate to statements or opinions of fact or of the application of law to
fact. It thereby eliminates the requirement that the matters be ''of
fact.'' This change resolves conflicts in the court decisions as to
whether a request to admit matters of ''opinion'' and matters involving
''mixed law and fact'' is proper under the rule. As to ''opinion,''
compare, e.g., Jackson Bluff Corp. v. Marcelle, 20 F.R.D. 139 (E.D.N.Y.
1957); California v. The S.S. Jules Fribourg, 19 F.R.D. 432
(N.D.Calif. 1955), with e.g., Photon, Inc. v. Harris Intertype, Inc.,
28 F.R.D. 327 (D.Mass. 1961); Hise v. Lockwood Grader Corp., 153
F.Supp 276 (D.Nebr. 1957). As to ''mixed law and fact'' the majority of
courts sustain objections, e.g., Minnesota Mining and Mfg. Co. v.
Norton Co., 36 F.R.D. 1 (N.D.Ohio 1964), but McSparran v. Hanigan, 225
F.Supp. 628 (E.D.Pa. 1963) is to the contrary.
Not only is it difficult as a practical matter to separate ''fact''
from ''opinion,'' see 4 Moore's Federal Practice 36.04 (2d ed. 1966);
cf. 2A Barron & Holtzoff, Federal Practice and Procedure 317 (Wright ed.
1961), but an admission on a matter of opinion may facilitate proof or
narrow the issues or both. An admission of a matter involving the
application of law to fact may, in a given case, even more clearly
narrow the issues. For example, an admission that an employee acted in
the scope of his employment may remove a major issue from the trial. In
McSparran v. Hanigan, supra, plaintiff admitted that ''the premises on
which said accident occurred, were occupied or under the control'' of
one of the defendants, 225 F.Supp. at 636. This admission, involving
law as well as fact, removed one of the issues from the lawsuit and
thereby reduced the proof required at trial. The amended provision does
not authorize requests for admissions of law unrelated to the facts of
the case.
Requests for admission involving the application of law to fact may
create disputes between the parties which are best resolved in the
presence of the judge after much or all of the other discovery has been
completed. Power is therefore expressly conferred upon the court to
defer decision until a pretrial conference is held or until a designated
time prior to trial. On the other hand, the court should not
automatically defer decision; in many instances, the importance of the
admission lies in enabling the requesting party to avoid the burdensome
accumulation of proof prior to the pretrial conference.
Courts have also divided on whether an answering party may properly
object to request for admission as to matters which that party regards
as ''in dispute.'' Compare, e.g., Syracuse Broadcasting Corp. v.
Newhouse, 271 F.2d 910, 917 (2d Cir. 1959); Driver v. Gindy Mfg.
Corp., 24 F.R.D. 473 (E.D.Pa. 1959); with e.g., McGonigle v. Baxter,
27 F.R.D. 504 (E.D.Pa. 1961); United States v. Ehbauer, 13 F.R.D. 462
(W.D.Mo. 1952). The proper response in such cases is an answer. The
very purpose of the request is to ascertain whether the answering party
is prepared to admit or regards the matter as presenting a genuine issue
for trial. In his answer, the party may deny, or he may give his reason
for inability to admit or deny the existence of a genuine issue. The
party runs no risk of sanctions if the matter is genuinely in issue,
since Rule 37(c) provides a sanction of costs only when there are no
good reasons for a failure to admit.
On the other hand, requests to admit may be so voluminous and so
framed that the answering party finds the task of identifying what is in
dispute and what is not unduly burdensome. If so, the responding party
may obtain a protective order under Rule 26(c). Some of the decisions
sustaining objections on ''disputability'' grounds could have been
justified by the burdensome character of the requests. See, e.g.,
Syracuse Broadcasting Corp. v. Newhouse, supra.
Another sharp split of authority exists on the question whether a
party may base his answer on lack of information or knowledge without
seeking out additional information. One line of cases has held that a
party may answer on the basis of such knowledge as he has at the time he
answers. E.g., Jackson Buff Corp. v. Marcelle, 20 F.R.D. 139 (E.D.N.Y.
1957); Sladek v. General Motors Corp., 16 F.R.D. 104 (S.D.Iowa 1954).
A larger group of cases, supported by commentators, has taken the view
that if the responding party lacks knowledge, he must inform himself in
reasonable fashion. E.g., Hise v. Lockwood Grader Corp., 153 F.Supp.
276 (D.Nebr. 1957); E. H. Tate Co. v. Jiffy Enterprises, Inc., 16
F.R.D. 571 (E.D.Pa. 1954); Finman, supra, 71 Yale L.J. 371, 404-409; 4
Moore's Federal Practice 36.04 (2d ed. 1966); 2A Barron & Holtzoff,
Federal Practice and Procedure 509 (Wright ed. 1961).
The rule as revised adopts the majority view, as in keeping with a
basic principle of the discovery rules that a reasonable burden may be
imposed on the parties when its discharge will facilitate preparation
for trial and ease the trial process. It has been argued against this
view that one side should not have the burden of ''proving'' the other
side's case. The revised rule requires only that the answering party
make reasonable inquiry and secure such knowledge and information as are
readily obtainable by him. In most instances, the investigation will be
necessary either to his own case or to preparation for rebuttal. Even
when it is not, the information may be close enough at hand to be
''readily obtainable.'' Rule 36 requires only that the party state that
he has taken these steps. The sanction for failure of a party to inform
himself before he answers lies in the award of costs after trial, as
provided in Rule 37(c).
The requirement that the answer to a request for admission be sworn
is deleted, in favor of a provision that the answer be signed by the
party or by his attorney. The provisions of Rule 36 make it clear that
admissions function very much as pleadings do. Thus, when a party
admits in part and denies in part, his admission is for purposes of the
pending action only and may not be used against him in any other
proceeding. The broadening of the rule to encompass mixed questions of
law and fact reinforces this feature. Rule 36 does not lack a sanction
for false answers; Rule 37(c) furnishes an appropriate deterrent.
The existing language describing the available grounds for objection
to a request for admission is eliminated as neither necessary nor
helpful. The statement that objection may be made to any request, which
is ''improper'' adds nothing to the provisions that the party serve an
answer or objection addressed to each matter and that he state his
reasons for any objection. None of the other discovery rules set forth
grounds for objection, except so far as all are subject to the general
provisions of Rule 26.
Changes are made in the sequence of procedures in Rule 36 so that
they conform to the new procedures in Rules 33 and 34. The major
changes are as follows:
(1) The normal time for response to a request for admissions is
lengthened from 10 to 30 days, conforming more closely to prevailing
practice. A defendant need not respond, however, in less than 45 days
after service of the summons and complaint upon him. The court may
lengthen or shorten the time when special situations require it.
(2) The present requirement that the plaintiff wait 10 days to serve
requests without leave of court is eliminated. The revised provision
accords with those in Rules 33 and 34.
(3) The requirement that the objecting party move automatically for a
hearing on his objection is eliminated, and the burden is on the
requesting party to move for an order. The change in the burden of
going forward does not modify present law on burden of persuasion. The
award of expenses incurred in relation to the motion is made subject to
the comprehensive provisions of Rule 37(a)(4).
(4) A problem peculiar to Rule 36 arises if the responding party
serves answers that are not in conformity with the requirements of the
rule -- for example, a denial is not ''specific,'' or the explanation of
inability to admit or deny is not ''in detail.'' Rule 36 now makes no
provision for court scrutiny of such answers before trial, and it seems
to contemplate that defective answers bring about admissions just as
effectively as if no answer had been served. Some cases have so held.
E.g., Southern Ry. Co. v. Crosby, 201 F.2d 878 (4th Cir. 1953);
United States v. Laney, 96 F.Supp. 482 (E.D.S.C. 1951).
Giving a defective answer the automatic effect of an admission may
cause unfair surprise. A responding party who purported to deny or to
be unable to admit or deny will for the first time at trial confront the
contention that he has made a binding admission. Since it is not always
easy to know whether a denial is ''specific'' or an explanation is ''in
detail,'' neither party can know how the court will rule at trial and
whether proof must be prepared. Some courts, therefore, have
entertained motions to rule on defective answers. They have at times
ordered that amended answers be served, when the defects were technical,
and at other times have declared that the matter was admitted. E.g.,
Woods v. Stewart, 171 F.2d 544 (5th Cir. 1948); SEC v. Kaye, Real &
Co., 122 F.Supp. 639 (S.D.N.Y. 1954); Seib's Hatcheries, Inc. v.
Lindley, 13 F.R.D. 113 (W.D.Ark. 1952). The rule as revised conforms to
the latter practice.
Subdivision (b). The rule does not now indicate the extent to which
a party is bound by his admission. Some courts view admissions as the
equivalent of sworn testimony E.g., Ark.-Tenn Distributing Corp. v.
Breidt, 209 F.2d 359 (3d Cir. 1954); United States v. Lemons, 125
F.Supp. 686 (W.D.Ark. 1954); 4 Moore's Federal Practice 36.08 (2d ed.
1966 Supp.). At least in some jurisdictions a party may rebut his own
testimony, e.g., Alamo v. Del Rosario, 98 F.2d 328 (D.C.Cir. 1938), and
by analogy an admission made pursuant to Rule 36 may likewise be thought
rebuttable. The courts in Ark-Tenn and Lemons, supra, reasoned in this
way, although the results reached may be supported on different grounds.
In McSparran v. Hanigan, 225 F.Supp. 628, 636-637 (E.D.Pa. 1963), the
court held that an admission is conclusively binding, though noting the
confusion created by prior decisions.
The new provisions give an admission a conclusively binding effect,
for purposes only of the pending action, unless the admission is
withdrawn or amended. In form and substance a Rule 36 admission is
comparable to an admission in pleadings or a stipulation drafted by
counsel for use at trial, rather than to an evidentiary admission of a
party. Louisell, Modern California Discovery 8.07 (1963); 2A Barron &
Holtzoff, Federal Practice and Procedure 838 (Wright ed. 1961). Unless
the party securing an admission can depend on its binding effect, he
cannot safely avoid the expense of preparing to prove the very matters
on which he has secured the admission, and the purpose of the rule is
defeated. Field & McKusick, Maine Civil Practice 36.4 (1959); Finman,
supra, 71 Yale L.J. 371, 418-426; Comment, 56 Nw.U.L.Rev. 679, 682-683
(1961).
Provision is made for withdrawal or amendment of an admission. This
provision emphasizes the importance of having the action resolved on the
merits, while at the same time assuring each party that justified
reliance on an admission in preparation for trial will not operate to
his prejudice. Cf. Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d
Cir. 1966).
The amendments are technical. No substantive change is intended.
Request for admission under this rule, see form 25, Appendix of
Forms.
Expenses on refusal to admit, see rule 37.
Use of admissions on motions for summary judgment, see rule 56.
28 USC Rule 37. Failure To Make or Cooperate in Discovery: Sanctions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Motion for Order Compelling Discovery. A party, upon reasonable
notice to other parties and all persons affected thereby, may apply for
an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be
made to the court in which the action is pending, or, on matters
relating to a deposition, to the court in the district where the
deposition is being taken. An application for an order to a deponent
who is not a party shall be made to the court in the district where the
deposition is being taken.
(2) Motion. If a deponent fails to answer a question propounded or
submitted under Rules 30 or 31, or a corporation or other entity fails
to make a designation under Rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in
response to a request for inspection submitted under Rule 34, fails to
respond that inspection will be permitted as requested or fails to
permit inspection as requested, the discovering party may move for an
order compelling an answer, or a designation, or an order compelling
inspection in accordance with the request. When taking a deposition on
oral examination, the proponent of the question may complete or adjourn
the examination before applying for an order.
If the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion
made pursuant to Rule 26(c).
(3) Evasive or Incomplete Answer. For purposes of this subdivision
an evasive or incomplete answer is to be treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted, the court
shall, after opportunity for hearing, require the party or deponent
whose conduct necessitated the motion or the party or attorney advising
such conduct or both of them to pay to the moving party the reasonable
expenses incurred in obtaining the order, including attorney's fees,
unless the court finds that the opposition to the motion was
substantially justified or that other circumstances make an award of
expenses unjust.
If the motion is denied, the court shall, after opportunity for
hearing, require the moving party or the attorney advising the motion or
both of them to pay to the party or deponent who opposed the motion the
reasonable expenses incurred in opposing the motion, including
attorney's fees, unless the court finds that the making of the motion
was substantially justified or that other circumstances make an award of
expenses unjust.
If the motion is granted in part and denied in part, the court may
apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in a just manner.
(b) Failure To Comply With Order.
(1) Sanctions by Court in District Where Deposition Is Taken. If a
deponent fails to be sworn or to answer a question after being directed
to do so by the court in the district in which the deposition is being
taken, the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to
obey an order to provide or permit discovery, including an order made
under subdivision (a) of this rule or Rule 35, or if a party fails to
obey an order entered under Rule 26(f), the court in which the action is
pending may make such orders in regard to the failure as are just, and
among others the following:
(A) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting that party from
introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an
order treating as a contempt of court the failure to obey any orders
except an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under Rule 35(a)
requiring that party to produce another for examination, such orders as
are listed in paragraphs (A), (B), and (C) of this subdivision, unless
the party failing to comply shows that that party is unable to produce
such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the attorney
advising that party or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on Failure To Admit. If a party fails to admit the
genuineness of any document or the truth of any matter as requested
under Rule 36, and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter, the
requesting party may apply to the court for an order requiring the other
party to pay the reasonable expenses incurred in making that proof,
including reasonable attorney's fees. The court shall make the order
unless it finds that (1) the request was held objectionable pursuant to
Rule 36(a), or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit had reasonable ground to
believe that the party might prevail on the matter, or (4) there was
other good reason for the failure to admit.
(d) Failure of Party To Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1)
to appear before the officer who is to take the deposition, after being
served with a proper notice, or (2) to serve answers or objections to
interrogatories submitted under Rule 33, after proper service of the
interrogatories, or (3) to serve a written response to a request for
inspection submitted under Rule 34, after proper service of the request,
the court in which the action is pending on motion may make such orders
in regard to the failure as are just, and among others it may take any
action authorized under paragraphs (A), (B), and (C) of subdivision
(b)(2) of this rule. In lieu of any order or in addition thereto, the
court shall require the party failing to act or the attorney advising
that party or both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an award of
expenses unjust.
The failure to act described in this subdivision may not be excused
on the ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order as provided by
Rule 26(c).
((e) Subpoena of Person in Foreign Country.) (Abrogated Apr. 29,
1980, eff. Aug. 1, 1980)
((f) Expenses Against United States.) (Repealed Oct. 21, 1980, eff.
Oct. 1, 1981)
(g) Failure To Participate in the Framing of a Discovery Plan. If a
party or a party's attorney fails to participate in good faith in the
framing of a discovery plan by agreement as is required by Rule 26(f),
the court may, after opportunity for hearing, require such party or
attorney to pay to any other party the reasonable 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; Oct. 21, 1980, Pub. L.
96-481, title II, 205(a), 94 Stat. 2330; Mar. 2, 1987, eff. Aug. 1,
1987.)
The provisions of this rule authorizing orders establishing facts or
excluding evidence or striking pleadings, or authorizing judgments of
dismissal or default, for refusal to answer questions or permit
inspection or otherwise make discovery, are in accord with Hammond
Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, 15
Ann.Cas. 645 (1909), which distinguishes between the justifiable use of
such measures as a means of compelling the production of evidence, and
their unjustifiable use, as in Hovey v. Elliott, 167 U.S. 409, 17 S.Ct.
841, 42 L.Ed. 215 (1897), for the mere purpose of punishing for
contempt.
The amendment effective October 1949, substituted the reference to
''Title 28, U.S.C. 1783'' in subdivision (e) for the reference to ''the
act of July 3, 1926, ch. 762, 1, (44 Stat. 835), U.S.C. Title 28,
711''.
Rule 37 provides generally for sanctions against parties or persons
unjustifiably resisting discovery. Experience has brought to light a
number of defects in the language of the rule as well as instances in
which it is not serving the purposes for which it was designed. See
Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Col.L.Rev. 480
(1958). In addition, changes being made in other discovery rules
requiring conforming amendments to Rule 37.
Rule 37 sometimes refers to a ''failure'' to afford discovery and at
other times to a ''refusal'' to do so. Taking note of this dual
terminology, courts have imported into ''refusal'' a requirement of
''wilfullness.'' See Roth v. Paramount Pictures Corp., 8 F.R.D. 31
(W.D.Pa. 1948); Campbell v. Johnson, 101 F.Supp. 705, 707 (S.D.N.Y.
1951). In Societe Internationale v. Rogers, 357 U.S. 197 (1958), the
Supreme Court concluded that the rather random use of these two terms in
Rule 37 showed no design to use them with consistently distinctive
meanings, that ''refused'' in Rule 37(b)(2) meant simply a failure to
comply, and that wilfullness was relevant only to the selection of
sanctions, if any, to be imposed. Nevertheless, after the decision in
Societe, the court in Hinson v. Michigan Mutual Liability Co., 275 F.2d
537 (5th Cir. 1960) once again ruled that ''refusal'' required
wilfullness. Substitution of ''failure'' for ''refusal'' throughout
Rule 37 should eliminate this confusion and bring the rule into harmony
with the Societe Internationale decision. See Rosenberg, supra, 58
Col.L.Rev. 480, 489-490 (1958).
Subdivision (a). Rule 37(a) provides relief to a party seeking
discovery against one who, with or without stated objections, fails to
afford the discovery sought. It has always fully served this function
in relation to depositions, but the amendments being made to Rules 33
and 34 give Rule 37(a) added scope and importance. Under existing Rule
33, a party objecting to interrogatories must make a motion for court
hearing on his objections. The changes now made in Rules 33 and 37(a)
make it clear that the interrogating party must move to compel answers,
and the motion is provided for in Rule 37(a). Existing Rule 34, since
it requires a court order prior to production of documents or things or
permission to enter on land, has no relation to Rule 37(a). Amendments
of Rules 34 and 37(a) create a procedure similar to that provided for
Rule 33.
Subdivision (a)(1). This is a new provision making clear to which
court a party may apply for an order compelling discovery. Existing
Rule 37(a) refers only to the court in which the deposition is being
taken; nevertheless, it has been held that the court where the action
is pending has ''inherent power'' to compel a party deponent to answer.
Lincoln Laboratories, Inc. v. Savage Laboratories, Inc., 27 F.R.D. 476
(D.Del. 1961). In relation to Rule 33 interrogatories and Rule 34
requests for inspection, the court where the action is pending is the
appropriate enforcing tribunal. The new provision eliminates the need
to resort to inherent power by spelling out the respective roles of the
court where the action is pending and the court where the deposition is
taken. In some instances, two courts are available to a party seeking
to compel answers from a party deponent. The party seeking discovery
may choose the court to which he will apply, but the court has power to
remit the party to the other court as a more appropriate forum.
Subdivision (a)(2). This subdivision contains the substance of
existing provisions of Rule 37(a) authorizing motions to compel answers
to questions put at depositions and to interrogatories. New provisions
authorize motions for orders compelling designation under Rules 30(b)(6)
and 31(a) and compelling inspection in accordance with a request made
under Rule 34. If the court denies a motion, in whole or part, it may
accompany the denial with issuance of a protective order. Compare the
converse provision in Rule 26(c).
Subdivision (a)(3). This new provision makes clear that an evasive
or incomplete answer is to be considered, for purposes of subdivision
(a), a failure to answer. The courts have consistently held that they
have the power to compel adequate answers. E.g., Cone Mills Corp. v.
Joseph Bancroft & Sons Co., 33 F.R.D. 318 (D.Del. 1963). This power is
recognized and incorporated into the rule.
Subdivision (a)(4). This subdivision amends the provisions for award
of expenses, including reasonable attorney's fees, to the prevailing
party or person when a motion is made for an order compelling discovery.
At present, an award of expenses is made only if the losing party or
person is found to have acted without substantial justification. The
change requires that expenses be awarded unless the conduct of the
losing party or person is found to have been substantially justified.
The test of ''substantial justification'' remains, but the change in
language is intended to encourage judges to be more alert to abuses
occurring in the discovery process.
On many occasions, to be sure, the dispute over discovery between the
parties is genuine, though ultimately resolved one way or the other by
the court. In such cases, the losing party is substantially justified
in carrying the matter to court. But the rules should deter the abuse
implicit in carrying or forcing a discovery dispute to court when no
genuine dispute exists. And the potential or actual imposition of
expenses is virtually the sole formal sanction in the rules to deter a
party from pressing to a court hearing frivolous requests for or
objections to discovery.
The present provision of Rule 37(a) that the court shall require
payment if it finds that the defeated party acted without ''substantial
justification'' may appear adequate, but in fact it has been little
used. Only a handful of reported cases include an award of expenses,
and the Columbia Survey found that in only one instance out of about 50
motions decided under Rule 37(a) did the court award expenses. It
appears that the courts do not utilize the most important available
sanction to deter abusive resort to the judiciary.
The proposed change provides in effect that expenses should
ordinarily be awarded unless a court finds that the losing party acted
justifiably in carrying his point to court. At the same time, a
necessary flexibility is maintained, since the court retains the power
to find that other circumstances make an award of expenses unjust -- as
where the prevailing party also acted unjustifiably. The amendment does
not significantly narrow the discretion of the court, but rather presses
the court to address itself to abusive practices. The present provision
that expenses may be imposed upon either the party or his attorney or
both is unchanged. But it is not contemplated that expenses will be
imposed upon the attorney merely because the party is indigent.
Subdivision (b). This subdivision deals with sanctions for failure
to comply with a court order. The present captions for subsections (1)
and (2) entitled, ''Contempt'' and ''Other Consequences,'' respectively,
are confusing. One of the consequences listed in (2) is the arrest of
the party, representing the exercise of the contempt power. The
contents of the subsections show that the first authorizes the sanction
of contempt (and no other) by the court in which the deposition is
taken, whereas the second subsection authorizes a variety of sanctions,
including contempt, which may be imposed by the court in which the
action is pending. The captions of the subsections are changed to
deflect their contents.
The scope of Rule 37(b)(2) is broadened by extending it to include
any order ''to provide or permit discovery,'' including orders issued
under Rules 37(a) and 35. Various rules authorize orders for discovery
-- e.g., Rule 35 (b)(1), Rule 26(c) as revised. Rule 37(d). See
Rosenberg, supra, 58 Col.L.Rev. 480, 484-486. Rule 37(b)(2) should
provide comprehensively for enforcement of all these orders. Cf.
Societe Internationale v. Rogers, 357 U.S. 197, 207 (1958). On the
other hand, the reference to Rule 34 is deleted to conform to the
changed procedure in that rule.
A new subsection (E) provides that sanctions which have been
available against a party for failure to comply with an order under Rule
35(a) to submit to examination will now be available against him for his
failure to comply with a Rule 35(a) order to produce a third person for
examination, unless he shows that he is unable to produce the person.
In this context, ''unable'' means in effect ''unable in good faith.''
See Societe Internationale v. Rogers, 357 U.S. 197 (1958).
Subdivision (b)(2) is amplified to provide for payment of reasonable
expenses caused by the failure to obey the order. Although Rules
37(b)(2) and 37(d) have been silent as to award of expenses, courts have
nevertheless ordered them on occasion. E.g., United Sheeplined Clothing
Co. v. Arctic Fur Cap Corp., 165 F.Supp. 193 (S.D.N.Y.1958); Austin
Theatre, Inc. v. Warner Bros. Picture, Inc., 22 F.R.D. 302 (S.D.N.Y.
1958). The provision places the burden on the disobedient party to avoid
expenses by showing that his failure is justified or that special
circumstances make an award of expenses unjust. Allocating the burden
in this way conforms to the changed provisions as to expenses in Rule
37(a), and is particularly appropriate when a court order is disobeyed.
An added reference to directors of a party is similar to a change
made in subdivision (d) and is explained in the note to that
subdivision. The added reference to persons designated by a party under
Rules 30(b)(6) or 31(a) to testify on behalf of the party carries out
the new procedure in those rules for taking a deposition of a
corporation or other organization.
Subdivision (c). Rule 37(c) provides a sanction for the enforcement
of Rule 36 dealing with requests for admission. Rule 36 provides the
mechanism whereby a party may obtain from another party in appropriate
instances either (1) and admission, or (2) a sworn and specific denial,
or (3) a sworn statement ''setting forth in detail the reasons why he
cannot truthfully admit or deny.'' If the party obtains the second or
third of these responses, in proper form, Rule 36 does not provide for a
pretrial hearing on whether the response is warranted by the evidence
thus far accumulated. Instead, Rule 37(c) is intended to provide
posttrial relief in the form of a requirement that the party improperly
refusing the admission pay the expenses of the other side in making the
necessary proof at trial.
Rule 37(c), as now written, addresses itself in terms only to the
sworn denial and is silent with respect to the statement of reasons for
an inability to admit or deny. There is no apparent basis for this
distinction, since the sanction provided in Rule 37(c) should deter all
unjustified failures to admit. This omission in the rule has caused
confused and diverse treatment in the courts. One court has held that
if a party gives inadequate reasons, he should be treated before trial
as having denied the request, so that Rule 37(c) may apply. Bertha
Bldg. Corp. v. National Theatres Corp., 15 F.R.D. 339 (E.D.N.Y. 1954).
Another has held that the party should be treated as having admitted the
request. Heng Hsin Co. v. Stern, Morgenthau & Co., 20 Fed.Rules Serv.
36a.52, Case 1 (S.D.N.Y. Dec. 10, 1954). Still another has ordered a
new response, without indicating what the outcome should be if the new
response were inadequate. United States Plywood Corp. v. Hudson Lumber
Co., 127 F.Supp. 489, 497-498 (S.D.N.Y. 1954). See generally Finman, The
Request for Admissions in Federal Civil Procedure, 71 Yale L.J. 371,
426-430 (1962). The amendment eliminates this defect in Rule 37(c) by
bringing within its scope all failures to admit.
Additional provisions in Rule 37(c) protect a party from having to
pay expenses if the request for admission was held objectionable under
Rule 36(a) or if the party failing to admit had reasonable ground to
believe that he might prevail on the matter. The latter provision
emphasizes that the true test under Rule 37(c) is not whether a party
prevailed at trial but whether he acted reasonably in believing that he
might prevail.
Subdivision (d). The scope of subdivision (d) is broadened to
include responses to requests for inspection under Rule 34, thereby
conforming to the new procedures of Rule 34.
Two related changes are made in subdivision (d): the permissible
sanctions are broadened to include such orders ''as are just''; and the
requirement that the failure to appear or respond be ''wilful'' is
eliminated. Although Rule 37(d) in terms provides for only three
sanctions, all rather severe, the courts have interpreted it as
permitting softer sanctions than those which it sets forth. E.g., Gill
v. Stolow, 240 F.2d 669 (2d Cir. 1957); Saltzman v. Birrell, 156
F.Supp. 538 (S.D.N.Y. 1957); 2A Barron & Holtzoff, Federal Practice and
Procedure 554-557 (Wright ed. 1961). The rule is changed to provide the
greater flexibility as to sanctions which the cases show is needed.
The resulting flexibility as to sanctions eliminates any need to
retain the requirement that the failure to appear or respond be
''wilful.'' The concept of ''wilful failure'' is at best subtle and
difficult, and the cases do not supply a bright line. Many courts have
imposed sanctions without referring to wilfullness. E.g., Milewski v.
Schneider Transportation Co., 238 F.2d 397 (6th Cir. 1956); Dictograph
Products, Inc. v. Kentworth Corp., 7 F.R.D. 543 (W.D.Ky. 1947). In
addition, in view of the possibility of light sanctions, even a
negligent failure should come within Rule 37(d). If default is caused
by counsel's ignorance of Federal practice, cf. Dunn. v. Pa. R.R., 96
F. Supp. 597 (N.D.Ohio 1951), or by his preoccupation with another
aspect of the case, cf. Maurer-Neuer, Inc. v. United Packinghouse
Workers, 26 F.R.D. 139 (D.Kans. 1960), dismissal of the action and
default judgment are not justified, but the imposition of expenses and
fees may well be. ''Wilfullness'' continues to play a role, along with
various other factors, in the choice of sanctions. Thus, the scheme
conforms to Rule 37(b) as construed by the Supreme Court in Societe
Internationale v. Rogers, 357 U.S. 197, 208 (1958).
A provision is added to make clear that a party may not properly
remain completely silent even when he regards a notice to take his
deposition or a set of interrogatories or requests to inspect as
improper and objectionable. If he desires not to appear or not to
respond, he must apply for a protective order. The cases are divided on
whether a protective order must be sought. Compare Collins v. Wayland,
139 F.2d 677 (9th Cir. 1944), cert. den. 322 U.S. 744; Bourgeois v.
El Paso Natural Gas Co., 20 F.R.D. 358 (S.D.N.Y. 1957); Loosley v.
Stone, 15 F.R.D. 373 (S.D.Ill. 1954), with Scarlatos v. Kulukundis, 21
F.R.D. 185 (S.D.N.Y. 1957); Ross v. True Temper Corp., 11 F.R.D 307
(N.D.Ohio 1951). Compare also Rosenberg, supra, 58 Col.L.Rev. 480, 496
(1958) with 2A Barron & Holtzoff, Federal Practice and Procedure 530-531
(Wright ed. 1961). The party from whom discovery is sought is afforded,
through Rule 26(c), a fair and effective procedure whereby he can
challenge the request made. At the same time, the total non-compliance
with which Rule 37(d) is concerned may impose severe inconvenience or
hardship on the discovering party and substantially delay the discovery
process. Cf. 2B Barron & Holtzoff, Federal Practice and Procedure
306-307 (Wright ed. 1961) (response to a subpoena).
The failure of an officer or managing agent of a party to make
discovery as required by present Rule 37(d) is treated as the failure of
the party. The rule as revised provides similar treatment for a
director of a party. There is slight warrant for the present
distinction between officers and managing agents on the one hand and
directors on the other. Although the legal power over a director to
compel his making discovery may not be as great as over officers or
managing agents, Campbell v. General Motors Corp., 13 F.R.D. 331
(S.D.N.Y. 1952), the practical differences are negligible. That a
director's interests are normally aligned with those of his corporation
is shown by the provisions of old Rule 26(d)(2), transferred to 32(a)(2)
(deposition of director of party may be used at trial by an adverse
party for any purpose) and of Rule 43(b) (director of party may be
treated at trial as a hostile witness on direct examination by any
adverse party). Moreover, in those rare instances when a corporation is
unable through good faith efforts to compel a director to make
discovery, it is unlikely that the court will impose sanctions. Cf.
Societe Internationale v. Rogers, 357 U.S. 197 (1958).
Subdivision (e). The change in the caption conforms to the language
of 28 U.S.C. 1783, as amended in 1964.
Subdivision (f). Until recently, costs of a civil action could be
awarded against the United States only when expressly provided by Act of
Congress, and such provision was rarely made. See H.R.Rept.No. 1535,
89th Cong., 2d Sess., 2-3 (1966). To avoid any conflict with this
doctrine, Rule 37(f) has provided that expenses and attorney's fees may
not be imposed upon the United States under Rule 37. See 2A Barron &
Holtzoff, Federal Practice and Procedure 857 (Wright ed. 1961).
A major change in the law was made in 1966, 80 Stat. 308, 28 U.S.C.
2412 (1966), whereby a judgment for costs may ordinarily be awarded to
the prevailing party in any civil action brought by or against the
United States. Costs are not to include the fees and expenses of
attorneys. In light of this legislative development, Rule 37(f) is
amended to permit the award of expenses and fees against the United
States under Rule 37, but only to the extent permitted by statute. The
amendment brings Rule 37(f) into line with present and future statutory
provisions.
Subdivision (b)(2). New Rule 26(f) provides that if a discovery
conference is held, at its close the court shall enter an order
respecting the subsequent conduct of discovery. The amendment provides
that the sanctions available for violation of other court orders
respecting discovery are available for violation of the discovery
conference order.
Subdivision (e). Subdivision (e) is stricken. Title 28, U.S.C.
1783 no longer refers to sanctions. The subdivision otherwise
duplicates Rule 45(e)(2).
Subdivision (g). New Rule 26(f) imposes a duty on parties to
participate in good faith in the framing of a discovery plan by
agreement upon the request of any party. This subdivision authorizes
the court to award to parties who participate in good faith in an
attempt to frame a discovery plan the expenses incurred in the attempt
if any party or his attorney fails to participate in good faith and
thereby causes additional expense.
Failure of United States to Participate in Good Faith in Discovery.
Rule 37 authorizes the court to direct that parties or attorneys who
fail to participate in good faith in the discovery process pay the
expenses, including attorney's fees, incurred by other parties as a
result of that failure. Since attorneys' fees cannot ordinarily be
awarded against the United States (28 U.S.C. 2412), there is often no
practical remedy for the misconduct of its officers and attorneys.
However, in the case of a government attorney who fails to participate
in good faith in discovery, nothing prevents a court in an appropriate
case from giving written notification of that fact to the Attorney
General of the United States and other appropriate heads of offices or
agencies thereof.
The amendments are technical. No substantive change is intended.
Subd. (f). Pub. L. 96-481 repealed subd. (f), which provided that
except to the extent permitted by statute, expenses and fees may not be
awarded against the United States under this rule.
Amendment by Pub. L. 96-481 effective Oct. 1, 1981, and applicable
to adversary adjudication defined in section 504(b)(1)(C) of Title 5,
and to civil actions and adversary adjudications described in section
2412 of Title 28, Judiciary and Judicial Procedure, which are pending
on, or commenced on or after Oct. 1, 1981, see section 208 of Pub. L.
96-481, set out as an Effective Date note under section 504 of Title 5,
Government Organization and Employees.
Failure to attend taking of a deposition or to serve subpoena,
payment of expenses, see rule 30.
28 USC VI. TRIALS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 38. Jury Trial of Right
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Right Preserved. The right of trial by jury as declared by the
Seventh Amendment to the Constitution or as given by a statute of the
United States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue
triable of right by a jury by serving upon the other parties a demand
therefor in writing at any time after the commencement of the action and
not later than 10 days after the service of the last pleading directed
to such issue. Such demand may be indorsed upon a pleading of the
party.
(c) Same: Specification of Issues. In the demand a party may
specify the issues which the party wishes so tried; otherwise the party
shall be deemed to have demanded trial by jury for all the issues so
triable. If the party has demanded trial by jury for only some of the
issues, any other party within 10 days after service of the demand or
such lesser time as the court may order, may serve a demand for trial by
jury of any other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve a demand as required by
this rule and to file it as required by Rule 5(d) constitutes a waiver
by the party of trial by jury. A demand for trial by jury made as
herein provided may not be withdrawn without the consent of the parties.
(e) Admiralty and Maritime Claims. These rules shall not be
construed to create a right to trial by jury of the issues in an
admiralty or maritime claim within the meaning of Rule 9(h).
(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
Aug. 1, 1987.)
This rule provides for the preservation of the constitutional right
of trial by jury as directed in the enabling act (act of June 19, 1934,
48 Stat. 1064, U.S.C., Title 28, 723c (see 2072)), and it and the next
rule make definite provision for claim and waiver of jury trial,
following the method used in many American states and in England and the
British Dominions. Thus the claim must be made at once on initial
pleading or appearance under Ill.Rev.Stat. (1937) ch. 110, 188; 6
Tenn.Code Ann. (Williams, 1934) 8734; compare Wyo.Rev.Stat.Ann. (1931)
89-1320 (with answer or reply); within 10 days after the pleadings are
completed or the case is at issue under 2 Conn.Gen.Stat. (1930) 5624;
Hawaii Rev.Laws (1935) 4101; 2 Mass.Gen.Laws (Ter.Ed. 1932) ch. 231,
60; 3 Mich.Comp.Laws (1929) 14263; Mich.Court Rules Ann. (Searl,
1933) Rule 33 (15 days); England (until 1933) O. 36, r.r. 2 and 6;
and Ontario Jud.Act (1927) 57(1) (4 days, or, where prior notice of
trial, 2 days from such notice); or at a definite time varying under
different codes, from 10 days before notice of trial to 10 days after
notice, or, as in many, when the case is called for assignment,
Ariz.Rev.Code Ann. (Struckmeyer, 1928) 3802; Calif.Code Civ.Proc.
(Deering, 1937) 631, par. 4; Iowa Code (1935) 10724; 4
Nev.Comp.Laws (Hillyer, 1929) 8782; N.M.Stat.Ann. (Courtright, 1929)
105-814; N.Y.C.P.A. (1937) 426, subdivision 5 (applying to New York,
Bronx, Richmond, Kings, and Queens Counties); R.I.Pub.Laws (1929), ch.
1327, amending R.I.Gen.Laws (1923) ch. 337, 6; Utah Rev.Stat.Ann.
(1933) 104-23-6; 2 Wash.Rev.Stat.Ann. (Remington, 1932) 316; England
(4 days after notice of trial), Administration of Justice Act (1933) 6
and amended rule under the Judicature Act (The Annual Practice, 1937),
O. 36, r. 1; Australia High Court Procedure Act (1921) 12, Rules, O.
33, r. 2; Alberta Rules of Ct. (1914) 172, 183, 184; British
Columbia Sup.Ct.Rules (1925) O. 36, r.r. 2, 6, 11, and 16; New
Brunswick Jud. Act (1927) O. 36, r.r. 2 and 5. See James, Trial by
Jury and the New Federal Rules of Procedure (1936), 45 Yale L.J. 1022.
Rule 81(c) provides for claim for jury trial in removed actions.
The right to trial by jury as declared in U.S.C., Title 28, 770 (now
1873) (Trial of issues of fact; by jury; exceptions), and similar
statutes, is unaffected by this rule. This rule modifies U.S.C., Title
28, (former) 773 (Trial of issues of fact; by court).
See Note to Rule 9(h), supra.
The amendments are technical. No substantive change is intended.
Admiralty and maritime case, trial of issues of fact by jury, see
section 1873 of this title.
Advisory jury, see rule 39.
Calendar to designate cases as ''jury actions'', see rule 79.
Declaratory judgment actions, right to jury trial, see rule 57.
Default judgment, right of trial by jury, see rule 55.
Directed verdict, motion for which is not granted not a waiver of
trial by jury, see rule 50.
Juries generally, see chapter 121 of this title.
Recovery of forfeitures in actions on bonds and specialties, jury
assessment of amount due, see section 1874 of this title.
Removed actions, time for service of jury demand, see rule 81.
Supreme Court, jury trial in original actions at law, see section
1872 of this title.
Trial by jury or by the court, see rule 39.
Trustees and receivers, right to jury trial in actions against, see
section 959 of this title.
United States, jury trial denied in actions against, see section 2402
of this title.
28 USC Rule 39. Trial by Jury or by the Court
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) By Jury. When trial by jury has been demanded as provided in
Rule 38, the action shall be designated upon the docket as a jury
action. The trial of all issues so demanded shall be by jury, unless
(1) the parties or their attorneys of record, by written stipulation
filed with the court or by an oral stipulation made in open court and
entered in the record, consent to trial by the court sitting without a
jury or (2) the court upon motion or of its own initiative finds that a
right of trial by jury of some or all of those issues does not exist
under the Constitution or statutes of the United States.
(b) By the Court. Issues not demanded for trial by jury as provided
in Rule 38 shall be tried by the court; but, notwithstanding the
failure of a party to demand a jury in an action in which such a demand
might have been made of right, the court in its discretion upon motion
may order a trial by a jury of any or all issues.
(c) Advisory Jury and Trial by Consent. In all actions not triable
of right by a jury the court upon motion or of its own initiative may
try any issue with an advisory jury or, except in actions against the
United States when a statute of the United States provides for trial
without a jury, the court, with the consent of both parties, may order a
trial with a jury whose verdict has the same effect as if trial by jury
had been a matter of right.
The provisions for express waiver of jury trial found in U.S.C.,
Title 28, (former) 773 (Trial of issues of fact; by court) are
incorporated in this rule. See rule 38, however, which extends the
provisions for waiver of jury. U.S.C., Title 28, (former) 772 (Trial
of issues of fact; in equity in patent causes) is unaffected by this
rule. When certain of the issues are to be tried by jury and others by
the court, the court may determine the sequence in which such issues
shall be tried. See Liberty Oil Co. v. Condon Nat. Bank, 260 U.S.
235, 43 S.Ct. 118, 67 L.Ed. 232 (1922).
A discretionary power in the courts to send issues of fact to the
jury is common in state procedure. Compare Calif.Code Civ.Proc.
(Deering, 1937) 592; 1 Colo.Stat.Ann. (1935) Code Civ.Proc., ch. 12,
191; Conn.Gen.Stat. (1930) 5625; 2 Minn.Stat. (Mason, 1927) 9288; 4
Mont.Rev.Codes Ann. (1935) 9327; N.Y.C.P.A. (1937) 430; 2 Ohio
Gen.Code Ann. (Page, 1926) 11380; 1 Okla.Stat.Ann. (Harlow, 1931)
351; Utah Rev.Stat.Ann. (1933) 104-23-5; 2 Wash.Rev.Stat.Ann.
(Remington, 1932) 315; Wis.Stat. (1935) 270.07. See (former) Equity
Rule 23 (Matters Ordinarily Determinable at Law When Arising in Suit in
Equity to be Disposed of Therein) and U.S.C., Title 28, (former) 772
(Trial of issues of fact; in equity in patent causes); Colleton Merc.
Mfg. Co. v. Savannah River Lumber Co., 280 Fed. 358 (C.C.A.4th, 1922);
Fed. Res. Bk. of San Francisco v. Idaho Grimm Alfalfa Seed Growers'
Ass'n, 8 F.2d 922 (C.C.A.9th, 1925), cert. den. 270 U.S. 646, 46 S.Ct.
347, 70 L.Ed. 778 (1926); Watt v. Starke, 101 U.S. 247, 25 L.Ed. 826
(1879).
Demand for jury trial, see rule 38.
Enlargement of time after expiration of period prescribed, see rule
6.
Findings of fact required in actions tried with an advisory jury, see
rule 52.
Report of masters in jury actions, see rule 53.
28 USC Rule 40. Assignment of Cases for Trial
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The district courts shall provide by rule for the placing of actions
upon the trial calendar (1) without request of the parties or (2) upon
request of a party and notice to the other parties or (3) in such other
manner as the courts deem expedient. Precedence shall be given to
actions entitled thereto by any statute of the United States.
U.S.C., Title 28, (former) 769 (Notice of case for trial) is
modified. See (former) Equity Rule 56 (On Expiration of Time for
Depositions, Case Goes on Trial Calendar). See also (former) Equity
Rule 57 (Continuances).
For examples of statutes giving precedence, see U.S.C., Title 28, 47
(now 1253, 2101, 2325) (Injunctions as to orders of Interstate Commerce
Commission); 380 (now 1253, 2101, 2284) (Injunctions alleged
unconstitutionality of state statutes); 380a (now 1253, 2101, 2284)
(Same; Constitutionality of federal statute); (former) 768 (Priority
of cases where a state is party); Title 15, 28 (Antitrust laws; suits
against monopolies expedited); Title 22, 240 (Petition for restoration
of property seized as munitions of war, etc.); and Title 49, (former)
44 (Proceedings in equity under interstate commerce laws; expedition of
suits).
Adoption of local rules not inconsistent with these rules, see rule
83.
28 USC Rule 41. Dismissal of Actions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule
23(e), of Rule 66, and of any statute of the United States, an action
may be dismissed by the plaintiff without order of court (i) by filing a
notice of dismissal at any time before service by the adverse party of
an answer or of a motion for summary judgment, whichever first occurs,
or (ii) by filing a stipulation of dismissal signed by all parties who
have appeared in the action. Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without prejudice, except
that a notice of dismissal operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in any court of the
United States or of any state an action based on or including the same
claim.
(2) By Order of Court. Except as provided in paragraph (1) of this
subdivision of this rule, an action shall not be dismissed at the
plaintiff's instance save upon order of the court and upon such terms
and conditions as the court deems proper. If a counterclaim has been
pleaded by a defendant prior to the service upon the defendant of the
plaintiff's motion to dismiss, the action shall not be dismissed against
the defendant's objection unless the counterclaim can remain pending for
independent adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.
(b) Involuntary Dismissal: Effect Thereof. For failure of the
plaintiff to prosecute or to comply with these rules or any order of
court, a defendant may move for dismissal of an action or of any claim
against the defendant. Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a dismissal for lack
of jurisdiction, for improper venue, or for failure to join a party
under Rule 19, operates as an adjudication upon the merits.
(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.
The provisions of this rule apply to the dismissal of any counterclaim,
cross-claim, or third-party claim. A voluntary dismissal by the
claimant alone pursuant to paragraph (1) of subdivision (a) of this rule
shall be made before a responsive pleading is served or, if there is
none, before the introduction of evidence at the trial or hearing.
(d) Costs of Previously-Dismissed Action. If a plaintiff who has
once dismissed an action in any court commences an action based upon or
including the same claim against the same defendant, the court may make
such order for the payment of costs of the action previously dismissed
as it may deem proper and may stay the proceedings in the action until
the plaintiff has complied with the order.
(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.)
Note to Subdivision (a). Compare Ill.Rev.Stat. (1937) ch. 110,
176, and English Rules Under the Judicature Act (The Annual Practice,
1937) O. 26.
Provisions regarding dismissal in such statutes as U.S.C., Title 8,
164 (see 1329) (Jurisdiction of district courts in immigration cases)
and U.S.C., Title 31, 232 (now 3730) (Liability of persons making false
claims against United States; suits) are preserved by paragraph (1).
Note to Subdivision (b). This provides for the equivalent of a
nonsuit on motion by the defendant after the completion of the
presentation of evidence by the plaintiff. Also, for actions tried
without a jury, it provides the equivalent of the directed verdict
practice for jury actions which is regulated by Rule 50.
Note. Subdivision (a). The insertion of the reference to Rule 66
correlates Rule 41(a)(1) with the express provisions concerning
dismissal set forth in amended Rule 66 on receivers.
The change in Rule 41(a)(1)(i) gives the service of a motion for
summary judgment by the adverse party the same effect in preventing
unlimited dismissal as was originally given only to the service of an
answer. The omission of reference to a motion for summary judgment in
the original rule was subject to criticism. 3 Moore's Federal Practice,
1938, 3037-3038, n. 12. A motion for summary judgment may be
forthcoming prior to answer, and if well taken will eliminate the
necessity for an answer. Since such a motion may require even more
research and preparation than the answer itself, there is good reason
why the service of the motion, like that of the answer, should prevent a
voluntary dismissal by the adversary without court approval.
The word ''generally'' has been stricken from Rule 41(a)(1)(ii) in
order to avoid confusion and to conform with the elimination of the
necessity for special appearance by original Rule 12(b).
Subdivision (b). In some cases tried without a jury, where at the
close of plaintiff's evidence the defendant moves for dismissal under
Rule 41(b) on the ground that plaintiff's evidence is insufficient for
recovery, the plaintiff's own evidence may be conflicting or present
questions of credibility. In ruling on the defendant's motion,
questions arise as to the function of the judge in evaluating the
testimony and whether findings should be made if the motion is
sustained. Three circuits hold that as the judge is the trier of the
facts in such a situation his function is not the same as on a motion to
direct a verdict, where the jury is the trier of the facts, and that the
judge in deciding such a motion in a non-jury case may pass on conflicts
of evidence and credibility, and if he performs that function of
evaluating the testimony and grants the motion on the merits, findings
are required. Young v. United States, C.C.A.9th, 1940, 111 F.2d 823;
Gary Theatre Co. v. Columbia Pictures Corporation, C.C.A.7th, 1941, 120
F.2d 891; Bach v. Friden Calculating Machine Co., Inc., C.C.A.6th,
1945, 148 F.2d 407. Cf. Mateas v. Fred Harvey, a Corporation,
C.C.A.9th, 1945, 146 F.2d 989. The Third Circuit has held that on such
a motion the function of the court is the same as on a motion to direct
in a jury case, and that the court should only decide whether there is
evidence which would support a judgment for the plaintiff, and,
therefore, findings are not required by Rule 52. Federal Deposit
Insurance Corp. v. Mason, C.C.A.3d, 1940, 115 F.2d 548; Schad v.
Twentieth Century-Fox Film Corp., C.C.A.3d, 1943, 136 F.2d 991. The
added sentence in Rule 41(b) incorporates the view of the Sixth, Seventh
and Ninth Circuits. See also 3 Moore's Federal Practice, 1938, Cum.
Supplement 41.03, under ''Page 3045''; Commentary, The Motion to
Dismiss in Non-Jury Cases, 1946, 9 Fed.Rules Serv., Comm.Pg. 41b.14.
Under the present text of the second sentence of this subdivision,
the motion for dismissal at the close of the plaintiff's evidence may be
made in a case tried to a jury as well as in a case tried without a
jury. But, when made in a jury-tried case, this motion overlaps the
motion for a directed verdict under Rule 50(a), which is also available
in the same situation. It has been held that the standard to be applied
in deciding the Rule 41(b) motion at the close of the plaintiff's
evidence in a jury-tried case is the same as that used upon a motion for
a directed verdict made at the same stage; and, just as the court need
not make findings pursuant to Rule 52(a) when it directs a verdict, so
in a jury-tried case it may omit these findings in granting the Rule
41(b) motion. See generally O'Brien v. Westinghouse Electric Corp.,
293 F.2d 1, 5-10 (3d Cir. 1961).
As indicated by the discussion in the O'Brien case, the overlap has
caused confusion. Accordingly, the second and third sentences of Rule
41(b) are amended to provide that the motion for dismissal at the close
of the plaintiff's evidence shall apply only to nonjury cases (including
cases tried with an advisory jury). Hereafter the correct motion in
jury-tried cases will be the motion for a directed verdict. This
involves no change of substance. It should be noted that the court upon
a motion for a directed verdict may in appropriate circumstances deny
that motion and grant instead a new trial, or a voluntary dismissal
without prejudice under Rule 41(a)(2). See 6 Moore's Federal Practice
59.08(5) (2d ed. 1954); cf. Cone v. West Virginia Pulp & Paper Co.,
330 U.S. 212, 217, 67 S.Ct. 752, 91 L.Ed. 849 (1947).
The first sentence of Rule 41(b), providing for dismissal for failure
to prosecute or to comply with the Rules or any order of court, and the
general provisions of the last sentence remain applicable in jury as
well as nonjury cases.
The amendment of the last sentence of Rule 41(b) indicates that a
dismissal for lack of an indispensable party does not operate as an
adjudication on the merits. Such a dismissal does not bar a new action,
for it is based merely ''on a plaintiff's failure to comply with a
precondition requisite to the Court's going forward to determine the
merits of his substantive claim.'' See Costello v. United States, 365
U.S. 265, 284-288, 81 S.Ct. 534, 5 L.Ed.2d 551 & n. 5 (1961); Mallow
v. Hinde, 12 Wheat. (25 U.S.) 193, 6 L.Ed. 599 (1827); Clark, Code
Pleading 602 (2d ed. 1947); Restatement of Judgments 49, comm. a, b
(1942). This amendment corrects an omission from the rule and is
consistent with an earlier amendment, effective in 1948, adding ''the
defense of failure to join an indispensable party'' to clause (1) of
Rule 12(h).
The terminology is changed to accord with the amendment of Rule 19.
See that amended rule and the Advisory Committee's Note thereto.
The amendment corrects an inadvertent error in the reference to
amended Rule 23.
The amendment is technical. No substantive change is intended.
Language is deleted that authorized the use of this rule as a means
of terminating a non-jury action on the merits when the plaintiff has
failed to carry a burden of proof in presenting the plaintiff's case.
The device is replaced by the new provisions of Rule 52(c), which
authorize entry of judgment against the defendant as well as the
plaintiff, and earlier than the close of the case of the party against
whom judgment is rendered. A motion to dismiss under Rule 41 on the
ground that a plaintiff's evidence is legally insufficient should now be
treated as a motion for judgment on partial findings as provided in Rule
52(c).
Approval of court for dismissal of class action, see rule 23.
Costs, see rule 54.
Counterclaim, cross-claim or third party claim, see rules 13 and 14.
Discontinuance of civil actions arising under immigration laws, see
section 1329 of Title 8, Aliens and Nationality.
Findings of fact in non-jury action, see rule 52.
Motion for directed verdict at close of evidence offered by an
opponent, see rule 50.
Motion to dismiss --
For failure to state a claim upon which relief can be granted, see
rule 12.
For lack of jurisdiction or improper venue, see rule 12.
Order of court for dismissal of action wherein receiver has been
appointed, see rule 66.
Taxation of costs, see section 1920 of this title.
Withdrawal or discontinuance of false claim actions against United
States, see section 3730 of Title 31, Money and Finance.
28 USC Rule 42. Consolidation; Separate Trials
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Consolidation. When actions involving a common question of law
or fact are pending before the court, it may order a joint hearing or
trial of any or all the matters in issue in the actions; it may order
all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition
and economy, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party claims, or
issues, always preserving inviolate the right of trial by jury as
declared by the Seventh Amendment to the Constitution or as given by a
statute of the United States.
(As amended Feb. 28, 1966, eff. July 1, 1966.)
Subdivision (a) is based upon U.S.C., Title 28, (former) 734 (Orders
to save costs; consolidation of causes of like nature) but insofar as
the statute differs from this rule, it is modified.
For comparable statutes dealing with consolidation see Ark.Dig.Stat.
(Crawford & Moses, 1921) 1081; Calif.Code Civ.Proc. (Deering, 1937)
1048; N.M.Stat.Ann. (Courtright, 1929) 105-828; N.Y.C.P.A. (1937)
96, 96a, and 97; American Judicature Society, Bulletin XIV (1919)
Art.26.
For severance or separate trials see Calif.Code Civ.Proc. (Deering,
1937) 1048; N.Y.C.P.A. (1937) 96; American Judicature Society,
Bulletin XIV (1919) Art. 3, 2 and Art. 10, 10. See also the third
sentence of Equity Rule 29 (Defenses -- How Presented) providing for
discretionary separate hearing and disposition before trial of pleas in
bar or abatement, and see also Rule 12(d) of these rules for preliminary
hearings of defenses and objections.
For the entry of separate judgments, see Rule 54(b) (Judgment at
Various Stages).
In certain suits in admiralty separation for trial of the issues of
liability and damages (or of the extent of liability other than damages,
such as salvage and general average) has been conducive to expedition
and economy, especially because of the statutory right to interlocutory
appeal in admiralty cases (which is of course preserved by these Rules).
While separation of issues for trial is not to be routinely ordered, it
is important that it be encouraged where experience has demonstrated its
worth. Cf. Weinstein, Routine Bifurcation of Negligence Trials, 14
Vand.L.Rev. 831 (1961).
In cases (including some cases within the admiralty and maritime
jurisdiction) in which the parties have a constitutional or statutory
right of trial by jury, separation of issues may give rise to problems.
See e.g., United Air Lines, Inc. v. Wiener, 286 F.2d 302 (9th Cir.
1961). Accordingly, the proposed change in Rule 42 reiterates the
mandate of Rule 38 respecting preservation of the right to jury trial.
Preliminary hearings of defenses and objections, see rule 12.
Separate --
Judgments, see rule 54.
Trial for parties, see rule 20.
Trials of counterclaims or cross-claims, see rule 13.
Third party claims, see rule 14.
28 USC Rule 43. Taking of Testimony
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Form. In all trials the testimony of witnesses shall be taken
orally in open court, unless otherwise provided by an Act of Congress or
by these rules, the Federal Rules of Evidence, or other rules adopted by
the Supreme Court.
((b) Scope of Examination and Cross-Examination.) (Abrogated Nov.
20, 1972, and Dec. 18, 1972, eff. July 1, 1975)
((c) Record of Excluded Evidence.) (Abrogated Nov. 20, 1972, and Dec.
18, 1972, eff. July 1, 1975)
(d) Affirmation in Lieu of Oath. Whenever under these rules an oath
is required to be taken, a solemn affirmation may be accepted in lieu
thereof.
(e) Evidence on Motions. When a motion is based on facts not
appearing of record the court may hear the matter on affidavits
presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or depositions.
(f) Interpreters. The court may appoint an interpreter of its own
selection and may fix the interpreter's reasonable compensation. The
compensation shall be paid out of funds provided by law or by one or
more of the parties as the court may direct, and may be taxed ultimately
as costs, in the discretion of the court.
(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.)
Note to Subdivision (a). The first sentence is a restatement of the
substance of U.S.C., Title 28, (former) 635 (Proof in common-law
actions), 637 (see 2072, 2073) (Proof in equity and admiralty), and
(former) Equity Rule 46 (Trial -- Testimony Usually Taken in Open Court
-- Rulings on Objections to Evidence). This rule abolishes in patent
and trade-mark actions, the practice under (former) Equity Rule 48 of
setting forth in affidavits the testimony in chief of expert witnesses
whose testimony is directed to matters of opinion. The second and third
sentences on admissibility of evidence and Subdivision (b) on
contradiction and cross-examination modify U.S.C., Title 28, 725 (now
1652) (Laws of states as rules of decision) insofar as that statute has
been construed to prescribe conformity to state rules of evidence.
Compare Callihan and Ferguson, Evidence and the New Federal Rules of
Civil Procedure, 45 Yale L.J. 622 (1936), and Same: 2, 47 Yale L.J. 195
(1937). The last sentence modifies to the extent indicated U.S.C.,
Title 28, (former) 631 (Competency of witnesses governed by State
laws).
Note to Subdivision (b). See 4 Wigmore on Evidence (2d ed., 1923)
1885 et seq.
Note to Subdivision (c). See (former) Equity Rule 46 (Trial --
Testimony Usually Taken in Open Court -- Rulings on Objections to
Evidence). With the last sentence compare Dowagiac v. Lochren, 143
Fed. 211 (C.C.A.8th, 1906). See also Blease v. Garlington, 92 U.S. 1,
23 L.Ed. 521 (1876); Nelson v. United States, 201 U.S. 92. 114, 26
S.Ct. 358, 50 L.Ed. 673 (1906); Unkle v. Wills, 281 Fed. 29
(C.C.A.8th 1922).
See Rule 61 for harmless error in either the admission or exclusion
of evidence.
Note to Subdivision (d). See (former) Equity Rule 78 (Affirmation in
Lieu of Oath) and U.S.C., Title 1, 1 (Words importing singular number,
masculine gender, etc.; extended application), providing for affirmation
in lieu of oath.
Note. These rules have been criticized and suggested improvements
offered by commentators. 1 Wigmore on Evidence, 3d ed. 1940, 200-204;
Green, The Admissibility of Evidence Under the Federal Rules, 1941, 55
Harv.L.Rev. 197. Cases indicate, however, that the rule is working
better than these commentators had expected. Boerner v. United States,
C.C.A.2d, 1941, 117 F.2d 387, cert. den., 1941, 313 U.S. 587, 61 S.Ct.
1120; Mosson v. Liberty Fast Freight Co., C.C.A.2d, 1942, 124 F.2d
448; Hartford Accident & Indemnity Co. v. Olivier, C.C.A.5th, 1941,
123 F.2d 709; Anzano v. Metropolitan Life Ins. Co. of New York,
C.C.A.3d, 1941, 118 F.2d 430; Franzen v. E. I. DuPont De Nemours &
Co., C.C.A.3d, 1944, 146 F.2d 837; Fakouri v. Cadais, C.C.A.5th, 1945,
147 F.2d 667; In re C. & P. Co., S.D.Cal. 1945, 63 F.Supp. 400, 408.
But cf. United States v. Aluminum Co. of America, S.D.N.Y. 1938, 1
Fed.Rules Serv. 43a.3, Case 1; Note, 1946, 46 Col.L.Rev. 267. While
consideration of a comprehensive and detailed set of rules of evidence
seems very desirable, it has not been feasible for the Committee so far
to undertake this important task. Such consideration should include the
adaptability to federal practice of all or parts of the proposed Code of
Evidence of the American Law Institute. See Armstrong, Proposed
Amendments to Federal Rules of Civil Procedure, 4 F.R.D. 124, 137-138.
This new subdivision authorizes the court to appoint interpreters
(including interpreters for the deaf), to provide for their
compensation, and to tax the compensation as costs. Compare proposed
subdivision (b) of Rule 28 of the Federal Rules of Criminal Procedure.
Rule 43, entitled Evidence, has heretofore served as the basic rule
of evidence for civil cases in federal courts. Its very general
provisions are superseded by the detailed provisions of the new Rules of
Evidence. The original title and many of the provisions of the rule
are, therefore, no longer appropriate.
Subdivision (a). The provision for taking testimony in open court is
not duplicated in the Rules of Evidence and is retained. Those dealing
with admissibility of evidence and competency of witnesses, however, are
no longer needed or appropriate since those topics are covered at large
in the Rules of Evidence. They are accordingly deleted. The language
is broadened, however, to take account of acts of Congress dealing with
the taking of testimony, as well as of the Rules of Evidence and any
other rules adopted by the Supreme Court.
Subdivision (b). The subdivision is no longer needed or appropriate
since the matters with which it deals are treated in the Rules of
Evidence. The use of leading questions, both generally and in the
interrogation of an adverse party or witness identified with him, is the
subject of Evidence Rule 611(c). Who may impeach is treated in Evidence
Rule 601 and scope of cross-examination is covered in Evidence Rule
611(b). The subdivision is accordingly deleted.
Subdivision (c). Offers of proof and making a record of excluded
evidence are treated in Evidence Rule 103. The subdivision is no longer
needed or appropriate and is deleted.
The amendment is technical. No substantive change is intended.
The Federal Rules of Evidence, referred to in subsec. (a), are set
out in this Appendix.
Amendments of this rule embraced by orders entered by the Supreme
Court of the United States on November 20, 1972, and December 18, 1972,
effective on the 180th day beginning after January 2, 1975, see section
3 of Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1959, set out as a note
under section 2074 of this title.
Amendment of pleading to conform to evidence, see rule 15.
Certified public accountant as witness before master, statement of
accounts as evidence, see rule 53.
Compelling giving of testimony, application of rules, see rule 81.
Depositions of witnesses in foreign country, see section 1781 of this
title.
Documentary evidence, see section 1731 et seq. of this title.
Evidence --
Generally, see section 1731 et seq. of this title.
Hearing before master, see rule 53.
Exceptions to rulings unnecessary, see rule 46.
Harmless error in admitting or excluding evidence, see rule 61.
Interested persons, competency, see section 1822 of this title.
Notary public and other persons authorized to administer oaths
required by laws of the United States, see section 2903 of Title 5,
Government Organization and Employees.
Offer of judgment, see rule 68.
Perpetuation of testimony by action, see rule 27.
Pre-trial procedure, see rule 16.
Proof of official record, see rule 44.
Record made in regular course of business, see section 1732 of this
title.
Record on appeal, form of testimony included in, see Federal Rules of
Appellate Procedure, rule 10.
Subpoena for attendance of witnesses and obtaining evidence, see rule
45.
Transcript of evidence, filing by master with report, see rule 53.
United States, evidence to establish claim on default, see rule 55.
Witnesses generally, see section 1821 et seq. of this title.
28 USC Rule 44. Proof of Official Record
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Authentication.
(1) Domestic. An official record kept within the United States, or
any state, district, or commonwealth, or within a territory subject to
the administrative or judicial jurisdiction of the United States, or an
entry therein, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having
the legal custody of the record, or by the officer's deputy, and
accompanied by a certificate that such officer has the custody. The
certificate may be made by a judge of a court of record of the district
or political subdivision in which the record is kept, authenticated by
the seal of the court, or may be made by any public officer having a
seal of office and having official duties in the district or political
subdivision in which the record is kept, authenticated by the seal of
the officer's office.
(2) Foreign. A foreign official record, or an entry therein, when
admissible for any purpose, may be evidenced by an official publication
thereof; or a copy thereof, attested by a person authorized to make the
attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (i) of the attesting
person, or (ii) of any foreign official whose certificate of genuineness
of signature and official position relates to the attestation or is in a
chain of certificates of genuineness of signature and official position
relating to the attestation. A final certification may be made by a
secretary of embassy or legation, consul general, vice consul, or
consular agent of the United States, or a diplomatic or consular
official of the foreign country assigned or accredited to the United
States. If reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of the documents, the court
may, for good cause shown, (i) admit an attested copy without final
certification or (ii) permit the foreign official record to be evidenced
by an attested summary with or without a final certification. The final
certification is unnecessary if the record and the attestation are
certified as provided in a treaty or convention to which the United
States and the foreign country in which the official record is located
are parties.
(b) Lack of Record. A written statement that after diligent search
no record or entry of a specified tenor is found to exist in the records
designated by the statement, authenticated as provided in subdivision
(a)(1) of this rule in the case of a domestic record, or complying with
the requirements of subdivision (a)(2) of this rule for a summary in the
case of a foreign record, is admissible as evidence that the records
contain no such record or entry.
(c) Other Proof. This rule does not prevent the proof of official
records or of entry or lack of entry therein 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.)
This rule provides a simple and uniform method of proving public
records, and entry or lack of entry therein, in all cases including
those specifically provided for by statutes of the United States. Such
statutes are not superseded, however, and proof may also be made
according to their provisions whenever they differ from this rule. Some
of those statutes are:
U.S.C., Title 28:
661 (now 1733) (Copies of department or corporation records and
papers; admissibility; seal)
662 (now 1733) (Same; in office of General Counsel of the
Treasury)
663 (now 1733) (Instruments and papers of Comptroller of
Currency; admissibility)
664 (now 1733) (Organization certificates of national banks;
admissibility)
665 (now 1733) (Transcripts from books of Treasury in suits
against delinquents; admissibility)
666 (now 1733) (Same; certificate by Secretary or Assistant
Secretary)
670 (now 1743) (Admissibility of copies of statements of demands
by Post Office Department)
671 (now 1733) (Admissibility of copies of post office records
and statement of accounts)
672 (former) (Admissibility of copies of records in General Land
Office)
673 (now 1744) (Admissibility of copies of records, and so
forth, of Patent Office)
674 (now 1745) (Copies of foreign letters patent as prima facie
evidence)
675 (former) (Copies of specifications and drawings of patents
admissible)
676 (now 1736) (Extracts from Journals of Congress admissible
when injunction of secrecy removed)
677 (now 1740) (Copies of records in offices of United States
consuls admissible)
678 (former) (Books and papers in certain district courts) 679
(former) (Records in clerks' offices, western district of
North Carolina)
680 (former) (Records in clerks' offices of former district of
California)
681 (now 1734) (Original records lost or destroyed; certified
copy admissible)
682 (now 1734) (Same; when certified copy not obtainable) 685
(now 1735) (Same; certified copy of official papers) 687 (now
1738) (Authentication of legislative acts; proof of
judicial proceedings of State)
688 (now 1739) (Proofs of records in offices not pertaining to
courts)
689 (now 1742) (Copies of foreign records relating to land
titles)
695 (now 1732) (Writings and records made in regular course of
business; admissibility)
695e (now 1741) (Foreign documents on record in public offices;
certification)
U.S.C., Title 1:
30 (now 112) (Statutes at large; contents; admissibility in
evidence)
30a (now 113) (''Little and Brown's'' edition of laws and
treaties competent evidence of Acts of Congress)
54 (now 204) (Codes and supplements as establishing prima facie
the laws of United States and District of Columbia, etc.)
55 (now 208) (Copies of supplements to Code of Laws of United
States and of District of Columbia Code and supplements; conclusive
evidence of original)
U.S.C., Title 5:
490 (former) (Records of Department of Interior; authenticated
copies as evidence)
U.S.C., Title 6:
7 (now Title 31, 9306) (Surety Companies as sureties;
appointment of agents; service of process)
U.S.C., Title 8:
9a (see 1435(c)) (Citizenship of children of persons naturalized
under certain laws; repatriation of native-born women married to aliens
prior to September 22, 1922; copies of proceedings)
356 (see 1443) (Regulations for execution of naturalization
laws; certified copies of papers as evidence)
399b(d) (see 1443) (Certifications of naturalization records;
authorization; admissibility as evidence)
U.S.C., Title 11:
44(d), (e), (f), (g) (former) (Bankruptcy court proceedings and
orders as evidence)
204 (former) (Extensions extended, etc.; evidence of
confirmation)
207(j) (former) (Corporate reorganizations; certified copy of
decree as evidence)
U.S.C., Title 15:
127 (Trade-mark records in Patent Office; copies as evidence)
U.S.C., Title 20:
52 (Smithsonian Institution; evidence of title to site and
buildings)
U.S.C., Title 25:
6 (Bureau of Indian Affairs; seal; authenticated and certified
documents; evidence)
U.S.C., Title 31:
46 (now 704) (Laws governing General Accounting Office; copies
of books, records, etc., thereof as evidence)
U.S.C., Title 38:
11g (see 302) (Seal of Veterans' Administration; authentication
of copies of records)
U.S.C., Title 40:
238 (National Archives; seal; reproduction of archives; fee;
admissibility in evidence of reproductions)
270c (Bonds of contractors for public works; right of person
furnishing labor or material to copy of bond)
U.S.C., Title 43:
57-59 (Copies of land surveys, etc., in certain states and
districts admissible as evidence)
83 (General Land Office registers and receivers; transcripts of
records as evidence)
U.S.C., Title 46:
823 (Records of Maritime Commission; copies; publication of
reports; evidence)
U.S.C., Title 47:
154(m) (Federal Communications Commission; copies of reports
and decisions as evidence)
412 (Documents filed with Federal Communications Commission as
public records; prima facie evidence; confidential records)
U.S.C., Title 49:
14(3) (now 10310) (Interstate Commerce Commission reports and
decisions; printing and distribution of copies)
16(13) (now 10303(b)) (Copies of schedules, tariffs, etc., filed
with Interstate Commerce Commission as evidence)
19a(i) (now 10785(c)) (Valuation of property of carriers by
Interstate Commerce Commission; final published valuations as evidence)
For supplementary note of Advisory Committee on this rule, see note
under rule 43.
Subdivision (a)(1). These provisions on proof of official records
kept within the United States are similar in substance to those
heretofore appearing in Rule 44. There is a more exact description of
the geographical areas covered. An official record kept in one of the
areas enumerated qualifies for proof under subdivision (a)(1) even
though it is not a United States official record. For example, an
official record kept in one of these areas by a government in exile
falls within subdivision (a)(1). It also falls within subdivision
(a)(2) which may be availed of alternatively. Cf. Banco de Espana v.
Federal Reserve Bank, 114 F.2d 438 (2d Cir. 1940).
Subdivision (a)(2). Foreign official records may be proved, as
heretofore, by means of official publications thereof. See United
States v. Aluminum Co. of America, 1 F.R.D. 71 (S.D.N.Y. 1939). Under
this rule, a document that, on its face, appears to be an official
publication, is admissible, unless a party opposing its admission into
evidence shows that it lacks that character.
The rest of subdivision (a)(2) aims to provide greater clarity,
efficiency, and flexibility in the procedure for authenticating copies
of foreign official records.
The reference to attestation by ''the officer having the legal
custody of the record,'' hitherto appearing in Rule 44, has been found
inappropriate for official records kept in foreign countries where the
assumed relation between custody and the authority to attest does not
obtain. See 2B Barron & Holtzoff, Federal Practice & Procedure 992
(Wright ed. 1961). Accordingly it is provided that an attested copy may
be obtained from any person authorized by the law of the foreign country
to make the attestation without regard to whether he is charged with
responsibility for maintaining the record or keeping it in his custody.
Under Rule 44 a United States foreign service officer has been called
on to certify to the authority of the foreign official attesting the
copy as well as the genuineness of his signature and his official
position. See Schlesinger, Comparative Law 57 (2d ed. 1959); Smit,
International Aspects of Federal Civil Procedure, 61 Colum.L.Rev. 1031,
1063 (1961); 22 C.F.R. 92.41(a), (e) (1958). This has created
practical difficulties. For example, the question of the authority of
the foreign officer might raise issues of foreign law which were beyond
the knowledge of the United States officer. The difficulties are met
under the amended rule by eliminating the element of the authority of
the attesting foreign official from the scope of the certifying process,
and by specifically permitting use of the chain-certificate method.
Under this method, it is sufficient if the original attestation purports
to have been issued by an authorized person and is accompanied by a
certificate of another foreign official whose certificate may in turn be
followed by that of a foreign official of higher rank. The process
continues until a foreign official is reached as to whom the United
States foreign service official (or a diplomatic or consular officer of
the foreign country assigned or accredited to the United States) has
adequate information upon which to base a ''final certification.'' See
New York Life Ins. Co. v. Aronson, 38 F.Supp. 687 (W.D.Pa. 1941); 22
C.F.R. 92.37 (1958).
The final certification (a term used in contradistinction to the
certificates prepared by the foreign officials in a chain) relates to
the incumbency and genuineness of signature of the foreign official who
attested the copy of the record or, where the chain-certificate method
is used, of a foreign official whose certificate appears in the chain,
whether that certificate is the last in the chain or not. A final
certification may be prepared on the basis of material on file in the
consulate or any other satisfactory information.
Although the amended rule will generally facilitate proof of foreign
official records, it is recognized that in some situations it may be
difficult or even impossible to satisfy the basic requirements of the
rule. There may be no United States consul in a particular foreign
country; the foreign officials may not cooperate, peculiarities may
exist or arise hereafter in the law or practice of a foreign country.
See United States v. Grabina, 119 F.2d 863 (2d Cir. 1941); and,
generally, Jones, International Judicial Assistance: Procedural Chaos
and a Program for Reform, 62 Yale L.J. 515, 548-49 (1953). Therefore
the final sentence of subdivision (a)(2) provides the court with
discretion to admit an attested copy of a record without a final
certification, or an attested summary of a record with or without a
final certification. See Rep. of Comm. on Comparative Civ. Proc. &
Prac., Proc. A.B.A., Sec. Int'l & Comp. L. 123, 130-131 (1952); Model
Code of Evidence 517, 519 (1942). This relaxation should be permitted
only when it is shown that the party has been unable to satisfy the
basic requirements of the amended rule despite his reasonable efforts.
Moreover, it is specially provided that the parties must be given a
reasonable opportunity in these cases to examine into the authenticity
and accuracy of the copy or summary.
Subdivision (b). This provision relating to proof of lack of record
is accommodated to the changes made in subdivision (a).
Subdivision (c). The amendment insures that international agreements
of the United States are unaffected by the rule. Several consular
conventions contain provisions for reception of copies or summaries of
foreign official records. See, e.g., Consular Conv. with Italy, May 8,
1878, art. X, 20 Stat. 725, T.S. No. 178 (Dept. State 1878). See
also 28 U.S.C. 1740-42, 1745; Fakouri v. Cadais, 149 F.2d 321 (5th
Cir. 1945), cert. denied, 326 U.S. 742 (1945); 5 Moore's Federal
Practice, par. 44.05 (2d ed. 1951).
The amendments are technical. No substantive change is intended.
The amendment to paragraph (a)(1) strikes the references to specific
territories, two of which are no longer subject to the jurisdiction of
the United States, and adds a generic term to describe governments
having a relationship with the United States such that their official
records should be treated as domestic records.
The amendment to paragraph (a)(2) adds a sentence to dispense with
the final certification by diplomatic officers when the United States
and the foreign country where the record is located are parties to a
treaty or convention that abolishes or displaces the requirement. In
that event the treaty or convention is to be followed. This changes the
former procedure for authenticating foreign official records only with
respect to records from countries that are parties to the Hague
Convention Abolishing the Requirement of Legalization for Foreign Public
Documents. Moreover, it does not affect the former practice of
attesting the records, but only changes the method of certifying the
attestation.
The Hague Public Documents Convention provides that the requirement
of a final certification is abolished and replaced with a model
apostille, which is to be issued by officials of the country where the
records are located. See Hague Public Documents Convention, Arts. 2-4.
The apostille certifies the signature, official position, and seal of
the attesting officer. The authority who issues the apostille must
maintain a register or card index showing the serial number of the
apostille and other relevant information recorded on it. A foreign
court can then check the serial number and information on the apostille
with the issuing authority in order to guard against the use of
fraudulent apostilles. This system provides a reliable method for
maintaining the integrity of the authentication process, and the
apostille can be accorded greater weight than the normal authentication
procedure because foreign officials are more likely to know the precise
capacity under their law of the attesting officer than would an American
official. See generally Comment, The United States and the Hague
Convention Abolishing the Requirement of Legalization for Foreign Public
Documents, 11 HARV. INT'L L.J. 476, 482, 488 (1970).
Authenticated and certified copy of Government record by Archivist
admissible on evidence, see section 2116 of Title 44, Public Printing
and Documents.
28 USC Rule 44.1. Determination of Foreign Law
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A party who intends to raise an issue concerning the law of a foreign
country shall give notice by pleadings or other reasonable written
notice. The court, in determining foreign law, 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 determination shall 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.)
Rule 44.1 is added by amendment to furnish Federal courts with a
uniform and effective procedure for raising and determining an issue
concerning the law of a foreign country.
To avoid unfair surprise, the first sentence of the new rule requires
that a party who intends to raise an issue of foreign law shall give
notice thereof. The uncertainty under Rule 8(a) about whether foreign
law must be pleaded -- compare Siegelman v. Cunard White Star, Ltd. ,
221 F.2d 189 (2d Cir. 1955), and Pedersen v. United States, 191 F.Supp.
95 (D.Guam 1961), with Harrison v. United Fruit Co. , 143 F.Supp. 598
(S.D.N.Y. 1956) -- is eliminated by the provision that the notice shall
be ''written'' and ''reasonable.'' It may, but need not be, incorporated
in the pleadings. In some situations the pertinence of foreign law is
apparent from the outset; accordingly the necessary investigation of
that law will have been accomplished by the party at the pleading stage,
and the notice can be given conveniently in the pleadings. In other
situations the pertinence of foreign law may remain doubtful until the
case is further developed. A requirement that notice of foreign law be
given only through the medium of the pleadings would tend in the latter
instances to force the party to engage in a peculiarly burdensome type
of investigation which might turn out to be unnecessary; and
correspondingly the adversary would be forced into a possible wasteful
investigation. The liberal provisions for amendment of the pleadings
afford help if the pleadings are used as the medium of giving notice of
the foreign law; but it seems best to permit a written notice to be
given outside of and later than the pleadings, provided the notice is
reasonable.
The new rule does not attempt to set any definite limit on the
party's time for giving the notice of an issue of foreign law; in some
cases the issue may not become apparent until the trial and notice then
given may still be reasonable. The stage which the case has reached at
the time of the notice, the reason proffered by the party for his
failure to give earlier notice, and the importance to the case as a
whole of the issue of foreign law sought to be raised, are among the
factors which the court should consider in deciding a question of the
reasonableness of a notice. If notice is given by one party it need not
be repeated by any other and serves as a basis for presentation of
material on the foreign law by all parties.
The second sentence of the new rule describes the materials to which
the court may resort in determining an issue of foreign law. Heretofore
the district courts, applying Rule 43(a), have looked in certain cases
to State law to find the rules of evidence by which the content of
foreign-country law is to be established. The State laws vary; some
embody procedures which are inefficient, time consuming and expensive.
See, generally, Nussbaum, Proving the Law of Foreign Countries, 3
Am.J.Comp.L. 60 (1954). In all events the ordinary rules of evidence
are often inapposite to the problem of determining foreign law and have
in the past prevented examination of material which could have provided
a proper basis for the determination. The new rule permits
consideration by the court of any relevant material, including
testimony, without regard to its admissibility under Rule 43. Cf.
N.Y.Civ.Prac.Law & Rules, R. 4511 (effective Sept. 1, 1963); 2 Va.Code
Ann. tit. 8, 8-273; 2 W.Va.Code Ann. 5711.
In further recognition of the peculiar nature of the issue of foreign
law, the new rule provides that in determining this law the court is not
limited by material presented by the parties; it may engage in its own
research and consider any relevant material thus found. The court may
have at its disposal better foreign law materials than counsel have
presented, or may wish to reexamine and amplify material that has been
presented by counsel in partisan fashion or in insufficient detail. On
the other hand, the court is free to insist on a complete presentation
by counsel.
There is no requirement that the court give formal notice to the
parties of its intention to engage in its own research on an issue of
foreign law which has been raised by them, or of its intention to raise
and determine independently an issue not raised by them. Ordinarily the
court should inform the parties of material it has found diverging
substantially from the material which they have presented; and in
general the court should give the parties an opportunity to analyze and
counter new points upon which it proposes to rely. See Schlesinger,
Comparative Law 142 (2d ed. 1959); Wyzanski, A Trial Judge's Freedom
and Responsibility, 65 Harv.L.Rev. 1281, 1296 (1952); cf. Siegelman v.
Cunard White Star, Ltd., supra, 221 F.2d at 197. To require, however,
that the court give formal notice from time to time as it proceeds with
its study of the foreign law would add an element of undesirable
rigidity to the procedure for determining issues of foreign law.
The new rule refrains from imposing an obligation on the court to
take ''judicial notice'' of foreign law because this would put an
extreme burden on the court in many cases; and it avoids use of the
concept of ''judicial notice'' in any form because of the uncertain
meaning of that concept as applied to foreign law. See, e.g., Stern,
Foreign Law in the Courts: Judicial Notice and Proof, 45 Calif.L.Rev.
23, 43 (1957). Rather the rule provides flexible procedures for
presenting and utilizing material on issues of foreign law by which a
sound result can be achieved with fairness to the parties.
Under the third sentence, the court's determination of an issue of
foreign law is to be treated as a ruling on a question of ''law,'' not
''fact,'' so that appellate review will not be narrowly confined by the
''clearly erroneous'' standard of Rule 52(a). Cf. Uniform Judicial
Notice of Foreign Law Act 3; Note, 72 Harv.L.Rev. 318 (1958).
The new rule parallels Article IV of the Uniform Interstate and
International Procedure Act, approved by the Commissioners on Uniform
State Laws in 1962, except that section 4.03 of Article IV states that
''(t)he court, not the jury'' shall determine foreign law. The new rule
does not address itself to this problem, since the Rules refrain from
allocating functions as between the court and the jury. See Rule 38(a).
It has long been thought, however, that the jury is not the appropriate
body to determine issues of foreign law. See, e.g., Story, Conflict of
Laws, 638 (1st ed. 1834, 8th ed. 1883); 1 Greenleaf, Evidence, 486
(1st ed. 1842, 16th ed. 1899); 4 Wigmore, Evidence 2558 (1st ed.
1905); 9 id. 2558 (3d ed. 1940). The majority of the States have
committed such issues to determination by the court. See Article 5 of
the Uniform Judicial Notice of Foreign Law Act, adopted by twenty-six
states, 9A U.L.A. 318 (1957) (Suppl. 1961, at 134); N.Y.Civ.Prac.Law &
Rules, R. 4511 (effective Sept. 1, 1963); Wigmore, loc. cit. And
Federal courts that have considered the problem in recent years have
reached the same conclusion without reliance on statute. See Janson v.
Swedish American Line, 185 F.2d 212, 216 (1st Cir. 1950); Bank of Nova
Scotia v. San Miguel, 196 F.2d 950, 957, n. 6 (1st Cir. 1952);
Liechti v. Roche, 198 F.2d 174 (5th Cir. 1952); Daniel Lumber Co. v.
Empresas Hondurenas, S.A., 215 F.2d 465 (5th Cir. 1954).
Since the purpose of the provision is to free the judge, in
determining foreign law, from any restrictions imposed by evidence
rules, a general reference to the Rules of Evidence is appropriate and
is made.
The amendment is technical. No substantive change is intended.
The Federal Rules of Evidence, referred to in text, are set out in
this Appendix.
Amendment of this rule embraced by the order entered by the Supreme
Court of the United States on November 20, 1972, effective on the 180th
day beginning after January 2, 1973, see section 3 of Pub. L. 93-595,
Jan. 2, 1975, 88 Stat. 1959, set out as a note under section 2074 of
this title.
28 USC Rule 45. Subpoena
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in which it
is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and give
testimony or to produce and permit inspection and copying of designated
books, documents or tangible things in the possession, custody or
control of that person, or to permit inspection of premises, at a time
and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this rule.
A command to produce evidence or to permit inspection may be joined
with a command to appear at trial or hearing or at deposition, or may be
issued separately.
(2) A subpoena commanding attendance at a trial or hearing shall
issue from the court for the district in which the hearing or trial is
to be held. A subpoena for attendance at a deposition shall issue from
the court for the district designated by the notice of deposition as the
district in which the deposition is to be taken. If separate from a
subpoena commanding the attendance of a person, a subpoena for
production or inspection shall issue from the court for the district in
which the production or inspection is to be made.
(3) The clerk shall issue a subpoena, signed but otherwise in blank,
to a party requesting it, who shall complete it before service. An
attorney as officer of the court may also issue and sign a subpoena on
behalf of
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district in which a deposition or production is
compelled by the subpoena, if the deposition or production pertains to
an action pending in a court in which the attorney is authorized to
practice.
(b) Service.
(1) A subpoena may be served by any person who is not a party and is
not less than 18 years of age. Service of a subpoena upon a person
named therein shall be made by delivering a copy thereof to such person
and, if the person's attendance is commanded, by tendering to that
person the fees for one day's attendance and the mileage allowed by law.
When the subpoena is issued on behalf of the United States or an
officer or agency thereof, fees and mileage need not be tendered. Prior
notice of any commanded production of documents and things or inspection
of premises before trial shall be served on each party in the manner
prescribed by Rule 5(b).
(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place within the
district of the court by which it is issued, or at any place without the
district that is within 100 miles of the place of the deposition,
hearing, trial, production, or inspection specified in the subpoena or
at any place within the state where a state statute or rule of court
permits service of a subpoena issued by a state court of general
jurisdiction sitting in the place of the deposition, hearing, trial,
production, or inspection specified in the subpoena. When a statute of
the United States provides therefor, the court upon proper application
and cause shown may authorize the service of a subpoena at any other
place. A subpoena directed to a witness in a foreign country who is a
national or resident of the United States shall issue under the
circumstances and in the manner and be served as provided in Title 28,
U.S.C. 1783.
(3) Proof of service when necessary shall be made by filing with the
clerk of the court by which the subpoena is issued a statement of the
date and manner of service and of the names of the persons served,
certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue burden
or expense on a person subject to that subpoena. The court on behalf of
which the subpoena was issued shall enforce this duty and impose upon
the party or attorney in breach of this duty an appropriate sanction,
which may include, but is not limited to, lost earnings and a reasonable
attorney's fee.
(2)(A) A person commanded to produce and permit inspection and
copying of designated books, papers, documents or tangible things, or
inspection of premises need not appear in person at the place of
production or inspection unless commanded to appear for deposition,
hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to
produce and permit inspection and copying may, within 14 days after
service of the subpoena or before the time specified for compliance if
such time is less than 14 days after service, serve upon the party or
attorney designated in the subpoena written objection to inspection or
copying of any or all of the designated materials or of the premises.
If objection is made, the party serving the subpoena shall not be
entitled to inspect and copy the materials or inspect the premises
except pursuant to an order of the court by which the subpoena was
issued. If objection has been made, the party serving the subpoena may,
upon notice to the person commanded to produce, move at any time for an
order to compel the production. Such an order to compel production
shall protect any person who is not a party or an officer of a party
from significant expense resulting from the inspection and copying
commanded.
(3)(A) On timely motion, the court by which a subpoena was issued
shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to
travel to a place more than 100 miles from the place where that person
resides, is employed or regularly transacts business in person, except
that, subject to the provisions of clause (c)(3)(B)(iii) of this rule,
such a person may in order to attend trial be commanded to travel from
any such place within the state in which the trial is held, or
(iii) requires disclosure of privileged or other protected matter and
no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential
research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or
information not describing specific events or occurrences in dispute and
resulting from the expert's study made not at the request of any party,
or
(iii) requires a person who is not a party or an officer of a party
to incur substantial expense to travel more than 100 miles to attend
trial, the court may, to protect a person subject to or affected by the
subpoena, quash or modify the subpoena or, if the party in whose behalf
the subpoena is issued shows a substantial need for the testimony or
material that cannot be otherwise met without undue hardship and assures
that the person to whom the subpoena is addressed will be reasonably
compensated, the court may order appearance or production only upon
specified conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall
produce them as they are kept in the usual course of business or shall
organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim
that it is privileged or subject to protection as trial preparation
materials, the claim shall be made expressly and shall be supported by a
description of the nature of the documents, communications, or things
not produced that is sufficient to enable the demanding party to contest
the claim.
(e) Contempt. Failure by any person without adequate excuse to obey
a subpoena served upon that person may be deemed a contempt of the court
from which the subpoena issued. An adequate cause for failure to obey
exists when a subpoena purports to require a non-party to attend or
produce at a place not within the limits provided by clause (ii) of
subparagraph (c)(3)(A).
(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.)
This rule applies to subpoenas ad testificandum and duces tecum
issued by the district courts for attendance at a hearing or a trial, or
to take depositions. It does not apply to the enforcement of subpoenas
issued by administrative officers and commissions pursuant to statutory
authority. The enforcement of such subpoenas by the district courts is
regulated by appropriate statutes. Many of these statutes do not place
any territorial limits on the validity of subpoenas so issued, but
provide that they may be served anywhere within the United States.
Among such statutes are the following:
U.S.C., Title 7, 222 and 511n (Secretary of Agriculture) U.S.C.,
Title 15, 49 (Federal Trade Commission) U.S.C., Title 15,
77v(b), 78u(c), 79r(d) (Securities and
Exchange Commission)
U.S.C., Title 16, 797(g) and 825f (Federal Power Commission)
U.S.C., Title 19, 1333(b) (Tariff Commission) U.S.C., Title 22,
268, 270d and 270e (International
Commissions, etc.)
U.S.C., Title 26, 614, 619(b) (see 7456) (Board of Tax Appeals)
U.S.C., Title 26, 1523(a) (see 7608) (Internal Revenue Officers)
U.S.C., Title 29, 161 (Labor Relations Board) U.S.C., Title 33,
506 (Secretary of Army) U.S.C., Title 35, 54-56 (now 24) (Patent
Office proceedings) U.S.C., Title 38, (former) 133 (Veterans'
Administration) U.S.C., Title 41, 39 (Secretary of Labor) U.S.C.,
Title 45, 157 Third. (h) (Board of Arbitration under
Railway Labor Act)
U.S.C., Title 45, 222(b) (Investigation Commission under
Railroad Retirement Act of 1935)
U.S.C., Title 46, 1124(b) (Maritime Commission) U.S.C., Title 47,
409(c) and (d) (Federal Communications
Commission)
U.S.C., Title 49, 12(2) and (3) (now 10321) (Interstate Commerce
Commission)
U.S.C., Title 49, 173a (see 1484) (Secretary of Commerce)
Note to Subdivisions (a) and (b). These simplify the form of
subpoena as provided in U.S.C., Title 28, (former) 655 (Witnesses;
subpoena; form; attendance under); and broaden U.S.C., Title 28,
(former) 636 (Production of books and writings) to include all actions,
and to extend to any person. With the provision for relief from an
oppressive or unreasonable subpoena duces tecum, compare N.Y.C.P.A.
(1937) 411.
Note to Subdivision (c). This provides for the simple and convenient
method of service permitted under many state codes; e.g., N.Y.C.P.A.
(1937) 220, 404, J.Ct.Act, 191; 3 Wash.Rev.Stat.Ann. (Remington,
1932) 1218. Compare Equity Rule 15 (Process, by Whom Served).
For statutes governing fees and mileage of witnesses see:
U.S.C., Title 28:
600a (now 1871) (Per diem; mileage) 600c (now 1821, 1825)
(Amount per diem and mileage for
witnesses; subsistence)
600d (former) (Fees and mileage in certain states) 601 (former)
(Witnesses; fees; enumeration) 602 (now 1824) (Fees and mileage
of jurors and witnesses) 603 (see Title 5, 5515, 5537) (No
officer of court to have
witness fees)
Note to Subdivision (d). The method provided in paragraph (1) for
the authorization of the issuance of subpoenas has been employed in some
districts. See Henning v. Boyle, 112 Fed. 397 (S.D.N.Y., 1901). The
requirement of an order for the issuance of a subpoena duces tecum is in
accordance with U.S.C., Title 28, (former) 647 (Deposition under
dedimus potestatem; subpoena duces tecum). The provisions of paragraph
(2) are in accordance with common practice. See U.S.C., Title 28,
(former) 648 (Deposition under dedimus potestatem; witnesses, when
required to attend); N.Y.C.P.A. (1937) 300; 1 N.J.Rev.Stat. (1937)
2:27-174.
Note to Subdivision (e). The first paragraph continues the substance
of U.S.C., Title 28, (former) 654 (Witnesses; subpoenas; may run into
another district). Compare U.S.C., Title 11, (former) 69 (Referees in
bankruptcy; contempts before) (production of books and writings) which
is not affected by this rule. For examples of statutes which allow the
court, upon proper application and cause shown, to authorize the clerk
of the court to issue a subpoena for a witness who lives in another
district and at a greater distance than 100 miles from the place of the
hearing or trial, see:
U.S.C., Title 15:
23 (Suits by United States; subpoenas for witnesses) (under
antitrust laws).
U.S.C., Title 38:
445 (now 1984) (Actions on claims; jurisdiction; parties;
procedure; limitation; witnesses; definitions) (Veterans; insurance
contracts).
The second paragraph continues the present procedure applicable to
certain witnesses who are in foreign countries. See U.S.C., Title 28,
711 (now 1783) (Letters rogatory to take testimony of witness, addressed
to court of foreign country; failure of witness to appear; subpoena)
and 713 (now 1783) (Service of subpoena on witness in foreign country).
Note to Subdivision (f). Compare (former) Equity Rule 52 (Attendance
of Witnesses Before Commissioner, Master, or Examiner).
Note. Subdivision (b). The added words, ''or tangible things'' in
subdivision (b) merely makes the rule for the subpoena duces tecum at
the trial conform to that of subdivision (d) for the subpoena at the
taking of depositions. The insertion of the words ''or modify'' in
clause (1) affords desirable flexibility.
Subdivision (d). The added last sentence of amended subdivision
(d)(1) properly gives the subpoena for documents or tangible things the
same scope as provided in Rule 26(b), thus promoting uniformity. The
requirement in the last sentence of original Rule 45(d)(1) -- to the
effect that leave of court should be obtained for the issuance of such a
subpoena -- has been omitted. This requirement is unnecessary and
oppressive on both counsel and court, and it has been criticized by
district judges. There is no satisfactory reason for a differentiation
between a subpoena for the production of documentary evidence by a
witness at a trial (Rule 45(a)) and for the production of the same
evidence at the taking of a deposition. Under this amendment, the
person subpoenaed may obtain the protection afforded by any of the
orders permitted under Rule 30(b) or Rule 45(b). See Application of
Zenith Radio Corp., (E.D.Pa. 1941), 4 Fed.Rules Serv. 30b.21, Case 1, 1
F.R.D. 627; Fox v. House, (E.D.Okla.) 1939, 29 F.Supp. 673; United
States of America for the Use of Tilo Roofing Co., Inc. v. J. Slotnik
Co., (D.Conn. 1944), 3 F.R.D. 408.
The changes in subdivision (d)(2) give the court the same power in
the case of residents of the district as is conferred in the case of
non-residents, and permit the court to fix a place for attendance which
may be more convenient and accessible for the parties than that
specified in the rule.
At present, when a subpoena duces tecum is issued to a deponent, he
is required to produce the listed materials at the deposition, but is
under no clear compulsion to permit their inspection and copying. This
results in confusion and uncertainty before the time the deposition is
taken, with no mechanism provided whereby the court can resolve the
matter. Rule 45(d)(1), as revised, makes clear that the subpoena
authorizes inspection and copying of the materials produced. The
deponent is afforded full protection since he can object, thereby
forcing the party serving the subpoena to obtain a court order if he
wishes to inspect and copy. The procedure is thus analogous to that
provided in Rule 34.
The changed references to other rules conform to changes made in
those rules. The deletion of words in the clause describing the proper
scope of the subpoena conforms to a change made in the language of Rule
34. The reference to Rule 26(b) is unchanged but encompasses new matter
in that subdivision. The changes make it clear that the scope of
discovery through a subpoena is the same as that applicable to Rule 34
and the other discovery rules.
Subdivision (d)(1). The amendment defines the term ''proof of
service'' as used in the first sentence of the present subdivision. For
want of a definition, the district court clerks have been obliged to
fashion their own, with results that vary from district to district.
All that seems required is a simple certification on a copy of the
notice to take a deposition that the notice has been served on every
other party to the action. That is the proof of service required by
Rule 25(d) of both the Federal Rules of Appellate Procedure and the
Supreme Court Rules.
Subdivision (e)(1). The amendment makes the reach of a subpoena of a
district court at least as extensive as that of the state courts of
general jurisdiction in the state in which the district court is held.
Under the present rule the reach of a district court subpoena is often
greater, since it extends throughout the district. No reason appears
why it should be less, as it sometimes is because of the accident of
district lines. Restrictions upon the reach of subpoenas are imposed to
prevent undue inconvenience to witnesses. State statutes and rules of
court are quite likely to reflect the varying degrees of difficulty and
expense attendant upon local travel.
Present Rule 45(d)(2) has two sentences setting forth the territorial
scope of deposition subpoenas. The first sentence is directed to
depositions taken in the judicial district in which the deponent
resides; the second sentence addresses situations in which the deponent
is not a resident of the district in which the deposition is to take
place. The Rule, as currently constituted, creates anomalous situations
that often cause logistical problems in conducting litigation.
The first sentence of the present Rule states that a deponent may be
required to attend only in the county wherein that person resides or is
employed or transacts business in person, that is, where the person
lives or works. Under this provision a deponent can be compelled,
without court order, to travel from one end of that person's home county
to the other, no matter how far that may be. The second sentence of the
Rule is somewhat more flexible, stating that someone who does not reside
in the district in which the deposition is to be taken can be required
to attend in the county where the person is served with the subpoena, or
within 40 miles from the place of service.
Under today's conditions there is no sound reason for distinguishing
between residents of the district or county in which a deposition is to
be taken and nonresidents, and the Rule is amended to provide that any
person may be subpoenaed to attend a deposition within a specified
radius from that person's residence, place of business, or where the
person was served. The 40-mile radius has been increased to 100 miles.
The amendments are technical. No substantive change is intended.
Purposes of Revision. The purposes of this revision are (1) to
clarify and enlarge the protections afforded persons who are required to
assist the court by giving information or evidence; (2) to facilitate
access outside the deposition procedure provided by Rule 30 to documents
and other information in the possession of persons who are not parties;
(3) to facilitate service of subpoenas for depositions or productions of
evidence at places distant from the district in which an action is
proceeding; (4) to enable the court to compel a witness found within
the state in which the court sits to attend trial; (5) to clarify the
organization of the text of the rule.
Subdivision (a). This subdivision is amended in seven significant
respects.
First, Paragraph (a)(3) modifies the requirement that a subpoena be
issued by the clerk of court. Provision is made for the issuance of
subpoenas by attorneys as officers of the court. This revision perhaps
culminates an evolution. Subpoenas were long issued by specific order
of the court. As this became a burden to the court, general orders were
made authorizing clerks to issue subpoenas on request. Since 1948, they
have been issued in blank by the clerk of any federal court to any
lawyer, the clerk serving as stationer to the bar. In allowing counsel
to issue the subpoena, the rule is merely a recognition of present
reality.
Although the subpoena is in a sense the command of the attorney who
completes the form, defiance of a subpoena is nevertheless an act in
defiance of a court order and exposes the defiant witness to contempt
sanctions. In ICC v. Brimson, 154 U.S. 447 (1894), the Court upheld a
statute directing federal courts to issue subpoenas to compel testimony
before the ICC. In CAB v. Hermann, 353 U.S. 322 (1957), the Court
approved as established practice the issuance of administrative
subpoenas as a matter of absolute agency right. And in NLRB v. Warren
Co. , 350 U.S. 107 (1955), the Court held that the lower court had no
discretion to withhold sanctions against a contemnor who violated such
subpoenas. The 1948 revision of Rule 45 put the attorney in a position
similar to that of the administrative agency, as a public officer
entitled to use the court's contempt power to investigate facts in
dispute. Two courts of appeals have touched on the issue and have
described lawyer-issued subpoenas as mandates of the court. Waste
Conversion, Inc. v. Rollins Environmental Services (NJ), Inc. , 893
F.2d 605 (3d cir., 1990); Fisher v. Marubent Cotton Corp. , 526 F.2d
1338, 1340 (8th cir., 1975). Cf. Young v. United States ex rel Vuitton
et Fils S.A., 481 U.S. 787, 821 (1987) (Scalia, J., concurring). This
revision makes the rule explicit that the attorney acts as an officer of
the court in issuing and signing subpoenas.
Necessarily accompanying the evolution of this power of the lawyer as
officer of the court is the development of increased responsibility and
liability for the misuse of this power. The latter development is
reflected in the provisions of subdivision (c) of this rule, and also in
the requirement imposed by paragraph (3) of this subdivision that the
attorney issuing a subpoena must sign it.
Second, Paragraph (a)(3) authorizes attorneys in distant districts to
serve as officers authorized to issue commands in the name of the court.
Any attorney permitted to represent a client in a federal court, even
one admitted pro hac vice, has the same authority as a clerk to issue a
subpoena from any federal court for the district in which the subpoena
is served and enforced. In authorizing attorneys to issue subpoenas
from distant courts, the amended rule effectively authorizes service of
a subpoena anywhere in the United States by an attorney representing any
party. This change is intended to ease the administrative burdens of
inter-district law practice. The former rule resulted in delay and
expense caused by the need to secure forms from clerks' offices some
distance from the place at which the action proceeds. This change does
not enlarge the burden on the witness.
Pursuant to Paragraph (a)(2), a subpoena for a deposition must still
issue from the court in which the deposition or production would be
compelled. Accordingly, a motion to quash such a subpoena if it
overbears the limits of the subpoena power must, as under the previous
rule, be presented to the court for the district in which the deposition
would occur. Likewise, the court in whose name the subpoena is issued
is responsible for its enforcement.
Third, in order to relieve attorneys of the need to secure an
appropriate seal to affix to a subpoena issued as an officer of a
distant court, the requirement that a subpoena be under seal is
abolished by the provisions of Paragraph (a)(1).
Fourth, Paragraph (a)(1) authorizes the issuance of a subpoena to
compel a non-party to produce evidence independent of any deposition.
This revision spares the necessity of a deposition of the custodian of
evidentiary material required to be produced. A party seeking
additional production from a person subject to such a subpoena may serve
an additional subpoena requiring additional production at the same time
and place.
Fifth, Paragraph (a)(2) makes clear that the person subject to the
subpoena is required to produce materials in that person's control
whether or not the materials are located within the district or within
the territory within which the subpoena can be served. The non-party
witness is subject to the same scope of discovery under this rule as
that person would be as a party to whom a request is addressed pursuant
to Rule 34.
Sixth, Paragraph (a)(1) requires that the subpoena include a
statement of the rights and duties of witnesses by setting forth in full
the text of the new subdivisions (c) and (d).
Seventh, the revised rule authorizes the issuance of a subpoena to
compel the inspection of premises in the possession of a non-party.
Rule 34 has authorized such inspections of premises in the possession of
a party as discovery compelled under Rule 37, but prior practice
required an independent proceeding to secure such relief ancillary to
the federal proceeding when the premises were not in the possession of a
party. Practice in some states has long authorized such use of a
subpoena for this purpose without apparent adverse consequence.
Subdivision (b). Paragraph (b)(1) retains the text of the former
subdivision (c) with minor changes.
The reference to the United States marshal and deputy marshal is
deleted because of the infrequency of the use of these officers for this
purpose. Inasmuch as these officers meet the age requirement, they may
still be used if available.
A provision requiring service of prior notice pursuant to Rule 5 of
compulsory pretrial production or inspection has been added to paragraph
(b)(1). The purpose of such notice is to afford other parties an
opportunity to object to the production or inspection, or to serve a
demand for additional documents or things. Such additional notice is
not needed with respect to a deposition because of the requirement of
notice imposed by Rule 30 or 31. But when production or inspection is
sought independently of a deposition, other parties may need notice in
order to monitor the discovery and in order to pursue access to any
information that may or should be produced.
Paragraph (b)(2) retains language formerly set forth in subdivision
(e) and extends its application to subpoenas for depositions or
production.
Paragraph (b)(3) retains language formerly set forth in paragraph
(d)(1) and extends its applications to subpoenas for trial or hearing or
production.
Subdivision (c). This provision is new and states the rights of
witnesses. It is not intended to diminish rights conferred by Rules
26-37 or any other authority.
Paragraph (c)(1) gives specific application to the principle stated
in Rule 26(g) and specifies liability for earnings lost by a non-party
witness as a result of a misuse of the subpoena. No change in existing
law is thereby effected. Abuse of a subpoena is an actionable tort,
Board of Ed. v. Farmingdale Classroom Teach. Ass'n, 38 N.Y.2d 397, 380
N.Y.S.2d 635, 343 N.E.2d 278 (1975), and the duty of the attorney to the
non-party is also embodied in Model Rule of Professional Conduct 4.4.
The liability of the attorney is correlative to the expanded power of
the attorney to issue subpoenas. The liability may include the cost of
fees to collect attorneys' fees owed as a result of a breach of this
duty.
Paragraph (c)(2) retains language from the former subdivision (b) and
paragraph (d)(1). The 10-day period for response to a subpoena is
extended to 14 days to avoid the complex calculations associated with
short time periods under Rule 6 and to allow a bit more time for such
objections to be made.
A non-party required to produce documents or materials is protected
against significant expense resulting from involuntary assistance to the
court. This provision applies, for example, to a non-party required to
provide a list of class members. The court is not required to fix the
costs in advance of production, although this will often be the most
satisfactory accommodation to protect the party seeking discovery from
excessive costs. In some instances, it may be preferable to leave
uncertain costs to be determined after the materials have been produced,
provided that the risk of uncertainty is fully disclosed to the
discovering party. See, e.g., United States v. Columbia Broadcasting
Systems, Inc. , 666 F.2d 364 (9th Cir. 1982).
Paragraph (c)(3) explicitly authorizes the quashing of a subpoena as
a means of protecting a witness from misuse of the subpoena power. It
replaces and enlarges on the former subdivision (b) of this rule and
tracks the provisions of Rule 26(c). While largely repetitious, this
rule is addressed to the witness who may read it on the subpoena, where
it is required to be printed by the revised paragraph (a)(1) of this
rule.
Subparagraph (c)(3)(A) identifies those circumstances in which a
subpoena must be quashed or modified. It restates the former provisions
with respect to the limits of mandatory travel that are set forth in the
former paragraphs (d)(2) and (e)(1), with one important change. Under
the revised rule, a federal court can compel a witness to come from any
place in the state to attend trial, whether or not the local state law
so provides. This extension is subject to the qualification provided in
the next paragraph, which authorizes the court to condition enforcement
of a subpoena compelling a non-party witness to bear substantial expense
to attend trial. The traveling non-party witness may be entitled to
reasonable compensation for the time and effort entailed.
Clause (c)(3)(A)(iv) requires the court to protect all persons from
undue burden imposed by the use of the subpoena power. Illustratively,
it might be unduly burdensome to compel an adversary to attend trial as
a witness if the adversary is known to have no personal knowledge of
matters in dispute, especially so if the adversary would be required to
incur substantial travel burdens.
Subparagraph (c)(3)(B) identifies circumstances in which a subpoena
should be quashed unless the party serving the subpoena shows a
substantial need and the court can devise an appropriate accommodation
to protect the interests of the witness. An additional circumstance in
which such action is required is a request for costly production of
documents; that situation is expressly governed by subparagraph
(b)(2)(B).
Clause (c)(3)(B)(i) authorizes the court to quash, modify, or
condition a subpoena to protect the person subject to or affected by the
subpoena from unnecessary or unduly harmful disclosures of confidential
information. It corresponds to Rule 26(c)(7).
Clause (c)(3)(B)(ii) provides appropriate protection for the
intellectual property of the non-party witness; it does not apply to
the expert retained by a party, whose information is subject to the
provisions of Rule 26(b)(4). A growing problem has been the use of
subpoenas to compel the giving of evidence and information by unretained
experts. Experts are not exempt from the duty to give evidence, even if
they cannot be compelled to prepare themselves to give effective
testimony, e.g., Carter-Wallace, Inc. v. Otte, 474 F.2d 529 (2d Cir.
1972), but compulsion to give evidence may threaten the intellectual
property of experts denied the opportunity to bargain for the value of
their services. See generally Maurer, Compelling the Expert Witness:
Fairness and Utility Under the Federal Rules of Civil Procedure, 19
GA.L.REV. 71 (1984); Note, Discovery and Testimony of Unretained
Experts, 1987 DUKE L.J. 140. Arguably the compulsion to testify can be
regarded as a ''taking'' of intellectual property. The rule establishes
the right of such persons to withhold their expertise, at least unless
the party seeking it makes the kind of showing required for a
conditional denial of a motion to quash as provided in the final
sentence of subparagraph (c)(3)(B); that requirement is the same as
that necessary to secure work product under Rule 26(b)(3) and gives
assurance of reasonable compensation. The Rule thus approves the
accommodation of competing interests exemplified in United States v.
Columbia Broadcasting Systems Inc. , 666 F.2d 364 (9th Cir. 1982). See
also Wright v. Jeep Corporation, 547 F. Supp. 871 (E.D. Mich. 1982).
As stated in Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir.
1976), the district court's discretion in these matters should be
informed by ''the degree to which the expert is being called because of
his knowledge of facts relevant to the case rather than in order to give
opinion testimony; the difference between testifying to a previously
formed or expressed opinion and forming a new one; the possibility
that, for other reasons, the witness is a unique expert; the extent to
which the calling party is able to show the unlikelihood that any
comparable witness will willingly testify; and the degree to which the
witness is able to show that he has been oppressed by having continually
to testify. . . .''
Clause (c)(3)(B)(iii) protects non-party witnesses who may be
burdened to perform the duty to travel in order to provide testimony at
trial. The provision requires the court to condition a subpoena
requiring travel of more than 100 miles on reasonable compensation.
Subdivision (d). This provision is new. Paragraph (d)(1) extends to
non-parties the duty imposed on parties by the last paragraph of Rule
34(b), which was added in 1980.
Paragraph (d)(2) is new and corresponds to the new Rule 26(b)(5).
Its purpose is to provide a party whose discovery is constrained by a
claim of privilege or work product protection with information
sufficient to evaluate such a claim and to resist if it seems
unjustified. The person claiming a privilege or protection cannot
decide the limits of that party's own entitlement.
A party receiving a discovery request who asserts a privilege or
protection but fails to disclose that claim is at risk of waiving the
privilege or protection. A person claiming a privilege or protection
who fails to provide adequate information about the privilege or
protection claim to the party seeking the information is subject to an
order to show cause why the person should not be held in contempt under
subdivision (e). Motions for such orders and responses to motions are
subject to the sanctions provisions of Rules 7 and 11.
A person served a subpoena that is too broad may be faced with a
burdensome task to provide full information regarding all that person's
claims to privilege or work product protection. Such a person is
entitled to protection that may be secured through an objection made
pursuant to paragraph (c)(2).
Subdivision (e). This provision retains most of the language of the
former subdivision (f).
''Adequate cause'' for a failure to obey a subpoena remains
undefined. In at least some circumstances, a non-party might be guilty
of contempt for refusing to obey a subpoena even though the subpoena
manifestly overreaches the appropriate limits of the subpoena power.
E.g., Walker v. City of Birmingham, 388 U.S. 307 (1967). But, because
the command of the subpoena is not in fact one uttered by a judicial
officer, contempt should be very sparingly applied when the non-party
witness has been overborne by a party or attorney. The language added
to subdivision (f) is intended to assure that result where a non-party
has been commanded, on the signature of an attorney, to travel greater
distances than can be compelled pursuant to this rule.
Motion for order for production of documents, see rule 34.
Scope of deposition on oral examination, see rule 26.
Subpoenas in civil cases brought by United States under anti-trust
laws, see section 23 of Title 15, Commerce and Trade.
28 USC Rule 46. Exceptions Unnecessary
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Formal exceptions to rulings or orders of the court are unnecessary;
but for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or order
of the court is made or sought, makes known to the court the action
which the party desires the court to take or the party's objection to
the action of the court and the grounds therefor; and, if a party has
no opportunity to object to a ruling or order at the time it is made,
the absence of an objection does not thereafter prejudice the party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Abolition of formal exceptions is often provided by statute. See
Ill.Rev.Stat. (1937), ch. 110, 204; Neb.Comp.Stat. (1929) 20-1139;
N.M.Stat.Ann. (Courtright, 1929) 105-830; 2 N.D.Comp.Laws Ann. (1913)
7653; Ohio Code Ann. (Throckmorton, 1936) 11560; 1 S.D.Comp.Laws
(1929) 2542; Utah Rev.Stat.Ann. (1933) 104-39-2, 104-24-18;
Va.Rules of Court, Rule 22, 163 Va. v, xii (1935); Wis.Stat. (1935)
270.39. Compare N.Y.C.P.A. (1937) 583, 445, and 446, all as amended by
L. 1936, ch. 915. Rule 51 deals with objections to the court's
instructions to the jury.
U.S.C., Title 28, (former) 776 (Bill of exceptions;
authentication; signing of by judge) and (former) 875 (Review of
findings in cases tried without a jury) are superseded insofar as they
provide for formal exceptions, and a bill of exceptions.
The amendments are technical. No substantive change is intended.
Exceptions unnecessary, see rule 51, Title 18, Appendix, Crimes and
Criminal Procedure.
Form and admissibility of evidence, see rule 43.
Harmless error, see rule 61.
Objections to instructions, see rule 51.
28 USC Rule 47. Selection of Jurors
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Examination of Jurors. The court may permit the parties or their
attorneys to conduct the examination of prospective jurors or may itself
conduct the examination. In the latter event, the court shall permit
the parties or their attorneys to supplement the examination by such
further inquiry as it deems proper or shall itself submit to the
prospective jurors such additional questions of the parties or their
attorneys as it deems proper.
(b) Peremptory Challenges. The court shall allow the number of
peremptory challenges provided by 28 U.S.C. 1870.
(c) Excuse. The court may for good cause excuse a juror from service
during trial or deliberation.
(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff.
Dec. 1, 1991.)
Note to Subdivision (a). This permits a practice found very useful
by Federal trial judges. For an example of a state practice in which
the examination by the court is supplemented by further inquiry by
counsel, see Rule 27 of the Code of Rules for the District Courts of
Minnesota, 186 Minn. xxxiii (1932), 3 Minn.Stat. (Mason, supp. 1936)
Appendix, 4, p. 1062.
Note to Subdivision (b). The provision for an alternate juror is one
often found in modern state codes. See N.C.Code (1935) 2330(a); Ohio
Gen.Code Ann. (Page, Supp. 1926-1935) 11419-47; Pa.Stat.Ann. (Purdon,
Supp. 1936) Title 17, 1153; compare U.S.C., Title 28, (former) 417a
(Alternate jurors in criminal trials); 1 N.J.Rev.Stat. (1937) 2:91A-1,
2:91A-2, 2:91A-3.
Provisions for qualifying, drawing, and challenging of jurors are
found in U.S.C., Title 28:
411 (now 1861) (Qualifications and exemptions) 412 (now 1864)
(Manner of drawing) 413 (now 1865) (Apportioned in district) 415
(see 1862) (Not disqualified because of race or color) 416 (now
1867) (Venire; service and return) 417 (now 1866) (Talesmen for
petit jurors) 418 (now 1866) (Special juries) 423 (now 1869)
(Jurors not to serve more than once a year) 424 (now 1870)
(Challenges)
and D.C. Code (1930) Title 18, 341-360 (Juries and Jury Commission)
and Title 6, 366 (Peremptory challenges.
The revision of this subdivision brings it into line with the
amendment of Rule 24(c) of the Federal Rules of Criminal Procedure.
That rule previously allowed four alternate jurors, as contrasted with
the two allowed in civil cases, and the amendments increase the number
of a maximum of six in all cases. The Advisory Committee's Note to
amended Criminal Rule 24(c) points to experience demonstrating that four
alternates may not be enough in some lengthy criminal trials; and the
same may be said of civil trials. The Note adds:
''The words 'or are found to be' are added to the second sentence to
make clear that an alternate juror may be called in the situation where
it is first discovered during the trial that a juror was unable or
disqualified to preform his duties at the time he was sworn.''
Subdivision (b). The former provision for alternate jurors is
stricken and the institution of the alternate juror abolished.
The former rule reflected the long-standing assumption that a jury
would consist of exactly twelve members. It provided for additional
jurors to be used as substitutes for jurors who are for any reason
excused or disqualified from service after the commencement of the
trial. Additional jurors were traditionally designated at the outset of
the trial, and excused at the close of the evidence if they had not been
promoted to full service on account of the elimination of one of the
original jurors.
The use of alternate jurors has been a source of dissatisfaction with
the jury system because of the burden it places on alternates who are
required to listen to the evidence but denied the satisfaction of
participating in its evaluation.
Subdivision (c). This provision makes it clear that the court may in
appropriate circumstances excuse a juror during the jury deliberations
without causing a mistrial. Sickness, family emergency or juror
misconduct that might occasion a mistrial are examples of appropriate
grounds for excusing a juror. It is not grounds for the dismissal of a
juror that the juror refuses to join with fellow jurors in reaching a
unanimous verdict.
Trial jurors, see rule 24, Title 18, Appendix, Crimes and Criminal
Procedure.
Challenges of jurors, see section 1870 of this title.
Jury trial of right, see rule 38.
Manner of drawing trial jurors, see section 1864 of this title.
Qualifications of jurors, see section 1861 of this title.
28 USC Rule 48. Number of Jurors -- Participation in Verdict
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The court shall seat a jury of not fewer than six and not more than
twelve members and all jurors shall participate in the verdict unless
excused from service by the court pursuant to Rule 47(c). Unless the
parties otherwise stipulate, (1) the verdict shall be unanimous and (2)
no verdict shall be taken from a jury reduced in size to fewer than six
members.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991.)
For provisions in state codes, compare Utah Rev.Stat.Ann. (1933)
48-O-5 (In civil cases parties may agree in open court on lesser number
of jurors); 2 Wash.Rev.Stat.Ann. (Remington, 1932) 323 (Parties may
consent to any number of jurors not less than three).
The former rule was rendered obsolete by the adoption in many
districts of local rules establishing six as the standard size for a
civil jury.
It appears that the minimum size of a jury consistent with the
Seventh Amendment is six. Cf. Ballew v. Georgia, 435 U.S. 223 (1978)
(holding that a conviction based on a jury of less than six is a denial
of due process of law). If the parties agree to trial before a smaller
jury, a verdict can be taken, but the parties should not other than in
exceptional circumstances be encouraged to waive the right to a jury of
six, not only because of the constitutional stature of the right, but
also because smaller juries are more erratic and less effective in
serving to distribute responsibility for the exercise of judicial power.
Because the institution of the alternate juror has been abolished by
the proposed revision of Rule 47, it will ordinarily be prudent and
necessary, in order to provide for sickness or disability among jurors,
to seat more than six jurors. The use of jurors in excess of six
increases the representativeness of the jury and harms no interest of a
party. Ray v. Parkside Surgery Center, 13 F.R. Serv. 585 (6th cir.
1989).
If the court takes the precaution of seating a jury larger than six,
an illness occurring during the deliberation period will not result in a
mistrial, as it did formerly, because all seated jurors will participate
in the verdict and a sufficient number will remain to render a unanimous
verdict of six or more.
In exceptional circumstances, as where a jury suffers depletions
during trial and deliberation that are greater than can reasonably be
expected, the parties may agree to be bound by a verdict rendered by
fewer than six jurors. The court should not, however, rely upon the
availability of such an agreement, for the use of juries smaller than
six is problematic for reasons fully explained in Ballew v. Georgia,
supra.
Advisory jury, see rule 39.
Jury trial of right, see rule 38.
Right to jury trial, see Const. Amend. VII.
28 USC Rule 49. Special Verdicts and Interrogatories
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Special Verdicts. The court may require a jury to return only a
special verdict in the form of a special written finding upon each issue
of fact. In that event the court may submit to the jury written
questions susceptible of categorical or other brief answer or may submit
written forms of the several special findings which might properly be
made under the pleadings and evidence; or it may use such other method
of submitting the issues and requiring the written findings thereon as
it deems most appropriate. The court shall give to the jury such
explanation and instruction concerning the matter thus submitted as may
be necessary to enable the jury to make its findings upon each issue.
If in so doing the court omits any issue of fact raised by the pleadings
or by the evidence, each party waives the right to a trial by jury of
the issue so omitted unless before the jury retires the party demands
its submission to the jury. As to an issue omitted without such demand
the court may make a finding; or, if it fails to do so, it shall be
deemed to have made a finding in accord with the judgment on the special
verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The
court may submit to the jury, together with appropriate forms for a
general verdict, written interrogatories upon one or more issues of fact
the decision of which is necessary to a verdict. The court shall give
such explanation or instruction as may be necessary to enable the jury
both to make answers to the interrogatories and to render a general
verdict, and the court shall direct the jury both to make written
answers and to render a general verdict. When the general verdict and
the answers are harmonious, the appropriate judgment upon the verdict
and answers shall be entered pursuant to Rule 58. When the answers are
consistent with each other but one or more is inconsistent with the
general verdict, judgment may be entered pursuant to Rule 58 in
accordance with the answers, notwithstanding the general verdict, or the
court may return the jury for further consideration of its answers and
verdict or may order a new trial. When the answers are inconsistent
with each other and one or more is likewise inconsistent with the
general verdict, judgment shall not be entered, but the court shall
return the jury for further consideration of its answers and verdict or
shall order a new trial.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.
Aug. 1, 1987.)
The Federal courts are not bound to follow state statutes authorizing
or requiring the court to ask a jury to find a special verdict or to
answer interrogatories. Victor American Fuel Co. v. Peccarich, 209
Fed. 568 (C.C.A.8th, 1913) cert. den. 232 U.S. 727, 34 S.Ct. 603, 58
L.Ed. 817 (1914); Spokane and I. E. R. Co. v. Campbell, 217 Fed. 518
(C.C.A.9th, 1914), affd. 241 U.S. 497, 36 S.Ct. 683, 60 L.Ed. 1125
(1916); Simkins, Federal Practice (1934) 186. The power of a
territory to adopt by statute the practice under Subdivision (b) has
been sustained. Walker v. New Mexico and Southern Pacific R. R., 165
U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837 (1897); Southwestern Brewery and
Ice Co. v. Schmidt, 226 U.S. 162, 33 S.Ct. 68, 57 L.Ed. 170 (1912).
Compare Wis.Stat. (1935) 270.27, 270.28 and 270.30 Green, A New
Development in Jury Trial (1927), 13 A.B.A.J. 715; Morgan, A Brief
History of Special Verdicts and Special Interrogatories, 1923, 32 Yale
L.J. 575.
The provisions of U.S.C., Title 28, (former) 400(3) (Declaratory
judgments authorized; procedure) permitting the submission of issues of
fact to a jury are covered by this rule.
This amendment conforms to the amendment of Rule 58. See the
Advisory Committee's Note to Rule 58, as amended.
The amendments are technical. No substantive change is intended.
Advisory jury, see rule 39.
New trial, see rule 59.
28 USC Rule 50. Judgment as a Matter of Law in Actions Tried by Jury;
Alternative Motion for New Trial; Conditional Rulings
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard with
respect to an issue and there is no legally sufficient evidentiary basis
for a reasonable jury to have found for that party with respect to that
issue, the court may grant a motion for judgment as a matter of law
against that party on any claim, counterclaim, cross-claim, or third
party claim that cannot under the controlling law be maintained without
a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time
before submission of the case to the jury. Such a motion shall specify
the judgment sought and the law and the facts on which the moving party
is entitled to the judgment.
(b) Renewal of Motion for Judgment After Trial; Alternative Motion
for New Trial. Whenever a motion for a judgment as a matter of law made
at the close of all the evidence is denied or for any reason is not
granted, the court is deemed to have submitted the action to the jury
subject to a later determination of the legal questions raised by the
motion. Such a motion may be renewed by service and filing not later
than 10 days after entry of judgment. A motion for a new trial under
Rule 59 may be joined with a renewal of the motion for judgment as a
matter of law, or a new trial may be requested in the alternative. If a
verdict was returned, the court may, in disposing of the renewed motion,
allow the judgment to stand or may reopen the judgment and either order
a new trial or direct the entry of judgment as a matter of law. If no
verdict was returned, the court may, in disposing of the renewed motion,
direct the entry of judgment as a matter of law or may order a new
trial.
(c) Same: Conditional Rulings on Grant of Motion for Judgment as a
Matter of Law.
(1) If the renewed motion for judgment as a matter of law is granted,
the court shall also rule on the motion for a new trial, if any, by
determining whether it should be granted if the judgment is thereafter
vacated or reversed, and shall specify the grounds for granting or
denying the motion for the new trial. If the motion for a new trial is
thus conditionally granted, the order thereon does not affect the
finality of the judgment. In case the motion for a new trial has been
conditionally granted and the judgment is reversed on appeal, the new
trial shall proceed unless the appellate court has otherwise ordered.
In case the motion for a new trial has been conditionally denied, the
appellee on appeal may assert error in that denial; and if the judgment
is reversed on appeal, subsequent proceedings shall be in accordance
with the order of the appellate court.
(2) The party against whom judgment as a matter of law has been
rendered may serve a motion for a new trial pursuant to Rule 59 not
later than 10 days after entry of the judgment.
(d) Same: Denial of Motion for Judgment as a Matter of Law. If the
motion for judgment as a matter of law is denied, the party who
prevailed on that motion may, as appellee, assert grounds entitling the
party to a new trial in the event the appellate court concludes that the
trial court erred in denying the motion for judgment. If the appellate
court reverses the judgment, nothing in this rule precludes it from
determining that the appellee is entitled to a new trial, or from
directing the trial court to determine whether a new trial shall be
granted.
(As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.
Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)
Note to Subdivision (a). The present federal rule is changed to the
extent that the formality of an express reservation of rights against
waiver is no longer necessary. See Sampliner v. Motion Picture Patents
Co., 254 U.S. 233, 41 S.Ct. 79, 65 L.Ed. 240 (1920); Union Indemnity
Co. v. United States, 74 F.2d 645 (C.C.A.6th, 1935). The requirement
that specific grounds for the motion for a directed verdict must be
stated settles a conflict in the federal cases. See Simkins, Federal
Practice (1934) 189.
Note to Subdivision (b). For comparable state practice upheld under
the conformity act, see Baltimore and Carolina Line v. Redman, 295 U.S.
654, 55 S.Ct. 890, 79 L.Ed. 1636 (1935); compare Slocum v. New York
Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, Ann.Cas.
1914D, 1029 (1913).
See Northern Ry. Co. v. Page, 274 U.S. 65, 47 S.Ct. 491, 71 L.Ed.
929 (1927), following the Massachusetts practice of alternative
verdicts, explained in Thorndike, Trial by Jury in United States Courts,
26 Harv.L.Rev. 732 (1913). See also Thayer, Judicial Administration, 63
U. of Pa.L.Rev. 585, 600-601, and note 32 (1915); Scott, Trial by Jury
and the Reform of Civil Procedure, 31 Harv.L.Rev. 669, 685 (1918);
Comment, 34 Mich.L.Rev. 93, 98 (1935).
Subdivision (a). The practice, after the court has granted a motion
for a directed verdict, of requiring the jury to express assent to a
verdict they did not reach by their own deliberations serves no useful
purpose and may give offense to the members of the jury. See 2B Barron
& Holtzoff, Federal Practice and Procedure 1072, at 367 (Wright ed.
1961); Blume, Origin and Development of the Directed Verdict, 48
Mich.L.Rev. 555, 582-85, 589-90 (1950). The final sentence of the
subdivision, added by amendment, provides that the court's order
granting a motion for a directed verdict is effective in itself, and
that no action need be taken by the foreman or other members of the
jury. See Ariz.R.Civ.P. 50(c); cf. Fed.R.Crim.P. 29 (a). No change is
intended in the standard to be applied in deciding the motion. To
assure this interpretation, and in the interest of simplicity, the
traditional term, ''directed verdict,'' is retained.
Subdivision (b). A motion for judgment notwithstanding the verdict
will not lie unless it was preceded by a motion for a directed verdict
made at the close of all the evidence.
The amendment of the second sentence of this subdivision sets the
time limit for making the motion for judgment n.o.v. at 10 days after
the entry of judgment, rather than 10 days after the reception of the
verdict. Thus the time provision is made consistent with that contained
in Rule 59(b) (time for motion for new trial) and Rule 52(b) (time for
motion to amend findings by the court).
Subdivision (c) deals with the situation where a party joins a motion
for a new trial with his motion for judgment n.o.v. or prays for a new
trial in the alternative, and the motion for judgment n.o.v. is
granted. The procedure to be followed in making rulings on the motion
for the new trial, and the consequences of the rulings thereon, were
partly set out in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253,
61 S.Ct. 189, 85 L.Ed. 147 (1940), and have been further elaborated in
later cases. See Cone v. West Virginia Pulp & Paper Co. , 330 U.S.
212, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Globe Liquor Co., Inc. v. San
Roman, 332 U.S. 571, 68 S.Ct. 246, 92 L.Ed. 177 (1948); Fountain v.
Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971 (1949); Johnson v.
New York, N.H. & H.R.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77
(1952). However, courts as well as counsel have often misunderstood the
procedure, and it will be helpful to summarize the proper practice in
the text of the rule. The amendments do not alter the effects of a jury
verdict or the scope of appellate review.
In the situation mentioned, subdivision (c)(1) requires that the
court make a ''conditional'' ruling on the new-trial motion, i.e., a
ruling which goes on the assumption that the motion for judgment n.o.v.
was erroneously granted and will be reversed or vacated; and the court
is required to state its grounds for the conditional ruling.
Subdivision (c)(1) then spells out the consequences of a reversal of the
judgment in the light of the conditional ruling on the new-trial motion.
If the motion for new trial has been conditionally granted, and the
judgment is reversed, ''the new trial shall proceed unless the appellate
court has otherwise ordered.'' The party against whom the judgment
n.o.v. was entered below may, as appellant, besides seeking to overthrow
that judgment, also attack the conditional grant of the new trial. And
the appellate court, if it reverses the judgment n.o.v., may in an
appropriate case also reverse the conditional grant of the new trial and
direct that judgment be entered on the verdict. See Bailey v. Slentz,
189 F.2d 406 (10th Cir. 1951); Moist Cold Refrigerator Co. v. Lou
Johnson Co. , 249 F.2d 246 (9th Cir. 1957), cert. denied, 356 U.S. 968,
78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958); Peters v. Smith, 221 F.2d 721
(3d Cir.1955); Dailey v. Timmer, 292 F.2d 824 (3d Cir. 1961),
explaining Lind v. Schenley Industries, Inc. , 278 F.2d 79 (3d Cir.),
cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960); Cox v.
Pennsylvania R.R., 120 A.2d 214 (D.C.Mun.Ct.App. 1956); 3 Barron &
Holtzoff, Federal Practice and Procedure 1302.1 at 346-47 (Wright ed.
1958); 6 Moore's Federal Practice 59.16 at 3915 n. 8a (2d ed. 1954).
If the motion for a new trial has been conditionally denied, and the
judgment is reversed, ''subsequent proceedings shall be in accordance
with the order of the appellate court.'' The party in whose favor
judgment n.o.v. was entered below may, as appellee, besides seeking to
uphold that judgment, also urge on the appellate court that the trial
court committed error in conditionally denying the new trial. The
appellee may assert this error in his brief, without taking a
cross-appeal. Cf. Patterson v. Pennsylvania R.R., 238 F.2d 645, 650
(6th Cir. 1956); Hughes v. St. Louis Nat. L. Baseball Club, Inc. ,
359 Mo. 993, 997, 224 S.W.2d 989, 992 (1949). If the appellate court
concludes that the judgment cannot stand, but accepts the appellee's
contention that there was error in the conditional denial of the new
trial, it may order a new trial in lieu of directing the entry of
judgment upon the verdict.
Subdivision (c)(2), which also deals with the situation where the
trial court has granted the motion for judgment n.o.v., states that the
verdict-winner may apply to the trial court for a new trial pursuant to
Rule 59 after the judgment n.o.v. has been entered against him. In
arguing to the trial court in opposition to the motion for judgment
n.o.v., the verdict-winner may, and often will, contend that he is
entitled, at the least, to a new trial, and the court has a range of
discretion to grant a new trial or (where plaintiff won the verdict) to
order a dismissal of the action without prejudice instead of granting
judgment n.o.v. See Cone v. West Virginia Pulp & Paper Co., supra, 330
U.S. at 217, 218 67 S.Ct. at 755, 756, 91 L.Ed. 849. Subdivision (c)(2)
is a reminder that the verdict-winner is entitled, even after entry of
judgment n.o.v. against him, to move for a new trial in the usual
course. If in these circumstances the motion is granted, the judgment
is superseded.
In some unusual circumstances, however, the grant of the new-trial
motion may be only conditional, and the judgment will not be superseded.
See the situation in Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960)
(upon a verdict for plaintiff, defendant moves for and obtains judgment
n.o.v.; plaintiff moves for a new trial on the ground of inadequate
damages; trial court might properly have granted plaintiff's motion,
conditional upon reversal of the judgment n.o.v.).
Even if the verdict-winner makes no motion for a new trial, he is
entitled upon his appeal from the judgment n.o.v. not only to urge that
that judgment should be reversed and judgment entered upon the verdict,
but that errors were committed during the trial which at the least
entitle him to a new trial.
Subdivision (d) deals with the situation where judgment has been
entered on the jury verdict, the motion for judgment n.o.v. and any
motion for a new trial having been denied by the trial court. The
verdict-winner, as appellee, besides seeking to uphold the judgment, may
urge upon the appellate court that in case the trial court is found to
have erred in entering judgment on the verdict, there are grounds for
granting him a new trial instead of directing the entry of judgment for
his opponent. In appropriate cases the appellate court is not precluded
from itself directing that a new trial be had. See Weade v. Dichmann,
Wright & Pugh, Inc. , 337 U.S. 801, 69 S.Ct. 1326, 93 L.Ed. 1704 (1949).
Nor is it precluded in proper cases from remanding the case for a
determination by the trial court as to whether a new trial should be
granted. The latter course is advisable where the grounds urged are
suitable for the exercise of trial court discretion.
Subdivision (d) does not attempt a regulation of all aspects of the
procedure where the motion for judgment n.o.v. and any accompanying
motion for a new trial are denied, since the problems have not been
fully canvassed in the decisions and the procedure is in some respects
still in a formative stage. It is, however, designed to give guidance
on certain important features of the practice.
The amendments are technical. No substantive change is intended.
Subdivision (a). The revision of this subdivision aims to facilitate
the exercise by the court of its responsibility to assure the fidelity
of its judgment to the controlling law, a responsibility imposed by the
Due Process Clause of the Fifth Amendment. Cf. Galloway v. United
States, 319 U.S. 372 (1943).
The revision abandons the familiar terminology of direction of
verdict for several reasons. The term is misleading as a description of
the relationship between judge and jury. It is also freighted with
anachronisms some of which are the subject of the text of former
subdivision (a) of this rule that is deleted in this revision. Thus, it
should not be necessary to state in the text of this rule that a motion
made pursuant to it is not a waiver of the right to jury trial, and only
the antiquities of directed verdict practice suggest that it might have
been. The term ''judgment as a matter of law'' is an almost equally
familiar term and appears in the text of Rule 56; its use in Rule 50
calls attention to the relationship between the two rules. Finally, the
change enables the rule to refer to preverdict and post-verdict motions
with a terminology that does not conceal the common identity of two
motions made at different times in the proceeding.
If a motion is denominated a motion for directed verdict or for
judgment notwithstanding the verdict, the party's error is merely
formal. Such a motion should be treated as a motion for judgment as a
matter of law in accordance with this rule.
Paragraph (a)(1) articulates the standard for the granting of a
motion for judgment as a matter of law. It effects no change in the
existing standard. That existing standard was not expressed in the
former rule, but was articulated in long-standing case law. See
generally Cooper, Directions for Directed Verdicts: A Compass for
Federal Courts, 55 MINN. L. REV. 903 (1971). The expressed standard
makes clear that action taken under the rule is a performance of the
court's duty to assure enforcement of the controlling law and is not an
intrusion on any responsibility for factual determinations conferred on
the jury by the Seventh Amendment or any other provision of federal law.
Because this standard is also used as a reference point for entry of
summary judgment under 56(a), it serves to link the two related
provisions.
The revision authorizes the court to perform its duty to enter
judgment as a matter of law at any time during the trial, as soon as it
is apparent that either party is unable to carry a burden of proof that
is essential to that party's case. Thus, the second sentence of
paragraph (a)(1) authorizes the court to consider a motion for judgment
as a matter of law as soon as a party has completed a presentation on a
fact essential to that party's case. Such early action is appropriate
when economy and expedition will be served. In no event, however,
should the court enter judgment against a party who has not been
apprised of the materiality of the dispositive fact and been afforded an
opportunity to present any available evidence bearing on that fact. In
order further to facilitate the exercise of the authority provided by
this rule, Rule 16 is also revised to encourage the court to schedule an
order of trial that proceeds first with a presentation on an issue that
is likely to be dispositive, if such an issue is identified in the
course of pretrial. Such scheduling can be appropriate where the court
is uncertain whether favorable action should be taken under Rule 56.
Thus, the revision affords the court the alternative of denying a motion
for summary judgment while scheduling a separate trial of the issue
under Rule 42(b) or scheduling the trial to begin with a presentation on
that essential fact which the opposing party seems unlikely to be able
to maintain.
Paragraph (a)(2) retains the requirement that a motion for judgment
be made prior to the close of the trial, subject to renewal after a jury
verdict has been rendered. The purpose of this requirement is to assure
the responding party an opportunity to cure any deficiency in that
party's proof that may have been overlooked until called to the party's
attention by a late motion for judgment. Cf. Farley Transp. Co. v.
Santa Fe Trail Transp. Co., 786 F.2d 1342 (9th Cir. 1986) (''If the
moving party is then permitted to make a later attack on the evidence
through a motion for judgment notwithstanding the verdict or an appeal,
the opposing party may be prejudiced by having lost the opportunity to
present additional evidence before the case was submitted to the
jury''); Benson v. Allphin, 786 F.2d 268 (7th Cir. 1986) (''the motion
for directed verdict at the close of all the evidence provides the
nonmovant an opportunity to do what he can to remedy the deficiencies in
his case . . .); McLaughlin v. The Fellows Gear Shaper Co. , 4
F.R.Serv. 3d 607 (3d Cir. 1986) (per Adams, J., dissenting: ''This Rule
serves important practical purposes in ensuring that neither party is
precluded from presenting the most persuasive case possible and in
preventing unfair surprise after a matter has been submitted to the
jury''). At one time, this requirement was held to be of constitutional
stature, being compelled by the Seventh Amendment. Cf. Slocum v. New
York Insurance Co. , 228 U.S. 364 (1913). But cf. Baltimore & Carolina
Line v. Redman, 295 U.S. 654 (1935).
The second sentence of paragraph (a)(2) does impose a requirement
that the moving party articulate the basis on which a judgment as a
matter of law might be rendered. The articulation is necessary to
achieve the purpose of the requirement that the motion be made before
the case is submitted to the jury, so that the responding party may seek
to correct any overlooked deficiencies in the proof. The revision thus
alters the result in cases in which courts have used various techniques
to avoid the requirement that a motion for a directed verdict be made as
a predicate to a motion for judgment notwithstanding the verdict. E.g.,
Benson v. Allphin, 788 F.2d 268 (7th cir. 1986) (''this circuit has
allowed something less than a formal motion for directed verdict to
preserve a party's right to move for judgment notwithstanding the
verdict''). See generally 9 WRIGHT & MILLER, FEDERAL PRACTICE AND
PROCEDURE 2537 (1971 and Supp.). The information required with the
motion may be supplied by explicit reference to materials and argument
previously supplied to the court.
This subdivision deals only with the entry of judgment and not with
the resolution of particular factual issues as a matter of law. The
court may, as before, properly refuse to instruct a jury to decide an
issue if a reasonable jury could on the evidence presented decide that
issue in only one way.
Subdivision (b). This provision retains the concept of the former
rule that the post-verdict motion is a renewal of an earlier motion made
at the close of the evidence. One purpose of this concept was to avoid
any question arising under the Seventh Amendment. Montgomery Ward & Co.
v. Duncan, 311 U.S. 243 (1940). It remains useful as a means of
defining the appropriate issue posed by the post-verdict motion. A
post-trial motion for judgment can be granted only on grounds advanced
in the pre-verdict motion. E.g., Kutner Buick, Inc. v. American Motors
Corp. , 848 F.2d 614 (3d cir. 1989).
Often it appears to the court or to the moving party that a motion
for judgment as a matter of law made at the close of the evidence should
be reserved for a post-verdict decision. This is so because a jury
verdict for the moving party moots the issue and because a pre-verdict
ruling gambles that a reversal may result in a new trial that might have
been avoided. For these reasons, the court may often wisely decline to
rule on a motion for judgment as a matter of law made at the close of
the evidence, and it is not inappropriate for the moving party to
suggest such a postponement of the ruling until after the verdict has
been rendered.
In ruling on such a motion, the court should disregard any jury
determination for which there is no legally sufficient evidentiary basis
enabling a reasonable jury to make it. The court may then decide such
issues as a matter of law and enter judgment if all other material
issues have been decided by the jury on the basis of legally sufficient
evidence, or by the court as a matter of law.
The revised rule is intended for use in this manner with Rule 49.
Thus, the court may combine facts established as a matter of law either
before trial under Rule 56 or at trial on the basis of the evidence
presented with other facts determined by the jury under instructions
provided under Rule 49 to support a proper judgment under this rule.
This provision also retains the former requirement that a post-trial
motion under the rule must be made within 10 days after entry of a
contrary judgment. The renewed motion must be served and filed as
provided by Rule 5. A purpose of this requirement is to meet the
requirements of F.R.App.P. 4(a)(4).
Subdivision (c). Revision of this subdivision conforms the language
to the change in diction set forth in subdivision (a) of this revised
rule.
Subdivision (d). Revision of this subdivision conforms the language
to that of the previous subdivisions.
Motions for directed verdict abolished in criminal cases, see rule
29, Title 18, Appendix, Crimes and Criminal Procedure.
Grounds for new trial, see rule 59.
Involuntary dismissal at end of plaintiff's case, see rule 41.
28 USC Rule 51. Instructions to Jury: Objection
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
At the close of the evidence or at such earlier time during the trial
as the court reasonably directs, any party may file written requests
that the court instruct the jury on the law as set forth in the
requests. The court shall inform counsel of its proposed action upon
the requests prior to their arguments to the jury. The court, at its
election, may instruct the jury before or after argument, or both. No
party may assign as error the giving or the failure to give an
instruction unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter objected to and the
grounds of the objection. Opportunity shall be given to make the
objection out of the hearing of the jury.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Supreme Court Rule 8 requires exceptions to the charge of the court
to the jury which shall distinctly state the several matters of law in
the charge to which exception is taken. Similar provisions appear in
the rules of the various Circuit Courts of Appeals.
Although Rule 51 in its present form specifies that the court shall
instruct the jury only after the arguments of the parties are completed,
in some districts (typically those in states where the practice is
otherwise) it is common for the parties to stipulate to instruction
before the arguments. The purpose of the amendment is to give the court
discretion to instruct the jury either before or after argument. Thus,
the rule as revised will permit resort to the long-standing federal
practice or to an alternative procedure, which has been praised because
it gives counsel the opportunity to explain the instructions, argue
their application to the facts and thereby give the jury the maximum
assistance in determining the issues and arriving at a good verdict on
the law and the evidence. As an ancillary benefit, this approach aids
counsel by supplying a natural outline so that arguments may be directed
to the essential fact issues which the jury must decide. See generally
Raymond, Merits and Demerits of the Missouri System of Instructing
Juries, 5 St. Louis U.L.J. 317 (1959). Moreover, if the court
instructs before an argument, counsel then know the precise words the
court has chosen and need not speculate as to the words the court will
later use in its instructions. Finally, by instructing ahead of
argument the court has the attention of the jurors when they are fresh
and can given their full attention to the court's instructions. It is
more difficult to hold the attention of jurors after lengthy arguments.
Formal exceptions unnecessary, see rule 46.
Motion for directed verdict, see rule 50.
28 USC Rule 52. Findings by the Court; Judgment on Partial Findings
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Effect. In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts specially and
state separately its conclusions of law thereon, and judgment shall be
entered pursuant to Rule 58; and in granting or refusing interlocutory
injunctions the court shall similarly set forth the findings of fact and
conclusions of law which constitute the grounds of its action. Requests
for findings are not necessary for purposes of review. Findings of
fact, whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the
witnesses. The findings of a master, to the extent that the court
adopts them, shall be considered as the findings of the court. It will
be sufficient if the findings of fact and conclusions of law are stated
orally and recorded in open court following the close of the evidence or
appear in an opinion or memorandum of decision filed by the court.
Findings of fact and conclusions of law are unnecessary on decisions of
motions under Rules 12 or 56 or any other motion except as provided in
subdivision (c) of this rule.
(b) Amendment. Upon motion of a party made not later than 10 days
after entry of judgment the court may amend its findings or make
additional findings and may amend the judgment accordingly. The motion
may be made with a motion for a new trial pursuant to Rule 59. When
findings of fact are made in actions tried by the court without a jury,
the question of the sufficiency of the evidence to support the findings
may thereafter be raised whether or not the party raising the question
has made in the district court an objection to such findings or has made
a motion to amend them or a motion for judgment.
(c) Judgment on Partial Findings. If during a trial without a jury a
party has been fully heard with respect to an issue and the court finds
against the party on that issue, the court may enter judgment as a
matter of law against that party on any claim, counterclaim, cross-claim
or third-party claim that cannot under the controlling law be maintained
or defeated without a favorable finding on that issue, or the court may
decline to render any judgment until the close of all the evidence.
Such a judgment shall be supported by findings of fact and conclusions
of law as required by subdivision (a) of this rule.
(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.)
See (former) Equity Rule 70 1/2, as amended Nov. 25, 1935 (Findings
of Fact and Conclusions of Law), and U.S.C., Title 28, (former) 764
(Opinion, findings, and conclusions in action against United States)
which are substantially continued in this rule. The provisions of
U.S.C., Title 28, (former) 773 (Trial of issues of fact; by court)
and (former) 875 (Review in cases tried without a jury) are superseded
insofar as they provide a different method of finding facts and a
different method of appellate review. The rule stated in the third
sentence of Subdivision (a) accords with the decisions on the scope of
the review in modern federal equity practice. It is applicable to all
classes of findings in cases tried without a jury whether the finding is
of a fact concerning which there was conflict of testimony, or of a fact
deduced or inferred from uncontradicted testimony. See Silver King
Coalition Mines, Co. v. Silver King Consolidated Mining Co., 204 Fed.
166 (C.C.A.8th, 1913), cert. den. 229 U.S. 624, 33 S.Ct. 1051, 57 L.Ed.
1356 (1913); Warren v. Keep, 155 U.S. 265, 15 S.Ct. 83, 39 L.Ed. 144
(1894); Furrer v. Ferris, 145 U.S. 132, 12 S.Ct. 821, 36 L.Ed. 649
(1892); Tilghman v. Proctor, 125 U.S. 136, 149, 8 S.Ct. 894, 31 L.Ed.
664 (1888); Kimberly v. Arms, 129 U.S. 512, 524, 9 S.Ct. 355, 32 L.Ed.
764 (1889). Compare Kaeser & Blair, Inc., v. Merchants' Ass'n, 64 F.2d
575, 576 (C.C.A.6th, 1933); Dunn v. Trefry, 260 Fed. 147, 148
(C.C.A.1st, 1919).
In the following states findings of fact are required in all cases
tried without a jury (waiver by the parties being permitted as indicated
at the end of the listing): Arkansas, Civ.Code (Crawford, 1934) 364;
California, Code Civ.Proc. (Deering, 1937) 632, 634; Colorado, 1
Stat.Ann. (1935) Code Civ.Proc. 232, 291 (in actions before referees
or for possession of and damages to land); Connecticut, Gen.Stats.
5660, 5664; Idaho, 1 Code Ann. (1932) 7-302 through 7-305;
Massachusetts (equity cases), 2 Gen.Laws (Ter.Ed., 1932) ch. 214, 23;
Minnesota, 2 Stat. (Mason, 1927) 9311; Nevada, 4 Comp.Laws (Hillyer,
1929) 8783-8784; New Jersey, Sup.Ct. Rule 113, 2 N.J.Misc. 1197, 1239
(1924); New Mexico, Stat.Ann. (Courtright, 1929) 105-813; North
Carolina, Code (1935) 569; North Dakota, 2 Comp.Laws Ann. (1913)
7641; Oregon, 2 Code Ann. (1930) 2-502; South Carolina, Code
(Michie, 1932) 649; South Dakota, 1 Comp.Laws (1929) 2525-2526;
Utah, Rev.Stat.Ann. (1933) 104-26-2, 104-26-3; Vermont (where jury
trial waived), Pub. Laws (1933) 2069; Washington, 2 Rev.Stat.Ann.
(Remington, 1932) 367; Wisconsin, Stat. (1935) 270.33. The parties
may waive this requirement for findings in California, Idaho, North
Dakota, Nevada, New Mexico, Utah, and South Dakota.
In the following states the review of findings of fact in all
non-jury cases, including jury waived cases, is assimilated to the
equity review: Alabama, Code Ann. (Michie, 1928) 9498, 8599;
California, Code Civ.Proc. (Deering, 1937) 956a; but see 20 Calif.Law
Rev. 171 (1932); Colorado, Johnson v. Kountze, 21 Colo. 486, 43 Pac.
445 (1895), semble; Illinois, Baker v. Hinricks, 359 Ill. 138, 194
N.E. 284 (1934), Weininger v. Metropolitan Fire Ins. Co., 359 Ill.
584, 195 N.E. 420, 98 A.L.R. 169 (1935); Minnesota, State Bank of
Gibbon v. Walter, 167 Minn. 37, 38, 208 N.W. 423 (1926), Waldron v.
Page, 191 Minn. 302, 253 N.W. 894 (1934); New Jersey, N.J.Comp.Stat.
(2 Cum.Supp. 1911-1924) Title 163, 303, as interpreted in Bussy v.
Hatch, 95 N.J.L. 56, 111 A. 546 (1920); New York, York Mortgage
Corporation v. Clotar Const. Corp., 254 N.Y. 128, 133, 172 N.E. 265
(1930); North Dakota, Comp.Laws Ann. (1913) 7846, as amended by
N.D.Laws 1933, ch. 208, Milnor Holding Co. v. Holt, 63 N.D. 362, 370,
248 N.W. 315 (1933); Oklahoma, Wichita Mining and Improvement Co. v.
Hale, 20 Okla. 159, 167, 94 Pac. 530 (1908); South Dakota, Randall v.
Burk Township, 4 S.D. 337, 57 N.W. 4 (1893); Texas, Custard v.
Flowers, 14 S.W.2d 109 (1929); Utah, Rev.Stat.Ann. (1933) 104-41-5;
Vermont, Roberge v. Troy, 105 Vt. 134, 163 Atl. 770 (1933);
Washington, 2 Rev.Stat.Ann. (Remington, 1932) 309-316; McCullough v.
Puget Sound Realty Associates, 76 Wash. 700, 136 Pac. 1146 (1913), but
see Cornwall v. Anderson, 85 Wash. 369, 148 Pac. 1 (1915); West
Virginia, Kinsey v. Carr, 60 W.Va. 449, 55 S.E. 1004 (1906), semble;
Wisconsin, Stat. (1935) 251.09; Campbell v. Sutliff, 193 Wis. 370,
214 N.W. 374 (1927), Gessler v. Erwin Co., 182 Wis. 315, 193 N.W. 363
(1924).
For examples of an assimilation of the review of findings of fact in
cases tried without a jury to the review at law as made in several
states, see Clark and Stone, Review of Findings of Fact, 4 U. of
Chi.L.Rev. 190, 215 (1937).
Note. Subdivision (a). The amended rule makes clear that the
requirement for findings of fact and conclusions of law thereon applies
in a case with an advisory jury. This removes an ambiguity in the rule
as originally stated, but carries into effect what has been considered
its intent. 3 Moore's Federal Practice, 1938, 3119. Hurwitz v.
Hurwitz, App.D.C. 1943, 78 U.S.App.D.C. 66, 136 F.2d 796.
The two sentences added at the end of Rule 52(a) eliminate certain
difficulties which have arisen concerning findings and conclusions. The
first of the two sentences permits findings of fact and conclusions of
law to appear in an opinion or memorandum of decision. See, e.g.,
United States v. One 1941 Ford Sedan, S.D.Tex. 1946, 65 F.Supp 84.
Under original Rule 52(a) some courts have expressed the view that
findings and conclusions could not be incorporated in an opinion.
Detective Comics, Inc. v. Bruns Publication, S.D.N.Y. 1939, 28 F.Supp.
399; Pennsylvania Co. for Insurance on Lives & Granting Annuities v.
Cincinnati & L. E. R. Co., S.D.Ohio 1941, 43 F.Supp. 5; United States
v. Aluminum Co. of America, S.D.N.Y. 1941, 2 F.R.D. 224, 5 Fed.Rules
Serv. 52a.11, Case 3; see also s.c., 44 F.Supp. 97. But, to the
contrary, see Wellman v. United States, D.Mass. 1938, 25 F.Supp. 868;
Cook v. United States, D.Mass. 1939, 26 F.Supp. 253; Proctor v.
White, D.Mass. 1939, 28 F.Supp. 161; Green Valley Creamery, Inc. v.
United States, C.C.A.1st, 1939, 108 F.2d 342. See also Matton Oil
Transfer Corp. v. The Dynamic, C.C.A.2d, 1941, 123 F.2d 999; Carter
Coal Co. v. Litz, C.C.A.4th, 1944, 140 F.2d 934; Woodruff v. Heiser,
C.C.A.10th, 1945, 150 F.2d 869; Coca-Cola Co. v. Busch, E.D.Pa. 1943,
7 Fed.Rules Serv. 59b.2, Case 4; Oglebay, Some Developments in
Bankruptcy Law, 1944, 18 J. of Nat'l Ass'n of Ref. 68, 69. Findings
of fact aid in the process of judgment and in defining for future cases
the precise limitations of the issues and the determination thereon.
Thus they not only aid the appellate court on review, Hurwitz v.
Hurwitz, App.D.C. 1943, 78 U.S.App.D.C. 66, 136 F.2d 796, but they are
an important factor in the proper application of the doctrines of res
judicata and estoppel by judgment Nordbye, Improvements in Statement of
Findings of Fact and Conclusions of Law, 1 F.R.D. 25, 26-27; United
States v. Forness, C.C.A.2d, 1942, 125 F.2d 928; cert. den., 1942, 316
U.S. 694, 62 S.Ct. 1293. These findings should represent the judge's own
determination and not the long, often argumentative statements of
successful counsel. United States v. Forness, supra: United States v.
Crescent Amusement Co., 1944, 323 U.S. 173, 65 S.Ct. 254. Consequently,
they should be a part of the judge's opinion and decision, either stated
therein or stated separately. Matton Oil Transfer Corp. v. The
Dynamic, supra. But the judge need only make brief, definite, pertinent
findings and conclusions upon the contested matters; there is no
necessity for overelaboration of detail or particularization of facts.
United States v. Forness, supra; United States v. Crescent Amusement
Co., supra. See also Petterson Lighterage & Towing Corp. v. New York
Central R. Co., C.C.A.2d, 1942, 126 F.2d 992; Brown Paper Mill Co.,
Inc. v. Irwin, C.C.A.8th, 1943, 134 F.2d 337; Allen Bradley Co. v.
Local Union No. 3, I.B.E.W., C.C.A.2d, 1944, 145 F.2d 215, rev'd on
other grounds, 1945, 325 U.S. 797, 65 S.Ct. 1533; Young v. Murphy,
N.D.Ohio 1946, 9 Fed.Rules Serv. 52a.11, Case 2.
The last sentence of Rule 52(a) as amended will remove any doubt that
findings and conclusions are unnecessary upon decision of a motion,
particularly one under Rule 12 or Rule 56, except as provided in amended
Rule 41(b). As so holding, see Thomas v. Peyser, App.D.C. 1941, 118
F.2d 369; Schad v. Twentieth Century-Fox Corp., C.C.A.3d, 1943, 136
F.2d 991; Prudential Ins. Co. of America v. Goldstein, E.D.N.Y. 1942,
43 F.Supp. 767; Somers Coal Co. v. United States, N.D.Ohio 1942, 2
F.R.D. 532, 6 Fed.Rules Serv. 52a.1, Case 1; Pen-Ken Oil & Gas Corp.
v. Warfield Natural Gas Co., E.D.Ky. 1942, 2 F.R.D. 355, 5 Fed.Rules
Serv. 52a.1, Case 3; also Commentary, Necessity of Findings of Fact,
1941, 4 Fed.Rules Serv. 936.
This amendment conforms to the amendment of Rule 58. See the
Advisory Committee's Note to Rule 58, as amended.
Rule 52(a) has been amended to revise its penultimate sentence to
provide explicitly that the district judge may make the findings of fact
and conclusions of law required in nonjury cases orally. Nothing in the
prior text of the rule forbids this practice, which is widely utilized
by district judges. See Christensen, A Modest Proposal for Immeasurable
Improvement, 64 A.B.A.J. 693 (1978). The objective is to lighten the
burden on the trial court in preparing findings in nonjury cases. In
addition, the amendment should reduce the number of published district
court opinions that embrace written findings.
Rule 52(a) has been amended (1) to avoid continued confusion and
conflicts among the circuits as to the standard of appellate review of
findings of fact by the court, (2) to eliminate the disparity between
the standard of review as literally stated in Rule 52(a) and the
practice of some courts of appeals, and (3) to promote nationwide
uniformity. See Note, Rule 52(a): Appellate Review of Findings of Fact
Based on Documentary or Undisputed Evidence, 49 Va. L. Rev. 506, 536
(1963).
Some courts of appeal have stated that when a trial court's findings
do not rest on demeanor evidence and evaluation of a witness'
credibility, there is no reason to defer to the trial court's findings
and the appellate court more readily can find them to be clearly
erroneous. See, e.g., Marcum v. United States, 621 F.2d 142, 144-45
(5th Cir. 1980). Others go further, holding that appellate review may be
had without application of the ''clearly erroneous'' test since the
appellate court is in as good a position as the trial court to review a
purely documentary record. See, e.g., Atari, Inc. v. North American
Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert.
denied, 459 U.S. 880 (1982); Lydle v. United States, 635 F.2d 763, 765
n. 1 (6th Cir. 1981); Swanson v. Baker Indus., Inc., 615 F.2d 479,
483 (8th Cir. 1980); Taylor v. Lombard, 606 F.2d 371, 372 (2d Cir.
1979), cert. denied, 445 U.S. 946 (1980); Jack Kahn Music Co. v.
Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979); John R.
Thompson Co. v. United States, 477 F.2d 164, 167 (7th Cir. 1973).
A third group has adopted the view that the ''clearly erroneous''
rule applies in all nonjury cases even when findings are based solely on
documentary evidence or on inferences from undisputed facts. See, e.g.,
Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.), cert. denied, 459
U.S. 976 (1982); United States v. Texas Education Agency, 647 F.2d
504, 506-07 (5th Cir. 1981), cert. denied, 454 U.S. 1143 (1982);
Constructora Maza, Inc. v. Banco de Ponce, 616 F.2d 573, 576 (1st Cir.
1980); In re Sierra Trading Corp., 482 F.2d 333, 337 (10th Cir. 1973);
Case v. Morrisette, 475 F.2d 1300, 1306-07 (D.C. Cir. 1973).
The commentators also disagree as to the proper interpretation of the
Rule. Compare Wright, The Doubtful Omniscience of Appellate Courts, 41
Minn. L. Rev. 751, 769-70 (1957) (language and intent of Rule support
view that ''clearly erroneous'' test should apply to all forms of
evidence), and 9 C. Wright & A. Miller, Federal Practice and
Procedure: Civil 2587, at 740 (1971) (language of the Rule is clear),
with 5A J. Moore, Federal Practice 52.04, 2687-88 (2d ed. 1982) (Rule
as written supports broader review of findings based on non-demeanor
testimony).
The Supreme Court has not clearly resolved the issue. See, Bose
Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.
Ct. 1949, 1958 (1984); Pullman Standard v. Swint, 456 U.S. 273, 293
(1982); United States v. General Motors Corp., 384 U.S. 127, 141 n.
16 (1966); United States v. United States Gypsum Co., 333 U.S. 364,
394-96 (1948).
The principal argument advanced in favor of a more searching
appellate review of findings by the district court based solely on
documentary evidence is that the rationale of Rule 52(a) does not apply
when the findings do not rest on the trial court's assessment of
credibility of the witnesses but on an evaluation of documentary proof
and the drawing of inferences from it, thus eliminating the need for any
special deference to the trial court's findings. These considerations
are outweighed by the public interest in the stability and judicial
economy that would be promoted by recognizing that the trial court, not
the appellate tribunal, should be the finder of the facts. To permit
courts of appeals to share more actively in the fact-finding function
would tend to undermine the legitimacy of the district courts in the
eyes of litigants, multiply appeals by encouraging appellate retrial of
some factual issues, and needlessly reallocate judicial authority.
Subdivision (c) is added. It parallels the revised Rule 50(a), but
is applicable to non-jury trials. It authorizes the court to enter
judgment at any time that it can appropriately make a dispositive
finding of fact on the evidence.
The new subdivision replaces part of Rule 41(b), which formerly
authorized a dismissal at the close of the plaintiff's case if the
plaintiff had failed to carry an essential burden of proof.
Accordingly, the reference to Rule 41 formerly made in subdivision (a)
of this rule is deleted.
As under the former Rule 41(b), the court retains discretion to enter
no judgment prior to the close of the evidence.
Judgment entered under this rule differs from a summary judgment
under Rule 56 in the nature of the evaluation made by the court. A
judgment on partial findings is made after the court has heard all the
evidence bearing on the crucial issue of fact, and the finding is
reversible only if the appellate court finds it to be ''clearly
erroneous.'' A summary judgment, in contrast, is made on the basis of
facts established on account of the absence of contrary evidence or
presumptions; such establishments of fact are rulings on questions of
law as provided in Rule 56(a) and are not shielded by the ''clear
error'' standard of review.
Advisory jury, see rule 39.
Extension of time to apply for amendment of findings, limitation on,
see rule 6.
Master's report, inclusion of findings of fact and conclusions of
law, see rule 53.
Motion for new trial, amendment of findings on, see rule 59.
Special verdicts, making of findings on, see rule 49.
Stay of proceedings to enforce judgment pending disposition of motion
to amend, see rule 62.
28 USC Rule 53. Masters
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Appointment and Compensation. The court in which any action is
pending may appoint a special master therein. As used in these rules
the word ''master'' includes a referee, an auditor, an examiner, and an
assessor. The compensation to be allowed to a master shall be fixed by
the court, and shall be charged upon such of the parties or paid out of
any fund or subject matter of the action, which is in the custody and
control of the court as the court may direct; provided that this
provision for compensation shall not apply when a United States
magistrate is designated to serve as a master pursuant to Title 28,
U.S.C. section 636(b)(2). The master shall not retain the master's
report as security for the master's compensation; but when the party
ordered to pay the compensation allowed by the court does not pay it
after notice and within the time prescribed by the court, the master is
entitled to a writ of execution against the delinquent party.
(b) Reference. A reference to a master shall be the exception and
not the rule. In actions to be tried by a jury, a reference shall be
made only when the issues are complicated; in actions to be tried
without a jury, save in matters of account and of difficult computation
of damages, a reference shall be made only upon a showing that some
exceptional condition requires it. Upon the consent of the parties, a
magistrate may be designated to serve as a special master without regard
to the provisions of this subdivision.
(c) Powers. The order of reference to the master may specify or
limit the master's powers and may direct the master to report only upon
particular issues or to do or perform particular acts or to receive and
report evidence only and may fix the time and place for beginning and
closing the hearings and for the filing of the master's report. Subject
to the specifications and limitations stated in the order, the master
has and shall exercise the power to regulate all proceedings in every
hearing before the master and to do all acts and take all measures
necessary or proper for the efficient performance of the master's duties
under the order. The master may require the production before the
master of evidence upon all matters embraced in the reference, including
the production of all books, papers, vouchers, documents, and writings
applicable thereto. The master may rule upon the admissibility of
evidence unless otherwise directed by the order of reference and has the
authority to put witnesses on oath and may examine them and may call the
parties to the action and examine them upon oath. When a party so
requests, the master shall make a record of the evidence offered and
excluded in the same manner and subject to the same limitations as
provided in the Federal Rules of Evidence for a court sitting without a
jury.
(d) Proceedings.
(1) Meetings. When a reference is made, the clerk shall forthwith
furnish the master with a copy of the order of reference. Upon receipt
thereof unless the order of reference otherwise provides, the master
shall forthwith set a time and place for the first meeting of the
parties or their attorneys to be held within 20 days after the date of
the order of reference and shall notify the parties or their attorneys.
It is the duty of the master to proceed with all reasonable diligence.
Either party, on notice to the parties and master, may apply to the
court for an order requiring the master to speed the proceedings and to
make the report. If a party fails to appear at the time and place
appointed, the master may proceed ex parte or, in the master's
discretion, adjourn the proceedings to a future day, giving notice to
the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance of witnesses
before the master by the issuance and service of subpoenas as provided
in Rule 45. If without adequate excuse a witness fails to appear or
give evidence, the witness may be punished as for a contempt and be
subjected to the consequences, penalties, and remedies provided in Rules
37 and 45.
(3) Statement of Accounts. When matters of accounting are in issue
before the master, the master may prescribe the form in which the
accounts shall be submitted and in any proper case may require or
receive in evidence a statement by a certified public accountant who is
called as a witness. Upon objection of a party to any of the items thus
submitted or upon a showing that the form of statement is insufficient,
the master may require a different form of statement to be furnished, or
the accounts or specific items thereof to be proved by oral examination
of the accounting parties or upon written interrogatories or in such
other manner as the master directs.
(e) Report.
(1) Contents and Filing. The master shall prepare a report upon the
matters submitted to the master by the order of reference and, if
required to make findings of fact and conclusions of law, the master
shall set them forth in the report. The master shall file the report
with the clerk of the court and serve on all parties notice of the
filing. In an action to be tried without a jury, unless otherwise
directed by the order of reference, the master shall file with the
report a transcript of the proceedings and of the evidence and the
original exhibits. Unless otherwise directed by the order of reference,
the master shall serve a copy of the report on each party.
(2) In Non-Jury Actions. In an action to be tried without a jury the
court shall accept the master's findings of fact unless clearly
erroneous. Within 10 days after being served with notice of the filing
of the report any party may serve written objections thereto upon the
other parties. Application to the court for action upon the report and
upon objections thereto shall be by motion and upon notice as prescribed
in Rule 6(d). The court after hearing may adopt the report or may
modify it or may reject it in whole or in part or may receive further
evidence or may recommit it with instructions.
(3) In Jury Actions. In an action to be tried by a jury the master
shall not be directed to report the evidence. The master's findings
upon the issues submitted to the master are admissible as evidence of
the matters found and may be read to the jury, subject to the ruling of
the court upon any objections in point of law which may be made to the
report.
(4) Stipulation as to Findings. The effect of a master's report is
the same whether or not the parties have consented to the reference;
but, when the parties stipulate that a master's findings of fact shall
be final, only questions of law arising upon the report shall thereafter
be considered.
(5) Draft Report. Before filing the master's report a master may
submit a draft thereof to counsel for all parties for the purpose of
receiving their suggestions.
(f) /1/ (Application to Magistrate.) A magistrate is subject to this
rule only when the order referring a matter to the magistrate expressly
provides 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.)
Note to Subdivision (a). This is a modification of (former) Equity
Rule 68 (Appointment and Compensation of Masters).
Note to Subdivision (b). This is substantially the first sentence of
(former) Equity Rule 59 (Reference to Master -- Exceptional, Not Usual)
extended to actions formerly legal. See Ex parte Peterson 253 U.S. 300,
40 S.Ct. 543, 64 L.Ed. 919 (1920).
Note to Subdivision (c). This is (former) Equity Rules 62 (Powers of
Master) and 65 (Claimants Before Master Examinable by Him) with slight
modifications. Compare (former) Equity Rules 49 (Evidence Taken Before
Examiners, Etc.) and 51 (Evidence Taken Before Examiners, Etc.).
Note to Subdivision (d). (1) This is substantially a combination of
the second sentence of (former) Equity Rule 59 (Reference to Master --
Exceptional, Not Usual) and (former) Equity Rule 60 (Proceedings Before
Master). Compare (former) Equity Rule 53 (Notice of Taking Testimony
Before Examiner, Etc.).
(2) This is substantially (former) Equity Rule 52 (Attendance of
Witnesses Before Commissioner, Master, or Examiner).
(3) This is substantially (former) Equity Rule 63 (Form of Accounts
Before Master).
Note to Subdivision (e). This contains the substance of (former)
Equity Rules 61 (Master's Report -- Documents Identified but not Set
Forth), 61 1/2 (Master's Report -- Presumption as to Correctness --
Review), and 66 (Return of Master's Report -- Exceptions -- Hearing),
with modifications as to the form and effect of the report and for
inclusion of reports by auditors, referees, and examiners, and
references in actions formerly legal. Compare (former) Equity Rules 49
(Evidence Taken Before Examiners, Etc.) and 67 (Costs on Exceptions to
Master's Report). See Camden v. Stuart, 144 U.S. 104, 12 S.Ct. 585,
36 L.Ed. 363 (1892); Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64
L.Ed. 919 (1920).
These changes are designed to preserve the admiralty practice whereby
difficult computations are referred to a commissioner or assessor,
especially after an interlocutory judgment determining liability. As to
separation of issues for trial see Rule 42(b).
Subdivision (a). The creation of full-time magistrates, who serve at
government expense and have no nonjudicial duties competing for their
time, eliminates the need to appoint standing masters. Thus the prior
provision in Rule 53(a) authorizing the appointment of standing masters
is deleted. Additionally, the definition of ''master'' in subdivision
(a) now eliminates the superseded office of commissioner.
The term ''special master'' is retained in Rule 53 in order to
maintain conformity with 28 U.S.C. 636(b)(2), authorizing a judge to
designate a magistrate ''to serve as a special master pursuant to the
applicable provisions of this title and the Federal Rules of Civil
Procedure for the United States District Courts.'' Obviously, when a
magistrate serves as a special master, the provisions for compensation
of masters are inapplicable, and the amendment to subdivision (a) so
provides.
Although the existence of magistrates may make the appointment of
outside masters unnecessary in many instances, see, e.g., Gautreaux v.
Chicago Housing Authority, 384 F.Supp. 37 (N.D.Ill. 1974), mandamus
denied sub nom., Chicago Housing Authority v. Austin, 511 F.2d 82 (7th
Cir. 1975); Avco Corp. v. American Tel. & Tel. Co., 68 F.R.D. 532
(S.D. Ohio 1975), such masters may prove useful when some special
expertise is desired or when a magistrate is unavailable for lengthy and
detailed supervision of a case.
Subdivision (b). The provisions of 28 U.S.C. 636(b)(2) not only
permit magistrates to serve as masters under Rule 53(b) but also
eliminate the exceptional condition requirement of Rule 53(b) when the
reference is made with the consent of the parties. The amendment to
subdivision (b) brings Rule 53 into harmony with the statute by
exempting magistrates, appointed with the consent of the parties, from
the general requirement that some exceptional condition requires the
reference. It should be noted that subdivision (b) does not address the
question, raised in recent decisional law and commentary, as to whether
the exceptional condition requirement is applicable when private masters
who are not magistrates are appointed with the consent of the parties.
See Silberman, Masters and Magistrates Part II: The American Analogue,
50 N.Y.U. L.Rev. 1297, 1354 (1975).
Subdivision (c). The amendment recognizes the abrogation of Federal
Rule 43(c) by the Federal Rules of Evidence.
Subdivision (f). The new subdivision responds to confusion flowing
from the dual authority for references of pretrial matters to
magistrates. Such references can be made, with or without the consent
of the parties, pursuant to Rule 53 or under 28 U.S.C. 636(b)(1)(A) and
(b)(1)(B). There are a number of distinctions between references made
under the statute and under the rule. For example, under the statute
nondispositive pretrial matters may be referred to a magistrate, without
consent, for final determination with reconsideration by the district
judge if the magistrate's order is clearly erroneous or contrary to law.
Under the rule, however, the appointment of a master, without consent
of the parties, to supervise discovery would require some exceptional
condition (Rule 53(b)) and would subject the proceedings to the report
procedures of Rule 53(e). If an order of reference does not clearly
articulate the source of the court's authority the resulting proceedings
could be subject to attack on grounds of the magistrate's noncompliance
with the provisions of Rule 53. This subdivision therefore establishes
a presumption that the limitations of Rule 53 are not applicable unless
the reference is specifically made subject to Rule 53.
A magistrate serving as a special master under 28 U.S.C. 636(b)(2)
is governed by the provisions of Rule 53, with the exceptional condition
requirement lifted in the case of a consensual reference.
The amendments are technical. No substantive change is intended.
The purpose of the revision is to expedite proceedings before a
master. The former rule required only a filing of the master's report,
with the clerk then notifying the parties of the filing. To receive a
copy, a party would then be required to secure it from the clerk. By
transmitting directly to the parties, the master can save some efforts
of counsel. Some local rules have previously required such action by
the master.
The Federal Rules of Evidence, referred to in subdiv. (c), are set
out in this Appendix.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Adoption of master's findings by court, see rule 52.
Clerks of courts, ineligible to appointment as master, see section
957 of this title.
Default judgment, reference to determine account or amount of
damages, see rule 55.
Pre-trial determination as to preliminary reference, see rule 16.
Report, judgment not required to recite, see rule 54.
Three-Judge Court, appointment of master by single judge, see section
2284 of this title.
United States magistrates, fees for attending to any reference, see
section 633 of this title.
/1/ Subdivision heading supplied editorially.
28 USC VII. JUDGMENT
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 54. Judgments; Costs
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Definition; Form. ''Judgment'' as used in these rules includes a
decree and any order from which an appeal lies. A judgment shall not
contain a recital of pleadings, the report of a master, or the record of
prior proceedings.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties.
When more than one claim for relief is presented in an action, whether
as a claim, counterclaim, cross-claim, or third-party claim, or when
multiple parties are involved, the court may direct the entry of a final
judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment. In the
absence of such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties shall
not terminate the action as to any of the claims or parties, and the
order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties.
(c) Demand for Judgment. A judgment by default shall not be
different in kind from or exceed in amount that prayed for in the demand
for judgment. Except as to a party against whom a judgment is entered
by default, every final judgment shall grant the relief to which the
party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in the party's pleadings.
(d) Costs. Except when express provision therefor is made either in
a statute of the United States or in these rules, costs shall be allowed
as of course to the prevailing party unless the court otherwise directs;
but costs against the United States, its officers, and agencies shall
be imposed only to the extent permitted by law. Costs may be taxed by
the clerk on one day's notice. On motion served within 5 days
thereafter, the action of the clerk may be reviewed by the court.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff.
July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987.)
Note to Subdivision (a). The second sentence is derived
substantially from (former) Equity Rule 71 (Form of Decree).
Note to Subdivision (b). This provides for the separate judgment of
equity and code practice. See Wis.Stat. (1935) 270.54; Compare
N.Y.C.P.A. (1937) 476.
Note to Subdivision (c). For the limitation on default contained in
the first sentence, see 2 N.D.Comp.Laws Ann. (1913) 7680; N.Y.C.P.A.
(1937) 479. Compare English Rules Under the Judicature Act (The Annual
Practice, 1937) O. 13, r.r. 3-12. The remainder is a usual code
provision. It makes clear that a judgment should give the relief to
which a party is entitled, regardless of whether it is legal or
equitable or both. This necessarily includes the deficiency judgment in
foreclosure cases formerly provided for by Equity Rule 10 (Decree for
Deficiency in Foreclosures, Etc.).
Note to Subdivision (d). For the present rule in common law actions,
see Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920);
Payne, Costs in Common Law Actions in the Federal Courts (1935), 21
Va.L.Rev. 397.
The provisions as to costs in actions in forma pauperis contained in
U.S.C., Title 28, 832-836 (now 1915) are unaffected by this rule.
Other sections of U.S.C., Title 28, which are unaffected by this rule
are: 815 (former) (Costs; plaintiff not entitled to, when), 821 (now
1928) (Costs; infringement of patent; disclaimer), 825 (Costs;
several actions), 829 (now 1927) (Costs; attorney liable for, when),
and 830 (now 1920) (Costs; bill of; taxation).
The provisions of the following and similar statutes as to costs
against the United States and its officers and agencies are specifically
continued:
U.S.C., Title 15, 77v(a), 78aa, 79y (Securities and Exchange
Commission)
U.S.C., Title 16, 825p (Federal Power Commission) U.S.C., Title
26, (former) 1569(d) and 1645(d) (Internal
revenue actions)
U.S.C., Title 26, (former) 1670(b)(2) (Reimbursement of costs of
recovery against revenue officers)
U.S.C., Title 28, (former) 817 (Internal revenue actions) U.S.C.,
Title 28, 836 (now 1915) (United States -- actions in
forma pauperis)
U.S.C., Title 28, 842 (now 2006) (Actions against revenue
officers)
U.S.C., Title 28, 870 (now 2408) (United States -- in certain
cases)
U.S.C., Title 28, (former) 906 (United States -- foreclosure
actions)
U.S.C., Title 47, 401 (Communications Commission)
The provisions of the following and similar statutes as to costs are
unaffected:
U.S.C., Title 7, 210(f) (Actions for damages based on an order
of the Secretary of Agriculture under Stockyards Act)
U.S.C., Title 7, 499g(c) (Appeals from reparations orders of
Secretary of Agriculture under Perishable Commodities Act)
U.S.C., Title 8, (former) 45 (Action against district attorneys
in certain cases)
U.S.C., Title 15, 15 (Actions for injuries due to violation of
antitrust laws)
U.S.C., Title 15, 72 (Actions for violation of law forbidding
importation or sale of articles at less than market value or wholesale
prices)
U.S.C., Title 15, 77k (Actions by persons acquiring securities
registered with untrue statements under Securities Act of 1933)
U.S.C., Title 15, 78i(e) (Certain actions under the Securities
Exchange Act of 1934)
U.S.C., Title 15, 78r (Similar to 78i(e)) U.S.C., Title 15, 96
(Infringement of trade-mark -- damages) U.S.C., Title 15, 99
(Infringement of trade-mark -- injunctions) U.S.C., Title 15, 124
(Infringement of trade-mark -- damages) U.S.C., Title 19, 274
(Certain actions under customs law) U.S.C., Title 30, 32 (Action
to determine right to possession of
mineral lands in certain cases)
U.S.C., Title 31, 232 (now 3730) and (former) 234 (Action for
making false claims upon United States)
U.S.C., Title 33, 926 (Actions under Harbor Workers'
Compensation Act)
U.S.C., Title 35, 67 (now 281, 284) (Infringement of patent --
damages)
U.S.C., Title 35, 69 (now 282) (Infringement of patent --
pleading and proof)
U.S.C., Title 35, 71 (now 288) (Infringement of patent -- when
specification too broad)
U.S.C., Title 45, 153p (Actions for non-compliance with an order
of National R. R. Adjustment Board for payment of money)
U.S.C., Title 46, (former) 38 (Action for penalty for failure to
register vessel)
U.S.C., Title 46, 829 (Action based on non-compliance with an
order of Maritime Commission for payment of money)
U.S.C., Title 46, 941 (Certain actions under Ship Mortgage Act)
U.S.C., Title 46, 1227 (Actions for damages for violation of
certain provisions of the Merchant Marine Act, 1936)
U.S.C., Title 47, 206 (Actions for certain violations of
Communications Act of 1934)
U.S.C., Title 49, 16(2) (now 11705) (Action based on
non-compliance with an order of I. C. C. for payment of money)
Note. The historic rule in the federal courts has always prohibited
piecemeal disposal of litigation and permitted appeals only from final
judgments except in those special instances covered by statute. Hohorst
v. Hamburg-American Packet Co., 1893, 148 U.S. 262, 13 S.Ct. 590;
Rexford v. Brunswick-Balke-Collender Co., 1913, 228 U.S. 339, 33 S.Ct.
515; Collins v. Miller, 1920, 252 U.S. 364, 40 S.Ct. 347. Rule 54(b)
was originally adopted in view of the wide scope and possible content of
the newly created ''civil action'' in order to avoid the possible
injustice of a delay in judgment of a distinctly separate claim to await
adjudication of the entire case. It was not designed to overturn the
settled federal rule stated above, which, indeed, has more recently been
reiterated in Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct.
631. See also United States v. Florian, 1941, 312 U.S. 656, 61 S.Ct.
713, rev'g, and restoring the first opinion in, Florian v. United
States, C.C.A.7th, 1940, 114 F.2d 990; Reeves v. Beardall, 1942, 316
U.S. 283, 62 S.Ct. 1085.
Unfortunately, this was not always understood, and some confusion
ensued. Hence situations arose where district courts made a piecemeal
disposition of an action and entered what the parties thought amounted
to a judgment, although a trial remained to be had on other claims
similar or identical with those disposed of. In the interim the parties
did not know their ultimate rights, and accordingly took an appeal, thus
putting the finality of the partial judgment in question. While most
appellate courts have reached a result generally in accord with the
intent of the rule, yet there have been divergent precedents and
division of views which have served to render the issues more clouded to
the parties appellant. It hardly seems a case where multiplicity of
precedents will tend to remove the problem from debate. The problem is
presented and discussed in the following cases: Atwater v. North
American Coal Corp., C.C.A.2d, 1940, 111 F.2d 125; Rosenblum v.
Dingfelder, C.C.A.2d, 1940, 111 F.2d 406; Audi-Vision, Inc. v. RCA
Mfg. Co., Inc., C.C.A.2d, 1943, 136 F.2d 621; Zalkind v. Scheinman,
C.C.A.2d, 1943, 139 F.2d 895; Oppenheimer v. F. J. Young & Co., Inc.,
C.C.A.2d, 1944, 144 F.2d 387; Libbey-Owens-Ford Glass Co. v. Sylvania
Industrial Corp., C.C.A.2d, 1946, 154 F.2d 814, cert. den., 1946, 66
S.Ct. 1353; Zarati Steamship Co. v. Park Bridge Corp., C.C.A.2d, 1946,
154 F.2d 377; Baltimore and Ohio R. Co. v. United Fuel Gas Co.,
C.C.A.4th, 1946, 154 F.2d 545; Jefferson Electric Co. v. Sola Electric
Co., C.C.A.7th, 1941, 122 F.2d 124; Leonard v. Socony-Vacuum Oil Co.,
C.C.A.7th, 1942, 130 F.2d 535; Markham v. Kasper, C.C.A.7th, 1945, 152
F.2d 270; Hanney v. Franklin Fire Ins. Co. of Philadelphia,
C.C.A.9th, 1944, 142 F.2d 864; Toomey v. Toomey, App.D.C. 1945, 80
U.S.App.D.C. 77, 149 F.2d 19.
In view of the difficulty thus disclosed, the Advisory Committee in
its two preliminary drafts of proposed amendments attempted to redefine
the original rule with particular stress upon the interlocutory nature
of partial judgments which did not adjudicate all claims arising out of
a single transaction or occurrence. This attempt appeared to meet with
almost universal approval from those of the profession commenting upon
it, although there were, of course, helpful suggestions for additional
changes in language or clarification of detail. But cf. Circuit Judge
Frank's dissenting opinion in Libbey-Owens-Ford Glass Co. v. Sylvania
Industrial Corp., supra, n. 21 of the dissenting opinion. The
Committee, however, became convinced on careful study of its own
proposals that the seeds of ambiguity still remained, and that it had
not completely solved the problem of piecemeal appeals. After extended
consideration, it concluded that a retention of the older federal rule
was desirable, and that this rule needed only the exercise of a
discretionary power to afford a remedy in the infrequent harsh case to
provide a simple, definite, workable rule. This is afforded by amended
Rule 54(b). It re-establishes an ancient policy with clarity and
precision. For the possibility of staying execution where not all
claims are disposed of under Rule 54(b), see amended Rule 62(h).
This rule permitting appeal, upon the trial court's determination of
''no just reason for delay,'' from a judgment upon one or more but less
than all the claims in an action, has generally been given a sympathetic
construction by the courts and its validity is settled. Reeves v.
Beardall, 316 U.S. 283 (1942); Sears, Roebuck & Co. v. Mackey, 351
U.S. 427 (1956); Cold Metal Process Co. v. United Engineering &
Foundry Co., 351 U.S. 445 (1956).
A serious difficulty has, however, arisen because the rule speaks of
claims but nowhere mentions parties. A line of cases has developed in
the circuits consistently holding the rule to be inapplicable to the
dismissal, even with the requisite trial court determination, of one or
more but less than all defendants jointly charged in an action, i.e.
charged with various forms of concerted or related wrongdoing or related
liability. See Mull v. Ackerman, 279 F.2d 25 (2d Cir. 1960); Richards
v. Smith, 276 F.2d 652 (5th Cir. 1960); Hardy v. Bankers Life & Cas.
Co., 222 F.2d 827 (7th Cir. 1955); Steiner v. 20th Century-Fox Film
Corp., 220 F.2d 105 (9th Cir. 1955). For purposes of Rule 54(b) it was
arguable that there were as many ''claims'' as there were parties
defendant and that the rule in its present text applied where less than
all of the parties were dismissed, cf. United Artists Corp. v.
Masterpiece Productions, Inc., 221 F.2d 213, 215 (2d Cir. 1955);
Bowling Machines, Inc. v. First Nat. Bank, 283 F.2d 39 (1st Cir.
1960); but the Courts of Appeals are now committed to an opposite view.
The danger of hardship through delay of appeal until the whole action
is concluded may be at least as serious in the multiple-parties
situations as in multiple-claims cases, see Pabellon v. Grace Line,
Inc., 191 F.2d 169, 179 (2d Cir. 1951), cert. denied, 342 U.S. 893
(1951), and courts and commentators have urged that Rule 54(b) be
changed to take in the former. See Reagan v. Traders & General Ins.
Co., 255 F.2d 845 (5th Cir. 1958); Meadows v. Greyhound Corp., 235
F.2d 233 (5th Cir. 1956); Steiner v. 20th Century-Fox Film Corp.,
supra; 6 Moore's Federal Practice 54.34(2) (2d ed. 1953); 3 Barron &
Holtzoff, Federal Practice & Procedure 1193.2 (Wright ed. 1958);
Developments in the Law -- Multiparty Litigation, 71 Harv.L.Rev. 874,
981 (1958); Note, 62 Yale L.J. 263, 271 (1953); Ill.Ann.Stat. ch.
110, 50(2) (Smith-Hurd 1956). The amendment accomplishes this purpose
by referring explicitly to parties.
There has been some recent indication that interlocutory appeal under
the provisions of 28 U.S.C. 1292(b), added in 1958, may now be
available for the multiple-parties cases here considered. See Jaftex
Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960). The Rule
54(b) procedure seems preferable for those cases, and 1292(b) should be
held inapplicable to them when the rule is enlarged as here proposed.
See Luckenbach Steamship Co., Inc., v. H. Muehlstein & Co., Inc., 280
F.2d 755, 757 (2d Cir. 1960); 1 Barron & Holtzoff, supra, 58.1, p. 321
(Wright ed. 1960).
The amendment is technical. No substantive change is intended.
Amendment or alteration of judgment --
Stay of proceedings pending disposition of motion for, see rule 62.
Time for service of motion, see rule 59.
Appellate court directing entry of judgment, see section 2106 of this
title.
Attachment of property of person disobeying judgment for specific
acts, see rule 70.
Bills of review abolished, see rule 60.
Certified copy of satisfaction of judgment, registration, see section
1963 of this title.
Civil docket, entry of judgment in, see rule 79.
Contempt by disobeying judgment directing performance of specific
acts, see rule 70.
Copies, clerk to keep correct copy of every final judgment, see rule
79.
Costs --
Absent defendant, setting aside judgment and pleading on payment of,
see section 1655 of this title.
Admiralty, taxation, see section 1925 of this title.
Admissions on genuineness of documents or truth of factual matters,
expenses on failure to make, see rule 37.
Affidavits, see sections 1915 and 1924 of this title.
Agencies of United States, see section 2408 of this title.
Amount in controversy, removal of action against carrier to district
court, see section 1445 of this title.
Appeal, in forma pauperis proceeding, see section 1915 of this title.
Briefs, taxation of printing as, see section 1923 of this title.
Claimant in proceedings to condemn or forfeit property seized, see
section 2465 of this title.
Clerk of court of appeals, payment into Treasury, see section 711 of
this title.
Contempt of witness in foreign country failing to respond to
subpoena, see section 1784 of this title.
Copies of papers, taxation as, see section 1920 of this title.
Counsel's liability for excessive, see section 1927 of this title.
Default judgment including, see rule 55.
Delay of entry of judgment for taxing of, see rule 58.
Denial of to plaintiff where plaintiff recovers less than $10,000,
see section 1332 of this title.
Dismissal for lack of jurisdiction, see section 1919 of this title.
District court, see section 1918 of this title.
Docket fees, see sections 1920, 1922 and 1923 of this title.
Exemplification of papers, taxation, see section 1920 of this title.
Fees, taxation as, see section 1920 of this title.
Filing and inclusion of bill of costs in judgment or decree, see
section 1920 of this title.
Fine and forfeitures for violating act of Congress, see section 1918
of this title.
Forma pauperis proceeding, see section 1915 of this title.
Garnishment by United States, see section 2405 of this title.
Jurisdiction of district court, amount in controversy, see section
1332 of this title.
Maritime cases, taxation, see section 1925 of this title.
Offer of judgment affecting, see rule 68.
Patent infringement action, see section 1928 of this title.
Previously dismissed action, see rule 41.
Removal of causes, bond to accompany petition for removal, see
section 1446 of this title.
Seamen's suits, see section 1916 of this title.
Security not required of United States, see section 2408 of this
title.
Stay of execution and enforcement of judgment to obtain certiorari
from Supreme Court, see section 2101 of this title.
Summary judgment, affidavits presented in bad faith, see rule 56.
Taxation, see sections 1920 and 1921 of this title.
United States, liability for, see section 2412 of this title.
United States marshal's fees, see section 1921 of this title.
Verification of bill of, see section 1924 of this title.
Witness fees, taxation as, see sections 1920 and 1922 of this title.
Counterclaim or cross-claim judgment on, see rule 13.
Court of Claims judgment finding plaintiff indebted to United States
as judgment of district court, see section 2508 of this title.
Court record of judgment lost or destroyed, enforcement where United
States is interested, see section 1735 of this title.
Declaratory judgment, see rule 57 and sections 2201 and 2202 of this
title.
Default judgment, see rule 55.
Docketing judgment to constitute lien, see section 1962 of this
title.
Entry of judgment --
New judgment on motion for new trial, see rule 59.
On verdict by clerk, see rule 58.
Extension of time for relief from judgment, see rule 6.
Finality of judgment unaffected by motion for relief, see rule 60.
Garnishment by United States against corporation, see section 2405 of
this title.
Index to be kept by clerk of every judgment, see rule 79.
Indexing of judgment to constitute lien, see section 1962 of this
title.
Interest on judgments, see sections 1961 and 2411.
Interrogatories, entry of judgment on, see rule 58.
Judge to approve form of judgment, see rule 58.
Lien, judgment as, see section 1962.
Modification of judgment, errors not affecting substantial rights not
ground for, see rule 61.
Motion for judgment in action by United States against delinquents
for public money, see section 2407 of this title.
New trial, stay of proceedings to enforce judgment on motion for, see
rule 62.
Notation in docket as entry of judgment, see rule 58.
Offer of judgment, see rule 68.
Opening judgment on motion for new trial, see rule 59.
Pleading judgment, see rule 9.
Possession, enforcement of judgment directing delivery, see rule 70.
Recording judgment to constitute lien, see section 1962 of this
title.
Registration of judgment, see sections 1962 and 1963 of this title.
Relief from judgment, grounds for, see rule 60.
Removal of causes, attachment or sequestration to hold goods or
estate of defendant to answer judgment, see section 1450 of this title.
Reopening judgment after verdict on motion for directed verdict, see
rule 50.
Sales under judgment, see section 1961 et seq. of this title.
Security on stay of proceedings to enforce judgment, see rule 62.
Special verdict, entry of judgment on, see rule 58.
State law, staying enforcement of judgment in accordance to, see rule
62.
Stay of --
Judgment on less than all of multiple claims, see rule 62.
Proceedings to enforce judgment, see rule 62.
Stipulation for stay of execution of process in rem issued in
admiralty case, see section 2464 of this title.
Summary judgment --
Procedure generally, see rule 56.
Single judge of Three-Judge Court not to enter, see section 2284 of
this title.
Suspension of judgment by motion for relief, see rule 60.
Third party tort liability to United States for hospital and medical
care, see section 2651 et seq. of Title 42, The Public Health and
Welfare.
Time --
Entry of judgment, see rule 58.
Extension of, for relief from judgment, see rule 6.
Motion for relief from judgment, see rule 60.
Motion to alter or amend judgment, extension of, see rule 6.
Proceedings to enforce judgment, see rule 62.
United States --
Payment of judgments against, see section 2414 of this title.
Stay of judgment against, see rule 62.
Tort claims against, judgment as bar to action against employee, see
section 2676.
Vacation of judgment, errors not affecting substantial rights not
ground for, see rule 61.
Verdict submitted on written interrogatories to jury, judgment on,
see rule 49.
Writs of coram nobis, coram vobis and audita querela abolished, see
rule 60.
28 USC Rule 55. Default
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Entry. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as provided by
these rules and that fact is made to appear by affidavit or otherwise,
the clerk shall enter the party's default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a defendant is
for a sum certain or for a sum which can by computation be made certain,
the clerk upon request of the plaintiff and upon affidavit of the amount
due shall enter judgment for that amount and costs against the
defendant, if the defendant has been defaulted for failure to appear and
is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a
judgment by default shall apply to the court therefor; but no judgment
by default shall be entered against an infant or incompetent person
unless represented in the action by a general guardian, committee,
conservator, or other such representative who has appeared therein. If
the party against whom judgment by default is sought has appeared in the
action, the party (or, if appearing by representative, the party's
representative) shall be served with written notice of the application
for judgment at least 3 days prior to the hearing on such application.
If, in order to enable the court to enter judgment or to carry it into
effect, it is necessary to take an account or to determine the amount of
damages or to establish the truth of any averment by evidence or to make
an investigation of any other matter, the court may conduct such
hearings or order such references as it deems necessary and proper and
shall accord a right of trial by jury to the parties when and as
required by any statute of the United States.
(c) Setting Aside Default. For good cause shown the court may set
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule 60(b).
(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of
this rule apply whether the party entitled to the judgment by default is
a plaintiff, a third-party plaintiff, or a party who has pleaded a
cross-claim or counterclaim. In all cases a judgment by default is
subject to the limitations of Rule 54(c).
(e) Judgment Against the United States. No judgment by default shall
be entered against the United States or an officer or agency thereof
unless the claimant establishes a claim or right to relief by evidence
satisfactory to the court.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
This represents the joining of the equity decree pro confesso
((former) Equity Rules 12 (Issue of Subpoena -- Time for Answer), 16
(Defendant to Answer -- Default -- Decree Pro Confesso), 17 (Decree Pro
Confesso to be Followed by Final Decree -- Setting Aside Default), 29
(Defenses -- How Presented), 31 (Reply -- When Required -- When Cause at
Issue)) and the judgment by default now governed by U.S.C., Title 28,
(former) 724 (Conformity act). For dismissal of an action for failure
to comply with these rules or any order of the court, see rule 41(b).
Note to Subdivision (a). The provision for the entry of default
comes from the Massachusetts practice, 2 Mass.Gen.Laws (Ter.Ed., 1932)
ch. 231, 57. For affidavit of default, see 2 Minn.Stat. (Mason, 1927)
9256.
Note to Subdivision (b). The provision in paragraph (1) for the
entry of judgment by the clerk when plaintiff claims a sum certain is
found in the N.Y.C.P.A. (1937) 485, in Calif.Code Civ.Proc. (Deering,
1937) 585(1), and in Conn.Practice Book (1934) 47. For provisions
similar to paragraph (2), compare Calif.Code, supra, 585(2);
N.Y.C.P.A. (1937) 490; 2 Minn.Stat. (Mason, 1927) 9256(3); 2
Wash.Rev.Stat.Ann. (Remington, 1932) 411(2). U.S.C., Title 28, 785
(Action to recover forfeiture in bond) and similar statutes are
preserved by the last clause of paragraph (2).
Note to Subdivision (e). This restates substantially the last clause
of U.S.C., Title 28, (former) 763 (Action against the United States
under the Tucker Act). As this rule governs in all actions against the
United States, U.S.C., Title 28, (former) 45 (Practice and procedure in
certain cases under the interstate commerce laws) and similar statutes
are modified insofar as they contain anything inconsistent therewith.
Note. The operation of Rule 55(b) (Judgment) is directly affected by
the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.
Appendix, 501 et seq. Section 200 of the Act (50 U.S.C. Appendix,
520) imposes specific requirements which must be fulfilled before a
default judgment can be entered, e.g., Ledwith v. Storkan, D.Neb.
1942, 6 Fed.Rules Serv. 60b.24, Case 2, 2 F.R.D. 539, and also provides
for the vacation of a judgment in certain circumstances. See discussion
in Commentary, Effect of Conscription Legislation on the Federal Rules,
1940, 3 Fed.Rules Serv. 725; 3 Moore's Federal Practice, 1938,
Cum.Supplement 55.02.
The amendments are technical. No substantive change is intended.
Demand for judgment, see rule 54.
Failure to serve answers to interrogatories, entry of default
judgment, see rule 37.
Relief awarded on default, see rule 54.
Summons as notice to defendant, judgment by default will be entered
on failure to appear and defend, see rule 4.
28 USC Rule 56. Summary Judgment
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment may, at
any time after the expiration of 20 days from the commencement of the
action or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment
in the party's favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory judgment is sought may, at
any time, move with or without supporting affidavits for a summary
judgment in the party's favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at
least 10 days before the time fixed for the hearing. The adverse party
prior to the day of hearing may serve opposing affidavits. The judgment
sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine
issue as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under this
rule judgment is not rendered upon the whole case or for all the relief
asked and a trial is necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence before it and by
interrogating counsel, shall if practicable ascertain what material
facts exist without substantial controversy and what material facts are
actually and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is
not in controversy, and directing such further proceedings in the action
as are just. Upon the trial of the action the facts so specified shall
be deemed established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto or
served therewith. The court may permit affidavits to be supplemented or
opposed by depositions, answers to interrogatories, or further
affidavits. When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but the adverse
party's response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for
trial. If the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.
(f) When Affidavits Are Unavailable. Should it appear from the
affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other
order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for
the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused the other party to
incur, including reasonable attorney's fees, and any offending party or
attorney may be adjudged guilty of contempt.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)
This rule is applicable to all actions, including those against the
United States or an officer or agency thereof.
Summary judgment procedure is a method for promptly disposing of
actions in which there is no genuine issue as to any material fact. It
has been extensively used in England for more than 50 years and has been
adopted in a number of American states. New York, for example, has made
great use of it. During the first nine years after its adoption there,
the records of New York county alone show 5,600 applications for summary
judgments. Report of the Commission on the Administration of Justice in
New York State (1934), p. 383. See also Third Annual Report of the
Judicial Council of the State of New York (1937), p. 30.
In England it was first employed only in cases of liquidated claims,
but there has been a steady enlargement of the scope of the remedy until
it is now used in actions to recover land or chattels and in all other
actions at law, for liquidated or unliquidated claims, except for a few
designated torts and breach of promise of marriage. English Rules Under
the Judicature Act (The Annual Practice, 1937) O. 3, r. 6; Orders 14,
14A, and 15; see also O. 32, r. 6, authorizing an application for
judgment at any time upon admissions. In Michigan (3 Comp.Laws (1929)
14260) and Illinois (Ill.Rev.Stat. (1937) ch. 110, 181, 259.15,
259.16), it is not limited to liquidated demands. New York (N.Y.R.C.P.
(1937) Rule 113; see also Rule 107) has brought so many classes of
actions under the operation of the rule that the Commission on
Administration of Justice in New York State (1934) recommend that all
restrictions be removed and that the remedy be available ''in any
action'' (p. 287). For the history and nature of the summary judgment
procedure and citations of state statutes, see Clark and Samenow, The
Summary Judgment (1929), 38 Yale L.J. 423.
Note to Subdivision (d). See Rule 16 (Pre-Trial Procedure;
Formulating Issues) and the Note thereto.
Note to Subdivisions (e) and (f). These are similar to rules in
Michigan. Mich.Court Rules Ann. (Searl, 1933) Rule 30.
Note. Subdivision (a). The amendment allows a claimant to move for a
summary judgment at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary
judgment by the adverse party. This will normally operate to permit an
earlier motion by the claimant than under the original rule, where the
phrase ''at any time after the pleading in answer thereto has been
served'' operates to prevent a claimant from moving for summary
judgment, even in a case clearly proper for its exercise, until a formal
answer has been filed. Thus in Peoples Bank v. Federal Reserve Bank of
San Francisco, N.D.Cal. 1944, 58 F.Supp. 25, the plaintiff's
counter-motion for a summary judgment was stricken as premature, because
the defendant had not filed an answer. Since Rule 12(a) allows at least
20 days for an answer, that time plus the 10 days required in Rule 56(c)
means that under original Rule 56(a) a minimum period of 30 days
necessarily has to elapse in every case before the claimant can be heard
on his right to a summary judgment. An extension of time by the court
or the service of preliminary motions of any kind will prolong that
period even further. In many cases this merely represents unnecessary
delay. See United States v. Adler's Creamery, Inc., (C.C.A.2d, 1939),
107 F.2d 987. The changes are in the interest of more expeditious
litigation. The 20-day period, as provided, gives the defendant an
opportunity to secure counsel and determine a course of action. But in
a case where the defendant himself makes a motion for summary judgment
within that time, there is no reason to restrict the plaintiff and the
amended rule so provides.
Subdivision (c). The amendment of Rule 56(c), by the addition of the
final sentence, resolves a doubt expressed in Sartor v. Arkansas
Natural Gas Corp., 1944, 321 U.S. 620, 64 S.Ct. 724. See also
Commentary, Summary Judgment as to Damages, 1944, 7 Fed.Rules Serv.
974; Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co., (C.C.A.2d,
1945) 147 F.2d 399, cert. den., 1945, 325 U.S. 861, 65 S.Ct. 1201. It
makes clear that although the question of recovery depends on the amount
of damages, the summary judgment rule is applicable and summary judgment
may be granted in a proper case. If the case is not fully adjudicated
it may be dealt with as provided in subdivision (d) of Rule 56, and the
right to summary recovery determined by a preliminary order,
interlocutory in character, and the precise amount of recovery left for
trial.
Subdivision (d). Rule 54(a) defines ''judgment'' as including a
decree and ''any order from which an appeal lies.'' Subdivision (d) of
Rule 56 indicates clearly, however, that a partial summary ''judgment''
is not a final judgment, and, therefore, that it is not appealable,
unless in the particular case some statute allows an appeal from the
interlocutory order involved. The partial summary judgment is merely a
pretrial adjudication that certain issues shall be deemed established
for the trial of the case. This adjudication is more nearly akin to the
preliminary order under Rule 16, and likewise serves the purpose of
speeding up litigation by eliminating before trial matters wherein there
is no genuine issue of fact. See Leonard v. Socony-Vacuum Oil Co.,
C.C.A.7th, 1942, 130 F.2d 535; Biggins v. Oltmer Iron Works,
C.C.A.7th, 1946, 154 F.2d 214; 3 Moore's Federal Practice, 1938.
3190-3192. Since interlocutory appeals are not allowed, except where
specifically provided by statute, see 3 Moore, op. cit. supra,
3155-3156, this interpretation is in line with that policy, Leonard v.
Socony-Vacuum Oil Co., supra. See also Audi Vision, Inc., v. RCA Mfg.
Co., C.C.A.2d, 1943, 136 F.2d 621; Toomey v. Toomey, App.D.C. 1945, 80
U.S.App.D.C. 77, 149 F.2d 19; Biggins v. Oltmer Iron Works, supra;
Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631.
Subdivision (c). By the amendment ''answers to interrogatories'' are
included among the materials which may be considered on motion for
summary judgment. The phrase was inadvertently omitted from the rule,
see 3 Barron & Holtzoff, Federal Practice and Procedure 159-60 (Wright
ed. 1958), and the courts have generally reached by interpretation the
result which will hereafter be required by the text of the amended rule.
See Annot., 74 A.L.R.2d 984 (1960).
Subdivision (e). The words ''answers to interrogatories'' are added
in the third sentence of this subdivision to conform to the amendment of
subdivision (c).
The last two sentences are added to overcome a line of cases, chiefly
in the Third Circuit, which has impaired the utility of the summary
judgment device. A typical case is as follows: A party supports his
motion for summary judgment by affidavits or other evidentiary matters
sufficient to show that there is no genuine issue as to a material fact.
The adverse party, in opposing the motion, does not produce any
evidentiary matter, or produces some but not enough to establish that
there is a genuine issue for trial. Instead, the adverse party rests on
averments of his pleadings which on their face present an issue. In
this situation Third Circuit cases have taken the view that summary
judgment must be denied, at least if the averments are ''well-pleaded,''
and not suppositious, conclusory, or ultimate. See Frederick Hart &
Co., Inc. v. Recordgraph Corp., 169 F.2d 580 (3d Cir. 1948); United
States ex rel. Kolton v. Halpern, 260 F.2d 590 (3d Cir. 1958); United
States ex rel. Nobles v. Ivey Bros. Constr. Co., Inc., 191 F.Supp.
383 (D.Del. 1961); Jamison v. Pennsylvania Salt Mfg. Co., 22 F.R.D.
238 (W.D.Pa. 1958); Bunny Bear, Inc. v. Dennis Mitchell Industries,
139 F.Supp. 542 (E.D.Pa. 1956); Levy v. Equitable Life Assur.
Society, 18 F.R.D. 164 (E.D.Pa. 1955).
The very mission of the summary judgment procedure is to pierce the
pleadings and to assess the proof in order to see whether there is a
genuine need for trial. The Third Circuit doctrine, which permits the
pleadings themselves to stand in the way of granting an otherwise
justified summary judgment, is incompatible with the basic purpose of
the rule. See 6 Moore's Federal Practice 2069 (2d ed. 1953); 3 Barron
& Holtzoff, supra, 1235.1.
It is hoped that the amendment will contribute to the more effective
utilization of the salutary device of summary judgment.
The amendment is not intended to derogate from the solemnity of the
pleadings. Rather it recognizes that, despite the best efforts of
counsel to make his pleadings accurate, they may be overwhelmingly
contradicted by the proof available to his adversary.
Nor is the amendment designed to affect the ordinary standards
applicable to the summary judgment motion. So, for example: Where an
issue as to a material fact cannot be resolved without observation of
the demeanor of witnesses in order to evaluate their credibility,
summary judgment is not appropriate. Where the evidentiary matter in
support of the motion does not establish the absence of a genuine issue,
summary judgment must be denied even if no opposing evidentiary matter
is presented. And summary judgment may be inappropriate where the party
opposing it shows under subdivision (f) that he cannot at the time
present facts essential to justify his opposition.
The amendments are technical. No substantive change is intended.
Dismissal of action prior to service of motion for summary judgment,
see rule 41.
Findings of fact and conclusions of law unnecessary, see rule 52.
Injunctions, single judge not to enter summary judgment, see section
2284 of this title.
Motions treated as for summary judgment --
Dismiss for failure of pleading to state a claim upon which relief
can be granted, see rule 12.
Judgment on the pleadings, see rule 12.
28 USC Rule 57. Declaratory Judgments
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The procedure for obtaining a declaratory judgment pursuant to Title
28, U.S.C., 2201, shall be in accordance with these rules, and the
right to trial by jury may be demanded under the circumstances and in
the manner provided in Rules 38 and 39. The existence of another
adequate remedy does not preclude a judgment for declaratory relief in
cases where it is appropriate. The court may order a speedy hearing of
an action for a declaratory judgment and may advance it on the calendar.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
The fact that a declaratory judgment may be granted ''whether or not
further relief is or could be prayed'' indicates that declaratory relief
is alternative or cumulative and not exclusive or extraordinary. A
declaratory judgment is appropriate when it will ''terminate the
controversy'' giving rise to the proceeding. Inasmuch as it often
involves only an issue of law on undisputed or relatively undisputed
facts, it operates frequently as a summary proceeding, justifying
docketing the case for early hearing as on a motion, as provided for in
California (Code Civ.Proc. (Deering, 1937) 1062a), Michigan (3
Comp.Laws (1929) 13904), and Kentucky (Codes (Carroll, 1932) Civ.Pract.
639a-3).
The ''controversy'' must necessarily be ''of a justiciable nature,
thus excluding an advisory decree upon a hypothetical state of facts.''
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct.
466, 473, 80 L.Ed. 688, 699 (1936). The existence or nonexistence of
any right, duty, power, liability, privilege, disability, or immunity or
of any fact upon which such legal relations depend, or of a status, may
be declared. The petitioner must have a practical interest in the
declaration sought and all parties having an interest therein or
adversely affected must be made parties or be cited. A declaration may
not be rendered if a special statutory proceeding has been provided for
the adjudication of some special type of case, but general ordinary or
extraordinary legal remedies, whether regulated by statute or not, are
not deemed special statutory proceedings.
When declaratory relief will not be effective in settling the
controversy, the court may decline to grant it. But the fact that
another remedy would be equally effective affords no ground for
declining declaratory relief. The demand for relief shall state with
precision the declaratory judgment desired, to which may be joined a
demand for coercive relief, cumulatively or in the alternative; but
when coercive relief only is sought but is deemed ungrantable or
inappropriate, the court may sua sponte, if it serves a useful purpose,
grant instead a declaration of rights. Hasselbring v. Koepke, 263
Mich. 466, 248 N.W. 869, 93 A.L.R. 1170 (1933). Written instruments,
including ordinances and statutes, may be construed before or after
breach at the petition of a properly interested party, process being
served on the private parties or public officials interested. In other
respects the Uniform Declaratory Judgment Act affords a guide to the
scope and function of the Federal act. Compare Aetna Life Insurance Co.
v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000
(1937); Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S.
249, 53 S.Ct. 345, 77 L.Ed. 730, 87 A.L.R. 1191 (1933); Gully, Tax
Collector v. Interstate Natural Gas Co., 82 F.2d 145 (C.C.A.5th, 1936);
Ohio Casualty Ins. Co. v. Plummer, 13 F.Supp. 169 (S.D.Tex., 1935);
Borchard, Declaratory Judgments (1934), passim.
The amendment effective October 1949 substituted the reference to
''Title 28, U.S.C., 2201'' in the first sentence for the reference to
''Section 274(d) of the Judicial Code, as amended, U.S.C., Title 28,
400''.
Answers to written interrogatories to jury, see rule 49.
Assignment of cases for trial, see rule 40.
Creation of remedy and further relief in declaratory judgment
actions, see sections 2201 and 2202 of this title.
Jury trial and advisory jury, see rules 38 and 39.
28 USC Rule 58. Entry of Judgment
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Subject to the provisions of Rule 54(b): (1) upon a general verdict
of a jury, or upon a decision by the court that a party shall recover
only a sum certain or costs or that all relief shall be denied, the
clerk, unless the court otherwise orders, shall forthwith prepare, sign,
and enter the judgment without awaiting any direction by the court; (2)
upon a decision by the court granting other relief, or upon a special
verdict or a general verdict accompanied by answers to interrogatories,
the court shall promptly approve the form of the judgment, and the clerk
shall thereupon enter it. Every judgment shall be set forth on a
separate document. A judgment is effective only when so set forth and
when entered as provided in Rule 79(a). Entry of the judgment shall not
be delayed for the taxing of costs. Attorneys shall not submit forms of
judgment except upon direction of the court, and these directions shall
not be given as a matter of course.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
July 1, 1963.)
See Wis.Stat. (1935) 270.31 (judgment entered forthwith on verdict
of jury unless otherwise ordered), 270.65 (where trial is by the court,
entered by direction of the court), 270.63 (entered by clerk on
judgment on admitted claim for money). Compare 1 Idaho Code Ann.
(1932) 7-1101, and 4 Mont.Rev.Codes Ann. (1935) 9403, which provides
that judgment in jury cases be entered by clerk within 24 hours after
verdict unless court otherwise directs. Conn. Practice Book (1934)
200, provides that all judgments shall be entered within one week after
rendition. In some States such as Washington, 2 Rev.Stat.Ann.
(Remington, 1932) 431, in jury cases the judgment is entered two days
after the return of verdict to give time for making motion for new
trial; 435 (ibid.), provides that all judgments shall be entered by
the clerk, subject to the court's direction.
Note. The reference to Rule 54(b) is made necessary by the amendment
of that rule.
Two changes have been made in Rule 58 in order to clarify the
practice. The substitution of the more inclusive phrase ''all relief be
denied'' for the words ''there be no recovery'', makes it clear that the
clerk shall enter the judgment forthwith in the situations specified
without awaiting the filing of a formal judgment approved by the court.
The phrase ''all relief be denied'' covers cases such as the denial of a
bankrupt's discharge and similar situations where the relief sought is
refused but there is literally no denial of a ''recovery''.
The addition of the last sentence in the rule emphasizes that
judgments are to be entered promptly by the clerk without waiting for
the taxing of costs. Certain district court rules, for example, Civil
Rule 22 of the Southern District of New York -- until its annulment Oct.
1, 1945, for conflict with this rule -- and the like rule of the
Eastern District of New York, are expressly in conflict with this
provision, although the federal law is of long standing and well
settled. Fowler v. Hamill, 1891, 139 U.S. 549, 11 S.Ct. 663; Craig v.
The Hartford, C.C.Cal. 1856, Fed.Cas.No. 3,333; Tuttle v. Claflin,
C.C.A.2d, 1895, 60 Fed. 7, cert. den., 1897, 166 U.S. 721, 17 S.Ct.
992; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F.R. Co.,
C.C.A.2d, 1897, 84 Fed. 213; Stallo v. Wagner, C.C.A.2d, 1917, 245
Fed. 636, 639-40; Brown v. Parker, C.C.A.8th, 1899, 97 Fed. 446;
Allis-Chalmers v. United States, C.C.A.7th, 1908, 162 Fed. 679. And
this applies even though state law is to the contrary. United States v.
Nordbye, C.C.A.8th, 1935, 75 F.2d 744, 746, cert. den., 1935, 296 U.S.
572, 56 S.Ct. 103. Inasmuch as it has been held that failure of the
clerk thus enter judgment is a ''misprision'' ''not to be excused'', The
Washington, C.C.A.2d, 1926, 16 F.2d 206, such a district court rule may
have serious consequences for a district court clerk. Rules of this
sort also provide for delay in entry of the judgment contrary to Rule
58. See Commissioner of Internal Revenue v. Bedford's Estate, 1945,
325 U.S. 283, 65 S.Ct. 1157.
Under the present rule a distinction has sometimes been made between
judgments on general jury verdicts, on the one hand, and, on the other,
judgments upon decisions of the court that a party shall recover only
money or costs or that all relief shall be denied. In the first
situation, it is clear that the clerk should enter the judgment without
awaiting a direction by the court unless the court otherwise orders. In
the second situation it was intended that the clerk should similarly
enter the judgment forthwith upon the court's decision; but because of
the separate listing in the rule, and the use of the phrase ''upon
receipt . . . of the direction,'' the rule has sometimes been
interpreted as requiring the clerk to await a separate direction of the
court. All these judgments are usually uncomplicated, and should be
handled in the same way. The amended rule accordingly deals with them
as a single group in clause (1) (substituting the expression ''only a
sum certain'' for the present expression ''only money''), and requires
the clerk to prepare, sign, and enter them forthwith, without awaiting
court direction, unless the court makes a contrary order. (The clerk's
duty is ministerial and may be performed by a deputy clerk in the name
of the clerk. See 28 U.S.C. 956; cf. Gilbertson v. United States, 168
Fed. 672 (7th Cir. 1909).) The more complicated judgments described in
clause (2) must be approved by the court before they are entered.
Rule 58 is designed to encourage all reasonable speed in formulating
and entering the judgment when the case has been decided. Participation
by the attorneys through the submission of forms of judgment involves
needless expenditure of time and effort and promotes delay, except in
special cases where counsel's assistance can be of real value. See
Matteson v. United States, 240 F.2d 517, 518-19 (2d Cir. 1956).
Accordingly, the amended rule provides that attorneys shall not submit
forms of judgment unless directed to do so by the court. This applies
to the judgments mentioned in clause (2) as well as clause (1).
Hitherto some difficulty has arisen, chiefly where the court has
written an opinion or memorandum containing some apparently directive or
dispositive words, e.g., ''the plaintiff's motion (for summary judgment)
is granted,'' see United States v. F. & M. Schaefer Brewing Co., 356
U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion
have viewed these opinions or memoranda as being in themselves a
sufficient basis for entering judgment in the civil docket as provided
by Rule 79(a). However, where the opinion or memorandum has not
contained all the elements of a judgment, or where the judge has later
signed a formal judgment, it has become a matter of doubt whether the
purported entry of judgment was effective, starting the time running for
postverdict motions and for the purpose of appeal. See id.; and compare
Blanchard v. Commonwealth Oil Co., 294 F.2d 834 (5th Cir. 1961);
United States v. Higginson, 238 F.2d 439 (1st Cir. 1956); Danzig v.
Virgin Isle Hotel, Inc., 278 F.2d 580 (3d Cir. 1960); Sears v. Austin,
282 F.2d 340 (9th Cir. 1960), with Matteson v. United States, supra;
Erstling v. Southern Bell Tel. & Tel. Co., 255 F.2d 93 (5th Cir.
1958); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958),
cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959);
Beacon Fed. S. & L. Assn. v. Federal Home L. Bank Bd., 266 F.2d 246
(7th Cir.), cert. denied, 361 U.S. 823, 80 S.Ct. 70, 4 L.Ed.2d 67
(1959); Ram v. Paramount Film D. Corp., 278 F.2d 191 (4th Cir. 1960).
The amended rule eliminates these uncertainties by requiring that
there be a judgment set out on a separate document -- distinct from any
opinion or memorandum -- which provides the basis for the entry of
judgment. That judgments shall be on separate documents is also
indicated in Rule 79(b); and see General Rule 10 of the U.S. District
Courts for the Eastern and Southern Districts of New York; Ram v.
Paramount Film D. Corp., supra, at 194.
See the amendment of Rule 79(a) and the new specimen forms of
judgment, Forms 31 and 32.
See also Rule 55(b)(1) and (2) covering the subject of judgments by
default.
General verdict accompanied by answers to interrogatories by jury,
see rule 49.
Judgment for particular claim or counterclaim, see rule 54.
Notation of entry of judgment, see rule 79.
Notice of entry of judgment, see rule 77.
Time for new trial, see rule 59.
28 USC Rule 59. New Trials; Amendment of Judgments
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Grounds. A new trial may be granted to all or any of the parties
and on all or part of the issues (1) in an action in which there has
been a trial by jury, for any of the reasons for which new trials have
heretofore been granted in actions at law in the courts of the United
States; and (2) in an action tried without a jury, for any of the
reasons for which rehearings have heretofore been granted in suits in
equity in the courts of the United States. On a motion for a new trial
in an action tried without a jury, the court may open the judgment if
one has been entered, take additional testimony, amend findings of fact
and conclusions of law or make new findings and conclusions, and direct
the entry of a new judgment.
(b) Time for Motion. A motion for a new trial shall be served not
later than 10 days after the entry of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is
based upon affidavits they shall be served with the motion. The
opposing party has 10 days after such service within which to serve
opposing affidavits, which period may be extended for an additional
period not exceeding 20 days either by the court for good cause shown or
by the parties by written stipulation. The court may permit reply
affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of
judgment the court of its own initiative may order a new trial for any
reason for which it might have granted a new trial on motion of a party.
After giving the parties notice and an opportunity to be heard on the
matter, the court may grant a motion for a new trial, timely served, for
a reason not stated in the motion. In either case, the court shall
specify in the order the grounds therefor.
(e) Motion To Alter or Amend a Judgment. A motion to alter or amend
the judgment shall be served not later than 10 days after entry of the
judgment.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff.
July 1, 1966.)
This rule represents an amalgamation of the petition for rehearing of
(former) Equity Rule 69 (Petition for Rehearing) and the motion for new
trial of U.S.C., Title 28, 391 (see 2111) (New trials; harmless
error), made in the light of the experience and provision of the code
States. Compare Calif.Code Civ.Proc. (Deering, 1937) 656-663a,
U.S.C., Title 28, 391 (see 2111) (New trials; harmless error) is thus
substantially continued in this rule. U.S.C., Title 28, (former) 840
(Executions; stay on conditions) is modified insofar as it contains
time provisions inconsistent with Subdivision (b). For the effect of
the motion for new trial upon the time for taking an appeal see Morse v.
United States, 270 U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518 (1926); Aspen
Mining and Smelting Co. v. Billings, 150 U.S. 31, 14 S.Ct. 4, 37 L.Ed.
986 (1893).
For partial new trials which are permissible under Subdivision (a),
see Gasoline Products Co., Inc., v. Champlin Refining Co., 283 U.S. 494,
51 S.Ct. 513, 75 L.Ed. 1188 (1931); Schuerholz v. Roach, 58 F.2d 32
(C.C.A.4th, 1932); Simmons v. Fish, 210 Mass. 563, 97 N.E. 102,
Ann.Cas.1912D, 588 (1912) (sustaining and recommending the practice and
citing Federal cases and cases in accord from about sixteen States and
contra from three States). The procedure in several States provides
specifically for partial new trials. Ariz.Rev.Code Ann. (Struckmeyer,
1928) 3852; Calif.Code Civ.Proc. (Deering, 1937) 657, 662;
Ill.Rev.Stat. (1937) ch. 110, 216 (par. (f)); Md.Ann.Code (Bagby,
1924) Art. 5, 25, 26; Mich.Court Rules Ann. (Searl, 1933) Rule 47,
2; Miss.Sup.Ct. Rule 12, 161 Miss. 903, 905 (1931); N.J.Sup.Ct. Rules
131, 132, 147, 2 N.J.Misc. 1197, 1246-1251, 1255 (1924); 2
N.D.Comp.Laws Ann. (1913), 7844, as amended by N.D.Laws 1927, ch. 214.
Note. Subdivision (b). With the time for appeal to a circuit court
of appeals reduced in general to 30 days by the proposed amendment of
Rule 73(a), the utility of the original ''except'' clause, which permits
a motion for a new trial on the ground of newly discovered evidence to
be made before the expiration of the time for appeal, would have been
seriously restricted. It was thought advisable, therefore, to take care
of this matter in another way. By amendment of Rule 60(b), newly
discovered evidence is made the basis for relief from a judgment, and
the maximum time limit has been extended to one year. Accordingly the
amendment of Rule 59(b) eliminates the ''except'' clause and its
specific treatment of newly discovered evidence as a ground for a motion
for new trial. This ground remains, however, as a basis for a motion
for new trial served not later than 10 days after the entry of judgment.
See also Rule 60(b).
As to the effect of a motion under subdivision (b) upon the running
of appeal time, see amended Rule 73(a) and Note.
Subdivision (e). This subdivision has been added to care for a
situation such as that arising in Boaz v. Mutual Life Ins. Co. of New
York, C.C.A.8th, 1944, 146 F.2d 321, and makes clear that the district
court possesses the power asserted in that case to alter or amend a
judgment after its entry. The subdivision deals only with alteration or
amendment of the original judgment in a case and does not relate to a
judgment upon motion as provided in Rule 50(b). As to the effect of a
motion under subdivision (e) upon the running of appeal time, see
amended Rule 73(a) and Note.
The title of rule 59 has been expanded to indicate the inclusion of
this subdivision.
By narrow interpretation of Rule 59(b) and (d), it has been held that
the trial court is without power to grant a motion for a new trial,
timely served, by an order made more than 10 days after the entry of
judgment, based upon a ground not stated in the motion but perceived and
relied on by the trial court sua sponte. Freid v. McGrath, 133 F.2d
350 (D.C.Cir. 1942); National Farmers Union Auto. & Cas. Co. v. Wood,
207 F.2d 659 (10th Cir. 1953); Bailey v. Slentz, 189 F.2d 406 (10th
Cir. 1951); Marshall's U.S. Auto Supply, Inc. v. Cashman, 111 F.2d 140
(10th Cir. 1940), cert. denied, 311 U.S. 667 (1940); but see Steinberg
v. Indemnity Ins. Co., 36 F.R.D. 253 (E.D.La. 1964).
The result is undesirable. Just as the court has power under Rule
59(d) to grant a new trial of its own initiative within the 10 days, so
it should have power, when an effective new trial motion has been made
and is pending, to decide it on grounds thought meritorious by the court
although not advanced in the motion. The second sentence added by
amendment to Rule 59(d) confirms the court's power in the latter
situation, with provision that the parties be afforded a hearing before
the power is exercised. See 6 Moore's Federal Practice, par. 59.09(2)
(2d ed. 1953).
In considering whether a given ground has or has not been advanced in
the motion made by the party, it should be borne in mind that the
particularity called for in stating the grounds for a new trial motion
is the same as that required for all motions by Rule 7(b)(1). The
latter rule does not require ritualistic detail but rather a fair
indication to court and counsel of the substance of the grounds relied
on. See Lebeck v. William A. Jarvis Co., 250 F.2d 285 (3d Cir.
1957); Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961); General
Motors Corp. v. Perry, 303 F.2d 544 (7th Cir. 1962); cf. Grimm v.
California Spray-Chemical Corp., 264 F.2d 145 (9th Cir. 1959); Cooper
v. Midwest Feed Products Co., 271 F.2d 177 (8th Cir. 1959).
Answers to written interrogatories inconsistent with general verdict,
as ground for ordering new trial, see rule 49.
Court of Federal Claims, grounds for new trial, see section 2515 of
this title.
Disability of judge preventing performance of duties as ground for
new trial, see rule 63.
Extension of time for motion, see rule 6.
Harmless error not ground for new trial, see rule 61.
Joinder of motion with motion to set aside verdict or judgment on
motion for directed verdict, see rule 50.
Motion to amend findings or make additional findings, see rule 52.
Stay of execution or proceedings to enforce judgment on motion for
new trial, see rule 62.
28 USC Rule 60. Relief From Judgment or Order
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight or
omission may be corrected by the court at any time of its own initiative
or on the motion of any party and after such notice, if any, as the
court orders. During the pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the appellate court, and
thereafter while the appeal is pending may be so corrected with leave of
the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, Etc. On motion and upon such terms as are just, the
court may relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken. A motion under
this subdivision (b) does not affect the finality of a judgment or
suspend its operation. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order, or proceeding, or to grant relief to a defendant not actually
personally notified as provided in Title 28, U.S.C., 1655, or to set
aside a judgment for fraud upon the court. Writs of coram nobis, coram
vobis, audita querela, and bills of review and bills in the nature of a
bill of review, are abolished, and the procedure for obtaining any
relief from a judgment shall be by motion as prescribed in these rules
or by an independent action.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.)
Note to Subdivision (a). See (former) Equity Rule 72 (Correction of
Clerical Mistakes in Orders and Decrees); Mich.Court Rules Ann.
(Searl, 1933) Rule 48, 3; 2 Wash.Rev.Stat.Ann. (Remington, 1932)
464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) 89-2301(3). For an
example of a very liberal provision for the correction of clerical
errors and for amendment after judgment, see Va.Code Ann. (Michie, 1936)
6329, 6333.
Note to Subdivision (b). Application to the court under this
subdivision does not extend the time for taking an appeal, as
distinguished from the motion for new trial. This section is based upon
Calif.Code Civ.Proc. (Deering, 1937) 473. See also N.Y.C.P.A. (1937)
108; 2 Minn.Stat. (Mason, 1927) 9283.
For the independent action to relieve against mistake, etc., see
Dobie, Federal Procedure, pages 760-765, compare 639; and Simkins,
Federal Practice, ch. CXXI (pp. 820-830) and ch. CXXII (pp. 831-834),
compare 214.
Note. Subdivision (a). The amendment incorporates the view expressed
in Perlman v. 322 West Seventy-Second Street Co., Inc., C.C.A.2d, 1942,
127 F.2d 716; 3 Moore's Federal Practice, 1938, 3276, and further
permits correction after docketing, with leave of the appellate court.
Some courts have thought that upon the taking of an appeal the district
court lost its power to act. See Schram v. Safety Investment Co.,
E.D.Mich. 1942, 45 F.Supp. 636; also Miller v. United States,
C.C.A.7th, 1940, 114 F.2d 267.
Subdivision (b). When promulgated, the rules contained a number of
provisions, including those found in Rule 60(b), describing the practice
by a motion to obtain relief from judgments, and these rules, coupled
with the reservation in Rule 60(b) of the right to entertain a new
action to relieve a party from a judgment, were generally supposed to
cover the field. Since the rules have been in force, decisions have
been rendered that the use of bills of review, coram nobis, or audita
querela, to obtain relief from final judgments is still proper, and that
various remedies of this kind still exist although they are not
mentioned in the rules and the practice is not prescribed in the rules.
It is obvious that the rules should be complete in this respect and
define the practice with respect to any existing rights or remedies to
obtain relief from final judgments. For extended discussion of the old
common law writs and equitable remedies, the interpretation of Rule 60,
and proposals for change, see Moore and Rogers, Federal Relief from
Civil Judgments, 1946, 55 Yale L.J. 623. See also 3 Moore's Federal
Practice, 1938, 3254 et seq.; Commentary, Effect of Rule 60b on Other
Methods of Relief From Judgment, 1941, 4 Fed.Rules Serv. 942, 945;
Wallace v. United States, C.C.A.2d, 1944, 142 F.2d 240, cert. den.,
1944, 323 U.S. 712, 65 S.Ct. 37.
The reconstruction of Rule 60(b) has for one of its purposes a
clarification of this situation. Two types of procedure to obtain
relief from judgments are specified in the rules as it is proposed to
amend them. One procedure is by motion in the court and in the action
in which the judgment was rendered. The other procedure is by a new or
independent action to obtain relief from a judgment, which action may or
may not be begun in the court which rendered the judgment. Various
rules, such as the one dealing with a motion for new trial and for
amendment of judgments, Rule 59, one for amended findings, Rule 52, and
one for judgment notwithstanding the verdict, Rule 50(b), and including
the provisions of Rule 60(b) as amended, prescribe the various types of
cases in which the practice by motion is permitted. In each case there
is a limit upon the time within which resort to a motion is permitted,
and this time limit may not be enlarged under Rule 6(b). If the right
to make a motion is lost by the expiration of the time limits fixed in
these rules, the only other procedural remedy is by a new or independent
action to set aside a judgment upon those principles which have
heretofore been applied in such an action. Where the independent action
is resorted to, the limitations of time are those of laches or statutes
of limitations. The Committee has endeavored to ascertain all the
remedies and types of relief heretofore available by coram nobis, coram
vobis, audita querela, bill of review, or bill in the nature of a bill
of review. See Moore and Rogers, Federal Relief from Civil Judgments,
1946, 55 Yale L.J. 623, 659-682. It endeavored then to amend the rules
to permit, either by motion or by independent action, the granting of
various kinds of relief from judgments which were permitted in the
federal courts prior to the adoption of these rules, and the amendment
concludes with a provision abolishing the use of bills of review and the
other common law writs referred to, and requiring the practice to be by
motion or by independent action.
To illustrate the operation of the amendment, it will be noted that
under Rule 59(b) as it now stands, without amendment, a motion for new
trial on the ground of newly discovered evidence is permitted within ten
days after the entry of the judgment, or after that time upon leave of
the court. It is proposed to amend Rule 59(b) by providing that under
that rule a motion for new trial shall be served not later than ten days
after the entry of the judgment, whatever the ground be for the motion,
whether error by the court or newly discovered evidence. On the other
hand, one of the purposes of the bill of review in equity was to afford
relief on the ground of newly discovered evidence long after the entry
of the judgment. Therefore, to permit relief by a motion similar to
that heretofore obtained on bill of review, Rule 60(b) as amended
permits an application for relief to be made by motion, on the ground of
newly discovered evidence, within one year after judgment. Such a
motion under Rule 60(b) does not affect the finality of the judgment,
but a motion under Rule 59, made within 10 days, does affect finality
and the running of the time for appeal.
If these various amendments, including principally those to Rule
60(b), accomplish the purpose for which they are intended, the federal
rules will deal with the practice in every sort of case in which relief
from final judgments is asked, and prescribe the practice. With
reference to the question whether, as the rules now exist, relief by
coram nobis, bills of review, and so forth, is permissible, the
generally accepted view is that the remedies are still available,
although the precise relief obtained in a particular case by use of
these ancillary remedies is shrouded in ancient lore and mystery. See
Wallace v. United States, C.C.A.2d, 1944, 142 F.2d 240, cert. den.,
1944, 323 U.S. 712, 65 S.Ct. 37; Fraser v. Doing, App.D.C. 1942, 130
F.2d 617; Jones v. Watts, C.C.A.5th, 1944, 142 F.2d 575; Preveden v.
Hahn, S.D.N.Y. 1941, 36 F.Supp. 952; Cavallo v. Agwilines, Inc.,
S.D.N.Y. 1942, 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn
v. United States, D.Mass. 1942, 6 Fed.Rules Serv. 60b.51, Case 3, 2
F.R.D. 562; City of Shattuck, Oklahoma ex rel. Versluis v. Oliver,
W.D.Okla. 1945, 8 Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers,
Federal Relief from Civil Judgments, 1946, 55 Yale L.J. 623, 631-653; 3
Moore's Federal Practice, 1938, 3254 et seq.; Commentary, Effect of Rule
60b on Other Methods of Relief from Judgment, op. cit. supra. Cf.
Norris v. Camp, C.C.A.10th, 1944, 144 F.2d 1; Reed v. South Atlantic
Steamship Co. of Delaware, D.Del. 1942, 2 F.R.D. 475, 6 Fed.Rules Serv.
60b.31, Case 1; Laughlin v. Berens, D.D.C. 1945, 8 Fed.Rules Serv.
60b.51, Case 1, 73 W.L.R. 209.
The transposition of the words ''the court'' and the addition of the
word ''and'' at the beginning of the first sentence are merely verbal
changes. The addition of the qualifying word ''final'' emphasizes the
character of the judgments, orders or proceedings from which Rule 60(b)
affords relief; and hence interlocutory judgments are not brought
within the restrictions of the rule, but rather they are left subject to
the complete power of the court rendering them to afford such relief
from them as justice requires.
The qualifying pronoun ''his'' has been eliminated on the basis that
it is too restrictive, and that the subdivision should include the
mistake or neglect of others which may be just as material and call just
as much for supervisory jurisdiction as where the judgment is taken
against the party through his mistake, inadvertence, etc.
Fraud, whether intrinsic or extrinsic, misrepresentation, or other
misconduct of an adverse party are express grounds for relief by motion
under amended subdivision (b). There is no sound reason for their
exclusion. The incorporation of fraud and the like within the scope of
the rule also removes confusion as to the proper procedure. It has been
held that relief from a judgment obtained by extrinsic fraud could be
secured by motion within a ''reasonable time,'' which might be after the
time stated in the rule had run. Fiske v. Buder, (C.C.A.8th, 1942),
125 F.2d 841; see also inferentially Bucy v. Nevada Construction Co.,
(C.C.A.9th, 1942), 125 F.2d 213. On the other hand, it has been
suggested that in view of the fact that fraud was omitted from original
Rule 60(b) as a ground for relief, an independent action was the only
proper remedy. Commentary, Effect of Rule 60b on Other Methods of
Relief From Judgment, 1941, 4 Fed.Rules Serv. 942, 945. The amendment
settles this problem by making fraud an express ground for relief by
motion; and under the saving clause, fraud may be urged as a basis for
relief by independent action insofar as established doctrine permits.
See Moore and Rogers, Federal Relief from Civil Judgments, 1946, 55 Yale
L.J. 623, 653-659; 3 Moore's Federal Practice, 1938, 3267 et seq. And
the rule expressly does not limit the power of the court, when fraud has
been perpetrated upon it, to give relief under the saving clause. As an
illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford
Empire Co., 1944, 322 U.S. 238, 64 S.Ct. 997.
The time limit for relief by motion in the court and in the action in
which the judgment was rendered has been enlarged from six months to one
year.
It should be noted that Rule 60(b) does not assume to define the
substantive law as to the grounds for vacating judgments, but merely
prescribes the practice in proceedings to obtain relief. It should also
be noted that under 200(4) of the Soldiers' and Sailors' Civil Relief
Act of 1940, 50 U.S.C. Appendix, 501 et seq. ( 520(4)), a judgment
rendered in any action or proceeding governed by the section may be
vacated under certain specified circumstances upon proper application to
the court.
The amendment effective October 1949 substituted the reference to
''Title 28, U.S.C., 1655'' in the next to the last sentence of
subdivision (b), for the reference to ''Section 57 of the Judicial Code,
U.S.C., Title 28, 118''.
The amendment is technical. No substantive change is intended.
Enlargement of time under this rule prohibited, see rule 6.
Power of court unaffected by expiration of term, see rule 6.
Stay of proceedings pending disposition of motion under this rule,
see rule 62.
Time for motion for new trial, see rule 59.
28 USC Rule 61. Harmless Error
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new trial or
for setting aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court
at every stage of the proceeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the
parties.
A combination of U.S.C., Title 28, 391 (see 2111) (New trials;
harmless error) and (former) 777 (Defects of form; amendments) with
modifications. See McCandless v. United States, 298 U.S. 342, 56 S.Ct.
764, 80 L.Ed. 1205 (1936). Compare (former) Equity Rule 72 (Correction
of Clerical Mistakes in Orders and Decrees); and last sentence of
(former) Equity Rule 46 (Trial -- Testimony Usually Taken in Open Court
-- Rulings on Objections to Evidence). For the last sentence see the
last sentence of (former) Equity Rule 19 (Amendments Generally).
Grounds for new trial, see rule 33, Title 18, Appendix, Crimes and
Criminal Procedure.
Harmless and plain error, see rule 52.
Admissibility of evidence generally, see rule 43.
Formal exceptions unnecessary, see rule 46.
Grounds for new trial, rule 59.
Harmless error on appeal or certiorari, see section 2111 of this
title.
Instructions to jury, see rule 51.
Motion for judgment notwithstanding verdict, see rule 50.
Motion to vacate judgment or order, see rule 60.
Power of appellate court to affirm, modify, reverse, and remand case,
see section 2106 of this title.
28 USC Rule 62. Stay of Proceedings To Enforce a Judgment
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Automatic Stay; Exceptions -- Injunctions, Receiverships, and
Patent Accountings. Except as stated herein, no execution shall issue
upon a judgment nor shall proceedings be taken for its enforcement until
the expiration of 10 days after its entry. Unless otherwise ordered by
the court, an interlocutory or final judgment in an action for an
injunction or in a receivership action, or a judgment or order directing
an accounting in an action for infringement of letters patent, shall not
be stayed during the period after its entry and until an appeal is taken
or during the pendency of an appeal. The provisions of subdivision (c)
of this rule govern the suspending, modifying, restoring, or granting of
an injunction during the pendency of an appeal.
(b) Stay on Motion for New Trial or for Judgment. In its discretion
and on such conditions for the security of the adverse party as are
proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial
or to alter or amend a judgment made pursuant to Rule 59, or of a motion
for relief from a judgment or order made pursuant to Rule 60, or of a
motion for judgment in accordance with a motion for a directed verdict
made pursuant to Rule 50, or of a motion for amendment to the findings
or for additional findings made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an appeal is taken from an
interlocutory or final judgment granting, dissolving, or denying an
injunction, the court in its discretion may suspend, modify, restore, or
grant an injunction during the pendency of the appeal upon such terms as
to bond or otherwise as it considers proper for the security of the
rights of the adverse party. If the judgment appealed from is rendered
by a district court of three judges specially constituted pursuant to a
statute of the United States, no such order shall be made except (1) by
such court sitting in open court or (2) by the assent of all the judges
of such court evidenced by their signatures to the order.
(d) Stay Upon Appeal. When an appeal is taken the appellant by
giving a supersedeas bond may obtain a stay subject to the exceptions
contained in subdivision (a) of this rule. The bond may be given at or
after the time of filing the notice of appeal or of procuring the order
allowing the appeal, as the case may be. The stay is effective when the
supersedeas bond is approved by the court.
(e) Stay in Favor of the United States or Agency Thereof. When an
appeal is taken by the United States or an officer or agency thereof or
by direction of any department of the Government of the United States
and the operation or enforcement of the judgment is stayed, no bond,
obligation, or other security shall be required from the appellant.
(f) Stay According to State Law. In any state in which a judgment is
a lien upon the property of the judgment debtor and in which the
judgment debtor is entitled to a stay of execution, a judgment debtor is
entitled, in the district court held therein, to such stay as would be
accorded the judgment debtor had the action been maintained in the
courts of that state.
(g) Power of Appellate Court Not Limited. The provisions in this
rule do not limit any power of an appellate court or of a judge or
justice thereof to stay proceedings during the pendency of an appeal or
to suspend, modify, restore, or grant an injunction during the pendency
of an appeal or to make any order appropriate to preserve the status quo
or the effectiveness of the judgment subsequently to be entered.
(h) Stay of Judgment as to Multiple Claims or Multiple Parties. When
a court has ordered a final judgment under the conditions stated in Rule
54(b), the court may stay enforcement of that judgment until the
entering of a subsequent judgment or judgments and may prescribe such
conditions as are necessary to secure the benefit thereof to the party
in whose favor the judgment is entered.
(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.)
Note to Subdivision (a). The first sentence states the substance of
the last sentence of U.S.C., Title 28, (former) 874 (Supersedeas). The
remainder of the subdivision states the substance of the last clause of
U.S.C., Title 28, (former) 227 (Appeals in proceedings for injunctions;
receivers; and admiralty), and of (former) 227a (Appeals in suits in
equity for infringement of letters patent for inventions; stay of
proceedings for accounting), but extended to include final as well as
interlocutory judgments.
Note to Subdivision (b). This modifies U.S.C., Title 28, (former)
840 (Executions; stay on conditions).
Note to Subdivision (c). Compare (former) Equity Rule 74 (Injunction
Pending Appeal); and Cumberland Telephone and Telegraph Co. v.
Louisiana Public Service Commission, 260 U.S. 212, 43 S.Ct. 75, 67
L.Ed. 217 (1922). See Simkins, Federal Practice (1934) 916 in regard
to the effect of appeal on injunctions and the giving of bonds. See
U.S.C., (former) Title 6 (Official and Penal Bonds) for bonds by surety
companies. For statutes providing for a specially constituted district
court of three judges, see:
U.S.C., Title 7:
217 (Proceedings for suspension of orders of Secretary of
Agriculture under Stockyards Act) -- by reference.
499k (Injunctions; application of injunction laws governing
orders of Interstate Commerce Commission to orders of Secretary of
Agriculture under Perishable Commodities Act) -- by reference.
U.S.C., Title 15:
28 (Antitrust laws; suits against monopolies expedited)
U.S.C., Title 28:
47 (now 2325) (Injunctions as to orders of Interstate Commerce
Commission, etc.)
380 (now 2284) (Injunctions; alleged unconstitutionality of
State statutes.)
380a (now 2284) (Same; constitutionality of federal statute)
U.S.C., Title 49:
44 (former) (Suits in equity under interstate commerce laws;
expedition of suits)
Note to Subdivision (d). This modifies U.S.C., Title 28, (former)
874 (Supersedeas). See Rule 36(2), Rules of the Supreme Court of the
United States, which governs supersedeas bonds on direct appeals to the
Supreme Court, and Rule 73(d), of these rules, which governs supersedeas
bonds on appeals to a circuit court of appeals. The provisions
governing supersedeas bonds in both kinds of appeals are substantially
the same.
Note to Subdivision (e). This states the substance of U.S.C., Title
28, 870 (now 2408) (Bond; not required of the United States).
Note to Subdivision (f). This states the substance of U.S.C., Title
28, (former) 841 (Executions; stay of one term) with appropriate
modification to conform to the provisions of Rule 6(c) as to terms of
court.
Note. Subdivision (a). (This subdivision not amended). Sections 203
and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50
U.S.C. Appendix, 501 et seq. ( 523, 524), provide under certain
circumstances for the issuance and continuance of a stay of execution of
any judgment or order entered against a person in military service. See
Bowsman v. Peterson, D.Neb. 1942, 45 F.Supp. 741. Section 201 of the
Act (50 U.S.C. App. 521) permits under certain circumstances the
issuance of a stay of any action or proceeding at any stage thereof,
where either the plaintiff or defendant is a person in military service.
See also Note to Rule 64 herein.
Subdivision (b). This change was necessary because of the proposed
addition to Rule 59 of subdivision (e).
Subdivision (h). In proposing to revise Rule 54(b), the Committee
thought it advisable to include a separate provision in Rule 62 for stay
of enforcement of a final judgment in cases involving multiple claims.
The amendment effective October 1949 deleted at the end of
subdivision (g) the following language which originally appeared after
the word ''entered'': ''and these rules do not supersede the provisions
of Section 210 of the Judicial Code, as amended, U.S.C., Title 28, 47a,
or of other statutes of the United States to the effect that stays
pending appeals to the Supreme Court may be granted only by that court
or a justice thereof.''
The amendment adopted Apr. 17, 1961, eliminated words ''on some but
not all of the claims presented in the action'' which followed ''final
judgment''.
The amendment is technical. No substantive change is intended.
Deposit of bonds or notes of United States in lieu of surety, see
section 9303 of Title 31, Money and Finance.
Execution, see rule 69.
Security not required of United States, see section 2408 of this
title.
28 USC Rule 63. Inability of a Judge to Proceed
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
If a trial or hearing has been commenced and the judge is unable to
proceed, any other judge may proceed with it upon certifying familiarity
with the record and determining that the proceedings in the case may be
completed without prejudice to the parties. In a hearing or trial
without a jury, the successor judge shall at the request of a party
recall any witness whose testimony is material and disputed and who is
available to testify again without undue burden. The successor judge
may also recall any other witness.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
Dec. 1, 1991.)
This rule adapts and extends the provisions of U.S.C., Title 28,
(former) 776 (Bill of exceptions; authentication; signing of by
judge) to include all duties to be performed by the judge after verdict
or judgment. The statute is therefore superseded.
The amendments are technical. No substantive change is intended.
The revision substantially displaces the former rule. The former
rule was limited to the disability of the judge, and made no provision
for disqualification or possible other reasons for the withdrawal of the
judge during proceedings. In making provision for other circumstances,
the revision is not intended to encourage judges to discontinue
participation in a trial for any but compelling reasons. Cf. United
States v. Lane, 708 F.2d 1394, 1395-1397 (9th cir. 1983). Manifestly,
a substitution should not be made for the personal convenience of the
court, and the reasons for a substitution should be stated on the
record.
The former rule made no provision for the withdrawal of the judge
during the trial, but was limited to disqualification after trial.
Several courts concluded that the text of the former rule prohibited
substitution of a new judge prior to the points described in the rule,
thus requiring a new trial, whether or not a fair disposition was within
reach of a substitute judge. E.g., Whalen v. Ford Motor Credit Co. ,
684 F.2d 272 (4th Cir. 1982, en banc) cert. denied, 459 U.S. 910 (1982)
(jury trial); Arrow-Hart, Inc. v. Philip Carey Co. , 552 F.2d 711 (6th
Cir. 1977) (non-jury trial). See generally Comment, The Case of the
Dead Judge: Fed.R.Civ.P. 63: Whalen v. Ford Motor Credit Co. , 67
MINN. L. REV. 827 (1983).
The increasing length of federal trials has made it likely that the
number of trials interrupted by the disability of the judge will
increase. An efficient mechanism for completing these cases without
unfairness is needed to prevent unnecessary expense and delay. To avoid
the injustice that may result if the substitute judge proceeds despite
unfamiliarity with the action, the new Rule provides, in language
similar to Federal Rule of Criminal Procedure 25(a), that the successor
judge must certify familiarity with the record and determine that the
case may be completed before that judge without prejudice to the
parties. This will necessarily require that there be available a
transcript or a videotape of the proceedings prior to substitution. If
there has been a long but incomplete jury trial, the prompt availability
of the transcript or videotape is crucial to the effective use of this
rule, for the jury cannot long be held while an extensive transcript is
prepared without prejudice to one or all parties.
The revised text authorizes the substitute judge to make a finding of
fact at a bench trial based on evidence heard by a different judge.
This may be appropriate in limited circumstances. First, if a witness
has become unavailable, the testimony recorded at trial can be
considered by the successor judge pursuant to F.R.Ev. 804, being
equivalent to a recorded deposition available for use at trial pursuant
to Rule 32. For this purpose, a witness who is no longer subject to a
subpoena to compel testimony at trial is unavailable. Secondly, the
successor judge may determine that particular testimony is not material
or is not disputed, and so need not be reheard. The propriety of
proceeding in this manner may be marginally affected by the availability
of a videotape record; a judge who has reviewed a trial on videotape
may be entitled to greater confidence in his or her ability to proceed.
The court would, however, risk error to determine the credibility of
a witness not seen or heard who is available to be recalled. Cf.
Anderson v. City of Bessemer City NC, 470 U.S. 564, 575 (1985);
Marshall v. Jerrico Inc, 446 U.S. 238, 242 (1980). See also United
States v. Radatz, 447 U.S. 667 (1980).
Disability of judge, see rule 25, Title 18, Appendix, Crimes and
Criminal Procedure.
Findings of fact and conclusions of law, see rule 52.
New trial, see rule 59.
28 USC VIII. PROVISIONAL AND FINAL REMEDIES
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 64. Seizure of Person or Property
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
At the commencement of and during the course of an action, all
remedies providing for seizure of person or property for the purpose of
securing satisfaction of the judgment ultimately to be entered in the
action are available under the circumstances and in the manner provided
by the law of the state in which the district court is held, existing at
the time the remedy is sought, subject to the following qualifications:
(1) any existing statute of the United States governs to the extent to
which it is applicable; (2) the action in which any of the foregoing
remedies is used shall be commenced and prosecuted or, if removed from a
state court, shall be prosecuted after removal, pursuant to these rules.
The remedies thus available include arrest, attachment, garnishment,
replevin, sequestration, and other corresponding or equivalent remedies,
however designated and regardless of whether by state procedure the
remedy is ancillary to an action or must be obtained by an independent
action.
This rule adopts the existing Federal law, except that it specifies
the applicable State law to be that of the time when the remedy is
sought. Under U.S.C., Title 28, (former) 726 (Attachments as provided
by State laws) the plaintiff was entitled to remedies by attachment or
other process which were on June 1, 1872, provided by the applicable
State law, and the district courts might, from time to time, by general
rules, adopt such State laws as might be in force. This statute is
superseded as are district court rules which are rendered unnecessary by
the rule.
Lis pendens. No rule concerning lis pendens is stated, for this
would appear to be a matter of substantive law affecting State laws of
property. It has been held that in the absence of a State statute
expressly providing for the recordation of notice of the pendency of
Federal actions, the commencement of a Federal action is notice to all
persons affected. King v. Davis, 137 Fed. 198 (W.D.Va., 1903). It has
been held, however, that when a State statute does so provide expressly,
its provisions are binding. United States v. Calcasieu Timber Co., 236
Fed. 196 (C.C.A.5th, 1916).
For statutes of the United States on attachment, see e.g.:
U.S.C., Title 28:
737 (now 2710) (Attachment in postal suits) 738 (now 2711)
(Attachment; application for warrant) 739 (now 2712)
(Attachment; issue of warrant) 740 (now 2713) (Attachment;
trial of ownership of property) 741 (now 2714) (Attachment;
investment of proceeds of attached
property)
742 (now 2715) (Attachment; publication of attachment) 743 (now
2716) (Attachment; personal notice of attachment) 744 (now 2717)
(Attachment; discharge; bond) 745 (former) (Attachment;
accrued rights not affected) 746 (Attachments dissolved in
conformity with State laws)
For statutes of the United States on garnishment, see e.g.:
U.S.C., Title 28:
748 (now 2405) (Garnishees in suits by United States against a
corporation)
749 (now 2405) (Same; issue tendered on denial of indebtedness)
750 (now 2405) (Same; garnishee failing to appear)
For statutes of the United States on arrest, see e.g.:
U.S.C., Title 28:
376 (now 1651) (Writs of ne exeat) 755 (former) (Special bail in
suits for duties and penalties) 756 (former) (Defendant giving
bail in one district and
committed in another)
757 (former) (Defendant giving bail in one district and
committed in another; defendant held until judgment in first suit)
758 (former) (Bail and affidavits; taking by commissioners) 759
(former) (Calling of bail in Kentucky) 760 (former) (Clerks may
take bail de bene esse) 843 (now 2007) (Imprisonment for debt)
844 (now 2007) (Imprisonment for debt; discharge according to
State laws)
845 (now 2007) (Imprisonment for debt; jail limits)
For statutes of the United States on replevin, see, e.g.:
U.S.C., Title 28:
747 (now 2463) (Replevy of property taken under revenue laws)
Note. Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief
Act of 1940, 50 U.S.C. Appendix, 501 et seq. ( 523, 524), provide
under certain circumstances for the issuance and continuance of a stay
of the execution of any judgment entered against a person in military
service, or the vacation or stay of any attachment or garnishment
directed against such person's property, money, or debts in the hands of
another. See also Note to Rule 62 herein.
Execution, see rule 69.
28 USC Rule 65. Injunctions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without notice
to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or after
the commencement of the hearing of an application for a preliminary
injunction, the court may order the trial of the action on the merits to
be advanced and consolidated with the hearing of the application. Even
when this consolidation is not ordered, any evidence received upon an
application for a preliminary injunction which would be admissible upon
the trial on the merits becomes part of the record on the trial and need
not be repeated upon the trial. This subdivision (a)(2) shall be so
construed and applied as to save to the parties any rights they may have
to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A
temporary restraining order may be granted without written or oral
notice to the adverse party or that party's attorney only if (1) it
clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party or that
party's attorney can be heard in opposition, and (2) the applicant's
attorney certifies to the court in writing the efforts, if any, which
have been made to give the notice and the reasons supporting the claim
that notice should not be required. Every temporary restraining order
granted without notice shall be indorsed with the date and hour of
issuance; shall be filed forthwith in the clerk's office and entered of
record; shall define the injury and state why it is irreparable and why
the order was granted without notice; and shall expire by its terms
within such time after entry, not to exceed 10 days, as the court fixes,
unless within the time so fixed the order, for good cause shown, is
extended for a like period or unless the party against whom the order is
directed consents that it may be extended for a longer period. The
reasons for the extension shall be entered of record. In case a
temporary restraining order is granted without notice, the motion for a
preliminary injunction shall be set down for hearing at the earliest
possible time and takes precedence of all matters except older matters
of the same character; and when the motion comes on for hearing the
party who obtained the temporary restraining order shall proceed with
the application for a preliminary injunction and, if the party does not
do so, the court shall dissolve the temporary restraining order. On 2
days' notice to the party who obtained the temporary restraining order
without notice or on such shorter notice to that party as the court may
prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and
determine such motion as expeditiously as the ends of justice require.
(c) Security. No restraining order or preliminary injunction shall
issue except upon the giving of security by the applicant, in such sum
as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained. No such security shall be required
of the United States or of an officer or agency thereof.
The provisions of Rule 65.1 apply to a surety upon a bond or
undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order. Every order
granting an injunction and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe
in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained; and is binding only
upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order by
personal service or otherwise.
(e) Employer and Employee; Interpleader; Constitutional Cases.
These rules do not modify any statute of the United States relating to
temporary restraining orders and preliminary injunctions in actions
affecting employer and employee; or the provisions of Title 28, U.S.C.,
2361, relating to preliminary injunctions in actions of interpleader or
in the nature of interpleader; or Title 28, U.S.C., 2284, relating to
actions required by Act of Congress to be heard and determined by a
district court of three judges.
(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.)
Note to Subdivisions (a) and (b). These are taken from U.S.C., Title
28, (former) 381 (Injunctions; preliminary injunctions and temporary
restraining orders).
Note to Subdivision (c). Except for the last sentence, this is
substantially U.S.C., Title 28, (former) 382 (Injunctions; security on
issuance of). The last sentence continues the following and similar
statutes which expressly except the United States or an officer or
agency thereof from such security requirements: U.S.C., Title 15,
77t(b), 78u(e), and 79r(f) (Securities and Exchange Commission). It
also excepts the United States or an officer or agency thereof from such
security requirements in any action in which a restraining order or
interlocutory judgment of injunction issues in its favor whether there
is an express statutory exception from such security requirements or
not.
See U.S.C., (former) Title 6 (Official and Penal Bonds) for bonds by
surety companies.
Note to Subdivision (d). This is substantially U.S.C., Title 28,
(former) 383 (Injunctions; requisites of order; binding effect).
Note to Subdivision (e). The words ''relating to temporary
restraining orders and preliminary injunctions in actions affecting
employer and employee'' are words of description and not of limitation.
Compare (former) Equity Rule 73 (Preliminary Injunctions and
Temporary Restraining Orders) which is substantially equivalent to the
statutes.
For other statutes dealing with injunctions which are continued, see
e.g.:
U.S.C., Title 28:
46 (now 2324) (Suits to enjoin orders of Interstate Commerce
Commission to be against United States)
47 (now 2325) (Injunctions as to orders of Interstate Commerce
Commission; appeal to Supreme Court; time for taking)
378 (former) (Injunctions; when granted) 379 (now 2283)
(Injunctions; stay in State courts) 380 (now 1253, 2101, 2281,
2284) (Injunctions; alleged
unconstitutionality of State statutes; appeal to Supreme Court)
380a (now 1253, 2101, 2281, 2284) (Injunctions;
constitutionality of Federal statute; application for hearing; appeal
to Supreme Court)
U.S.C., Title 7:
216 (Court proceedings to enforce orders; injunction) 217
(Proceedings for suspension of orders)
U.S.C., Title 15:
4 (Jurisdiction of courts; duty of district attorney;
procedure)
25 (Restraining violations; procedure) 26 (Injunctive relief
for private parties; exceptions) 77t(b) (Injunctions and
prosecution of offenses)
Note. It has been held that in actions on preliminary injunction
bonds the district court has discretion to grant relief in the same
proceeding or to require the institution of a new action on the bond.
Russell v. Farley, 1881, 105 U.S. 433, 466. It is believed, however,
that in all cases the litigant should have a right to proceed on the
bond in the same proceeding, in the manner provided in Rule 73(f) for a
similar situation. The paragraph added to Rule 65(c) insures this
result and is in the interest of efficiency. There is no reason why
Rules 65(c) and 73(f) should operate differently. Compare 50, sub. n
of the Bankruptcy Act, 11 U.S.C. 78, sub. n, under which actions on
all bonds furnished pursuant to the Act may be proceeded upon summarily
in the bankruptcy court. See 2 Collier on Bankruptcy, 14th ed. by
Moore and Oglebay, 1853-1854.
The amendment effective October 1949, changed subdivision (e) in the
following respects: in the first clause the amendment substituted the
words ''any statute of the United States'' for the words ''the Act of
October 15, 1914, ch. 323, 1 and 20 (38 Stat. 730), U.S.C., Title 29,
52 and 53, or the Act of March 23, 1932, ch. 90 (47 Stat. 70),
U.S.C., Title 29, ch. 6''; in the second clause of subdivision (e) the
amendment substituted the reference to ''Title 28, U.S.C., 2361'' for
the reference to ''Section 24(26) of the Judicial Code as amended,
U.S.C., Title 28, 41(26)''; and the third clause was amended to read
''Title 28, U.S.C., 2284,'' etc., as at present, instead of ''the Act
of August 24, 1937, ch. 754, 3, relating to actions to enjoin the
enforcement of acts of Congress.''
Subdivision (a)(2). This new subdivision provides express authority
for consolidating the hearing of an application for a preliminary
injunction with the trial on the merits. The authority can be exercised
with particular profit when it appears that a substantial part of
evidence offered on the application will be relevant to the merits and
will be presented in such form as to qualify for admission on the trial
proper. Repetition of evidence is thereby avoided. The fact that the
proceedings have been consolidated should cause no delay in the
disposition of the application for the preliminary injunction, for the
evidence will be directed in the first instance to that relief, and the
preliminary injunction, if justified by the proof, may be issued in the
course of the consolidated proceedings. Furthermore, to consolidate the
proceedings will tend to expedite the final disposition of the action.
It is believed that consolidation can be usefully availed of in many
cases.
The subdivision further provides that even when consolidation is not
ordered, evidence received in connection with an application for a
preliminary injunction for a preliminary injunction which would be
admissible on the trial on the merits forms part of the trial record.
This evidence need not be repeated on the trial. On the the other hand,
repetition is not altogether prohibited. That would be impractical and
unwise. For example, a witness testifying comprehensively on the trial
who has previously testified upon the application for a preliminary
injunction might sometimes be hamstrung in telling his story if he could
not go over some part of his prior testimony to connect it with his
present testimony. So also, some repetition of testimony may be called
for where the trial is conducted by a judge who did not hear the
application for the preliminary injunction. In general, however,
repetition can be avoided with an increase of efficiency in the conduct
of the case and without any distortion of the presentation of evidence
by the parties.
Since an application for a preliminary injunction may be made in an
action in which, with respect to all or part of the merits, there is a
right to trial by jury, it is appropriate to add the caution appearing
in the last sentence of the subdivision. In such a case the jury will
have to hear all the evidence bearing on its verdict, even if some part
of the evidence has already been heard by the judge alone on the
application for the preliminary injunction.
The subdivision is believed to reflect the substance of the best
current practice and introduces no novel conception.
Subdivision (b). In view of the possibly drastic consequence of a
temporary restraining order, the opposition should be heard, if
feasible, before the order is granted. Many judges have properly
insisted that, when time does not permit of formal notice of the
application to the adverse party, some expedient, such as telephonic
notice to the attorney for the adverse party, be resorted to if this can
reasonably be done. On occasion, however, temporary restraining orders
have been issued without any notice when it was feasible for some fair,
although informal, notice to be given. See the emphatic criticisms in
Pennsylvania Rd. Co. v. Transport Workers Union, 278 F.2d 693, 694 (3d
Cir. 1960); Arvida Corp. v. Sugarman, 259 F.2d 428, 429 (2d Cir.
1958); Lummus Co. v. Commonwealth Oil Ref. Co., Inc., 297 F.2d 80, 83
(2d Cir. 1961), cert. denied, 368 U.S. 986 (1962).
Heretofore the first sentence of subdivision (b), in referring to a
notice ''served'' on the ''adverse party'' on which a ''hearing'' could
be held, perhaps invited the interpretation that the order might be
granted without notice if the circumstances did not permit of a formal
hearing on the basis of a formal notice. The subdivision is amended to
make it plain that informal notice, which may be communicated to the
attorney rather than the adverse party, is to be preferred to no notice
at all.
Before notice can be dispensed with, the applicant's counsel must
give his certificate as to any efforts made to give notice and the
reasons why notice should not be required. This certificate is in
addition to the requirement of an affidavit or verified complaint
setting forth the facts as to the irreparable injury which would result
before the opposition could be heard.
The amended subdivision continues to recognize that a temporary
restraining order may be issued without any notice when the
circumstances warrant.
Subdivision (c). Original Rules 65 and 73 contained substantially
identical provisions for summary proceedings against sureties on bonds
required or permitted by the rules. There was fragmentary coverage of
the same subject in the Admiralty Rules. Clearly, a single
comprehensive rule is required, and is incorporated as Rule 65.1.
The amendments are technical. No substantive change is intended.
Anti-trust laws, restraining violation, see section 4 of Title 15,
Commerce and Trade.
Appeals --
District Courts to courts of appeals, see section 1292 of this title.
Injunction pending, see rule 62.
Interlocutory orders of district courts to courts of appeals, see
section 1292 of this title.
Appellate court's power to suspend, modify or grant pending appeal,
see rule 62.
Atomic Energy Act, enjoining violation of act or regulation, see
section 2280 of Title 42, The Public Health and Welfare.
Bond for injunction pending appeal, see rule 62.
Clayton Act, violation of, see sections 25, 26 of Title 15, Commerce
and Trade.
Copyrights, injunction against infringement, see section 502 of Title
17, Copyrights.
Fair Labor Standards Act, restraint of violations of regulations, see
section 217 of Title 29, Labor.
Findings of fact and conclusions of law, necessity for, see rule 52.
Internal revenue, prohibition of suits to restrain assessment or
collection, see section 7421 of Title 26, Internal Revenue Code.
Labor-Management Relations Act --
Petition by Attorney General to enjoin strike or lockout, see section
178 of Title 29, Labor.
Restraining unfair labor practices, see sections 160, 161 of Title
29.
Patent infringement, see section 283 of Title 35, Patents.
Securities Act, actions to restrain violations, see section 77t of
Title 15, Commerce and Trade.
Securities Exchange Act, restraint of violations, see section 78u of
Title 15.
Three-Judge Court, composition of, see section 2284 of this title.
Trade-marks and trade-names, infringement, see section 78u of Title
15, Commerce and Trade.
28 USC Rule 65.1. Security: Proceedings Against Sureties
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Whenever these rules, including the Supplemental Rules for Certain
Admiralty and Maritime Claims, require or permit the giving of security
by a party, and security is given in the form of a bond or stipulation
or other undertaking with one or more sureties, each surety submits to
the jurisdiction of the court and irrevocably appoints the clerk of the
court as the surety's agent upon whom any papers affecting the surety's
liability on the bond or undertaking may be served. The surety's
liability may be enforced on motion without the necessity of an
independent action. The motion and such notice of the motion as the
court prescribes may be served on the clerk of the court, who shall
forthwith mail copies to the sureties if their addresses are known.
(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987,
eff. Aug. 1, 1987.)
See Note to Rule 65.
The amendments are technical. No substantive change is intended.
28 USC Rule 66. Receivers Appointed by Federal Courts
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
An action wherein a receiver has been appointed shall not be
dismissed except by order of the court. The practice in the
administration of estates by receivers or by other similar officers
appointed by the court shall be in accordance with the practice
heretofore followed in the courts of the United States or as provided in
rules promulgated by the district courts. In all other respects the
action in which the appointment of a receiver is sought or which is
brought by or against a receiver is governed by these rules.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
Oct. 20, 1949.)
Note. The title of Rule 66 has been expanded to make clear the
subject of the rule, i.e., federal equity receivers.
The first sentence added to Rule 66 prevents a dismissal by any
party, after a federal equity receiver has been appointed, except upon
leave of court. A party should not be permitted to oust the court and
its officer without the consent of that court. See Civil Rule 31(e),
Eastern District of Washington.
The second sentence added at the beginning of the rule deals with
suits by or against a federal equity receiver. The first clause thereof
eliminates the formal ceremony of an ancillary appointment before suit
can be brought by a receiver, and is in accord with the more modern
state practice, and with more expeditious and less expensive judicial
administration. 2 Moore's Federal Practice, 1938, 2088-2091. For the
rule necessitating ancillary appointment, see Sterrett v. Second Nat.
Bank, 1918, 248 U.S. 73, 39 S.Ct. 27; Kelley v. Queeney, W.D.N.Y.
1941, 41 F.Supp. 1015; see also McCandless v. Furlaud, 1934, 293 U.S.
67, 55 S.Ct. 42. This rule has been extensively criticized. First,
Extraterritorial Powers of Receivers, 1932, 27 Ill.L.Rev. 271; Rose,
Extraterritorial Actions by Receivers, 1933, 17 Minn.L.Rev. 704;
Laughlin, The Extraterritorial Powers of Receivers, 1932, 45 Harv.L.Rev.
429; Clark and Moore, A New Federal Civil Procedure -- II, Pleadings
and Parties, 1935, 44 Yale L.J. 1291, 1312-1315; Note, 1932, 30
Mich.L.Rev. 1322. See also comment in Bicknell v. Lloyd-Smith,
C.C.A.2d, 1940, 109 F.2d 527, cert. den., 1940, 311 U.S. 650, 61 S.Ct.
15. The second clause of the sentence merely incorporates the well-known
and general rule that, absent statutory authorization, a federal
receiver cannot be sued without leave of the court which appointed him,
applied in the federal courts since Barton v. Barbour, 1881, 104 U.S.
126. See also 1 Clark on Receivers, 2d ed., 549. Under 28 U.S.C. 125
leave of court is unnecessary when a receiver is sued ''in respect of
any act or transaction of his in carrying on the business'' connected
with the receivership property, but such suit is subject to the general
equity jurisdiction of the court in which the receiver was appointed, so
far as justice necessitates.
Capacity of a state court receiver to sue or be sued in federal court
is governed by Rule 17(b).
The last sentence added to Rule 66 assures the application of the
rules in all matters except actual administration of the receivership
estate itself. Since this implicitly carries with it the applicability
of those rules relating to appellate procedure, the express reference
thereto contained in Rule 66 has been stricken as superfluous. Under
Rule 81(a)(1) the rules do not apply to bankruptcy proceedings except as
they may be made applicable by order of the Supreme Court. Rule 66 is
applicable to what is commonly known as a federal ''chancery'' or
''equity'' receiver, or similar type of court officer. It is not
designed to regulate or affect receivers in bankruptcy, which are
governed by the Bankruptcy Act and the General Orders. Since the
Federal Rules are applicable in bankruptcy by virtue of General Orders
in Bankruptcy 36 and 37 (following section 53 of Title 11, U.S.C.) only
to the extent that they are not inconsistent with the Bankruptcy Act or
the General Orders, Rule 66 is not applicable to bankruptcy receivers.
See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay,
2.23-2.36.
The amendment effective October 1949 deleted a sentence which
formerly appeared immediately following the first sentence and which
read as follows: ''A receiver shall have the capacity to sue in any
district court without ancillary appointment; but actions against a
receiver may not be commenced without leave of the court appointing him
except when authorized by a statute of the United States.''
Receiver suable without leave of court, see section 959 of this
title.
28 USC Rule 67. Deposit in Court
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
In an action in which any part of the relief sought is a judgment for
a sum of money or the disposition of a sum of money or the disposition
of any other thing capable of delivery, a party, upon notice to every
other party, and by leave of court, may deposit with the court all or
any part of such sum or thing, whether or not that party claims all or
any part of the sum or thing. The party making the deposit shall serve
the order permitting deposit on the clerk of the court. Money paid into
court under this rule shall be deposited and withdrawn in accordance
with the provisions of Title 28, U.S.C., 2041, and 2042; the Act of
June 26, 1934, c. 756, 23, as amended (48 Stat. 1236, 58 Stat. 845),
U.S.C., Title 31, 725v; /1/ or any like statute. The fund shall be
deposited in an interest-bearing account or invested in an
interest-bearing instrument approved by the court.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff.
Aug. 1, 1983.)
This rule provides for deposit in court generally, continuing similar
special provisions contained in such statutes as U.S.C., Title 28,
41(26) (now 1335, 1397, 2361) (Original jurisdiction of bills of
interpleader, and of bills in the nature of interpleader). See
generally Howard v. United States, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed.
754 (1902); United States Supreme Court Admiralty Rules (1920), Rules
37 (Bringing Funds into Court), 41 (Funds in Court Registry), and 42
(Claims Against Proceeds in Registry). With the first sentence, compare
English Rules Under the Judicature Act (The Annual Practice, 1937) O.
22, r. 1(1).
The amendment effective October 1949 substituted the reference to
''Title 28, U.S.C.A. 2041, and 2042'' for the reference to ''Sections
995 and 996, Revised Statutes, as amended, U.S.C.A., Title 28, 851,
852.'' The amendment also added the words ''as amended'' following the
citation of the Act of June 26, 1934, ch. 756, 23, and in the
parenthetical citation immediately following, added the reference to
''58 Stat. 845''.
Rule 67 has been amended in three ways. The first change is the
addition of the clause in the first sentence. Some courts have
construed the present rule to permit deposit only when the party making
it claims no interest in the fund or thing deposited. E.g.,
Blasin-Stern v. Beech-Nut Life Savers Corp., 429 F.Supp. 533 (D.
Puerto Rico 1975); Dinkins v. General Aniline & Film Corp., 214
F.Supp. 281 (S.D.N.Y. 1963). However, there are situations in which a
litigant may wish to be relieved of responsibility for a sum or thing,
but continue to claim an interest in all or part of it. In these cases
the deposit-in-court procedure should be available; in addition to the
advantages to the party making the deposit, the procedure gives other
litigants assurance that any judgment will be collectable. The
amendment is intended to accomplish that.
The second change is the addition of a requirement that the order of
deposit be served on the clerk of the court in which the sum or thing is
to be deposited. This is simply to assure that the clerk knows what is
being deposited and what his responsibilities are with respect to the
deposit. The latter point is particularly important since the rule as
amended contemplates that deposits will be placed in interest-bearing
accounts; the clerk must know what treatment has been ordered for the
particular deposit.
The third change is to require that any money be deposited in an
interest-bearing account or instrument approved by the court.
Act of June 26, 1934, c. 756, 23, as amended (48 Stat. 1236, 58
Stat. 845), 31 U.S.C. 725v, referred to in text, was repealed by Pub.
L. 97-258, 5(b), Sept. 13, 1982, 96 Stat. 1074, the first section of
which enacted Title 31, Money and Finance. Insofar as not superseded by
sections 2041 and 2042 of Title 28, Judiciary and Judicial Procedure,
the Act of June 26, 1934, 23, as amended (31 U.S.C. 725v) was reenacted
as sections 572a and 2043 of Title 28 by Pub. L. 97-258, 2(g)(3), (4).
/1/ See References in Text note below.
28 USC Rule 68. Offer of Judgment
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an offer to
allow judgment to be taken against the defending party for the money or
property or to the effect specified in the offer, with costs then
accrued. If within 10 days after the service of the offer the adverse
party serves written notice that the offer is accepted, either party may
then file the offer and notice of acceptance together with proof of
service thereof and thereupon the clerk shall enter judgment. An offer
not accepted shall be deemed withdrawn and evidence thereof is not
admissible except in a proceeding to determine costs. If the judgment
finally obtained by the offeree is not more favorable than the offer,
the offeree must pay the costs incurred after the making of the offer.
The fact that an offer is made but not accepted does not preclude a
subsequent offer. When the liability of one party to another has been
determined by verdict or order or judgment, but the amount or extent of
the liability remains to be determined by further proceedings, the party
adjudged liable may make an offer of judgment, which shall have the same
effect as an offer made before trial if it is served within a reasonable
time not less than 10 days prior to the commencement of hearings to
determine the amount or extent of liability.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff.
July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)
See 2 Minn. Stat. (Mason, 1927) 9323; 4 Mont. Rev. Codes Ann.
(1935) 9770; N.Y.C.P.A. (1937) 177.
For the recovery of costs against the United States, see Rule 54(d).
Note. The third sentence of Rule 68 has been altered to make clear
that evidence of an unaccepted offer is admissible in a proceeding to
determine the costs of the action but is not otherwise admissible.
The two sentences substituted for the deleted last sentence of the
rule assure a party the right to make a second offer where the situation
permits -- as, for example, where a prior offer was not accepted but the
plaintiff's judgment is nullified and a new trial ordered, whereupon the
defendant desires to make a second offer. It is implicit, however, that
as long as the case continues -- whether there be a first, second or
third trial -- and the defendant makes no further offer, his first and
only offer will operate to save him the costs from the time of that
offer if the plaintiff ultimately obtains a judgment less than the sum
offered. In the case of successive offers not accepted, the offeror is
saved the costs incurred after the making of the offer which was equal
to or greater than the judgment ultimately obtained. These provisions
should serve to encourage settlements and avoid protracted litigation.
The phrase ''before the trial begins'', in the first sentence of the
rule, has been construed in Cover v. Chicago Eye Shield Co., C.C.A.7th,
1943, 136 F.2d 374, cert. den. 1943, 320 U.S. 749, 64 S.Ct. 53.
This logical extension of the concept of offer of judgment is
suggested by the common admiralty practice of determining liability
before the amount of liability is determined.
The amendments are technical. No substantive change is intended.
28 USC Rule 69. Execution
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) In General. Process to enforce a judgment for the payment of
money shall be a writ of execution, unless the court directs otherwise.
The procedure on execution, in proceedings supplementary to and in aid
of a judgment, and in proceedings on and in aid of execution shall be in
accordance with the practice and procedure of the state in which the
district court is held, existing at the time the remedy is sought,
except that any statute of the United States governs to the extent that
it is applicable. In aid of the judgment or execution, the judgment
creditor or a successor in interest when that interest appears of
record, may obtain discovery from any person, including the judgment
debtor, in the manner provided in these rules or in the manner provided
by the practice of the state in which the district court is held.
(b) Against Certain Public Officers. When a judgment has been
entered against a collector or other officer of revenue under the
circumstances stated in Title 28, U.S.C., 2006, or against an officer
of Congress in an action mentioned in the Act of March 3, 1875, ch.
130, 8 (18 Stat. 401), U.S.C., Title 2, 118, and when the court has
given the certificate of probable cause for the officer's act as
provided in those statutes, execution shall not issue against the
officer or the officer's property but the final judgment shall be
satisfied as provided in such statutes.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff.
July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.)
Note to Subdivision (a). This follows in substance U.S.C., Title 28,
(former) 727 (Executions as provided by State laws) and 729 (now Title
42, 1988) (Proceedings in vindication of civil rights), except that, as
in the similar case of attachments (see note to Rule 64), the rule
specifies the applicable State law to be that of the time when the
remedy is sought, and thus renders unnecessary, as well as supersedeas,
local district court rules.
Statutes of the United States on execution, when applicable, govern
under this rule. Among these are:
U.S.C., Title 12:
91 (Transfers by bank and other acts in contemplation of
insolvency)
632 (Jurisdiction of United States district courts in cases
arising out of foreign banking jurisdiction where Federal reserve bank a
party)
U.S.C., Title 19:
199 (Judgments for customs duties, how payable)
U.S.C., Title 26:
1610(a) (former) (Surrender of property subject to distraint)
U.S.C., Title 28:
122 (now 1656) (Creation of new district or transfer of
territory; lien)
350 (now 2101) (Time for making application for appeal or
certiorari; stay pending application for certiorari)
489 (now 547) (District Attorneys; reports to Department of
Justice)
574 (now 1921) (Marshals, fees enumerated) 786 (former)
(Judgments for duties; collected in coin) 811 (now 1961)
(Interest on judgments) 838 (former) (Executions; run in all
districts of State) 839 (now 2413) (Executions; run in every
State and Territory) 840 (former) (Executions; stay on
conditions), as modified by
Rule 62(b).
841 (former) (Executions; stay of one term), as modified by
Rule 62(f)
842 (now 2006) (Executions; against officers of revenue in
cases of probable cause), as incorporated in Subdivision (b) of this
rule
843 (now 2007) (Imprisonment for debt) 844 (now 2007)
(Imprisonment for debt; discharge according to
State laws)
845 (now 2007) (Imprisonment for debt; jail limits) 846 (now
2005) (Fieri Facias; appraisal of goods; appraisers) 847 (now
2001) (Sales; real property under order or decree) 848 (now
2004) (Sales; personal property under order or decree) 849 (now
2002) (Sales; necessity of notice) 850 (now 2003) (Sales; death
of marshal after levy or after
sale)
869 (former) (Bond in former error and on appeal) as
incorporated in Rule 73(c)
874 (former) (Supersedeas), as modified by Rules 62(d) and 73(d)
U.S.C., Title 31:
195 (now 3715) (Purchase on execution)
U.S.C., Title 33:
918 (Collection of defaulted payments)
U.S.C., Title 49:
74(g) (former) (Causes of action arising out of Federal control
of railroads; execution and other process)
Special statutes of the United States on exemption from execution are
also continued. Among these are:
U.S.C., Title 2:
118 (Actions against officers of Congress for official acts)
U.S.C., Title 5:
729 (see 8346, 8470) (Federal employees retirement annuities not
subject to assignment, execution, levy, or other legal process)
U.S.C., Title 10:
610 (now 3690, 8690) (Exemption of enlisted men from arrest on
civil process)
U.S.C., Title 22:
21(h) (see 4060) (Foreign service retirement and disability
system; establishment; rules and regulations; annuities;
nonassignable; exemption from legal process)
U.S.C., Title 33:
916 (Assignment and exemption from claims of creditors)
Longshoremen's and Harborworkers' Compensation Act)
U.S.C., Title 38:
54 (see 5301) (Attachment, levy or seizure of moneys due
pensioners prohibited)
393 (former) (Army and Navy Medal of Honor Roll; pensions
additional to other pensions; liability to attachment, etc.) Compare
Title 34, 365(c) (Medal of Honor Roll; special pension to persons
enrolled)
618 (see 3101) (Benefits exempt from seizure under process and
taxation; no deductions for indebtedness to United States)
U.S.C., Title 43:
175 (Exemption from execution of homestead land)
U.S.C., Title 48:
1371o (Panama Canal and railroad retirement annuities, exemption
from execution and so forth)
Note. With respect to the provisions of the Soldiers' and Sailors'
Civil Relief Act of 1940, 50 U.S.C. Appendix, 501 et seq., see Notes to
Rules 62 and 64 herein.
The amendment effective October 1949 substituted the citation of
''Title 28, U.S.C., 2006'' in subdivision (b) in place of the citation
to ''Section 989, Revised Statutes, U.S.C., Title 28, 842''.
The amendment assures that, in aid of execution on a judgment, all
discovery procedures provided in the rules are available and not just
discovery via the taking of a deposition. Under the present language,
one court has held that Rule 34 discovery is unavailable to the judgment
creditor. M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co.,
11 F.R.D. 172 (E.D.Pa. 1951). Notwithstanding the language, and relying
heavily on legislative history referring to Rule 33, the Fifth Circuit
has held that a judgment creditor may invoke Rule 33 interrogatories.
United States v. McWhirter, 376 F.2d 102 (5th Cir. 1967). But the
court's reasoning does not extend to discovery except as provided in
Rules 26-33. One commentator suggests that the existing language might
properly be stretched to all discovery, 7 Moore's Federal Practice
69.05(1) (2d ed. 1966), but another believes that a rules amendment is
needed. 3 Barron & Holtzoff, Federal Practice and Procedure 1484
(Wright ed. 1958). Both commentators and the court in McWhirter are
clear that, as a matter of policy, Rule 69 should authorize the use of
all discovery devices provided in the rules.
The amendments are technical. No substantive change is intended.
Execution against revenue officers, see section 2006 of this title.
Executions and judicial sales, see section 2001 et seq. of this
title.
Executions in favor of United States, see section 2413 of this title.
Power to issue writ of execution, see section 1651 of this title.
Seizure of person or property for satisfaction of judgment, see rule
64.
Stay of execution of judgment, see rule 62.
Writ of execution for delivery of possession, see rule 70.
28 USC Rule 70. Judgment for Specific Acts; Vesting Title
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
If a judgment directs a party to execute a conveyance of land or to
deliver deeds or other documents or to perform any other specific act
and the party fails to comply within the time specified, the court may
direct the act to be done at the cost of the disobedient party by some
other person appointed by the court and the act when so done has like
effect as if done by the party. On application of the party entitled to
performance, the clerk shall issue a writ of attachment or sequestration
against the property of the disobedient party to compel obedience to the
judgment. The court may also in proper cases adjudge the party in
contempt. If real or personal property is within the district, the
court in lieu of directing a conveyance thereof may enter a judgment
divesting the title of any party and vesting it in others and such
judgment has the effect of a conveyance executed in due form of law.
When any order or judgment is for the delivery of possession, the party
in whose favor it is entered is entitled to a writ of execution or
assistance upon application to the clerk.
Compare (former) Equity Rules 7 (Process, Mesne and Final), 8
(Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid
possible confusion, both old and new denominations for attachment
(sequestration) and execution (assistance) are used in this rule.
Compare with the provision in this rule that the judgment may itself
vest title, 6 Tenn.Ann.Code (Williams, 1934), 10594; 2 Conn.Gen.Stat.
(1930), 5455; N.M.Stat.Ann. (Courtright, 1929), 117-117; 2 Ohio
Gen.Code Ann. (Page, 1926), 11590; and England, Supreme Court of
Judicature Act (1925), 47.
Contempts, power of court, see section 401 of Title 18, Crimes and
Criminal Procedure.
Execution, see rule 69.
Power to issue writs, see section 1651 of this title.
Remedies of attachment and sequestration, see rule 64.
28 USC Rule 71. Process in Behalf of and Against Persons Not Parties
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
When an order is made in favor of a person who is not a party to the
action, that person may enforce obedience to the order by the same
process as if a party; and, when obedience to an order may be lawfully
enforced against a person who is not a party, that person is liable to
the same process for enforcing obedience to the order as if a party.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Compare (former) Equity Rule 11 (Process in Behalf of and Against
Persons Not Parties). Compare also Terrell v. Allison, 21 Wall. 289,
22 L.Ed. 634 (U.C., 1875); Farmers' Loan and Trust Co. v. Chicago and
A. Ry. Co., 44 Fed. 653 (C.C.Ind., 1890); Robert Findlay Mfg. Co. v.
Hygrade Lighting Fixture Corp., 288 Fed. 80 (E.D.N.Y., 1923); Thompson
v. Smith, Fed.Cas.No. 13,977 (C.C.Minn., 1870).
The amendments are technical. No substantive change is intended.
Execution, see rule 69.
Parties generally, see rules 17 to 25.
Power to issue writs, see section 1651 of this title.
Process generally, see rule 4.
Writs of attachment, sequestration and equivalent remedies, see rule
64.
28 USC IX. SPECIAL PROCEEDINGS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 71A. Condemnation of Property
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Applicability of Other Rules. The Rules of Civil Procedure for
the United States District Courts govern the procedure for the
condemnation of real and personal property under the power of eminent
domain, except as otherwise provided in this rule.
(b) Joinder of Properties. The plaintiff may join in the same action
one or more separate pieces of property, whether in the same or
different ownership and whether or not sought for the same use.
(c) Complaint.
(1) Caption. The complaint shall contain a caption as provided in
Rule 10(a), except that the plaintiff shall name as defendants the
property, designated generally by kind, quantity, and location, and at
least one of the owners of some part of or interest in the property.
(2) Contents. The complaint shall contain a short and plain
statement of the authority for the taking, the use for which the
property is to be taken, a description of the property sufficient for
its identification, the interests to be acquired, and as to each
separate piece of property a designation of the defendants who have been
joined as owners thereof or of some interest therein. Upon the
commencement of the action, the plaintiff need join as defendants only
the persons having or claiming an interest in the property whose names
are then known, but prior to any hearing involving the compensation to
be paid for a piece of property, the plaintiff shall add as defendants
all persons having or claiming an interest in that property whose names
can be ascertained by a reasonably diligent search of the records,
considering the character and value of the property involved and the
interests to be acquired, and also those whose names have otherwise been
learned. All others may be made defendants under the designation
''Unknown Owners.'' Process shall be served as provided in subdivision
(d) of this rule upon all defendants, whether named as defendants at the
time of the commencement of the action or subsequently added, and a
defendant may answer as provided in subdivision (e) of this rule. The
court meanwhile may order such distribution of a deposit as the facts
warrant.
(3) Filing. In addition to filing the complaint with the court, the
plaintiff shall furnish to the clerk at least one copy thereof for the
use of the defendants and additional copies at the request of the clerk
or of a defendant.
(d) Process.
(1) Notice; Delivery. Upon the filing of the complaint the plaintiff
shall forthwith deliver to the clerk joint or several notices directed
to the defendants named or designated in the complaint. Additional
notices directed to defendants subsequently added shall be so delivered.
The delivery of the notice and its service have the same effect as the
delivery and service of the summons under Rule 4.
(2) Same; Form. Each notice shall state the court, the title of the
action, the name of the defendant to whom it is directed, that the
action is to condemn property, a description of the defendant's property
sufficient for its identification, the interest to be taken, the
authority for the taking, the uses for which the property is to be
taken, that the defendant may serve upon the plaintiff's attorney an
answer within 20 days after service of the notice, and that the failure
so to serve an answer constitutes a consent to the taking and to the
authority of the court to proceed to hear the action and to fix the
compensation. The notice shall conclude with the name of the
plaintiff's attorney and an address within the district in which action
is brought where the attorney may be served. The notice need contain a
description of no other property than that to be taken from the
defendants to whom it is directed.
(3) Service of Notice.
(i) Personal Service. Personal service of the notice (but without
copies of the complaint) shall be made in accordance with Rule 4(c) and
(d) upon a defendant who resides within the United States or its
territories or insular possessions and whose residence is known.
(ii) Service by Publication. Upon the filing of a certificate of the
plaintiff's attorney stating that the attorney believes a defendant
cannot be personally served, because after diligent inquiry within the
state in which the complaint is filed the attorney's place of residence
cannot be ascertained by the plaintiff or, if ascertained, that it is
beyond the territorial limits of personal service as provided in this
rule, service of the notice shall be made on this defendant by
publication in a newspaper published in the county where the property is
located, or if there is no such newspaper, then in a newspaper having a
general circulation where the property is located, once a week for not
less than three successive weeks. Prior to the last publication, a copy
of the notice shall also be mailed to a defendant who cannot be
personally served as provided in this rule but whose place of residence
is then known. Unknown owners may be served by publication in like
manner by a notice addressed to ''Unknown Owners.''
Service by publication is complete upon the date of the last
publication. Proof of publication and mailing shall be made by
certificate of the plaintiff's attorney, to which shall be attached a
printed copy of the published notice with the name and dates of the
newspaper marked thereon.
(4) Return; Amendment. Proof of service of the notice shall be made
and amendment of the notice or proof of its service allowed in the
manner provided for the return and amendment of the summons under Rule
4(g) and (h).
(e) Appearance or Answer. If a defendant has no objection or defense
to the taking of the defendant's property, the defendant may serve a
notice of appearance designating the property in which the defendant
claims to be interested. Thereafter, the defendant shall receive notice
of all proceedings affecting it. If a defendant has any objection or
defense to the taking of the property, the defendant shall serve an
answer within 20 days after the service of notice upon the defendant.
The answer shall identify the property in which the defendant claims to
have an interest, state the nature and extent of the interest claimed,
and state all the defendant's objections and defenses to the taking of
the property. A defendant waives all defenses and objections not so
presented, but at the trial of the issue of just compensation, whether
or not the defendant has previously appeared or answered, the defendant
may present evidence as to the amount of the compensation to be paid for
the property, and the defendant may share in the distribution of the
award. No other pleading or motion asserting any additional defense or
objection shall be allowed.
(f) Amendment of Pleadings. Without leave of court, the plaintiff
may amend the complaint at any time before the trial of the issue of
compensation and as many times as desired, but no amendment shall be
made which will result in a dismissal forbidden by subdivision (i) of
this rule. The plaintiff need not serve a copy of an amendment, but
shall serve notice of the filing, as provided in Rule 5(b), upon any
party affected thereby who has appeared and, in the manner provided in
subdivision (d) of this rule, upon any party affected thereby who has
not appeared. The plaintiff shall furnish to the clerk of the court for
the use of the defendants at least one copy of each amendment and shall
furnish additional copies on the request of the clerk or of a defendant.
Within the time allowed by subdivision (e) of this rule a defendant may
serve an answer to the amended pleading, in the form and manner and with
the same effect as there provided.
(g) Substitution of Parties. If a defendant dies or becomes
incompetent or transfers an interest after the defendant's joinder, the
court may order substitution of the proper party upon motion and notice
of hearing. If the motion and notice of hearing are to be served upon a
person not already a party, service shall be made as provided in
subdivision (d)(3) of this rule.
(h) Trial. If the action involves the exercise of the power of
eminent domain under the law of the United States, any tribunal
specially constituted by an Act of Congress governing the case for the
trial of the issue of just compensation shall be the tribunal for the
determination of that issue; but if there is no such specially
constituted tribunal any party may have a trial by jury of the issue of
just compensation by filing a demand therefor within the time allowed
for answer or within such further time as the court may fix, unless the
court in its discretion orders that, because of the character, location,
or quantity of the property to be condemned, or for other reasons in the
interest of justice, the issue of compensation shall be determined by a
commission of three persons appointed by it.
In the event that a commission is appointed the court may direct that
not more than two additional persons serve as alternate commissioners to
hear the case and replace commissioners who, prior to the time when a
decision is filed, are found by the court to be unable or disqualified
to perform their duties. An alternate who does not replace a regular
commissioner shall be discharged after the commission renders its final
decision. Before appointing the members of the commission and
alternates the court shall advise the parties of the identity and
qualifications of each prospective commissioner and alternate and may
permit the parties to examine each such designee. The parties shall not
be permitted or required by the court to suggest nominees. Each party
shall have the right to object for valid cause to the appointment of any
person as a commissioner or alternate. If a commission is appointed it
shall have the powers of a master provided in subdivision (c) of Rule 53
and proceedings before it shall be governed by the provisions of
paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and
report shall be determined by a majority and its findings and report
shall have the effect, and be dealt with by the court in accordance with
the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53.
Trial of all issues shall otherwise be by the court.
(i) Dismissal of Action.
(1) As of Right. If no hearing has begun to determine the
compensation to be paid for a piece of property and the plaintiff has
not acquired the title or a lesser interest in or taken possession, the
plaintiff may dismiss the action as to that property, without an order
of the court, by filing a notice of dismissal setting forth a brief
description of the property as to which the action is dismissed.
(2) By Stipulation. Before the entry of any judgment vesting the
plaintiff with title or a lesser interest in or possession of property,
the action may be dismissed in whole or in part, without an order of the
court, as to any property by filing a stipulation of dismissal by the
plaintiff and the defendant affected thereby; and, if the parties so
stipulate, the court may vacate any judgment that has been entered.
(3) By Order of the Court. At any time before compensation for a
piece of property has been determined and paid and after motion and
hearing, the court may dismiss the action as to that property, except
that it shall not dismiss the action as to any part of the property of
which the plaintiff has taken possession or in which the plaintiff has
taken title or a lesser interest, but shall award just compensation for
the possession, title or lesser interest so taken. The court at any
time may drop a defendant unnecessarily or improperly joined.
(4) Effect. Except as otherwise provided in the notice, or
stipulation of dismissal, or order of the court, any dismissal is
without prejudice.
(j) Deposit and Its Distribution. The plaintiff shall deposit with
the court any money required by law as a condition to the exercise of
the power of eminent domain; and, although not so required, may make a
deposit when permitted by statute. In such cases the court and
attorneys shall expedite the proceedings for the distribution of the
money so deposited and for the ascertainment and payment of just
compensation. If the compensation finally awarded to any defendant
exceeds the amount which has been paid to that defendant on distribution
of the deposit, the court shall enter judgment against the plaintiff and
in favor of that defendant for the deficiency. If the compensation
finally awarded to any defendant is less than the amount which has been
paid to that defendant, the court shall enter judgment against that
defendant and in favor of the plaintiff for the overpayment.
(k) Condemnation Under a State's Power of Eminent Domain. The
practice as herein prescribed governs in actions involving the exercise
of the power of eminent domain under the law of a state, provided that
if the state law makes provision for trial of any issue by jury, or for
trial of the issue of compensation by jury or commission or both, that
provision shall be followed.
(l) Costs. Costs are not subject to Rule 54(d).
(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; Nov. 18, 1988,
Pub. L. 100-690, title VII, 7050, 102 Stat. 4401.)
Supplementary report
The Court will remember that at its conference on December 2, 1948,
the discussion was confined to subdivision (h) of the rule (* * *), the
particular question being whether the tribunal to award compensation
should be a commission or a jury in cases where the Congress has not
made specific provision on the subject. The Advisory Committee was
agreed from the outset that a rule should not be promulgated which would
overturn the decision of the Congress as to the kind of tribunal to fix
compensation, provided that the system established by Congress was found
to be working well. We found two instances where the Congress had
specified the kind of tribunal to fix compensation. One case was the
District of Columbia (U.S.C., Title 40, 361-386 (now D.C. Code, Title
16, 1301 et seq.)) where a rather unique system exists under which the
court is required in all cases to order the selection of a ''jury'' of
five from among not less than twenty names drawn from ''the special box
provided by law.'' They must have the usual qualifications of jurors and
in addition must be freeholders of the District and not in the service
of the United States or the District. That system has been in effect
for many years, and our inquiry revealed that it works well under the
conditions prevailing in the District, and is satisfactory to the courts
of the District, the legal profession and to property owners.
The other instance is that of the Tennessee Valley Authority, where
the act of Congress (U.S.C., Title 16, 831x) provides that compensation
is fixed by three disinterested commissioners appointed by the court,
whose award goes before the District Court for confirmation or
modification. The Advisory Committee made a thorough inquiry into the
practical operation of the TVA commission system. We obtained from
counsel for the TVA the results of their experience, which afforded
convincing proof that the commission system is preferable under the
conditions affecting TVA and that the jury system would not work
satisfactorily. We then, under date of February 6, 1947, wrote every
Federal judge who had ever sat in a TVA condemnation case, asking his
views as to whether the commission system is satisfactory and whether a
jury system should be preferred. Of 21 responses from the judges 17
approved the commission system and opposed the substitution of a jury
system for the TVA. Many of the judges went further and opposed the use
of juries in any condemnation cases. Three of the judges preferred the
jury system, and one dealt only with the TVA provision for a three judge
district court. The Advisory Committee has not considered abolition of
the three judge requirement of the TVA Act, because it seemed to raise a
question of jurisdiction, which cannot be altered by rule. Nevertheless
the Department of Justice continued its advocacy of the jury system for
its asserted expedition and economy; and others favored a uniform
procedure. In consequence of these divided counsels the Advisory
Committee was itself divided, but in its May 1948 Report to the Court
recommended the following rule as approved by a majority (* * *):
(h) Trial. If the action involves the exercise of the power of
eminent domain under the law of the United States, any tribunal
specially constituted by an Act of Congress governing the case for the
trial of the issue of just compensation shall be the tribunal for the
determination of that issue; but if there is no such specially
constituted tribunal any party may have a trial by jury of the issue of
just compensation by filing a demand therefor within the time allowed
for answer or within such further time as the court may fix. Trial of
all issues shall otherwise be by the court.
The effect of this was to preserve the existing systems in the
District of Columbia and in TVA cases, but to provide for a jury to fix
compensation in all other cases.
Before the Court's conference of December 2, 1948, the Chief Justice
informed the Committee that the Court was particularly interested in the
views expressed by Judge John Paul, judge of the United States District
Court for the Western District of Virginia, in a letter from him to the
chairman of the Advisory Committee, dated February 13, 1947. Copies of
all the letters from judges who had sat in TVA cases had been made
available to the Court, and this letter from Judge Paul is one of them.
Judge Paul strongly opposed jury trials and recommended the commission
system in large projects like the TVA, and his views seemed to have
impressed the Court and to have been the occasion for the conference.
The reasons which convinced the Advisory Committee that the use of
commissioners instead of juries is desirable in TVA cases were these:
1. The TVA condemns large areas of land of similar kind, involving
many owners. Uniformity in awards is essential. The commission system
tends to prevent discrimination and provide for uniformity in
compensation. The jury system tends to lack of uniformity. Once a
reasonable and uniform standard of values for the area has been settled
by a commission, litigation ends and settlements result.
2. Where large areas are involved many small landowners reside at
great distances from the place where a court sits. It is a great
hardship on humble people to have to travel long distances to attend a
jury trial. A commission may travel around and receive the evidence of
the owner near his home.
3. It is impracticable to take juries long distances to view the
premises.
4. If the cases are tried by juries the burden on the time of the
courts is excessive.
These considerations are the very ones Judge Paul stressed in his
letter. He pointed out that they applied not only to the TVA but to
other large governmental projects, such as flood control, hydroelectric
power, reclamation, national forests, and others. So when the
representatives of the Advisory Committee appeared at the Court's
conference December 2, 1948, they found it difficult to justify the
proposed provision in subdivision (h) of the rule that a jury should be
used to fix compensation in all cases where Congress had not specified
the tribunal. If our reasons for preserving the TVA system were sound,
provision for a jury in similar projects of like magnitude seemed
unsound.
Aware of the apparent inconsistency between the acceptance of the TVA
system and the provision for a jury in all other cases, the members of
the Committee attending the conference of December 2, 1948, then
suggested that in the other cases the choice of jury or commission be
left to the discretion of the District Court, going back to a suggestion
previously made by Committee members and reported at page 15 of the
Preliminary Draft of June 1947. They called the attention of the Court
to the fact that the entire Advisory Committee had not been consulted
about this suggestion and proposed that the draft be returned to the
Committee for further consideration, and that was done.
The proposal we now make for subdivision (h) is as follows:
(h) Trial. If the action involves the exercise of the power of
eminent domain under the law of the United States, any tribunal
specially constituted by an Act of Congress governing the case for the
trial of the issue of just compensation shall be the tribunal for the
determination of that issue; but if there is no such specially
constituted tribunal any party may have a trial by jury of the issue of
just compensation by filing a demand therefor within the time allowed
for answer or within such further time as the court may fix, unless the
court in its discretion orders that, because of the character, location,
or quantity of the property to be condemned, or for other reasons in the
interest of justice, the issue of compensation shall be determined by a
commission of three persons appointed by it. If a commission is
appointed it shall have the powers of a master provided in subdivision
(c) of Rule 53 proceedings before it shall be governed by the provisions
of paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action and
report shall be determined by a majority and its findings and report
shall have the effect, and be dealt with by the court in accordance with
the practice, prescribed in paragraph (2) of subdivision (e) of Rule 53.
Trial of all issues shall otherwise be by the court.
In the 1948 draft the Committee had been almost evenly divided as
between jury or commission and that made it easy for us to agree on the
present draft. It would be difficult to state in a rule the various
conditions to control the District Court in its choice and we have
merely stated generally the matters which should be considered by the
District Court.
The rule as now drafted seems to meet Judge Paul's objection. In
large projects like the TVA the court may decide to use a commission.
In a great number of cases involving only sites for buildings or other
small areas, where use of a jury is appropriate, a jury may be chosen.
The District Court's discretion may also be influenced by local
preference or habit, and the preference of the Department of Justice and
the reasons for its preference will doubtless be given weight. The
Committee is convinced that there are some types of cases in which use
of a commission is preferable and others in which a jury may be
appropriately used, and that it would be a mistake to provide that the
same kind of tribunal should be used in all cases. We think the
available evidence clearly leads to that conclusion.
When this suggestion was made at the conference of December 2, 1948,
representatives of the Department of Justice opposed it, expressing
opposition to the use of a commission in any case. Their principal
ground for opposition to commissions was then based on the assertion
that the commission system is too expensive because courts allow
commissioners too large compensation. The obvious answer to that is
that the compensation of commissioners ought to be fixed or limited by
law, as was done in the TVA Act, and the agency dealing with
appropriations -- either the Administrative Office or some other
interested department of the government -- should correct that evil, if
evil there be, by obtaining such legislation. Authority to promulgate
rules of procedure does not include power to fix compensation of
government employees. The Advisory Committee is not convinced that even
without such legislation the commission system is more expensive than
the jury system. The expense of jury trials includes not only the per
diem and mileage of the jurors impaneled for a case but like items for
the entire venire. In computing cost of jury trials, the salaries of
court officials, judges, clerks, marshals and deputies must be
considered. No figures have been given to the Committee to establish
that the cost of the commission system is the greater.
We earnestly recommend the rule as now drafted for promulgation by
the Court, in the public interest.
The Advisory Committee have given more time to this rule, including
time required for conferences with the Department of Justice to hear
statements of its representatives, than has been required by any other
rule. The rule may not be perfect but if faults develop in practice
they may be promptly cured. Certainly the present conformity system is
atrocious.
Under state practices, just compensation is normally determined by
one of three methods: by commissioners; by commissioners with a right
of appeal to and trial de novo before a jury; and by a jury, without a
commission. A trial to the court or to the court including a master
are, however, other methods that are occasionally used. Approximately 5
states use only commissioners; 23 states use commissioners with a trial
de novo before a jury; and 18 states use only the jury. This
classification is advisedly stated in approximate terms, since the same
state may utilize diverse methods, depending upon different types of
condemnations or upon the locality of the property, and since the
methods used in a few states do not permit of a categorical
classification. To reject the proposed rule and leave the situation as
it is would not satisfy the views of the Department of Justice. The
Department and the Advisory Committee agree that the use of a
commission, with appeal to a jury, is a wasteful system.
The Department of Justice has a voluminous ''Manual on Federal
Eminent Domain,'' the 1940 edition of which has 948 pages with an
appendix of 73 more pages. The title page informs us the preparation of
the manual was begun during the incumbency of Attorney General Cummings,
was continued under Attorney General Murphy, and completed during the
incumbency of Attorney General Jackson. The preface contains the
following statement:
It should also be mentioned that the research incorporated in the
manual would be of invaluable assistance in the drafting of a new
uniform code, or rules of court, for federal condemnation proceedings,
which are now greatly confused, not only by the existence of over
seventy federal statutes governing condemnations for different purposes
-- statutes which sometimes conflict with one another -- but also by the
countless problems occasioned by the requirements of conformity to state
law. Progress of the work has already demonstrated that the need for
such reform exists.
It is not surprising that more than once Attorneys General have asked
the Advisory Committee to prepare a federal rule and rescue the
government from this morass.
The Department of Justice has twice tried and failed to persuade the
Congress to provide that juries shall be used in all condemnation cases.
The debates in Congress show that part of the opposition to the
Department of Justice's bills came from representatives opposed to jury
trials in all cases, and in part from a preference for the conformity
system. Our present proposal opens the door for district judges to
yield to local preferences on the subject. It does much for the
Department's points of view. It is a great improvement over the present
so-called conformity system. It does away with the wasteful ''double''
system prevailing in 23 states where awards by commissions are followed
by jury trials.
Aside from the question as to the choice of a tribunal to award
compensation, the proposed rule would afford a simple and improved
procedure.
We turn now to an itemized explanation of the other changes we have
made in the 1948 draft. Some of these result from recent amendments to
the Judicial Code. Others result from a reconsideration by the Advisory
Committee of provisions which we thought could be improved.
1. In the amended Judicial Code, the district courts are designated
as ''United States District Courts'' instead of ''District Courts of the
United States,'' and a corresponding change has been made in the rule.
2. After the 1948 draft was referred back to the committee, the
provision in subdivision (c)(2), relating to naming defendants, * * *
which provided that the plaintiff shall add as defendants all persons
having or claiming an interest in that property whose names can be
ascertained by a search of the records to the extent commonly made by
competent searchers of title in the vicinity ''in light of the type and
value of the property involved,'' the phrase in quotation marks was
changed to read ''in the light of the character and value of the
property involved and the interests to be acquired.''
The Department of Justice made a counter proposal * * * that there be
substituted the words ''reasonably diligent search of the records,
considering the type.'' When the American Bar Association thereafter
considered the draft, it approved the Advisory Committee's draft of this
subdivision, but said that it had no objection to the Department's
suggestion. Thereafter, in an effort to eliminate controversy, the
Advisory Committee accepted the Department's suggestion as to (c)(2),
using the word ''character'' instead of the word ''type.''
The Department of Justice also suggested that in subdivision
(d)(3)(2) relating to service by publication, the search for a
defendant's residence as a preliminary to publication be limited to the
state in which the complaint is filed. Here again the American Bar
Association's report expressed the view that the Department's suggestion
was unobjectionable and the Advisory Committee thereupon adopted it.
3. Subdivision (k) of the 1948 draft is as follows:
(k) Condemnation Under a State's Power of Eminent Domain. If the
action involves the exercise of the power of eminent domain under the
law of a state, the practice herein prescribed may be altered to the
extent necessary to observe and enforce any condition affecting the
substantial rights of a litigant attached by the state law to the
exercise of the state's power of eminent domain.
Occasionally condemnation cases under a state's power of eminent
domain reach a United States District Court because of diversity of
citizenship. Such cases are rare, but provision should be made for
them.
The 1948 draft of (k) required a district court to decide whether a
provision of state law specifying the tribunal to award compensation is
or is not a ''condition'' attached to the exercise of the state's power.
On reconsideration we concluded that it would be wise to redraft (k) so
as to avoid that troublesome question. As to conditions in state laws
which affect the substantial rights of a litigant, the district courts
would be bound to give them effect without any rule on the subject.
Accordingly we present two alternative revisions. One suggestion
supported by a majority of the Advisory Committee is as follows:
(k) Condemnation Under a State's Power of Eminent Domain. The
practice herein prescribed governs in actions involving the exercise of
the power of eminent domain under the law of a state, provided that if
the state law makes provision for trial of any issue by jury, or for
trial of the issue of compensation by jury or commission or both, that
provision shall be followed.
The other is as follows:
(k) Condemnation Under a State's Power of Eminent Domain. The
practice herein prescribed governs in actions involving the exercise of
the power of eminent domain under the law of a state, provided that if
the state law gives a right to a trial by jury such a trial shall in any
case be allowed to the party demanding it within the time permitted by
these rules, and in that event no hearing before a commission shall be
had.
The first proposal accepts the state law as to the tribunals to fix
compensation, and in that respect leaves the parties in precisely the
same situation as if the case were pending in a state court, including
the use of a commission with appeal to a jury, if the state law so
provides. It has the effect of avoiding any question as to whether the
decisions in Erie R. Co. v. Tompkins and later cases have application
to a situation of this kind.
The second proposal gives the parties a right to a jury trial if that
is provided for by state law, but prevents the use of both commission
and jury. Those members of the Committee who favor the second proposal
do so because of the obvious objections to the double trial, with a
commission and appeal to a jury. As the decisions in Erie R. Co. v.
Tompkins and later cases may have a bearing on this point, and the
Committee is divided, we think both proposals should be placed before
the Court.
4. The provision * * * of the 1948 draft * * * prescribing the
effective date of the rule was drafted before the recent amendment of
the Judicial Code on that subject. On May 10, 1950, the President
approved an act which amended section 2072 of Title 28, United States
Code, to read as follows:
Such rules shall not take effect until they have been reported to
Congress by the Chief Justice at or after the beginning of a regular
session thereof but not later than the first day of May, and until the
expiration of 90 days after they have been thus reported.
To conform to the statute now in force, we suggest a provision as
follows:
Effective Date. This Rule 71A and the amendment to Rule 81(a) will
take effect on August 1, 1951. Rule 71A governs all proceedings in
actions brought after it takes effect and also all further proceedings
in actions then pending, except to the extent that in the opinion of the
court its application in a particular action pending when the rule takes
effect would not be feasible or would work injustice, in which event the
former procedure applies.
If the rule is not reported to Congress by May 1, 1951, this
provision must be altered.
5. We call attention to the fact that the proposed rule does not
contain a provision for the procedure to be followed in order to
exercise the right of the United States to take immediate possession or
title, when the condemnation proceeding is begun. There are several
statutes conferring such a right which are cited in the original notes
to the May 1948 draft * * *. The existence of this right is taken into
account in the rule. In paragraph (c)(2), * * * it is stated: ''Upon
the commencement of the action, the plaintiff need join as defendants
only the persons having or claiming an interest in the property whose
names are then known.'' That is to enable the United States to exercise
the right to immediate title or possession without the delay involved in
ascertaining the names of all interested parties. The right is also
taken into account in the provision relating to dismissal (paragraph (i)
subdivisions (1), (2), and (3), * * *); also in paragraph (j) relating
to deposits and their distribution.
The Advisory Committee considered whether the procedure for
exercising the right should be specified in the rule and decided against
it, as the procedure now being followed seems to be giving no trouble,
and to draft a rule to fit all the statutes on the subject might create
confusion.
The American Bar Association has taken an active interest in a rule
for condemnation cases. In 1944 its House of Delegates adopted a
resolution which among other things resolved:
That before adoption by the Supreme Court of the United States of any
redraft of the proposed rule, time and opportunity should be afforded to
the bar to consider and make recommendations concerning any such
redraft.
Accordingly, in 1950 the revised draft was submitted to the American
Bar Association and its section of real property, probate and trust law
appointed a committee to consider it. That committee was supplied with
copies of the written statement from the Department of Justice giving
the reasons relied on by the Department for preferring a rule to use
juries in all cases. The Advisory Committee's report was approved at a
meeting of the section of real property law, and by the House of
Delegates at the annual meeting of September 1950. The American Bar
Association report gave particular attention to the question whether
juries or commissions should be used to fix compensation, approved the
Advisory Committee's solution appearing in their latest draft designed
to allow use of commissions in projects comparable to the TVA, and
rejected the proposal for use of juries in all cases.
In November 1950 a committee of the Federal Bar Association, the
chairman of which was a Special Assistant to the Attorney General, made
a report which reflected the attitude of the Department of Justice on
the condemnation rule.
Aside from subdivision (h) about the tribunal to award compensation
the final draft of the condemnation rule here presented has the approval
of the American Bar Association and, we understand, the Department of
Justice, and we do not know of any opposition to it. Subdivision (h)
has the unanimous approval of the Advisory Committee and has been
approved by the American Bar Association. The use of commissions in TVA
cases, and, by fair inference, in cases comparable to the TVA, is
supported by 17 out of 20 judges who up to 1947 had sat in TVA cases.
The legal staff of the TVA has vigorously objected to the substitution
of juries for commissions in TVA cases. We regret to report that the
Department of Justice still asks that subdivision (h) be altered to
provide for jury trials in all cases where Congress has not specified
the tribunal. We understand that the Department approves the proposal
that the system prevailing in 23 states for the ''double'' trial, by
commission with appeal to and trial de novo before a jury, should be
abolished, and also asks that on demand a jury should be substituted for
a commission, in those states where use of a commission alone is now
required. The Advisory Committee has no evidence that commissions do
not operate satisfactorily in the case of projects comparable to the
TVA.
Original report
General Statement. 1. Background. When the Advisory Committee was
formulating its recommendations to the Court concerning rules of
procedure, which subsequently became the Federal Rules of 1938, the
Committee concluded at an early stage not to fix the procedure in
condemnation cases. This is a matter principally involving the exercise
of the federal power of eminent domain, as very few condemnation cases
involving the state's power reach the United States District Courts.
The Committee's reasons at that time were that inasmuch as condemnation
proceedings by the United States are governed by statutes of the United
States, prescribing different procedure for various agencies and
departments of the government, or, in the absence of such statutes, by
local state practice under the Conformity Act (40 U.S.C. sec. 258), it
would be extremely difficult to draft a uniform rule satisfactory to the
various agencies and departments of the government and to private
parties; and that there was no general demand for a uniform rule. The
Committee continued in that belief until shortly before the preparation
of the April 1937 Draft of the Rules, when the officials of the
Department of Justice having to do with condemnation cases urgently
requested the Committee to propose rules on this subject. The Committee
undertook the task and drafted a Condemnation Rule which appeared for
the first time as Rule 74 of the April 1937 Draft. After the
publication and distribution of this initial draft many objections were
urged against it by counsel for various governmental agencies, whose
procedure in condemnation cases was prescribed by federal statutes.
Some of these agencies wanted to be excepted in whole or in part from
the operation of the uniform rule proposed in April 1937. And the
Department of Justice changed its position and stated that it preferred
to have government condemnations conducted by local attorneys familiar
with the state practice, which was applied under the Conformity Act
where the Acts of Congress do not prescribe the practice; that it
preferred to work under the Conformity Act without a uniform rule of
procedure. The profession generally showed little interest in the
proposed uniform rule. For these reasons the Advisory Committee in its
Final Report to the Court in November 1937 proposed that all of Rule 74
be stricken and that the Federal Rules be made applicable only to
appeals in condemnation cases. See note to Rule 74 of the Final Report.
Some six or seven years later when the Advisory Committee was
considering the subject of amendments to the Federal Rules both
government officials and the profession generally urged the adoption of
some uniform procedure. This demand grew out of the volume of
condemnation proceedings instituted during the war, and the general
feeling of dissatisfaction with the diverse condemnation procedures that
were applicable in the federal courts. A strongly held belief was that
both the sovereign's power to condemn and the property owner's right to
compensation could be promoted by a simplified rule. As a consequence
the Committee proposed a Rule 71A on the subject of condemnation in its
Preliminary Draft of May 1944. In the Second Preliminary Draft of May
1945 this earlier proposed Rule 71A was, however, omitted. The
Committee did not then feel that it had sufficient time to prepare a
revised draft satisfactorily to it which would meet legitimate
objections made to the draft of May 1944. To avoid unduly delaying the
proposed amendments to existing rules the Committee concluded to proceed
in the regular way with the preparation of the amendments to these rules
and deal with the question of a condemnation rule as an independent
matter. As a consequence it made no recommendations to the Court on
condemnation in its Final Report of Proposed Amendments of June 1946;
and the amendments which the Court adopted in December 1946 did not deal
with condemnation. After concluding its task relative to amendments,
the Committee returned to a consideration of eminent domain, its
proposed Rule 71A of May 1944, the suggestions and criticisms that had
been presented in the interim, and in June 1947 prepared and distributed
to the profession another draft of a proposed condemnation rule. This
draft contained several alternative provisions, specifically called
attention to and asked for opinion relative to these matters, and in
particular as to the constitution of the tribunal to award compensation.
The present draft was based on the June 1947 formulation, in light of
the advice of the profession on both matters of substance and form.
2. Statutory Provisions. The need for a uniform condemnation rule in
the federal courts arises from the fact that by various statutes
Congress has prescribed diverse procedures for certain condemnation
proceedings, and, in the absence of such statutes, has prescribed
conformity to local state practice under 40 U.S.C. 258. This general
conformity adds to the diversity of procedure since in the United States
there are multifarious methods of procedure in existence. Thus in 1931
it was said that there were 269 different methods of judicial procedure
in different classes of condemnation cases and 56 methods of nonjudicial
or administrative procedure. First Report of Judicial Council of
Michigan, 1931, 46, pp. 55-56. These numbers have not decreased.
Consequently, the general requirement of conformity to state practice
and procedure, particularly where the condemnor is the United States,
leads to expense, delay and uncertainty. In advocacy of a uniform
federal rule, see Armstrong, Proposed Amendments to Federal Rules for
Civil Procedure 1944, 4 F.R.D. 124, 134; id., Report of the Advisory
Committee on Federal Rules of Civil Procedure Recommending Amendments,
1946, 5 F.R.D. 339, 357.
There are a great variety of Acts of Congress authorizing the
exercise of the power of eminent domain by the United States and its
officers and agencies. These statutes for the most part do not specify
the exact procedure to be followed, but where procedure is prescribed,
it is by no means uniform.
The following are instances of Acts which merely authorize the
exercise of the power without specific declaration as to the procedure:
U.S.C., Title 16:
404c-11 (Mammoth Cave National Park; acquisition of lands,
interests in lands or other property for park by the Secretary of the
Interior).
426d (Stones River National Park; acquisition of land for parks
by the Secretary of the Army).
450aa (George Washington Carver National Monument; acquisition
of land by the Secretary of the Interior).
517 (National forest reservation; title to lands to be acquired
by the Secretary of Agriculture).
U.S.C., Title 42:
1805(b)(5), 1813(b) (Atomic Energy Act).
The following are instances of Acts which authorized condemnation and
declare that the procedure is to conform with that of similar actions in
state courts:
U.S.C., Title 16:
423k (Richmond National Battlefield Park; acquisition of lands
by the Secretary of the Interior).
714 (Exercise by water power licensee of power of eminent
domain).
U.S.C., Title 24:
78 (Condemnation of land for the former National Home for
Disabled Volunteer Soldiers).
U.S.C., Title 33:
591 (Condemnation of lands and materials for river and harbor
improvement by the Secretary of the Army).
U.S.C., Title 40:
257 (Condemnation of realty for sites for public building and
for other public uses by the Secretary of the Treasury authorized).
258 (Same procedure).
U.S.C., Title 50:
171 (Acquisition of land by the Secretary of the Army for
national defense).
172 (Acquisition of property by the Secretary of the Army, etc.,
for production of lumber).
632 App. (Second War Powers Act, 1942; acquisition of real
property for war purposes by the Secretary of the Army, the Secretary of
the Navy and others).
The following are Acts in which a more or less complete code of
procedure is set forth in connection with the taking:
U.S.C., Title 16:
831x (Condemnation by Tennessee Valley Authority).
U.S.C., Title 40:
361-386 (now D.C. Code, Title 16, 1301 et seq.) (Acquisition
of lands in District of Columbia for use of United States;
condemnation).
3. Adjustment of Rule to Statutory Provisions. While it was apparent
that the principle of uniformity should be the basis for a rule to
replace the multiple diverse procedures set out above, there remained a
serious question as to whether an exception could properly be made
relative to the method of determining compensation. Where Congress had
provided for conformity to state law the following were the general
methods in use: an initial determination by commissioners, with appeal
to a judge; an initial award, likewise made by commissioners, but with
the appeal to a jury; and determination by a jury without a previous
award by commissioners. In two situations Congress had specified the
tribunal to determine the issue of compensation: condemnation by the
Tennessee Valley Authority; and condemnation in the District of
Columbia. Under the TVA procedure the initial determination of value is
by three disinterested commissioners, appointed by the court, from a
locality other than the one in which the land lies. Either party may
except to the award of the commission; in that case the exceptions are
to be heard by three district judges (unless the parties stipulate for a
lesser number), with a right of appeal to the circuit court of appeals.
The TVA is a regional agency. It is faced with the necessity of
acquiring a very substantial acreage within a relatively small area, and
charged with the task of carrying on within the Tennessee Valley and in
cooperation with the local people a permanent program involving
navigation and flood control, electric power, soil conservation, and
general regional development. The success of this program is partially
dependent upon the good will and cooperation of the people of the
Tennessee Valley, and this in turn partially depends upon the land
acquisition program. Disproportionate awards among landowners would
create dissatisfaction and ill will. To secure uniformity in treatment
Congress provided the rather unique procedure of the three-judge court
to review de novo the initial award of the commissioners. This
procedure has worked to the satisfaction of the property owners and the
TVA. A full statement of the TVA position and experience is set forth
in Preliminary Draft of Proposed Rule to Govern Condemnation Cases
(June, 1947) 15-19. A large majority of the district judges with
experience under this procedure approve it, subject to some objection to
the requirement for a three-judge district court to review
commissioners' awards. A statutory three-judge requirement is, however,
jurisdictional and must be strictly followed. Stratton v. St. Louis,
Southwestern Ry. Co., 1930, 51 S.Ct. 8, 282 U.S. 10, 75 L.Ed. 135;
Ayrshire Collieries Corp. v. United States, 1947, 67 S.Ct. 1168, 331
U.S. 132, 91 L.Ed. 1391. Hence except insofar as the TVA statute itself
authorizes the parties to stipulate for a court of less than three
judges, the requirement must be followed, and would seem to be beyond
alteration by court rule even if change were thought desirable.
Accordingly the TVA procedure is retained for the determination of
compensation in TVA condemnation cases. It was also thought desirable
to retain the specific method Congress had prescribed for the District
of Columbia, which is a so-called jury of five appointed by the court.
This is a local matter and the specific treatment accorded by Congress
has given local satisfaction.
Aside from the foregoing limited exceptions dealing with the TVA and
the District of Columbia, the question was whether a uniform method for
determining compensation should be a commission with appeal to a
district judge, or a commission with appeal to a jury, or a jury without
a commission. Experience with the commission on a nationwide basis, and
in particular with the utilization of a commission followed by an appeal
to a jury, has been that the commission is time consuming and expensive.
Furthermore, it is largely a futile procedure where it is preparatory
to jury trial. Since in the bulk of states a land owner is entitled
eventually to a jury trial, since the jury is a traditional tribunal for
the determination of questions of value, and since experience with
juries has proved satisfactory to both government and land owner, the
right to jury trial is adopted as the general rule. Condemnation
involving the TVA and the District of Columbia are the two exceptions.
See Note to Subdivision (h), infra.
Note to Subdivision (a). As originally promulgated the Federal Rules
governed appeals in condemnation proceedings but were not otherwise
applicable. Rule 81(a)(7). Pre-appeal procedure, in the main,
conformed to state procedure. See statutes and discussion, supra. The
purpose of Rule 71A is to provide a uniform procedure for condemnation
in the federal district courts, including the District of Columbia. To
achieve this purpose Rule 71A prescribes such specialized procedure as
is required by condemnation proceedings, otherwise it utilizes the
general framework of the Federal Rules where specific detail is
unnecessary. The adoption of Rule 71A, of course, renders paragraph (7)
of Rule 81(a) unnecessary.
The promulgation of a rule for condemnation procedure is within the
rule-making power. The Enabling Act (Act of June 19, 1934, c. 651,
1, 2 (48 Stat. 1064), 28 U.S.C. 723b, 723c (see 2072)) gives the
Supreme Court ''the power to prescribe, by general rules * * * the forms
of process, writs, pleadings, and motions, and the practice and
procedure in civil actions at law.'' Such rules, however, must not
abridge, enlarge, or modify substantive rights. In Kohl v. United
States, 1875, 91 U.S. 367, 23 L.Ed. 449, a proceeding instituted by the
United States to appropriate land for a post-office site under a statute
enacted for such purpose, the Supreme Court held that ''a proceeding to
take land in virtue of the government's eminent domain, and determining
the compensation to be made for it, is * * * a suit at common law, when
initiated in a court.'' See also Madisonville Traction Co. v. Saint
Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 23 L.Ed. 449,
infra, under subdivision (k). And the Conformity Act, 40 U.S.C. 258,
which is superseded by Rule 71A, deals only with ''practice, pleadings,
forms and proceedings and not with matters of substantive laws.'' United
States v. 243.22 Acres of Land in Village of Farmingdale, Town of
Babylon, Suffolk County, N.Y., D.C.N.Y. 1942, 43 F.Supp. 561, affirmed
129 F.2d 678, certiorari denied, 63 S.Ct. 441, 317 U.S. 698, 87 L.Ed.
558.
Rule 71A affords a uniform procedure for all cases of condemnation
invoking the national power of eminent domain, and, to the extent stated
in subdivision (k), for cases invoking a state's power of eminent
domain; and supplants all statutes prescribing a different procedure.
While the almost exclusive utility of the rule is for the condemnation
of real property, it also applies to the condemnation of personal
property, either as an incident to real property or as the sole object
of the proceeding, when permitted or required by statute. See 38 U.S.C.
(former) 438j (World War Veterans' Relief Act); 42 U.S.C. 1805,
1811, 1813 (Atomic Energy Act); 50 U.S.C. 79 (Nitrates Act); 50
U.S.C. 161-166 (Helium Gas Act). Requisitioning of personal property
with the right in the owner to sue the United States, where the
compensation cannot be agreed upon (see 42 U.S.C. 1813, supra, for
example) will continue to be the normal method of acquiring personal
property and Rule 71A in no way interferes with or restricts any such
right. Only where the law requires or permits the formal procedure of
condemnation to be utilized will the rule have any applicability to the
acquisition of personal property.
Rule 71A is not intended to and does not supersede the Act of
February 26, 1931, ch. 307, 1-5 (46 Stat. 1421), 40 U.S.C.
258a-258e, which is a supplementary condemnation statute, permissive in
its nature and designed to permit the prompt acquisition of title by the
United States, pending the condemnation proceeding, upon a deposit in
court. See United States v. 76,800 Acres, More or Less, of Land, in
Bryan and Liberty Counties, Ga., D.C.Ga. 1942, 44 F.Supp. 653; United
States v. 17,280 Acres of Land, More or Less, Situated in Saunders
County, Nebr., D.C.Neb. 1942, 47 F.Supp. 267. The same is true insofar
as the following or any other statutes authorize the acquisition of
title or the taking of immediate possession:
U.S.C., Title 33:
594 (When immediate possession of land may be taken; for a work
of river and harbor improvements).
U.S.C., Title 42:
1813(b) (When immediate possession may be taken under Atomic
Energy Act).
U.S.C., Title 50:
171 (Acquisition of land by the Secretary of the Army for
national defense).
632 App. (Second War Powers Act, 1942; acquisition of real
property for war purposes by the Secretary of the Army, the Secretary of
the Navy, and others).
Note to Subdivision (b). This subdivision provides for broad joinder
in accordance with the tenor of other rules such as Rule 18. To require
separate condemnation proceedings for each piece of property separately
owned would be unduly burdensome and would serve no useful purpose. And
a restriction that only properties may be joined which are to be
acquired for the same public use would also cause difficulty. For
example, a unified project to widen a street, construct a bridge across
a navigable river, and for the construction of approaches to the level
of the bridge on both sides of the river might involve acquiring
property for different public uses. Yet it is eminently desirable that
the plaintiff may in one proceeding condemn all the property interests
and rights necessary to carry out this project. Rule 21 which allows
the court to sever and proceed separately with any claim against a
party, and Rule 42(b) giving the court broad discretion to order
separate trials give adequate protection to all defendants in
condemnation proceedings.
Note to Subdivision (c). Since a condemnation proceeding is in rem
and since a great many property owners are often involved, paragraph (1)
requires the property to be named and only one of the owners. In other
respects the caption will contain the name of the court, the title of
the action, file number, and a designation of the pleading as a
complaint in accordance with Rule 10(a).
Since the general standards of pleading are stated in other rules,
paragraph (2) prescribes only the necessary detail for condemnation
proceedings. Certain statutes allow the United States to acquire title
or possession immediately upon commencement of an action. See the Act
of February 26, 1931, ch. 307 1-5 (46 Stat. 1421), 40 U.S.C.
258a-258e, supra; and 33 U.S.C. 594, 42 U.S.C. 1813(b), 50 U.S.C.
171, 632, supra. To carry out the purpose of such statutes and to aid
the condemnor in instituting the action even where title is not acquired
at the outset, the plaintiff is initially required to join as defendants
only the persons having or claiming an interest in the property whose
names are then known. This in no way prejudices the property owner, who
must eventually be joined as a defendant, served with process, and
allowed to answer before there can be any hearing involving the
compensation to be paid for his piece of property. The rule requires
the plaintiff to name all persons having or claiming an interest in the
property of whom the plaintiff has learned and, more importantly, those
appearing of record. By charging the plaintiff with the necessity to
make ''a search of the records of the extent commonly made by competent
searchers of title in the vicinity in light of the type and value of the
property involved'' both the plaintiff and property owner are protected.
Where a short term interest in property of little value is involved, as
a two or three year easement over a vacant land for purposes of ingress
and egress to other property, a search of the records covering a long
period of time is not required. Where on the other hand fee simple
title in valuable property is being condemned the search must
necessarily cover a much longer period of time and be commensurate with
the interests involved. But even here the search is related to the type
made by competent title searchers in the vicinity. A search that
extends back to the original patent may be feasible in some midwestern
and western states and be proper under certain circumstances. In the
Atlantic seaboard states such a search is normally not feasible nor
desirable. There is a common sense business accommodation of what title
searchers can and should do. For state statutes requiring persons
appearing as owners or otherwise interested in the property to be named
as defendants, see 3 Colo. Stat. Ann., 1935, c. 61, 2; Ill. Ann.
Stat. (Smith-Hurd) c. 47, 2; 1 Iowa Code, 1946, 472.3; Kans. Stat.
Ann., 1935, 26-101; 2 Mass. Laws Ann., 1932, ch. 80A, 4; 7 Mich.
Stat. Ann., 1936, 8.2; 2 Minn. Stat., Mason, 1927, 6541; 20 N.J.
Stat. Ann., 1939, 1-2; 3 Wash. Revised Stat., Remington, 1932, Title
6, 891. For state provisions allowing persons whose names are not
known to be designated under the descriptive term of ''unknown owner'',
see Hawaii Revised Laws, 1945, c. 8, 310 (''such (unknown) defendant
may be joined in the petition under a fictitious name.''; Ill. Ann.
Stat., Smith-Hurd), c. 47, 2 (''Persons interested, whose names are
unknown, may be made parties defendant by the description of the unknown
owners; . . .''); Maryland Code Ann., 1939, Ar. 33A, 1 (''In case
any owner or owners is or are not known, he or they may be described in
such petition as the unknown owner or owners, or the unknown heir or
heirs of a deceased owner.''); 2 Mass. Laws Ann., 1932, c. 80A, 4
(''Persons not in being, unascertained or unknown who may have an
interest in any of such land shall be made parties respondent by such
description as seems appropriate, * * *''); New Mex. Stat. Ann., 1941,
25-901 (''the owners * * * shall be parties defendant, by name, if the
names are known, and by description of the unknown owners of the land
therein described, if their names are unknown.''); Utah Code Ann.,
1943, 104-61-7 (''The names of all owners and claimants of the
property, if known, or a statement that they are unknown, who must be
styled defendants'').
The last sentence of paragraph (2) enables the court to expedite the
distribution of a deposit, in whole or in part, as soon as pertinent
facts of ownership, value and the like are established. See also
subdivision (j).
The signing of the complaint is governed by Rule 11.
Note to Subdivision (d). In lieu of a summons, which is the initial
process in other civil actions under Rule 4 (a), subdivision (d)
provides for a notice which is to contain sufficient information so that
the defendant in effect obtains the plaintiff's statement of his claim
against the defendant to whom the notice is directed. Since the
plaintiff's attorney is an officer of the court and to prevent unduly
burdening the clerk of the court, paragraph (1) of subdivision (d)
provides that plaintiff's attorney shall prepare and deliver a notice or
notices to the clerk. Flexibility is provided by the provision for
joint or several notices, and for additional notices. Where there are
only a few defendants it may be convenient to prepare but one notice
directed to all the defendants. In other cases where there are many
defendants it will be more convenient to prepare two or more notices;
but in any event a notice must be directed to each named defendant.
Paragraph (2) provides that the notice is to be signed by the
plaintiff's attorney. Since the notice is to be delivered to the clerk,
the issuance of the notice will appear of record in the court. The
clerk should forthwith deliver the notice or notices for service to the
marshal or to a person specially appointed to serve the notice. Rule 4
(a). The form of the notice is such that, in addition to informing the
defendant of the plaintiff's statement of claim, it tells the defendant
precisely what his rights are. Failure on the part of the defendant to
serve an answer constitutes a consent to the taking and to the authority
of the court to proceed to fix compensation therefor, but it does not
preclude the defendant from presenting evidence as to the amount of
compensation due him or in sharing the award of distribution. See
subdivision (e); Form 28.
While under Rule 4(f) the territorial limits of a summons are
normally the territorial limits of the state in which the district court
is held, the territorial limits for personal service of a notice under
Rule 71A (d)(3) are those of the nation. This extension of process is
here proper since the aim of the condemnation proceeding is not to
enforce any personal liability and the property owner is helped, not
imposed upon, by the best type of service possible. If personal service
cannot be made either because the defendant's whereabouts cannot be
ascertained, or, if ascertained, the defendant cannot be personally
served, as where he resides in a foreign country such as Canada or
Mexico, then service by publication is proper. The provisions for this
type of service are set forth in the rule and are in no way governed by
28 U.S.C. 118.
Note to Subdivision (e). Departing from the scheme of Rule 12,
subdivision (e) requires all defenses and objections to be presented in
an answer and does not authorize a preliminary motion. There is little
need for the latter in condemnation proceedings. The general standard
of pleading is governed by other rules, particularly Rule 8, and this
subdivision (e) merely prescribes what matters the answer should set
forth. Merely by appearing in the action a defendant can receive notice
of all proceedings affecting him. And without the necessity of
answering a defendant may present evidence as to the amount of
compensation due him, and he may share in the distribution of the award.
See also subdivision (d)(2); Form 28.
Note to Subdivision (f). Due to the number of persons who may be
interested in the property to be condemned, there is a likelihood that
the plaintiff will need to amend his complaint, perhaps many times, to
add new parties or state new issues. This subdivision recognizes that
fact and does not burden the court with applications by the plaintiff
for leave to amend. At the same time all defendants are adequately
protected; and their need to amend the answer is adequately protected
by Rule 15, which is applicable by virtue of subdivision (a) of this
Rule 71A.
Note to Subdivision (g). A condemnation action is a proceeding in
rem. Commencement of the action as against a defendant by virtue of his
joinder pursuant to subdivision (c)(2) is the point of cut-off and there
is no mandatory requirement for substitution because of a subsequent
change of interest, although the court is given ample power to require
substitution. Rule 25 is inconsistent with subdivision (g) and hence
inapplicable. Accordingly, the time periods of Rule 25 do not govern to
require dismissal nor to prevent substitution.
Note to Subdivision (h). This subdivision prescribes the method for
determining the issue of just compensation in cases involving the
federal power of eminent domain. The method of jury trial provided by
subdivision (h) will normally apply in cases involving the state power
by virtue of subdivision (k).
Congress has specially constituted a tribunal for the trial of the
issue of just compensation in two instances: condemnation under the
Tennessee Valley Authority Act; and condemnation in the District of
Columbia. These tribunals are retained for reasons set forth in the
General Statement: 3. Adjustment of Rule to Statutory Provisions,
supra. Subdivision (h) also has prospective application so that if
Congress should create another special tribunal, that tribunal will
determine the issue of just compensation. Subject to these exceptions
the general method of trial of that issue is to be by jury if any party
demands it, otherwise that issue, as well as all other issues, are to be
tried by the court.
As to the TVA procedure that is continued, U.S.C., Title 16, 831x
requires that three commissioners be appointed to fix the compensation;
that exceptions to their award are to be heard by three district judges
(unless the parties stipulate for a lesser number) and that the district
judges try the question de novo; that an appeal to the circuit court of
appeals may be taken within 30 days from the filing of the decision of
the district judges; and that the circuit court of appeals shall on the
record fix compensation ''without regard to the awards of findings
theretofore made by the commissioners or the district judges.'' The mode
of fixing compensation in the District of Columbia, which is also
continued, is prescribed in U.S.C., Title 40, 361-386 (now D.C. Code,
Title 16, 1301 et seq.). Under 371 the court is required in all cases
to order the selection of a jury of five from among not less than 20
names, drawn ''from the special box provided by law.'' They must have
the usual qualifications of jurors and in addition must be freeholders
of the District, and not in the service of the United States or the
District. A special oath is administered to the chosen jurors. The
trial proceeds in the ordinary way, except that the jury is allowed to
separate after they have begun to consider their verdict.
There is no constitutional right to jury trial in a condemnation
proceeding. Bauman v. Ross, 1897, 17 S.Ct. 966, 167 U.S. 548, 42 L.Ed.
270. See, also, Hines, Does the Seventh Amendment to the Constitution of
the United States Require Jury Trials in all Condemnation Proceedings?
1925, 11 Va.L.Rev. 505; Blair, Federal Condemnation Proceedings and the
Seventh Amendment 1927, 41 Harv.L.Rev. 29; 3 Moore's Federal Practice
1938, 3007. Prior to Rule 71A, jury trial in federal condemnation
proceedings was, however, enjoyed under the general conformity statute,
40 U.S.C. 258, in states which provided for jury trial. See generally,
2 Lewis, Eminent Domain 3d ed. 1909, 509, 510; 3 Moore, op. cit.
supra. Since the general conformity statute is superseded by Rule 71A,
see supra under subdivision (a), and since it was believed that the rule
to be substituted should likewise give a right to jury trial,
subdivision (h) establishes that method as the general one for
determining the issue of just compensation.
Note to Subdivision (i). Both the right of the plaintiff to dismiss
by filing a notice of dismissal and the right of the court to permit a
dismissal are circumscribed to the extent that where the plaintiff has
acquired the title or a lesser interest or possession, viz, any property
interest for which just compensation should be paid, the action may not
be dismissed, without the defendant's consent, and the property owner
remitted to another court, such as the Court of Claims, to recover just
compensation for the property right taken. Circuity of action is thus
prevented without increasing the liability of the plaintiff to pay just
compensation for any interest that is taken. Freedom of dismissal is
accorded, where both the condemnor and condemnee agree, up to the time
of the entry of judgment vesting plaintiff with title. And power is
given to the court, where the parties agree, to vacate the judgment and
thus revest title in the property owner. In line with Rule 21, the
court may at any time drop a defendant who has been unnecessarily or
improperly joined as where it develops that he has no interest.
Note to Subdivision (j). Whatever the substantive law is concerning
the necessity of making a deposit will continue to govern. For
statutory provisions concerning deposit in court in condemnation
proceedings by the United States, see U.S.C., Title 40, 258a; U.S.C.,
Title 33, 594 -- acquisition of title and possession statutes referred
to in note to subdivision (a), supra. If the plaintiff is invoking the
state's power of eminent domain the necessity of deposit will be
governed by the state law. For discussion of such law, see 1 Nichols,
Eminent Domain, 2d ed. 1917, 209-216. For discussion of the function
of deposit and the power of the court to enter judgment in cases both of
deficiency and overpayment, see United States v. Miller, 1943, 63 S.Ct.
276, 317 U.S. 369, 87 L.Ed. 336, 147 A.L.R. 55, rehearing denied, 63
S.Ct. 557, 318 U.S. 798, 87 L.Ed. 1162 (judgment in favor of plaintiff
for overpayment ordered).
The court is to make distribution of the deposit as promptly as the
facts of the case warrant. See also subdivision (c)(2).
Note to Subdivision (k). While the overwhelming number of cases that
will be brought in the federal courts under this rule will be actions
involving the federal power of eminent domain, a small percentage of
cases may be instituted in the federal court or removed thereto on the
basis of diversity or alienage which will involve the power of eminent
domain under the law of a state. See Boom Co. v. Patterson, 1878, 98
U.S. 403, 25 L.Ed. 206; Searl v. School District No. 2, 1888, 8 S.Ct.
460, 124 U.S. 197, 31 L.Ed. 415; Madisonville Traction Co. v. Saint
Bernard Mining Co., 1905, 25 S.Ct. 251, 196 U.S. 239, 49 L.Ed. 462. In
the Madisonville case, and in cases cited therein, it has been held that
condemnation actions brought by state corporations in the exercise of a
power delegated by the state might be governed by procedure prescribed
by the laws of the United States, whether the cases were begun in or
removed to the federal court. See also Franzen v. Chicago, M. & St.
P. Ry. Co., C.C.A.7th, 1921, 278 F. 370, 372.
Any condition affecting the substantial right of a litigant attached
by state law is to be observed and enforced, such as making a deposit in
court where the power of eminent domain is conditioned upon so doing.
(See also subdivision (j)). Subject to this qualification, subdivision
(k) provides that in cases involving the state power of eminent domain,
the practice prescribed by other subdivisions of Rule 71A shall govern.
Note to Subdivision (l). Since the condemnor will normally be the
prevailing party and since he should not recover his costs against the
property owner, Rule 54(d), which provides generally that costs shall go
to the prevailing party, is made inapplicable. Without attempting to
state what the rule on costs is, the effect of subdivision (1) is that
costs shall be awarded in accordance with the law that has developed in
condemnation cases. This has been summarized as follows: ''Costs of
condemnation proceedings are not assessable against the condemnee,
unless by stipulation he agrees to assume some or all of them. Such
normal expenses of the proceeding as bills for publication of notice,
commissioners' fees, the cost of transporting commissioners and jurors
to take a view, fees for attorneys to represent defendants who have
failed to answer, and witness' fees, are properly charged to the
government, though not taxed as costs. Similarly, if it is necessary
that a conveyance be executed by a commissioner, the United States pay
his fees and those for recording the deed. However, the distribution of
the award is a matter in which the United States has no legal interest.
Expenses incurred in ascertaining the identity of distributees and
deciding between conflicting claimants are properly chargeable against
the award, not against the United States, although United States
attorneys are expected to aid the court in such matters as amici
curiae.'' Lands Division Manual 861. For other discussion and citation,
see Grand River Dam Authority v. Jarvis, C.C.A.10th, 1942, 124 F.2d
914. Costs may not be taxed against the United States except to the
extent permitted by law. United States v. 125.71 Acres of Land in
Loyalhanna Tp., Westmoreland County, Pa., D.C.Pa. 1944, 54 F.Supp. 193;
Lands Division Manual 859. Even if it were thought desirable to allow
the property owner's costs to be taxed against the United States, this
is a matter for legislation and not court rule.
This amendment conforms to the amendment of Rule 4(f).
Rule 71A(h) provides that except when Congress has provided
otherwise, the issue of just compensation in a condemnation case may be
tried by a jury if one of the parties so demands, unless the court in
its discretion orders the issue determined by a commission of three
persons. In 1980, the Comptroller General of the United States in a
Report to Congress recommended that use of the commission procedure
should be encouraged in order to improve and expedite the trial of
condemnation cases. The Report noted that long delays were being caused
in many districts by such factors as crowded dockets, the precedence
given criminal cases, the low priority accorded condemnation matters,
and the high turnover of Assistant United States Attorneys. The Report
concluded that revising Rule 71A to make the use of the commission
procedure more attractive might alleviate the situation.
Accordingly, Rule 71A(h) is being amended in a number of respects
designed to assure the quality and utility of a Rule 71A commission.
First, the amended Rule will give the court discretion to appoint, in
addition to the three members of a commission, up to two additional
persons as alternate commissioners who would hear the case and be
available, at any time up to the filing of the decision by the
three-member commission, to replace any commissioner who becomes unable
or disqualified to continue. The discretion to appoint alternate
commissioners can be particularly useful in protracted cases, avoiding
expensive retrials that have been required in some cases because of the
death or disability of a commissioner. Prior to replacing a
commissioner an alternate would not be present at, or participate in,
the commission's deliberations.
Second, the amended Rule requires the court, before appointment, to
advise the parties of the identity and qualifications of each
prospective commissioner and alternate. The court then may authorize
the examination of prospective appointees by the parties and each party
has the right to challenge for cause. The objective is to insure that
unbiased and competent commissioners are appointed.
The amended Rule does not prescribe a qualification standard for
appointment to a commission, although it is understood that only persons
possessing background and ability to appraise real estate valuation
testimony and to award fair and just compensation on the basis thereof
would be appointed. In most situations the chairperson should be a
lawyer and all members should have some background qualifying them to
weigh proof of value in the real estate field and, when possible, in the
particular real estate market embracing the land in question.
The amended Rule should give litigants greater confidence in the
commission procedure by affording them certain rights to participate in
the appointment of commission members that are roughly comparable to the
practice with regard to jury selection. This is accomplished by giving
the court permission to allow the parties to examine prospective
commissioners and by recognizing the right of each party to object to
the appointment of any person for cause.
The amendments are technical. No substantive change is intended.
The amendment is technical. No substantive change is intended.
Subd. (e). Pub. L. 100-690, which directed amendment of subd. (e) by
striking ''taking of the defendants property'' and inserting ''taking of
the defendant's property'', could not be executed because of the
intervening amendment by the Court by order dated Apr. 25, 1988, eff.
Aug. 1, 1988.
Condemnation of property, right of Government officials, see section
257 of Title 40, Public Buildings, Property, and Works.
District of Columbia, procedure in condemnation proceedings, see D.C.
Code, 16-1351 to 16-1368
Jurisdiction and venue in condemnation proceedings, see sections 1358
and 1403 of this title.
Possession and title, taking in advance of final judgment, see
sections 258a to 258f of Title 40, Public Buildings, Property, and
Works.
Reclamation projects, compensation for rights-of-way, see section
945b of Title 43, Public Lands.
Tennessee Valley Authority, procedure in condemnation proceedings,
see section 831x of Title 16, Conservation.
28 USC Rule 72. Magistrates; Pretrial Orders
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Nondispositive Matters. A magistrate to whom a pretrial matter
not dispositive of a claim or defense of a party is referred to hear and
determine shall promptly conduct such proceedings as are required and
when appropriate enter into the record a written order setting forth the
disposition of the matter. Within 10 days after being served with a
copy of the magistrate's order, a party may serve and file objections to
the order; a party may not thereafter assign as error a defect in the
magistrate's order to which objection was not timely made. The district
judge to whom the case is assigned shall consider such objections and
shall modify or set aside any portion of the magistrate's order found to
be clearly erroneous or contrary to law.
(b) Dispositive Motions and Prisoner Petitions. A magistrate
assigned without consent of the parties to hear a pretrial matter
dispositive of a claim or defense of a party or a prisoner petition
challenging the conditions of confinement shall promptly conduct such
proceedings as are required. A record shall be made of all evidentiary
proceedings before the magistrate, and a record may be made of such
other proceedings as the magistrate deems necessary. The magistrate
shall enter into the record a recommendation for disposition of the
matter, including proposed findings of fact when appropriate. The clerk
shall forthwith mail copies to all parties.
A party objecting to the recommended disposition of the matter shall
promptly arrange for the transcription of the record, or portions of it
as all parties may agree upon or the magistrate deems sufficient, unless
the district judge otherwise directs. Within 10 days after being served
with a copy of the recommended disposition, a party may serve and file
specific, written objections to the proposed findings and
recommendations. A party may respond to another party's objections
within 10 days after being served with a copy thereof. The district
judge to whom the case is assigned shall make a de novo determination
upon the record, or after additional evidence, of any portion of the
magistrate's disposition to which specific written objection has been
made in accordance with this rule. The district judge may accept,
reject, or modify the recommended decision, receive further evidence, or
recommit the matter to the magistrate with instructions.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991,
eff. Dec. 1, 1991.)
Subdivision (a). This subdivision addresses court-ordered referrals
of nondispositive matters under 28 U.S.C. 636(b)(1)(A). The rule calls
for a written order of the magistrate's disposition to preserve the
record and facilitate review. An oral order read into the record by the
magistrate will satisfy this requirement.
No specific procedures or timetables for raising objections to the
magistrate's rulings on nondispositive matters are set forth in the
Magistrates Act. The rule fixes a 10-day period in order to avoid
uncertainty and provide uniformity that will eliminate the confusion
that might arise if different periods were prescribed by local rule in
different districts. It also is contemplated that a party who is
successful before the magistrate will be afforded an opportunity to
respond to objections raised to the magistrate's ruling.
The last sentence of subdivision (a) specifies that reconsideration
of a magistrate's order, as provided for in the Magistrates Act, shall
be by the district judge to whom the case is assigned. This rule does
not restrict experimentation by the district courts under 28 U.S.C.
636(b)(3) involving references of matters other than pretrial matters,
such as appointment of counsel, taking of default judgments, and
acceptance of jury verdicts when the judge is unavailable.
Subdivision (b). This subdivision governs court-ordered referrals of
dispositive pretrial matters and prisoner petitions challenging
conditions of confinement, pursuant to statutory authorization in 28
U.S.C. 636(b)(1)(B). This rule does not extend to habeas corpus
petitions, which are covered by the specific rules relating to
proceedings under Sections 2254 and 2255 of Title 28.
This rule implements the statutory procedures for making objections
to the magistrate's proposed findings and recommendations. The 10-day
period, as specified in the statute, is subject to Rule 6(e) which
provides for an additional 3-day period when service is made by mail.
Although no specific provision appears in the Magistrates Act, the rule
specifies a 10-day period for a party to respond to objections to the
magistrate's recommendation.
Implementing the statutory requirements, the rule requires the
district judge to whom the case is assigned to make a de novo
determination of those portions of the report, findings, or
recommendations to which timely objection is made. The term ''de novo''
signifies that the magistrate's findings are not protected by the
clearly erroneous doctrine, but does not indicate that a second
evidentiary hearing is required. See United States v. Raddatz, 417
U.S. 667 (1980). See also Silberman, Masters and Magistrates Part II:
The American Analogue, 50 N.Y.U. L.Rev. 1297, 1367 (1975). When no
timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the
recommendation. See Campbell v. United States Dist. Court, 501 F.2d
196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879, quoted in House
Report No. 94-1609, 94th Cong. 2d Sess. (1976) at 3. Compare Park
Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).
Failure to make timely objection to the magistrate's report prior to its
adoption by the district judge may constitute a waiver of appellate
review of the district judge's order. See United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
This amendment is intended to eliminate a discrepancy in measuring
the 10 days for serving and filing objections to a magistrate's action
under subdivisions (a) and (b) of this Rule. The rule as promulgated in
1983 required objections to the magistrate's handling of nondispositive
matters to be served and filed within 10 days of entry of the order, but
required objections to dispositive motions to be made within 10 days of
being served with a copy of the recommended disposition. Subdivision
(a) is here amended to conform to subdivision (b) to avoid any confusion
or technical defaults, particularly in connection with magistrate orders
that rule on both dispositive and nondispositive matters.
The amendment is also intended to assure that objections to
magistrate's orders that are not timely made shall not be considered.
Compare Rule 51.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 73. Magistrates; Trial by Consent and Appeal Options
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Powers; Procedure. When specially designated to exercise such
jurisdiction by local rule or order of the district court and when all
parties consent thereto, a magistrate may exercise the authority
provided by Title 28, U.S.C. 636(c) and may conduct any or all
proceedings, including a jury or nonjury trial, in a civil case. A
record of the proceedings shall be made in accordance with the
requirements of Title 28, U.S.C. 636(c)(7).
(b) Consent. When a magistrate has been designated to exercise civil
trial jurisdiction, the clerk shall give written notice to the parties
of their opportunity to consent to the exercise by a magistrate of civil
jurisdiction over the case, as authorized by Title 28, U.S.C. 636(c).
If, within the period specified by local rule, the parties agree to a
magistrate's exercise of such authority, they shall execute and file a
joint form of consent or separate forms of consent setting forth such
election.
No district judge, magistrate, or other court official shall attempt
to persuade or induce a party to consent to a reference of a civil
matter to a magistrate under this rule, nor shall a district judge or
magistrate be informed of a party's response to the clerk's
notification, unless all parties have consented to the referral of the
matter to a magistrate.
The district judge, for good cause shown on the judge's motion, or
under extraordinary circumstances shown by a party, may vacate a
reference of a civil matter to a magistrate under this subdivision.
(c) Normal Appeal Route. In accordance with Title 28, U.S.C.
636(c)(3), unless the parties otherwise agree to the optional appeal
route provided for in subdivision (d) of this rule, appeal from a
judgment entered upon direction of a magistrate in proceedings under
this rule will lie to the court of appeals as it would from a judgment
of the district court.
(d) Optional Appeal Route. In accordance with Title 28, U.S.C.
636(c)(4), at the time of reference to a magistrate, the parties may
consent to appeal on the record to a judge of the district court and
thereafter, by petition only, to the court of appeals.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987,
eff. Aug. 1, 1987.)
Subdivision (a). This subdivision implements the broad authority of
the 1979 amendments to the Magistrates Act, 28 U.S.C. 636(c), which
permit a magistrate to sit in lieu of a district judge and exercise
civil jurisdiction over a case, when the parties consent. See McCabe,
The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 364-79
(1979). In order to exercise this jurisdiction, a magistrate must be
specially designated under 28 U.S.C. 636(c)(1) by the district court or
courts he serves. The only exception to a magistrate's exercise of
civil jurisdiction, which includes the power to conduct jury and nonjury
trials and decide dispositive motions, is the contempt power. A hearing
on contempt is to be conducted by the district judge upon certification
of the facts and an order to show cause by the magistrate. See 28
U.S.C. 639(e). In view of 28 U.S.C. 636(c)(1) and this rule, it is
unnecessary to amend Rule 58 to provide that the decision of a
magistrate is a ''decision by the court'' for the purposes of that rule
and a ''final decision of the district court'' for purposes of 28 U.S.C.
1291 governing appeals.
Subdivision (b). This subdivision implements the blind consent
provision of 28 U.S.C. 636(c)(2) and is designed to ensure that neither
the judge nor the magistrate attempts to induce a party to consent to
reference of a civil matter under this rule to a magistrate. See House
Rep. No. 96-444, 96th Cong. 1st Sess. 8 (1979).
The rule opts for a uniform approach in implementing the consent
provision by directing the clerk to notify the parties of their
opportunity to elect to proceed before a magistrate and by requiring the
execution and filing of a consent form or forms setting forth the
election. However, flexibility at the local level is preserved in that
local rules will determine how notice shall be communicated to the
parties, and local rules will specify the time period within which an
election must be made.
The last paragraph of subdivision (b) reiterates the provision in 28
U.S.C. 636(c)(6) for vacating a reference to the magistrate.
Subdivision (c). Under 28 U.S.C. 636(c)(3), the normal route of
appeal from the judgment of a magistrate -- the only route that will be
available unless the parties otherwise agree in advance -- is an appeal
by the aggrieved party ''directly to the appropriate United States court
of appeals from the judgment of the magistrate in the same manner as an
appeal from any other judgment of a district court.'' The quoted
statutory language indicates Congress' intent that the same procedures
and standards of appealability that govern appeals from district court
judgments govern appeals from magistrates' judgments.
Subdivision (d). 28 U.S.C. 636(c)(4) offers parties who consent to
the exercise of civil jurisdiction by a magistrate an alternative appeal
route to that provided in subdivision (c) of this rule. This optional
appellate route was provided by Congress in recognition of the fact that
not all civil cases warrant the same appellate treatment. In cases
where the amount in controversy is not great and there are no difficult
questions of law to be resolved, the parties may desire to avoid the
expense and delay of appeal to the court of appeals by electing an
appeal to the district judge. See McCabe, The Federal Magistrate Act of
1979, 16 Harv. J. Legis. 343, 388 (1979). This subdivision provides
that the parties may elect the optional appeal route at the time of
reference to a magistrate. To this end, the notice by the clerk under
subdivision (b) of this rule shall explain the appeal option and the
corollary restriction on review by the court of appeals. This approach
will avoid later claims of lack of consent to the avenue of appeal. The
choice of the alternative appeal route to the judge of the district
court should be made by the parties in their forms of consent. Special
appellate rules to govern appeals from a magistrate to a district judge
appear in new Rules 74 through 76.
The amendment is technical. No substantive change is intended.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 74. Method of Appeal From Magistrate to District Judge
Under Title 28, U.S.C. 636(c)(4) and Rule 73(d)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) When Taken. When the parties have elected under Rule 73(d) to
proceed by appeal to a district judge from an appealable decision made
by a magistrate under the consent provisions of Title 28, U.S.C.
636(c)(4), an appeal may be taken from the decision of a magistrate by
filing with the clerk of the district court a notice of appeal within 30
days of the date of entry of the judgment appealed from; but if the
United States or an officer or agency thereof is a party, the notice of
appeal may be filed by any party within 60 days of such entry. If a
timely notice of appeal is filed by a party, any other party may file a
notice of appeal within 14 days thereafter, or within the time otherwise
prescribed by this subdivision, whichever period last expires.
The running of the time for filing a notice of appeal is terminated
as to all parties by the timely filing of any of the following motions
with the magistrate by any party, and the full time for appeal from the
judgment entered by the magistrate commences to run anew from entry of
any of the following orders: (1) granting or denying a motion for
judgment under Rule 50(b); (2) granting or denying a motion under Rule
52(b) to amend or make additional findings of fact, whether or not an
alteration of the judgment would be required if the motion is granted;
(3) granting or denying a motion under Rule 59 to alter or amend the
judgment; (4) denying a motion for a new trial under Rule 59.
An interlocutory decision or order by a magistrate which, if made by
a judge of the district court, could be appealed under any provision of
law, may be appealed to a judge of the district court by filing a notice
of appeal within 15 days after entry of the decision or order, provided
the parties have elected to appeal to a judge of the district court
under Rule 73(d). An appeal of such interlocutory decision or order
shall not stay the proceedings before the magistrate unless the
magistrate or judge shall so order.
Upon a showing of excusable neglect, the magistrate may extend the
time for filing a notice of appeal upon motion filed not later than 20
days after the expiration of the time otherwise prescribed by this rule.
(b) Notice of Appeal; Service. The notice of appeal shall specify
the party or parties taking the appeal, designate the judgment, order or
part thereof appealed from, and state that the appeal is to a judge of
the district court. The clerk shall mail copies of the notice to all
other parties and note the date of mailing in the civil docket.
(c) Stay Pending Appeal. Upon a showing that the magistrate has
refused or otherwise failed to stay the judgment pending appeal to the
district judge under Rule 73(d), the appellant may make application for
a stay to the district judge with reasonable notice to all parties. The
stay may be conditioned upon the filing in the district court of a bond
or other appropriate security.
(d) Dismissal. For failure to comply with these rules or any local
rule or order, the district judge may take such action as is deemed
appropriate, including dismissal of the appeal. The district judge also
may dismiss the appeal upon the filing of a stipulation signed by all
parties, or upon motion and notice by the appellant.
(As added Apr. 28, 1983, eff. Aug. 1, 1983.)
Subdivision (a). This rule governs appeals from decisions of
magistrates exercising consensual civil jurisdiction under Rule 73 when
the parties elect to appeal to a judge of the district court under
subdivision (d) of that rule. Congress specified that such an appeal
would be ''on the record to a judge of the district court in the same
manner as on an appeal from a judgment of the district court to a court
of appeals.'' See 28 U.S.C. 636(c)(4). Presumably, Congress intended
that the district court follow the same general procedures, including
the ''clearly erroneous'' factual review standard of Civil Rule 52(a),
that a court of appeals follows in reviewing a judgment of the district
court. However, Congress also provided that ''whenever possible'' the
local rules of the district court shall endeavor to make appeals
expeditious and inexpensive. See 28 U.S.C. 636(c)(4). Since the
Federal Rules of Appellate Procedure are designed to cover appeals from
a single judge to a three-member appeal tribunal, some modifications
have proved desirable in assuring an expeditious appeal from a
magistrate to a single district judge. Rules 74 through 76 provide this
set of rules governing appeals from magistrates' exercise of consensual
jurisdiction.
The time limits in subdivision (a) generally conform to those in
Appellate Rule 4(a), except that the period in which a party may move
for leave to file a late notice of appeal on grounds of excusable
neglect is 20 days, rather than the 30-day period provided for in the
Appellate Rules.
The term ''appealable decision'' as used in this rule embraces the
''final decision'' concept of 28 U.S.C. 1291 and permits an appeal from
a magistrate to a district judge in those situations in which an appeal
from a district judge to the court of appeals would lie. That term,
along with the specific provision in the rule permitting appeals of
certain interlocutory orders, incorporates by reference the provisions
of 28 U.S.C. 1292 and adopts, by analogy to Section 1292(b), a
certification procedure for otherwise unappealable orders ''where the
order is based on a controlling question of law as to which there is
substantial ground for difference of opinion and an immediate appeal
from the order may materially advance the ultimate termination of the
litigation.'' Although no specific certification procedure is set forth,
the rule contemplates that a magistrate may certify such an order for
appeal, and the district judge, in his discretion, may allow the appeal.
In the interest of expediting the trial, interlocutory appeals of any
kind will not stay the proceedings unless the magistrate or district
judge finds that the nature of the appeal or its relation to the
remaining proceedings requires a stay.
Subdivision (b). The provisions governing the content and service of
the notice of appeal conform substantially to Rules 3(c) and 3(d) of the
Federal Rules of Appellate Procedure.
Subdivision (c). This subdivision represents a simplified version of
Rule 8 of the Federal Rules of Appellate Procedure. Under this
subdivision, the district judge is in the position of an appellate judge
under Rule 8 of the Appellate Rules when the judge below has refused a
stay under Rule 62.
In proceedings under 28 U.S.C. 636(c), an application for a stay of
the judgment under Rule 62 initially will be made to the magistrate.
The district judge under this rule may hear an application for a stay of
the judgment upon a showing that the magistrate has refused to stay the
judgment pending appeal to the district judge.
Subdivision (d). The provisions governing dismissal are similar to
Rule 3(a) (failure to prosecute) and Rule 42(a) (voluntary dismissal) of
the Federal Rules of Appellate Procedure.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 75. Proceedings on Appeal From Magistrate to District Judge
Under Rule 73(d)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Applicability. In proceedings under Title 28, U.S.C. 636(c),
when the parties have previously elected under Rule 73(d) to appeal to a
district judge rather than to the court of appeals, this rule shall
govern the proceedings on appeal.
(b) Record on Appeal.
(1) Composition. The original papers and exhibits filed with the
clerk of the district court, the transcript of the proceedings, if any,
and the docket entries shall constitute the record on appeal. In lieu
of this record the parties, within 10 days after the filing of the
notice of appeal, may file a joint statement of the case showing how the
issues presented by the appeal arose and were decided by the magistrate,
and setting forth only so many of the facts averred and proved or sought
to be proved as are essential to a decision of the issues presented.
(2) Transcript. Within 10 days after filing the notice of appeal the
appellant shall make arrangements for the production of a transcript of
such parts of the proceedings as the appellant deems necessary. Unless
the entire transcript is to be included, the appellant, within the time
provided above, shall serve on the appellee and file with the court a
description of the parts of the transcript which the appellant intends
to present on the appeal. If the appellee deems a transcript of other
parts of the proceedings to be necessary, within 10 days after the
service of the statement of the appellant, the appellee shall serve on
the appellant and file with the court a designation of additional parts
to be included. The appellant shall promptly make arrangements for the
inclusion of all such parts unless the magistrate, upon motion, exempts
the appellant from providing certain parts, in which case the appellee
may provide for their transcription.
(3) Statement in Lieu of Transcript. If no record of the proceedings
is available for transcription, the parties shall, within 10 days after
the filing of the notice of appeal, file a statement of the evidence
from the best available means to be submitted in lieu of the transcript.
If the parties cannot agree they shall submit a statement of their
differences to the magistrate for settlement.
(c) Time for Filing Briefs. Unless a local rule or court order
otherwise provides, the following time limits for filing briefs shall
apply.
(1) The appellant shall serve and file the appellant's brief within
20 days after the filing of the transcript, statement of the case, or
statement of the evidence.
(2) The appellee shall serve and file the appellee's brief within 20
days after service of the brief of the appellant.
(3) The appellant may serve and file a reply brief within 10 days
after service of the brief of the appellee.
(4) If the appellee has filed a cross-appeal, the appellee may file a
reply brief limited to the issues on the cross-appeal within 10 days
after service of the reply brief of the appellant.
(d) Length and Form of Briefs. Briefs may be typewritten. The
length and form of briefs shall be governed by local rule.
(e) Oral Argument. The opportunity for the parties to be heard on
oral argument shall be governed by local rule.
(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987,
eff. Aug. 1, 1987.)
Subdivision (a). 28 U.S.C. 636(c)(4) provides that whenever
possible the local rules of the district court shall endeavor to make
appeals from the magistrate to the district judge expeditious and
inexpensive. The provisions of this rule are directed to that end in
simplifying the record on appeal and permitting typewritten briefs. The
availability of oral argument and the length and form of briefs are
matters appropriately left to local rule.
Subdivision (b). The provisions governing the composition of the
record and the transcript are adapted from Rule 10 of the Federal Rules
of Appellate Procedure. The language requiring the appellant to ''make
arrangements for the production of a transcript'' is broad enough to
require the party to order a transcript from the court reporter or to
make arrangements to transcribe a taped record of the proceedings. The
magistrate is to settle any differences regarding the extent of the
transcript and to require the appellant to provide for transcription of
any additional portions designated by the appellee that are material to
the issues on appeal. Naturally, the rule is subject to the operation
of 28 U.S.C. 1915 in the case of a party who is unable to pay such
costs.
Although it is not anticipated that an appeal will often be taken
from a hearing or trial of which no record was made, the parties do have
the option to forego a record in routine matters under 28 U.S.C.
636(c)(7). In such cases a statement of the evidence will be prepared by
the parties (or by the magistrate if the parties cannot agree) from the
best available means, including the recollections and notes of the
parties and the magistrate.
Subdivision (c). Although the parties, with agreement of the court,
can dispense with the filing of briefs, a schedule for the serving and
filing of briefs will often be necessary. In lieu of the elaborate
provisions of Rules 28 through 32 of the Federal Rules of Appellate
Procedure, this rule adopts a simplified approach for the filing and
serving of briefs in order to achieve an inexpensive and expeditious
appeal from a magistrate's judgment to a district judge. The timing of
the appellant's initial brief is tied to the filing of the transcript or
statement, instead of the filing of the record (Appellate Rule 31(a)) or
the docketing of the appeal, because the rest of the record is already
in the hands of the district court clerk and need not be transmitted.
This rule does not require payment of a filing fee. Thus the filing of
the transcript or statement is all that remains of the traditional
concepts of filing the record and docketing the appeal.
The introductory clause of the rule recognizes the desirability of
allowing local and individual variations in the filing of briefs, and
the numbered clauses prescribe shorter periods than the corresponding
intervals allowed by Appellate Rule 31(a). The provision allowing a
reply brief for an appellee who has filed a cross-appeal is taken from
Appellate Rule 28(c).
Subdivision (d). The use of typewritten briefs is urged as a means
of minimizing costs and of expediting appeals from the magistrate to the
district judge. The form and length of briefs should be addressed as a
matter of local rule in order to avoid resort to the more elaborate
provisions of the Federal Rules of Appellate Procedure.
Subdivision (e). The availability of oral argument has been left as
a matter for local rule.
The amendments are technical. No substantive change is intended.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC Rule 76. Judgment of the District Judge on the Appeal Under Rule
73(d) and Costs
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Entry of Judgment. When the parties have elected under Rule
73(d) to appeal from a judgment of the magistrate to a district judge,
the clerk shall prepare, sign, and enter judgment in accordance with the
order or decision of the district judge following an appeal from a
judgment of the magistrate, unless the district judge directs otherwise.
The clerk shall mail to all parties a copy of the order or decision of
the district judge.
(b) Stay of Judgments. The decision of the district judge shall be
stayed for 10 days during which time a party may petition the district
judge for rehearing, and a timely petition shall stay the decision of
the district judge pending disposition of a petition for rehearing.
Upon the motion of a party, the decision of the district judge may be
stayed in order to allow a party to petition the court of appeals for
leave to appeal.
(c) Costs. Except as otherwise provided by law or ordered by the
district judge, costs shall be taxed against the losing party; if a
judgment of the magistrate is affirmed in part or reversed in part, or
is vacated, costs shall be allowed only as ordered by the district
judge. The cost of the transcript, if necessary for the determination
of the appeal, and the premiums paid for bonds to preserve rights
pending appeal shall be taxed as costs by the clerk.
(As added Apr. 28, 1983, eff. Aug. 1, 1983.)
Subdivision (a). This subdivision, adapted from Rule 36 of the
Federal Rules of Appellate Procedure, directs the clerk to enter
judgment in accordance with the order or decision of the district judge
affirming, reversing, or modifying the judgment of the magistrate and to
mail copies of the order or decision to all parties.
Subdivision (b). This subdivision, adapted from Rule 41 of the
Federal Rules of Appellate Procedure, stays the effect of the district
judge's decision on an appeal from a judgment of the magistrate. The
availability of a rehearing by the district judge is contemplated (see
Appellate Rule 40), but no particular form of petition is specified by
the rule. The initial 10-day stay and the stay pending disposition of a
timely petition for rehearing operate automatically upon the magistrate
and all parties. Any other stay is at the discretion of the district
judge.
Subdivision (c). This provision for costs on appeal is adapted from
Rule 39 of the Federal Rules of Appellate Procedure to achieve the
inexpensive appellate process envisioned for district judge review of
magistrate action. No filing fee is required since a single clerk's
office handles the file throughout, and no bond for costs is required.
Ordinarily the only costs will be the costs of the transcript and the
premium for any supersedeas bond.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
28 USC X. DISTRICT COURTS AND CLERKS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 77. District Courts and Clerks
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) District Courts Always Open. The district courts shall be deemed
always open for the purpose of filing any pleading or other proper
paper, of issuing and returning mesne and final process, and of making
and directing all interlocutory motions, orders, and rules.
(b) Trials and Hearings; Orders in Chambers. All trials upon the
merits shall be conducted in open court and so far as convenient in a
regular court room. All other acts or proceedings may be done or
conducted by a judge in chambers, without the attendance of the clerk or
other court officials and at any place either within or without the
district; but no hearing, other than one ex parte, shall be conducted
outside the district without the consent of all parties affected
thereby.
(c) Clerk's Office and Orders by Clerk. The clerk's office with the
clerk or a deputy in attendance shall be open during business hours on
all days except Saturdays, Sundays, and legal holidays, but a district
court may provide by local rule or order that its clerk's office shall
be open for specified hours on Saturdays or particular legal holidays
other than New Year's Day, Birthday of Martin Luther King, Jr.,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. All
motions and applications in the clerk's office for issuing mesne
process, for issuing final process to enforce and execute judgments, for
entering defaults or judgments by default, and for other proceedings
which do not require allowance or order of the court are grantable of
course by the clerk; but the clerk's action may be suspended or altered
or rescinded by the court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry of an
order or judgment the clerk shall serve a notice of the entry by mail in
the manner provided for in Rule 5 upon each party who is not in default
for failure to appear, and shall make a note in the docket of the
mailing. Any party may in addition serve a notice of such entry in the
manner provided in Rule 5 for the service of papers. Lack of notice of
the entry by the clerk does not affect the time to appeal or relieve or
authorize the court to relieve a party for failure to appeal within the
time allowed, except as permitted in Rule 4(a) of the Federal Rules of
Appellate Procedure.
(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.)
This rule states the substance of U.S.C., Title 28, 13 (now 452)
(Courts open as courts of admiralty and equity). Compare (former)
Equity Rules 1 (District Court Always Open For Certain Purposes --
Orders at Chambers), 2 (Clerk's Office Always Open, Except, Etc.), 4
(Notice of Orders), and 5 (Motions Grantable of Course by Clerk).
Note. Rule 77(d) has been amended to avoid such situations as the one
arising in Hill v. Hawes, 1944, 320 U.S. 520. In that case, an action
instituted in the District Court for the District of Columbia, the clerk
failed to give notice of the entry of a judgment for defendant as
required by Rule 77(d). The time for taking an appeal then was 20 days
under Rule 10 of the Court of Appeals (later enlarged by amendment to
thirty days), and due to lack of notice of the entry of judgment the
plaintiff failed to file his notice of appeal within the prescribed
time. On this basis the trial court vacated the original judgment and
then reentered it, whereupon notice of appeal was filed. The Court of
Appeals dismissed the appeal as taken too late. The Supreme Court,
however, held that although Rule 77(d) did not purport to attach any
consequence to the clerk's failure to give notice as specified, the
terms of the rule were such that the appellant was entitled to rely on
it, and the trial court in such a case, in the exercise of a sound
discretion, could vacate the former judgment and enter a new one, so
that the appeal would be within the allowed time.
Because of Rule 6(c), which abolished the old rule that the
expiration of the term ends a court's power over its judgment, the
effect of the decision in Hill v. Hawes is to give the district court
power, in its discretion and without time limit, and long after the term
may have expired, to vacate a judgment and reenter it for the purpose of
reviving the right of appeal. This seriously affects the finality of
judgments. See also proposed Rule 6(c) and Note; proposed Rule 60(b)
and Note; and proposed Rule 73(a) and Note.
Rule 77(d) as amended makes it clear that notification by the clerk
of the entry of a judgment has nothing to do with the starting of the
time for appeal; that time starts to run from the date of entry of
judgment and not from the date of notice of the entry. Notification by
the clerk is merely for the convenience of litigants. And lack of such
notification in itself has no effect upon the time for appeal; but in
considering an application for extension of time for appeal as provided
in Rule 73(a), the court may take into account, as one of the factors
affecting its decision, whether the clerk failed to give notice as
provided in Rule 77(d) or the party failed to receive the clerk's
notice. It need not, however, extend the time for appeal merely because
the clerk's notice was not sent or received. It would, therefore, be
entirely unsafe for a party to rely on absence of notice from the clerk
of the entry of a judgment, or to rely on the adverse party's failure to
serve notice of the entry of a judgment. Any party may, of course,
serve timely notice of the entry of a judgment upon the adverse party
and thus preclude a successful application, under Rule 73(a), for the
extension of the time for appeal.
Subdivision (c). The amendment authorizes closing of the clerk's
office on Saturday as far as civil business is concerned. However, a
district court may require its clerk's office to remain open for
specified hours on Saturdays or ''legal holidays'' other than those
enumerated. (''Legal holiday'' is defined in Rule 6(a), as amended.)
The clerk's offices of many district courts have customarily remained
open on some of the days appointed as holidays by State law. This
practice could be continued by local rule or order.
Subdivision (d). This amendment conforms to the amendment of Rule
5(a). See the Advisory Committee's Note to that amendment.
The provisions of Rule 73(a) are incorporated in Rule 4(a) of the
Federal Rules of Appellate Procedure.
The amendment adds Columbus Day to the list of legal holidays. See
the Note accompanying the amendment of Rule 6(a).
The amendments are technical. No substantive change is intended.
The Birthday of Martin Luther King, Jr. is added to the list of
national holidays in Rule 77.
This revision is a companion to the concurrent amendment to Rule 4 of
the Federal Rules of Appellate Procedure. The purpose of the revisions
is to permit district courts to ease strict sanctions now imposed on
appellants whose notices of appeal are filed late because of their
failure to receive notice of entry of a judgment. See, e.g. Tucker v.
Commonwealth Land Title Ins. Co., 800 F.2d 1054 (11th Cir. 1986);
Ashby Enterprises, Ltd. v. Weitzman, Dym & Associates, 780 F.2d 1043
(D.C. Cir. 1986); In re OPM Leasing Services, Inc. , 769 F.2d 911 (2d
Cir. 1985); Spika v. Village of Lombard, Ill. , 763 F.2d 282 (7th Cir.
1985); Hall v. Community Mental Health Center of Beaver County, 772
F.2d 42 (3d Cir. 1985); Wilson v. Atwood v. Stark, 725 F.2d 255 (5th
Cir. en banc), cert dismissed, 105 S.Ct. 17 (1984); Case v. BASF
Wyandotte, 727 F.2d 1034 (Fed. Cir. 1984), cert. denied, 105 S.Ct. 386
(1984); Hensley v. Chesapeake & Ohio R.R.Co., 651 F.2d 226 (4th Cir.
1981); Buckeye Cellulose Corp. v. Electric Construction Co. , 569
F.2d 1036 (8th Cir. 1978).
Failure to receive notice may have increased in frequency with the
growth in the caseload in the clerks' offices. The present strict rule
imposes a duty on counsel to maintain contact with the court while a
case is under submission. Such contact is more difficult to maintain if
counsel is outside the district, as is increasingly common, and can be a
burden to the court as well as counsel.
The effect of the revisions is to place a burden on prevailing
parties who desire certainty that the time for appeal is running. Such
parties can take the initiative to assure that their adversaries receive
effective notice. An appropriate procedure for such notice is provided
in Rule 5.
The revised rule lightens the responsibility but not the workload of
the clerks' offices, for the duty of that office to give notice of entry
of judgment must be maintained.
The Federal Rules of Appellate Procedure, referred to in text, are
set out in this Appendix.
Courts always open, see rule 56, Title 18, Appendix, Crimes and
Criminal Procedure.
Books and records kept by clerk and entries therein, see rule 79.
Courts always open, see section 452 of this title.
Entry of default judgment by clerk, see rule 55.
Execution, see rule 69.
Service of papers on attorney or party, see rule 5.
28 USC Rule 78. Motion Day
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Unless local conditions make it impracticable, each district court
shall establish regular times and places, at intervals sufficiently
frequent for the prompt dispatch of business, at which motions requiring
notice and hearing may be heard and disposed of; but the judge at any
time or place and on such notice, if any, as the judge considers
reasonable may make orders for the advancement, conduct, and hearing of
actions.
To expedite its business, the court may make provision by rule or
order for the submission and determination of motions without oral
hearing upon brief written statements of reasons in support and
opposition.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Compare (former) Equity Rule 6 (Motion Day) with the first paragraph
of this rule. The second paragraph authorizes a procedure found helpful
for the expedition of business in some of the Federal and State courts.
See Rule 43(e) of these rules dealing with evidence on motions. Compare
Civil Practice Rules of the Municipal Court of Chicago (1935), Rules
269, 270, 271.
The amendment is technical. No substantive change is intended.
Motions, see rules 45, 47, 49, Title 18, Appendix, Crimes and
Criminal Procedure.
Local rules not to be inconsistent with these rules, see rule 83.
Motions and other papers, see rule 7.
Service of affidavits in support of and in opposition to motions, see
rule 6.
Time for noticing motions, see rule 6.
Use of affidavits on motions, see rule 43.
28 USC Rule 79. Books and Records Kept by the Clerk and Entries Therein
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Civil Docket. The clerk shall keep a book known as ''civil
docket'' of such form and style as may be prescribed by the Director of
the Administrative Office of the United States Courts with the approval
of the Judicial Conference of the United States, and shall enter therein
each civil action to which these rules are made applicable. Actions
shall be assigned consecutive file numbers. The file number of each
action shall be noted on the folio of the docket whereon the first entry
of the action is made. All papers filed with the clerk, all process
issued and returns made thereon, all appearances, orders, verdicts, and
judgments shall be entered chronologically in the civil docket on the
folio assigned to the action and shall be marked with its file number.
These entries shall be brief but shall show the nature of each paper
filed or writ issued and the substance of each order or judgment of the
court and of the returns showing execution of process. The entry of an
order or judgment shall show the date the entry is made. When in an
action trial by jury has been properly demanded or ordered the clerk
shall enter the word ''jury'' on the folio assigned to that action.
(b) Civil Judgments and Orders. The clerk shall keep, in such form
and manner as the Director of the Administrative Office of the United
States Courts with the approval of the Judicial Conference of the United
States may prescribe, a correct copy of every final judgment or
appealable order, or order affecting title to or lien upon real or
personal property, and any other order which the court may direct to be
kept.
(c) Indices; Calendars. Suitable indices of the civil docket and of
every civil judgment and order referred to in subdivision (b) of this
rule shall be kept by the clerk under the direction of the court. There
shall be prepared under the direction of the court calendars of all
actions ready for trial, which shall distinguish ''jury actions'' from
''court actions.''
(d) Other Books and Records of the Clerk. The clerk shall also keep
such other books and records as may be required from time to time by the
Director of the Administrative Office of the United States Courts with
the approval of the Judicial Conference of the United States.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963.)
Compare (former) Equity Rule 3 (Books Kept by Clerk and Entries
Therein). In connection with this rule, see also the following statutes
of the United States:
U.S.C., Title 5:
301 (see Title 28, 526) (Officials for investigation of
official acts, records and accounts of marshals, attorneys, clerks of
courts, United States commissioners, referees and trustees)
318 (former) (Accounts of district attorneys)
U.S.C., Title 28:
556 (former) (Clerks of district courts; books open to
inspection)
567 (now 751) (Same; accounts) 568 (now 751) (Same; reports
and accounts of moneys received;
dockets)
813 (former) (Indices of judgment debtors to be kept by clerks)
And see ''Instructions to United States Attorneys, Marshals, Clerks
and Commissioners'' issued by the Attorney General of the United States.
Note. Subdivision (a). The amendment substitutes the Director of the
Administrative Office of the United States Courts, acting subject to the
approval of the Judicial Conference of Senior Circuit Judges, in the
place of the Attorney General as a consequence of and in accordance with
the provisions of the act establishing the Administrative Office and
transferring functions thereto. Act of August 7, 1939, ch. 501, 1-7,
53 Stat. 1223, 28 U.S.C. 444-450 (now 601-610).
Subdivision (b). The change in this subdivision does not alter the
nature of the judgments and orders to be recorded in permanent form but
it does away with the express requirement that they be recorded in a
book. This merely gives latitude for the preservation of court records
in other than book form, if that shall seem advisable, and permits with
the approval of the Judicial Conference and adoption of such modern,
space-saving methods as microphotography. See Proposed Improvements in
the Administration of the Offices of Clerks of United States District
Courts, prepared by the Bureau of the Budget, 1941, 38-42. See also
Rule 55, Federal Rules of Criminal Procedure (following section 687 of
Title 18 U.S.C.).
Subdivision (c). The words ''Separate and'' have been deleted as
unduly rigid. There is no sufficient reason for requiring that the
indices in all cases be separate; on the contrary, the requirement
frequently increases the labor of persons searching the records as well
as the labor of the clerk's force preparing them. The matter should be
left to administrative discretion.
The other changes in the subdivision merely conform with those made
in subdivision (b) of the rule.
Subdivision (d). Subdivision (d) is a new provision enabling the
Administrative Office, with the approval of the Judicial Conference, to
carry out any improvements in clerical procedure with respect to books
and records which may be deemed advisable. See report cited in Note to
subdivision (b), supra.
The amendment effective October 1949 substituted the name, ''Judicial
Conference of the United States,'' for ''Judicial Conference of Senior
Circuit Judges,'' in the first sentence of subdivision (a), and in
subdivisions (b) and (d).
The terminology is clarified without any change of the prescribed
practice. See amended Rule 58, and the Advisory Committee's Note
thereto.
Notice of entry of orders by clerk, see rule 49, Title 18, Appendix,
Crimes and Criminal Procedure.
Records, see rule 55.
Entry of judgment, see rule 58.
Examination of court dockets by Director of Administrative Office of
the United States Courts, see section 604 of this title.
Filing of pleading and other papers with clerk or judge, see rule 5.
Lien of judgment, see section 1962 of this title.
Notice of entry of judgment or order, see rule 77.
Obsolete papers disposed of in accordance with rules of Judicial
Conference of the United States, see section 457 of this title.
Registration of judgments for money or property in other districts,
see section 1963 of this title.
Return of execution of process, see rule 4.
Survey and recommendation of Judicial Conference of the United
States, see section 331 of this title.
Time for serving demand for jury trial, see rule 38.
28 USC Rule 80. Stenographer; Stenographic Report or Transcript as
Evidence
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
((a) Stenographer.) (Abrogated Dec. 27, 1946, eff. Mar. 19, 1948)
((b) Official Stenographer.) (Abrogated Dec. 27, 1946, eff. Mar. 19,
1948)
(c) Stenographic Report or Transcript as Evidence. Whenever the
testimony of a witness at a trial or hearing which was stenographically
reported is admissible in evidence at a later trial, it may be proved by
the transcript thereof duly certified by the person who reported the
testimony.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
Note to Subdivision (a). This follows substantially (former) Equity
Rule 50 (Stenographer -- Appointment -- Fees). (This subdivision was
abrogated. See amendment note of Advisory Committee below.)
Note to Subdivision (b). See Reports of Conferences of Senior
Circuit Judges with the Chief Justice of the United States (1936), 22
A.B.A.J. 818, 819; (1937), 24 A.B.A.J. 75, 77. (This subdivision was
abrogated. See amendment note of Advisory Committee below.)
Note to Subdivision (c). Compare Iowa Code (1935) 11353.
Note. Subdivisions (a) and (b) of Rule 80 have been abrogated because
of Public Law 222, 78th Cong., ch. 3, 2d Sess., approved Jan. 20, 1944,
28 U.S.C. 9a (now 550, 604, 753, 1915, 1920), providing for the
appointment of official stenographers for each district court,
prescribing their duties, providing for the furnishing of transcripts,
the taxation of the fees therefor as costs and other related matters.
This statute has now been implemented by Congressional appropriation
available for the fiscal year beginning July 1, 1945.
Subdivision (c) of Rule 80 (Stenographic Report or Transcript as
Evidence) has been retained unchanged.
Appointment and compensation of court reporters, see section 753 of
this title.
Fees for transcripts of court reporters, see section 753 of this
title.
Fees of court reporter for stenographic transcript taxable as costs,
see section 1920 of this title.
Payment by United States for fees for transcripts and printing record
on appeal furnished persons proceeding in forma pauperis, see sections
753 and 1915 of this title.
Proof of official record, see rule 44.
28 USC XI. GENERAL PROVISIONS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Rule 81. Applicability in General
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) To What Proceedings Applicable.
(1) These rules do not apply to prize proceedings in admiralty
governed by Title 10, U.S.C., 7651-7681. They do not apply to
proceedings in bankruptcy or proceedings in copyright under Title 17,
U.S.C., except in so far as they may be made applicable thereto by rules
promulgated by the Supreme Court of the United States. They do not
apply to mental health proceedings in the United States District Court
for the District of Columbia.
(2) These rules are applicable to proceedings for admission to
citizenship, habeas corpus, and quo warranto, to the extent that the
practice in such proceedings is not set forth in statutes of the United
States and has heretofore conformed to the practice in civil actions.
The writ of habeas corpus, or order to show cause, shall be directed to
the person having custody of the person detained. It shall be returned
within 3 days unless for good cause shown additional time is allowed
which in cases brought under 28 U.S.C. 2254 shall not exceed 40 days,
and in all other cases shall not exceed 20 days.
(3) In proceedings under Title 9, U.S.C., relating to arbitration, or
under the Act of May 20, 1926, ch. 347, 9 (44 Stat. 585), U.S.C.,
Title 45, 159, relating to boards of arbitration of railway labor
disputes, these rules apply only to the extent that matters of procedure
are not provided for in those statutes. These rules apply to
proceedings to compel the giving of testimony or production of documents
in accordance with a subpoena issued by an officer or agency of the
United States under any statute of the United States except as otherwise
provided by statute or by rules of the district court or by order of the
court in the proceedings.
(4) These rules do not alter the method prescribed by the Act of
February 18, 1922, ch. 57, 2 (42 Stat. 388), U.S.C., Title 7, 292;
or by the Act of June 10, 1930, ch. 436, 7 (46 Stat. 534), as amended,
U.S.C., Title 7, 499g(c), for instituting proceedings in the United
States district courts to review orders of the Secretary of Agriculture;
or prescribed by the Act of June 25, 1934, ch. 742, 2 (48 Stat.
1214), U.S.C., Title 15, 522, for instituting proceedings to review
orders of the Secretary of the Interior; or prescribed by the Act of
February 22, 1935, ch. 18, 5 (49 Stat. 31), U.S.C., Title 15,
715d(c), as extended, for instituting proceedings to review orders of
petroleum control boards; but the conduct of such proceedings in the
district courts shall be made to conform to these rules so far as
applicable.
(5) These rules do not alter the practice in the United States
district courts prescribed in the Act of July 5, 1935, ch. 372, 9 and
10 (49 Stat. 453), as amended, U.S.C., Title 29, 159 and 160, for
beginning and conducting proceedings to enforce orders of the National
Labor Relations Board; and in respects not covered by those statutes,
the practice in the district courts shall conform to these rules so far
as applicable.
(6) These rules apply to proceedings for enforcement or review of
compensation orders under the Longshoremen's and Harbor Workers'
Compensation Act, Act of March 4, 1927, c. 509, 18, 21 (44 Stat.
1434, 1436), as amended, U.S.C., Title 33, 918, 921, except to the
extent that matters of procedure are provided for in that Act. The
provisions for service by publication and for answer in proceedings to
cancel certificates of citizenship under the Act of June 27, 1952, c.
477, Title III, c. 2, 340 (66 Stat. 260), U.S.C., Title 8, 1451,
remain in effect.
((7)) (Abrogated Apr. 30, 1951, eff. Aug. 1, 1951)
(b) Scire Facias and Mandamus. The writs of scire facias and
mandamus are abolished. Relief heretofore available by mandamus or
scire facias may be obtained by appropriate action or by appropriate
motion under the practice prescribed in these rules.
(c) Removed Actions. These rules apply to civil actions removed to
the United States district courts from the state courts and govern
procedure after removal. Repleading is not necessary unless the court
so orders. In a removed action in which the defendant has not answered,
the defendant shall answer or present the other defenses or objections
available under these rules within 20 days after the receipt through
service or otherwise of a copy of the initial pleading setting forth the
claim for relief upon which the action or proceeding is based, or within
20 days after the service of summons upon such initial pleading, then
filed, or within 5 days after the filing of the petition for removal,
whichever period is longest. If at the time of removal all necessary
pleadings have been served, a party entitled to trial by jury under Rule
38 shall be accorded it, if the party's demand therefor is served within
10 days after the petition for removal is filed if the party is the
petitioner, or if not the petitioner within 10 days after service on the
party of the notice of filing the petition. A party who, prior to
removal, has made an express demand for trial by jury in accordance with
state law, need not make a demand after removal. If state law
applicable in the court from which the case is removed does not require
the parties to make express demands in order to claim trial by jury,
they need not make demands after removal unless the court directs that
they do so within a specified time if they desire to claim trial by
jury. The court may make this direction on its own motion and shall do
so as a matter of course at the request of any party. The failure of a
party to make demand as directed constitutes a waiver by that party of
trial by jury.
((d) District of Columbia; Courts and Judges.) (Abrogated Dec. 29,
1948, eff. Oct. 20, 1949)
(e) Law Applicable. Whenever in these rules the law of the state in
which the district court is held is made applicable, the law applied in
the District of Columbia governs proceedings in the United States
District Court for the District of Columbia. When the word ''state'' is
used, it includes, if appropriate, the District of Columbia. When the
term ''statute of the United States'' is used, it includes, so far as
concerns proceedings in the United States District Court for the
District of Columbia, any Act of Congress locally applicable to and in
force in the District of Columbia. When the law of a state is referred
to, the word ''law'' includes the statutes of that state and the state
judicial decisions construing them.
(f) References to Officer of the United States. Under any rule in
which reference is made to an officer or agency of the United States,
the term ''officer'' includes a district director of internal revenue, a
former district director or collector of internal revenue, or the
personal representative of a deceased district director or collector of
internal revenue.
(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.)
Note to Subdivision (a). Paragraph (1): Compare the enabling act,
act of June 19, 1934, U.S.C., Title 28, 723b (see 2072) (Rules in
actions at law; Supreme Court authorized to make) and 723c (see 2072)
(Union of equity and action at law rules; power of Supreme Court). For
the application of these rules in bankruptcy and copyright proceedings,
see Orders xxxvi and xxxvii in Bankruptcy and Rule 1 of Rules of
Practice and Procedure under 25 of the copyright act, act of March 4,
1909, U.S.C., Title 17, 25 (see 412, 501 to 504) (Infringement and
rules of procedure).
For examples of statutes which are preserved by paragraph (2) see:
U.S.C., Title 8, ch. 9 (former) (Naturalization); Title 28, ch. 14
(now 153) (Habeas corpus); Title 28, 377a-377c (now D.C. Code, Title
16, 3501 et seq.) (Quo warranto); and such forfeiture statutes as
U.S.C., Title 7, 116 (Misbranded seeds, confiscation), and Title 21,
14 (see 334(b)) (Pure Food and Drug Act -- condemnation of adulterated
or misbranded food; procedure). See also 443 Cans of Frozen Eggs
Product v. U.S., 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174 (1912).
For examples of statutes which under paragraph (7) will continue to
govern procedure in condemnation cases, see U.S.C., Title 40, 258
(Condemnation of realty for sites for public building, etc., procedure);
U.S.C., Title 16, 831x (Condemnation by Tennessee Valley Authority);
U.S.C., Title 40, 120 (Acquisition of lands for public use in District
of Columbia); Title 40, ch. 7 (now D.C. Code, Title 16, 1301 et seq.)
(Acquisition of lands in District of Columbia for use of United States;
condemnation).
Note to Subdivision (b). Some statutes which will be affected by
this subdivision are:
U.S.C., Title 7:
222 (Federal Trade Commission powers adopted for enforcement of
Stockyards Act) (By reference to Title 15, 49)
U.S.C., Title 15:
49 (Enforcement of Federal Trade Commission orders and antitrust
laws)
77t(c) (Enforcement of Securities and Exchange Commission orders
and Securities Act of 1933)
78u(f) (Same; Securities Exchange Act of 1934) 79r(g) (Same;
Public Utility Holding Company Act of 1935)
U.S.C., Title 16:
820 (Proceedings in equity for revocation or to prevent
violations of license of Federal Power Commission licensee)
825m(b) (Mandamus to compel compliance with Federal Water Power
Act, etc.)
U.S.C., Title 19:
1333(c) (Mandamus to compel compliance with orders of Tariff
Commission, etc.)
U.S.C., Title 28:
377 (now 1651) (Power to issue writs) 572 (now 1923) (Fees,
attorneys, solicitors and proctors) 778 (former) (Death of
parties; substitution of executor or
administrator). Compare Rule 25(a) (Substitution of parties; death),
and the note thereto.
U.S.C., Title 33:
495 (Removal of bridges over navigable waters)
U.S.C., Title 45:
88 (Mandamus against Union Pacific Railroad Company) 153(p)
(Mandamus to enforce orders of Adjustment Board under
Railway Labor Act)
185 (Same; National Air Transport Adjustment Board) (By
reference to 153)
U.S.C., Title 47:
11 (Powers of Federal Communications Commission) 401(a)
(Enforcement of Federal Communications Act and orders of
Commission)
406 (Same; compelling furnishing of facilities; mandamus)
U.S.C., Title 49:
19a(l) (now 11703) (Mandamus to compel compliance with
Interstate Commerce Act)
20(9) (now 11703) (Jurisdiction to compel compliance with
interstate commerce laws by mandamus)
For comparable provisions in state practice see Ill. Rev. Stat.
(1937), ch. 110, 179; Calif. Code Civ. Proc. (Deering, 1937) 802.
Note to Subdivision (c). Such statutes as the following dealing with
the removal of actions are substantially continued and made subject to
these rules:
U.S.C., Title 28:
71 (now 1441, 1445, 1447) (Removal of suits from state courts)
72 (now 1446, 1447) (Same; procedure) 73 (former) (Same; suits
under grants of land from different
states)
74 (now 1443, 1446, 1447) (Same; causes against persons denied
civil rights)
75 (now 1446) (Same; petitioner in actual custody of state
court)
76 (now 1442, 1446, 1447) (Same; suits and prosecutions against
revenue officers)
77 (now 1442) (Same; suits by aliens) 78 (now 1449) (Same;
copies of records refused by clerk of
state court)
79 (now 1450) (Same; previous attachment bonds or orders) 80
(now 1359, 1447, 1919) (Same; dismissal or remand) 81 (now 1447)
(Same; proceedings in suits removed) 82 (former) (Same; record;
filing and return) 83 (now 1447, 1448) (Service of process after
removal)
U.S.C., Title 28, 72 (now 1446, 1447), supra, however, is modified
by shortening the time for pleading in removed actions.
Note to Subdivision (e). The last sentence of this subdivision
modifies U.S.C., Title 28, 725 (now 1652) (Laws of States as rules of
decision) in so far as that statute has been construed to govern matters
of procedure and to exclude state judicial decisions relative thereto.
Note to Subdivision (a). Despite certain dicta to the contrary, Lynn
v. United States, C.C.A.5th, 1940, 110 F.2d 586; Mount Tivy Winery,
Inc. v. Lewis, N.D.Cal. 1942, 42 F.Supp. 636, it is manifest that the
rules apply to actions against the United States under the Tucker Act
(28 U.S.C., 41(20), 250, 251, 254, 257, 258, 287, 289, 292, 761-765
(now 791, 1346, 1401, 1402, 1491, 1493, 1496, 1501, 1503, 2071, 2072,
2411, 2412, 2501, 2506, 2509, 2510)). See United States to use of
Foster Wheeler Corp. v. American Surety Co. of New York, E.D.N.Y.
1939, 25 F.Supp. 700; Boerner v. United States, E.D.N.Y. 1939, 26
F.Supp. 769; United States v. Gallagher, C.C.A.9th, 1945, 151 F.2d
556. Rules 1 and 81 provide that the rules shall apply to all suits of a
civil nature, whether cognizable as cases at law or in equity, except
those specifically excepted; and the character of the various
proceedings excepted by express statement in Rule 81, as well as the
language of the rules generally, shows that the term ''civil action''
(Rule 2) includes actions against the United States. Moreover, the
rules in many places expressly make provision for the situation wherein
the United States is a party as either plaintiff or defendant. See
Rules 4(d)(4), 12(a), 13(d), 25(d), 37(f), 39(c), 45(c), 54(d), 55(e),
62(e), and 65(c). In United States v. Sherwood, 1941, 312 U.S. 584, 61
S.Ct. 767, the Solicitor General expressly conceded in his brief for the
United States that the rules apply to Tucker Act cases. The Solicitor
General stated: ''The Government, of course, recognizes that the
Federal Rules of Civil Procedure apply to cases brought under the Tucker
Act.'' (Brief for the United States, p. 31). Regarding Lynn v. United
States, supra, The Solicitor General said: ''In Lynn v. United States
* * * the Circuit Court of Appeals for the Fifth Circuit went beyond the
Government's contention there, and held that an action under the Tucker
Act is neither an action at law nor a suit in equity and, seemingly,
that the Federal Rules of Civil Procedure are, therefore, inapplicable.
We think the suggestion is erroneous. Rules 4(d), 12(a), 39(c), and
55(e) expressly contemplate suits against the United States, and nothing
in the enabling Act (48 Stat. 1064, 28 U.S.C. 723b, 723c (see 2072))
suggests that the Rules are inapplicable to Tucker Act proceedings,
which in terms are to accord with court rules and their subsequent
modifications (Sec. 4, Act of March 3, 1887, 24 Stat. 505, 28 U.S.C.,
761 (see 2071, 2072)).'' (Brief for the United States, p. 31, n. 17.)
United States v. Sherwood, supra, emphasizes, however, that the
application of the rules in Tucker Act cases affects only matters of
procedure and does not operate to extend jurisdiction. See also Rule
82. In the Sherwood case, the New York Supreme Court, acting under 795
of the New York Civil Practice Act, made an order authorizing Sherwood,
as a judgment creditor, to maintain a suit under the Tucker Act to
recover damages from the United States for breach of its contract with
the judgment debtor, Kaiser, for construction of a post office building.
Sherwood brought suit against the United States and Kaiser in the
District Court for the Eastern District of New York. The question
before the United States Supreme Court was whether a United States
District Court had jurisdiction to entertain a suit against the United
States wherein private parties were joined as parties defendant. It was
contended that either the Federal Rules of Civil Procedure or the Tucker
Act, or both, embodied the consent of the United States to be sued in
litigations in which issues between the plaintiff and third persons were
to be adjudicated. Regarding the effect of the Federal Rules, the Court
declared that nothing in the rules, so far as they may be applicable in
Tucker Act cases, authorized the maintenance of any suit against the
United States to which it had not otherwise consented. The matter
involved was not one of procedure but of jurisdiction, the limits of
which were marked by the consent of the United States to be sued. The
jurisdiction thus limited is unaffected by the Federal Rules of Civil
Procedure.
Subdivision (a)(2). The added sentence makes it clear that the rules
have not superseded the requirements of U.S.C. Title 28, 466 (now
2253). Schenk v. Plummer, C.C.A. 9th 1940, 113 F.2d 726.
For correct application of the rules in proceedings for forfeiture of
property for violation of a statute of the United States, such as under
U.S.C., Title 22, 405 (seizure of war materials intended for unlawful
export) or U.S.C., Title 21, 334(b) (Federal Food, Drug, and Cosmetic
Act; formerly Title 21, U.S.C. 14, Pure Food and Drug Act), see Reynal
v. United States, C.C.A.5th, 1945, 153 F.2d 929; United States v. 108
Boxes of Cheddar Cheese, S.D.Iowa 1943, 3 F.R.D. 40.
Subdivision (a)(3). The added sentence makes it clear that the rules
apply to appeals from proceedings to enforce administrative subpoenas.
See Perkins v. Endicott Johnson Corp., C.C.A. 2d 1942; 128 F.2d 208,
aff'd on other grounds, 1943, 317 U.S. 501, 63 S.Ct. 339; Walling v.
News Printing, Inc., C.C.A. 3d, 1945, 148 F.2d 57; McCrone v. United
States, 1939, 307 U.S. 61, 59 S.Ct. 685. And, although the provision
allows full recognition of the fact that the rigid application of the
rules in the proceedings themselves may conflict with the summary
determination desired, Good year Tire & Rubber Co. v. National Labor
Relations Board, C.C.A. 6th, 1941, 122 F.2d 450; Cudahy Packing Co. v.
National Labor Relations Board, C.C.A. 10th, 1941, 117 F.2d 692, it is
drawn so as to permit application of any of the rules in the proceedings
whenever the district court deems them helpful. See, e.g., Peoples
Natural Gas Co. v. Federal Power Commission, App. D.C. 1942, 127 F.2d
153, cert. den., 1942, 316 U.S. 700, 62 S.Ct. 1298; Martin v. Chandis
Securities Co., C.C.A. 9th, 1942, 128 F.2d 731. Compare the application
of the rules in summary proceedings in bankruptcy under General Order
37. See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay,
326-327; 2 Collier, op. cit. supra, 1401-1402; 3 Collier, op. cit.
supra, 228-231; 4 Collier, op. cit. supra, 1199-1202.
Subdivision (a)(6). Section 405 of U.S.C., Title 8 originally
referred to in the last sentence of paragraph (6), has been repealed and
738 (see 1451), U.S.C., Title 8, has been enacted in its stead. The
last sentence of paragraph (6) has, therefore, been amended in
accordance with this change. The sentence has also been amended so as
to refer directly to the statute regarding the provision of time for
answer, thus avoiding any confusion attendant upon a change in the
statute.
That portion of subdivision (a)(6) making the rules applicable to
proceedings for enforcement or review of compensation orders under the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901 et
seq.) was added by an amendment made pursuant to order of the Court,
December 28, 1939, effective three months subsequent to the adjournment
of the 76th Congress, January 3, 1941.
Subdivision (c). The change in subdivision (c) effects more speedy
trials in removed actions. In some states many of the courts have only
two terms a year. A case, if filed 20 days before a term, is returnable
to that term, but if filed less than 20 days before a term, is
returnable to the following term, which convenes six months later.
Hence, under the original wording of Rule 81(c), where a case is filed
less than 20 days before the term and is removed within a few days but
before answer, it is possible for the defendant to delay interposing his
answer or presenting his defenses by motion for six months or more. The
rule as amended prevents this result.
Subdivision (f). The use of the phrase ''the United States or an
officer or agency thereof'' in the rules (as e.g., in Rule 12(a) and
amended Rule 73(a)) could raise the question of whether ''officer''
includes a collector of internal revenue, a former collector, or the
personal representative of a deceased collector, against whom suits for
tax refunds are frequently instituted. Difficulty might ensue for the
reason that a suit against a collector or his representative has been
held to be a personal action. Sage v. United States, 1919, 250 U.S.
33, 39 S.Ct. 415; Smietanka v. Indiana Steel Co., 1921, 257 U.S. 1, 42
S.Ct. 1; United States v. Nunnally Investment Co., 1942, 316 U.S. 258,
62 S.Ct. 1064. The addition of subdivision (f) to Rule 81 dispels any
doubts on the matter and avoids further litigation.
The amendment effective October 1949 substituted the words ''United
States District Court'' for the words ''District Court of the United
States'' in the last sentence of subdivision (a)(1) and in the first and
third sentences of subdivision (e). The amendment substituted the words
''United States district courts'' for ''district courts of the United
States'' in subdivision (a)(4) and (5) and in the first sentence of
subdivision (c).
The amendment effective October 20, 1949, also made the following
changes:
In subdivision (a)(1), the reference to ''Title 17, U.S.C.'' was
substituted for the reference to ''the Act of March 4, 1909, ch. 320,
25 (35 Stat. 1081), as amended, U.S.C.; Title 17, 25.''
In subdivision (a)(2), the reference to ''Title 28, U.S.C., 2253''
was substituted for ''U.S.C., Title 28, 466.''
In subdivision (a)(3), the reference in the first sentence to ''Title
9, U.S.C.,'' was substituted for ''the Act of February 12, 1925, ch.
213 (43 Stat. 883), U.S.C., Title 9''.
In subdivision (a)(5), the words ''as amended'' were inserted after
the parenthetical citation of ''(49 Stat. 453),'' and after the
citations of ''Title 29, 159 and 160,'' former references to
subdivisions ''(e), (g), and (i)'' were deleted.
In subdivision (a)(6), after the words ''These rules'' at the
beginning of the first sentence, the following words were deleted: ''do
not apply to proceedings under the Act of September 13, 1888, ch. 1015,
13 (25 Stat. 479), as amended, U.S.C., Title 8, 282, relating to
deportation of Chinese; they''. Also in the first sentence, after the
parenthetical citation of ''(44 Stat. 1434, 1436),'' the words ''as
amended'' were added. In the last sentence, the words ''October 14,
1940, ch. 876, 338 (54 Stat. 1158)'' were inserted in lieu of the
words ''June 29, 1906, ch. 3592, 15 (34 Stat. 601), as amended.''
In subdivision (c), the word ''all'' originally appearing in the
first sentence between the words ''govern'' and ''procedure'' was
deleted. In the third sentence, the portion beginning with the words
''20 days after the receipt'' and including all the remainder of that
sentence was substituted for the following language: ''the time allowed
for answer by the law of the state or within 5 days after the filing of
the transcript of the record in the district court of the United States,
whichever period is longer, but in any event within 20 days after the
filing of the transcript''. In the fourth or last sentence, after the
words at the beginning of the sentence. ''If at the time of removal all
necessary pleadings have been,'' the word ''served'' was inserted in
lieu of the word ''filed,'' and the concluding words of the sentence,
''petition for removal is filed if he is the petitioner,'' together with
the final clause immediately following, were substituted for the words
''record of the action is filed in the district court of the United
States.''
Subdivision (a)(4). This change reflects the transfer of functions
from the Secretary of Commerce to the Secretary of the Interior made by
1939 Reorganization Plan No. II, 4(e), 53 Stat. 1433.
Subdivision (a)(6). The proper current reference is to the 1952
statute superseding the 1940 statute.
Subdivision (c). Most of the cases have held that a party who has
made a proper express demand for jury trial in the State court is not
required to renew the demand after removal of the action. Zakoscielny
v. Waterman Steamship Corp., 16 F.R.D. 314 (D.Md. 1954); Talley v.
American Bakeries Co., 15 F.R.D. 391 (E.D.Tenn. 1954); Rehrer v.
Service Trucking Co., 15 F.R.D. 113 (D.Del. 1953); 5 Moore's Federal
Practice 38.39(3) (2d ed. 1951); 1 Barron & Holtzoff, Federal Practice
and Procedure 132 (Wright ed. 1960). But there is some authority to the
contrary. Petsel v. Chicago, B. & Q.R. Co., 101 F.Supp. 1006
(S.D.Iowa 1951) Nelson v. American Nat. Bank & Trust Co., 9 F.R.D. 680
(E.D.Tenn. 1950). The amendment adopts the preponderant view.
In order still further to avoid unintended waivers of jury trial, the
amendment provides that where by State law applicable in the court from
which the case is removed a party is entitled to jury trial without
making an express demand, he need not make a demand after removal.
However, the district court for calendar or other purposes may on its
own motion direct the parties to state whether they demand a jury, and
the court must make such a direction upon the request of any party.
Under the amendment a district court may find it convenient to establish
a routine practice of giving these directions to the parties in
appropriate cases.
Subdivision (f). The amendment recognizes the change of nomenclature
made by Treasury Dept. Order 150-26(2), 18 Fed. Reg. 3499 (1953).
As to a special problem arising under Rule 25 (Substitution of
parties) in actions for refund of taxes, see the Advisory Committee's
Note to the amendment of Rule 25(d), effective July 19, 1961; and 4
Moore's Federal Practice 25.09 at 531 (2d ed. 1950).
See Note to Rule 1, supra.
Statutory proceedings to forfeit property for violation of the laws
of the United States, formerly governed by the admiralty rules, will be
governed by the unified and supplemental rules. See Supplemental Rule
A.
Upon the recommendation of the judges of the United States District
Court for the District of Columbia, the Federal Rules of Civil Procedure
are made applicable to probate proceedings in that court. The exception
with regard to adoption proceedings is removed because the court no
longer has jurisdiction of those matters; and the words ''mental
health'' are substituted for ''lunacy'' to conform to the current
characterization in the District.
The purpose of the amendment to paragraph (3) is to permit the
deletion from Rule 73(a) of the clause ''unless a shorter time is
provided by law.'' The 10 day period fixed for an appeal under 45 U.S.C.
159 is the only instance of a shorter time provided for appeals in
civil cases. Apart from the unsettling effect of the clause, it is
eliminated because its retention would preserve the 15 day period
heretofore allowed by 28 U.S.C. 2107 for appeals from interlocutory
decrees in admiralty, it being one of the purposes of the amendment to
make the time for appeals in civil and admiralty cases uniform under the
unified rules. See Advisory Committee's Note to subdivision (a) of Rule
73.
The amendments eliminate inappropriate references to appellate
procedure.
Title 28, U.S.C., 2243 now requires that the custodian of a person
detained must respond to an application for a writ of habeas corpus
''within three days unless for good cause additional time, not exceeding
twenty days, is allowed.'' The amendment increases to forty days the
additional time that the district court may allow in habeas corpus
proceedings involving persons in custody pursuant to a judgment of a
state court. The substantial increase in the number of such proceedings
in recent years has placed a considerable burden on state authorities.
Twenty days has proved in practice too short a time in which to prepare
and file the return in many such cases. Allowance of additional time
should, of course, be granted only for good cause.
While the time allowed in such a case for the return of the writ may
not exceed forty days, this does not mean that the state must
necessarily be limited to that period of time to provide for the federal
court the transcript of the proceedings of a state trial or plenary
hearing if the transcript must be prepared after the habeas corpus
proceeding has begun in the federal court.
The amendments are technical. No substantive change is intended.
Abrogation of par. (7) of subdivision (a) of this rule as effective
August 1, 1951, see Effective Date note under Rule 71A.
Application and exception, see rule 54, Title 18, Appendix, Crimes
and Criminal Procedure.
Antitrust Civil Process Act petitions, application of rules, see
section 1314 of Title 15, Commerce and Trade.
Demand for jury trial, see rule 38.
Habeas corpus, see this title.
Power of court to issue writs, see section 1651 of this title.
Procedure before and after removal generally, see sections 1446 and
1447 of this title.
Scope of rules, see rule 1.
Virgin Islands, applicability of rules to district court for, see
section 1615 of Title 48, Territories and Insular Possessions.
28 USC Rule 82. Jurisdiction and Venue Unaffected
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
These rules shall not be construed to extend or limit the
jurisdiction of the United States district courts or the venue of
actions therein. An admiralty or maritime claim within the meaning of
Rule 9(h) shall not be treated as a civil action for the purposes of
Title 28, U.S.C., 1391-93.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff.
July 1, 1966.)
These rules grant extensive power of joining claims and counterclaims
in one action, but, as this rule states, such grant does not extend
federal jurisdiction. The rule is declaratory of existing practice
under the (former) Federal Equity Rules with regard to such provisions
as (former) Equity Rule 26 on Joinder of Causes of Action and (former)
Equity Rule 30 on Counterclaims. Compare Shulman and Jaegerman, Some
Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393
(1936).
The amendment effective October 1949 substituted the words ''United
States district courts'' for ''district courts of the United States''.
Title 28, U.S.C. 1391(b) provides: ''A civil action wherein
jurisdiction is not founded solely on diversity of citizenship may be
brought only in the judicial district where all defendants reside,
except as otherwise provided by law.'' This provision cannot
appropriately be applied to what were formerly suits in admiralty. The
rationale of decisions holding it inapplicable rests largely on the use
of the term ''civil action''; i.e., a suit in admiralty is not a
''civil action'' within the statute. By virtue of the amendment to Rule
1, the provisions of Rule 2 convert suits in admiralty into civil
actions. The added sentence is necessary to avoid an undesirable change
in existing law with respect to venue.
28 USC Rule 83. Rules by District Courts
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Each district court by action of a majority of the judges thereof may
from time to time, after giving appropriate public notice and an
opportunity to comment, make and amend rules governing its practice not
inconsistent with these rules. A local rule so adopted shall take
effect upon the date specified by the district court and shall remain in
effect unless amended by the district court or abrogated by the judicial
council of the circuit in which the district is located. Copies of
rules and amendments so made by any district court shall upon their
promulgation be furnished to the judicial council and the Administrative
Office of the United States Courts and be made available to the public.
In all cases not provided for by rule, the district judges and
magistrates may regulate their practice in any manner not inconsistent
with these rules or those of the district in which they act.
(As amended Apr. 29, 1985, eff. Aug. 1, 1985.)
This rule substantially continues U.S.C., Title 28, 731 (now 2071)
(Rules of practice in district courts) with the additional requirement
that copies of such rules and amendments be furnished to the Supreme
Court of the United States. See (former) Equity Rule 79 (Additional
Rules by District Court). With the last sentence compare United States
Supreme Court Admiralty Rules (1920), Rule 44 (Right of Trial Courts To
Make Rules of Practice) (originally promulgated in 1842).
Rule 83, which has not been amended since the Federal Rules were
promulgated in 1938, permits each district to adopt local rules not
inconsistent with the Federal Rules by a majority of the judges. The
only other requirement is that copies be furnished to the Supreme Court.
The widespread adoption of local rules and the modest procedural
prerequisites for their promulgation have led many commentators to
question the soundness of the process as well as the validity of some
rules, See 12 C. Wright & A. Miller, Federal Practice and Procedure:
Civil 3152, at 217 (1973); Caballero, Is There an Over-Exercise of
Local Rule-Making Powers by the United States District Courts?, 24 Fed.
Bar News 325 (1977). Although the desirability of local rules for
promoting uniform practice within a district is widely accepted, several
commentators also have suggested reforms to increase the quality,
simplicity, and uniformity of the local rules. See Note, Rule 83 and
the Local Federal Rules, 67 Colum.L.Rev. 1251 (1967), and Comment, The
Local Rules of Civil Procedure in the Federal District Courts -- A
Survey, 1966 Duke L.J. 1011.
The amended Rule attempts, without impairing the procedural validity
of existing local rules, to enhance the local rulemaking process by
requiring appropriate public notice of proposed rules and an opportunity
to comment on them. Although some district courts apparently consult
the local bar before promulgating rules, many do not, which has led to
criticism of a process that has district judges consulting only with
each other. See 12 C. Wright & A. Miller, supra, 3152, at 217;
Blair, The New Local Rules for Federal Practice In Iowa, 23 Drake L.Rev.
517 (1974). The new language subjects local rulemaking to scrutiny
similar to that accompanying the Federal Rules, administrative
rulemaking, and legislation. It attempts to assure that the expert
advice of practitioners and scholars is made available to the district
court before local rules are promulgated. See Weinstein, Reform of
Court Rule-Making Procedures 84-87, 127-37, 151 (1977).
The amended Rule does not detail the procedure for giving notice and
an opportunity to be heard since conditions vary from district to
district. Thus, there is no explicit requirement for a public hearing,
although a district may consider that procedure appropriate in all or
some rulemaking situations. See generally, Weinstein, supra, at 117-37,
151. The new Rule does not foreclose any other form of consultation.
For example, it can be accomplished through the mechanism of an
''Advisory Committee'' similar to that employed by the Supreme Court in
connection with the Federal Rules themselves.
The amended Rule provides that a local rule will take effect upon the
date specified by the district court and will remain in effect unless
amended by the district court or abrogated by the judicial council. The
effectiveness of a local rule should not be deferred until approved by
the judicial council because that might unduly delay promulgation of a
local rule that should become effective immediately, especially since
some councils do not meet frequently. Similarly, it was thought that to
delay a local rule's effectiveness for a fixed period of time would be
arbitrary and that to require the judicial council to abrogate a local
rule within a specified time would be inconsistent with its power under
28 U.S.C. 332 (1976) to nullify a local rule at any time. The
expectation is that the judicial council will examine all local rules,
including those currently in effect, with an eye toward determining
whether they are valid and consistent with the Federal Rules, promote
inter-district uniformity and efficiency, and do not undermine the basic
objectives of the Federal Rules.
The amended Rule requires copies of local rules to be sent upon their
promulgation to the judicial council and the Administrative Office of
the United States Courts rather than to the Supreme Court. The Supreme
Court was the appropriate filing place in 1938, when Rule 83 originally
was promulgated, but the establishment of the Administrative Office
makes it a more logical place to develop a centralized file of local
rules. This procedure is consistent with both the Criminal and the
Appellate Rules. See Fed.R.Crim.P. 57(a); Fed.R.App.P. 47. The
Administrative Office also will be able to provide improved utilization
of the file because of its recent development of a Local Rules Index.
The practice pursued by some judges of issuing standing orders has
been controversial, particularly among members of the practicing bar.
The last sentence in Rule 83 has been amended to make certain that
standing orders are not inconsistent with the Federal Rules or any local
district court rules. Beyond that, it is hoped that each district will
adopt procedures, perhaps by local rule, for promulgating and reviewing
single-judge standing orders.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Local rules, see rule 57, Title 18, Appendix, Crimes and Criminal
Procedure.
Rule-making power generally, see section 2071 of this title.
28 USC Rule 84. Forms
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The forms contained in the Appendix of Forms are sufficient under the
rules and are intended to indicate the simplicity and brevity of
statement which the rules contemplate.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
In accordance with the practice found useful in many codes, provision
is here made for a limited number of official forms which may serve as
guides in pleading. Compare 2 Mass. Gen. Laws (Ter. Ed., 1932) ch.
231, 147, Forms 1-47; English Annual Practice (1937) Appendix A to M,
inclusive; Conn. Practice Book (1934) Rules, 47-68, pp. 123-427.
Note. The amendment serves to emphasize that the forms contained in
the Appendix of Forms are sufficient to withstand attack under the rules
under which they are drawn, and that the practitioner using them may
rely on them to that extent. The circuit courts of appeals generally
have upheld the use of the forms as promoting desirable simplicity and
brevity of statement. Sierocinski v. E. I. DuPont DeNemours & Co.,
C.C.A. 3d, 1939, 103 F.2d 843; Swift & Co. v. Young, C.C.A. 4th,
1939, 107 F.2d 170; Sparks v. England, C.C.A. 8th, 1940, 113 F.2d
579; Ramsouer v. Midland Valley R. Co., C.C.A. 8th, 1943, 135 F.2d
101. And the forms as a whole have met with widespread approval in the
courts. See cases cited in 1 Moore's Federal Practice, 1938, Cum.
Supplement 8.07, under ''Page 554''; see also Commentary, The Official
Forms, 1941, 4 Fed. Rules Serv. 954. In Cook, ''Facts'' and
''Statements of Fact'', 1937, 4 U.Chi.L.Rev. 233, 245-246, it is said
with reference to what is now Rule 84: ''* * * pleaders in the federal
courts are not to be left to guess as to the meaning of (the) language''
in Rule 8 (a) regarding the form of the complaint. ''All of which is as
it should be. In no other way can useless litigation be avoided.''
Ibid. The amended rule will operate to discourage isolated results such
as those found in Washburn v. Moorman Mfg. Co., S.D.Cal. 1938, 25
F.Supp. 546; Employers Mutual Liability Ins. Co. of Wisconsin v. Blue
Line Transfer Co., W.D.Mo. 1941, 2 F.R.D. 121, 5 Fed. Rules Serv.
12e.235, Case 2.
28 USC Rule 85. Title
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
These rules may be known and cited as the Federal Rules of Civil
Procedure.
Title, see rule 60, Title 18, Appendix, Crimes and Criminal
Procedure.
28 USC Rule 86. Effective Date
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) /1/ (Effective Date of Original Rules.) These rules will take
effect on the day which is 3 months subsequent to the adjournment of the
second regular session of the 75th Congress, but if that day is prior to
September 1, 1938, then these rules will take effect on September 1,
1938. They govern all proceedings in actions brought after they take
effect and also all further proceedings in actions then pending, except
to the extent that in the opinion of the court their application in a
particular action pending when the rules take effect would not be
feasible or would work injustice, in which event the former procedure
applies.
(b) Effective Date of Amendments. The amendments adopted by the
Supreme Court on December 27, 1946, and transmitted to the Attorney
General on January 2, 1947, shall take effect on the day which is three
months subsequent to the adjournment of the first regular session of the
80th Congress, but, if that day is prior to September 1, 1947, then
these amendments shall take effect on September 1, 1947. They govern
all proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that
in the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(c) Effective Date of Amendments. The amendments adopted by the
Supreme Court on December 29, 1948, and transmitted to the Attorney
General on December 31, 1948, shall take effect on the day following the
adjournment of the first regular session of the 81st Congress.
(d) Effective Date of Amendments. The amendments adopted by the
Supreme Court on April 17, 1961, and transmitted to the Congress on
April 18, 1961, shall take effect on July 19, 1961. They govern all
proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that
in the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(e) Effective Date of Amendments. The amendments adopted by the
Supreme Court on January 21, 1963, and transmitted to the Congress on
January 21, 1963, shall take effect on July 1, 1963. They govern all
proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that
in the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(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.)
See (former) Equity Rule 81 (These Rules Effective February 1, 1913
-- Old Rules Abrogated).
Congress; Rescission
Sections 2-4 of the Order of the Supreme Court, dated Feb. 28, 1966,
383 U.S. 1031, provided:
''2. That the foregoing amendments and additions to the Rules of
Civil Procedure shall take effect on July 1, 1966, and shall govern all
proceedings in actions brought thereafter and also in all further
proceedings in actions then pending, except to the extent that in the
opinion of the court their application in a particular action then
pending would not be feasible or would work injustice, in which event
the former procedure applies.
''3. That the Chief Justice be, and he hereby is, authorized to
transmit to the Congress the foregoing amendments and additions to the
Rules of Civil Procedure in accordance with the provisions of Title 28,
U.S.C., 2072 and 2073.
''4. That: (a) subdivision (c) of Rule 6 of the Rules of Civil
Procedure for the United States District Courts promulgated by this
court on December 20, 1937, effective September 16, 1938; (b) Rule 2 of
the Rules for Practice and Procedure under section 25 of An Act To amend
and consolidate the Acts respecting copyright, approved March 4, 1909,
promulgated by this court on June 1, 1909, effective July 1, 1909; and
(c) the Rules of Practice in Admiralty and Maritime Cases, promulgated
by this court on December 6, 1920, effective March 7, 1921, as revised,
amended and supplemented be, and they hereby are, rescinded, effective
July 1, 1966.''
Effective Date, see rule 59, Title 18, Appendix, Crimes and Criminal
Procedure.
All laws in conflict with these rules to be of no further force and
effect, see section 2072 of this title.
/1/ Subdivision heading supplied editorially.
28 USC APPENDIX OF FORMS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Introductory Statement
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. The following forms are intended for illustration only. They are
limited in number. No attempt is made to furnish a manual of forms.
Each form assumes the action to be brought in the Southern District of
New York. If the district in which an action is brought has divisions,
the division should be indicated in the caption.
2. Except where otherwise indicated each pleading, motion, and other
paper should have a caption similar to that of the summons, with the
designation of the particular paper substituted for the word
''Summons''. In the caption of the summons and in the caption of the
complaint all parties must be named but in other pleadings and papers,
it is sufficient to state the name of the first party on either side,
with an appropriate indication of other parties. See Rules 4(b),
7(b)(2), and 10(a).
3. In Form 3 and the forms following, the words, ''Allegation of
jurisdiction,'' are used to indicate the appropriate allegation in Form
2.
4. Each pleading, motion, and other paper is to be signed in his
individual name by at least one attorney of record (Rule 11). The
attorney's name is to be followed by his address as indicated in Form 3.
In forms following Form 3 the signature and address are not indicated.
5. If a party is not represented by an attorney, the signature and
address of the party are required in place of those of the attorney.
28 USC Form 1. Summons
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC United States District Court for the Southern District of New
York
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Civil Action, File Number XXXX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v.
W Summons
C. D., Defendant
To the above-named Defendant:
You are hereby summoned and required to serve upon XXXX, plaintiff's
attorney, whose address is XXXXXX, an answer to the complaint which is
herewith served upon you, within 20 /1/ days after service of this
summons upon you, exclusive of the day of service. If you fail to do
so, judgment by default will be taken against you for the relief
demanded in the complaint.
XXXXXXXXXXXX,
Clerk of Court.
(Seal of the U.S. District Court)
Dated XXXXXXXXXXXX
(This summons is issued pursuant to Rule 4 of the Federal Rules of
Civil Procedure)
/1/ If the United States or an officer or agency thereof is a
defendant, the time to be inserted as to it is 60 days.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
28 USC (Form 1A. Notice of Lawsuit and Request for Waiver of Service of
Summons) (Section 11(b) of Pub. L. 102-198, approved December 9, 1991,
105 Stat. 1626, provided that Form 1A as transmitted to Congress by the
Supreme Court to become effective on December 1, 1991, shall not be
effective)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC (Form 1B. Waiver of Service of Summons) (Section 11(b) of Pub.
L. 102-198, approved December 9, 1991, 105 Stat. 1626, provided that
Form 1B as transmitted to Congress by the Supreme Court to become
effective on December 1, 1991, shall not be effective)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Form 2. Allegation of Jurisdiction
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(a) Jurisdiction founded on diversity of citizenship and amount.
Plaintiff is a (citizen of the State of Connecticut) /1/ (corporation
incorporated under the laws of the State of Connecticut having its
principal place of business in the State of Connecticut) and defendant
is a corporation incorporated under the laws of the State of New York
having its principal place of business in a State other than the State
of Connecticut. The matter in controversy exceeds, exclusive of
interest and costs, the sum of ten thousand dollars.
(b) Jurisdiction founded on the existence of a Federal question and
amount in controversy.
The action arises under (the Constitution of the United States,
Article XX, Section XX); (the XXXAmendment to the Constitution of the
United States, Section XXX); (the Act of XXX, XXX Stat. XXX; U.S.C.,
Title XXX, XXX); (the Treaty of the United States (here describe the
treaty)), /2/ as hereinafter more fully appears. The matter in
controversy exceeds, exclusive of interest and costs, the sum of ten
thousand dollars.
(c) Jurisdiction founded on the existence of a question arising under
particular statutes.
The action arises under the Act of XXX, XXX Stat. XXX; U.S.C.,
Title XXX, XXX, as hereinafter more fully appears.
(d) Jurisdiction founded on the admiralty or maritime character of
the claim.
This is a case of admiralty and maritime jurisdiction, as hereinafter
more fully appears. (If the pleader wishes to invoke the distinctively
maritime procedures referred to in Rule 9(h), add the following or its
substantial equivalent: This is an admiralty or maritime claim within
the meaning of Rule 9(h).)
/1/ Form for natural person. /2/ Use the appropriate phrase or
phrases. The general
allegation of the existence of a Federal question is ineffective unless
the matters constituting the claim for relief as set forth in the
complaint raise a Federal question.
(As amended Apr. 17, 1961, eff. July 19, 1961; Feb. 28, 1966, eff.
July 1, 1966.)
1. Diversity of Citizenship. If the plaintiff is an assignee, he
should allege such other facts of citizenship as will show that he is
entitled to prosecute his action under U.S.C., Title 28, 41(1) (now
1332).
2. Jurisdiction Founded on Some Fact Other Than Diversity of
Citizenship. The allegation as to the matter in controversy may be
omitted in any case where by law no jurisdictional amount is required.
See for example, U.S.C., Title 28, 41(2)-(28) (now 1333 to 1340, 1343,
1344, 1346, 1348, 1350, 1351, 1353, 1355 to 1357).
3. Pleading Venue. Since improper venue is an affirmative dilatory
defense, it is not necessary for plaintiff to include allegations
showing the venue to be proper.
4. It is sufficient to allege that a corporation is incorporated in a
particular state, there being, for jurisdictional purposes, a conclusive
presumption that all of its members or stockholders are citizens of that
State, Marshall v. Baltimore and Ohio R.R.. Co., 1853, 16 How. 314;
Henderson, Position of Foreign Corporations in American Constitutional
Law (1918) 54-64.
1. Diversity of citizenship. U.S.C., Title 28, 1332 (Diversity of
citizenship; amount in controversy; costs), as amended by P.L.
85-554, 72 Stat. 415, July 25, 1958, states in subsection (c) that
''For the purposes of this section and section 1441 of this title
(removable actions), a corporation shall be deemed a citizen of any
State by which it has been incorporated and of the State where it has
its principal place of business.'' Thus if the defendant corporation in
Form 2(a) had its principal place of business in Connecticut, diversity
of citizenship would not exist. An allegation regarding the principal
place of business of each corporate party must be made in addition to an
allegation regarding its place of incorporation.
2. Jurisdictional amount. U.S.C., Title 28, 1331 (Federal question;
amount in controversy; costs) and 1332 (Diversity of citizenship;
amount in controversy; costs), as amended by P.L. 85-554, 72 Stat.
415, July 25, 1958, require that the amount in controversy, exclusive of
interest and costs, be in excess of $10,000. The allegation as to the
amount in controversy may be omitted in any case where by law no
jurisdictional amount is required. See, for example, U.S.C., Title 28,
1338 (Patents, copyrights, trade-marks, and unfair competition), 1343
(Civil rights and elective franchise).
3. Pleading venue. Since improper venue is a matter of defense, it
is not necessary for plaintiff to include allegations showing the venue
to be proper. See 1 Moore's Federal practice, par. 0.140 (1.-4) (2d
ed. 1959).
Since the Civil Rules have not heretofore been applicable to
proceedings in Admiralty (Rule 81(a)(1)), Form 2 naturally has not
contained a provision for invoking the admiralty jurisdiction. The form
has never purported to be comprehensive, as making provision for all
possible grounds of jurisdiction; but a provision for invoking the
admiralty jurisdiction is particularly appropriate as an incident of
unification.
Certain distinctive features of the admiralty practice must be
preserved in unification, just as certain distinctive characteristics of
equity were preserved in the merger of law and equity in 1938. Rule
9(h) provides the device whereby, after unification, with its abolition
of the distinction between civil actions and suits in admiralty, the
pleader may indicate his choice of the distinctively maritime
procedures, and designates those features that are preserved. This form
illustrates an appropriate way in which the pleader may invoke those
procedures. Use of this device is not necessary if the claim is
cognizable only by virtue of the admiralty and maritime jurisdiction,
nor if the claim is within the exclusive admiralty jurisdiction of the
district court.
Omission of a statement such as this from the pleading indicates the
pleader's choice that the action proceed as a conventional civil action,
if this is jurisdictionally possible, without the distinctive maritime
remedies and procedures. It should be remembered, however, that Rule
9(h) provides that a pleading may be amended to add or withdraw such an
identifying statement subject to the principles stated in Rule 15.
28 USC Form 3. Complaint on a Promissory Note
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Defendant on or about June 1, 1935, executed and delivered to
plaintiff a promissory note (in the following words and figures: (here
set out the note verbatim)); (a copy of which is hereto annexed as
Exhibit A); (whereby defendant promised to pay to plaintiff or order on
June 1, 1936 the sum of XXX dollars with interest thereon at the rate of
six percent. per annum).
3. Defendant owes to plaintiff the amount of said note and interest.
Wherefore plaintiff demands judgment against defendant for the sum of
XXX dollars, interest, and costs.
Signed: XXXXXXXXXXXXXX,
Attorney for Plaintiff.
Address: XXXXXXXXXXXXX
1. The pleader may use the material in one of the three sets of
brackets. His choice will depend upon whether he desires to plead the
document verbatim, or by exhibit, or according to its legal effect.
2. Under the rules free joinder of claims is permitted. See rules
8(e) and 18. Consequently the claims set forth in each and all of the
following forms may be joined with this complaint or with each other.
Ordinarily each claim should be stated in a separate division of the
complaint, and the divisions should be designated as counts successively
numbered. In particular the rules permit alternative and inconsistent
pleading. See Form 10.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
At various places, these Forms (Forms 3, 4, 5, 6, 7, 8, 9, 10, 11,
12, 13, 18, 21) allege or refer to damages of ''ten thousand dollars,
interest, and costs,'' or the like. The Forms were written at a time
when the jurisdictional amount in ordinary ''diversity'' and ''Federal
question'' cases was an amount in excess of $3,000, exclusive of
interest and costs, so the illustrative amounts set out in the Forms
were adequate for jurisdictional purposes. However, U.S.C. Title 28,
1331 (Federal question; amount in controversy; costs) and 1332
(Diversity of citizenship; amount in controversy; costs), as amended
by Pub. Law 85-554, 72 Stat. 415, July 25, 1958, now require that the
amount in controversy, exclusive of interest and costs, be in excess of
$10,000. Accordingly the Forms are misleading. They are amended at
appropriate places by deleting the stated dollar amount and substituting
a blank, to be properly filled in by the pleader.
28 USC Form 4. Complaint on an Account
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Defendant owes plaintiff XXX dollars according to the account
hereto annexed as Exhibit A.
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 5. Complaint for Goods Sold and Delivered
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Defendant owes plaintiff XXX dollars for goods sold and delivered
by plaintiff to defendant between June 1, 1936 and December 1, 1936.
Wherefore (etc. as in Form 3).
This form may be used where the action is for an agreed price or for
the reasonable value of the goods.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 6. Complaint for Money Lent
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Defendant owes plaintiff XXX dollars for money lent by plaintiff
to defendant on June 1, 1936.
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 7. Complaint for Money Paid by Mistake
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Defendant owes plaintiff XXX dollars for money paid by plaintiff
to defendant by mistake on June 1, 1936, under the following
circumstances: (here state the circumstances with particularity -- see
Rule 9(b)).
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 8. Complaint for Money Had and Received
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Defendant owes plaintiff XXX dollars for money had and received
from one G. H. on June 1, 1936, to be paid by defendant to plaintiff.
Wherefore (etc. as in Form 3).
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 9. Complaint for Negligence
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway called Boylston Street in
Boston, Massachusetts, defendant negligently drove a motor vehicle
against plaintiff who was then crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken and
was otherwise injured, was prevented from transacting his business,
suffered great pain of body and mind, and incurred expenses for medical
attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against defendant in the sum of
XXX dollars and costs.
Since contributory negligence is an affirmative defense, the
complaint need contain no allegation of due care of plaintiff.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 10. Complaint for Negligence Where Plaintiff Is Unable To
Determine Definitely Whether the Person Responsible Is C. D. or E. F.
or Whether Both Are Responsible and Where His Evidence May Justify a
Finding of Wilfulness or of Recklessness or of Negligence
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v. Complaint
C. D. and E. F.,
Defendants
1. Allegation of jurisdiction.
2. On June 1, 1936, in a public highway called Boylston Street in
Boston, Massachusetts, defendant C. D. or defendant E. F., or both
defendants C. D. and E. F. wilfully or recklessly or negligently drove
or caused to be driven a motor vehicle against plaintiff who was then
crossing said highway.
3. As a result plaintiff was thrown down and had his leg broken and
was otherwise injured, was prevented from transacting his business,
suffered great pain of body and mind, and incurred expenses for medical
attention and hospitalization in the sum of one thousand dollars.
Wherefore plaintiff demands judgment against C. D. or against E. F.
or against both in the sum of XXX dollars and costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 11. Complaint for Conversion
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. On or about December 1, 1936, defendant converted to his own use
ten bonds of the XXXX Company (here insert brief identification as by
number and issue) of the value of XXX dollars, the property of
plaintiff.
Wherefore plaintiff demands judgment against defendant in the sum of
XXX dollars, interest, and costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 12. Complaint for Specific Performance of Contract To
Convey Land
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. On or about December 1, 1936, plaintiff and defendant entered into
an agreement in writing a copy of which is hereto annexed as Exhibit A.
3. In accord with the provisions of said agreement plaintiff tendered
to defendant the purchase price and requested a conveyance of the land,
but defendant refused to accept the tender and refused to make the
conveyance.
4. Plaintiff now offers to pay the purchase price.
Wherefore plaintiff demands (1) that defendant be required
specifically to perform said agreement, (2) damages in the sum of one
thousand dollars, and (3) that if specific performance is not granted
plaintiff have judgment against defendant in the sum of XXX dollars.
Here, as in Form 3, plaintiff may set forth the contract verbatim in
the complaint or plead it, as indicated, by exhibit, or plead it
according to its legal effect. Furthermore, plaintiff may seek legal or
equitable relief or both even though this was impossible under the
system in operation before these rules.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 13. Complaint on Claim for Debt and To Set Aside Fraudulent
Conveyance Under Rule 18(b)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v. Complaint
C. D. and E. F.,
Defendants
1. Allegation of jurisdiction.
2. Defendant C. D. on or about XXXX executed and delivered to
plaintiff a promissory note (in the following words and figures: (here
set out the note verbatim)); (a copy of which is hereto annexed as
Exhibit A); (whereby defendant C. D. promised to pay to plaintiff or
order on XXX the sum of five thousand dollars with interest thereon at
the rate of XXX percent. per annum).
3. Defendant C. D. owes to plaintiff the amount of said note and
interest.
4. Defendant C. D. on or about XXX conveyed all his property, real
and personal (or specify and describe) to defendant E. F. for the
purpose of defrauding plaintiff and hindering and delaying the
collection of the indebtedness evidenced by the note above referred to.
Wherefore plaintiff demands:
(1) That plaintiff have judgment against defendant C. D. for XXX
dollars and interest; (2) that the aforesaid conveyance to defendant E.
F. be declared void and the judgment herein be declared a lien on said
property; (3) that plaintiff have judgment against the defendants for
costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 14. Complaint for Negligence Under Federal Employer's
Liability Act
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. During all the times herein mentioned defendant owned and operated
in interstate commerce a railroad which passed through a tunnel located
at XXX and known as Tunnel No. XXX.
3. On or about June 1, 1936, defendant was repairing and enlarging
the tunnel in order to protect interstate trains and passengers and
freight from injury and in order to make the tunnel more conveniently
usable for interstate commerce.
4. In the course of thus repairing and enlarging the tunnel on said
day defendant employed plaintiff as one of its workmen, and negligently
put plaintiff to work in a portion of the tunnel which defendant had
left unprotected and unsupported.
5. By reason of defendant's negligence in thus putting plaintiff to
work in that portion of the tunnel, plaintiff was, while so working
pursuant to defendant's orders, struck and crushed by a rock, which fell
from the unsupported portion of the tunnel, and was (here describe
plaintiff's injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man,
capable of earning and actually earning XXX dollars per day. By these
injuries he has been made incapable of any gainful activity, has
suffered great physical and mental pain, and has incurred expense in the
amount of XXX dollars for medicine, medical attendance, and
hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of
XXX dollars and costs.
28 USC Form 15. Complaint for Damages Under Merchant Marine Act
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction. (If the pleader wishes to invoke the
distinctively maritime procedures referred to in Rule 9(h), add the
following or its substantial equivalent: This is an admiralty or
maritime claim within the meaning of Rule 9(h).)
2. During all the times herein mentioned defendant was the owner of
the steamship XXX and used it in the transportation of freight for hire
by water in interstate and foreign commerce.
3. During the first part of (month and year) at XXX plaintiff entered
the employ of defendant as an able seaman on said steamship under
seamen's articles of customary form for a voyage from XXX ports to the
Orient and return at a wage of XXX dollars per month and found, which is
equal to a wage of XXX dollars per month as a shore worker.
4. On June 1, 1936, said steamship was about XXX days out of the port
of XXX and was being navigated by the master and crew on the return
voyage to XXX ports. (Here describe weather conditions and the
condition of the ship and state as in an ordinary complaint for personal
injuries the negligent conduct of defendant.)
5. By reason of defendant's negligence in thus (brief statement of
defendant's negligent conduct) and the unseaworthiness of said
steamship, plaintiff was (here describe plaintiff's injuries).
6. Prior to these injuries, plaintiff was a strong, able-bodied man,
capable of earning and actually earning XXX dollars per day. By these
injuries he has been made incapable of any gainful activity; has
suffered great physical and mental pain, and has incurred expense in the
amount of XXX dollars for medicine, medical attendance, and
hospitalization.
Wherefore plaintiff demands judgment against defendant in the sum of
XXX dollars and costs.
(As amended Feb. 28, 1966, eff. July 1, 1966.)
See Advisory Committee's Note to Form 2.
28 USC Form 16. Complaint for Infringement of Patent
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. On May 16, 1934, United States Letters Patent No. XX were duly
and legally issued to plaintiff for an invention in an electric motor;
and since that date plaintiff has been and still is the owner of those
Letters Patent.
3. Defendant has for a long time past been and still is infringing
those Letters Patent by making, selling, and using electric motors
embodying the patented invention, and will continue to do so unless
enjoined by this court.
4. Plaintiff has placed the required statutory notice on all electric
motors manufactured and sold by him under said Letters Patent, and has
given written notice to defendant of his said infringement.
Wherefore plaintiff demands a preliminary and final injunction
against continued infringement, an accounting for damages, and an
assessment of interest and costs against defendant.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
The prayer for relief is amended to reflect the language of the
present patent statute, Title 35, U.S.C., 284 (Damages).
28 USC Form 17. Complaint for Infringement of Copyright and Unfair
Competition
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. Prior to March, 1936, plaintiff, who then was and ever since has
been a citizen of the United States, created and wrote an original book,
entitled XXXXXXXXXX.
3. This book contains a large amount of material wholly original with
plaintiff and is copyrightable subject matter under the laws of the
United States.
4. Between March 2, 1936, and March 10, 1936, plaintiff complied in
all respects with the Act of (give citation) and all other laws
governing copyright, and secured the exclusive rights and privileges in
and to the copyright of said book, and received from the Register of
Copyrights a certificate of registration, dated and identified as
follows: ''March 10, 1936, Class XXXX, No. XXX.''
5. Since March 10, 1936, said book has been published by plaintiff
and all copies of it made by plaintiff or under his authority or license
have been printed, bound, and published in strict conformity with the
provisions of the Act of XXXX and all other laws governing copyright.
6. Since March 10, 1936, plaintiff has been and still is the sole
proprietor of all rights, title, and interest in and to the copyright in
said book.
7. After March 10, 1936, defendant infringed said copyright by
publishing and placing upon the market a book entitled XXXX, which was
copied largely from plaintiff's copyrighted book, entitled XXXXXXXXXX.
8. A copy of plaintiff's copyrighted book is hereto attached as
''Exhibit 1''; and a copy of defendant's infringing book is hereto
attached as ''Exhibit 2.''
9. Plaintiff has notified defendant that defendant has infringed the
copyright of plaintiff, and defendant has continued to infringe the
copyright.
10. After March 10, 1936, and continuously since about XXXX,
defendant has been publishing, selling and otherwise marketing the book
entitled XXXXXXXXXX, and has thereby been engaging in unfair trade
practices and unfair competition against plaintiff to plaintiff's
irreparable damage.
Wherefore plaintiff demands:
(1) That defendant, his agents, and servants be enjoined during the
pendency of this action and permanently from infringing said copyright
of said plaintiff in any manner, and from publishing, selling, marketing
or otherwise disposing of any copies of the book entitled XXXXXXXXXX.
(2) That defendant be required to pay to plaintiff such damages as
plaintiff has sustained in consequence of defendant's infringement of
said copyright and said unfair trade practices and unfair competition
and to account for
(a) all gains, profits and advantages derived by defendant by said
trade practices and unfair competition and
(b) all gains, profits, and advantages derived by defendant by his
infringement of plaintiff's copyright or such damages as to the court
shall appear proper within the provisions of the copyright statutes, but
not less than two hundred and fifty dollars.
(3) That defendant be required to deliver up to be impounded during
the pendency of this action all copies of said book entitled XXXXXXXXXX
in his possession or under his control and to deliver up for destruction
all infringing copies and all plates, molds, and other matter for making
such infringing copies.
(4) That defendant pay to plaintiff the costs of this action and
reasonable attorney's fees to be allowed to the plaintiff by the court.
(5) That plaintiff have such other and further relief as is just.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
This form, as set out, incorporates amendments made at the same time
certain rules of the Federal Rules of Civil Procedure were amended. See
Rule 86(b) of such rules.
28 USC Form 18. Complaint for Interpleader and Declaratory Relief
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Allegation of jurisdiction.
2. On or about June 1, 1935, plaintiff issued to G. H. a policy of
life insurance whereby plaintiff promised to pay to K. L. as
beneficiary the sum of XXX dollars upon the death of G. H. The policy
required the payment by G. H. of a stipulated premium on June 1, 1936,
and annually thereafter as a condition precedent to its continuance in
force.
3. No part of the premium due June 1, 1936, was ever paid and the
policy ceased to have any force or effect on July 1, 1936.
4. Thereafter, on September 1, 1936, G. H. and K. L. died as the
result of a collision between a locomotive and the automobile in which
G. H. and K. L. were riding.
5. Defendant C. D. is the duly appointed and acting executor of the
will of G. H.; defendant E. F. is the duly appointed and acting
executor of the will of K. L.; defendant X. Y. claims to have been
duly designated as beneficiary of said policy in place of K. L.
6. Each of defendants, C. D., E. F., and X. Y. is claiming that the
above-mentioned policy was in full force and effect at the time of the
death of G. H.; each of them is claiming to be the only person entitled
to receive payment of the amount of the policy and has made demand for
payment thereof.
7. By reason of these conflicting claims of the defendants, plaintiff
is in great doubt as to which defendant is entitled to be paid the
amount of the policy, if it was in force at the death of G. H.
Wherefore plaintiff demands that the court adjudge:
(1) That none of the defendants is entitled to recover from plaintiff
the amount of said policy or any part thereof.
(2) That each of the defendants be restrained from instituting any
action against plaintiff for the recovery of the amount of said policy
or any part thereof.
(3) That, if the court shall determine that said policy was in force
at the death of G. H., the defendants be required to interplead and
settle between themselves their rights to the money due under said
policy, and that plaintiff be discharged from all liability in the
premises except to the person whom the court shall adjudge entitled to
the amount of said policy.
(4) That plaintiff recover its costs.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC Form 18-A. Notice and Acknowledgment for Service by Mail
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC United States District Court for the Southern District of New
York
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
Notice and Acknowledgment v.
W of Receipt of Summons
C.D., Defendant
and Complaint
28 USC notice
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
To: (insert the name and address of the person to be served.)
The enclosed summons and complaint are served pursuant to Rule
4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure.
You must complete the acknowledgment part of this form and return one
copy of the completed form to the sender within 20 days.
You must sign and date the acknowledgment. If you are served on
behalf of a corporation, unincorporated association (including a
partnership), or other entity, you must indicate under your signature
your relationship to that entity. If you are served on behalf of
another person and you are authorized to receive process, you must
indicate under your signature your authority.
If you do not complete and return the form to the sender within 20
days, you (or the party on whose behalf you are being served) may be
required to pay any expenses incurred in serving a summons and complaint
in any other manner permitted by law.
If you do complete and return this form, you (or the party on whose
behalf you are being served) must answer the complaint within 20 days.
If you fail to do so, judgment by default will be taken against you for
the relief demanded in the complaint.
I declare, under penalty of perjury, that this Notice and
Acknowledgment of Receipt of Summons and Complaint will have been mailed
on (insert date).
XXXXXXXXXXXXXXXXXXXXX
Signature
XXXXXXXXXXXXXXXXXXXXX
Date of Signature
28 USC acknowledgment of receipt of summons and complaint
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
I declare, under penalty of perjury, that I received a copy of the
summons and of the complaint in the above-captioned matter at (insert
address).
XXXXXXXXXXXXXXXXXXXXX
Signature
XXXXXXXXXXXXXXXXXXXXX
Relationship to Entity/Authority to Receive Service of Process
XXXXXXXXXXXXXXXXXXXXX
Date of Signature
(As added Jan. 12, 1983, Pub. L. 97-462, 3, 96 Stat. 2528; amended
Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 30, 1991, eff. Dec. 1, 1991;
Dec. 9, 1991, Pub. L. 102-198, 11(b), 105 Stat. 1626.)
Form 18-A effective 45 days after Jan. 12, 1983, see section 4 of
Pub. L. 97-462, set out as an Effective Date of 1983 Amendment note
under section 2071 of this title.
Form, abrogated by the Supreme Court in a transmittal to Congress on
Apr. 30, 1991, to be effective Dec. 1, 1991, shall continue in effect
on or after that date, see section 11(b) of Pub. L. 102-198, set out as
a note under under section 2074 of this title.
28 USC Form 19. Motion To Dismiss, Presenting Defenses of Failure To
State a Claim, of Lack of Service of Process, of Improper Venue, and of
Lack of Jurisdiction Under Rule 12(b)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The defendant moves the court as follows:
1. To dismiss the action because the complaint fails to state a claim
against defendant upon which relief can be granted.
2. To dismiss the action or in lieu thereof to quash the return of
service of summons on the grounds (a) that the defendant is a
corporation organized under the laws of Delaware and was not and is not
subject to service of process within the Southern District of New York,
and (b) that the defendant has not been properly served with process in
this action, all of which more clearly appears in the affidavits of M.
N. and X. Y. hereto annexed as Exhibit A and Exhibit B respectively.
3. To dismiss the action on the ground that it is in the wrong
district because (a) the jurisdiction of this court is invoked solely on
the ground that the action arises under the Constitution and laws of the
United States and (b) the defendant is a corporation incorporated under
the laws of the State of Delaware and is not licensed to do or doing
business in the Southern District of New York, all of which more clearly
appears in the affidavits of K. L. and V. W. hereto annexed as
Exhibits C and D, respectively.
4. To dismiss the action on the ground that the court lacks
jurisdiction because the amount actually in controversy is less than ten
thousand dollars exclusive of interest and costs.
Signed: XXXXXXXXXXXXXX
Attorney for Defendant.
Address: XXXXXXXXXXXXX
Notice of Motion
To: XXXXXXXXXXXXXX
Attorney for Plaintiff.
XXXXXXXXXXXXXXXX
Please take notice, that the undersigned will bring the above motion
on for hearing before this Court at Room XX, United States Court House,
Foley Square, City of New York, on the XXX day ofXXXX, 193X, at 10
o'clock in the forenoon of that day or as soon thereafter as counsel can
be heard.
Signed: XXXXXXXXXXXXXX
Attorney for Defendant.
Address: XXXXXXXXXXXXX
(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.
July 19, 1961.)
1. The above motion and notice of motion may be combined and
denominated Notice of Motion. See Rule 7(b).
2. As to paragraph 3, see U.S.C., Title 28, 1391 (Venue generally),
subsections (b) and (c).
3. As to paragraph 4, see U.S.C., Title 28, 1331 (Federal question;
amount in controversy; costs), as amended by P. L. 85-554, 72 Stat.
415, July 25, 1958, requiring that the amount in controversy, exclusive
of interest and costs, be in excess of $10,000.
28 USC Form 20. Answer Presenting Defenses Under Rule 12(b)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC First Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The complaint fails to state a claim against defendant upon which
relief can be granted.
28 USC Second Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
If defendant is indebted to plaintiffs for the goods mentioned in the
complaint, he is indebted to them jointly with G. H. G. H. is alive;
is a citizen of the State of New York and a resident of this district,
is subject to the jurisdiction of this court, as to both service of
process and venue; can be made a party without depriving this court of
jurisdiction of the present parties, and has not been made a party.
28 USC Third Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Defendant admits the allegation contained in paragraphs 1 and 4 of
the complaint; alleges that he is without knowledge or information
sufficient to form a belief as to the truth of the allegations contained
in paragraph 2 of the complaint; and denies each and every other
allegation contained in the complaint.
28 USC Fourth Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The right of action set forth in the complaint did not accrue within
six years next before the commencement of this action.
28 USC Counterclaim
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(Here set forth any claim as a counterclaim in the manner in which a
claim is pleaded in a complaint. No statement of the grounds on which
the court's jurisdiction depends need be made unless the counterclaim
requires independent grounds of jurisdiction.)
28 USC Cross-Claim Against Defendant M. N.
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(Here set forth the claim constituting a cross-claim against
defendant M. N. in the manner in which a claim is pleaded in a
complaint. The statement of grounds upon which the court's jurisdiction
depends need not be made unless the cross-claim requires independent
grounds of jurisdiction.)
The above form contains examples of certain defenses provided for in
Rule 12(b). The first defense challenges the legal sufficiency of the
complaint. It is a substitute for a general demurrer or a motion to
dismiss.
The second defense embodies the old plea in abatement; the decision
thereon, however, may well provide under Rules 19 and 21 for the citing
in of the party rather than an abatement of the action.
The third defense is an answer on the merits.
The fourth defense is one of the affirmative defenses provided for in
Rule 8(c).
The answer also includes a counterclaim and a cross-claim.
The explanatory note incorporates revisions made by the Advisory
Committee at the same time amendments to certain rules of the Federal
Rules of Civil Procedure were made. See also rule 12(b), as amended.
28 USC Form 21. Answer to Complaint Set Forth in Form 8, With
Counterclaim for Interpleader
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Defendant admits the allegations stated in paragraph 1 of the
complaint; and denies the allegations stated in paragraph 2 to the
extent set forth in the counterclaim herein.
28 USC Counterclaim for Interpleader
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
1. Defendant received the sum of XXX dollars as a deposit from E. F.
2. Plaintiff has demanded the payment of such deposit to him by
virtue of an assignment of it which he claims to have received from E.
F.
3. E. F. has notified the defendant that he claims such deposit, that
the purported assignment is not valid, and that he holds the defendant
responsible for the deposit.
Wherefore defendant demands:
(1) That the court order E. F. to be made a party defendant to
respond to the complaint and to this counterclaim. /1/
(2) That the court order the plaintiff and E. F. to interplead their
respective claims.
(3) That the court adjudge whether the plaintiff or E. F. is
entitled to the sum of money.
(4) That the court discharge defendant from all liability in the
premises except to the person it shall adjudge entitled to the sum of
money.
(5) That the court award to the defendant its costs and attorney's
fees.
/1/ Rule 13(h) provides for the court ordering parties to a
counterclaim, but who are not parties to the original action, to be
brought in as defendants.
(As amended Jan. 21, 1963, eff. July 1, 1963.)
This form was amended in 1963 by deleting the stated dollar amount
and substituting a blank, to be properly filled in by the pleader. See
Note of Advisory Committee under Form 3.
28 USC (Form 22. Eliminated, eff. July 1, 1963)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Form 22 for motion to bring in third-party defendant, setting out as
an exhibit summons and third-party complaint, and for notice of motion,
was eliminated and superseded by Forms 22-A and 22-B, setting out
summons and complaint against third-party defendant, and motion to bring
in third-party defendant, effective July 1, 1963. See Advisory
Committee notes under Forms 22-A and 22-B.
28 USC Form 22-A. Summons and Complaint Against Third-Party Defendant
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC United States District Court for the Southern District of New
York
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v.
C. D., Defendant and
Third-Party Summons Plaintiff v.
E. F., Third-Party
Defendant
To the above-named Third-Party Defendant:
You are hereby summoned and required to serve upon XXXX, plaintiff's
attorney whose address is XXXX, and upon XXXX, who is attorney for C.
D., defendant and third-party plaintiff, and whose address is XXXX, an
answer to the third-party complaint which is herewith served upon you
within 20 days after the service of this summons upon you exclusive of
the day of service. If you fail to do so, judgment by default will be
taken against you for the relief demanded in the third-party complaint.
There is also served upon you herewith a copy of the complaint of the
plaintiff which you may but are not required to answer.
XXXXXXXXXXXX,
Clerk of Court.
(Seal of District Court)
Dated XXXXXXXXXXXX
28 USC United States District Court for the Southern District of New
York
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v.
C. D., Defendant and
Third-Party Plaintiff
Third-Party
v. Complaint
E. F., Third-Party
Defendant
1. Plaintiff A. B. has filed against defendant C. D. a complaint, a
copy of which is hereto attached as ''Exhibit A.''
2. (Here state the grounds upon which C. D. is entitled to recover
from E. F., all or part of what A. B. may recover from C. D. The
statement should be framed as in an original complaint.)
Wherefore C. D. demands judgment against third-party defendant E.
F. for all sums /1/ that may be adjudged against defendant C. D. in
favor of plaintiff A. B.
Signed: XXXXXXXXXXXXXXXXX,
Attorney for C. D., Third-Party
Plaintiff.
Address: XXXXXXXXXXXXXXXXX
/1/ Make appropriate change where C. D. is entitled to only
partial recovery-over against E. F.
(As added Jan. 21, 1963, eff. July 1, 1963.)
Under the amendment of Rule 14(a), a defendant who files a
third-party complaint not later than 10 days after serving his original
answer need not obtain leave of court to bring in the third-party
defendant by service under Rule 4. Form 22-A is intended for use in
these cases.
The changes in the form of summons reflect an earlier amendment of
Rule 14(a), effective in 1948, making it permissive, rather than
mandatory, for the third-party defendant to answer the plaintiff's
complaint. See Cooper v. D/S A/S Progress, 188 F.Supp. 578 (E.D.Pa.
1960); 1A Barron & Holtzoff, Federal Practice and Procedure 696 (Wright
ed. 1960).
Under the amendment of Rule 5(a) requiring, with certain exceptions,
that papers be served upon all the parties to the action, the
third-party defendant, even if he makes no answer to the plaintiff's
complaint, is obliged to serve upon the plaintiff a copy of his answer
to the third-party complaint. Similarly, the defendant is obliged to
serve upon the plaintiff a copy of the summons and complaint against the
third-party defendant.
28 USC Form 22-B. Motion To Bring in Third-Party Defendant
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Defendant moves for leave, as third-party plaintiff, to cause to be
served upon E. F. a summons and third-party complaint, copies of which
are hereto attached as Exhibit X.
Signed: XXXXXXXXXXXXXXXX,
Attorney for Defendant C. D.
Address: XXXXXXXXXXXXXXX
28 USC Notice of Motion
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(Contents the same as in Form 19. The notice should be addressed to
all parties to the action.)
28 USC Exhibit X
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(Contents the same as in Form 22-A.)
(As added Jan. 21, 1963, eff. July 1, 1963.)
Form 22-B is intended for use when, under amended Rule 14(a), leave
of court is required to bring in a third-party defendant.
28 USC Form 23. Motion To Intervene as a Defendant Under Rule 24
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC (Based upon the complaint, Form 16)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
United States District Court for the Southern District of New York
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., plaintiff
v.
Motion to inter-
C. D., defendant
vene as a
E. F., applicant for
defendant intervention
E. F. moves for leave to intervene as a defendant in this action, in
order to assert the defenses set forth in his proposed answer, of which
a copy is hereto attached, on the ground that he is the manufacturer and
vendor to the defendant, as well as to others, of the articles alleged
in the complaint to be an infringement of plaintiff's patent, and as
such has a defense to plaintiff's claim presenting both questions of law
and of fact which are common to the main action. /1/
Signed: XXXXXXXXXXXXXX,
Attorney for E. F., Applicant for
Intervention.
Address: XXXXXXXXXXXXX
28 USC Notice of Motion
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC (Contents the same as in Form 19)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
/1/ For other grounds of intervention, either of right or in
the discretion of the court, see Rule 24(a) and (b).
United States District Court for the Southern District of New York
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., plaintiff
v.
Intervener's Answer
C. D., defendant
E. F., intervener
28 USC First Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Intervener admits the allegations stated in paragraphs 1 and 4 of the
complaint; denies the allegations in paragraph 3, and denies the
allegations in paragraph 2 in so far as they assert the legality of the
issuance of the Letters Patent to plaintiff.
28 USC Second Defense
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Plaintiff is not the first inventor of the articles covered by the
Letters Patent specified in his complaint, since articles substantially
identical in character were previously patented in Letters Patent
granted to intervener on January 5, 1920.
Signed: XXXXXXXXXXXXXXXX,
Attorney for E. F., Intervener.
Address: XXXXXXXXXXXXXXX
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
28 USC Form 24. Request for Production of Documents, etc., Under Rule
34
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Plaintiff A. B. requests defendant C. D. to respond within XXX days
to the following requests:
(1) That defendant produce and permit plaintiff to inspect and to
copy each of the following documents:
(Here list the documents either individually or by category and
describe each of them.)
(Here state the time, place, and manner of making the inspection and
performance of any related acts.)
(2) That defendant produce and permit plaintiff to inspect and to
copy, test, or sample each of the following objects:
(Here list the objects either individually or by category and
describe each of them.)
(Here state the time, place, and manner of making the inspection and
performance of any related acts.)
(3) That defendant permit plaintiff to enter (here describe property
to be entered) and to inspect and to photograph, test or sample (here
describe the portion of the real property and the objects to be
inspected).
(Here state the time, place, and manner of making the inspection and
performance of any related acts.)
Signed: XXXXXXXXXXXXXX,
Attorney for Plaintiff.
Address: XXXXXXXXXXXXX
(As amended Mar. 30, 1970, eff. July 1, 1970.)
Form 24 is revised to accord with the changes made in Rule 34.
28 USC Form 25. Request for Admission Under Rule 36
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
Plaintiff A. B. requests defendant C. D. within XXXX days after
service of this request to make the following admissions for the purpose
of this action only and subject to all pertinent objections to
admissibility which may be interposed at the trial:
1. That each of the following documents, exhibited with this request,
is genuine.
(Here list the documents and describe each document.)
2. That each of the following statements is true.
(Here list the statements.)
Signed: XXXXXXXXXXXXXX,
Attorney for Plaintiff.
Address: XXXXXXXXXXXXX
(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)
28 USC Form 26. Allegation of Reason for Omitting Party
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
When it is necessary, under Rule 19(c), for the pleader to set forth
in his pleading the names of persons who ought to be made parties, but
who are not so made, there should be an allegation such as the one set
out below:
John Doe named in this complaint is not made a party to this action
(because he is not subject to the jurisdiction of this court); (because
he cannot be made a party to this action without depriving this court of
jurisdiction).
28 USC (Form 27. Abrogated. Dec. 4, 1967, eff. July 1, 1968)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The form of notice of appeal is transferred to the Federal Rules of
Appellate Procedure as Form 1.
28 USC Form 28. Notice: Condemnation
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
United States District Court for the Southern District of New York
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
United States of America, Plaintiff v.
1,000 Acres of Land in
Notice
(here insert a general location as ''City of XX'' or ''County of
XX''), John Doe et al., and Unknown Owners, Defendants
To (here insert the names of the defendants to whom the notice is
directed):
You are hereby notified that a complaint in condemnation has
heretofore been filed in the office of the clerk of the United States
District Court for the Southern District of New York, in the United
States Court House in New York City, New York, for the taking (here
state the interest to be acquired, as ''an estate in fee simple'') for
use (here state briefly the use, ''as a site for a post-office
building'') of the following described property in which you have or
claim an interest.
(Here insert brief description of the property in which the
defendants, to whom the notice is directed, have or claim an interest.)
The authority for the taking is (here state briefly, as ''the Act of
XXX, XXX Stat. XXX, U.S.C., Title XXX, XXX''.) /1/
You are further notified that if you desire to present any objection
or defense to the taking of your property you are required to serve your
answer on the plaintiff's attorney at the address herein designated
within twenty days after XXXXXXXX. /2/
Your answer shall identify the property in which you claim to have an
interest, state the nature and extent of the interest you claim, and
state all of your objections and defenses to the taking of your
property. All defenses and objections not so presented are waived. And
in case of your failure so to answer the complaint, judgment of
condemnation of that part of the above-described property in which you
have or claim an interest will be rendered.
But without answering, you may serve on the plaintiff's attorney a
notice of appearance designating the property in which you claim to be
interested. Thereafter you will receive notice of all proceedings
affecting it. At the trial of the issue of just compensation, whether
or not you have previously appeared or answered, you may present
evidence as to the amount of the compensation to be paid for your
property, and you may share in the distribution of the award.
XXXXXXXXXXXXXXXXX
United States Attorney.
Address XXXXXXXXXXXXX
(Here state an address within the district where the United States
Attorney may be served as ''United States Court House, New York,
N.Y.''.)
Dated XXXX
/1/ And where appropriate add a citation to any applicable
Executive Order.
/2/ Here insert the words ''personal service of this notice
upon you,'' if personal service is to be made pursuant to subdivision
(d)(3)(i) of this rule (Rule 71A); or, insert the date of the last
publication of notice, if service by publication is to be made pursuant
to subdivision (d)(3)(ii) of this rule.
(As added May 1, 1951, eff. Aug. 1, 1951.)
28 USC Form 29. Complaint: Condemnation
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
United States District Court for the Southern District of New York
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
United States of America, Plaintiff v.
1,000 Acres of Land in
(here insert a general location as ''City of XX'' or
Complaint
''County of XX''), John Doe et al., and Unknown Owners, Defendants
1. This is an action of a civil nature brought by the United States
of America for the taking of property under the power of eminent domain
and for the ascertainment and award of just compensation to the owners
and parties in interest. /1/
2. The authority for the taking is (here state briefly, as ''the Act
of XXX, XXX Stat. XXX, U.S.C., Title XXX, XXX'') /2/ .
3. The use for which the property is to be taken is (here state
briefly the use, ''as a site for a post-office building'').
4. The interest to be acquired in the property is (here state the
interest as ''an estate in fee simple'').
5. The property so to be taken is (here set forth a description of
the property sufficient for its identification) or (described in Exhibit
A hereto attached and made a part hereof).
6. The persons known to the plaintiff to have or claim an interest in
the property /3/ are:
(Here set forth the names of such persons and the interests claimed.)
/4/
7. In addition to the persons named, there are or may be others who
have or may claim some interest in the property to be taken, whose names
are unknown to the plaintiff and on diligent inquiry have not been
ascertained. They are made parties to the action under the designation
''Unknown Owners.''
Wherefore the plaintiff demands judgment that the property be
condemned and that just compensation for the taking be ascertained and
awarded and for such other relief as may be lawful and proper.
XXXXXXXXXXXXXXXXX
United States Attorney.
Address XXXXXXXXXXXXX
(Here state an address within the district where the United States
Attorney may be served, as ''United States Court House, New York, N.
Y.''.)
/1/ If the plaintiff is not the United States, but is, for
example, a corporation invoking the power of eminent domain delegated to
it by the state, then this paragraph 1 of the complaint should be
appropriately modified and should be preceded by a paragraph
appropriately alleging federal jurisdiction for the action, such as
diversity. See Form 2.
/2/ And where appropriate add a citation to any applicable
Executive Order.
/3/ At the commencement of the action the plaintiff need name
as defendants only the persons having or claiming an interest in the
property whose names are then known, but prior to any hearing involving
the compensation to be paid for a particular piece of property the
plaintiff must add as defendants all persons having or claiming an
interest in that property whose names can be ascertained by an
appropriate search of the records and also those whose names have
otherwise been learned. See Rule 71A(c)(2).
/4/ The plaintiff should designate, as to each separate piece
of property, the defendants who have been joined as owners thereof or of
some interest therein. See Rule 71A(c)(2).
(As added May 1, 1951, eff. Aug. 1, 1951.)
28 USC Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1)
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B. (describe as a party, or as executor, administrator, or other
representative or successor of C. D., the deceased party) suggests upon
the record, pursuant to Rule 25(a)(1), the death of C. D. (describe as
party) during the pendency of this action.
(Added Jan. 21, 1963, eff. July 1, 1963.)
28 USC Form 31. Judgment on Jury Verdict
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC United States District Court for the Southern District of New
York
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v.
W Judgment
C. D., Defendant
This action came on for trial before the Court and a jury, Honorable
John Marshall, District Judge, presiding, and the issues having been
duly tried and the jury having duly rendered its verdict,
It is Ordered and Adjudged
(that the plaintiff A. B. recover of the defendant C. D. the sum of
XX, with interest thereon at the rate of X percent as provided by law,
and his costs of action.)
(that the plaintiff take nothing, that the action be dismissed on the
merits, and that the defendant C. D. recover of the plaintiff A. B. his
costs of action.)
Dated at New York, New York, this XX day of XXX, 19X.
XXXXXXXXXXXX,
Clerk of Court.
1. This Form is illustrative of the judgment to be entered upon the
general verdict of a jury. It deals with the cases where there is a
general jury verdict awarding the plaintiff money damages or finding for
the defendant, but is adaptable to other situations of jury verdicts.
2. The clerk, unless the court otherwise orders, is required
forthwith to prepare, sign, and enter the judgment upon a general jury
verdict without awaiting any direction by the court. The form of the
judgment upon a special verdict or a general verdict accompanied by
answers to interrogatories shall be promptly approved by the court, and
the clerk shall thereupon enter it. See Rule 58, as amended.
3. The Rules contemplate a simple judgment promptly entered. See
Rule 54(a). Every judgment shall be set forth on a separate document.
See Rule 58, as amended.
4. Attorneys are not to submit forms of judgment unless directed in
exceptional cases to do so by the court. See Rule 58, as amended.
(As added Jan. 21, 1963, eff. July 1, 1963.)
28 USC Form 32. Judgment on Decision by the Court
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
United States District Court for the Southern District of New York
28 USC Civil Action, File Number XX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
A. B., Plaintiff
v.
W Judgment
C. D., Defendant
This action came on for (trial) (hearing) before the Court, Honorable
John Marshall, District Judge, presiding, and the issues having been
duly (tried) (heard) and a decision having been duly rendered,
It is Ordered and Adjudged
(that the plaintiff A. B. recover of the defendant C. D. the sum
ofXX, with interest thereon at the rate ofXX percent as provided by law,
and his costs of action.)
(that the plaintiff take nothing, that the action be dismissed on the
merits, and that the defendant C. D. recover of the plaintiff A. B. his
costs of action.)
Dated at New York, New York, this XX day of XXX, 19X.
XXXXXXXXXXXX,
Clerk of Court.
1. This Form is illustrative of the judgment to be entered upon a
decision of the court. It deals with the cases of decisions by the
court awarding a party only money damages or costs, but is adaptable to
other decisions by the court.
2. The clerk, unless the court otherwise orders, is required
forthwith, without awaiting any direction by the court, to prepare,
sign, and enter the judgment upon a decision by the court that a party
shall recover only a sum certain or costs or that all relief shall be
denied. The form of the judgment upon a decision by the court granting
other relief shall be promptly approved by the court, and the clerk
shall thereupon enter it. See Rule 58, as amended.
3. See also paragraphs 3-4 of the Explanatory Note to Form 31.
(As added Jan. 21, 1963, eff. July 1, 1963.)
28 USC Form 33. Notice of Right To Consent to the Exercise of Civil
Jurisdiction by a Magistrate and Appeal Option
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
In accordance with the provisions of Title 28, U.S.C. 636(c), you
are hereby notified that the United States magistrates of this district
court, in addition to their other duties, upon the consent of all
parties in a civil case, may conduct any or all proceedings in a civil
case including a jury or nonjury trial, and order the entry of a final
judgment.
You should be aware that your decision to consent, or not to consent,
to the referral of your case to a United States magistrate must be
entirely voluntary. Only if all the parties to the case consent to the
reference to a magistrate will either the judge or magistrate to whom
the case has been assigned be informed of your decision.
An appeal from a judgment entered by a magistrate may be taken
directly to the United States court of appeals for this judicial circuit
in the same manner as an appeal from any other judgment of a district
court. Alternatively, upon consent of all parties, an appeal from a
judgment entered by a magistrate may be taken directly to a district
judge. Cases in which an appeal is taken to a district judge may be
reviewed by the United States court of appeals for this judicial circuit
only by way of petition for leave to appeal.
Copies of the Form for the ''Consent to Proceed Before a United
States Magistrate'' and ''Election of Appeal to a District Judge'' are
available from the clerk of the court.
(As added Apr. 28, 1983, eff. Aug. 1, 1983.)
28 USC Form 34. Consent To Proceed Before a United States Magistrate,
Election of Appeal to District Judge, and Order of Reference
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
28 USC UNITED STATES DISTRICT COURT FOR THE XXXXX DISTRICT OF XXXXXXXX
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
XXXXXXXXXXXXXXXX
W Docket No. XXXX
XXXXXXXXXXXXXXXX
CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE
In accordance with the provisions of Title 28, U.S.C. 636(c), the
parties to the above-captioned civil matter hereby voluntarily waive
their rights to proceed before a judge of the United States district
court and consent to have a United States magistrate conduct any and all
further proceedings in the case, including trial, and order the entry of
a final judgment.
XXXXXXXXXXXXXXXXXXXX
XXXXXXXX
Date
ELECTION OF APPEAL TO DISTRICT JUDGE
(Do not execute this portion of the Consent Form if the parties
desire that the appeal lie directly to the court of appeals.)
In accordance with the provisions of Title 28, U.S.C. 636(c)(4), the
parties elect to take any appeal in this case to a district judge.
XXXXXXXXXXXXXXXXXXXX
XXXXXXXX
Date
28 USC ORDER OF REFERENCE
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
IT IS HEREBY ORDERED that the above-captioned matter be referred to
United States Magistrate XXXXXX for all further proceedings and the
entry of judgment in accordance with Title 28, U.S.C. 636(c) and the
foregoing consent of the parties.
XXXXXXXXXXXXXX
U.S. District Judge
Note: Return this form to the Clerk of the Court only if all parties
have consented to proceed before a magistrate.
(As added Apr. 28, 1983, eff. Aug. 1, 1983.)
28 USC SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
The amendments to the Federal Rules of Civil Procedure to unify the
civil and admiralty procedure, together with the Supplemental Rules for
Certain Admiralty and Maritime Claims, completely superseded the
Admiralty Rules, effective July 1, 1966. Accordingly, the latter were
rescinded.
Since their promulgation in 1966, the Supplemental Rules for Certain
Admiralty and Maritime Claims have preserved the special procedures of
arrest and attachment unique to admiralty law. In recent years,
however, these Rules have been challenged as violating the principles of
procedural due process enunciated in the United States Supreme Court's
decision in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), and
later developed in Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v.
W. T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc.
v. Di-Chem, Inc., 419 U.S. 601 (1975). These Supreme Court decisions
provide five basic criteria for a constitutional seizure of property:
(1) effective notice to persons having interests in the property seized,
(2) judicial review prior to attachment, (3) avoidance of conclusory
allegations in the complaint, (4) security posted by the plaintiff to
protect the owner of the property under attachment, and (5) a meaningful
and timely hearing after attachment.
Several commentators have found the Supplemental Rules lacking on
some or all five grounds. E.g., Batiza & Partridge, The Constitutional
Challenge to Maritime Seizures, 26 Loy. L. Rev. 203 (1980); Morse, The
Conflict Between the Supreme Court Admiralty Rules and Sniadach-Fuentes:
A Collision Course?, 3 Fla. St. U.L. Rev. 1 (1975). The federal
courts have varied in their disposition of challenges to the
Supplemental Rules. The Fourth and Fifth Circuits have affirmed the
constitutionality of Rule C. Amstar Corp. v. S/S Alexandros T., 664
F.2d 904 (4th Cir. 1981); Merchants National Bank of Mobile v. The
Dredge General G. L. Gillespie, 663 F.2d 1338 (5th Cir. 1981), cert.
dismissed, 456 U.S. 966 (1982). However, a district court in the Ninth
Circuit found Rule C unconstitutional. Alyeska Pipeline Service Co. v.
The Vessel Bay Ridge, 509 F. Supp. 1115 (D. Alaska 1981), appeal
dismissed, 703 F.2d 381 (9th Cir. 1983). Rule B(1) has received similar
inconsistent treatment. The Ninth and Eleventh Circuits have upheld its
constitutionality. Polar Shipping, Ltd. v. Oriental Shipping Corp.,
680 F.2d 627 (9th Cir. 1982); Schiffahartsgesellschaft Leonhardt & Co.
v. A. Bottacchi S. A. de Navegacion, 732 F.2d 1543 (11th Cir. 1984). On
the other hand, a Washington district court has found it to be
constitutionally deficient. Grand Bahama Petroleum Co. v. Canadian
Transportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978). The
constitutionality of both rules was questioned in Techem Chem Co. v.
M/T Choyo Maru, 416 F. Supp. 960 (D. Md. 1976). Thus, there is
uncertainty as to whether the current rules prescribe constitutionally
sound procedures for guidance of courts and counsel. See generally
Note, Due Process in Admiralty Arrest and Attachment, 56 Tex. L. Rev.
1091 (1978).
Due to the controversy and uncertainty that have surrounded the
Supplemental Rules, local admiralty bars and the Maritime Law
Association of the United States have sought to strengthen the
constitutionality of maritime arrest and attachment by encouraging
promulgation of local admiralty rules providing for prompt post-seizure
hearings. Some districts also adopted rules calling for judicial
scrutiny of applications for arrest or attachment. Nonetheless, the
result has been a lack of uniformity and continued concern over the
constitutionality of the existing practice. The amendments that follow
are intended to provide rules that meet the requirements prescribed by
the Supreme Court and to develop uniformity in the admiralty practice.
28 USC Rule A. Scope of Rules
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
These Supplemental Rules apply to the procedure in admiralty and
maritime claims within the meaning of Rule 9(h) with respect to the
following remedies:
(1) Maritime attachment and garnishment;
(2) Actions in rem;
(3) Possessory, petitory, and partition actions;
(4) Actions for exoneration from or limitation of liability.
These rules also apply to the procedure in statutory condemnation
proceedings analogous to maritime actions in rem, whether within the
admiralty and maritime jurisdiction or not. Except as otherwise
provided, references in these Supplemental Rules to actions in rem
include such analogous statutory condemnation proceedings.
The general Rules of Civil Procedure for the United States District
Courts are also applicable to the foregoing proceedings except to the
extent that they are inconsistent with these Supplemental Rules.
(As added Feb. 28, 1966, eff. July 1, 1966.)
Certain distinctively maritime remedies must be preserved in unified
rules. The commencement of an action by attachment or garnishment has
heretofore been practically unknown in federal jurisprudence except in
admiralty, although the amendment of Rule 4(e) effective July 1, 1963,
makes available that procedure in accordance with state law. The
maritime proceeding in rem is unique, except as it has been emulated by
statute, and is closely related to the substantive maritime law relating
to liens. Arrest of the vessel or other maritime property is an
historic remedy in controversies over title or right to possession, and
in disputes among co-owners over the vessel's employment. The statutory
right to limit liability is limited to owners of vessels, and has its
own complexities. While the unified federal rules are generally
applicable to these distinctive proceedings, certain special rules
dealing with them are needed.
Arrest of the person and imprisonment for debt are not included
because these remedies are not peculiarly maritime. The practice is not
uniform but conforms to state law. See 2 Benedict 286; 28 U.S.C.,
2007; FRCP 64, 69. The relevant provisions of Admiralty Rules 2, 3,
and 4 are unnecessary or obsolete.
No attempt is here made to compile a complete and self-contained code
governing these distinctively maritime remedies. The more limited
objective is to carry forward the relevant provisions of the former
Rules of Practice for Admiralty and Maritime Cases, modernized and
revised to some extent but still in the context of history and
precedent. Accordingly, these Rules are not to be construed as limiting
or impairing the traditional power of a district court, exercising the
admiralty and maritime jurisdiction, to adapt its procedures and its
remedies in the individual case, consistently with these rules, to
secure the just, speedy, and inexpensive determination of every action.
(See Swift & Co., Packers v. Compania Columbiana Del Caribe, S/A, 339
U.S. 684, (1950); Rule 1). In addition, of course, the district courts
retain the power to make local rules not inconsistent with these rules.
See Rule 83; cf. Admiralty Rule 44.
28 USC Rule B. Attachment and Garnishment: Special Provisions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(1) When Available; Complaint, Affidavit, Judicial Authorization,
and Process. With respect to any admiralty or maritime claim in
personam a verified complaint may contain a prayer for process to attach
the defendant's goods and chattels, or credits and effects in the hands
of garnishees to be named in the process to the amount sued for, if the
defendant shall not be found within the district. Such a complaint
shall be accompanied by an affidavit signed by the plaintiff or the
plaintiff's attorney that, to the affiant's knowledge, or to the best of
the affiant's information and belief, the defendant cannot be found
within the district. The verified complaint and affidavit shall be
reviewed by the court and, if the conditions set forth in this rule
appear to exist, an order so stating and authorizing process of
attachment and garnishment shall issue. Supplemental process enforcing
the court's order may be issued by the clerk upon application without
further order of the court. If the plaintiff or the plaintiff's
attorney certifies that exigent circumstances make review by the court
impracticable, the clerk shall issue a summons and process of attachment
and garnishment and the plaintiff shall have the burden on a
post-attachment hearing under Rule E(4)(f) to show that exigent
circumstances existed. In addition, or in the alternative, the
plaintiff may, pursuant to Rule 4(e), invoke the remedies provided by
state law for attachment and garnishment or similar seizure of the
defendant's property. Except for Rule E(8) these Supplemental Rules do
not apply to state remedies so invoked.
(2) Notice to Defendant. No judgment by default shall be entered
except upon proof, which may be by affidavit, (a) that the plaintiff or
the garnishee has given notice of the action to the defendant by mailing
to the defendant a copy of the complaint, summons, and process of
attachment or garnishment, using any form of mail requiring a return
receipt, or (b) that the complaint, summons, and process of attachment
or garnishment have been served on the defendant in a manner authorized
by Rule 4(d) or (i), or (c) that the plaintiff or the garnishee has made
diligent efforts to give notice of the action to the defendant and has
been unable to do so.
(3) Answer.
(a) By Garnishee. The garnishee shall serve an answer, together with
answers to any interrogatories served with the complaint, within 20 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 effects of the defendant in the garnishee's hands, or any
interrogatories concerning such debts, credits, and effects that may be
propounded by the plaintiff, the court may award compulsory process
against the garnishee. If the garnishee admits any debts, credits, or
effects, they shall be held in the garnishee'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 attachment 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.)
Subdivision (1)
This preserves the traditional maritime remedy of attachment and
garnishment, and carries forward the relevant substance of Admiralty
Rule 2. In addition, or in the alternative, provision is made for the
use of similar state remedies made available by the amendment of Rule
4(e) effective July 1, 1963. On the effect of appearance to defend
against attachment see Rule E(8).
The rule follows closely the language of Admiralty Rule 2. No change
is made with respect to the property subject to attachment. No change
is made in the condition that makes the remedy available. The rules
have never defined the clause, ''if the defendant shall not be found
within the district,'' and no definition is attempted here. The subject
seems one best left for the time being to development on a case-by-case
basis. The proposal does shift from the marshal (on whom it now rests
in theory) to the plaintiff the burden of establishing that the
defendant cannot be found in the district.
A change in the context of the practice is brought about by Rule
4(f), which will enable summons to be served throughout the state
instead of, as heretofore, only within the district. The Advisory
Committee considered whether the rule on attachment and garnishment
should be correspondingly changed to permit those remedies only when the
defendant cannot be found within the state and concluded that the remedy
should not be so limited.
The effect is to enlarge the class of cases in which the plaintiff
may proceed by attachment or garnishment although jurisdiction of the
person of the defendant may be independently obtained. This is possible
at the present time where, for example, a corporate defendant has
appointed an agent within the district to accept service of process but
is not carrying on activities there sufficient to subject it to
jurisdiction. (Seawind Compania, S.A. v. Crescent Line, Inc., 320 F.2d
580 (2d Cir. 1963)), or where, though the foreign corporation's
activities in the district are sufficient to subject it personally to
the jurisdiction, there is in the district no officer on whom process
can be served (United States v. Cia. Naviera Continental, S.A., 178
F.Supp. 561, (S.D.N.Y. 1959)).
Process of attachment or garnishment will be limited to the district.
See Rule E(3)(a).
Subdivision (2)
The former Admiralty Rules did not provide for notice to the
defendant in attachment and garnishment proceedings. None is required
by the principles of due process, since it is assumed that the garnishee
or custodian of the property attached will either notify the defendant
or be deprived of the right to plead the judgment as a defense in an
action against him by the defendant. Harris v. Balk, 198 U.S. 215
(1905); Pennoyer v. Neff, 95 U.S. 714 (1878). Modern conceptions of
fairness, however, dictate that actual notice be given to persons known
to claim an interest in the property that is the subject of the action
where that is reasonably practicable. In attachment and garnishment
proceedings the persons whose interests will be affected by the judgment
are identified by the complaint. No substantial burden is imposed on
the plaintiff by a simple requirement that he notify the defendant of
the action by mail.
In the usual case the defendant is notified of the pendency of the
proceedings by the garnishee or otherwise, and appears to claim the
property and to make his answer. Hence notice by mail is not routinely
required in all cases, but only in those in which the defendant has not
appeared prior to the time when a default judgment is demanded. The
rule therefore provides only that no default judgment shall be entered
except upon proof of notice, or of inability to give notice despite
diligent efforts to do so. Thus the burden of giving notice is further
minimized.
In some cases the plaintiff may prefer to give notice by serving
process in the usual way instead of simply by mail. (Rule 4(d).) In
particular, if the defendant is in a foreign country the plaintiff may
wish to utilize the modes of notice recently provided to facilitate
compliance with foreign laws and procedures (Rule 4(i)). The rule
provides for these alternatives.
The rule does not provide for notice by publication because there is
no problem concerning unknown claimants, and publication has little
utility in proportion to its expense where the identity of the defendant
is known.
Subdivision (3)
Subdivision (a) incorporates the substance of Admiralty Rule 36.
The Admiralty Rules were silent as to when the garnishee and the
defendant were to answer. See also 2 Benedict ch. XXIV.
The rule proceeds on the assumption that uniform and definite periods
of time for responsive pleadings should be substituted for return days
(see the discussion under Rule C(6), below). Twenty days seems
sufficient time for the garnishee to answer (cf. FRCP 12(a)), and an
additional 10 days should suffice for the defendant. When allowance is
made for the time required for notice to reach the defendant this gives
the defendant in attachment and garnishment approximately the same time
that defendants have to answer when personally served.
Rule B(1) has been amended to provide for judicial scrutiny before
the issuance of any attachment or garnishment process. Its purpose is
to eliminate doubts as to whether the Rule is consistent with the
principles of procedural due process enunciated by the Supreme Court in
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); and later
developed in Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W.
T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc.
v. Di-Chem, Inc., 419 U.S. 601 (1975). Such doubts were raised in Grand
Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd., 450 F.
Supp. 447 (W.D. Wash. 1978); and Schiffahartsgesellschaft Leonhardt &
Co. v. A. Bottacchi S.A. de Navegacion, 552 F. Supp. 771 (S.D. Ga.
1982), which was reversed, 732 F.2d 1543 (11th Cir. 1984). But compare
Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir.
1982), in which a majority of the panel upheld the constitutionality of
Rule B because of the unique commercial context in which it is invoked.
The practice described in Rule B(1) has been adopted in some districts
by local rule. E.g., N.D. Calif. Local Rule 603.3; W.D. Wash. Local
Admiralty Rule 15(d).
The rule envisions that the order will issue when the plaintiff makes
a prima facie showing that he has a maritime claim against the defendant
in the amount sued for and the defendant is not present in the district.
A simple oder with conclusory findings is contemplated. The reference
to review by the ''court'' is broad enough to embrace review by a
magistrate as well as by a district judge.
The new provision recognizes that in some situations, such as when
the judge is unavailable and the ship is about to depart from the
jurisdiction, it will be impracticable, if not impossible, to secure the
judicial review contemplated by Rule B(1). When ''exigent
circumstances'' exist, the rule enables the plaintiff to secure the
issuance of the summons and process of attachment and garnishment,
subject to a later showing that the necessary circumstances actually
existed. This provision is intended to provide a safety valve without
undermining the requirement of preattachment scrutiny. Thus, every
effort to secure judicial review, including conducting a hearing by
telephone, should be pursued before resorting to the
exigent-circumstances procedure.
Rule B(1) also has been amended so that the garnishee shall be named
in the ''process'' rather than in the ''complaint.'' This should solve
the problem presented in Filia Compania Naviera, S.A. v. Petroship,
S.A., 1983 A.M.C. 1 (S.D.N.Y. 1982), and eliminate any need for an
additional judicial review of the complaint and affidavit when a
garnishee is added.
The amendments are technical. No substantive change is intended.
28 USC Rule C. Actions in Rem: Special Provisions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(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 or
seizure are not affected by this rule. When a statute so provides, an
action against the United States or an instrumentality thereof may
proceed on in rem principles.
(2) Complaint. In actions in rem the complaint shall be verified on
oath or solemn affirmation. It shall describe with reasonable
particularity the property that is the subject of the action and state
that it is within the district or will be during the pendency of the
action. In actions for the enforcement of forfeitures for violation of
any statute of the United States the complaint shall state the place of
seizure and whether it was on land or on navigable waters, and shall
contain such allegations as may be required by the statute pursuant to
which the action is brought.
(3) Judicial Authorization and Process. Except in actions by the
United States for forfeitures for federal statutory violations, the
verified complaint and any supporting papers shall be reviewed by the
court and, if the conditions for an action in rem appear to exist, an
order so stating and authorizing a warrant for the arrest of the vessel
or other property that is the subject of the action shall issue and be
delivered to the clerk who shall prepare the warrant. If the property
is a vessel or a vessel and tangible property on board the vessel, the
warrant shall be delivered to the marshal for service. If other
property, tangible or intangible is the subject of the action, the
warrant shall be delivered by the clerk to a person or organization
authorized to enforce it, who may be a marshal, a person or organization
contracted with by the United States, a person specially appointed by
the court for that purpose, or, if the action is brought by the United
States, any officer or employee of the United States. If the property
that is the subject of the action consists in whole or in part of
freight, or the proceeds of property sold, or other intangible property,
the clerk shall issue a summons directing any person having control of
the funds to show cause why they should not be paid into court to abide
the judgment. Supplemental process enforcing the court's order may be
issued by the clerk upon application without further order of the court.
If the plaintiff or the plaintiff's attorney certifies that exigent
circumstances make review by the court impracticable, the clerk shall
issue a summons and warrant for the arrest and the plaintiff shall have
the burden on a post-arrest hearing under Rule E(4)(f) to show that
exigent circumstances existed. In actions by the United States for
forfeitures for federal statutory violations, the clerk, upon filing of
the complaint, shall forthwith issue a summons and warrant for the
arrest of the vessel or other property without requiring a certification
of exigent circumstances.
(4) Notice. No notice other than the execution of the process is
required when the property that is the subject of the action has been
released in accordance with Rule E(5). If the property is not released
within 10 days after execution of process, the plaintiff shall promptly
or within such time as may be allowed by the court cause public notice
of the action and arrest to be given in a newspaper of general
circulation in the district, designated by order of the court. Such
notice shall specify the time within which the answer is required to be
filed as provided by subdivision (6) of this rule. This rule does not
affect the requirements of notice in actions to foreclose a preferred
ship mortgage pursuant to the Act of June 5, 1920, ch. 250, 30, as
amended. /1/
(5) Ancillary Process. In any action in rem in which process has
been served as provided by this rule, if any part of the property 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 proceeds to show cause why
it should not be delivered into the custody of the marshal or other
person or organization having a warrant 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) Claim and Answer; Interrogatories. The claimant of property that
is the subject of an action in rem shall file a claim within 10 days
after process has been executed, or within such additional time as may
be allowed by the court, and shall serve an answer within 20 days after
the filing of the claim. The claim shall be verified on oath or solemn
affirmation, and shall state the interest in the property by virtue of
which the claimant demands its restitution and the right to defend the
action. If the claim is made on behalf of the person entitled to
possession by an agent, bailee, or attorney, it shall state that the
agent, bailee, or attorney is duly authorized to make the claim. At the
time of answering the claimant shall also serve answers to any
interrogatories served with the complaint. In actions in rem
interrogatories may be so served without leave of court.
(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.)
Subdivision (1).
This rule is designed not only to preserve the proceeding in rem as
it now exists in admiralty cases, but to preserve the substance of
Admiralty Rules 13-18. The general reference to enforcement of any
maritime lien is believed to state the existing law, and is an
improvement over the enumeration in the former Admiralty Rules, which is
repetitious and incomplete (e.g., there was no reference to general
average). The reference to any maritime lien is intended to include
liens created by state law which are enforceable in admiralty.
The main concern of Admiralty Rules 13-18 was with the question
whether certain actions might be brought in rem or also, or in the
alternative, in personam. Essentially, therefore, these rules deal with
questions of substantive law, for in general an action in rem may be
brought to enforce any maritime lien, and no action in personam may be
brought when the substantive law imposes no personal liability.
These rules may be summarized as follows:
1. Cases in which the plaintiff may proceed in rem and/or in
personam:
a. Suits for seamen's wages;
b. Suits by materialmen for supplies, repairs, etc.;
c. Suits for pilotage;
d. Suits for collision damages;
e. Suits founded on mere maritime hypothecation;
f. Suits for salvage.
2. Cases in which the plaintiff may proceed only in personam:
a. Suits for assault and beating.
3. Cases in which the plaintiff may proceed only in rem:
a. Suits on bottomry bonds.
The coverage is complete, since the rules omit mention of many cases
in which the plaintiff may proceed in rem or in personam. This revision
proceeds on the principle that it is preferable to make a general
statement as to the availability of the remedies, leaving out
conclusions on matters of substantive law. Clearly it is not necessary
to enumerate the cases listed under Item 1, above, nor to try to
complete the list.
The rule eliminates the provision of Admiralty Rule 15 that actions
for assault and beating may be brought only in personam. A preliminary
study fails to disclose any reason for the rule. It is subject to so
many exceptions that it is calculated to receive rather than to inform.
A seaman may sue in rem when he has been beaten by a fellow member of
the crew so vicious as to render the vessel unseaworthy. The Rolph, 293
Fed. 269, aff'd 299 Fed. 52 (9th Cir. 1923), or where the theory of
the action is that a beating by the master is a breach of the obligation
under the shipping articles to treat the seaman with proper kindness.
The David Evans, 187 Fed. 775 (D. Hawaii 1911); and a passenger may
sue in rem on the theory that the assault is a breach of the contract of
passage, The Western States, 159 Fed. 354 (2d Cir. 1908). To say that
an action for money damages may be brought only in personam seems
equivalent to saying that a maritime lien shall not exist; and that, in
turn, seems equivalent to announcing a rule of substantive law rather
than a rule of procedure. Dropping the rule will leave it to the courts
to determine whether a lien exists as a matter of substantive law.
The specific reference to bottomry bonds is omitted because, as a
matter of hornbook substantive law, there is no personal liability on
such bonds.
Subdivision (2).
This incorporates the substance of Admiralty Rules 21 and 22.
Subdivision (3).
Derived from Admiralty Rules 10 and 37. The provision that the
warrant is to be issued by the clerk is new, but is assumed to state
existing law.
There is remarkably little authority bearing on Rule 37, although the
subject would seem to be an important one. The rule appears on its face
to have provided for a sort of ancillary process, and this may well be
the case when tangible property, such as a vessel, is arrested, and
intangible property such as freight is incidentally involved. It can
easily happen, however, that the only property against which the action
may be brought is intangible, as where the owner of a vessel under
charter has a lien on subfreights. See 2 Benedict 299 and cases cited.
In such cases it would seem that the order to the person holding the
fund is equivalent to original process, taking the place of the warrant
for arrest. That being so, it would also seem that (1) there should be
some provision for notice, comparable to that given when tangible
property is arrested, and (2) it should not be necessary, as Rule 37
provided, to petition the court for issuance of the process, but that it
should issue as of course. Accordingly the substance of Rule 37 is
included in the rule covering ordinary process, and notice will be
required by Rule C(4). Presumably the rules omit any requirement of
notice in these cases because the holder of the funds (e.g., the cargo
owner) would be required on general principles (cf. Harris v. Balk, 198
U.S. 215 (1905) to notify his obligee (e.g., the charterer); but in
actions in rem such notice seems plainly inadequate because there may be
adverse claims to the fund (e.g., there may be liens against the
subfreights for seamen's wages, etc.). Compare Admiralty Rule 9.
Subdivision (4).
This carries forward the notice provision of Admiralty Rule 10, with
one modification. Notice by publication is too expensive and
ineffective a formality to be routinely required. When, as usually
happens, the vessel or other property is released on bond or otherwise
there is no point in publishing notice; the vessel is freed from the
claim of the plaintiff and no other interest in the vessel can be
affected by the proceedings. If however, the vessel is not released,
general notice is required in order that all persons, including unknown
claimants, may appear and be heard, and in order that the judgment in
rem shall be binding on all the world.
Subdivision (5).
This incorporates the substance of Admiralty Rule 9.
There are remarkably few cases dealing directly with the rule. In
The George Prescott, 10 Fed. Cas. 222 (No. 5,339) (E.D.N.Y. 1865), the
master and crew of a vessel libeled her for wages, and other lienors
also filed libels. One of the lienors suggested to the court that prior
to the arrest of the vessel the master had removed the sails, and asked
that he be ordered to produce them. He admitted removing the sails and
selling them, justifying on the ground that he held a mortgage on the
vessel. He was ordered to pay the proceeds into court. Cf. United
States v. The Zarko, 187 F.Supp. 371 (S.D.Cal. 1960), where an armature
belonging to a vessel subject to a preferred ship mortgages was in
possession of a repairman claiming a lien.
It is evident that, though the rule has had a limited career in the
reported cases, it is a potentially important one. It is also evident
that the rule is framed in terms narrower than the principle that
supports it. There is no apparent reason for limiting it to ships and
their appurtenances (2 Benedict 299). Also, the reference to ''third
parties'' in the existing rule seems unfortunate. In The George
Prescott, the person who removed and sold the sails was a plaintiff in
the action, and relief against him was just as necessary as if he had
been a stranger.
Another situation in which process of this kind would seem to be
useful is that in which the principal property that is the subject of
the action is a vessel, but her pending freight is incidentally
involved. The warrant of arrest, and notice of its service, should be
all that is required by way of original process and notice; ancillary
process without notice should suffice as to the incidental intangibles.
The distinction between Admiralty Rules 9 and 37 is not at once
apparent, but seems to be this: Where the action was against property
that could not be seized by the marshal because it is intangible, the
original process was required to be similar to that issued against a
garnishee, and general notice was required (though not provided for by
the present rule; cf. Advisory Committee's Note to Rule C(3)). Under
Admiralty Rule 9 property had been arrested and general notice had been
given, but some of the property had been removed or for some other
reason could not be arrested. Here no further notice was necessary.
The rule also makes provision for this kind of situation: The
proceeding is against a vessel's pending freight only; summons has been
served on the person supposedly holding the funds, and general notice
has been given; it develops that another person holds all or part of
the funds. Ancillary process should be available here without further
notice.
Subdivision (6).
Adherence to the practice of return days seems unsatisfactory. The
practice varies significantly from district to district. A uniform rule
should be provided so that any claimant or defendant can readily
determine when he is required to file or serve a claim or answer.
A virtue of the return-day practice is that it requires claimants to
come forward and identify themselves at an early stage of the
proceedings -- before they could fairly be required to answer. The
draft is designed to preserve this feature of the present practice by
requiring early filing of the claim. The time schedule contemplated in
the draft is closely comparable to the present practice in the Southern
District of New York, where the claimant has a minimum of 8 days to
claim and three weeks thereafter to answer.
This rule also incorporates the substance of Admiralty Rule 25. The
present rule's emphasis on ''the true and bona fide owner'' is omitted,
since anyone having the right to possession can claim (2 Benedict 324).
Rule C(3) has been amended to provide for judicial scrutiny before
the issuance of any warrant of arrest. Its purpose is to eliminate any
doubt as to the rule's constitutionality under the Sniadach line of
cases. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes
v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U.S.
600 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419
U.S. 601 (1975). This was thought desirable even though both the Fourth
and the Fifth Circuits have upheld the existing rule. Amstar Corp. v.
S/S Alexandros T., 664 F.2d 904 (4th Cir. 1981); Merchants National
Bank of Mobile v. The Dredge General G. L. Gillespie, 663 F.2d 1338
(5th Cir. 1981), cert. dismissed, 456 U.S. 966 (1982). A contrary
view was taken by Judge Tate in the Merchants National Bank case and by
the district court in Alyeska Pipeline Service Co. v. The Vessel Bay
Ridge, 509 F. Supp. 1115 (D. Alaska 1981), appeal dismissed, 703 F.2d
381 (9th Cir. 1983).
The rule envisions that the order will issue upon a prima facie
showing that the plaintiff has an action in rem against the defendant in
the amount sued for and that the property is within the district. A
simple order with conclusory findings is contemplated. The reference to
review by the ''court'' is broad enough to embrace a magistrate as well
as a district judge.
The new provision recognizes that in some situations, such as when a
judge is unavailable and the vessel is about to depart from the
jurisdiction, it will be impracticable, if not impossible, to secure the
judicial review contemplated by Rule C(3). When ''exigent
circumstances'' exist, the rule enables the plaintiff to secure the
issuance of the summons and warrant of arrest, subject to a later
showing that the necessary circumstances actually existed. This
provision is intended to provide a safety valve without undermining the
requirement of pre-arrest scrutiny. Thus, every effort to secure
judicial review, including conducting a hearing by telephone, should be
pursued before invoking the exigent-circumstances procedure.
The foregoing requirements for prior court review or proof of exigent
circumstances do not apply to actions by the United States for
forfeitures for federal statutory violations. In such actions a prompt
hearing is not constitutionally required, United States v. Eight
Thousand Eight Hundred and Fifty Dollars, 103 S.Ct. 2005 (1983);
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), and
could prejudice the government in its prosecution of the claimants as
defendants in parallel criminal proceedings since the forfeiture hearing
could be misused by the defendants to obtain by way of civil discovery
information to which they would not otherwise be entitled and subject
the government and the courts to the unnecessary burden and expense of
two hearings rather than one.
The amendments are technical. No substantive change is intended.
These amendments are designed to conform the rule to Fed.R.Civ.P. 4,
as amended. As with recent amendments to Rule 4, it is intended to
relieve the Marshals Service of the burden of using its limited
personnel and facilities for execution of process in routine
circumstances. Doing so may involve a contractual arrangement with a
person or organization retained by the government to perform these
services, or the use of other government officers and employees, or the
special appointment by the court of persons available to perform
suitably.
The seizure of a vessel, with or without cargo, remains a task
assigned to the Marshal. Successful arrest of a vessel frequently
requires the enforcement presence of an armed government official and
the cooperation of the United States Coast Guard and other governmental
authorities. If the marshal is called upon to seize the vessel, it is
expected that the same officer will also be responsible for the seizure
of any property on board the vessel at the time of seizure that is to be
the object of arrest or attachment.
Act of June 5, 1920, ch. 250, 30, referred to in subd. (4), is
section 30 of act June 5, 1920, ch. 250, 41 Stat. 988, as amended,
known as the ''Ship Mortgage Act, 1920'', which was classified generally
to chapter 25 ( 911 et seq.) of Title 46, Appendix, Shipping, and was
repealed by Pub. L. 100-710, title I, 106(b)(2), Nov. 23, 1988, 102
Stat. 4752, and reenacted by section 102(c) thereof as chapters 301 and
313 of Title 46, Shipping.
/1/ See References in Text note below.
28 USC Rule D. Possessory, Petitory, and Partition Actions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
In all actions for possession, partition, and to try title
maintainable according to the course of the admiralty practice with
respect to a vessel, in all actions so maintainable with respect to the
possession of cargo or other maritime property, and in all actions by
one or more part owners against the others to obtain security 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.)
This carries forward the substance of Admiralty Rule 19.
Rule 19 provided the remedy of arrest in controversies involving
title and possession in general. See The Tilton, 23 Fed. Cas. 1277
(No. 14, 054) (C.C.D. Mass. 1830). In addition it provided that remedy
in controversies between co-owners respecting the employment of a
vessel. It did not deal comprehensively with controversies between
co-owners, omitting the remedy of partition. Presumably the omission is
traceable to the fact that, when the rules were originally promulgated,
concepts of substantive law (sometimes stated as concepts of
jurisdiction) denied the remedy of partition except where the parties in
disagreement were the owners of equal shares. See The Steamboat
Orleans, 36 U.S. (11 Pet.) 175 (1837). The Supreme Court has now
removed any doubt as to the jurisdiction of the district courts to
partition a vessel, and has held in addition that no fixed principle of
federal admiralty law limits the remedy to the case of equal shares.
Madruga v. Superior Court, 346 U.S. 556 (1954). It is therefore
appropriate to include a reference to partition in the rule.
28 USC Rule E. Actions in Rem and Quasi in Rem: General Provisions
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(1) Applicability. Except as otherwise provided, this rule applies
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 responsive 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, defendant, claimant, or other
party to give security, or additional 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
appeal by any appellate court.
(3) Process.
(a) Territorial Limits of Effective Service. Process in rem and of
maritime attachment and garnishment shall 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 garnishment, when it
appears that the defendant cannot be found within the district, the
marshal or other person or organization 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 having 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
marshal'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 deputy 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 attached or
arrested the marshal or other person or organization having the warrant
shall execute the process by leaving with 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 interest 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 marshal 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 notice 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 property 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 interest in it
shall be entitled to a prompt hearing at which the plaintiff shall be
required to show why the arrest or attachment 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 certification of sufficient cause filed pursuant to Title
46, U.S.C. 603 and 604 /1/ 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. Except in cases of seizures for forfeiture under
any law of the United States, 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 stipulate 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
plaintiff's claim or (ii) the value of the property on due appraisement,
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 stayed so long as the amount secured by
such bond or stipulation is at least double the aggregate amount claimed
by plaintiffs 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 stipulation had been filed
in each of such actions. The district court may make necessary orders
to carry this rule into effect, particularly 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 warrant 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 marshal, 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, possessory,
and partition actions. In such cases the property arrested 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. Whenever there is asserted a
counterclaim arising out of the same transaction or occurrence with
respect to which the action was originally filed, and the defendant or
claimant in the original action has given security to respond in
damages, any plaintiff for whose benefit such security has been given
shall give security in the usual amount and form to respond in damages
to the claims set forth in such counterclaim, unless the court, for
cause shown, shall otherwise direct; and proceedings on the original
claim shall be stayed until such security is given, unless the court
otherwise directs. When the United States or a corporate
instrumentality thereof as defendant is relieved by law of the
requirement of giving security to respond in damages it shall
nevertheless be treated for the purposes of this subdivision E(7) as if
it had given such security if a private person so situated would have
been required to give it.
(8) Restricted Appearance. An appearance to defend against an
admiralty and maritime claim with respect to which there has issued
process in rem, or process of attachment and garnishment whether
pursuant to these Supplemental Rules or to Rule 4(e), may be expressly
restricted to the defense of such claim, and in that event shall not
constitute 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) Actions for Forfeitures. In any action in rem to enforce a
forfeiture for violation of a statute of the United States the property
shall be disposed of as provided by statute.
(b) Interlocutory Sales. If property that has been attached or
arrested is perishable, or liable to deterioration, decay, or injury by
being detained in custody pending the action, or if the expense of
keeping the property is excessive or disproportionate, or if there is
unreasonable delay in securing the release of property, the court, on
application of any party or of the marshal, or other person or
organization having the warrant, may order the property or any portion
thereof to be sold; and the proceeds, or so much thereof as shall be
adequate to satisfy any judgment, may be ordered brought into court to
abide the event of the action; or the court may, upon motion of the
defendant or claimant, order delivery of the property to the defendant
or claimant, upon the giving of security in accordance with these rules.
(c) Sales, Proceeds. All sales of property shall be made by the
marshal or a deputy marshal, or by other person or organization 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.
(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.)
Subdivisions (1), (2).
Adapted from Admiralty Rule 24. The rule is based on the assumption
that there is no more need for security for costs in maritime personal
actions than in civil cases generally, but that there is reason to
retain the requirement for actions in which property is seized. As to
proceedings for limitation of liability see Rule F(1).
Subdivision (3).
The Advisory Committee has concluded for practical reasons that
process requiring seizure of property should continue to be served only
within the geographical limits of the district. Compare Rule B(1),
continuing the condition that process of attachment and garnishment may
be served only if the defendant is not found within the district.
The provisions of Admiralty Rule 1 concerning the persons by whom
process is to be served will be superseded by FRCP 4(c).
Subdivision (4).
This rule is intended to preserve the provisions of Admiralty Rules
10 and 36 relating to execution of process, custody of property, seized
by the marshal, and the marshal's return. It is also designed to make
express provision for matters not heretofore covered.
The provision relating to clearance in subdivision (b) is suggested
by Admiralty Rule 44 of the District of Maryland.
Subdivision (d) is suggested by English Rule 12, Order 75.
28 U.S.C. 1921 as amended in 1962 contains detailed provisions
relating to the expenses of seizing and preserving property attached or
arrested.
Subdivision (5).
In addition to Admiralty Rule 11 (see Rule E(9), the release of
property seized on process of attachment or in rem was dealt with by
Admiralty Rules 5, 6, 12, and 57, and 28 U.S.C., 2464 (formerly Rev.
Stat. 941). The rule consolidates these provisions and makes them
uniformly applicable to attachment and garnishment and actions in rem.
The rule restates the substance of Admiralty Rule 5. Admiralty Rule
12 dealt only with ships arrested on in rem process. Since the same
ground appears to be covered more generally by 28 U.S.C., 2464, the
subject matter of Rule 12 is omitted. The substance of Admiralty Rule
57 is retained. 28 U.S.C., 2464 is incorporated with changes of
terminology, and with a substantial change as to the amount of the bond.
See 2 Benedict 395 n. 1a; The Lotosland, 2 F. Supp. 42 (S.D.N.Y.
1933). The provision for general bond is enlarged to include the
contingency of attachment as well as arrest of the vessel.
Subdivision (6).
Adapted from Admiralty Rule 8.
Subdivision (7).
Derived from Admiralty Rule 50.
Title 46, U.S.C., 783 extends the principle of Rule 50 to the
Government when sued under the Public Vessels Act, presumably on the
theory that the credit of the Government is the equivalent of the best
security. The rule adopts this principle and extends it to all cases in
which the Government is defendant although the Suits in Admiralty Act
contains no parallel provisions.
Subdivision (8).
Under the liberal joinder provisions of unified rules the plaintiff
will be enabled to join with maritime actions in rem, or maritime
actions in personam with process of attachment and garnishment, claims
with respect to which such process is not available, including
nonmaritime claims. Unification should not, however, have the result
that, in order to defend against an admiralty and maritime claim with
respect to which process in rem or quasi in rem has been served, the
claimant or defendant must subject himself personally to the
jurisdiction of the court with reference to other claims with respect to
which such process is not available or has not been served, especially
when such other claims are nonmaritime. So far as attachment and
garnishment are concerned this principle holds true whether process is
issued according to admiralty tradition and the Supplemental Rules or
according to Rule 4(e) as incorporated by Rule B(1).
A similar problem may arise with respect to civil actions other than
admiralty and maritime claims within the meaning of Rule 9(h). That is
to say, in an ordinary civil action, whether maritime or not, there may
be joined in one action claims with respect to which process of
attachment and garnishment is available under state law and Rule 4(e)
and claims with respect to which such process is not available or has
not been served. The general Rules of Civil Procedure do not specify
whether an appearance in such cases to defend the claim with respect to
which process of attachment and garnishment has issued is an appearance
for the purposes of the other claims. In that context the question has
been considered best left to case-by-case development. Where admiralty
and maritime claims within the meaning of Rule 9(h) are concerned,
however, it seems important to include a specific provision to avoid an
unfortunate and unintended effect of unification. No inferences
whatever as to the effect of such an appearance in an ordinary civil
action should be drawn from the specific provision here and the absence
of such a provision in the general Rules.
Subdivision (9).
Adapted from Admiralty Rules 11, 12, and 40. Subdivision (a) is
necessary because of various provisions as to disposition of property in
forfeiture proceedings. In addition to particular statutes, note the
provisions of 28 U.S.C., 2461-65.
The provision of Admiralty Rule 12 relating to unreasonable delay was
limited to ships but should have broader application. See 2 Benedict
404. Similarly, both Rules 11 and 12 were limited to actions in rem,
but should equally apply to attached property.
Rule E(4)(f) makes available the type of prompt post-seizure hearing
in proceedings under Supplemental Rules B and C that the Supreme Court
has called for in a number of cases arising in other contexts. See
North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975);
Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974). Although
post-attachment and post-arrest hearings always have been available on
motion, an explicit statement emphasizing promptness and elaborating the
procedure has been lacking in the Supplemental Rules. Rule E(4)(f) is
designed to satisfy the constitutional requirement of due process by
guaranteeing to the shipowner a prompt post-seizure hearing at which he
can attack the complaint, the arrest, the security demanded, or any
other alleged deficiency in the proceedings. The amendment also is
intended to eliminate the previously disparate treatment under local
rules of defendants whose property has been seized pursuant to
Supplemental Rules B and C.
The new Rule E(4)(f) is based on a proposal by the Maritime Law
Association of the United States and on local admiralty rules in the
Eastern, Northern, and Southern Districts of New York. E.D.N.Y. Local
Rule 13; N.D.N.Y. Local Rule 13; S.D.N.Y. Local Rule 12. Similar
provisions have been adopted by other maritime districts. E.g., N.D.
Calif. Local Rule 603.4; W.D. La. Local Admiralty Rule 21. Rule
E(4)(f) will provide uniformity in practice and reduce constitutional
uncertainties.
Rule E(4)(f) is triggered by the defendant or any other person with
an interest in the property seized. Upon an oral or written application
similar to that used in seeking a temporary restraining order, see Rule
65(b), the court is required to hold a hearing as promptly as possible
to determine whether to allow the arrest or attachment to stand. The
plaintiff has the burden of showing why the seizure should not be
vacated. The hearing also may determine the amount of security to be
granted or the propriety of imposing counter-security to protect the
defendant from an improper seizure.
The foregoing requirements for prior court review or proof of exigent
circumstances do not apply to actions by the United States for
forfeitures for federal statutory violations. In such actions a prompt
hearing is not constitutionally required, United States v. Eight
Thousand Eight Hundred and Fifty Dollars, 103 S.Ct. 2005 (1983);
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), and
could prejudice the government in its prosecution of the claimants as
defendants in parallel criminal proceedings since the forfeiture hearing
could be misused by the defendants to obtain by way of civil discovery
information to which they would not otherwise be entitled and subject
the government and the courts to the unnecessary burden and expense of
two hearings rather than one.
The amendments are technical. No substantive change is intended.
These amendments are designed to conform this rule to Fed.R.Civ.P.
4, as amended. They are intended to relieve the Marshals Service of the
burden of using its limited personnel and facilities for execution of
process in routine circumstances. Doing so may involve a contractual
arrangement with a person or organization retained by the government to
perform these services, or the use of other government officers and
employees, or the special appointment by the court of persons available
to perform suitably.
Sections 603 and 604 of Title 46, referred to in subd. (4)(f), were
repealed by Pub. L. 98-89, 4(b), Aug. 26, 1983, 97 Stat. 600,
section 1 of which enacted Title 46, Shipping.
/1/ See References in Text note below.
28 USC Rule F. Limitation of Liability
TITLE 28, APPENDIX -- RULES OF CIVIL PROCEDURE
(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 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 option 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
recovered or recoverable. If the plaintiff elects to transfer the
plaintiff's interest in the vessel to a trustee, the complaint must
further 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 action.
(4) Notice to Claimants. Upon the owner's compliance with
subdivision (1) of this rule the court shall issue a notice to all
persons asserting claims with respect to which the complaint seeks
limitation, 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 complaint 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 claimant is known to have
one), (c) the nature of the claim, i.e., whether 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 appraisement to be made of the value
of the plaintiff's interest in the vessel and pending freight; and if
the court finds that the deposit or security is either insufficient or
excessive it shall order its increase 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 security be increased or reduced.
(8) Objections to Claims: Distribution of Fund. Any interested
party may question or controvert any claim without filing an objection
thereto. Upon determination of liability the fund deposited 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 district in
which the vessel has been attached or arrested to answer for any claim
with respect to which the plaintiff seeks to limit liability; 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 district 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.)
Subdivision (1).
The amendments of 1936 to the Limitation Act superseded to some
extent the provisions of Admiralty Rule 51, especially with respect to
the time of filing the complaint and with respect to security. The rule
here incorporates in substance the 1936 amendment of the Act (46 U.S.C.,
185) with a slight modification to make it clear that the complaint may
be filed at any time not later than six months after a claim has been
lodged with the owner.
Subdivision (2).
Derived from Admiralty Rules 51 and 53.
Subdivision (3).
This is derived from the last sentence of 36 U.S.C. 185 and the last
paragraph of Admiralty Rule 51.
Subdivision (4).
Derived from Admiralty Rule 51.
Subdivision (5).
Derived from Admiralty Rules 52 and 53.
Subdivision (6).
Derived from Admiralty Rule 52.
Subdivision (7).
Derived from Admiralty Rule 52 and 46 U.S.C., 185.
Subdivision (8).
Derived from Admiralty Rule 52.
Subdivision (9).
Derived from Admiralty Rule 54. The provision for transfer is
revised to conform closely to the language of 28 U.S.C. 1404(a) and
1406(a), though it retains the existing rule's provision for transfer to
any district for convenience. The revision also makes clear what has
been doubted: that the court may transfer if venue is wrongly laid.
The amendments are technical. No substantive change is intended.
28 USC TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC FEDERAL RULES OF EVIDENCE
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1926, provided: ''That
the following rules shall take effect on the one hundred and eightieth
day (July 1, 1975) beginning after the date of the enactment of this Act
(Jan. 2, 1975). These rules apply to actions, cases, and proceedings
brought after the rules take effect. These rules also apply to further
procedure in actions, cases, and proceedings then pending, except to the
extent that application of the rules would not be feasible, or would
work injustice, in which event former evidentiary principles apply.''
The Federal Rules of Evidence were adopted by order of the Supreme
Court on Nov. 20, 1972, transmitted to Congress by the Chief Justice on
Feb. 5, 1973, and to have become effective on July 1, 1973. Pub. L.
93-12, Mar. 30, 1973, 87 Stat. 9, provided that the proposed rules
''shall have no force or effect except to the extent, and with such
amendments, as they may be expressly approved by Act of Congress''.
Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1926, enacted the Federal Rules
of Evidence proposed by the Supreme Court, with amendments made by
Congress, to take effect on July 1, 1975.
The Rules have been amended Oct. 16, 1975, Pub. L. 94-113, 1, 89
Stat. 576, eff. Oct. 31, 1975; Dec. 12, 1975, Pub. L. 94-149, 1, 89
Stat. 805; Oct. 28, 1978, Pub. L. 95-540, 2, 92 Stat. 2046; Nov.
6, 1978, Pub. L. 95-598, title II, 251, 92 Stat. 2673, eff. Oct. 1,
1979; Apr. 30, 1979, eff. Dec. 1, 1980; Apr. 2, 1982, Pub. L.
97-164, title I, 142, title IV, 402, 96 Stat. 45, 57, eff. Oct. 1,
1982; Oct. 12, 1984, Pub. L. 98-473, title IV, 406, 98 Stat. 2067;
Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988;
Nov. 18, 1988, Pub. L. 100-690, title VII, 7046, 7075, 102 Stat.
4400, 4405; Jan. 26, 1990, eff. Dec. 1, 1990; Apr. 30, 1991, eff.
Dec. 1, 1991.
Rule
101. Scope.
102. Purpose and construction.
103. Rulings on evidence.
(a) Effect of erroneous ruling.
(1)
Objection.
(2)
Offer of proof.
(b) Record of offer and ruling.
(c) Hearing of jury.
(d) Plain error.
104. Preliminary questions.
(a) Questions of admissibility generally.
(b) Relevancy conditioned on fact.
(c) Hearing of jury.
(d) Testimony by accused.
(e) Weight and credibility.
105. Limited admissibilty.
106. Remainder of or related writings on recorded statements.
201. Judicial notice of adjudicative facts.
(a) Scope of rule.
(b) Kinds of facts.
(c) When discretionary.
(d) When mandatory.
(e) Opportunity to be heard.
(f) Time of taking notice.
(g) Instructing jury.
PROCEEDINGS
301. Presumptions in general in civil actions and proceedings.
302. Applicability of State law in civil actions and proceedings.
401. Definition of ''relevant evidence''.
402. Relevant evidence generally admissible; irrelevant evidence
inadmissible.
403. Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time.
404. Character evidence not admissible to prove conduct;
exceptions; other crimes.
(a) Character evidence generally.
(1)
Character of accused.
(2)
Character of victim.
(3)
Character of witness.
(b) Other crimes, wrongs, or acts.
405. Methods of proving character.
(a) Reputation or opinion.
(b) Specific instances of conduct.
406. Habit; routine practice.
407. Subsequent remedial measures.
408. Compromise and offers to compromise.
409. Payment of medical and similar expenses.
410. Inadmissibility of pleas, offers of pleas, and related
statements. /1/
411. Liability insurance.
412. Sex offense cases; relevance of victim's past behavior.
501. General rule.
601. General rule of competency.
602. Lack of personal knowledge.
603. Oath or affirmation.
604. Interpreters.
605. Competency of judge as witness.
606. Competency of juror as witness.
(a) At the trial.
(b) Inquiry into validity of verdict or indictment.
607. Who may impeach.
608. Evidence of character and conduct of witness.
(a) Opinion and reputation evidence of character.
(b) Specific instances of conduct.
Rule
609. Impeachment by evidence of conviction of crime.
(a) General rule.
(b) Time limit.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
(d) Juvenile adjudications.
(e) Pendency of appeal.
610. Religious beliefs or opinions.
611. Mode and order of interrogation and presentation.
(a) Control by court.
(b) Scope of cross-examination.
(c) Leading questions.
612. Writing used to refresh memory.
613. Prior statements of witnesses.
(a) Examining witness concerning prior statement.
(b) Extrinsic evidence of prior inconsistent statement of witness.
614. Calling and interrogation of witnesses by court.
(a) Calling by court.
(b) Interrogation by court.
(c) Objections.
615. Exclusion of witnesses.
701. Opinion testimony by lay witnesses.
702. Testimony by experts.
703. Bases of opinion testimony by experts.
704. Opinion on ultimate issue.
705. Disclosure of facts or data underlying expert opinion.
706. Court appointed experts.
(a) Appointment.
(b) Compensation.
(c) Disclosure of appointment.
(d) Parties' experts of own selection.
801. Definitions.
(a) Statement.
(b) Declarant.
(c) Hearsay.
(d) Statements which are not hearsay.
(1)
Prior statement by witness.
(2)
Admission by party-opponent.
802. Hearsay rule.
803. Hearsay exceptions; availability of declarant immaterial.
(1) Present sense impression.
(2) Excited utterance.
(3) Then existing mental, emotional, or physical condition.
(4) Statements for purposes of medical diagnosis or treatment.
(5) Recorded recollection.
(6) Records of regularly conducted activity.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).
(8) Public records and reports.
(9) Records of vital statistics.
(10) Absence of public record or entry.
(11) Records of religious organizations.
(12) Marriage, baptismal, and similar certificates.
(13) Family records.
(14) Records of documents affecting an interest in property.
(15) Statements in documents affecting an interest in property.
(16) Statements in ancient documents.
(17) Market reports, commercial publications.
(18) Learned treatises.
(19) Reputation concerning personal or family history.
(20) Reputation concerning boundaries or general history.
(21) Reputation as to character.
(22) Judgment of previous conviction.
(23) Judgment as to personal, family, or general history, or
boundaries.
(24) Other exceptions.
804. Hearsay exceptions; declarant unavailable.
(a) Definition of unavailability.
(b) Hearsay exceptions.
(1)
Former testimony.
(2)
Statement under belief of impending death.
(3)
Statement against interest.
(4)
Statement of personal or family history.
(5)
Other exceptions.
805. Hearsay within hearsay.
806. Attacking and supporting credibility of declarant.
901. Requirement of authentication or identification.
(a) General provision.
(b) Illustrations.
(1)
Testimony of witness with knowledge.
(2)
Nonexpert opinion on handwriting.
(3)
Comparison by trier or expert witness.
(4)
Distinctive characteristics and the like.
(5)
Voice identification.
(6)
Telephone conversations.
(7)
Public records or reports.
(8)
Ancient documents or data compilation.
(9)
Process or system.
(10)
Methods provided by statute or rule.
902. Self-authentication.
(1) Domestic public documents under seal.
(2) Domestic public documents not under seal.
(3) Foreign public documents.
(4) Certified copies of public records.
(5) Official publications.
(6) Newspapers and periodicals.
(7) Trade inscriptions and the like.
(8) Acknowledged documents.
(9) Commercial paper and related documents.
(10) Presumptions under Acts of Congress.
903. Subscribing witness' testimony unnecessary.
PHOTOGRAPHS
1001. Definitions.
(1) Writings and recordings.
(2) Photographs.
(3) Original.
(4) Duplicate.
1002. Requirement of original.
1003. Admissibility of duplicates.
1004. Admissibility of other evidence of contents.
(1) Originals lost or destroyed.
(2) Original not obtainable.
(3) Original in possession of opponent.
(4) Collateral matters.
1005. Public records.
1006. Summaries.
1007. Testimony or written admission of party.
1008. Functions of court and jury.
1101. Applicability of rules.
(a) Courts and magistrates.
(b) Proceedings generally.
(c) Rule of privilege.
(d) Rules inapplicable.
(1)
Preliminary questions of fact.
(2)
Grand jury.
(3)
Miscellaneous proceedings.
(e) Rules applicable in part.
1102. Amendments.
1103. Title.
1988 -- Pub. L. 100-690, title VII, 7046(b), Nov. 18, 1988, 102
Stat. 4401, substituted ''Sex offense'' for ''Rape'' in item 412.
1978 -- Pub. L. 95-540, 2(b), Oct. 28, 1978, 92 Stat. 2047, added
item 412.
1975 -- Pub. L. 94-149, 1(1)-(8), Dec. 12, 1975, 89 Stat. 805,
amended analysis as follows: item 106, substituted ''or'' for ''on'';
item 301, inserted ''in'' after ''general''; item 405(a), inserted ''or
opinion'' after ''Reputation'' and before the period; item 410,
substituted ''Inadmissibility of pleas, offers of pleas, and related
statements'' for ''Offer to plead guilty; nolo contendere; withdrawn
plea of guilty''; item 501, substituted ''General rule''; item 608(a),
substituted ''Opinion and reputation'' for ''Reputation''; item
901(b)(8), substituted ''compilation'' for ''compilations''; and item
1101(c), substituted ''Rule'' for ''Rules''.
/1/ So in original. Does not conform to rule catchline.
28 USC ARTICLE I. GENERAL PROVISIONS
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 101. Scope
TITLE 28, APPENDIX -- RULES OF EVIDENCE
These rules govern proceedings in the courts of the United States and
before United States bankruptcy judges and United States magistrates, to
the extent and with the exceptions stated in rule 1101.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1929; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)
Rule 1101 specifies in detail the courts, proceedings, questions, and
stages of proceedings to which the rules apply in whole or in part.
United States bankruptcy judges are added to conform this rule with
Rule 1101(b) and Bankruptcy Rule 9017.
The amendment is technical. No substantive change is intended.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Power of Supreme Court to prescribe rules of procedure and evidence,
see section 2072 of this title.
28 USC Rule 102. Purpose and Construction
TITLE 28, APPENDIX -- RULES OF EVIDENCE
These rules shall be construed to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of growth
and development of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1929.)
For similar provisions see Rule 2 of the Federal Rules of Criminal
Procedure, Rule 1 of the Federal Rules of Civil Procedure, California
Evidence Code 2, and New Jersey Evidence Rule 5.
28 USC Rule 103. Rulings on Evidence
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Effect of erroneous ruling. -- Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of
the party is affected, and
(1) Objection. -- In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not apparent
from the context; or
(2) Offer of proof. -- In case the ruling is one excluding evidence,
the substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked.
(b) Record of offer and ruling. -- The court may add any other or
further statement which shows the character of the evidence, the form in
which it was offered, the objection made, and the ruling thereon. It
may direct the making of an offer in question and answer form.
(c) Hearing of jury. -- In jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent inadmissible
evidence from being suggested to the jury by any means, such as making
statements or offers of proof or asking questions in the hearing of the
jury.
(d) Plain error. -- Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not brought
to the attention of the court.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1930.)
Subdivision (a) states the law as generally accepted today. Rulings
on evidence cannot be assigned as error unless (1) a substantial right
is affected, and (2) the nature of the error was called to the attention
of the judge, so as to alert him to the proper course of action and
enable opposing counsel to take proper corrective measures. The
objection and the offer of proof are the techniques for accomplishing
these objectives. For similar provisions see Uniform Rules 4 and 5;
California Evidence Code 353 and 354; Kansas Code of Civil Procedure
60-404 and 60-405. The rule does not purport to change the law with
respect to harmless error. See 28 U.S.C. 2111, F.R.Civ.P. 61,
F.R.Crim.P. 52, and decisions construing them. The status of
constitutional error as harmless or not is treated in Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh.
denied id. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.
Subdivision (b). The first sentence is the third sentence of Rule
43(c) of the Federal Rules of Civil Procedure virtually verbatim. Its
purpose is to reproduce for an appellate court, insofar as possible, a
true reflection of what occurred in the trial court. The second
sentence is in part derived from the final sentence of Rule 43(c). It
is designed to resolve doubts as to what testimony the witness would
have in fact given, and, in nonjury cases, to provide the appellate
court with material for a possible final disposition of the case in the
event of reversal of a ruling which excluded evidence. See 5 Moore's
Federal Practice 43.11 (2d ed. 1968). Application is made discretionary
in view of the practical impossibility of formulating a satisfactory
rule in mandatory terms.
Subdivision (c). This subdivision proceeds on the supposition that a
ruling which excludes evidence in a jury case is likely to be a
pointless procedure if the excluded evidence nevertheless comes to the
attention of the jury. Bruton v. United States, 389 U.S. 818, 88 S.Ct.
126, L.Ed.2d 70 (1968). Rule 43(c) of the Federal Rules of Civil
Procedure provides: ''The court may require the offer to be made out of
the hearing of the jury.'' In re McConnell, 370 U.S. 230, 82 S.Ct. 1288,
8 L.Ed.2d 434 (1962), left some doubt whether questions on which an
offer is based must first be asked in the presence of the jury. The
subdivision answers in the negative. The judge can foreclose a
particular line of testimony and counsel can protect his record without
a series of questions before the jury, designed at best to waste time
and at worst ''to waft into the jury box'' the very matter sought to be
excluded.
Subdivision (d). This wording of the plain error principle is from
Rule 52(b) of the Federal Rules of Criminal Procedure. While judicial
unwillingness to be constructed by mechanical breakdowns of the
adversary system has been more pronounced in criminal cases, there is no
scarcity of decisions to the same effect in civil cases. In general,
see Campbell, Extent to Which Courts of Review Will Consider Questions
Not Properly Raised and Preserved, 7 Wis.L.Rev. 91, 160 (1932); Vestal,
Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477
(1958-59); 64 Harv.L.Rev. 652 (1951). In the nature of things the
application of the plain error rule will be more likely with respect to
the admission of evidence than to exclusion, since failure to comply
with normal requirements of offers of proof is likely to produce a
record which simply does not disclose the error.
28 USC Rule 104. Preliminary Questions
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Questions of admissibility generally. -- Preliminary questions
concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined by
the court, subject to the provisions of subdivision (b). In making its
determination it is not bound by the rules of evidence except those with
respect to privileges.
(b) Relevancy conditioned on fact. -- When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the court shall
admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.
(c) Hearing of jury. -- Hearings on the admissibility of confessions
shall in all cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so conducted when the
interests of justice require, or when an accused is a witness and so
requests.
(d) Testimony by accused. -- The accused does not, by testifying upon
a preliminary matter, become subject to cross-examination as to other
issues in the case.
(e) Weight and credibility. -- This rule does not limit the right of
a party to introduce before the jury evidence relevant to weight or
credibility.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff.
Oct. 1, 1987.)
Subdivision (a). The applicability of a particular rule of evidence
often depends upon the existence of a condition. Is the alleged expert
a qualified physician? Is a witness whose former testimony is offered
unavailable? Was a stranger present during a conversation between
attorney and client? In each instance the admissibility of evidence
will turn upon the answer to the question of the existence of the
condition. Accepted practice, incorporated in the rule, places on the
judge the responsibility for these determinations. McCormick 53;
Morgan, Basic Problems of Evidence 45-50 (1962).
To the extent that these inquiries are factual, the judge acts as a
trier of fact. Often, however, rulings on evidence call for an
evaluation in terms of a legally set standard. Thus when a hearsay
statement is offered as a declaration against interest, a decision must
be made whether it possesses the required against-interest
characteristics. These decisions, too, are made by the judge.
In view of these considerations, this subdivision refers to
preliminary requirements generally by the broad term ''questions,''
without attempt at specification.
This subdivision is of general application. It must, however, be
read as subject to the special provisions for ''conditional relevancy''
in subdivision (b) and those for confessions in subdivision (d).
If the question is factual in nature, the judge will of necessity
receive evidence pro and con on the issue. The rule provides that the
rules of evidence in general do not apply to this process. McCormick
53, p. 123, n. 8, points out that the authorities are ''scattered and
inconclusive,'' and observes:
''Should the exclusionary law of evidence, 'the child of the jury
system' in Thayer's phrase, be applied to this hearing before the judge?
Sound sense backs the view that it should not, and that the judge
should be empowered to hear any relevant evidence, such as affidavits or
other reliable hearsay.''
This view is reinforced by practical necessity in certain situations.
An item, offered and objected to, may itself be considered in ruling on
admissibility, though not yet admitted in evidence. Thus the content of
an asserted declaration against interest must be considered in ruling
whether it is against interest. Again, common practice calls for
considering the testimony of a witness, particularly a child, in
determining competency. Another example is the requirement of Rule 602
dealing with personal knowledge. In the case of hearsay, it is enough,
if the declarant ''so far as appears (has) had an opportunity to observe
the fact declared.'' McCormick, 10, p. 19.
If concern is felt over the use of affidavits by the judge in
preliminary hearings on admissibility, attention is directed to the many
important judicial determinations made on the basis of affidavits. Rule
47 of the Federal Rules of Criminal Procedure provides:
''An application to the court for an order shall be by motion * * *
It may be supported by affidavit.''
The Rules of Civil Procedure are more detailed. Rule 43(e), dealing
with motions generally, provides:
''When a motion is based on facts not appearing of record the court
may hear the matter on affidavits presented by the respective parties,
but the court may direct that the matter be heard wholly or partly on
oral testimony or depositions.''
Rule 4(g) provides for proof of service by affidavit. Rule 56
provides in detail for the entry of summary judgment based on
affidavits. Affidavits may supply the foundation for temporary
restraining orders under Rule 65(b).
The study made for the California Law Revision Commission recommended
an amendment to Uniform Rule 2 as follows:
''In the determination of the issue aforesaid (preliminary
determination), exclusionary rules shall not apply, subject, however, to
Rule 45 and any valid claim of privilege.'' Tentative Recommendation and
a Study Relating to the Uniform Rules of Evidence (Article VIII,
Hearsay), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 470 (1962).
The proposal was not adopted in the California Evidence Code. The
Uniform Rules are likewise silent on the subject. However, New Jersey
Evidence Rule 8(1), dealing with preliminary inquiry by the judge,
provides:
''In his determination the rules of evidence shall not apply except
for Rule 4 (exclusion on grounds of confusion, etc.) or a valid claim of
privilege.''
Subdivision (b). In some situations, the relevancy of an item of
evidence, in the large sense, depends upon the existence of a particular
preliminary fact. Thus when a spoken statement is relied upon to prove
notice to X, it is without probative value unless X heard it. Or if a
letter purporting to be from Y is relied upon to establish an admission
by him, it has no probative value unless Y wrote or authorized it.
Relevance in this sense has been labelled ''conditional relevancy.''
Morgan, Basic Problems of Evidence 45-46 (1962). Problems arising in
connection with it are to be distinguished from problems of logical
relevancy, e.g. evidence in a murder case that accused on the day before
purchased a weapon of the kind used in the killing, treated in Rule 401.
If preliminary questions of conditional relevancy were determined
solely by the judge, as provided in subdivision (a), the functioning of
the jury as a trier of fact would be greatly restricted and in some
cases virtually destroyed. These are appropriate questions for juries.
Accepted treatment, as provided in the rule, is consistent with that
given fact questions generally. The judge makes a preliminary
determination whether the foundation evidence is sufficient to support a
finding of fulfillment of the condition. If so, the item is admitted.
If after all the evidence on the issue is in, pro and con, the jury
could reasonably conclude that fulfillment of the condition is not
established, the issue is for them. If the evidence is not such as to
allow a finding, the judge withdraws the matter from their
consideration. Morgan, supra; California Evidence Code 403; New
Jersey Rule 8(2). See also Uniform Rules 19 and 67.
The order of proof here, as generally, is subject to the control of
the judge.
Subdivision (c). Preliminary hearings on the admissibility of
confessions must be conducted outside the hearing of the jury. See
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
Otherwise, detailed treatment of when preliminary matters should be
heard outside the hearing of the jury is not feasible. The procedure is
time consuming. Not infrequently the same evidence which is relevant to
the issue of establishment of fulfillment of a condition precedent to
admissibility is also relevant to weight or credibility, and time is
saved by taking foundation proof in the presence of the jury. Much
evidence on preliminary questions, though not relevant to jury issues,
may be heard by the jury with no adverse effect. A great deal must be
left to the discretion of the judge who will act as the interests of
justice require.
Subdivision (d). The limitation upon cross-examination is designed
to encourage participation by the accused in the determination of
preliminary matters. He may testify concerning them without exposing
himself to cross-examination generally. The provision is necessary
because of the breadth of cross-examination under Rule 611(b).
The rule does not address itself to questions of the subsequent use
of testimony given by an accused at a hearing on a preliminary matter.
See Walder v. United States, 347 U.S. 62 (1954): Simmons v. United
States, 390 U.S. 377 (1968): Harris v. New York, 401 U.S. 222 (1971)
Subdivision (e). For similar provisions see Uniform Rule 8;
California Evidence Code 406; Kansas Code of Civil Procedure 60-408;
New Jersey Evidence Rule 8(1).
Rule 104(c) as submitted to the Congress provided that hearings on
the admissibility of confessions shall be conducted outside the presence
of the jury and hearings on all other preliminary matters should be so
conducted when the interests of justice require. The Committee amended
the Rule to provide that where an accused is a witness as to a
preliminary matter, he has the right, upon his request, to be heard
outside the jury's presence. Although recognizing that in some cases
duplication of evidence would occur and that the procedure could be
subject to abuse, the Committee believed that a proper regard for the
right of an accused not to testify generally in the case dictates that
he be given an option to testify out of the presence of the jury on
preliminary matters.
The Committee construes the second sentence of subdivision (c) as
applying to civil actions and proceedings as well as to criminal cases,
and on this assumption has left the sentence unamended.
Under rule 104(c) the hearing on a preliminary matter may at times be
conducted in front of the jury. Should an accused testify in such a
hearing, waiving his privilege against self-incrimination as to the
preliminary issue, rule 104(d) provides that he will not generally be
subject to cross-examination as to any other issue. This rule is not,
however, intended to immunize the accused from cross-examination where,
in testifying about a preliminary issue, he injects other issues into
the hearing. If he could not be cross-examined about any issues
gratuitously raised by him beyond the scope of the preliminary matters,
injustice result. Accordingly, in order to prevent any such unjust
result, the committee intends the rule to be construed to provide that
the accused may subject himself to cross-examination as to issues raised
by his own testimony upon a preliminary matter before a jury.
The amendments are technical. No substantive change is intended.
28 USC Rule 105. Limited Admissibility
TITLE 28, APPENDIX -- RULES OF EVIDENCE
When evidence which is admissible as to one party or for one purpose
but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1930.)
A close relationship exists between this rule and Rule 403 which
requires exclusion when ''probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading
the jury.'' The present rule recognizes the practice of admitting
evidence for a limited purpose and instructing the jury accordingly.
The availability and effectiveness of this practice must be taken into
consideration in reaching a decision whether to exclude for unfair
prejudice under Rule 403. In Bruton v. United States, 389 U.S. 818, 88
S.Ct. 126, 19 L.Ed.2d 70 (1968), the Court ruled that a limiting
instruction did not effectively protect the accused against the
prejudicial effect of admitting in evidence the confession of a
codefendant which implicated him. The decision does not, however, bar
the use of limited admissibility with an instruction where the risk of
prejudice is less serious.
Similar provisions are found in Uniform Rule 6; California Evidence
Code 355; Kansas Code of Civil Procedure 60-406; New Jersey Evidence
Rule 6. The wording of the present rule differs, however, in repelling
any implication that limiting or curative instructions are sufficient in
all situations.
Rule 106 as submitted by the Supreme Court (now Rule 105 in the bill)
dealt with the subject of evidence which is admissible as to one party
or for one purpose but is not admissible against another party or for
another purpose. The Committee adopted this Rule without change on the
understanding that it does not affect the authority of a court to order
a severance in a multi-defendant case.
28 USC Rule 106. Remainder of or Related Writings or Recorded
Statements
TITLE 28, APPENDIX -- RULES OF EVIDENCE
When a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require the introduction at that time of
any other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The rule is an expression of the rule of completeness. McCormick
56. It is manifested as to depositions in Rule 32(a)(4) of the Federal
Rules of Civil Procedure, of which the proposed rule is substantially a
restatement.
The rule is based on two considerations. The first is the misleading
impression created by taking matters out of context. The second is the
inadequacy of repair work when delayed to a point later in the trial.
See McCormick 56; California Evidence Code 356. The rule does not in
any way circumscribe the right of the adversary to develop the matter on
cross-examination or as part of his own case.
For practical reasons, the rule is limited to writings and recorded
statements and does not apply to conversations.
The amendments are technical. No substantive change is intended.
28 USC ARTICLE II. JUDICIAL NOTICE
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 201. Judicial Notice of Adjudicative Facts
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Scope of rule. -- This rule governs only judicial notice of
adjudicative facts.
(b) Kinds of facts. -- A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
(c) When discretionary. -- A court may take judicial notice, whether
requested or not.
(d) When mandatory. -- A court shall take judicial notice if
requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. -- A party is entitled upon timely
request to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence of
prior notification, the request may be made after judicial notice has
been taken.
(f) Time of taking notice. -- Judicial notice may be taken at any
stage of the proceeding.
(g) Instructing jury. -- In a civil action or proceeding, the court
shall instruct the jury to accept as conclusive any fact judicially
noticed. In a criminal case, the court shall instruct the jury that it
may, but is not required to, accept as conclusive any fact judicially
noticed.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1930.)
Subdivision (a). This is the only evidence rule on the subject of
judicial notice. It deals only with judicial notice of ''adjudicative''
facts. No rule deals with judicial notice of ''legislative'' facts.
Judicial notice of matters of foreign law is treated in Rule 44.1 of the
Federal Rules of Civil Procedure and Rule 26.1 of the Federal Rules of
Criminal Procedure.
The omission of any treatment of legislative facts results from
fundamental differences between adjudicative facts and legislative
facts. Adjudicative facts are simply the facts of the particular case.
Legislative facts, on the other hand, are those which have relevance to
legal reasoning and the lawmaking process, whether in the formulation of
a legal principle or ruling by a judge or court or in the enactment of a
legislative body. The terminology was coined by Professor Kenneth Davis
in his article An Approach to Problems of Evidence in the Administrative
Process, 55 Harv.L.Rev. 364, 404-407 (1942). The following discussion
draws extensively upon his writings. In addition, see the same author's
Judicial Notice, 55 Colum.L. Rev. 945 (1955); Administrative Law
Treatise, ch. 15 (1958); A System of Judicial Notice Based on Fairness
and Convenience, in Perspectives of Law 69 (1964).
The usual method of establishing adjudicative facts in through the
introduction of evidence, ordinarily consisting of the testimony of
witnesses. If particular facts are outside of reasonable controversy,
this process is dispensed with as unnecessary. A high degree of
indisputability is the essential prerequisite.
Legislative facts are quite different. As Professor Davis says:
''My opinion is that judge-made law would stop growing if judges, in
thinking about questions of law and policy, were forbidden to take into
account the facts they believe, as distinguished from facts which are
'clearly * * * within the domain of the indisputable.' Facts most needed
in thinking about difficult problems of law and policy have a way of
being outside the domain of the clearly indisputable.'' A System of
Judicial Notice Based on Fairness and Convenience, supra, at 82.
An illustration is Hawkins v. United States, 358 U.S. 74, 79 S.Ct.
136, 3 L.Ed.2d 125 (1958), in which the Court refused to discard the
common law rule that one spouse could not testify against the other,
saying, ''Adverse testimony given in criminal proceedings would, we
think, be likely to destroy almost any marriage.'' This conclusion has a
large intermixture of fact, but the factual aspect is scarcely
''indisputable.'' See Hutchins and Slesinger, Some Observations on the
Law of Evidence -- Family Relations, 13 Minn.L.Rev. 675 (1929). If the
destructive effect of the giving of adverse testimony by a spouse is not
indisputable, should the Court have refrained from considering it in the
absence of supporting evidence?
''If the Model Code or the Uniform Rules had been applicable, the
Court would have been barred from thinking about the essential factual
ingredient of the problems before it, and such a result would be
obviously intolerable. What the law needs as its growing points is
more, not less, judicial thinking about the factual ingredients of
problems of what the law ought to be, and the needed facts are seldom
'clearly' indisputable.'' Davis, supra, at 83.
''Professor Morgan gave the following description of the methodology
of determining domestic law:
''In determining the content or applicability of a rule of domestic
law, the judge is unrestricted in his investigation and conclusion. He
may reject the propositions of either party or of both parties. He may
consult the sources of pertinent data to which they refer, or he may
refuse to do so. He may make an independent search for persuasive data
or rest content with what he has or what the parties present. * * *
(T)he parties do no more than to assist; they control no part of the
process.'' Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 270-271 (1944).
This is the view which should govern judicial access to legislative
facts. It renders inappropriate any limitation in the form of
indisputability, any formal requirements of notice other than those
already inherent in affording opportunity to hear and be heard and
exchanging briefs, and any requirement of formal findings at any level.
It should, however, leave open the possibility of introducing evidence
through regular channels in appropriate situations. See Borden's Farm
Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281
(1934), where the cause was remanded for the taking of evidence as to
the economic conditions and trade practices underlying the New York Milk
Control Law.
Similar considerations govern the judicial use of nonadjudicative
facts in ways other than formulating laws and rules. Thayer described
them as a part of the judicial reasoning process.
''In conducting a process of judicial reasoning, as of other
reasoning, not a step can be taken without assuming something which has
not been proved; and the capacity to do this with competent judgement
and efficiency, is imputed to judges and juries as part of their
necessary mental outfit.'' Thayer, Preliminary Treatise on Evidence
279-280 (1898).
As Professor Davis points out, A System of Judicial Notice Based on
Fairness and Convenience, in Perspectives of Law 69, 73 (1964), every
case involves the use of hundreds or thousands of non-evidence facts.
When a witness in an automobile accident case says ''car,'' everyone,
judge and jury included, furnishes, from non-evidence sources within
himself, the supplementing information that the ''car'' is an
automobile, not a railroad car, that it is self-propelled, probably by
an internal combustion engine, that it may be assumed to have four
wheels with pneumatic rubber tires, and so on. The judicial process
cannot construct every case from scratch, like Descartes creating a
world based on the postulate Cogito, ergo sum. These items could not
possibly be introduced into evidence, and no one suggests that they be.
Nor are they appropriate subjects for any formalized treatment of
judicial notice of facts. See Levin and Levy, Persuading the Jury with
Facts Not in Evidence: The Fiction-Science Spectrum, 105 U.Pa.L.Rev.
139 (1956).
Another aspect of what Thayer had in mind is the use of non-evidence
facts to appraise or assess the adjudicative facts of the case. Pairs
of cases from two jurisdictions illustrate this use and also the
difference between non-evidence facts thus used and adjudicative facts.
In People v. Strook, 347 Ill. 460, 179 N.E. 821 (1932), venue in Cook
County had been held not established by testimony that the crime was
committed at 7956 South Chicago Avenue, since judicial notice would not
be taken that the address was in Chicago. However, the same court
subsequently ruled that venue in Cook County was established by
testimony that a crime occurred at 8900 South Anthony Avenue, since
notice would be taken of the common practice of omitting the name of the
city when speaking of local addresses, and the witness was testifying in
Chicago. People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551 (1951). And in
Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965), the Supreme
Court of North Carolina disapproved the trial judge's admission in
evidence of a state-published table of automobile stopping distances on
the basis of judicial notice, though the court itself had referred to
the same table in an earlier case in a ''rhetorical and illustrative''
way in determining that the defendant could not have stopped her car in
time to avoid striking a child who suddenly appeared in the highway and
that a non-suit was properly granted. Ennis v. Dupree, 262 N.C. 224,
136 S.E.2d 702 (1964). See also Brown v. Hale, 263 N.C. 176, 139
S.E.2d 210 (1964); Clayton v. Rimmer, 262 N.C. 302, 136 S.E.2d 562
(1964). It is apparent that this use of non-evidence facts in
evaluating the adjudicative facts of the case is not an appropriate
subject for a formalized judicial notice treatment.
In view of these considerations, the regulation of judicial notice of
facts by the present rule extends only to adjudicative facts.
What, then, are ''adjudicative'' facts? Davis refers to them as
those ''which relate to the parties,'' or more fully:
''When a court or an agency finds facts concerning the immediate
parties -- who did what, where, when, how, and with what motive or
intent -- the court or agency is performing an adjudicative function,
and the facts are conveniently called adjudicative facts. * * *
''Stated in other terms, the adjudicative facts are those to which
the law is applied in the process of adjudication. They are the facts
that normally go to the jury in a jury case. They relate to the
parties, their activities, their properties, their businesses.'' 2
Administrative Law Treatise 353.
Subdivision (b). With respect to judicial notice of adjudicative
facts, the tradition has been one of caution in requiring that the
matter be beyond reasonable controversy. This tradition of
circumspection appears to be soundly based, and no reason to depart from
it is apparent. As Professor Davis says:
''The reason we use trial-type procedure, I think, is that we make
the practical judgement, on the basis of experience, that taking
evidence, subject to cross-examination and rebuttal, is the best way to
resolve controversies involving disputes of adjudicative facts, that is,
facts pertaining to the parties. The reason we require a determination
on the record is that we think fair procedure in resolving disputes of
adjudicative facts calls for giving each party a chance to meet in the
appropriate fashion the facts that come to the tribunal's attention, and
the appropriate fashion for meeting disputed adjudicative facts includes
rebuttal evidence, cross-examination, usually confrontation, and
argument (either written or oral or both). The key to a fair trial is
opportunity to use the appropriate weapons (rebuttal evidence,
cross-examination, and argument) to meet adverse materials that come to
the tribunal's attention.'' A System of Judicial Notice Based on
Fairness and Convenience, in Perspectives of Law 69, 93 (1964).
The rule proceeds upon the theory that these considerations call for
dispensing with traditional methods of proof only in clear cases.
Compare Professor Davis' conclusion that judicial notice should be a
matter of convenience, subject to requirements of procedural fairness.
Id., 94.
This rule is consistent with Uniform Rule 9(1) and (2) which limit
judicial notice of facts to those ''so universally known that they
cannot reasonably be the subject of dispute,'' those ''so generally
known or of such common notoriety within the territorial jurisdiction of
the court that they cannot reasonably be the subject of dispute,'' and
those ''capable of immediate and accurate determination by resort to
easily accessible sources of indisputable accuracy.'' The traditional
textbook treatment has included these general categories (matters of
common knowledge, facts capable of verification), McCormick 324, 325,
and then has passed on into detailed treatment of such specific topics
as facts relating to the personnel and records of the court, Id. 327,
and other governmental facts, Id. 328. The California draftsmen, with
a background of detailed statutory regulation of judicial notice,
followed a somewhat similar pattern. California Evidence Code 451,
452. The Uniform Rules, however, were drafted on the theory that these
particular matters are included within the general categories and need
no specific mention. This approach is followed in the present rule.
The phrase ''propositions of generalized knowledge,'' found in
Uniform Rule 9(1) and (2) is not included in the present rule. It was,
it is believed, originally included in Model Code Rules 801 and 802
primarily in order to afford some minimum recognition to the right of
the judge in his ''legislative'' capacity (not acting as the trier of
fact) to take judicial notice of very limited categories of generalized
knowledge. The limitations thus imposed have been discarded herein as
undesirable, unworkable, and contrary to existing practice. What is
left, then, to be considered, is the status of a ''proposition of
generalized knowledge'' as an ''adjudicative'' fact to be noticed
judicially and communicated by the judge to the jury. Thus viewed, it
is considered to be lacking practical significance. While judges use
judicial notice of ''propositions of generalized knowledge'' in a
variety of situations: determining the validity and meaning of
statutes, formulating common law rules, deciding whether evidence should
be admitted, assessing the sufficiency and effect of evidence, all are
essentially nonadjudicative in nature. When judicial notice is seen as
a significant vehicle for progress in the law, these are the areas
involved, particularly in developing fields of scientific knowledge.
See McCormick 712. It is not believed that judges now instruct juries
as to ''propositions of generalized knowledge'' derived from
encyclopedias or other sources, or that they are likely to do so, or,
indeed, that it is desirable that they do so. There is a vast
difference between ruling on the basis of judicial notice that radar
evidence of speed is admissible and explaining to the jury its
principles and degree of accuracy, or between using a table of stopping
distances of automobiles at various speeds in a judicial evaluation of
testimony and telling the jury its precise application in the case. For
cases raising doubt as to the propriety of the use of medical texts by
lay triers of fact in passing on disability claims in administrative
proceedings, see Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Ross
v. Gardner, 365 F.2d 554 (6th Cir. 1966); Sosna v. Celebrezze, 234
F.Supp. 289 (E.D.Pa. 1964); Glendenning v. Ribicoff, 213 F.Supp. 301
(W.D.Mo. 1962).
Subdivisions (c) and (d). Under subdivision (c) the judge has a
discretionary authority to take judicial notice, regardless of whether
he is so requested by a party. The taking of judicial notice is
mandatory, under subdivision (d), only when a party requests it and the
necessary information is supplied. This scheme is believed to reflect
existing practice. It is simple and workable. It avoids troublesome
distinctions in the many situations in which the process of taking
judicial notice is not recognized as such.
Compare Uniform Rule 9 making judicial notice of facts universally
known mandatory without request, and making judicial notice of facts
generally known in the jurisdiction or capable of determination by
resort to accurate sources discretionary in the absence of request but
mandatory if request is made and the information furnished. But see
Uniform Rule 10(3), which directs the judge to decline to take judicial
notice if available information fails to convince him that the matter
falls clearly within Uniform Rule 9 or is insufficient to enable him to
notice it judicially. Substantially the same approach is found in
California Evidence Code 451-453 and in New Jersey Evidence Rule 9.
In contrast, the present rule treats alike all adjudicative facts which
are subject to judicial notice.
Subdivision (e). Basic considerations of procedural fairness demand
an opportunity to be heard on the propriety of taking judicial notice
and the tenor of the matter noticed. The rule requires the granting of
that opportunity upon request. No formal scheme of giving notice is
provided. An adversely affected party may learn in advance that
judicial notice is in contemplation, either by virtue of being served
with a copy of a request by another party under subdivision (d) that
judicial notice be taken, or through an advance indication by the judge.
Or he may have no advance notice at all. The likelihood of the latter
is enhanced by the frequent failure to recognize judicial notice as
such. And in the absence of advance notice, a request made after the
fact could not in fairness be considered untimely. See the provision
for hearing on timely request in the Administrative Procedure Act, 5
U.S.C. 556(e). See also Revised Model State Administrative Procedure
Act (1961), 9C U.L.A. 10(4) (Supp. 1967).
Subdivision (f). In accord with the usual view, judicial notice may
be taken at any stage of the proceedings, whether in the trial court or
on appeal. Uniform Rule 12; California Evidence Code 459; Kansas
Rules of Evidence 60-412; New Jersey Evidence Rule 12; McCormick
330, p. 712.
Subdivision (g). Much of the controversy about judicial notice has
centered upon the question whether evidence should be admitted in
disproof of facts of which judicial notice is taken.
The writers have been divided. Favoring admissibility are Thayer,
Preliminary Treatise on Evidence 308 (1898); 9 Wigmore 2567; Davis, A
System of Judicial Notice Based on Fairness and Convenience, in
Perspectives of Law, 69, 76-77 (1964). Opposing admissibility are
Keeffe, Landis and Shaad, Sense and Nonsense about Judicial Notice, 2
Stan.L.Rev. 664, 668 (1950); McNaughton, Judicial Notice -- Excerpts
Relating to the Morgan-Whitmore Controversy, 14 Vand.L.Rev. 779 (1961);
Morgan, Judicial Notice, 57 Harv.L.Rev. 269, 279 (1944); McCormick
710-711. The Model Code and the Uniform Rules are predicated upon
indisputability of judicially noticed facts.
The proponents of admitting evidence in disproof have concentrated
largely upon legislative facts. Since the present rule deals only with
judicial notice of adjudicative facts, arguments directed to legislative
facts lose their relevancy.
Within its relatively narrow area of adjudicative facts, the rule
contemplates there is to be no evidence before the jury in disproof.
The judge instructs the jury to take judicially noticed facts as
established. This position is justified by the undesirable effects of
the opposite rule in limiting the rebutting party, though not his
opponent, to admissible evidence, in defeating the reasons for judicial
notice, and in affecting the substantive law to an extent and in ways
largely unforeseeable. Ample protection and flexibility are afforded by
the broad provision for opportunity to be heard on request, set forth in
subdivision (e).
Authority upon the propriety of taking judicial notice against an
accused in a criminal case with respect to matters other than venue is
relatively meager. Proceeding upon the theory that the right of jury
trial does not extend to matters which are beyond reasonable dispute,
the rule does not distinguish between criminal and civil cases. People
v. Mayes, 113 Cal. 618, 45 P. 860 (1896); Ross v. United States,
374 F.2d 97 (8th Cir. 1967). Cf. State v. Main, 94 R.I. 338, 180 A.2d
814 (1962); State v. Lawrence, 120 Utah 323, 234 P.2d 600 (1951).
Note on Judicial Notice of Law. By rules effective July 1, 1966, the
method of invoking the law of a foreign country is covered elsewhere.
Rule 44.1 of the Federal Rules of Civil Procedure; Rule 26.1 of the
Federal Rules of Criminal Procedure. These two new admirably designed
rules are founded upon the assumption that the manner in which law is
fed into the judicial process is never a proper concern of the rules of
evidence but rather of the rules of procedure. The Advisory Committee
on Evidence, believing that this assumption is entirely correct,
proposes no evidence rule with respect to judicial notice of law, and
suggests that those matters of law which, in addition to foreign-country
law, have traditionally been treated as requiring pleading and proof and
more recently as the subject of judicial notice be left to the Rules of
Civil and Criminal Procedure.
Rule 201(g) as received from the Supreme Court provided that when
judicial notice of a fact is taken, the court shall instruct the jury to
accept that fact as established. Being of the view that mandatory
instruction to a jury in a criminal case to accept as conclusive any
fact judicially noticed is inappropriate because contrary to the spirit
of the Sixth Amendment right to a jury trial, the Committee adopted the
1969 Advisory Committee draft of this subsection, allowing a mandatory
instruction in civil actions and proceedings and a discretionary
instruction in criminal cases.
28 USC ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 301. Presumptions in General in Civil Actions and
Proceedings
TITLE 28, APPENDIX -- RULES OF EVIDENCE
In all civil actions and proceedings not otherwise provided for by
Act of Congress or by these rules, a presumption imposes on the party
against whom it is directed the burden of going forward with evidence to
rebut or meet the presumption, but does not shift to such party the
burden of proof in the sense of the risk of nonpersuasion, which remains
throughout the trial upon the party on whom it was originally cast.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1931.)
This rule governs presumptions generally. See Rule 302 for
presumptions controlled by state law and Rule 303 (deleted) for those
against an accused in a criminal case.
Presumptions governed by this rule are given the effect of placing
upon the opposing party the burden of establishing the nonexistence of
the presumed fact, once the party invoking the presumption establishes
the basic facts giving rise to it. The same considerations of fairness,
policy, and probability which dictate the allocation of the burden of
the various elements of a case as between the prima facie case of a
plaintiff and affirmative defenses also underlie the creation of
presumptions. These considerations are not satisfied by giving a lesser
effect to presumptions. Morgan and Maguire, Looking Backward and
Forward at Evidence, 50 Harv.L.Rev. 909, 913 (1937); Morgan,
Instructing the Jury upon Presumptions and Burdon of Proof, 47
Harv.L.Rev. 59, 82 1933); Cleary, Presuming and Pleading: An Essay on
Juristic Immaturity, 12 Stan.L.Rev. 5 (1959).
The so-called ''bursting bubble'' theory, under which a presumption
vanishes upon the introduction of evidence which would support a finding
of the nonexistence of the presumed fact, even though not believed, is
rejected as according presumptions too ''slight and evanescent'' an
effect. Morgan and Maguire, supra, at p. 913.
In the opinion of the Advisory Committee, no constitutional infirmity
attends this view of presumptions. In Mobile, J. & K.C.R. Co. v.
Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910), the Court
upheld a Mississippi statute which provided that in actions against
railroads proof of injury inflicted by the running of trains should be
prima facie evidence of negligence by the railroad. The injury in the
case had resulted from a derailment. The opinion made the points (1)
that the only effect of the statute was to impose on the railroad the
duty of producing some evidence to the contrary, (2) that an inference
may be supplied by law if there is a rational connection between the
fact proved and the fact presumed, as long as the opposite party is not
precluded from presenting his evidence to the contrary, and (3) that
considerations of public policy arising from the character of the
business justified the application in question. Nineteen years later,
in Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445,
73 L.Ed. 884 (1929), the Court overturned a Georgia statute making
railroads liable for damages done by trains, unless the railroad made it
appear that reasonable care had been used, the presumption being against
the railroad. The declaration alleged the death of plaintiff's husband
from a grade crossing collision, due to specified acts of negligence by
defendant. The jury were instructed that proof of the injury raised a
presumption of negligence; the burden shifted to the railroad to prove
ordinary care; and unless it did so, they should find for plaintiff.
The instruction was held erroneous in an opinion stating (1) that there
was no rational connection between the mere fact of collision and
negligence on the part of anyone, and (2) that the statute was different
from that in Turnipseed in imposing a burden upon the railroad. The
reader is left in a state of some confusion. Is the difference between
a derailment and a grade crossing collision of no significance? Would
the Turnipseed presumption have been bad if it had imposed a burden of
persuasion on defendant, although that would in nowise have impaired its
''rational connection''? If Henderson forbids imposing a burden of
persuasion on defendants, what happens to affirmative defenses?
Two factors serve to explain Henderson. The first was that it was
common ground that negligence was indispensable to liability. Plaintiff
thought so, drafted her complaint accordingly, and relied upon the
presumption. But how in logic could the same presumption establish her
alternative grounds of negligence that the engineer was so blind he
could not see decedent's truck and that he failed to stop after he saw
it? Second, take away the basic assumption of no liability without
fault, as Turnipseed intimated might be done (''considerations of public
policy arising out of the character of the business''), and the
structure of the decision in Henderson fails. No question of logic
would have arisen if the statute had simply said: a prima facie case of
liability is made by proof of injury by a train; lack of negligence is
an affirmative defense, to be pleaded and proved as other affirmative
defenses. The problem would be one of economic due process only. While
it seems likely that the Supreme Court of 1929 would have voted that due
process was denied, that result today would be unlikely. See, for
example, the shift in the direction of absolute liability in the
consumer cases. Prosser, The Assault upon the Citadel (Strict Liability
to the Consumer), 69 Yale L.J. 1099 (1960).
Any doubt as to the constitutional permissibility of a presumption
imposing a burden of persuasion of the non-existence of the presumed
fact in civil cases is laid at rest by Dick v. New York Life Ins. Co.,
359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). The Court
unhesitatingly applied the North Dakota rule that the presumption
against suicide imposed on defendant the burden of proving that the
death of insured, under an accidental death clause, was due to suicide.
''Proof of coverage and of death by gunshot wound shifts the burden
to the insurer to establish that the death of the insured was due to his
suicide.'' 359 U.S. at 443, 79 S.Ct. at 925.
''In a case like this one, North Dakota presumes that death was
accidental and places on the insurer the burden of proving that death
resulted from suicide.'' Id. at 446, 79 S.Ct. at 927.
The rational connection requirement survives in criminal cases, Tot
v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943),
because the Court has been unwilling to extend into that area the
greater-includes-the-lesser theory of Ferry v. Ramsey, 277 U.S. 88, 48
S.Ct. 443, 72 L.Ed. 796 (1928). In that case the Court sustained a
Kansas statute under which bank directors were personally liable for
deposits made with their assent and with knowledge of insolvency, and
the fact of insolvency was prima facie evidence of assent and knowledge
of insolvency. Mr. Justice Holmes pointed out that the state
legislature could have made the directors personally liable to
depositors in every case. Since the statute imposed a less stringent
liability, ''the thing to be considered is the result reached, not the
possibly inartificial or clumsy way of reaching it.'' Id. at 94, 48
S.Ct. at 444. Mr. Justice Sutherland dissented: though the state could
have created an absolute liability, it did not purport to do so; a
rational connection was necessary, but lacking, between the liability
created and the prima facie evidence of it; the result might be
different if the basis of the presumption were being open for business.
The Sutherland view has prevailed in criminal cases by virtue of the
higher standard of notice there required. The fiction that everyone is
presumed to know the law is applied to the substantive law of crimes as
an alternative to complete unenforceability. But the need does not
extend to criminal evidence and procedure, and the fiction does not
encompass them. ''Rational connection'' is not fictional or artificial,
and so it is reasonable to suppose that Gainey should have known that
his presence at the site of an illicit still could convict him of being
connected with (carrying on) the business, United States v. Gainey, 380
U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), but not that Romano should
have known that his presence at a still could convict him of possessing
it, United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210
(1965).
In his dissent in Gainey, Mr. Justice Black put it more
artistically:
''It might be argued, although the Court does not so argue or hold,
that Congress if it wished could make presence at a still a crime in
itself, and so Congress should be free to create crimes which are called
'possession' and 'carrying on an illegal distillery business' but which
are defined in such a way that unexplained presence is sufficient and
indisputable evidence in all cases to support conviction for those
offenses. See Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed.
796. Assuming for the sake of argument that Congress could make
unexplained presence a criminal act, and ignoring also the refusal of
this Court in other cases to uphold a statutory presumption on such a
theory, see Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772,
there is no indication here that Congress intended to adopt such a
misleading method of draftsmanship, nor in my judgement could the
statutory provisions if so construed escape condemnation for vagueness,
under the principles applied in Lanzetta v. New Jersey, 306 U.S. 451,
59 S.Ct. 618, 83 L.Ed. 888, and many other cases.'' 380 U.S. at 84, n.
12, 85 S.Ct. at 766.
And the majority opinion in Romano agreed with him:
''It may be, of course, that Congress has the power to make presence
at an illegal still a punishable crime, but we find no clear indication
that it intended to so exercise this power. The crime remains
possession, not presence, and with all due deference to the judgement of
Congress, the former may not constitutionally be inferred from the
latter.'' 382 U.S. at 144, 86 S.Ct. at 284.
The rule does not spell out the procedural aspects of its
application. Questions as to when the evidence warrants submission of a
presumption and what instructions are proper under varying states of
fact are believed to present no particular difficulties.
Rule 301 as submitted by the Supreme Court provided that in all cases
a presumption imposes on the party against whom it is directed the
burden of proving that the nonexistence of the presumed fact is more
probable than its existence. The Committee limited the scope of Rule
301 to ''civil actions and proceedings'' to effectuate its decision not
to deal with the question of presumptions in criminal cases. (See note
on (proposed) Rule 303 in discussion of Rules deleted). With respect to
the weight to be given a presumption in a civil case, the Committee
agreed with the judgement implicit in the Court's version that the
socalled ''bursting bubble'' theory of presumptions, whereby a
presumption vanished upon the appearance of any contradicting evidence
by the other party, gives to presumptions too slight an effect. On the
other hand, the Committee believed that the Rule proposed by the Court,
whereby a presumption permanently alters the burden of persuasion, no
matter how much contradicting evidence is introduced -- a view shared by
only a few courts -- lends too great a force to presumptions.
Accordingly, the Committee amended the Rule to adopt an intermediate
position under which a presumption does not vanish upon the introduction
of contradicting evidence, and does not change the burden of persuasion;
instead it is merely deemed sufficient evidence of the fact presumed,
to be considered by the jury or other finder of fact.
The rule governs presumptions in civil cases generally. Rule 302
provides for presumptions in cases controlled by State law.
As submitted by the Supreme Court, presumptions governed by this rule
were given the effect of placing upon the opposing party the burden of
establishing the non-existence of the presumed fact, once the party
invoking the presumption established the basic facts giving rise to it.
Instead of imposing a burden of persuasion on the party against whom
the presumption is directed, the House adopted a provision which shifted
the burden of going forward with the evidence. They further provided
that ''even though met with contradicting evidence, a presumption is
sufficient evidence of the fact presumed, to be considered by the trier
of fact.'' The effect of the amendment is that presumptions are to be
treated as evidence.
The committee feels the House amendment is ill-advised. As the joint
committees (the Standing Committee on Practice and Procedure of the
Judicial Conference and the Advisory Committee on the Rules of Evidence)
stated: ''Presumptions are not evidence, but ways of dealing with
evidence.'' This treatment requires juries to perform the task of
considering ''as evidence'' facts upon which they have no direct
evidence and which may confuse them in performance of their duties.
California had a rule much like that contained in the House amendment.
It was sharply criticized by Justice Traynor in Speck v. Sarver (20
Cal. 2d 585, 128 P. 2d 16, 21 (1942)) and was repealed after 93
troublesome years (Cal. Ev. Code 1965 600).
Professor McCormick gives a concise and compelling critique of the
presumption as evidence rule:
Another solution, formerly more popular than now, is to instruct the
jury that the presumption is ''evidence'', to be weighed and considered
with the testimony in the case. This avoids the danger that the jury
may infer that the presumption is conclusive, but it probably means
little to the jury, and certainly runs counter to accepted theories of
the nature of evidence. (McCormick, Evidence, 669 (1954); Id. 825 (2d
ed. 1972)).
For these reasons the committee has deleted that provision of the
House-passed rule that treats presumptions as evidence. The effect of
the rule as adopted by the committee is to make clear that while
evidence of facts giving rise to a presumption shifts the burden of
coming forward with evidence to rebut or meet the presumption, it does
not shift the burden of persuasion on the existence of the presumed
facts. The burden or persuasion remains on the party to whom it is
allocated under the rules governing the allocation in the first
instance.
The court may instruct the jury that they may infer the existence of
the presumed fact from proof of the basic facts giving rise to the
presumption. However, it would be inappropriate under this rule to
instruct the jury that the inference they are to draw is conclusive.
The House bill provides that a presumption in civil actions and
proceedings shifts to the party against whom it is directed the burden
of going forward with evidence to meet or rebut it. Even though
evidence contradicting the presumption is offered, a presumption is
considered sufficient evidence of the presumed fact to be considered by
the jury. The Senate amendment provides that a presumption shifts to
the party against whom it is directed the burden of going forward with
evidence to meet or rebut the presumption, but it does not shift to that
party the burden of persuasion on the existence of the presumed fact.
Under the Senate amendment, a presumption is sufficient to get a
party past an adverse party's motion to dismiss made at the end of his
case-in-chief. If the adverse party offers no evidence contradicting
the presumed fact, the court will instruct the jury that if it finds the
basic facts, it may presume the existence of the presumed fact. If the
adverse party does offer evidence contradicting the presumed fact, the
court cannot instruct the jury that it may presume the existence of the
presumed fact from proof of the basic facts. The court may, however,
instruct the jury that it may infer the existence of the presumed fact
from proof of the basic facts.
The Conference adopts the Senate amendment.
28 USC Rule 302. Applicability of State Law in Civil Actions and
Proceedings
TITLE 28, APPENDIX -- RULES OF EVIDENCE
In civil actions and proceedings, the effect of a presumption
respecting a fact which is an element of a claim or defense as to which
State law supplies the rule of decision is determined in accordance with
State law.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1931.)
A series of Supreme Court decisions in diversity cases leaves no
doubt of the relevance of Erie Railroad Co. v. Tompkins, 304 U.S. 64,
58 S.Ct. 817, 82 L.Ed. 1188 (1938), to questions of burden of proof.
These decisions are Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60
S.Ct. 201, 84 L.Ed. 196 (1939), Palmer v. Hoffman, 318 U.S. 109, 63
S.Ct. 477, 87 L.Ed. 645 (1943), and Dick v. New York Life Ins. Co.,
359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). They involved burden
of proof, respectively, as to status as bona fide purchasers,
contributory negligence, and non-accidental death (suicide) of an
insured. In each instance the state rule was held to be applicable. It
does not follow, however, that all presumptions in diversity cases are
governed by state law. In each case cited, the burden of proof question
had to do with a substantive element of the claim or defense.
Application of the state law is called for only when the presumption
operates upon such an element. Accordingly the rule does not apply
state law when the presumption operates upon a lesser aspect of the
case, i.e. ''tactical'' presumptions.
The situations in which the state law is applied have been tagged for
convenience in the preceding discussion as ''diversity cases.'' The
designation is not a completely accurate one since Erie applies to any
claim or issue having its source in state law, regardless of the basis
of federal jurisdiction, and does not apply to a federal claim or issue,
even though jurisdiction is based on diversity. Vestal, Erie R.R. v.
Tompkins: A Projection, 48 Iowa L.Rev. 248, 257 (1963); Hart and
Wechsler, The Federal Courts and the Federal System, 697 (1953); 1A
Moore, Federal Practice 0.305(3) (2d ed. 1965); Wright, Federal
Courts, 217-218 (1963). Hence the rule employs, as appropriately
descriptive, the phrase ''as to which state law supplies the rule of
decision.'' See A.L.I. Study of the Division of Jurisdiction Between
State and Federal Courts, 2344(c), p. 40, P.F.D. No. 1 (1965).
28 USC ARTICLE IV. RELEVANCY AND ITS LIMITS
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 401. Definition of ''Relevant Evidence''
TITLE 28, APPENDIX -- RULES OF EVIDENCE
''Relevant evidence'' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1931.)
Problems of relevancy call for an answer to the question whether an
item of evidence, when tested by the processes of legal reasoning,
possesses sufficient probative value to justify receiving it in
evidence. Thus, assessment of the probative value of evidence that a
person purchased a revolver shortly prior to a fatal shooting with which
he is charged is a matter of analysis and reasoning.
The variety of relevancy problems is coextensive with the ingenuity
of counsel in using circumstantial evidence as a means of proof. An
enormous number of cases fall in no set pattern, and this rule is
designed as a guide for handling them. On the other hand, some
situations recur with sufficient frequency to create patterns
susceptible of treatment by specific rules. Rule 404 and those
following it are of that variety; they also serve as illustrations of
the application of the present rule as limited by the exclusionary
principles of Rule 403.
Passing mention should be made of so-called ''conditional''
relevancy. Morgan, Basic Problems of Evidence 45-46 (1962). In this
situation, probative value depends not only upon satisfying the basic
requirement of relevancy as described above but also upon the existence
of some matter of fact. For example, if evidence of a spoken statement
is relied upon to prove notice, probative value is lacking unless the
person sought to be charged heard the statement. The problem is one of
fact, and the only rules needed are for the purpose of determining the
respective functions of judge and jury. See Rules 104(b) and 901. The
discussion which follows in the present note is concerned with relevancy
generally, not with any particular problem of conditional relevancy.
Relevancy is not an inherent characteristic of any item of evidence
but exists only as a relation between an item of evidence and a matter
properly provable in the case. Does the item of evidence tend to prove
the matter sought to be proved? Whether the relationship exists depends
upon principles evolved by experience or science, applied logically to
the situation at hand. James, Relevancy, Probability and the Law, 29
Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence
and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this
relationship as a ''tendency to make the existence'' of the fact to be
proved ''more probable or less probable.'' Compare Uniform Rule 1(2)
which states the crux of relevancy as ''a tendency in reason,'' thus
perhaps emphasizing unduly the logical process and ignoring the need to
draw upon experience or science to validate the general principle upon
which relevancy in a particular situation depends.
The standard of probability under the rule is ''more * * * probable
than it would be without the evidence.'' Any more stringent requirement
is unworkable and unrealistic. As McCormick 152, p. 317, says, ''A
brick is not a wall,'' or, as Falknor, Extrinsic Policies Affecting
Admissibility, 10 Rutgers L.Rev. 574, 576 (1956), quotes Professor
McBaine, ''* * * (I)t is not to be supposed that every witness can make
a home run.'' Dealing with probability in the language of the rule has
the added virtue of avoiding confusion between questions of
admissibility and questions of the sufficiency of the evidence.
The rule uses the phrase ''fact that is of consequence to the
determination of the action'' to describe the kind of fact to which
proof may properly be directed. The language is that of California
Evidence Code 210; it has the advantage of avoiding the loosely used
and ambiguous word ''material.'' Tentative Recommendation and a Study
Relating to the Uniform Rules of Evidence (Art. I. General Provisions),
Cal. Law Revision Comm'n, Rep., Rec. & Studies, 10-11 (1964). The fact
to be proved may be ultimate, intermediate, or evidentiary; it matters
not, so long as it is of consequence in the determination of the action.
Cf. Uniform Rule 1(2) which requires that the evidence relate to a
''material'' fact.
The fact to which the evidence is directed need not be in dispute.
While situations will arise which call for the exclusion of evidence
offered to prove a point conceded by the opponent, the ruling should be
made on the basis of such considerations as waste of time and undue
prejudice (see Rule 403), rather than under any general requirement that
evidence is admissible only if directed to matters in dispute. Evidence
which is essentially background in nature can scarcely be said to
involve disputed matter, yet it is universally offered and admitted as
an aid to understanding. Charts, photographs, views of real estate,
murder weapons, and many other items of evidence fall in this category.
A rule limiting admissibility to evidence directed to a controversial
point would invite the exclusion of this helpful evidence, or at least
the raising of endless questions over its admission. Cf. California
Evidence Code 210, defining relevant evidence in terms of tendency to
prove a disputed fact.
28 USC Rule 402. Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible
TITLE 28, APPENDIX -- RULES OF EVIDENCE
All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1931.)
The provisions that all relevant evidence is admissible, with certain
exceptions, and that evidence which is not relevant is not admissible
are ''a presupposition involved in the very conception of a rational
system of evidence.'' Thayer, Preliminary Treatise on Evidence 264
(1898). They constitute the foundation upon which the structure of
admission and exclusion rests. For similar provisions see California
Evidence Code 350, 351. Provisions that all relevant evidence is
admissible are found in Uniform Rule 7(f); Kansas Code of Civil
Procedure 60-407(f); and New Jersey Evidence Rule 7(f); but the
exclusion of evidence which is not relevant is left to implication.
Not all relevant evidence is admissible. The exclusion of relevant
evidence occurs in a variety of situations and may be called for by
these rules, by the Rules of Civil and Criminal Procedure, by Bankruptcy
Rules, by Act of Congress, or by constitutional considerations.
Succeeding rules in the present article, in response to the demands
of particular policies, require the exclusion of evidence despite its
relevancy. In addition, Article V recognizes a number of privileges;
Article VI imposes limitations upon witnesses and the manner of dealing
with them; Article VII specifies requirements with respect to opinions
and expert testimony; Article VIII excludes hearsay not falling within
an exception; Article IX spells out the handling of authentication and
identification; and Article X restricts the manner of proving the
contents of writings and recordings.
The Rules of Civil and Criminal Procedure in some instances require
the exclusion of relevant evidence. For example, Rules 30(b) and
32(a)(3) of the Rules of Civil Procedure, by imposing requirements of
notice and unavailability of the deponent, place limits on the use of
relevant depositions. Similarly, Rule 15 of the Rules of Criminal
Procedure restricts the use of depositions in criminal cases, even
though relevant. And the effective enforcement of the command,
originally statutory and now found in Rule 5(a) of the Rules of Criminal
Procedure, that an arrested person be taken without unnecessary delay
before a commissioner of other similar officer is held to require the
exclusion of statements elicited during detention in violation thereof.
Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479
(1957); 18 U.S.C. 3501(c).
While congressional enactments in the field of evidence have
generally tended to expand admissibility beyond the scope of the common
law rules, in some particular situations they have restricted the
admissibility of relevant evidence. Most of this legislation has
consisted of the formulation of a privilege or of a prohibition against
disclosure. 8 U.S.C. 1202(f), records of refusal of visas or permits
to enter United States confidential, subject to discretion of Secretary
of State to make available to court upon certification of need; 10
U.S.C. 3693, replacement certificate of honorable discharge from Army
not admissible in evidence; 10 U.S.C. 8693, same as to Air Force; 11
U.S.C. 25(a)(10), testimony given by bankrupt on his examination not
admissible in criminal proceedings against him, except that given in
hearing upon objection to discharge; 11 U.S.C. 205(a), railroad
reorganization petition, if dismissed, not admissible in evidence; 11
U.S.C. 403(a), list of creditors filed with municipal composition plan
not an admission; 13 U.S.C. 9(a), census information confidential,
retained copies of reports privileged; 47 U.S.C. 605, interception and
divulgence of wire or radio communications prohibited unless authorized
by sender. These statutory provisions would remain undisturbed by the
rules.
The rule recognizes but makes no attempt to spell out the
constitutional considerations which impose basic limitations upon the
admissibility of relevant evidence. Examples are evidence obtained by
unlawful search and seizure, Weeks v. United States, 232 U.S. 383, 34
S.Ct. 341, 58 L.Ed. 652 (1914); Katz v. United States, 389 U.S. 347,
88 S.Ct. 507, 19 L.Ed.2d 576 (1967); incriminating statement elicited
from an accused in violation of right to counsel, Massiah v. United
States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
Rule 402 as submitted to the Congress contained the phrase ''or by
other rules adopted by the Supreme Court''. To accommodate the view
that the Congress should not appear to acquiesce in the Court's judgment
that it has authority under the existing Rules Enabling Acts to
promulgate Rules of Evidence, the Committee amended the above phrase to
read ''or by other rules prescribed by the Supreme Court pursuant to
statutory authority'' in this and other Rules where the reference
appears.
28 USC Rule 403. Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1932.)
The case law recognizes that certain circumstances call for the
exclusion of evidence which is of unquestioned relevance. These
circumstances entail risks which range all the way from inducing
decision on a purely emotional basis, at one extreme, to nothing more
harmful than merely wasting time, at the other extreme. Situations in
this area call for balancing the probative value of and need for the
evidence against the harm likely to result from its admission. Slough,
Relevancy Unraveled, 5 Kan. L. Rev. 1, 12-15 (1956); Trautman, Logical
or Legal Relevancy -- A Conflict in Theory, 5 Van. L. Rev. 385, 392
(1952); McCormick 152, pp. 319-321. The rules which follow in this
Article are concrete applications evolved for particular situations.
However, they reflect the policies underlying the present rule, which is
designed as a guide for the handling of situations for which no specific
rules have been formulated.
Exclusion for risk of unfair prejudice, confusion of issues,
misleading the jury, or waste of time, all find ample support in the
authorities. ''Unfair prejudice'' within its context means an undue
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.
The rule does not enumerate surprise as a ground for exclusion, in
this respect following Wigmore's view of the common law. 6 Wigmore
1849. Cf. McCormick 152, p. 320, n. 29, listing unfair surprise as a
ground for exclusion but stating that it is usually ''coupled with the
danger of prejudice and confusion of issues.'' While Uniform Rule 45
incorporates surprise as a ground and is followed in Kansas Code of
Civil Procedure 60-445, surprise is not included in California Evidence
Code 352 or New Jersey Rule 4, though both the latter otherwise
substantially embody Uniform Rule 45. While it can scarcely be doubted
that claims of unfair surprise may still be justified despite procedural
requirements of notice and instrumentalities of discovery, the granting
of a continuance is a more appropriate remedy than exclusion of the
evidence. Tentative Recommendation and a Study Relating to the Uniform
Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility),
Cal. Law Revision Comm'n, Rep., Rec. & Studies, 612 (1964). Moreover,
the impact of a rule excluding evidence on the ground of surprise would
be difficult to estimate.
In reaching a decision whether to exclude on grounds of unfair
prejudice, consideration should be given to the probable effectiveness
or lack of effectiveness of a limiting instruction. See Rule 106 (now
105) and Advisory Committee's Note thereunder. The availability of
other means of proof may also be an appropriate factor.
28 USC Rule 404. Character Evidence Not Admissible To Prove Conduct;
Exceptions; Other Crimes
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Character evidence generally. -- Evidence of a person's character
or a trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion, except:
(1) Character of accused. -- Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the
same;
(2) Character of victim. -- Evidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in a homicide case
to rebut evidence that the victim was the first aggressor;
(3) Character of witness. -- Evidence of the character of a witness,
as provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. -- Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown,
of the general nature of any such evidence it intends to introduce at
trial.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)
Subdivision (a). This subdivision deals with the basic question
whether character evidence should be admitted. Once the admissibility
of character evidence in some form is established under this rule,
reference must then be made to Rule 405, which follows, in order to
determine the appropriate method of proof. If the character is that of
a witness, see Rules 608 and 610 for methods of proof.
Character questions arise in two fundamentally different ways. (1)
Character may itself be an element of a crime, claim, or defense. A
situation of this kind is commonly referred to as ''character in
issue.'' Illustrations are: the chastity of the victim under a statute
specifying her chastity as an element of the crime of seduction, or the
competency of the driver in an action for negligently entrusting a motor
vehicle to an incompetent driver. No problem of the general relevancy
of character evidence is involved, and the present rule therefore has no
provision on the subject. The only question relates to allowable
methods of proof, as to which see Rule 405, immediately following. (2)
Character evidence is susceptible of being used for the purpose of
suggesting an inference that the person acted on the occasion in
question consistently with his character. This use of character is
often described as ''circumstantial.'' Illustrations are: evidence of a
violent disposition to prove that the person was the aggressor in an
affray, or evidence of honesty in disproof of a charge of theft. This
circumstantial use of character evidence raises questions of relevancy
as well as questions of allowable methods of proof.
In most jurisdictions today, the circumstantial use of character is
rejected but with important exceptions: (1) an accused may introduce
pertinent evidence of good character (often misleadingly described as
''putting his character in issue''), in which event the prosecution may
rebut with evidence of bad character; (2) an accused may introduce
pertinent evidence of the character of the victim, as in support of a
claim of self-defense to a charge of homicide or consent in a case of
rape, and the prosecution may introduce similar evidence in rebuttal of
the character evidence, or, in a homicide case, to rebut a claim that
deceased was the first aggressor, however proved; and (3) the character
of a witness may be gone into as bearing on his credibility. McCormick
155-161. This pattern is incorporated in the rule. While its basis
lies more in history and experience than in logic as underlying
justification can fairly be found in terms of the relative presence and
absence of prejudice in the various situations. Falknor, Extrinsic
Policies Affecting Admissibility, 10 Rutger, L.Rev. 574, 584 (1956);
McCormick 157. In any event, the criminal rule is so deeply imbedded
in our jurisprudence as to assume almost constitutional proportions and
to override doubts of the basic relevancy of the evidence.
The limitation to pertinent traits of character, rather than
character generally, in paragraphs (1) and (2) is in accordance with the
prevailing view. McCormick 158, p. 334. A similar provision in Rule
608, to which reference is made in paragraph (3), limits character
evidence respecting witnesses to the trait of truthfulness or
untruthfulness.
The argument is made that circumstantial use of character ought to be
allowed in civil cases to the same extent as in criminal cases, i.e.
evidence of good (nonprejudicial) character would be admissible in the
first instance, subject to rebuttal by evidence of bad character.
Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev.
574, 581-583 (1956); Tentative Recommendation and a Study Relating to
the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting
Admissibility), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 657-658
(1964). Uniform Rule 47 goes farther, in that it assumes that character
evidence in general satisfies the conditions of relevancy, except as
provided in Uniform Rule 48. The difficulty with expanding the use of
character evidence in civil cases is set forth by the California Law
Revision Commission in its ultimate rejection of Uniform Rule 47, Id.,
615:
''Character evidence is of slight probative value and may be very
prejudicial. It tends to distract the trier of fact from the main
question of what actually happened on the particular occasion. It
subtly permits the trier of fact to reward the good man to punish the
bad man because of their respective characters despite what the evidence
in the case shows actually happened.''
Much of the force of the position of those favoring greater use of
character evidence in civil cases is dissipated by their support of
Uniform Rule 48 which excludes the evidence in negligence cases, where
it could be expected to achieve its maximum usefulness. Moreover,
expanding concepts of ''character,'' which seem of necessity to extend
into such areas as psychiatric evaluation and psychological testing,
coupled with expanded admissibility, would open up such vistas of mental
examinations as caused the Court concern in Schlagenhauf v. Holder, 379
U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). It is believed that
those espousing change have not met the burden of persuasion.
Subdivision (b) deals with a specialized but important application of
the general rule excluding circumstantial use of character evidence.
Consistently with that rule, evidence of other crimes, wrongs, or acts
is not admissible to prove character as a basis for suggesting the
inference that conduct on a particular occasion was in conformity with
it. However, the evidence may be offered for another purpose, such as
proof of motive, opportunity, and so on, which does not fall within the
prohibition. In this situation the rule does not require that the
evidence be excluded. No mechanical solution is offered. The
determination must be made whether the danger of undue prejudice
outweighs the probative value of the evidence in view of the
availability of other means of proof and other factors appropriate for
making decisions of this kind under Rule 403. Slough and Knightly,
Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956).
The second sentence of Rule 404(b) as submitted to the Congress began
with the words ''This subdivision does not exclude the evidence when
offered''. The Committee amended this language to read ''It may,
however, be admissible'', the words used in the 1971 Advisory Committee
draft, on the ground that this formulation properly placed greater
emphasis on admissibility than did the final Court version.
This rule provides that evidence of other crimes, wrongs, or acts is
not admissible to prove character but may be admissible for other
specified purposes such as proof of motive.
Although your committee sees no necessity in amending the rule
itself, it anticipates that the use of the discretionary word ''may''
with respect to the admissibility of evidence of crimes, wrongs, or acts
is not intended to confer any arbitrary discretion on the trial judge.
Rather, it is anticipated that with respect to permissible uses for such
evidence, the trial judge may exclude it only on the basis of those
considerations set forth in Rule 403, i.e. prejudice, confusion or waste
of time.
The amendments are technical. No substantive change is intended.
Rule 404(b) has emerged as one of the most cited Rules in the Rules
of Evidence. And in many criminal cases evidence of an accused's
extrinsic acts is viewed as an important asset in the prosecution's case
against an accused. Although there are a few reported decisions on use
of such evidence by the defense, see, e.g., United States v. McClure,
546 F.2nd 670 (5th Cir. 1990) (acts of informant offered in entrapment
defense), the overwhelming number of cases involve introduction of that
evidence by the prosecution.
The amendment to Rule 404(b) adds a pretrial notice requirement in
criminal cases and is intended to reduce surprise and promote early
resolution on the issue of admissibility. The notice requirement thus
places Rule 404(b) in the mainstream with notice and disclosure
provisions in other rules of evidence. See, e.g., Rule 412 (written
motion of intent to offer evidence under rule), Rule 609 (written notice
of intent to offer conviction older than 10 years), Rule 803(24) and
804(b)(5) (notice of intent to use residual hearsay exceptions).
The Rule expects that counsel for both the defense and the
prosecution will submit the necessary request and information in a
reasonable and timely fashion. Other than requiring pretrial notice, no
specific time limits are stated in recognition that what constitutes a
reasonable request or disclosure will depend largely on the
circumstances of each case. Compare Fla. Stat. Ann 90.404(2)(b)
(notice must be given at least 10 days before trial) with Tex.R.Evid.
404(b) (no time limit).
Likewise, no specific form of notice is required. The Committee
considered and rejected a requirement that the notice satisfy the
particularity requirements normally required of language used in a
charging instrument. Cf. Fla. Stat. Ann 90.404(2)(b) (written
disclosure must describe uncharged misconduct with particularity
required of an indictment or information). Instead, the Committee opted
for a generalized notice provision which requires the prosecution to
apprise the defense of the general nature of the evidence of extrinsic
acts. The Committee does not intend that the amendment will supercede
other rules of admissibility or disclosure, such as the Jencks Act, 18
U.S.C. 3500, et seq. nor require the prosecution to disclose directly
or indirectly the names and addresses of its witnesses, something it is
currently not required to do under Federal Rule of Criminal Procedure
16.
The amendment requires the prosecution to provide notice, regardless
of how it intends to use the extrinsic act evidence at trial, i.e.,
during its case-in-chief, for impeachment, or for possible rebuttal.
The court in its discretion may, under the facts, decide that the
particular request or notice was not reasonable, either because of the
lack of timeliness or completeness. Because the notice requirement
serves as condition precedent to admissibility of 404(b) evidence, the
offered evidence is inadmissible if the court decides that the notice
requirement has not been met.
Nothing in the amendment precludes the court from requiring the
government to provide it with an opportunity to rule in limine on 404(b)
evidence before it is offered or even mentioned during trial. When
ruling in limine, the court may require the government to disclose to it
the specifics of such evidence which the court must consider in
determining admissibility.
The amendment does not extend to evidence of acts which are
''intrinsic'' to the charged offense, see United States v. Williams,
900 F.2d 823 (5th Cir. 1990) (noting distinction between 404(b) evidence
and intrinsic offense evidence). Nor is the amendment intended to
redefine what evidence would otherwise be admissible under Rule 404(b).
Finally, the Committee does not intend through the amendment to affect
the role of the court and the jury in considering such evidence. See
United States v. Huddleston, 485 U.S. 681, 108 S.Ct 1496 (1988).
28 USC Rule 405. Methods of Proving Character
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Reputation or opinion. -- In all cases in which evidence of
character or a trait of character of a person is admissible, proof may
be made by testimony as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable into relevant
specific instances of conduct.
(b) Specific instances of conduct. -- In cases in which character or
a trait of character of a person is an essential element of a charge,
claim, or defense, proof may also be made of specific instances of that
person's conduct.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The rule deals only with allowable methods of proving character, not
with the admissibility of character evidence, which is covered in Rule
404.
Of the three methods of proving character provided by the rule,
evidence of specific instances of conduct is the most convincing. At
the same time it possesses the greatest capacity to arouse prejudice, to
confuse, to surprise, and to consume time. Consequently the rule
confines the use of evidence of this kind to cases in which character
is, in the strict sense, in issue and hence deserving of a searching
inquiry. When character is used circumstantially and hence occupies a
lesser status in the case, proof may be only by reputation and opinion.
These latter methods are also available when character is in issue.
This treatment is, with respect to specific instances of conduct and
reputation, conventional contemporary common law doctrine. McCormick
153.
In recognizing opinion as a means of proving character, the rule
departs from usual contemporary practice in favor of that of an earlier
day. See 7 Wigmore 1986, pointing out that the earlier practice
permitted opinion and arguing strongly for evidence based on personal
knowledge and belief as contrasted with ''the secondhand, irresponsible
product of multiplied guesses and gossip which we term 'reputation'.''
It seems likely that the persistence of reputation evidence is due to
its largely being opinion in disguise. Traditionally character has been
regarded primarily in moral overtones of good and bad: chaste,
peaceable, truthful, honest. Nevertheless, on occasion nonmoral
considerations crop up, as in the case of the incompetent driver, and
this seems bound to happen increasingly. If character is defined as the
kind of person one is, then account must be taken of varying ways of
arriving at the estimate. These may range from the opinion of the
employer who has found the man honest to the opinion of the psychiatrist
based upon examination and testing. No effective dividing line exists
between character and mental capacity, and the latter traditionally has
been provable by opinion.
According to the great majority of cases, on cross-examination
inquiry is allowable as to whether the reputation witness has heard of
particular instances of conduct pertinent to the trait in question.
Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168
(1948); Annot., 47 A.L.R.2d 1258. The theory is that, since the
reputation witness relates what he has heard, the inquiry tends to shed
light on the accuracy of his hearing and reporting. Accordingly, the
opinion witness would be asked whether he knew, as well as whether he
had heard. The fact is, of course, that these distinctions are of
slight if any practical significance, and the second sentence of
subdivision (a) eliminates them as a factor in formulating questions.
This recognition of the propriety of inquiring into specific instances
of conduct does not circumscribe inquiry otherwise into the bases of
opinion and reputation testimony.
The express allowance of inquiry into specific instances of conduct
on cross-examination in subdivision (a) and the express allowance of it
as part of a case in chief when character is actually in issue in
subdivision (b) contemplate that testimony of specific instances is not
generally permissible on the direct examination of an ordinary opinion
witness to character. Similarly as to witnesses to the character of
witnesses under Rule 608(b). Opinion testimony on direct in these
situations ought in general to correspond to reputation testimony as now
given, i.e., be confined to the nature and extent of observation and
acquaintance upon which the opinion is based. See Rule 701.
Rule 405(a) as submitted proposed to change existing law by allowing
evidence of character in the form of opinion as well as reputation
testimony. Fearing, among other reasons, that wholesale allowance of
opinion testimony might tend to turn a trial into a swearing contest
between conflicting character witnesses, the Committee decided to delete
from this Rule, as well as from Rule 608(a) which involves a related
problem, reference to opinion testimony.
The Senate makes two language changes in the nature of conforming
amendments. The Conference adopts the Senate amendments.
The amendment is technical. No substantive change is intended.
28 USC Rule 406. Habit; Routine Practice
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence
of eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit
or routine practice.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1932.)
An oft-quoted paragraph, McCormick, 162, p. 340, describes habit in
terms effectively contrasting it with character:
''Character and habit are close akin. Character is a generalized
description of one's disposition, or of one's disposition in respect to
a general trait, such as honesty, temperance, or peacefulness. 'Habit,'
in modern usage, both lay and psychological, is more specific. It
describes one's regular response to a repeated specific situation. If
we speak of character for care, we think of the person's tendency to act
prudently in all the varying situations of life, in business, family
life, in handling automobiles and in walking across the street. A
habit, on the other hand, is the person's regular practice of meeting a
particular kind of situation with a specific type of conduct, such as
the habit of going down a particular stairway two stairs at a time, or
of giving the hand-signal for a left turn, or of alighting from railway
cars while they are moving. The doing of the habitual acts may become
semi-automatic.'' Equivalent behavior on the part of a group is
designated ''routine practice of an organization'' in the rule.
Agreement is general that habit evidence is highly persuasive as
proof of conduct on a particular occasion. Again quoting McCormick
162, p. 341:
''Character may be thought of as the sum of one's habits though
doubtless it is more than this. But unquestionably the uniformity of
one's response to habit is far greater than the consistency with which
one's conduct conforms to character or disposition. Even though
character comes in only exceptionally as evidence of an act, surely any
sensible man in investigating whether X did a particular act would be
greatly helped in his inquiry by evidence as to whether he was in the
habit of doing it.''
When disagreement has appeared, its focus has been upon the question
what constitutes habit, and the reason for this is readily apparent.
The extent to which instances must be multiplied and consistency of
behavior maintained in order to rise to the status of habit inevitably
gives rise to differences of opinion. Lewan, Rationale of Habit
Evidence, 16 Syracuse L.Rev. 39, 49 (1964). While adequacy of sampling
and uniformity of response are key factors, precise standards for
measuring their sufficiency for evidence purposes cannot be formulated.
The rule is consistent with prevailing views. Much evidence is
excluded simply because of failure to achieve the status of habit.
Thus, evidence of intemperate ''habits'' is generally excluded when
offered as proof of drunkenness in accident cases, Annot., 46 A.L.R.2d
103, and evidence of other assaults is inadmissible to prove the instant
one in a civil assault action, Annot., 66 A.L.R.2d 806. In Levin v.
United States, 119 U.S.App.D.C. 156, 338 F.2d 265 (1964), testimony as
to the religious ''habits'' of the accused, offered as tending to prove
that he was at home observing the Sabbath rather than out obtaining
money through larceny by trick, was held properly excluded;
''It seems apparent to us that an individual's religious practices
would not be the type of activities which would lend themselves to the
characterization of 'invariable regularity.' (1 Wigmore 520.) Certainly
the very volitional basis of the activity raises serious questions as to
its invariable nature, and hence its probative value.'' Id. at 272.
These rulings are not inconsistent with the trend towards admitting
evidence of business transactions between one of the parties and a third
person as tending to prove that he made the same bargain or proposal in
the litigated situation. Slough, Relevancy Unraveled, 6 Kan.L.Rev.
38-41 (1957). Nor are they inconsistent with such cases as Whittemore
v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151 P.2d 670 (1944),
upholding the admission of evidence that plaintiff's intestate had on
four other occasions flown planes from defendant's factory for delivery
to his employer airline, offered to prove that he was piloting rather
than a guest on a plane which crashed and killed all on board while en
route for delivery.
A considerable body of authority has required that evidence of the
routine practice of an organization be corroborated as a condition
precedent to its admission in evidence. Slough, Relevancy Unraveled, 5
Kan.L.Rev. 404, 449 (1957). This requirement is specifically rejected
by the rule on the ground that it relates to the sufficiency of the
evidence rather than admissibility. A similar position is taken in New
Jersey Rule 49. The rule also rejects the requirement of the absence of
eyewitnesses, sometimes encountered with respect to admitting habit
evidence to prove freedom from contributory negligence in wrongful death
cases. For comment critical of the requirements see Frank, J., in
Cereste v. New York, N.H. & H.R. Co., 231 F.2d 50 (2d Cir. 1956), cert.
denied 351 U.S. 951, 76 S.Ct. 848, 100 L.Ed 1475, 10 Vand.L.Rev. 447
(1957); McCormick 162, p. 342. The omission of the requirement from
the California Evidence Code is said to have effected its elimination.
Comment, Cal.Ev.Code 1105.
28 USC Rule 407. Subsequent Remedial Measures
TITLE 28, APPENDIX -- RULES OF EVIDENCE
When, after an event, measures are taken which, if taken previously,
would have made the event less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence or culpable
conduct in connection with the event. This rule does not require the
exclusion of evidence of subsequent measures when offered for another
purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1932.)
The rule incorporates conventional doctrine which excludes evidence
of subsequent remedial measures as proof of an admission of fault. The
rule rests on two grounds. (1) The conduct is not in fact an admission,
since the conduct is equally consistent with injury by mere accident or
through contributory negligence. Or, as Baron Bramwell put it, the rule
rejects the notion that ''because the world gets wiser as it gets older,
therefore it was foolish before.'' Hart v. Lancashire & Yorkshire Ry.
Co., 21 L.T.R. N.S. 261, 263 (1869). Under a liberal theory of
relevancy this ground alone would not support exclusion as the inference
is still a possible one. (2) The other, and more impressive, ground for
exclusion rests on a social policy of encouraging people to take, or at
least not discouraging them from taking, steps in furtherance of added
safety. The courts have applied this principle to exclude evidence of
subsequent repairs, installation of safety devices, changes in company
rules, and discharge of employees, and the language of the present rules
is broad enough to encompass all of them. See Falknor, Extrinsic
Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 590 (1956).
The second sentence of the rule directs attention to the limitations
of the rule. Exclusion is called for only when the evidence of
subsequent remedial measures is offered as proof of negligence or
culpable conduct. In effect it rejects the suggested inference that
fault is admitted. Other purposes are, however, allowable, including
ownership or control, existence of duty, and feasibility of
precautionary measures, if controverted, and impeachment. 2 Wigmore
283; Annot., 64 A.L.R.2d 1296. Two recent federal cases are
illustrative. Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir.
1961), an action against an airplane manufacturer for using an allegedly
defectively designed alternator shaft which caused a plane crash, upheld
the admission of evidence of subsequent design modification for the
purpose of showing that design changes and safeguards were feasible.
And Powers v. J. B. Michael & Co., 329 F.2d 674 (6th Cir. 1964), an
action against a road contractor for negligent failure to put out
warning signs, sustained the admission of evidence that defendant
subsequently put out signs to show that the portion of the road in
question was under defendant's control. The requirement that the other
purpose be controverted calls for automatic exclusion unless a genuine
issue be present and allows the opposing party to lay the groundwork for
exclusion by making an admission. Otherwise the factors of undue
prejudice, confusion of issues, misleading the jury, and waste of time
remain for consideration under Rule 403.
For comparable rules, see Uniform Rule 51; California Evidence Code
1151; Kansas Code of Civil Procedure 60-451; New Jersey Evidence Rule
51.
28 USC Rule 408. Compromise and Offers to Compromise
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Evidence of (1) furnishing or offering or promising to furnish, or
(2) accepting or offering or promising to accept, a valuable
consideration in compromising or attempting to compromise a claim which
was disputed as to either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount. Evidence of
conduct or statements made in compromise negotiations is likewise not
admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of
compromise negotiations. This rule also does not require exclusion when
the evidence is offered for another purpose, such as proving bias or
prejudice of a witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1933.)
As a matter of general agreement, evidence of an offer-to compromise
a claim is not receivable in evidence as an admission of, as the case
may be, the validity or invalidity of the claim. As with evidence of
subsequent remedial measures, dealt with in Rule 407, exclusion may be
based on two grounds. (1) The evidence is irrelevant, since the offer
may be motivated by a desire for peace rather than from any concession
of weakness of position. The validity of this position will vary as the
amount of the offer varies in relation to the size of the claim and may
also be influenced by other circumstances. (2) a more consistently
impressive ground is promotion of the public policy favoring the
compromise and settlement of disputes. McCormick 76, 251. While the
rule is ordinarily phrased in terms of offers of compromise, it is
apparent that a similar attitude must be taken with respect to completed
compromises when offered against a party thereto. This latter situation
will not, of course, ordinarily occur except when a party to the present
litigation has compromised with a third person.
The same policy underlies the provision of Rule 68 of the Federal
Rules of Civil Procedure that evidence of an unaccepted offer of
judgment is not admissible except in a proceeding to determine costs.
The practical value of the common law rule has been greatly
diminished by its inapplicability to admissions of fact, even though
made in the course of compromise negotiations, unless hypothetical,
stated to be ''without prejudice,'' or so connected with the offer as to
be inseparable from it. McCormick 251, pp. 540-541. An inevitable
effect is to inhibit freedom of communication with respect to
compromise, even among lawyers. Another effect is the generation of
controversy over whether a given statement falls within or without the
protected area. These considerations account for the expansion of the
rule herewith to include evidence of conduct or statements made in
compromise negotiations, as well as the offer or completed compromise
itself. For similar provisions see California Evidence Code 1152,
1154.
The policy considerations which underlie the rule do not come into
play when the effort is to induce a creditor to settle an admittedly due
amount for a lessor sum. McCormick 251, p. 540. Hence the rule
requires that the claim be disputed as to either validity or amount.
The final sentence of the rule serves to point out some limitations
upon its applicability. Since the rule excludes only when the purpose
is proving the validity or invalidity of the claim or its amount, an
offer for another purpose is not within the rule. The illustrative
situations mentioned in the rule are supported by the authorities. As
to proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395,
contra, Fenberg v. Rosenthal, 348 Ill. App. 510, 109 N.E.2d 402
(1952), and negativing a contention of lack of due diligence in
presenting a claim, 4 Wigmore 1061. An effort to ''buy off'' the
prosecution or a prosecuting witness in a criminal case is not within
the policy of the rule of exclusion. McCormick 251, p. 542.
For other rules of similar import, see Uniform Rules 52 and 53;
California Evidence Code 1152, 1154; Kansas Code of Civil Procedure
60-452, 60-453; New Jersey Evidence Rules 52 and 53.
Under existing federal law evidence of conduct and statements made in
compromise negotiations is admissible in subsequent litigation between
the parties. The second sentence of Rule 408 as submitted by the
Supreme Court proposed to reverse that doctrine in the interest of
further promoting non-judicial settlement of disputes. Some agencies of
government expressed the view that the Court formulation was likely to
impede rather than assist efforts to achieve settlement of disputes.
For one thing, it is not always easy to tell when compromise
negotiations begin, and informal dealings end. Also, parties dealing
with government agencies would be reluctant to furnish factual
information at preliminary meetings; they would wait until ''compromise
negotiations'' began and thus hopefully effect an immunity for
themselves with respect to the evidence supplied. In light of these
considerations, the Committee recast the Rule so that admissions of
liability or opinions given during compromise negotiations continue
inadmissible, but evidence of unqualified factual assertions is
admissible. The latter aspect of the Rule is drafted, however, so as to
preserve other possible objections to the introduction of such evidence.
The Committee intends no modification of current law whereby a party
may protect himself from future use of his statements by couching them
in hypothetical conditional form.
This rule as reported makes evidence of settlement or attempted
settlement of a disputed claim inadmissible when offered as an admission
of liability or the amount of liability. The purpose of this rule is to
encourage settlements which would be discouraged if such evidence were
admissible.
Under present law, in most jurisdictions, statements of fact made
during settlement negotiations, however, are excepted from this ban and
are admissible. The only escape from admissibility of statements of
fact made in a settlement negotiation is if the declarant or his
representative expressly states that the statement is hypothetical in
nature or is made without prejudice. Rule 408 as submitted by the Court
reversed the traditional rule. It would have brought statements of fact
within the ban and made them, as well as an offer of settlement,
inadmissible.
The House amended the rule and would continue to make evidence of
facts disclosed during compromise negotiations admissible. It thus
reverted to the traditional rule. The House committee report states
that the committee intends to preserve current law under which a party
may protect himself by couching his statements in hypothetical form (See
House Report No. 93-650 above). The real impact of this amendment,
however, is to deprive the rule of much of its salutary effect. The
exception for factual admissions was believed by the Advisory Committee
to hamper free communication between parties and thus to constitute an
unjustifiable restraint upon efforts to negotiate settlements -- the
encouragement of which is the purpose of the rule. Further, by
protecting hypothetically phrased statements, it constituted a
preference for the sophisticated, and a trap for the unwary.
Three States which had adopted rules of evidence patterned after the
proposed rules prescribed by the Supreme Court opted for versions of
rule 408 identical with the Supreme Court draft with respect to the
inadmissibility of conduct or statements made in compromise
negotiations. (Nev. Rev. Stats. 48.105; N. Mex. Stats. Anno. (1973
Supp.) 20-4-408; West's Wis. Stats. Anno. (1973 Supp.) 904.08).
For these reasons, the committee has deleted the House amendment and
restored the rule to the version submitted by the Supreme Court with one
additional amendment. This amendment adds a sentence to insure that
evidence, such as documents, is not rendered inadmissible merely because
it is presented in the course of compromise negotiations if the evidence
is otherwise discoverable. A party should not be able to immunize from
admissibility documents otherwise discoverable merely by offering them
in a compromise negotiation.
The House bill provides that evidence of admissions of liability or
opinions given during compromise negotiations is not admissible, but
that evidence of facts disclosed during compromise negotiations is not
inadmissible by virtue of having been first disclosed in the compromise
negotiations. The Senate amendment provides that evidence of conduct or
statements made in compromise negotiations is not admissible. The
Senate amendment also provides that the rule does not require the
exclusion of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations.
The House bill was drafted to meet the objection of executive
agencies that under the rule as proposed by the Supreme Court, a party
could present a fact during compromise negotiations and thereby prevent
an opposing party from offering evidence of that fact at trial even
though such evidence was obtained from independent sources. The Senate
amendment expressly precludes this result.
The Conference adopts the Senate amendment.
28 USC Rule 409. Payment of Medical and Similar Expenses
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not admissible
to prove liability for the injury.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1933.)
The considerations underlying this rule parallel those underlying
Rules 407 and 408, which deal respectively with subsequent remedial
measures and offers of compromise. As stated in Annot., 20 A.L.R.2d
291, 293:
''(G)enerally, evidence of payment of medical, hospital, or similar
expenses of an injured party by the opposing party, is not admissible,
the reason often given being that such payment or offer is usually made
from humane impulses and not from an admission of liability, and that to
hold otherwise would tend to discourage assistance to the injured
person.''
Contrary to Rule 408, dealing with offers of compromise, the present
rule does not extend to conduct or statements not a part of the act of
furnishing or offering or promising to pay. This difference in
treatment arises from fundamental differences in nature. Communication
is essential if compromises are to be effected, and consequently broad
protection of statements is needed. This is not so in cases of payments
or offers or promises to pay medical expenses, where factual statements
may be expected to be incidental in nature.
For rules on the same subject, but phrased in terms of ''humanitarian
motives,'' see Uniform Rule 52; California Evidence Code 1152; Kansas
Code of Civil Procedure 60-452; New Jersey Evidence Rule 52.
28 USC Rule 410. Inadmissibility of Pleas, Plea Discussions, and
Related Statements
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Except as otherwise provided in this rule, evidence of the following
is not, in any civil or criminal proceeding, admissible against the
defendant who made the plea or was a participant in the plea
discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11
of the Federal Rules of Criminal Procedure or comparable state procedure
regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an
attorney for the prosecuting authority which do not result in a plea of
guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein
another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (ii) in a criminal proceeding
for perjury or false statement if the statement was made by the
defendant under oath, on the record and in the presence of counsel.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1933; Pub. L. 94-149,
1(9), Dec. 12, 1975, 89 Stat. 805; Apr. 30, 1979, eff. Dec. 1, 1980.)
Withdrawn pleas of guilty were held inadmissible in federal
prosecutions in Kercheval v. United States, 274 U.S. 220, 47 S.Ct.
582, 71 L.Ed. 1009 (1927). The Court pointed out that to admit the
withdrawn plea would effectively set at naught the allowance of
withdrawal and place the accused in a dilemma utterly inconsistent with
the decision to award him a trial. The New York Court of Appeals, in
People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35
(1961), reexamined and overturned its earlier decisions which had
allowed admission. In addition to the reasons set forth in Kercheval,
which was quoted at length, the court pointed out that the effect of
admitting the plea was to compel defendant to take the stand by way of
explanation and to open the way for the prosecution to call the lawyer
who had represented him at the time of entering the plea. State court
decisions for and against admissibility are collected in Annot., 86
A.L.R.2d 326.
Pleas of nolo contendere are recognized by Rule 11 of the Rules of
Criminal Procedure, although the law of numerous States is to the
contrary. The present rule gives effect to the principal traditional
characteristic of the nolo plea, i.e., avoiding the admission of guilt
which is inherent in pleas of guilty. This position is consistent with
the construction of Section 5 of the Clayton Act, 15 U.S.C. 16(a),
recognizing the inconclusive and compromise nature of judgments based on
nolo pleas. General Electric Co. v. City of San Antonio, 334 F.2d 480
(5th Cir. 1964); Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co.,
323 F.2d 412 (7th Cir. 1963), cert. denied 376 U.S. 939, 84 S.Ct. 794,
11 L.Ed.2d 659; Armco Steel Corp. v. North Dakota, 376 F.2d 206 (8th
Cir. 1967); City of Burbank v. General Electric Co. , 329 F.2d 825
(9th Cir. 1964). See also state court decisions in Annot., 18 A.L.R.2d
1287, 1314.
Exclusion of offers to plead guilty or nolo has as its purpose the
promotion of disposition of criminal cases by compromise. As pointed
out in McCormick 251, p. 543
''Effective criminal law administration in many localities would
hardly be possible if a large proportion of the charges were not
disposed of by such compromises.''
See also People v. Hamilton, 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d
412 (1963), discussing legislation designed to achieve this result. As
with compromise offers generally, Rule 408, free communication is
needed, and security against having an offer of compromise or related
statement admitted in evidence effectively encourages it.
Limiting the exclusionary rule to use against the accused is
consistent with the purpose of the rule, since the possibility of use
for or against other persons will not impair the effectiveness of
withdrawing pleas or the freedom of discussion which the rule is
designed to foster. See A.B.A. Standards Relating to Pleas of Guilty
2.2 (1968). See also the narrower provisions of New Jersey Evidence Rule
52(2) and the unlimited exclusion provided in California Evidence Code
1153.
The Committee added the phrase ''Except as otherwise provided by Act
of Congress'' to Rule 410 as submitted by the Court in order to preserve
particular congressional policy judgments as to the effect of a plea of
guilty or of nolo contendere. See 15 U.S.C. 16(a). The Committee
intends that its amendment refers to both present statutes and statutes
subsequently enacted.
As adopted by the House, rule 410 would make inadmissible pleas of
guilty or nolo contendere subsequently withdrawn as well as offers to
make such pleas. Such a rule is clearly justified as a means of
encouraging pleading. However, the House rule would then go on to
render inadmissible for any purpose statements made in connection with
these pleas or offers as well.
The committee finds this aspect of the House rule unjustified. Of
course, in certain circumstances such statements should be excluded.
If, for example, a plea is vitiated because of coercion, statements made
in connection with the plea may also have been coerced and should be
inadmissible on that basis. In other cases, however, voluntary
statements of an accused made in court on the record, in connection with
a plea, and determined by a court to be reliable should be admissible
even though the plea is subsequently withdrawn. This is particularly
true in those cases where, if the House rule were in effect, a defendant
would be able to contradict his previous statements and thereby lie with
impunity (See Harris v. New York, 401 U.S. 222 (1971)). To prevent such
an injustice, the rule has been modified to permit the use of such
statements for the limited purposes of impeachment and in subsequent
perjury or false statement prosecutions.
The House bill provides that evidence of a guilty or nolo contendere
plea, of an offer of either plea, or of statements made in connection
with such pleas or offers of such pleas, is inadmissible in any civil or
criminal action, case or proceeding against the person making such plea
or offer. The Senate amendment makes the rule inapplicable to a
voluntary and reliable statement made in court on the record where the
statement is offered in a subsequent prosecution of the declarant for
perjury or false statement.
The issues raised by Rule 410 are also raised by proposed Rule
11(e)(6) of the Federal Rules of Criminal Procedure presently pending
before Congress. This proposed rule, which deals with the admissibility
of pleas of guilty or nolo contendere, offers to make such pleas, and
statements made in connection with such pleas, was promulgated by the
Supreme Court on April 22, 1974, and in the absence of congressional
action will become effective on August 1, 1975. The conferees intend to
make no change in the presently-existing case law until that date,
leaving the courts free to develop rules in this area on a case-by-case
basis.
The Conferees further determined that the issues presented by the use
of guilty and nolo contendere pleas, offers of such pleas, and
statements made in connection with such pleas or offers, can be explored
in greater detail during Congressional consideration of Rule 11(e)(6) of
the Federal Rules of Criminal Procedure. The Conferees believe,
therefore, that it is best to defer its effective date until August 1,
1975. The Conferees intend that Rule 410 would be superseded by any
subsequent Federal Rule of Criminal Procedure or Act of Congress with
which it is inconsistent, if the Federal Rule of Criminal Procedure or
Act of Congress takes effect or becomes law after the date of the
enactment of the act establishing the rules of evidence.
The conference adopts the Senate amendment with an amendment that
expresses the above intentions.
Pub. L. 94-149 substituted heading reading ''Inadmissibility of
Pleas, Offers of Pleas, and Related Statements'' for ''Offer to Plead
Guilty; Nolo Contendere; Withdrawn Pleas of Guilty''; substituted in
first sentence ''provided in this rule'' for ''provided by Act of
Congress'', inserted therein '', and relevant to,'' following 'in
connection with'', and deleted therefrom ''action, case, or'' preceding
''proceeding''; added second sentence relating to admissibility of
statements in criminal proceedings for perjury or false statements;
deleted former second sentence providing that ''This rule shall not
apply to the introduction of voluntary and reliable statements made in
court on the record in connection with any of the foregoing pleas or
offers where offered for impeachment purposes or in a subsequent
prosecution of the declarant for perjury or false statement.''; and
deleted former second par. providing that ''This rule shall not take
effect until August 1, 1975, and shall be superseded by any amendment to
the Federal Rules of Criminal Procedure which is inconsistent with this
rule, and which takes effect after the date of the enactment of the Act
establishing these Federal Rules of Evidence.''
Present rule 410 conforms to rule 11(e)(6) of the Federal Rules of
Criminal Procedure. A proposed amendment to rule 11(e)(6) would clarify
the circumstances in which pleas, plea discussions and related
statements are inadmissible in evidence; see Advisory Committee Note
thereto. The amendment proposed above would make comparable changes in
rule 410.
Pub. L. 96-42, July 31, 1979, 93 Stat. 326, provided in part that
the effective date of the amendment transmitted to Congress on Apr. 30,
1979, be extended from Aug. 1, 1979, to Dec. 1, 1980.
28 USC Rule 411. Liability Insurance
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Evidence that a person was or was not insured against liability is
not admissible upon the issue whether the person acted negligently or
otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control, or bias or
prejudice of a witness.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1933; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The courts have with substantial unanimity rejected evidence of
liability insurance for the purpose of proving fault, and absence of
liability insurance as proof of lack of fault. At best the inference of
fault from the fact of insurance coverage is a tenuous one, as is its
converse. More important, no doubt, has been the feeling that knowledge
of the presence or absence of liability insurance would induce juries to
decide cases on improper grounds. McCormick 168; Annot., 4 A.L.R.2d
761. The rule is drafted in broad terms so as to include contributory
negligence or other fault of a plaintiff as well as fault of a
defendant.
The second sentence points out the limits of the rule, using well
established illustrations. Id.
For similar rules see Uniform Rule 54; California Evidence Code
1155; Kansas Code of Civil Procedure 60-454; New Jersey Evidence Rule
54.
The amendment is technical. No substantive change is intended.
28 USC Rule 412. Sex Offense Cases; Relevance of Victim's Past
Behavior
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Notwithstanding any other provision of law, in a criminal case in
which a person is accused of an offense under chapter 109A of title 18,
United States Code, reputation or opinion evidence of the past sexual
behavior of an alleged victim of such offense is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in
which a person is accused of an offense under chapter 109A of title 18,
United States Code, evidence of a victim's past sexual behavior other
than reputation or opinion evidence is also not admissible, unless such
evidence other than reputation or opinion evidence is --
(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is
constitutionally required to be admitted; or
(2) admitted in accordance with subdivision (c) and is evidence of --
(A) past sexual behavior with persons other than the accused, offered
by the accused upon the issue of whether the accused was or was not,
with respect to the alleged victim, the source of semen or injury; or
(B) past sexual behavior with the accused and is offered by the
accused upon the issue of whether the alleged victim consented to the
sexual behavior with respect to which such offense is alleged.
(c)(1) If the person accused of committing an offense under chapter
109A of title 18, United States Code /1/ intends to offer under
subdivision (b) evidence of specific instances of the alleged victim's
past sexual behavior, the accused shall make a written motion to offer
such evidence not later than fifteen days before the date on which the
trial in which such evidence is to be offered is scheduled to begin,
except that the court may allow the motion to be made at a later date,
including during trial, if the court determines either that the evidence
is newly discovered and could not have been obtained earlier through the
exercise of due diligence or that the issue to which such evidence
relates has newly arisen in the case. Any motion made under this
paragraph shall be served on all other parties and on the alleged
victim.
(2) The motion described in paragraph (1) shall be accompanied by a
written offer of proof. If the court determines that the offer of proof
contains evidence described in subdivision (b), the court shall order a
hearing in chambers to determine if such evidence is admissible. At
such hearing the parties may call witnesses, including the alleged
victim, and offer relevant evidence. Notwithstanding subdivision (b) of
rule 104, if the relevancy of the evidence which the accused seeks to
offer in the trial depends upon the fulfillment of a condition of fact,
the court, at the hearing in chambers or at a subsequent hearing in
chambers scheduled for such purpose, shall accept evidence on the issue
of whether such condition of fact is fulfilled and shall determine such
issue.
(3) If the court determines on the basis of the hearing described in
paragraph (2) that the evidence which the accused seeks to offer is
relevant and that the probative value of such evidence outweighs the
danger of unfair prejudice, such evidence shall be admissible in the
trial to the extent an order made by the court specifies evidence which
may be offered and areas with respect to which the alleged victim may be
examined or cross-examined.
(d) For purposes of this rule, the term ''past sexual behavior''
means sexual behavior other than the sexual behavior with respect to
which an offense under chapter 109A of title 18, United States Code /1/
is alleged.
(Added Pub. L. 95-540, 2(a), Oct. 28, 1978, 92 Stat. 2046; amended
Pub. L. 100-690, title VII, 7046(a), Nov. 18, 1988, 102 Stat. 4400.)
Pub. L. 100-690, 7046(a)(1), substituted ''Sex Offense'' for
''Rape'' in catchline.
Subd. (a). Pub. L. 100-690, 7046(a)(2), (3), substituted ''an
offense under chapter 109A of title 18, United States Code'' for ''rape
or of assault with intent to commit rate'' and ''such offense'' for
''such rape or assault''.
Subd. (b). Pub. L. 100-690, 7046(a)(2), (5), substituted ''an
offense under chapter 109A of title 18, United States Code'' for ''rape
or of assault with intent to commit rape'' in introductory provisions
and ''such offense'' for ''rape or assault'' in subd. (b)(2)(B).
Subds. (c)(1), (d). Pub. L. 100-690, 7046(a)(4), substituted ''an
offense under chapter 109A of title 18, United States Code'' for ''rape
or assault with intent to commit rape''.
Section 3 of Pub. L. 95-540 provided that: ''The amendments made by
this Act (enacting this rule) shall apply to trials which begin more
than thirty days after the date of the enactment of this Act (Oct. 28,
1978).''
/1/ So in original. Probably should be followed by a comma.
28 USC ARTICLE V. PRIVILEGES
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 501. General Rule
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Except as otherwise required by the Constitution of the United States
or provided by Act of Congress or in rules prescribed by the Supreme
Court pursuant to statutory authority, the privilege of a witness,
person, government, State, or political subdivision thereof shall be
governed by the principles of the common law as they may be interpreted
by the courts of the United States in the light of reason and
experience. However, in civil actions and proceedings, with respect to
an element of a claim or defense as to which State law supplies the rule
of decision, the privilege of a witness, person, government, State, or
political subdivision thereof shall be determined in accordance with
State law.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1933.)
Article V as submitted to Congress contained thirteen Rules. Nine of
those Rules defined specific non-constitutional privileges which the
federal courts must recognize (i.e. required reports, lawyer-client,
psychotherapist-patient, husband-wife, communications to clergymen,
political vote, trade secrets, secrets of state and other official
information, and identity of informer). Another Rule provided that only
those privileges set forth in Article V or in some other Act of Congress
could be recognized by the federal courts. The three remaining Rules
addressed collateral problems as to waiver of privilege by voluntary
disclosure, privileged matter disclosed under compulsion or without
opportunity to claim privilege, comment upon or inference from a claim
of privilege, and jury instruction with regard thereto.
The Committee amended Article V to eliminate all of the Court's
specific Rules on privileges. Instead, the Committee, through a single
Rule, 501, left the law of privileges in its present state and further
provided that privileges shall continue to be developed by the courts of
the United States under a uniform standard applicable both in civil and
criminal cases. That standard, derived from Rule 26 of the Federal
Rules of Criminal Procedure, mandates the application of the principles
of the common law as interpreted by the Courts of the United States in
the light of reason and experience. The words ''person, government,
State, or political subdivision thereof'' were added by the Committee to
the lone term ''witness'' used in Rule 26 to make clear that, as under
present law, not only witnesses may have privileges. The Committee also
included in its amendment a proviso modeled after Rule 302 and similar
to language added by the Committee to Rule 601 relating to the
competency of witnesses. The proviso is designed to require the
application of State privilege law in civil actions and proceedings
governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), a result in
accord with current federal court decisions. See Republic Gear Co. v.
Borg-Warner Corp., 381 F.2d 551, 555-556 n.2 (2nd Cir. 1967). The
Committee deemed the proviso to be necessary in the light of the
Advisory Committee's view (see its note to Court (proposed) Rule 501)
that this result is not mandated under Erie.
The rationale underlying the proviso is that federal law should not
supersede that of the States in substantive areas such as privilege
absent a compelling reason. The Committee believes that in civil cases
in the federal courts where an element of a claim or defense is not
grounded upon a federal question, there is no federal interest strong
enough to justify departure from State policy. In addition, the
Committee considered that the Court's proposed Article V would have
promoted forum shopping in some civil actions, depending upon
differences in the privilege law applied as among the State and federal
courts. The Committee's proviso, on the other hand, under which the
federal courts are bound to apply the State's privilege law in actions
founded upon a State-created right or defense removes the incentive to
''shop''.
Article V as submitted to Congress contained 13 rules. Nine of those
rules defined specific nonconstitutional privileges which the Federal
courts must recognize (i.e., required reports, lawyer-client,
psychotherapist-patient, husband-wife, communications to clergymen,
political vote, trade secrets, secrets of state and other official
information, and identity of informer). Many of these rules contained
controversial modifications or restrictions upon common law privileges.
As noted supra, the House amended article V to eliminate all of the
Court's specific rules on privileges. Through a single rule, 501, the
House provided that privileges shall be governed by the principles of
the common law as interpreted by the courts of the United States in the
light of reason and experience (a standard derived from rule 26 of the
Federal Rules of Criminal Procedure) except in the case of an element of
a civil claim or defense as to which State law supplies the rule of
decision, in which event state privilege law was to govern.
The committee agrees with the main thrust of the House amendment:
that a federally developed common law based on modern reason and
experience shall apply except where the State nature of the issues
renders deference to State privilege law the wiser course, as in the
usual diversity case. The committee understands that thrust of the
House amendment to require that State privilege law be applied in
''diversity'' cases (actions on questions of State law between citizens
of different States arising under 28 U.S.C. 1332). The language of the
House amendment, however, goes beyond this in some respects, and falls
short of it in others: State privilege law applies even in
nondiversity. Federal question civil cases, where an issue governed by
State substantive law is the object of the evidence (such issues do
sometimes arise in such cases); and, in all instances where State
privilege law is to be applied, e.g., on proof of a State issue in a
diversity case, a close reading reveals that State privilege law is not
to be applied unless the matter to be proved is an element of that state
claim or defense, as distinguished from a step along the way in the
proof of it.
The committee is concerned that the language used in the House
amendment could be difficult to apply. It provides that ''in civil
actions * * * with respect to an element of a claim or defense as to
which State law supplies the rule of decision,'' State law on privilege
applies. The question of what is an element of a claim or defense is
likely to engender considerable litigation. If the matter in question
constitutes an element of a claim, State law supplies the privilege
rule; whereas if it is a mere item of proof with respect to a claim,
then, even though State law might supply the rule of decision, Federal
law on the privilege would apply. Further, disputes will arise as to
how the rule should be applied in an antitrust action or in a tax case
where the Federal statute is silent as to a particular aspect of the
substantive law in question, but Federal cases had incorporated State
law by reference to State law. (For a discussion of reference to State
substantive law, see note on Federal Incorporation by Reference of State
Law, Hart & Wechsler, The Federal Courts and the Federal System, pp.
491-494 (2d ed. 1973).) Is a claim (or defense) based on such a
reference a claim or defense as to which federal or State law supplies
the rule of decision?
Another problem not entirely avoidable is the complexity or
difficulty the rule introduces into the trial of a Federal case
containing a combination of Federal and State claims and defenses, e.g.
an action involving Federal antitrust and State unfair competition
claims. Two different bodies of privilege law would need to be
consulted. It may even develop that the same witness-testimony might be
relevant on both counts and privileged as to one but not the other.
(The problems with the House formulation are discussed in Rothstein, The
Proposed Amendments to the Federal Rules of Evidence, 62 Georgetown
University Law Journal 125 (1973) at notes 25, 26 and 70-74 and
accompanying text.)
The formulation adopted by the House is pregnant with litigious
mischief. The committee has, therefore, adopted what we believe will be
a clearer and more practical guideline for determining when courts
should respect State rules of privilege. Basically, it provides that in
criminal and Federal question civil cases, federally evolved rules on
privilege should apply since it is Federal policy which is being
enforced. (It is also intended that the Federal law of privileges
should be applied with respect to pendant State law claims when they
arise in a Federal question case.) Conversely, in diversity cases where
the litigation in question turns on a substantive question of State law,
and is brought in the Federal courts because the parties reside in
different States, the committee believes it is clear that State rules of
privilege should apply unless the proof is directed at a claim or
defense for which Federal law supplies the rule of decision (a situation
which would not commonly arise.) (While such a situation might require
use of two bodies of privilege law, federal and state, in the same case,
nevertheless the occasions on which this would be required are
considerably reduced as compared with the House version, and confined to
situations where the Federal and State interests are such as to justify
application of neither privilege law to the case as a whole. If the rule
proposed here results in two conflicting bodies of privilege law
applying to the same piece of evidence in the same case, it is
contemplated that the rule favoring reception of the evidence should be
applied. This policy is based on the present rule 43(a) of the Federal
Rules of Civil Procedure which provides:
In any case, the statute or rule which favors the reception of the
evidence governs and the evidence shall be presented according to the
most convenient method prescribed in any of the statutes or rules to
which reference is herein made.) It is intended that the State rules of
privilege should apply equally in original diversity actions and
diversity actions removed under 28 U.S.C. 1441(b).
Two other comments on the privilege rule should be made. The
committee has received a considerable volume of correspondence from
psychiatric organizations and psychiatrists concerning the deletion of
rule 504 of the rule submitted by the Supreme Court. It should be
clearly understood that, in approving this general rule as to
privileges, the action of Congress should not be understood as
disapproving any recognition of a psychiatrist-patient, or husband-wife,
or any other of the enumerated privileges contained in the Supreme Court
rules. Rather, our action should be understood as reflecting the view
that the recognition of a privilege based on a confidential relationship
and other privileges should be determined on a case-by-case basis.
Further, we would understand that the prohibition against spouses
testifying against each other is considered a rule of privilege and
covered by this rule and not by rule 601 of the competency of witnesses.
Rule 501 deals with the privilege of a witness not to testify. Both
the House and Senate bills provide that federal privilege law applies in
criminal cases. In civil actions and proceedings, the House bill
provides that state privilege law applies ''to an element of a claim or
defense as to which State law supplies the rule of decision.'' The
Senate bill provides that ''in civil actions and proceedings arising
under 28 U.S.C. 1332 or 28 U.S.C. 1335, or between citizens of
different States and removed under 28 U.S.C. 1441(b) the privilege of
a witness, person, government, State or political subdivision thereof is
determined in accordance with State law, unless with respect to the
particular claim or defense, Federal law supplies the rule of
decision.''
The wording of the House and Senate bills differs in the treatment of
civil actions and proceedings. The rule in the House bill applies to
evidence that relates to ''an element of a claim or defense.'' If an
item of proof tends to support or defeat a claim or defense, or an
element of a claim or defense, and if state law supplies the rule of
decision for that claim or defense, then state privilege law applies to
that item of proof.
Under the provision in the House bill, therefore, state privilege law
will usually apply in diversity cases. There may be diversity cases,
however, where a claim or defense is based upon federal law. In such
instances, Federal privilege law will apply to evidence relevant to the
federal claim or defense. See Sola Electric Co. v. Jefferson Electric
Co., 317 U.S. 173 (1942).
In nondiversity jurisdiction civil cases, federal privilege law will
generally apply. In those situations where a federal court adopts or
incorporates state law to fill interstices or gaps in federal statutory
phrases, the court generally will apply federal privilege law. As
Justice Jackson has said:
A federal court sitting in a non-diversity case such as this does not
sit as a local tribunal. In some cases it may see fit for special
reasons to give the law of a particular state highly persuasive or even
controlling effect, but in the last analysis its decision turns upon the
law of the United States, not that of any state.
D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp. , 315 U.S.
447, 471 (1942) (Jackson, J., concurring). When a federal court chooses
to absorb state law, it is applying the state law as a matter of federal
common law. Thus, state law does not supply the rule of decision (even
though the federal court may apply a rule derived from state decisions),
and state privilege law would not apply. See C. A. Wright, Federal
Courts 251-252 (2d ed. 1970); Holmberg v. Armbrecht, 327 U.S. 392
(1946); DeSylva v. Ballentine, 351 U.S. 570, 581 (1956); 9 Wright &
Miller, Federal Rules and Procedure 2408.
In civil actions and proceedings, where the rule of decision as to a
claim or defense or as to an element of a claim or defense is supplied
by state law, the House provision requires that state privilege law
apply.
The Conference adopts the House provision.
28 USC ARTICLE VI. WITNESSES
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 601. General Rule of Competency
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Every person is competent to be a witness except as otherwise
provided in these rules. However, in civil actions and proceedings,
with respect to an element of a claim or defense as to which State law
supplies the rule of decision, the competency of a witness shall be
determined in accordance with State law.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934.)
This general ground-clearing eliminates all grounds of incompetency
not specifically recognized in the succeeding rules of this Article.
Included among the grounds thus abolished are religious belief,
conviction of crime, and connection with the litigation as a party or
interested person or spouse of a party or interested person. With the
exception of the so-called Dead Man's Acts, American jurisdictions
generally have ceased to recognize these grounds.
The Dead Man's Acts are surviving traces of the common law
disqualification of parties and interested persons. They exist in
variety too great to convey conviction of their wisdom and
effectiveness. These rules contain no provision of this kind. For the
reasoning underlying the decision not to give effect to state statutes
in diversity cases, see the Advisory Committee's Note to Rule 501.
No mental or moral qualifications for testifying as a witness are
specified. Standards of mental capacity have proved elusive in actual
application. A leading commentator observes that few witnesses are
disqualified on that ground. Weihofen, Testimonial Competence and
Credibility, 34 Geo. Wash.L.Rev. 53 (1965). Discretion is regularly
exercised in favor of allowing the testimony. A witness wholly without
capacity is difficult to imagine. The question is one particularly
suited to the jury as one of weight and credibility, subject to judicial
authority to review the sufficiency of the evidence. 2 Wigmore 501,
509. Standards of moral qualification in practice consist essentially
of evaluating a person's truthfulness in terms of his own answers about
it. Their principal utility is in affording an opportunity on voir dire
examination to impress upon the witness his moral duty. This result
may, however, be accomplished more directly, and without haggling in
terms of legal standards, by the manner of administering the oath or
affirmation under Rule 603.
Admissibility of religious belief as a ground of impeachment is
treated in Rule 610. Conviction of crime as a ground of impeachment is
the subject of Rule 609. Marital relationship is the basis for
privilege under Rule 505. Interest in the outcome of litigation and
mental capacity are, of course, highly relevant to credibility and
require no special treatment to render them admissible along with other
matters bearing upon the perception, memory, and narration of witnesses.
Rule 601 as submitted to the Congress provided that ''Every person is
competent to be a witness except as otherwise provided in these rules.''
One effect of the Rule as proposed would have been to abolish age,
mental capacity, and other grounds recognized in some State
jurisdictions as making a person incompetent as a witness. The greatest
controversy centered around the Rule's rendering inapplicable in the
federal courts the so-called Dead Man's Statutes which exist in some
States. Acknowledging that there is substantial disagreement as to the
merit of Dead Man's Statutes, the Committee nevertheless believed that
where such statutes have been enacted they represent State policy which
should not be overturned in the absence of a compelling federal
interest. The Committee therefore amended the Rule to make competency
in civil actions determinable in accordance with State law with respect
to elements of claims or defenses as to which State law supplies the
rule of decision. Cf. Courtland v. Walston & Co., Inc., 340 F.Supp.
1076, 1087-1092 (S.D.N.Y. 1972).
The amendment to rule 601 parallels the treatment accorded rule 501
discussed immediately above.
Rule 601 deals with competency of witnesses. Both the House and
Senate bills provide that federal competency law applies in criminal
cases. In civil actions and proceedings, the House bill provides that
state competency law applies ''to an element of a claim or defense as to
which State law supplies the rule of decision.'' The Senate bill
provides that ''in civil actions and proceedings arising under 28 U.S.C.
1332 or 28 U.S.C. 1335, or between citizens of different States and
removed under 28 U.S.C. 1441(b) the competency of a witness, person,
government, State or political subdivision thereof is determined in
accordance with State law, unless with respect to the particular claim
or defense, Federal law supplies the rule of decision.''
The wording of the House and Senate bills differs in the treatment of
civil actions and proceedings. The rule in the House bill applies to
evidence that relates to ''an element of a claim or defense.'' If an
item of proof tends to support or defeat a claim or defense, or an
element of a claim or defense, and if state law supplies the rule of
decision for that claim or defense, then state competency law applies to
that item of proof.
For reasons similar to those underlying its action on Rule 501, the
Conference adopts the House provision.
28 USC Rule 602. Lack of Personal Knowledge
TITLE 28, APPENDIX -- RULES OF EVIDENCE
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness' own testimony. This rule is subject to the
provisions of rule 703, relating to opinion testimony by expert
witnesses.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)
''* * * (T)he rule requiring that a witness who testifies to a fact
which can be perceived by the senses must have had an opportunity to
observe, and must have actually observed the fact'' is a ''most
pervasive manifestation'' of the common law insistence upon ''the most
reliable sources of information.'' McCormick 10, p. 19. These
foundation requirements may, of course, be furnished by the testimony of
the witness himself; hence personal knowledge is not an absolute but
may consist of what the witness thinks he knows from personal
perception. 2 Wigmore 650. It will be observed that the rule is in
fact a specialized application of the provisions of Rule 104(b) on
conditional relevancy.
This rule does not govern the situation of a witness who testifies to
a hearsay statement as such, if he has personal knowledge of the making
of the statement. Rules 801 and 805 would be applicable. This rule
would, however, prevent him from testifying to the subject matter of the
hearsay statement, as he has no personal knowledge of it.
The reference to Rule 703 is designed to avoid any question of
conflict between the present rule and the provisions of that rule
allowing an expert to express opinions based on facts of which he does
not have personal knowledge.
The amendments are technical. No substantive change is intended.
The amendment is technical. No substantive change is intended.
28 USC Rule 603. Oath or Affirmation
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Before testifying, every witness shall be required to declare that
the witness will testify truthfully, by oath or affirmation administered
in a form calculated to awaken the witness' conscience and impress the
witness' mind with the duty to do so.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The rule is designed to afford the flexibility required in dealing
with religious adults, atheists, conscientious objectors, mental
defectives, and children. Affirmation is simply a solemn undertaking to
tell the truth; no special verbal formula is required. As is true
generally, affirmation is recognized by federal law. ''Oath'' includes
affirmation, 1 U.S.C. 1; judges and clerks may administer oaths and
affirmations, 28 U.S.C. 459, 953; and affirmations are acceptable in
lieu of oaths under Rule 43(d) of the Federal Rules of Civil Procedure.
Perjury by a witness is a crime, 18 U.S.C. 1621.
The amendments are technical. No substantive change is intended.
28 USC Rule 604. Interpreters
TITLE 28, APPENDIX -- RULES OF EVIDENCE
An interpreter is subject to the provisions of these rules relating
to qualification as an expert and the administration of an oath or
affirmation to make a true translation.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The rule implements Rule 43(f) of the Federal Rules of Civil
Procedure and Rule 28(b) of the Federal Rules of Criminal Procedure,
both of which contain provisions for the appointment and compensation of
interpreters.
The amendment is technical. No substantive change is intended.
28 USC Rule 605. Competency of Judge as Witness
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The judge presiding at the trial may not testify in that trial as a
witness. No objection need be made in order to preserve the point.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934.)
In view of the mandate of 28 U.S.C. 455 that a judge disqualify
himself in ''any case in which he * * * is or has been a material
witness,'' the likelihood that the presiding judge in a federal court
might be called to testify in the trial over which he is presiding is
slight. Nevertheless the possibility is not totally eliminated.
The solution here presented is a broad rule of incompetency, rather
than such alternatives as incompetency only as to material matters,
leaving the matter to the discretion of the judge, or recognizing no
incompetency. The choice is the result of inability to evolve
satisfactory answers to questions which arise when the judge abandons
the bench for the witness stand. Who rules on objections? Who compels
him to answer? Can he rule impartially on the weight and admissibility
of his own testimony? Can he be impeached or cross-examined
effectively? Can he, in a jury trial, avoid conferring his seal of
approval on one side in the eyes of the jury? Can he, in a bench trial,
avoid an involvement destructive of impartiality? The rule of general
incompetency has substantial support. See Report of the Special
Committee on the Propriety of Judges Appearing as Witnesses, 36 A.B.A.J.
630 (1950); cases collected in Annot. 157 A.L.R. 311; McCormick 68,
p. 147; Uniform Rule 42; California Evidence Code 703; Kansas Code
of Civil Procedure 60-442; New Jersey Evidence Rule 42. Cf. 6 Wigmore
1909, which advocates leaving the matter to the discretion of the
judge, and statutes to that effect collected in Annot. 157 A.L.R. 311.
The rule provides an ''automatic'' objection. To require an actual
objection would confront the opponent with a choice between not
objecting, with the result of allowing the testimony, and objecting,
with the probable result of excluding the testimony but at the price of
continuing the trial before a judge likely to feel that his integrity
had been attacked by the objector.
28 USC Rule 606. Competency of Juror as Witness
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) At the trial. -- A member of the jury may not testify as a
witness before that jury in the trial of the case in which the juror is
sitting. If the juror is called so to testify, the opposing party shall
be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment. -- Upon an
inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the
jury's deliberations or to the effect of anything upon that or any other
juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's mental
processes in connection therewith, except that a juror may testify on
the question whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a juror's affidavit
or evidence of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be received for these
purposes.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934; Pub. L. 94-149,
1(10), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987.)
Subdivision (a). The considerations which bear upon the
permissibility of testimony by a juror in the trial in which he is
sitting as juror bear an obvious similarity to those evoked when the
judge is called as a witness. See Advisory Committee's Note to Rule
605. The judge is not, however in this instance so involved as to call
for departure from usual principles requiring objection to be made;
hence the only provision on objection is that opportunity be afforded
for its making out of the presence of the jury. Compare Rules 605.
Subdivision (b). Whether testimony, affidavits, or statements of
jurors should be received for the purpose of invalidating or supporting
a verdict or indictment, and if so, under what circumstances, has given
rise to substantial differences of opinion. The familiar rubric that a
juror may not impeach his own verdict, dating from Lord Mansfield's
time, is a gross oversimplification. The values sought to be promoted
by excluding the evidence include freedom of deliberation, stability and
finality of verdicts, and protection of jurors against annoyance and
embarrassment. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 785, 59 L.Ed.
1300 (1915). On the other hand, simply putting verdicts beyond
effective reach can only promote irregularity and injustice. The rule
offers an accommodation between these competing considerations.
The mental operations and emotional reactions of jurors in arriving
at a given result would, if allowed as a subject of inquiry, place every
verdict at the mercy of jurors and invite tampering and harassment. See
Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964). The authorities are in
virtually complete accord in excluding the evidence. Fryer, Note on
Disqualification of Witnesses, Selected Writings on Evidence and Trial
345, 347 (Fryer ed. 1957); Maguire, Weinstein, et al., Cases on
Evidence 887 (5th ed. 1965); 8 Wigmore 2340 (McNaughton Rev. 1961). As
to matters other than mental operations and emotional reactions of
jurors, substantial authority refuses to allow a juror to disclose
irregularities which occur in the jury room, but allows his testimony as
to irregularities occurring outside and allows outsiders to testify as
to occurrences both inside and out. 8 Wigmore 2354 (McNaughton Rev.
1961). However, the door of the jury room is not necessarily a
satisfactory dividing point, and the Supreme Court has refused to accept
it for every situation. Mattox v. United States, 146 U.S. 140, 13
S.Ct. 50, 36 L.Ed. 917 (1892).
Under the federal decisions the central focus has been upon
insulation of the manner in which the jury reached its verdict, and this
protection extends to each of the components of deliberation, including
arguments, statements, discussions, mental and emotional reactions,
votes, and any other feature of the process. Thus testimony or
affidavits of jurors have been held incompetent to show a compromise
verdict, Hyde v. United States, 225 U.S. 347, 382 (1912); a quotient
verdict, McDonald v. Pless, 238 U.S. 264 (1915); speculation as to
insurance coverage, Holden v. Porter, 495 F.2d 878 (10th Cir.1969),
Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir.
1967), cert. denied 389 U.S. 1014; misinterpretations of instructions,
Farmers Coop. Elev. Ass'n v. Strand, supra; mistake in returning
verdict, United States v. Chereton, 309 F.2d 197 (6th Cir. 1962);
interpretation of guilty plea by one defendant as implicating others,
United States v. Crosby, 294 F.2d 928, 949 (2d Cir. 1961). The policy
does not, however, foreclose testimony by jurors as to prejudicial
extraneous information or influences injected into or brought to bear
upon the deliberative process. Thus a juror is recognized as competent
to testify to statements by the bailiff or the introduction of a
prejudicial newspaper account into the jury room, Mattox v. United
States, 146 U.S. 140 (1892). See also Parker v. Gladden, 385 U.S. 363
(1966).
This rule does not purport to specify the substantive grounds for
setting aside verdicts for irregularity; it deals only with the
competency of jurors to testify concerning those grounds. Allowing them
to testify as to matters other than their own inner reactions involves
no particular hazard to the values sought to be protected. The rules is
based upon this conclusion. It makes no attempt to specify the
substantive grounds for setting aside verdicts for irregularity.
See also Rule 6(e) of the Federal Rules of Criminal Procedure and 18
U.S.C. 3500, governing the secrecy of grand jury proceedings. The
present rules does not relate to secrecy and disclosure but to the
competency of certain witnesses and evidence.
As proposed by the Court, Rule 606(b) limited testimony by a juror in
the course of an inquiry into the validity of a verdict or indictment.
He could testify as to the influence of extraneous prejudicial
information brought to the jury's attention (e.g. a radio newscast or a
newspaper account) or an outside influence which improperly had been
brought to bear upon a juror (e.g. a threat to the safety of a member of
his family), but he could not testify as to other irregularities which
occurred in the jury room. Under this formulation a quotient verdict
could not be attacked through the testimony of a juror, nor could a
juror testify to the drunken condition of a fellow juror which so
disabled him that he could not participate in the jury's deliberations.
The 1969 and 1971 Advisory Committee drafts would have permitted a
member of the jury to testify concerning these kinds of irregularities
in the jury room. The Advisory Committee note in the 1971 draft stated
that ''* * * the door of the jury room is not a satisfactory dividing
point, and the Supreme Court has refused to accept it.'' The Advisory
Committee further commented that --
The trend has been to draw the dividing line between testimony as to
mental processes, on the one hand, and as to the existence of conditions
or occurrences of events calculated improperly to influence the verdict,
on the other hand, without regard to whether the happening is within or
without the jury room. * * * The jurors are the persons who know what
really happened. Allowing them to testify as to matters other than
their own reactions involves no particular hazard to the values sought
to be protected. The rule is based upon this conclusion. It makes no
attempt to specify the substantive grounds for setting aside verdicts
for irregularity.
Objective jury misconduct may be testified to in California, Florida,
Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon,
Tennessee, Texas, and Washington.
Persuaded that the better practice is that provided for in the
earlier drafts, the Committee amended subdivision (b) to read in the
text of those drafts.
As adopted by the House, this rule would permit the impeachment of
verdicts by inquiry into, not the mental processes of the jurors, but
what happened in terms of conduct in the jury room. This extension of
the ability to impeach a verdict is felt to be unwarranted and
ill-advised.
The rule passed by the House embodies a suggestion by the Advisory
Committee of the Judicial Conference that is considerably broader than
the final version adopted by the Supreme Court, which embodies
long-accepted Federal law. Although forbidding the impeachment of
verdicts by inquiry into the jurors' mental processes, it deletes from
the Supreme Court version the proscription against testimony ''as to any
matter or statement occurring during the course of the jury's
deliberations.'' This deletion would have the effect of opening verdicts
up to challenge on the basis of what happened during the jury's internal
deliberations, for example, where a juror alleged that the jury refused
to follow the trial judge's instructions or that some of the jurors did
not take part in deliberations.
Permitting an individual to attack a jury verdict based upon the
jury's internal deliberations has long been recognized as unwise by the
Supreme Court. In McDonald v. Pless, the Court stated:
(L)et it once be established that verdicts solemnly made and publicly
returned into court can be attacked and set aside on the testimony of
those who took part in their publication and all verdicts could be, and
many would be, followed by an inquiry in the hope of discovering
something which might invalidate the finding. Jurors would be harassed
and beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct sufficient to set
aside a verdict. If evidence thus secured could be thus used, the
result would be to make what was intended to be a private deliberation,
the constant subject of public investigation -- to the destruction of
all frankness and freedom of discussion and conference (238 U.S. 264, at
267 (1914)).
As it stands then, the rule would permit the harassment of former
jurors by losing parties as well as the possible exploitation of
disgruntled or otherwise badly-motivated ex-jurors.
Public policy requires a finality to litigation. And common fairness
requires that absolute privacy be preserved for jurors to engage in the
full and free debate necessary to the attainment of just verdicts.
Jurors will not be able to function effectively if their deliberations
are to be scrutinized in post-trial litigation. In the interest of
protecting the jury system and the citizens who make it work, rule 606
should not permit any inquiry into the internal deliberations of the
jurors.
Rule 606(b) deals with juror testimony in an inquiry into the
validity of a verdict or indictment. The House bill provides that a
juror cannot testify about his mental processes or about the effect of
anything upon his or another juror's mind as influencing him to assent
to or dissent from a verdict or indictment. Thus, the House bill allows
a juror to testify about objective matters occurring during the jury's
deliberation, such as the misconduct of another juror or the reaching of
a quotient verdict. The Senate bill does not permit juror testimony
about any matter or statement occurring during the course of the jury's
deliberations. The Senate bill does provide, however, that a juror may
testify on the question whether extraneous prejudicial information was
improperly brought to the jury's attention and on the question whether
any outside influence was improperly brought to bear on any juror.
The Conference adopts the Senate amendment. The Conferees believe
that jurors should be encouraged to be conscientious in promptly
reporting to the court misconduct that occurs during jury deliberations.
The amendments are technical. No substantive change is intended.
Subd. (b). Pub. L. 94-149 substituted ''which'' for ''what'' in last
sentence.
28 USC Rule 607. Who May Impeach
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The credibility of a witness may be attacked by any party, including
the party calling the witness.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The traditional rule against impeaching one's own witness is
abandoned as based on false premises. A party does not hold out his
witnesses as worthy of belief, since he rarely has a free choice in
selecting them. Denial of the right leaves the party at the mercy of
the witness and the adversary. If the impeachment is by a prior
statement, it is free from hearsay dangers and is excluded from the
category of hearsay under Rule 801(d)(1). Ladd, Impeachment of One's
Own Witness -- New Developments 4 U.Chi.L.Rev. 69 (1936); McCormick
38; 3 Wigmore 896-918. The substantial inroads into the old rule
made over the years by decisions, rules, and statutes are evidence of
doubts as to its basic soundness and workability. Cases are collected
in 3 Wigmore 905. Revised Rule 32(a)(1) of the Federal Rules of Civil
Procedure allows any party to impeach a witness by means of his
deposition, and Rule 43(b) has allowed the calling and impeachment of an
adverse party or person identified with him. Illustrative statutes
allowing a party to impeach his own witness under varying circumstances
are Ill.Rev. Stats.1967, c. 110, 60; Mass.Laws Annot. 1959, c. 233
23; 20 N.M.Stats. Annot. 1953, 20-2-4; N.Y. CPLR 4514 (McKinney
1963); 12 Vt.Stats. Annot. 1959, 1641a, 1642. Complete judicial
rejection of the old rule is found in United States v. Freeman, 302
F.2d 347 (2d Cir. 1962). The same result is reached in Uniform Rule 20;
California Evidence Code 785; Kansas Code of Civil Procedure 60-420.
See also New Jersey Evidence Rule 20.
The amendment is technical. No substantive change is intended.
28 USC Rule 608. Evidence of Character and Conduct of Witness
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Opinion and reputation evidence of character. -- The credibility
of a witness may be attacked or supported by evidence in the form of
opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness,
and (2) evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
(b) Specific instances of conduct. -- Specific instances of the
conduct of a witness, for the purpose of attacking or supporting the
witness' credibility, other than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthfulness,
be inquired into on cross-examination of the witness (1) concerning the
witness' character for truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of another witness as
to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of the accused's or the witness'
privilege against self-incrimination when examined with respect to
matters which relate only to credibility.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)
Subdivision (a). In Rule 404(a) the general position is taken that
character evidence is not admissible for the purpose of proving that the
person acted in conformity therewith, subject, however, to several
exceptions, one of which is character evidence of a witness as bearing
upon his credibility. The present rule develops that exception.
In accordance with the bulk of judicial authority, the inquiry is
strictly limited to character for veracity, rather than allowing
evidence as to character generally. The result is to sharpen relevancy,
to reduce surprise, waste of time, and confusion, and to make the lot of
the witness somewhat less unattractive. McCormick 44.
The use of opinion and reputation evidence as means of proving the
character of witnesses is consistent with Rule 405(a). While the modern
practice has purported to exclude opinion witnesses who testify to
reputation seem in fact often to be giving their opinions, disguised
somewhat misleadingly as reputation. See McCormick 44. And even under
the modern practice, a common relaxation has allowed inquiry as to
whether the witnesses would believe the principal witness under oath.
United States v. Walker, 313 F.2d 236 (6th Cir. 1963), and cases cited
therein; McCormick 44, pp. 94-95, n. 3.
Character evidence in support of credibility is admissible under the
rule only after the witness' character has first been attacked, as has
been the case at common law. Maguire, Weinstein, et al., Cases on
Evidence 295 (5th ed. 1965); McCormick 49, p. 105; 4 Wigmore 1104.
The enormous needless consumption of time which a contrary practice
would entail justifies the limitation. Opinion or reputation that the
witness is untruthful specifically qualifies as an attack under the
rule, and evidence or misconduct, including conviction of crime, and of
corruption also fall within this category. Evidence of bias or interest
does not. McCormick 49; 4 Wigmore 1106, 1107. Whether evidence in
the form of contradiction is an attack upon the character of the witness
must depend 1108, 1109.
As to the use of specific instances on direct by an opinion witness,
see the Advisory Committee's Note to Rule 405, supra.
Subdivision (b). In conformity with Rule 405, which forecloses use
of evidence of specific incidents as proof in chief of character unless
character is an issue in the case, the present rule generally bars
evidence of specific instances of conduct of a witness for the purpose
of attacking or supporting his credibility. There are, however, two
exceptions: (1) specific instances are provable when they have been the
subject of criminal conviction, and (2) specific instances may be
inquired into on cross-examination of the principal witness or of a
witness giving an opinion of his character for truthfulness.
(1) Conviction of crime as a technique of impeachment is treated in
detail in Rule 609, and here is merely recognized as an exception to the
general rule excluding evidence of specific incidents for impeachment
purposes.
(2) Particular instances of conduct, though not the subject of
criminal conviction, may be inquired into on cross-examination of the
principal witness himself or of a witness who testifies concerning his
character for truthfulness. Effective cross-examination demands that
some allowance be made for going into matters of this kind, but the
possibilities of abuse are substantial. Consequently safeguards are
erected in the form of specific requirements that the instances inquired
into be probative of truthfulness or its opposite and not remote in
time. Also, the overriding protection of Rule 403 requires that
probative value not be outweighed by danger of unfair prejudice,
confusion of issues, or misleading the jury, and that of Rule 611 bars
harassment and undue embarrassment.
The final sentence constitutes a rejection of the doctrine of such
cases as People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950), that any
past criminal act relevant to credibility may be inquired into on
cross-examination, in apparent disregard of the privilege against
self-incrimination. While it is clear that an ordinary witness cannot
make a partial disclosure of incriminating matter and then invoke the
privilege on cross-examination, no tenable contention can be made that
merely by testifying he waives his right to foreclose inquiry on
cross-examination into criminal activities for the purpose of attacking
his credibility. So to hold would reduce the privilege to a nullity.
While it is true that an accused, unlike an ordinary witness, has an
option whether to testify, if the option can be exercised only at the
price of opening up inquiry as to any and all criminal acts committed
during his lifetime, the right to testify could scarcely be said to
possess much vitality. In Griffin v. California, 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Court held that allowing comment
on the election of an accused not to testify exacted a constitutionally
impermissible price, and so here. While no specific provision in terms
confers constitutional status on the right of an accused to take the
stand in his own defense, the existence of the right is so completely
recognized that a denial of it or substantial infringement upon it would
surely be of due process dimensions. See Ferguson v. Georgia, 365 U.S.
570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961); McCormick 131; 8 Wigmore
2276 (McNaughton Rev. 1961). In any event, wholly aside from
constitutional considerations, the provision represents a sound policy.
Rule 608(a) as submitted by the Court permitted attack to be made
upon the character for truthfulness or untruthfulness of a witness
either by reputation or opinion testimony. For the same reasons
underlying its decision to eliminate the admissibility of opinion
testimony in Rule 405(a), the Committee amended Rule 608(a) to delete
the reference to opinion testimony.
The second sentence of Rule 608(b) as submitted by the Court
permitted specific instances of misconduct of a witness to be inquired
into on cross-examination for the purpose of attacking his credibility,
if probative of truthfulness or untruthfulness, ''and not remote in
time''. Such cross-examination could be of the witness himself or of
another witness who testifies as to ''his'' character for truthfulness
or untruthfulness.
The Committee amended the Rule to emphasize the discretionary power
of the court in permitting such testimony and deleted the reference to
remoteness in time as being unnecessary and confusing (remoteness from
time of trial or remoteness from the incident involved?). As recast, the
Committee amendment also makes clear the antecedent of ''his'' in the
original Court proposal.
The Senate amendment adds the words ''opinion or'' to conform the
first sentence of the rule with the remainder of the rule.
The Conference adopts the Senate amendment.
The amendments are technical. No substantive change is intended.
The amendment is technical. No substantive change is intended.
28 USC Rule 609. Impeachment by Evidence of Conviction of Crime
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) General rule. -- For the purpose of attacking the credibility of
a witness,
(1) evidence that a witness other than an accused has been convicted
of a crime shall be admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the law
under which the witness was convicted, and evidence that an accused has
been convicted of such a crime shall be admitted if the court determines
that the probative value of admitting this evidence outweighs its
prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be
admitted if it involved dishonesty or false statement, regardless of the
punishment.
(b) Time limit. -- Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the date
of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the
court determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However, evidence of a
conviction more than 10 years old as calculated herein, is not
admissible unless the proponent gives to the adverse party sufficient
advance written notice of intent to use such evidence to provide the
adverse party with a fair opportunity to contest the use of such
evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
-- Evidence of a conviction is not admissible under this rule if (1) the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been
convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the
subject of a pardon, annulment, or other equivalent procedure based on a
finding of innocence.
(d) Juvenile adjudications. -- Evidence of juvenile adjudications is
generally not admissible under this rule. The court may, however, in a
criminal case allow evidence of a juvenile adjudication of a witness
other than the accused if conviction of the offense would be admissible
to attack the credibility of an adult and the court is satisfied that
admission in evidence is necessary for a fair determination of the issue
of guilt or innocence.
(e) Pendency of appeal. -- The pendency of an appeal therefrom does
not render evidence of a conviction inadmissible. Evidence of the
pendency of an appeal is admissible.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987, eff.
Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990.)
As a means of impeachment, evidence of conviction of crime is
significant only because it stands as proof of the commission of the
underlying criminal act. There is little dissent from the general
proposition that at least some crimes are relevant to credibility but
much disagreement among the cases and commentators about which crimes
are usable for this purpose. See McCormick 43; 2 Wright, Federal
Practice and Procedure; Criminal 416 (1969). The weight of
traditional authority has been to allow use of felonies generally,
without regard to the nature of the particular offense, and of crimen
falsi without regard to the grade of the offense. This is the view
accepted by Congress in the 1970 amendment of 14-305 of the District of
Columbia Code, P.L. 91-358, 84 Stat. 473. Uniform Rule 21 and Model
Code Rule 106 permit only crimes involving ''dishonesty or false
statement.'' Others have thought that the trial judge should have
discretion to exclude convictions if the probative value of the evidence
of the crime is substantially outweighed by the danger of unfair
prejudice. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763
(1965); McGowan, Impeachment of Criminal Defendants by Prior
Convictions, 1970 Law & Soc. Order 1. Whatever may be the merits of
those views, this rule is drafted to accord with the Congressional
policy manifested in the 1970 legislation.
The proposed rule incorporates certain basic safeguards, in terms
applicable to all witnesses but of particular significance to an accused
who elects to testify. These protections include the imposition of
definite time limitations, giving effect to demonstrated rehabilitation,
and generally excluding juvenile adjudications.
Subdivision (a). For purposes of impeachment, crimes are divided
into two categories by the rule: (1) those of what is generally
regarded as felony grade, without particular regard to the nature of the
offense, and (2) those involving dishonesty or false statement, without
regard to the grade of the offense. Provable convictions are not
limited to violations of federal law. By reason of our constitutional
structure, the federal catalog of crimes is far from being a complete
one, and resort must be had to the laws of the states for the
specification of many crimes. For example, simple theft as compared
with theft from interstate commerce. Other instances of borrowing are
the Assimilative Crimes Act, making the state law of crimes applicable
to the special territorial and maritime jurisdiction of the United
States, 18 U.S.C. 13, and the provision of the Judicial Code
disqualifying persons as jurors on the grounds of state as well as
federal convictions, 28 U.S.C. 1865. For evaluation of the crime in
terms of seriousness, reference is made to the congressional measurement
of felony (subject to imprisonment in excess of one year) rather than
adopting state definitions which vary considerably. See 28 U.S.C.
1865, supra, disqualifying jurors for conviction in state or federal
court of crime punishable by imprisonment for more than one year.
Subdivision (b). Few statutes recognize a time limit on impeachment
by evidence of conviction. However, practical considerations of
fairness and relevancy demand that some boundary be recognized. See
Ladd, Credibility Tests -- Current Trends, 89 U.Pa.L.Rev. 166, 176-177
(1940). This portion of the rule is derived from the proposal advanced
in Recommendation Proposing in Evidence Code, 788(5), p. 142, Cal.Law
Rev.Comm'n (1965), though not adopted. See California Evidence Code
788.
Subdivision (c). A pardon or its equivalent granted solely for the
purpose of restoring civil rights lost by virtue of a conviction has no
relevance to an inquiry into character. If, however, the pardon or
other proceeding is hinged upon a showing of rehabilitation the
situation is otherwise. The result under the rule is to render the
conviction inadmissible. The alternative of allowing in evidence both
the conviction and the rehabilitation has not been adopted for reasons
of policy, economy of time, and difficulties of evaluation.
A similar provision is contained in California Evidence Code 788.
Cf. A.L.I. Model Penal Code, Proposed Official Draft 306.6(3)(e)
(1962), and discussion in A.L.I. Proceedings 310 (1961).
Pardons based on innocence have the effect, of course, of nullifying
the conviction ab initio.
Subdivision (d). The prevailing view has been that a juvenile
adjudication is not usable for impeachment. Thomas v. United States,
74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United States, 355
F.2d 480 (10th Cir. 1966). This conclusion was based upon a variety of
circumstances. By virtue of its informality, frequently diminished
quantum of required proof, and other departures from accepted standards
for criminal trials under the theory of parens patriae, the juvenile
adjudication was considered to lack the precision and general probative
value of the criminal conviction. While In re Gault, 387 U.S. 1, 87
S.Ct. 1428, 18 L.Ed.2d 527 (1967), no doubt eliminates these
characteristics insofar as objectionable, other obstacles remain.
Practical problems of administration are raised by the common provisions
in juvenile legislation that records be kept confidential and that they
be destroyed after a short time. While Gault was skeptical as to the
realities of confidentiality of juvenile records, it also saw no
constitutional obstacles to improvement. 387 U.S. at 25, 87 S.Ct. 1428.
See also Note, Rights and Rehabilitation in the Juvenile Courts, 67
Colum.L.Rev. 281, 289 (1967). In addition, policy considerations much
akin to those which dictate exclusion of adult convictions after
rehabilitation has been established strongly suggest a rule of excluding
juvenile adjudications. Admittedly, however, the rehabilitative process
may in a given case be a demonstrated failure, or the strategic
importance of a given witness may be so great as to require the
overriding of general policy in the interests of particular justice.
See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737
(1967). Wigmore was outspoken in his condemnation of the disallowance
of juvenile adjudications to impeach, especially when the witness is the
complainant in a case of molesting a minor. 1 Wigmore 196; 3 Id.
924a, 980. The rule recognizes discretion in the judge to effect an
accommodation among these various factors by departing from the general
principle of exclusion. In deference to the general pattern and policy
of juvenile statutes, however, no discretion is accorded when the
witness is the accused in a criminal case.
Subdivision (e). The presumption of correctness which ought to
attend judicial proceedings supports the position that pendency of an
appeal does not preclude use of a conviction for impeachment. United
States v. Empire Packing Co., 174 F.2d 16 (7th Cir. 1949), cert.
denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758; Bloch v. United
States, 226 F.2d 185 (9th Cir. 1955), cert. denied 350 U.S. 948, 76
S.Ct. 323, 100 L.Ed. 826 and 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910;
and see Newman v. United States, 331 F.2d 968 (8th Cir. 1964), Contra,
Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45 (1949).
The pendency of an appeal is, however, a qualifying circumstance
properly considerable.
Rule 609(a) as submitted by the Court was modeled after Section
133(a) of Public Law 91-358, 14 D.C. Code 305(b)(1), enacted in 1970.
The Rule provided that:
For the purpose of attacking the credibility of a witness, evidence
that he has been convicted of a crime is admissible but only if the
crime (1) was punishable by death or imprisonment in excess of one year
under the law under which he was convicted or (2) involved dishonesty or
false statement regardless of the punishment.
As reported to the Committee by the Subcommittee, Rule 609(a) was
amended to read as follows:
For the purpose of attacking the credibility of a witness, evidence
that he has been convicted of a crime is admissible only if the crime
(1) was punishable by death or imprisonment in excess of one year,
unless the court determines that the danger of unfair prejudice
outweighs the probative value of the evidence of the conviction, or (2)
involved dishonesty or false statement.
In full committee, the provision was amended to permit attack upon
the credibility of a witness by prior conviction only if the prior crime
involved dishonesty or false statement. While recognizing that the
prevailing doctrine in the federal courts and in most States allows a
witness to be impeached by evidence of prior felony convictions without
restriction as to type, the Committee was of the view that, because of
the danger of unfair prejudice in such practice and the deterrent effect
upon an accused who might wish to testify, and even upon a witness who
was not the accused, cross-examination by evidence of prior conviction
should be limited to those kinds of convictions bearing directly on
credibility, i.e., crimes involving dishonesty or false statement.
Rule 609(b) as submitted by the Court was modeled after Section
133(a) of Public Law 91-358, 14 D.C. Code 305(b)(2)(B), enacted in 1970.
The Rule provided:
Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the release
of the witness from confinement imposed for his most recent conviction,
or the expiration of the period of his parole, probation, or sentence
granted or imposed with respect to his most recent conviction, whichever
is the later date.
Under this formulation, a witness' entire past record of criminal
convictions could be used for impeachment (provided the conviction met
the standard of subdivision (a)), if the witness had been most recently
released from confinement, or the period of his parole or probation had
expired, within ten years of the conviction.
The Committee amended the Rule to read in the text of the 1971
Advisory Committee version to provide that upon the expiration of ten
years from the date of a conviction of a witness, or of his release from
confinement for that offense, that conviction may no longer be used for
impeachment. The Committee was of the view that after ten years
following a person's release from confinement (or from the date of his
conviction) the probative value of the conviction with respect to that
person's credibility diminished to a point where it should no longer be
admissible.
Rule 609(c) as submitted by the Court provided in part that evidence
of a witness' prior conviction is not admissible to attack his
credibility if the conviction was the subject of a pardon, annulment, or
other equivalent procedure, based on a showing of rehabilitation, and
the witness has not been convicted of a subsequent crime. The Committee
amended the Rule to provide that the ''subsequent crime'' must have been
''punishable by death or imprisonment in excess of one year'', on the
ground that a subsequent conviction of an offense not a felony is
insufficient to rebut the finding that the witness has been
rehabilitated. The Committee also intends that the words ''based on a
finding of the rehabilitation of the person convicted'' apply not only
to ''certificate of rehabilitation, or other equivalent procedure,'' but
also to ''pardon'' and ''annulment.''
As proposed by the Supreme Court, the rule would allow the use of
prior convictions to impeach if the crime was a felony or a misdemeanor
if the misdemeanor involved dishonesty or false statement. As modified
by the House, the rule would admit prior convictions for impeachment
purposes only if the offense, whether felony or misdemeanor, involved
dishonesty or false statement.
The committee has adopted a modified version of the House-passed
rule. In your committee's view, the danger of unfair prejudice is far
greater when the accused, as opposed to other witnesses, testifies,
because the jury may be prejudiced not merely on the question of
credibility but also on the ultimate question of guilt or innocence.
Therefore, with respect to defendants, the committee agreed with the
House limitation that only offenses involving false statement or
dishonesty may be used. By that phrase, the committee means crimes such
as perjury or subordination of perjury, false statement, criminal fraud,
embezzlement or false pretense, or any other offense, in the nature of
crimen falsi the commission of which involves some element of
untruthfulness, deceit, or falsification bearing on the accused's
propensity to testify truthfully.
With respect to other witnesses, in addition to any prior conviction
involving false statement or dishonesty, any other felony may be used to
impeach if, and only if, the court finds that the probative value of
such evidence outweighs its prejudicial effect against the party
offering that witness.
Notwithstanding this provision, proof of any prior offense otherwise
admissible under rule 404 could still be offered for the purposes
sanctioned by that rule. Furthermore, the committee intends that
notwithstanding this rule, a defendant's misrepresentation regarding the
existence or nature of prior convictions may be met by rebuttal
evidence, including the record of such prior convictions. Similarly,
such records may be offered to rebut representations made by the
defendant regarding his attitude toward or willingness to commit a
general category of offense, although denials or other representations
by the defendant regarding the specific conduct which forms the basis of
the charge against him shall not make prior convictions admissible to
rebut such statement.
In regard to either type of representation, of course, prior
convictions may be offered in rebuttal only if the defendant's statement
is made in response to defense counsel's questions or is made
gratuitously in the course of cross-examination. Prior convictions may
not be offered as rebuttal evidence if the prosecution has sought to
circumvent the purpose of this rule by asking questions which elicit
such representations from the defendant.
One other clarifying amendment has been added to this subsection,
that is, to provide that the admissibility of evidence of a prior
conviction is permitted only upon cross-examination of a witness. It is
not admissible if a person does not testify. It is to be understood,
however, that a court record of a prior conviction is admissible to
prove that conviction if the witness has forgotten or denies its
existence.
Although convictions over ten years old generally do not have much
probative value, there may be exceptional circumstances under which the
conviction substantially bears on the credibility of the witness.
Rather than exclude all convictions over 10 years old, the committee
adopted an amendment in the form of a final clause to the section
granting the court discretion to admit convictions over 10 years old,
but only upon a determination by the court that the probative value of
the conviction supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.
It is intended that convictions over 10 years old will be admitted
very rarely and only in exceptional circumstances. The rules provide
that the decision be supported by specific facts and circumstances thus
requiring the court to make specific findings on the record as to the
particular facts and circumstances it has considered in determining that
the probative value of the conviction substantially outweighs its
prejudicial impact. It is expected that, in fairness, the court will
give the party against whom the conviction is introduced a full and
adequate opportunity to contest its admission.
Rule 609 defines when a party may use evidence of a prior conviction
in order to impeach a witness. The Senate amendments make changes in
two subsections of Rule 609.
The House bill provides that the credibility of a witness can be
attacked by proof of prior conviction of a crime only if the crime
involves dishonesty or false statement. The Senate amendment provides
that a witness' credibility may be attacked if the crime (1) was
punishable by death or imprisonment in excess of one year under the law
under which he was convicted or (2) involves dishonesty or false
statement, regardless of the punishment.
The Conference adopts the Senate amendment with an amendment. The
Conference amendment provides that the credibility of a witness, whether
a defendant or someone else, may be attacked by proof of a prior
conviction but only if the crime: (1) was punishable by death or
imprisonment in excess of one year under the law under which he was
convicted and the court determines that the probative value of the
conviction outweighs its prejudicial effect to the defendant; or (2)
involved dishonesty or false statement regardless of the punishment.
By the phrase ''dishonesty and false statement'' the Conference means
crimes such as perjury or subornation of perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other offense in
the nature of crimen falsi, the commission of which involves some
element of deceit, untruthfulness, or falsification bearing on the
accused's propensity to testify truthfully.
The admission of prior convictions involving dishonesty and false
statement is not within the discretion of the Court. Such convictions
are peculiarly probative of credibility and, under this rule, are always
to be admitted. Thus, judicial discretion granted with respect to the
admissibility of other prior convictions is not applicable to those
involving dishonesty or false statement.
With regard to the discretionary standard established by paragraph
(1) of rule 609(a), the Conference determined that the prejudicial
effect to be weighed against the probative value of the conviction is
specifically the prejudicial effect to the defendant. The danger of
prejudice to a witness other than the defendant (such as injury to the
witness' reputation in his community) was considered and rejected by the
Conference as an element to be weighed in determining admissibility. It
was the judgment of the Conference that the danger of prejudice to a
nondefendant witness is outweighed by the need for the trier of fact to
have as much relevant evidence on the issue of credibility as possible.
Such evidence should only be excluded where it presents a danger of
improperly influencing the outcome of the trial by persuading the trier
of fact to convict the defendant on the basis of his prior criminal
record.
The House bill provides in subsection (b) that evidence of conviction
of a crime may not be used for impeachment purposes under subsection (a)
if more than ten years have elapsed since the date of the conviction or
the date the witness was released from confinement imposed for the
conviction, whichever is later. The Senate amendment permits the use of
convictions older than ten years, if the court determines, in the
interests of justice, that the probative value of the conviction,
supported by specific facts and circumstances, substantially outweighs
its prejudicial effect.
The Conference adopts the Senate amendment with an amendment
requiring notice by a party that he intends to request that the court
allow him to use a conviction older than ten years. The Conferees
anticipate that a written notice, in order to give the adversary a fair
opportunity to contest the use of the evidence, will ordinarily include
such information as the date of the conviction, the jurisdiction, and
the offense or statute involved. In order to eliminate the possibility
that the flexibility of this provision may impair the ability of a
party-opponent to prepare for trial, the Conferees intend that the
notice provision operate to avoid surprise.
The amendments are technical. No substantive change is intended.
The amendment to Rule 609(a) makes two changes in the rule. The
first change removes from the rule the limitation that the conviction
may only be elicited during cross-examination, a limitation that
virtually every circuit has found to be inapplicable. It is common for
witnesses to reveal on direct examination their convictions to ''remove
the sting'' of the impeachment. See e.g., United States v. Bad Cob,
560 F.2d 877 (8th Cir. 1977). The amendment does not contemplate that a
court will necessarily permit proof of prior convictions through
testimony, which might be time-consuming and more prejudicial than proof
through a written record. Rules 403 and 611(a) provide sufficient
authority for the court to protect against unfair or disruptive methods
of proof.
The second change effected by the amendment resolves an ambiguity as
to the relationship of Rules 609 and 403 with respect to impeachment of
witnesses other than the criminal defendant. See, Green v. Bock
Laundry Machine Co. , 109 S. Ct. 1981, 490 U.S. 504 (1989). The
amendment does not disturb the special balancing test for the criminal
defendant who chooses to testify. Thus, the rule recognizes that, in
virtually every case in which prior convictions are used to impeach the
testifying defendant, the defendant faces a unique risk of prejudice --
i.e., the danger that convictions that would be excluded under
Fed.R.Evid. 404 will be misused by a jury as propensity evidence despite
their introduction solely for impeachment purposes. Although the rule
does not forbid all use of convictions to impeach a defendant, it
requires that the government show that the probative value of
convictions as impeachment evidence outweighs their prejudicial effect.
Prior to the amendment, the rule appeared to give the defendant the
benefit of the special balancing test when defense witnesses other than
the defendant were called to testify. In practice, however, the concern
about unfairness to the defendant is most acute when the defendant's own
convictions are offered as evidence. Almost all of the decided cases
concern this type of impeachment, and the amendment does not deprive the
defendant of any meaningful protection, since Rule 403 now clearly
protects against unfair impeachment of any defense witness other than
the defendant. There are cases in which a defendant might be prejudiced
when a defense witness is impeached. Such cases may arise, for example,
when the witness bears a special relationship to the defendant such that
the defendant is likely to suffer some spill-over effect from
impeachment of the witness.
The amendment also protects other litigants from unfair impeachment
of their witnesses. The danger of prejudice from the use of prior
convictions is not confined to criminal defendants. Although the danger
that prior convictions will be misused as character evidence is
particularly acute when the defendant is impeached, the danger exists in
other situations as well. The amendment reflects the view that it is
desirable to protect all litigants from the unfair use of prior
convictions, and that the ordinary balancing test of Rule 403, which
provides that evidence shall not be excluded unless its prejudicial
effect substantially outweighs its probative value, is appropriate for
assessing the admissibility of prior convictions for impeachment of any
witness other than a criminal defendant.
The amendment reflects a judgment that decisions interpreting Rule
609(a) as requiring a trial court to admit convictions in civil cases
that have little, if anything, to do with credibility reach undesirable
results. See, e.g., Diggs v. Lyons, 741 F.2d 577 (3d Cir. 1984), cert.
denied, 105 S. Ct. 2157 (1985). The amendment provides the same
protection against unfair prejudice arising from prior convictions used
for impeachment purposes as the rules provide for other evidence. The
amendment finds support in decided cases. See, e.g., Petty v. Ideco,
761 F.2d 1146 (5th Cir. 1985); Czaka v. Hickman, 703 F.2d 317 (8th
Cir. 1983).
Fewer decided cases address the question whether Rule 609(a) provides
any protection against unduly prejudicial prior convictions used to
impeach government witnesses. Some courts have read Rule 609(a) as
giving the government no protection for its witnesses. See, e.g.,
United States v. Thorne, 547 F.2d 56 (8th Cir. 1976); United States v.
Nevitt, 563 F.2d 406 (9th Cir. 1977), cert. denied, 444 U.S. 847
(1979). This approach also is rejected by the amendment. There are
cases in which impeachment of government witnesses with prior
convictions that have little, if anything, to do with credibility may
result in unfair prejudice to the government's interest in a fair trial
and unnecessary embarrassment to a witness. Fed.R.Evid. 412 already
recognizes this and excluded certain evidence of past sexual behavior in
the context of prosecutions for sexual assaults.
The amendment applies the general balancing test of Rule 403 to
protect all litigants against unfair impeachment of witnesses. The
balancing test protects civil litigants, the government in criminal
cases, and the defendant in a criminal case who calls other witnesses.
The amendment addresses prior convictions offered under Rule 609, not
for other purposes, and does not run afoul, therefore, of Davis v.
Alaska, 415 U.S. 308 (1974). Davis involved the use of a prior juvenile
adjudication not to prove a past law violation, but to prove bias. The
defendant in a criminal case has the right to demonstrate the bias of a
witness and to be assured a fair trial, but not to unduly prejudice a
trier of fact. See generally Rule 412. In any case in which the trial
court believes that confrontation rights require admission of
impeachment evidence, obviously the Constitution would take precedence
over the rule.
The probability that prior convictions of an ordinary government
witness will be unduly prejudicial is low in most criminal cases. Since
the behavior of the witness is not the issue in dispute in most cases,
there is little chance that the trier of fact will misuse the
convictions offered as impeachment evidence as propensity evidence.
Thus, trial courts will be skeptical when the government objects to
impeachment of its witnesses with prior convictions. Only when the
government is able to point to a real danger of prejudice that is
sufficient to outweigh substantially the probative value of the
conviction for impeachment purposes will the conviction be excluded.
The amendment continues to divide subdivision (a) into subsections
(1) and (2) thus facilitating retrieval under current computerized
research programs which distinguish the two provisions. The Committee
recommended no substantive change in subdivision (a)(2), even though
some cases raise a concern about the proper interpretation of the words
''dishonesty or false statement.'' These words were used but not
explained in the original Advisory Committee Note accompanying Rule 609.
Congress extensively debated the rule, and the Report of the House and
Senate Conference Committee states that ''(b)y the phrase 'dishonesty
and false statement,' the Conference means crimes such as perjury,
subornation of perjury, false statement, criminal fraud, embezzlement,
or false pretense, or any other offense in the nature of crimen falsi,
commission of which involves some element of deceit, untruthfulness, or
falsification bearing on the accused's propensity to testify
truthfully.'' The Advisory Committee concluded that the Conference
Report provides sufficient guidance to trial courts and that no
amendment is necessary, notwithstanding some decisions that take an
unduly broad view of ''dishonesty,'' admitting convictions such as for
bank robbery or bank larceny. Subsection (a)(2) continues to apply to
any witness, including a criminal defendant.
Finally, the Committee determined that it was unnecessary to add to
the rule language stating that, when a prior conviction is offered under
Rule 609, the trial court is to consider the probative value of the
prior conviction for impeachment, not for other purposes. The Committee
concluded that the title of the rule, its first sentence, and its
placement among the impeachment rules clearly establish that evidence
offered under Rule 609 is offered only for purposes of impeachment.
28 USC Rule 610. Religious Beliefs or Opinions
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by reason of
their nature the witness' credibility is impaired or enhanced.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff.
Oct. 1, 1987.)
While the rule forecloses inquiry into the religious beliefs or
opinions of a witness for the purpose of showing that his character for
truthfulness is affected by their nature, an inquiry for the purpose of
showing interest or bias because of them is not within the prohibition.
Thus disclosure of affiliation with a church which is a party to the
litigation would be allowable under the rule. Cf. Tucker v. Reil, 51
Ariz. 357, 77 P.2d 203 (1938). To the same effect, though less
specifically worded, is California Evidence Code 789. See 3 Wigmore
936.
The amendment is technical. No substantive change is intended.
28 USC Rule 611. Mode and Order of Interrogation and Presentation
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Control by court. -- The court shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective
for the ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. -- Cross-examination should be
limited to the subject matter of the direct examination and matters
affecting the credibility of the witness. The court may, in the
exercise of discretion, permit inquiry into additional matters as if on
direct examination.
(c) Leading questions. -- Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop
the witness' testimony. Ordinarily leading questions should be
permitted on cross-examination. When a party calls a hostile witness,
an adverse party, or a witness identified with an adverse party,
interrogation may be by leading questions.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff.
Oct. 1, 1987.)
Subdivision (a). Spelling out detailed rules to govern the mode and
order of interrogating witnesses presenting evidence is neither
desirable nor feasible. The ultimate responsibility for the effective
working of the adversary system rests with the judge. The rule sets
forth the objectives which he should seek to attain.
Item (1) restates in broad terms the power and obligation of the
judge as developed under common law principles. It covers such concerns
as whether testimony shall be in the form of a free narrative or
responses to specific questions, McCormick 5, the order of calling
witnesses and presenting evidence, 6 Wigmore 1867, the use of
demonstrative evidence, McCormick 179, and the many other questions
arising during the course of a trial which can be solved only by the
judge's common sense and fairness in view of the particular
circumstances.
Item (2) is addressed to avoidance of needless consumption of time, a
matter of daily concern in the disposition of cases. A companion piece
is found in the discretion vested in the judge to exclude evidence as a
waste of time in Rule 403(b).
Item (3) calls for a judgement under the particular circumstances
whether interrogation tactics entail harassment or undue embarrassment.
Pertinent circumstances include the importance of the testimony, the
nature of the inquiry, its relevance to credibility, waste of time, and
confusion. McCormick 42. In Alford v. United States, 282 U.S. 687,
694, 51 S.Ct. 218, 75 L.Ed. 624 (1931), the Court pointed out that,
while the trial judge should protect the witness from questions which
''go beyond the bounds of proper cross-examination merely to harass,
annoy or humiliate,'' this protection by no means forecloses efforts to
discredit the witness. Reference to the transcript of the prosecutor's
cross-examination in Berger v. United States, 295 U.S. 78, 55 S.Ct.
629, 79 L.Ed. 1314 (1935), serves to lay at rest any doubts as to the
need for judicial control in this area.
The inquiry into specific instances of conduct of a witness allowed
under Rule 608(b) is, of course, subject to this rule.
Subdivision (b). The tradition in the federal courts and in numerous
state courts has been to limit the scope of cross-examination to matters
testified to on direct, plus matters bearing upon the credibility of the
witness. Various reasons have been advanced to justify the rule of
limited cross-examination. (1) A party vouches for his own witness but
only to the extent of matters elicited on direct. Resurrection Gold
Mining Co. v. Fortune Gold Mining Co., 129 F. 668, 675 (8th Cir.
1904), quoted in Maguire, Weinstein, et al., Cases on Evidence 277, n.
38 (5th ed. 1965). But the concept of vouching is discredited, and Rule
607 rejects it. (2) A party cannot ask his own witness leading
questions. This is a problem properly solved in terms of what is
necessary for a proper development of the testimony rather than by a
mechanistic formula similar to the vouching concept. See discussion
under subdivision (c). (3) A practice of limited cross-examination
promotes orderly presentation of the case. Finch v. Weiner, 109 Conn.
616, 145 A. 31 (1929). While this latter reason has merit, the matter
is essentially one of the order of presentation and not one in which
involvement at the appellate level is likely to prove fruitful. See for
example, Moyer v. Aetna Life Ins. Co., 126 F.2d 141 (3rd Cir. 1942);
Butler v. New York Central R. Co., 253 F.2d 281 (7th Cir. 1958);
United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); Union
Automobile Indemnity Ass'n. v. Capitol Indemnity Ins. Co., 310 F.2d
318 (7th Cir. 1962). In evaluating these considerations, McCormick says:
''The foregoing considerations favoring the wide-open or restrictive
rules may well be thought to be fairly evenly balanced. There is
another factor, however, which seems to swing the balance overwhelmingly
in favor of the wide-open rule. This is the consideration of economy of
time and energy. Obviously, the wide-open rule presents little or no
opportunity for dispute in its application. The restrictive practice in
all its forms, on the other hand, is productive in many court rooms, of
continual bickering over the choice of the numerous variations of the
'scope of the direct' criterion, and of their application to particular
cross-questions. These controversies are often reventilated on appeal,
and reversals for error in their determination are frequent. Observance
of these vague and ambiguous restrictions is a matter of constant and
hampering concern to the cross-examiner. If these efforts, delays and
misprisions were the necessary incidents to the guarding of substantive
rights or the fundamentals of fair trial, they might be worth the cost.
As the price of the choice of an obviously debatable regulation of the
order of evidence, the sacrifice seems misguided. The American Bar
Association's Committee for the Improvement of the Law of Evidence for
the year 1937-38 said this:
''The rule limiting cross-examination to the precise subject of the
direct examination is probably the most frequent rule (except the
Opinion rule) leading in the trial practice today to refined and
technical quibbles which obstruct the progress of the trial, confuse the
jury, and give rise to appeal on technical grounds only. Some of the
instances in which Supreme Courts have ordered new trials for the mere
transgression of this rule about the order of evidence have been
astounding.
''We recommend that the rule allowing questions upon any part of the
issue known to the witness * * * be adopted. * * *''' McCormick, 27,
p. 51. See also 5 Moore's Federal Practice 43.10 (2nd ed. 1964).
The provision of the second sentence, that the judge may in the
interests of justice limit inquiry into new matters on
cross-examination, is designed for those situations in which the result
otherwise would be confusion, complication, or protraction of the case,
not as a matter of rule but as demonstrable in the actual development of
the particular case.
The rule does not purport to determine the extent to which an accused
who elects to testify thereby waives his privilege against
self-incrimination. The question is a constitutional one, rather than a
mere matter of administering the trial. Under Simmons v. United
States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), no general
waiver occurs when the accused testifies on such preliminary matters as
the validity of a search and seizure or the admissibility of a
confession. Rule 104(d), supra. When he testifies on the merits,
however, can he foreclose inquiry into an aspect or element of the crime
by avoiding it on direct? The affirmative answer given in Tucker v.
United States, 5 F.2d 818 (8th Cir. 1925), is inconsistent with the
description of the waiver as extending to ''all other relevant facts''
in Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed.
704 (1943). See also Brown v. United States, 356 U.S. 148, 78 S.Ct.
622, 2 L.Ed.2d 589 (1958). The situation of an accused who desires to
testify on some but not all counts of a multiple-count indictment is one
to be approached, in the first instance at least, as a problem of
severance under Rule 14 of the Federal Rules of Criminal Procedure.
Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964). Cf.
United States v. Baker, 262 F.Supp. 657, 686 (D.D.C. 1966). In all
events, the extent of the waiver of the privilege against
self-incrimination ought not to be determined as a by-product of a rule
on scope of cross-examination.
Subdivision (c). The rule continues the traditional view that the
suggestive powers of the leading question are as a general proposition
undesirable. Within this tradition, however, numerous exceptions have
achieved recognition: The witness who is hostile, unwilling, or biased;
the child witness or the adult with communication problems; the
witness whose recollection is exhausted; and undisputed preliminary
matters. 3 Wigmore 774-778. An almost total unwillingness to
reverse for infractions has been manifested by appellate courts. See
cases cited in 3 Wigmore 770. The matter clearly falls within the area
of control by the judge over the mode and order of interrogation and
presentation and accordingly is phrased in words of suggestion rather
than command.
The rule also conforms to tradition in making the use of leading
questions on cross-examination a matter of right. The purpose of the
qualification ''ordinarily'' is to furnish a basis for denying the use
of leading questions when the cross-examination is cross-examination in
form only and not in fact, as for example the ''cross-examination'' of a
party by his own counsel after being called by the opponent (savoring
more of re-direct) or of an insured defendant who proves to be friendly
to the plaintiff.
The final sentence deals with categories of witnesses automatically
regarded and treated as hostile. Rule 43(b) of the Federal Rules of
Civil Procedure has included only ''an adverse party or an officer,
director, or managing agent of a public or private corporation or of a
partnership or association which is an adverse party.'' This limitation
virtually to persons whose statements would stand as admissions is
believed to be an unduly narrow concept of those who may safely be
regarded as hostile without further demonstration. See, for example,
Maryland Casualty Co. v. Kador, 225 F.2d 120 (5th Cir. 1955), and
Degelos v. Fidelity and Casualty Co., 313 F.2d 809 (5th Cir. 1963),
holding despite the language of Rule 43(b) that an insured fell within
it, though not a party in an action under the Louisiana direct action
statute. The phrase of the rule, ''witness identified with'' an adverse
party, is designed to enlarge the category of persons thus callable.
As submitted by the Court, Rule 611(b) provided:
A witness may be cross-examined on any matter relevant to any issue
in the case, including credibility. In the interests of justice, the
judge may limit cross-examination with respect to matters not testified
to on direct examination.
The Committee amended this provision to return to the rule which
prevails in the federal courts and thirty-nine State jurisdictions. As
amended, the Rule is in the text of the 1969 Advisory Committee draft.
It limits cross-examination to credibility and to matters testified to
on direct examination, unless the judge permits more, in which event the
cross-examiner must proceed as if on direct examination. This
traditional rule facilitates orderly presentation by each party at
trial. Further, in light of existing discovery procedures, there
appears to be no need to abandon the traditional rule.
The third sentence of Rule 611(c) as submitted by the Court provided
that:
In civil cases, a party is entitled to call an adverse party or
witness identified with him and interrogate by leading questions.
The Committee amended this Rule to permit leading questions to be
used with respect to any hostile witness, not only an adverse party or
person identified with such adverse party. The Committee also
substituted the word ''When'' for the phrase ''In civil cases'' to
reflect the possibility that in criminal cases a defendant may be
entitled to call witnesses identified with the government, in which
event the Committee believed the defendant should be permitted to
inquire with leading questions.
Rule 611(b) as submitted by the Supreme Court permitted a broad scope
of cross-examination: ''cross-examination on any matter relevant to any
issue in the case'' unless the judge, in the interests of justice,
limited the scope of cross-examination.
The House narrowed the Rule to the more traditional practice of
limiting cross-examination to the subject matter of direct examination
(and credibility), but with discretion in the judge to permit inquiry
into additional matters in situations where that would aid in the
development of the evidence or otherwise facilitate the conduct of the
trial.
The committee agrees with the House amendment. Although there are
good arguments in support of broad cross-examination from perspectives
of developing all relevant evidence, we believe the factors of insuring
an orderly and predictable development of the evidence weigh in favor of
the narrower rule, especially when discretion is given to the trial
judge to permit inquiry into additional matters. The committee
expressly approves this discretion and believes it will permit
sufficient flexibility allowing a broader scope of cross-examination
whenever appropriate.
The House amendment providing broader discretionary cross-examination
permitted inquiry into additional matters only as if on direct
examination. As a general rule, we concur with this limitation,
however, we would understand that this limitation would not preclude the
utilization of leading questions if the conditions of subsection (c) of
this rule were met, bearing in mind the judge's discretion in any case
to limit the scope of cross-examination (see McCormick on Evidence,
24-26 (especially 24) (2d ed. 1972)).
Further, the committee has received correspondence from Federal
judges commenting on the applicability of this rule to section 1407 of
title 28. It is the committee's judgment that this rule as reported by
the House is flexible enough to provide sufficiently broad
cross-examination in appropriate situations in multidistrict litigation.
As submitted by the Supreme Court, the rule provided: ''In civil
cases, a party is entitled to call an adverse party or witness
identified with him and interrogate by leading questions.''
The final sentence of subsection (c) was amended by the House for the
purpose of clarifying the fact that a ''hostile witness'' -- that is a
witness who is hostile in fact -- could be subject to interrogation by
leading questions. The rule as submitted by the Supreme Court declared
certain witnesses hostile as a matter of law and thus subject to
interrogation by leading questions without any showing of hostility in
fact. These were adverse parties or witnesses identified with adverse
parties. However, the wording of the first sentence of subsection (c)
while generally, prohibiting the use of leading questions on direct
examination, also provides ''except as may be necessary to develop his
testimony.'' Further, the first paragraph of the Advisory Committee note
explaining the subsection makes clear that they intended that leading
questions could be asked of a hostile witness or a witness who was
unwilling or biased and even though that witness was not associated with
an adverse party. Thus, we question whether the House amendment was
necessary.
However, concluding that it was not intended to affect the meaning of
the first sentence of the subsection and was intended solely to clarify
the fact that leading questions are permissible in the interrogation of
a witness, who is hostile in fact, the committee accepts that House
amendment.
The final sentence of this subsection was also amended by the House
to cover criminal as well as civil cases. The committee accepts this
amendment, but notes that it may be difficult in criminal cases to
determine when a witness is ''identified with an adverse party,'' and
thus the rule should be applied with caution.
The amendment is technical. No substantive change is intended.
28 USC Rule 612. Writing Used To Refresh Memory
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Except as otherwise provided in criminal proceedings by section 3500
of title 18, United States Code, if a witness uses a writing to refresh
memory for the purpose of testifying, either --
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it
is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the
hearing, to inspect it, to cross-examine the witness thereon, and to
introduce in evidence those portions which relate to the testimony of
the witness. If it is claimed that the writing contains matters not
related to the subject matter of the testimony the court shall examine
the writing in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto. Any portion
withheld over objections shall be preserved and made available to the
appellate court in the event of an appeal. If a writing is not produced
or delivered pursuant to order under this rule, the court shall make any
order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall be one striking the
testimony or, if the court in its discretion determines that the
interests of justice so require, declaring a mistrial.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The treatment of writings used to refresh recollection while on the
stand is in accord with settled doctrine. McCormick 9, p. 15. The
bulk of the case law has, however, denied the existence of any right to
access by the opponent when the writing is used prior to taking the
stand, though the judge may have discretion in the matter. Goldman v.
United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942);
Needelman v. United States, 261 F.2d 802 (5th Cir. 1958), cert.
dismissed 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980, rehearing denied
363 U.S. 858, 80 S.Ct. 1606, 4 L.Ed.2d 1739, Annot., 82 A.L.R.2d 473,
562 and 7 A.L.R.3d 181, 247. An increasing group of cases has
repudiated the distinction, People v. Scott, 29 Ill.2d 97, 193 N.E.2d
814 (1963); State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957); State
v. Hunt, 25 N.J. 514, 138 A.2d 1 (1958); State v. Desolvers, 40 R.I.
89, 100, A. 64 (1917), and this position is believed to be correct. As
Wigmore put it, ''the risk of imposition and the need of safeguard is
just as great'' in both situations. 3 Wigmore 762, p. 111. To the
same effect is McCormick 9, p. 17.
The purpose of the phrase ''for the purpose of testifying'' is to
safeguard against using the rule as a pretext for wholesale exploration
of an opposing party's files and to insure that access is limited only
to those writings which may fairly be said in fact to have an impact
upon the testimony of the witness.
The purpose of the rule is the same as that of the Jencks statute, 18
U.S.C. 3500: to promote the search of credibility and memory. The
same sensitivity to disclosure of government files may be involved;
hence the rule is expressly made subject to the statute, subdivision (a)
of which provides: ''In any criminal prosecution brought by the United
States, no statement or report in the possession of the United States
which was made by a Government witness or prospective Government witness
(other than the defendant) shall be the subject of a subpena, discovery,
or inspection until said witness has testified on direct examination in
the trial of the case.'' Items falling within the purview of the statute
are producible only as provided by its terms, Palermo v. United States,
360 U.S. 343, 351 (1959), and disclosure under the rule is limited
similarly by the statutory conditions. With this limitation in mind,
some differences of application may be noted. The Jencks statute
applies only to statements of witnesses; the rule is not so limited.
The statute applies only to criminal cases; the rule applies to all
cases. The statute applies only to government witnesses; the rule
applies to all witnesses. The statute contains no requirement that the
statement be consulted for purposes of refreshment before or while
testifying; the rule so requires. Since many writings would qualify
under either statute or rule, a substantial overlap exists, but the
identity of procedures makes this of no importance.
The consequences of nonproduction by the government in a criminal
case are those of the Jencks statute, striking the testimony or in
exceptional cases a mistrial. 18 U.S.C. 3500(d). In other cases these
alternatives are unduly limited, and such possibilities as contempt,
dismissal, finding issues against the offender, and the like are
available. See Rule 16(g) of the Federal Rules of Criminal Procedure
and Rule 37(b) of the Federal Rules of Civil Procedure for appropriate
sanctions.
As submitted to Congress, Rule 612 provided that except as set forth
in 18 U.S.C. 3500, if a witness uses a writing to refresh his memory for
the purpose of testifying, ''either before or while testifying,'' an
adverse party is entitled to have the writing produced at the hearing,
to inspect it, to cross-examine the witness on it, and to introduce in
evidence those portions relating to the witness' testimony. The
Committee amended the Rule so as still to require the production of
writings used by a witness while testifying, but to render the
production of writings used by a witness to refresh his memory before
testifying discretionary with the court in the interests of justice, as
is the case under existing federal law. See Goldman v. United States,
316 U.S. 129 (1942). The Committee considered that permitting an
adverse party to require the production of writings used before
testifying could result in fishing expeditions among a multitude of
papers which a witness may have used in preparing for trial.
The Committee intends that nothing in the Rule be construed as
barring the assertion of a privilege with respect to writings used by a
witness to refresh his memory.
The amendment is technical. No substantive change is intended.
28 USC Rule 613. Prior Statements of Witnesses
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Examining witness concerning prior statement. -- In examining a
witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall be
shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.
-- Extrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless the witness is afforded an opportunity to explain
or deny the same and the opposite party is afforded an opportunity to
interrogate the witness thereon, or the interests of justice otherwise
require. This provision does not apply to admissions of a
party-opponent as defined in rule 801(d)(2).
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)
Subdivision (a). The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep.
976 (1820), laid down the requirement that a cross-examiner, prior to
questioning the witness about his own prior statement in writing, must
first show it to the witness. Abolished by statute in the country of
its origin, the requirement nevertheless gained currency in the United
States. The rule abolishes this useless impediment, to
cross-examination. Ladd, Some Observations on Credibility: Impeachment
of Witnesses, 52 Cornell L.Q. 239, 246-247 (1967); McCormick 28; 4
Wigmore 1259-1260. Both oral and written statements are included.
The provision for disclosure to counsel is designed to protect
against unwarranted insinuations that a statement has been made when the
fact is to the contrary.
The rule does not defeat the application of Rule 1002 relating to
production of the original when the contents of a writing are sought to
be proved. Nor does it defeat the application of Rule 26(b)(3) of the
Rules of Civil Procedure, as revised, entitling a person on request to a
copy of his own statement, though the operation of the latter may be
suspended temporarily.
Subdivision (b). The familiar foundation requirement that an
impeaching statement first be shown to the witness before it can be
proved by extrinsic evidence is preserved but with some modifications.
See Ladd, Some Observations on Credibility: Impeachment of Witnesses,
52 Cornell L.Q. 239, 247 (1967). The traditional insistence that the
attention of the witness be directed to the statement on
cross-examination is relaxed in favor of simply providing the witness an
opportunity to explain and the opposite party an opportunity to examine
on the statement, with no specification of any particular time or
sequence. Under this procedure, several collusive witnesses can be
examined before disclosure of a joint prior inconsistent statement. See
Comment to California Evidence Code 770. Also, dangers of oversight
are reduced.
See McCormick 37, p. 68.
In order to allow for such eventualities as the witness becoming
unavailable by the time the statement is discovered, a measure of
discretion is conferred upon the judge. Similar provisions are found in
California Evidence Code 770 and New Jersey Evidence Rule 22(b).
Under principles of expression unius the rule does not apply to
impeachment by evidence of prior inconsistent conduct. The use of
inconsistent statements to impeach a hearsay declaration is treated in
Rule 806.
The amendments are technical. No substantive change is intended.
The amendment is technical. No substantive change is intended.
28 USC Rule 614. Calling and Interrogation of Witnesses by Court
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Calling by court. -- The court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are entitled to
cross-examine witnesses thus called.
(b) Interrogation by court. -- The court may interrogate witnesses,
whether called by itself or by a party.
(c) Objections. -- Objections to the calling of witnesses by the
court or to interrogation by it may be made at the time or at the next
available opportunity when the jury is not present.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1937.)
Subdivision (a). While exercised more frequently in criminal than in
civil cases, the authority of the judge to call witnesses is well
established. McCormick 8, p. 14; Maguire, Weinstein, et al., Cases
on Evidence 303-304 (5th ed. 1965); 9 Wigmore 2484. One reason for
the practice, the old rule against impeaching one's own witness, no
longer exists by virtue of Rule 607, supra. Other reasons remain,
however, to justify the continuation of the practice of calling court's
witnesses. The right to cross-examine, with all it implies, is assured.
The tendency of juries to associate a witness with the party calling
him, regardless of technical aspects of vouching, is avoided. And the
judge is not imprisoned within the case as made by the parties.
Subdivision (b). The authority of the judge to question witnesses is
also well established. McCormick 8, pp. 12-13; Maguire, Weinstein,
et al., Cases on Evidence 737-739 (5th ed. 1965); 3 Wigmore 784. The
authority is, of course, abused when the judge abandons his proper role
and assumes that of advocate, but the manner in which interrogation
should be conducted and the proper extent of its exercise are not
susceptible of formulation in a rule. The omission in no sense
precludes courts of review from continuing to reverse for abuse.
Subdivision (c). The provision relating to objections is designed to
relieve counsel of the embarrassment attendant upon objecting to
questions by the judge in the presence of the jury, while at the same
time assuring that objections are made in apt time to afford the
opportunity to take possible corrective measures. Compare the
''automatic'' objection feature of Rule 605 when the judge is called as
a witness.
28 USC Rule 615. Exclusion of Witnesses
TITLE 28, APPENDIX -- RULES OF EVIDENCE
At the request of a party the court shall order witnesses excluded so
that they cannot hear the testimony of other witnesses, and it may make
the order of its own motion. This rule does not authorize exclusion of
(1) a party who is a natural person, or (2) an officer or employee of a
party which is not a natural person designated as its representative by
its attorney, or (3) a person whose presence is shown by a party to be
essential to the presentation of the party's cause.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L. 100-690,
title VII, 7075(a), Nov. 18, 1988, 102 Stat. 4405.)
The efficacy of excluding or sequestering witnesses has long been
recognized as a means of discouraging and exposing fabrication,
inaccuracy, and collusion. 6 Wigmore 1837-1838. The authority of the
judge is admitted, the only question being whether the matter is
committed to his discretion or one of right. The rule takes the latter
position. No time is specified for making the request.
Several categories of persons are excepted. (1) Exclusion of persons
who are parties would raise serious problems of confrontation and due
process. Under accepted practice they are not subject to exclusion. 6
Wigmore 1841. (2) As the equivalent of the right of a natural-person
party to be present, a party which is not a natural person is entitled
to have a representative present. Most of the cases have involved
allowing a police officer who has been in charge of an investigation to
remain in court despite the fact that he will be a witness. United
States v. Infanzon, 235 F.2d 318 (2d Cir. 1956); Portomene v. United
States, 221 F.2d 582 (5th Cir. 1955); Powell v. United States, 208
F.2d 618 (6th Cir. 1953); Jones v. United States, 252 F.Supp. 781
(W.D.Okl. 1966). Designation of the representative by the attorney
rather than by the client may at first glance appear to be an inversion
of the attorney-client relationship, but it may be assumed that the
attorney will follow the wishes of the client, and the solution is
simple and workable. See California Evidence Code 777. (3) The
category contemplates such persons as an agent who handled the
transaction being litigated or an expert needed to advise counsel in the
management of the litigation. See 6 Wigmore 1841, n. 4.
Many district courts permit government counsel to have an
investigative agent at counsel table throughout the trial although the
agent is or may be a witness. The practice is permitted as an exception
to the rule of exclusion and compares with the situation defense counsel
finds himself in -- he always has the client with him to consult during
the trial. The investigative agent's presence may be extremely
important to government counsel, especially when the case is complex or
involves some specialized subject matter. The agent, too, having lived
with the case for a long time, may be able to assist in meeting trial
surprises where the best-prepared counsel would otherwise have
difficulty. Yet, it would not seem the Government could often meet the
burden under rule 615 of showing that the agent's presence is essential.
Furthermore, it could be dangerous to use the agent as a witness as
early in the case as possible, so that he might then help counsel as a
nonwitness, since the agent's testimony could be needed in rebuttal.
Using another, nonwitness agent from the same investigative agency would
not generally meet government counsel's needs.
This problem is solved if it is clear that investigative agents are
within the group specified under the second exception made in the rule,
for ''an officer or employee of a party which is not a natural person
designated as its representative by its attorney.'' It is our
understanding that this was the intention of the House committee. It is
certainly this committee's construction of the rule.
The amendment is technical. No substantive change is intended.
The amendment is technical. No substantive change is intended.
Pub. L. 100-690, which directed amendment of rule by inserting ''a''
before ''party which is not a natural person.'', could not be executed
because the words ''party which is not a natural person.'' did not
appear. However, the word ''a'' was inserted by the intervening
amendment by the Court by order dated Apr. 25, 1988, eff. Nov. 1,
1988.
28 USC ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 701. Opinion Testimony by Lay Witnesses
TITLE 28, APPENDIX -- RULES OF EVIDENCE
If the witness is not testifying as an expert, the witness' testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The rule retains the traditional objective of putting the trier of
fact in possession of an accurate reproduction of the event.
Limitation (a) is the familiar requirement of first-hand knowledge or
observation.
Limitation (b) is phrased in terms of requiring testimony to be
helpful in resolving issues. Witnesses often find difficulty in
expressing themselves in language which is not that of an opinion or
conclusion. While the courts have made concessions in certain recurring
situations, necessity as a standard for permitting opinions and
conclusions has proved too elusive and too unadaptable to particular
situations for purposes of satisfactory judicial administration.
McCormick 11. Moreover, the practical impossibility of determinating
by rule what is a ''fact,'' demonstrated by a century of litigation of
the question of what is a fact for purposes of pleading under the Field
Code, extends into evidence also. 7 Wigmore 1919. The rule assumes
that the natural characteristics of the adversary system will generally
lead to an acceptable result, since the detailed account carries more
conviction than the broad assertion, and a lawyer can be expected to
display his witness to the best advantage. If he fails to do so,
cross-examination and argument will point up the weakness. See Ladd,
Expert Testimony, 5 Vand.L.Rev. 414, 415-417 (1952). If, despite these
considerations, attempts are made to introduce meaningless assertions
which amount to little more than choosing up sides, exclusion for lack
of helpfulness is called for by the rule.
The language of the rule is substantially that of Uniform. Rule
56(1). Similar provisions are California Evidence Code 800; Kansas
Code of Civil Procedure 60-456(a); New Jersey Evidence Rule 56(1).
The amendments are technical. No substantive change is intended.
28 USC Rule 702. Testimony by Experts
TITLE 28, APPENDIX -- RULES OF EVIDENCE
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1937.)
An intelligent evaluation of facts is often difficult or impossible
without the application of some scientific, technical, or other
specialized knowledge. The most common source of this knowledge is the
expert witness, although there are other techniques for supplying it.
Most of the literature assumes that experts testify only in the form
of opinions. The assumption is logically unfounded. The rule
accordingly recognizes that an expert on the stand may give a
dissertation or exposition of scientific or other principles relevant to
the case, leaving the trier of fact to apply them to the facts. Since
much of the criticism of expert testimony has centered upon the
hypothetical question, it seems wise to recognize that opinions are not
indispensable and to encourage the use of expert testimony in
non-opinion form when counsel believes the trier can itself draw the
requisite inference. The use of opinions is not abolished by the rule,
however. It will continue to be permissible for the experts to take the
further step of suggesting the inference which should be drawn from
applying the specialized knowledge to the facts. See Rules 703 to 705.
Whether the situation is a proper one for the use of expert testimony
is to be determined on the basis of assisting the trier. ''There is no
more certain test for determining when experts may be used than the
common sense inquiry whether the untrained layman would be qualified to
determine intelligently and to the best possible degree the particular
issue without enlightenment from those having a specialized
understanding of the subject involved in the dispute.'' Ladd, Expert
Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded,
it is because they are unhelpful and therefore superfluous and a waste
of time. 7 Wigmore 1918.
The rule is broadly phrased. The fields of knowledge which may be
drawn upon are not limited merely to the ''scientific'' and
''technical'' but extend to all ''specialized'' knowledge. Similarly,
the expert is viewed, not in a narrow sense, but as a person qualified
by ''knowledge, skill, experience, training or education.'' Thus within
the scope of the rule are not only experts in the strictest sense of the
word, e.g., physicians, physicists, and architects, but also the large
group sometimes called ''skilled'' witnesses, such as bankers or
landowners testifying to land values.
28 USC Rule 703. Bases of Opinion Testimony by Experts
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff.
Oct. 1, 1987.)
Facts or data upon which expert opinions are based may, under the
rule, be derived from three possible sources. The first is the
firsthand observation of the witness, with opinions based thereon
traditionally allowed. A treating physician affords an example.
Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489
(1962). Whether he must first relate his observations is treated in
Rule 705. The second source, presentation at the trial, also reflects
existing practice. The technique may be the familiar hypothetical
question or having the expert attend the trial and hear the testimony
establishing the facts. Problems of determining what testimony the
expert relied upon, when the latter technique is employed and the
testimony is in conflict, may be resolved by resort to Rule 705. The
third source contemplated by the rule consists of presentation of data
to the expert outside of court and other than by his own perception. In
this respect the rule is designed to broaden the basis for expert
opinions beyond that current in many jurisdictions and to bring the
judicial practice into line with the practice of the experts themselves
when not in court. Thus a physician in his own practice bases his
diagnosis on information from numerous sources and of considerable
variety, including statements by patients and relatives, reports and
opinions from nurses, technicians and other doctors, hospital records,
and X rays. Most of them are admissible in evidence, but only with the
expenditure of substantial time in producing and examining various
authenticating witnesses. The physician makes life-and-death decisions
in reliance upon them. His validation, expertly performed and subject
to cross-examination, ought to suffice for judicial purposes.
Rheingold, supra, at 531; McCormick 15. A similar provision is
California Evidence Code 801(b).
The rule also offers a more satisfactory basis for ruling upon the
admissibility of public opinion poll evidence. Attention is directed to
the validity of the techniques employed rather than to relatively
fruitless inquiries whether hearsay is involved. See Judge Feinberg's
careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp.
670 (S.D.N.Y. 1963) See also Blum et al, The Art of Opinion Research: A
Lawyer's Appraisal of an Emerging Service, 24 U.Chi.L.Rev. 1 (1956);
Bonynge, Trademark Surveys and Techniques and Their Use in Litigation,
48 A.B.A.J. 329 (1962); Zeisel, The Uniqueness of Survey Evidence, 45
Cornell L.Q. 322 (1960); Annot., 76 A.L.R.2d 919.
If it be feared that enlargement of permissible data may tend to
break down the rules of exclusion unduly, notice should be taken that
the rule requires that the facts or data ''be of a type reasonably
relied upon by experts in the particular field.'' The language would not
warrant admitting in evidence the opinion of an ''accidentologist'' as
to the point of impact in an automobile collision based on statements of
bystanders, since this requirement is not satisfied. See Comment,
Cal.Law Rev.Comm'n, Recommendation Proposing an Evidence Code 148-150
(1965).
The amendment is technical. No substantive change is intended.
28 USC Rule 704. Opinion on Ultimate Issue
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Except as provided in subdivision (b), testimony in the form of
an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact.
(b) No expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a
defense thereto. Such ultimate issues are matters for the trier of fact
alone.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1937; Pub. L. 98-473,
title II, 406, Oct. 12, 1984, 98 Stat. 2067.)
The basic approach to opinions, lay and expert, in these rules is to
admit them when helpful to the trier of fact. In order to render this
approach fully effective and to allay any doubt on the subject, the
so-called ''ultimate issue'' rule is specifically abolished by the
instant rule.
The older cases often contained strictures against allowing witnesses
to express opinions upon ultimate issues, as a particular aspect of the
rule against opinions. The rule was unduly restrictive, difficult of
application, and generally served only to deprive the trier of fact of
useful information. 7 Wigmore 1920, 1921; McCormick 12. The basis
usually assigned for the rule, to prevent the witness from ''usurping
the province of the jury,'' is aptly characterized as ''empty
rhetoric.'' 7 Wigmore 1920, p. 17. Efforts to meet the felt needs of
particular situations led to odd verbal circumlocutions which were said
not to violate the rule. Thus a witness could express his estimate of
the criminal responsibility of an accused in terms of sanity or
insanity, but not in terms of ability to tell right from wrong or other
more modern standard. And in cases of medical causation, witnesses were
sometimes required to couch their opinions in cautious phrases of
''might or could,'' rather than ''did,'' though the result was to
deprive many opinions of the positiveness to which they were entitled,
accompanied by the hazard of a ruling of insufficiency to support a
verdict. In other instances the rule was simply disregarded, and, as
concessions to need, opinions were allowed upon such matters as
intoxication, speed, handwriting, and value, although more precise
coincidence with an ultimate issue would scarcely be possible.
Many modern decisions illustrate the trend to abandon the rule
completely. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720 (1944),
whether abortion necessary to save life of patient; Clifford-Jacobs
Forging Co. v. Industrial Comm., 19 Ill.2d 236, 166 N.E.2d 582 (1960),
medical causation; Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17
A.2d 529 (1941), proper method of shoring ditch; Schweiger v. Solbeck,
191 Or. 454, 230 P.2d 195 (1951), cause of landslide. In each instance
the opinion was allowed.
The abolition of the ultimate issue rule does not lower the bars so
as to admit all opinions. Under Rules 701 and 702, opinions must be
helpful to the trier of fact, and Rule 403 provides for exclusion of
evidence which wastes time. These provisions afford ample assurances
against the admission of opinions which would merely tell the jury what
result to reach, somewhat in the manner of the oath-helpers of an
earlier day. They also stand ready to exclude opinions phrased in terms
of inadequately explored legal criteria. Thus the question, ''Did T
have capacity to make a will?'' would be excluded, while the question,
''Did T have sufficient mental capacity to know the nature and extent of
his property and the natural objects of his bounty and to formulate a
rational scheme of distribution?'' would be allowed. McCormick 12.
For similar provisions see Uniform Rule 56(4); California Evidence
Code 805; Kansas Code of Civil Procedures 60-456(d); New Jersey
Evidence Rule 56(3).
Pub. L. 98-473 designated existing provisions as subd. (a), inserted
''Except as provided in subdivision (b)'', and added subd. (b).
28 USC Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The expert may testify in terms of opinion or inference and give
reasons therefor without prior disclosure of the underlying facts or
data, unless the court requires otherwise. The expert may in any event
be required to disclose the underlying facts or data on
cross-examination.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The hypothetical question has been the target of a great deal of
criticism as encouraging partisan bias, affording an opportunity for
summing up in the middle of the case, and as complex and time consuming.
Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426-427 (1952). While the
rule allows counsel to make disclosure of the underlying facts or data
as a preliminary to the giving of an expert opinion, if he chooses, the
instances in which he is required to do so are reduced. This is true
whether the expert bases his opinion on data furnished him at secondhand
or observed by him at firsthand.
The elimination of the requirement of preliminary disclosure at the
trial of underlying facts or data has a long background of support. In
1937 the Commissioners on Uniform State Laws incorporated a provision to
this effect in the Model Expert Testimony Act, which furnished the basis
for Uniform Rules 57 and 58. Rule 4515, N.Y. CPLR (McKinney 1963),
provides:
''Unless the court orders otherwise, questions calling for the
opinion of an expert witness need not be hypothetical in form, and the
witness may state his opinion and reasons without first specifying the
data upon which it is based. Upon cross-examination, he may be required
to specify the data * * *,''
See also California Evidence Code 802; Kansas Code of Civil
Procedure 60-456, 60-457; New Jersey Evidence Rules 57, 58.
If the objection is made that leaving it to the cross-examiner to
bring out the supporting data is essentially unfair, the answer is that
he is under no compulsion to bring out any facts or data except those
unfavorable to the opinion. The answer assumes that the cross-examiner
has the advance knowledge which is essential for effective
cross-examination. This advance knowledge has been afforded, though
imperfectly, by the traditional foundation requirement. Rule 26(b)(4)
of the Rules of Civil Procedure, as revised, provides for substantial
discovery in this area, obviating in large measure the obstacles which
have been raised in some instances to discovery of findings, underlying
data, and even the identity of the experts. Friedenthal, Discovery and
Use of an Adverse Party's Expert Information, 14 Stan.L.Rev. 455 (1962).
These safeguards are reinforced by the discretionary power of the
judge to require preliminary disclosure in any event.
The amendment is technical. No substantive change is intended.
28 USC Rule 706. Court Appointed Experts
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Appointment. -- The court may on its own motion or on the motion
of any party enter an order to show cause why expert witnesses should
not be appointed, and may request the parties to submit nominations.
The court may appoint any expert witnesses agreed upon by the parties,
and may appoint expert witnesses of its own selection. An expert
witness shall not be appointed by the court unless the witness consents
to act. A witness so appointed shall be informed of the witness' duties
by the court in writing, a copy of which shall be filed with the clerk,
or at a conference in which the parties shall have opportunity to
participate. A witness so appointed shall advise the parties of the
witness' findings, if any; the witness' deposition may be taken by any
party; and the witness may be called to testify by the court or any
party. The witness shall be subject to cross-examination by each party,
including a party calling the witness.
(b) Compensation. -- Expert witnesses so appointed are entitled to
reasonable compensation in whatever sum the court may allow. The
compensation thus fixed is payable from funds which may be provided by
law in criminal cases and civil actions and proceedings involving just
compensation under the fifth amendment. In other civil actions and
proceedings the compensation shall be paid by the parties in such
proportion and at such time as the court directs, and thereafter charged
in like manner as other costs.
(c) Disclosure of appointment. -- In the exercise of its discretion,
the court may authorize disclosure to the jury of the fact that the
court appointed the expert witness.
(d) Parties' experts of own selection. -- Nothing in this rule limits
the parties in calling expert witnesses of their own selection.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The practice of shopping for experts, the venality of some experts,
and the reluctance of many reputable experts to involve themselves in
litigation, have been matters of deep concern. Though the contention is
made that court appointed experts acquire an aura of infallibility to
which they are not entitled. Levy, Impartial Medical Testimony --
Revisited, 34 Temple L.Q. 416 (1961), the trend is increasingly to
provide for their use. While experience indicates that actual
appointment is a relatively infrequent occurrence, the assumption may be
made that the availability of the procedure in itself decreases the need
for resorting to it. The ever-present possibility that the judge may
appoint an expert in a given case must inevitably exert a sobering
effect on the expert witness of a party and upon the person utilizing
his services.
The inherent power of a trial judge to appoint an expert of his own
choosing is virtually unquestioned. Scott v. Spanjer Bros., Inc., 298
F.2d 928 (2d Cir. 1962); Danville Tobacco Assn. v. Bryant-Buckner
Associates, Inc., 333 F.2d 202 (4th Cir. 1964); Sink, The Unused Power
of a Federal Judge to Call His Own Expert Witnesses, 29 S.Cal.L.Rev. 195
(1956); 2 Wigmore 563, 9 Id. 2484; Annot., 95 A.L.R.2d 383. Hence
the problem becomes largely one of detail.
The New York plan is well known and is described in Report by Special
Committee of the Association of the Bar of the City of New York:
Impartial Medical Testimony (1956). On recommendation of the Section of
Judicial Administration, local adoption of an impartial medical plan was
endorsed by the American Bar Association. 82 A.B.A.Rep. 184-185 (1957).
Descriptions and analyses of plans in effect in various parts of the
country are found in Van Dusen, A United States District Judge's View of
the Impartial Medical Expert System, 322 F.R.D. 498 (1963); Wick and
Kightlinger, Impartial Medical Testimony Under the Federal Civil Rules:
A Tale of Three Doctors, 34 Ins. Counsel J. 115 (1967); and numerous
articles collected in Klein, Judicial Administration and the Legal
Profession 393 (1963). Statutes and rules include California Evidence
Code 730-733; Illinois Supreme Court Rule 215(d), Ill.Rev.Stat.1969,
c. 110A, 215(d); Burns Indiana Stats. 1956, 9-1702; Wisconsin
Stats.Annot.1958, 957.27.
In the federal practice, a comprehensive scheme for court appointed
experts was initiated with the adoption of Rule 28 of the Federal Rules
of Criminal Procedure in 1946. The Judicial Conference of the United
States in 1953 considered court appointed experts in civil cases, but
only with respect to whether they should be compensated from public
funds, a proposal which was rejected. Report of the Judicial Conference
of the United States 23 (1953). The present rule expands the practice
to include civil cases.
Subdivision (a) is based on Rule 28 of the Federal Rules of Criminal
Procedure, with a few changes, mainly in the interest of clarity.
Language has been added to provide specifically for the appointment
either on motion of a party or on the judge's own motion. A provision
subjecting the court appointed expert to deposition procedures has been
incorporated. The rule has been revised to make definite the right of
any party, including the party calling him, to cross-examine.
Subdivision (b) combines the present provision for compensation in
criminal cases with what seems to be a fair and feasible handling of
civil cases, originally found in the Model Act and carried from there
into Uniform Rule 60. See also California Evidence Code 730-731. The
special provision for Fifth Amendment compensation cases is designed to
guard against reducing constitutionally guaranteed just compensation by
requiring the recipient to pay costs. See Rule 71A(l) of the Rules of
Civil Procedure.
Subdivision (c) seems to be essential if the use of court appointed
experts is to be fully effective. Uniform Rule 61 so provides.
Subdivision (d) is in essence the last sentence of Rule 28(a) of the
Federal Rules of Criminal Procedure.
The amendments are technical. No substantive change is intended.
28 USC ARTICLE VIII. HEARSAY
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The factors to be considered in evaluating the testimony of a witness
are perception, memory, and narration. Morgan, Hearsay Dangers and the
Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948), Selected
Writings on Evidence and Trial 764, 765 (Fryer ed. 1957); Shientag,
Cross-Examination -- A Judge's Viewpoint, 3 Record 12 (1948); Strahorn,
A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev.
484, 485 (1937), Selected Writings, supra, 756, 757: Weinstein,
Probative Force of Hearsay, 46 Iowa L.Rev. 331 (1961). Sometimes a
fourth is added, sincerity, but in fact it seems merely to be an aspect
of the three already mentioned.
In order to encourage the witness to do his best with respect to each
of these factors, and to expose any inaccuracies which may enter in, the
Anglo-American tradition has evolved three conditions under which
witnesses will ideally be required to testify: (1) under oath, (2) in
the personal presence of the trier of fact, (3) subject to
cross-examination.
(1) Standard procedure calls for the swearing of witnesses. While
the practice is perhaps less effective than in an earlier time, no
disposition to relax the requirement is apparent, other than to allow
affirmation by persons with scruples against taking oaths.
(2) The demeanor of the witness traditionally has been believed to
furnish trier and opponent with valuable clues. Universal Camera Corp.
v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 95 L.Ed. 456 (1951);
Sahm, Demeanor Evidence: Elusive and Intangible Imponderables, 47
A.B.A.J. 580 (1961), quoting numerous authorities. The witness himself
will probably be impressed with the solemnity of the occasion and the
possibility of public disgrace. Willingness to falsify may reasonably
become more difficult in the presence of the person against whom
directed. Rules 26 and 43(a) of the Federal Rules of Criminal and Civil
Procedure, respectively, include the general requirement that testimony
be taken orally in open court. The Sixth Amendment right of
confrontation is a manifestation of these beliefs and attitudes.
(3) Emphasis on the basis of the hearsay rule today tends to center
upon the condition of cross-examination. All may not agree with Wigmore
that cross-examination is ''beyond doubt the greatest legal engine ever
invented for the discovery of truth,'' but all will agree with his
statement that it has become a ''vital feature'' of the Anglo-American
system. 5 Wigmore 1367, p. 29. The belief, or perhaps hope, that
cross-examination is effective in exposing imperfections of perception,
memory, and narration is fundamental. Morgan, Foreword to Model Code of
Evidence 37 (1942).
The logic of the preceding discussion might suggest that no testimony
be received unless in full compliance with the three ideal conditions.
No one advocates this position. Common sense tells that much evidence
which is not given under the three conditions may be inherently superior
to much that is. Moreover, when the choice is between evidence which is
less than best and no evidence at all, only clear folly would dictate an
across-the-board policy of doing without. The problem thus resolves
itself into effecting a sensible accommodation between these
considerations and the desirability of giving testimony under the ideal
conditions.
The solution evolved by the common law has been a general rule
excluding hearsay but subject to numerous exceptions under circumstances
supposed to furnish guarantees of trustworthiness. Criticisms of this
scheme are that it is bulky and complex, fails to screen good from bad
hearsay realistically, and inhibits the growth of the law of evidence.
Since no one advocates excluding all hearsay, three possible
solutions may be considered: (1) abolish the rule against hearsay and
admit all hearsay; (2) admit hearsay possessing sufficient probative
force, but with procedural safeguards; (3) revise the present system of
class exceptions.
(1) Abolition of the hearsay rule would be the simplest solution.
The effect would not be automatically to abolish the giving of testimony
under ideal conditions. If the declarant were available, compliance
with the ideal conditions would be optional with either party. Thus the
proponent could call the declarant as a witness as a form of
presentation more impressive than his hearsay statement. Or the
opponent could call the declarant to be cross-examined upon his
statement. This is the tenor of Uniform Rule 63(1), admitting the
hearsay declaration of a person ''who is present at the hearing and
available for cross-examination.'' Compare the treatment of declarations
of available declarants in Rule 801(d)(1) of the instant rules. If the
declarant were unavailable, a rule of free admissibility would make no
distinctions in terms of degrees of noncompliance with the ideal
conditions and would exact no liquid pro quo in the form of assurances
of trustworthiness. Rule 503 of the Model Code did exactly that,
providing for the admissibility of any hearsay declaration by an
unavailable declarant, finding support in the Massachusetts act of 1898,
enacted at the instance of Thayer, Mass.Gen.L.1932, c. 233 65, and in
the English act of 1938, St.1938, c. 28, Evidence. Both are limited to
civil cases. The draftsmen of the Uniform Rules chose a less advanced
and more conventional position. Comment, Uniform Rule 63. The present
Advisory Committee has been unconvinced of the wisdom of abandoning the
traditional requirement of some particular assurance of credibility as a
condition precedent to admitting the hearsay declaration of an
unavailable declarant.
In criminal cases, the Sixth Amendment requirement of confrontation
would no doubt move into a large part of the area presently occupied by
the hearsay rule in the event of the abolition of the latter. The
resultant split between civil and criminal evidence is regarded as an
undesirable development.
(2) Abandonment of the system of class exceptions in favor of
individual treatment in the setting of the particular case, accompanied
by procedural safeguards, has been impressively advocated. Weinstein,
The Probative Force of Hearsay, 46 Iowa L.Rev. 331 (1961).
Admissibility would be determined by weighing the probative force of the
evidence against the possibility of prejudice, waste of time, and the
availability of more satisfactory evidence. The bases of the
traditional hearsay exceptions would be helpful in assessing probative
force. Ladd, The Relationship of the Principles of Exclusionary Rules
of Evidence to the Problem of Proof, 18 Minn.L.Rev. 506 (1934).
Procedural safeguards would consist of notice of intention to use
hearsay, free comment by the judge on the weight of the evidence, and a
greater measure of authority in both trial and appellate judges to deal
with evidence on the basis of weight. The Advisory Committee has
rejected this approach to hearsay as involving too great a measure of
judicial discretion, minimizing the predictability of rulings, enhancing
the difficulties of preparation for trial, adding a further element to
the already over-complicated congeries of pre-trial procedures, and
requiring substantially different rules for civil and criminal cases.
The only way in which the probative force of hearsay differs from the
probative force of other testimony is in the absence of oath, demeanor,
and cross-examination as aids in determining credibility. For a judge
to exclude evidence because he does not believe it has been described as
''altogether atypical, extraordinary. * * *'' Chadbourn, Bentham and
the Hearsay Rule -- A Benthamic View of Rule 63(4)(c) of the Uniform
Rules of Evidence, 75 Harv.L.Rev. 932, 947 (1962).
(3) The approach to hearsay in these rules is that of the common law,
i.e., a general rule excluding hearsay, with exceptions under which
evidence is not required to be excluded even though hearsay. The
traditional hearsay exceptions are drawn upon for the exceptions,
collected under two rules, one dealing with situations where
availability of the declarant is regarded as immaterial and the other
with those where unavailability is made a condition to the admission of
the hearsay statement. Each of the two rules concludes with a provision
for hearsay statements not within one of the specified exceptions ''but
having comparable circumstantial guarantees of trustworthiness.'' Rules
803(24) and 804(b)(6). This plan is submitted as calculated to
encourage growth and development in this area of the law, while
conserving the values and experience of the past as a guide to the
future.
Until very recently, decisions invoking the confrontation clause of
the Sixth Amendment were surprisingly few, a fact probably explainable
by the former inapplicability of the clause to the states and by the
hearsay rule's occupancy of much the same ground. The pattern which
emerges from the earlier cases invoking the clause is substantially that
of the hearsay rule, applied to criminal cases: an accused is entitled
to have the witnesses against him testify under oath, in the presence of
himself and trier, subject to cross-examination; yet considerations of
public policy and necessity require the recognition of such exceptions
as dying declarations and former testimony of unavailable witnesses.
Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409
(1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed.
1150 (1900); Delaney v. United States, 263 U.S. 586, 44 S.Ct. 206, 68
L.Ed. 462 (1924). Beginning with Snyder v. Massachusetts, 291 U.S. 97,
54 S.Ct. 330, 78 L.Ed. 674 (1934), the Court began to speak of
confrontation as an aspect of procedural due process, thus extending its
applicability to state cases and to federal cases other than criminal.
The language of Snyder was that of an elastic concept of hearsay. The
deportation case of Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89
L.Ed. 2103 (1945), may be read broadly as imposing a strictly construed
right of confrontation in all kinds of cases or narrowly as the product
of a failure of the Immigration and Naturalization Service to follow its
own rules. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682
(1948), ruled that cross-examination was essential to due process in a
state contempt proceeding, but in United States v. Nugent, 346 U.S. 1,
73 S.Ct. 991, 97 L.Ed. 1417 (1953), the court held that it was not an
essential aspect of a ''hearing'' for a conscientious objector under the
Selective Service Act. Stein v. New York, 346 U.S. 156, 196, 73 S.Ct.
1077, 97 L.Ed. 1522 (1953), disclaimed any purpose to read the hearsay
rule into the Fourteenth Amendment, but in Greene v. McElroy, 360 U.S.
474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), revocation of security
clearance without confrontation and cross-examination was held
unauthorized, and a similar result was reached in Willner v. Committee
on Character, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963).
Ascertaining the constitutional dimensions of the confrontation-hearsay
aggregate against the background of these cases is a matter of some
difficulty, yet the general pattern is at least not inconsistent with
that of the hearsay rule.
In 1965 the confrontation clause was held applicable to the states.
Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
Prosecution use of former testimony given at a preliminary hearing where
petitioner was not represented by counsel was a violation of the clause.
The same result would have followed under conventional hearsay doctrine
read in the light of a constitutional right to counsel, and nothing in
the opinion suggests any difference in essential outline between the
hearsay rule and the right of confrontation. In the companion case of
Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965),
however, the result reached by applying the confrontation clause is one
reached less readily via the hearsay rule. A confession implicating
petitioner was put before the jury by reading it to the witness in
portions and asking if he made that statement. The witness refused to
answer on grounds of self-incrimination. The result, said the Court,
was to deny cross-examination, and hence confrontation. True, it could
broadly be said that the confession was a hearsay statement which for
all practical purposes was put in evidence. Yet a more easily accepted
explanation of the opinion is that its real thrust was in the direction
of curbing undesirable prosecutorial behavior, rather than merely
applying rules of exclusion, and that the confrontation clause was the
means selected to achieve this end. Comparable facts and a like result
appeared in Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d
314 (1966).
The pattern suggested in Douglas was developed further and more
distinctly in a pair of cases at the end of the 1966 term. United
States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967),
and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178
(1967), hinged upon practices followed in identifying accused persons
before trial. This pretrial identification was said to be so decisive
an aspect of the case that accused was entitled to have counsel present;
a pretrial identification made in the absence of counsel was not itself
receivable in evidence and, in addition, might fatally infect a
courtroom identification. The presence of counsel at the earlier
identification was described as a necessary prerequisite for ''a
meaningful confrontation at trial.'' United States v. Wade, supra, 388
U.S. at p. 236, 87 S.Ct. at p. 1937. Wade involved no evidence of the
fact of a prior identification and hence was not susceptible of being
decided on hearsay grounds. In Gilbert, witnesses did testify to an
earlier identification, readily classifiable as hearsay under a fairly
strict view of what constitutes hearsay. The Court, however, carefully
avoided basing the decision on the hearsay ground, choosing
confrontation instead. 388 U.S. 263, 272, n. 3, 87 S.Ct. 1951. See
also Parker v. Gladden, 385 U.S. 363 87 S.Ct. 468, 17 L.Ed.2d 420
(1966), holding that the right of confrontation was violated when the
bailiff made prejudicial statements to jurors, and Note, 75, Yale L.J.
1434 (1966).
Under the earlier cases, the confrontation clause may have been
little more than a constitutional embodiment of the hearsay rule, even
including traditional exceptions but with some room for expanding them
along similar lines. But under the recent cases the impact of the
clause clearly extends beyond the confines of the hearsay rule. These
considerations have led the Advisory Committee to conclude that a
hearsay rule can function usefully as an adjunct to the confrontation
right in constitutional areas and independently in nonconstitutional
areas. In recognition of the separateness of the confrontation clause
and the hearsay rule, and to avoid inviting collisions between them or
between the hearsay rule and other exclusionary principles, the
exceptions set forth in Rules 803 and 804 are stated in terms of
exemption from the general exclusionary mandate of the hearsay rule,
rather than in positive terms of admissibility. See Uniform Rule 63(1)
to (31) and California Evidence Code 1200-1340.
28 USC Rule 801. Definitions
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The following definitions apply under this article:
(a) Statement. -- A ''statement'' is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the person as
an assertion.
(b) Declarant. -- A ''declarant'' is a person who makes a statement.
(c) Hearsay. -- ''Hearsay'' is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
(d) Statements which are not hearsay. -- A statement is not hearsay
if --
(1) Prior statement by witness. -- The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with the declarant's
testimony, and was given under oath subject to the penalty of perjury at
a trial, hearing, or other proceeding, or in a deposition, or (B)
consistent with the declarant's testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or
improper influence or motive, or (C) one of identification of a person
made after perceiving the person; or
(2) Admission by party-opponent. -- The statement is offered against
a party and is (A) the party's own statement in either an individual or
a representative capacity or (B) a statement of which the party has
manifested an adoption or belief in its truth, or (C) a statement by a
person authorized by the party to make a statement concerning the
subject, or (D) a statement by the party's agent or servant concerning a
matter within the scope of the agency or employment, made during the
existence of the relationship, or (E) a statement by a coconspirator of
a party during the course and in furtherance of the conspiracy.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1938; Pub. L. 94-113,
1, Oct. 16, 1975, 89 Stat. 576; Mar. 2, 1987, eff. Oct. 1, 1987.)
Subdivision (a). The definition of ''statement'' assumes importance
because the term is used in the definition of hearsay in subdivision
(c). The effect of the definition of ''statement'' is to exclude from
the operation of the hearsay rule all evidence of conduct, verbal or
nonverbal, not intended as an assertion. The key to the definition is
that nothing is an assertion unless intended to be one.
It can scarcely be doubted that an assertion made in words is
intended by the declarant to be an assertion. Hence verbal assertions
readily fall into the category of ''statement.'' Whether nonverbal
conduct should be regarded as a statement for purposes of defining
hearsay requires further consideration. Some nonverbal conduct, such as
the act of pointing to identify a suspect in a lineup, is clearly the
equivalent of words, assertive in nature, and to be regarded as a
statement. Other nonverbal conduct, however, may be offered as evidence
that the person acted as he did because of his belief in the existence
of the condition sought to be proved, from which belief the existence of
the condition may be inferred. This sequence is, arguably, in effect an
assertion of the existence of the condition and hence properly
includable within the hearsay concept. See Morgan, Hearsay Dangers and
the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 214, 217
(1948), and the elaboration in Finman, Implied Assertions as Hearsay:
Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682
(1962). Admittedly evidence of this character is untested with respect
to the perception, memory, and narration (or their equivalents) of the
actor, but the Advisory Committee is of the view that these dangers are
minimal in the absence of an intent to assert and do not justify the
loss of the evidence on hearsay grounds. No class of evidence is free
of the possibility of fabrication, but the likelihood is less with
nonverbal than with assertive verbal conduct. The situations giving
rise to the nonverbal conduct are such as virtually to eliminate
questions of sincerity. Motivation, the nature of the conduct, and the
presence or absence of reliance will bear heavily upon the weight to be
given the evidence. Falknor, The ''Hear-Say'' Rule as a ''See-Do''
Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. 133 (1961). Similar
considerations govern nonassertive verbal conduct and verbal conduct
which is assertive but offered as a basis for inferring something other
than the matter asserted, also excluded from the definition of hearsay
by the language of subdivision (c).
When evidence of conduct is offered on the theory that it is not a
statement, and hence not hearsay, a preliminary determination will be
required to determine whether an assertion is intended. The rule is so
worded as to place the burden upon the party claiming that the intention
existed; ambiguous and doubtful cases will be resolved against him and
in favor of admissibility. The determination involves no greater
difficulty than many other preliminary questions of fact. Maguire, The
Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741,
765-767 (1961).
For similar approaches, see Uniform Rule 62(1); California Evidence
Code 225, 1200; Kansas Code of Civil Procedure 60-459(a); New
Jersey Evidence Rule 62(1)
Subdivision (c). The definition follows along familiar lines in
including only statements offered to prove the truth of the matter
asserted. McCormick 225; 5 Wigmore 1361, 6 id. 1766. If the
significance of an offered statement lies solely in the fact that it was
made, no issue is raised as to the truth of anything asserted, and the
statement is not hearsay. Emich Motors Corp. v. General Motors Corp.,
181 F.2d 70 (7th Cir. 1950), rev'd on other grounds 340 U.S. 558, 71
S.Ct. 408, 95 L.Ed 534, letters of complaint from customers offered as a
reason for cancellation of dealer's franchise, to rebut contention that
franchise was revoked for refusal to finance sales through affiliated
finance company. The effect is to exclude from hearsay the entire
category of ''verbal acts'' and ''verbal parts of an act,'' in which the
statement itself affects the legal rights of the parties or is a
circumstance bearing on conduct affecting their rights.
The definition of hearsay must, of course, be read with reference to
the definition of statement set forth in subdivision (a).
Testimony given by a witness in the course of court proceedings is
excluded since there is compliance with all the ideal conditions for
testifying.
Subdivision (d). Several types of statements which would otherwise
literally fall within the definition are expressly excluded from it:
(1) Prior statement by witness. Considerable controversy has
attended the question whether a prior out-of-court statement by a person
now available for cross-examination concerning it, under oath and in the
presence of the trier of fact, should be classed as hearsay. If the
witness admits on the stand that he made the statement and that it was
true, he adopts the statement and there is no hearsay problem. The
hearsay problem arises when the witness on the stand denies having made
the statement or admits having made it but denies its truth. The
argument in favor of treating these latter statements as hearsay is
based upon the ground that the conditions of oath, cross-examination,
and demeanor observation did not prevail at the time the statement was
made and cannot adequately be supplied by the later examination. The
logic of the situation is troublesome. So far as concerns the oath, its
mere presence has never been regarded as sufficient to remove a
statement from the hearsay category, and it receives much less emphasis
than cross-examination as a truth-compelling device. While strong
expressions are found to the effect that no conviction can be had or
important right taken away on the basis of statements not made under
fear of prosecution for perjury, Bridges v. Wixon, 326 U.S. 135, 65
S.Ct. 1443, 89 L.Ed. 2103 (1945), the fact is that, of the many common
law exceptions to the hearsay rule, only that for reported testimony has
required the statement to have been made under oath. Nor is it
satisfactorily explained why cross-examination cannot be conducted
subsequently with success. The decisions contending most vigorously for
its inadequacy in fact demonstrate quite thorough exploration of the
weaknesses and doubts attending the earlier statement. State v.
Saporen, 205 Minn. 358, 285 N.W. 898 (1939); Ruhala v. Roby, 379
Mich. 102, 150 N.W.2d 146 (1967); People v. Johnson, 68 Cal.2d 646,
68 Cal.Rptr. 599, 441 P.2d 111 (1968). In respect to demeanor, as Judge
Learned Hand observed in Di Carlo v. United States, 6 F.2d 364 (2d Cir.
1925), when the jury decides that the truth is not what the witness says
now, but what he said before, they are still deciding from what they see
and hear in court. The bulk of the case law nevertheless has been
against allowing prior statements of witnesses to be used generally as
substantive evidence. Most of the writers and Uniform Rule 63(1) have
taken the opposite position.
The position taken by the Advisory Committee in formulating this part
of the rule is founded upon an unwillingness to countenance the general
use of prior prepared statements as substantive evidence, but with a
recognition that particular circumstances call for a contrary result.
The judgment is one more of experience than of logic. The rule requires
in each instance, as a general safeguard, that the declarant actually
testify as a witness, and it then enumerates three situations in which
the statement is excepted from the category of hearsay. Compare Uniform
Rule 63(1) which allows any out-of-court statement of a declarant who is
present at the trial and available for cross-examination.
(A) Prior inconsistent statements traditionally have been admissible
to impeach but not as substantive evidence. Under the rule they are
substantive evidence. As has been said by the California Law Revision
Commission with respect to a similar provision:
''Section 1235 admits inconsistent statements of witnesses because
the dangers against which the hearsay rule is designed to protect are
largely nonexistent. The declarant is in court and may be examined and
cross-examined in regard to his statements and their subject matter. In
many cases, the inconsistent statement is more likely to be true than
the testimony of the witness at the trial because it was made nearer in
time to the matter to which it relates and is less likely to be
influenced by the controversy that gave rise to the litigation. The
trier of fact has the declarant before it and can observe his demeanor
and the nature of his testimony as he denies or tries to explain away
the inconsistency. Hence, it is in as good a position to determine the
truth or falsity of the prior statement as it is to determine the truth
or falsity of the inconsistent testimony given in court. Moreover,
Section 1235 will provide a party with desirable protection against the
'turncoat' witness who changes his story on the stand and deprives the
party calling him of evidence essential to his case.'' Comment,
California Evidence Code 1235. See also McCormick 39. The Advisory
Committee finds these views more convincing than those expressed in
People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111
(1968). The constitutionality of the Advisory Committee's view was
upheld in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d
489 (1970). Moreover, the requirement that the statement be
inconsistent with the testimony given assures a thorough exploration of
both versions while the witness is on the stand and bars any general and
indiscriminate use of previously prepared statements.
(B) Prior consistent statements traditionally have been admissible to
rebut charges of recent fabrication or improper influence or motive but
not as substantive evidence. Under the rule they are substantive
evidence. The prior statement is consistent with the testimony given on
the stand, and, if the opposite party wishes to open the door for its
admission in evidence, no sound reason is apparent why it should not be
received generally.
(C) The admission of evidence of identification finds substantial
support, although it falls beyond a doubt in the category of prior
out-of-court statements. Illustrative are People v. Gould, 54 Cal.2d
621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960); Judy v. State, 218 Md.
168, 146 A.2d 29 (1958); State v. Simmons, 63 Wash.2d 17, 385 P.2d 389
(1963); California Evidence Code 1238; New Jersey Evidence Rule
63(1)(c); N.Y. Code of Criminal Procedure 393-b. Further cases are
found in 4 Wigmore 1130. The basis is the generally unsatisfactory and
inconclusive nature of courtroom identifications as compared with those
made at an earlier time under less suggestive conditions. The Supreme
Court considered the admissibility of evidence of prior identification
in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178
(1967). Exclusion of lineup identification was held to be required
because the accused did not then have the assistance of counsel.
Significantly, the Court carefully refrained from placing its decision
on the ground that testimony as to the making of a prior out-of-court
identification (''That's the man'') violated either the hearsay rule or
the right of confrontation because not made under oath, subject to
immediate cross-examination, in the presence of the trier. Instead the
Court observed:
''There is a split among the States concerning the admissibility of
prior extra-judicial identifications, as independent evidence of
identity, both by the witness and third parties present at the prior
identification. See 71 ALR2d 449. It has been held that the prior
identification is hearsay, and, when admitted through the testimony of
the identifier, is merely a prior consistent statement. The recent
trend, however, is to admit the prior identification under the exception
that admits as substantive evidence a prior communication by a witness
who is available for cross-examination at the trial. See 5 ALR2d Later
Case Service 1225-1228. * * *'' 388 U.S. at 272, n. 3, 87 S.Ct. at
1956.
(2) Admissions. Admissions by a party-opponent are excluded from the
category of hearsay on the theory that their admissibility in evidence
is the result of the adversary system rather than satisfaction of the
conditions of the hearsay rule. Strahorn, A Reconsideration of the
Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan,
Basic Problems of Evidence 265 (1962); 4 Wigmore 1048. No guarantee
of trustworthiness is required in the case of an admission. The freedom
which admissions have enjoyed from technical demands of searching for an
assurance of trustworthiness in some against-interest circumstance, and
from the restrictive influences of the opinion rule and the rule
requiring firsthand knowledge, when taken with the apparently prevalent
satisfaction with the results, calls for generous treatment of this
avenue to admissibility.
The rule specifies five categories of statements for which the
responsibility of a party is considered sufficient to justify reception
in evidence against him:
(A) A party's own statement is the classic example of an admission.
If he has a representative capacity and the statement is offered against
him in that capacity, no inquiry whether he was acting in the
representative capacity in making the statement is required; the
statement need only be relevant to represent affairs. To the same
effect in California Evidence Code 1220. Compare Uniform Rule 63(7),
requiring a statement to be made in a representative capacity to be
admissible against a party in a representative capacity.
(B) Under established principles an admission may be made by adopting
or acquiescing in the statement of another. While knowledge of contents
would ordinarily be essential, this is not inevitably so: ''X is a
reliable person and knows what he is talking about.'' See McCormick
246, p. 527, n. 15. Adoption or acquiescence may be manifested in any
appropriate manner. When silence is relied upon, the theory is that the
person would, under the circumstances, protest the statement made in his
presence, if untrue. The decision in each case calls for an evaluation
in terms of probable human behavior. In civil cases, the results have
generally been satisfactory. In criminal cases, however, troublesome
questions have been raised by decisions holding that failure to deny is
an admission: the inference is a fairly weak one, to begin with;
silence may be motivated by advice of counsel or realization that
''anything you say may be used against you''; unusual opportunity is
afforded to manufacture evidence; and encroachment upon the privilege
against self-incrimination seems inescapably to be involved. However,
recent decisions of the Supreme Court relating to custodial
interrogation and the right to counsel appear to resolve these
difficulties. Hence the rule contains no special provisions concerning
failure to deny in criminal cases.
(C) No authority is required for the general proposition that a
statement authorized by a party to be made should have the status of an
admission by the party. However, the question arises whether only
statements to third persons should be so regarded, to the exclusion of
statements by the agent to the principal. The rule is phrased broadly
so as to encompass both. While it may be argued that the agent
authorized to make statements to his principal does not speak for him,
Morgan, Basic Problems of Evidence 273 (1962), communication to an
outsider has not generally been thought to be an essential
characteristic of an admission. Thus a party's books or records are
usable against him, without regard to any intent to disclose to third
persons. 5 Wigmore 1557. See also McCormick 78, pp. 159-161. In
accord is New Jersey Evidence Rule 63(8)(a). Cf. Uniform Rule 63(8)(a)
and California Evidence Code 1222 which limit status as an admission in
this regard to statements authorized by the party to be made ''for''
him, which is perhaps an ambiguous limitation to statements to third
persons. Falknor, Vicarious Admissions and the Uniform Rules, 14
Vand.L. Rev. 855, 860-861 (1961).
(D) The tradition has been to test the admissibility of statements by
agents, as admissions, by applying the usual test of agency. Was the
admission made by the agent acting in the scope of his employment?
Since few principals employ agents for the purpose of making damaging
statements, the usual result was exclusion of the statement.
Dissatisfaction with this loss of valuable and helpful evidence has been
increasing. A substantial trend favors admitting statements related to
a matter within the scope of the agency or employment. Grayson v.
Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart
Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 110 U.S.App.D.C.
282, 292 F.2d 775, 784 (1961); Martin v. Savage Truck Lines, Inc., 121
F.Supp. 417 (D.D.C. 1054), and numerous state court decisions collected
in 4 Wigmore, 1964 Supp., pp. 66-73, with comments by the editor that
the statements should have been excluded as not within scope of agency.
For the traditional view see Northern Oil Co. v. Socony Mobile Oil Co.,
347 F.2d 81, 85 (2d Cir. 1965) and cases cited therein. Similar
provisions are found in Uniform Rule 63(9)(a), Kansas Code of Civil
Procedure 60-460(i)(1), and New Jersey Evidence Rule 63(9)(a).
(E) The limitation upon the admissibility of statements of
co-conspirators to those made ''during the course and in furtherance of
the conspiracy'' is in the accepted pattern. While the broadened view
of agency taken in item (iv) might suggest wider admissibility of
statements of co-conspirators, the agency theory of conspiracy is at
best a fiction and ought not to serve as a basis for admissibility
beyond that already established. See Levie, Hearsay and Conspiracy, 52
Mich.L.Rev. 1159 (1954); Comment, 25 U.Chi.L.Rev. 530 (1958). The rule
is consistent with the position of the Supreme Court in denying
admissibility to statements made after the objectives of the conspiracy
have either failed or been achieved. Krulewitch v. United States, 336
U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Wong Sun v. United
States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For
similarly limited provisions see California Evidence Code 1223 and New
Jersey Rule 63(9)(b). Cf. Uniform Rule 63(9)(b).
Present federal law, except in the Second Circuit, permits the use of
prior inconsistent statements of a witness for impeachment only. Rule
801(d)(1) as proposed by the Court would have permitted all such
statements to be admissible as substantive evidence, an approach
followed by a small but growing number of State jurisdictions and
recently held constitutional in California v. Green, 399 U.S. 149
(1970). Although there was some support expressed for the Court Rule,
based largely on the need to counteract the effect of witness
intimidation in criminal cases, the Committee decided to adopt a
compromise version of the Rule similar to the position of the Second
Circuit. The Rule as amended draws a distinction between types of prior
inconsistent statements (other than statements of identification of a
person made after perceiving him which are currently admissible, see
United States v. Anderson, 406 F.2d 719, 720 (4th Cir.), cert. denied,
395 U.S. 967 (1969)) and allows only those made while the declarant was
subject to cross-examination at a trial or hearing or in a deposition,
to be admissible for their truth. Compare United States v. DeSisto,
329 F.2d 929 (2nd Cir.), cert. denied, 377 U.S. 979 (1964); United
States v. Cunningham, 446 F.2d 194 (2nd Cir. 1971) (restricting the
admissibility of prior inconsistent statements as substantive evidence
to those made under oath in a formal proceeding, but not requiring that
there have been an opportunity for cross-examination). The rationale
for the Committee's decision is that (1) unlike in most other situations
involving unsworn or oral statements, there can be no dispute as to
whether the prior statement was made; and (2) the context of a formal
proceeding, an oath, and the opportunity for cross-examination provide
firm additional assurances of the reliability of the prior statement.
Rule 801 defines what is and what is not hearsay for the purpose of
admitting a prior statement as substantive evidence. A prior statement
of a witness at a trial or hearing which is inconsistent with his
testimony is, of course, always admissible for the purpose of impeaching
the witness' credibility.
As submitted by the Supreme Court, subdivision (d)(1)(A) made
admissible as substantive evidence the prior statement of a witness
inconsistent with his present testimony.
The House severely limited the admissibility of prior inconsistent
statements by adding a requirement that the prior statement must have
been subject to cross-examination, thus precluding even the use of grand
jury statements. The requirement that the prior statement must have
been subject to cross-examination appears unnecessary since this rule
comes into play only when the witness testifies in the present trial.
At that time, he is on the stand and can explain an earlier position and
be cross-examined as to both.
The requirement that the statement be under oath also appears
unnecessary. Notwithstanding the absence of an oath contemporaneous
with the statement, the witness, when on the stand, qualifying or
denying the prior statement, is under oath. In any event, of all the
many recognized exceptions to the hearsay rule, only one (former
testimony) requires that the out-of-court statement have been made under
oath. With respect to the lack of evidence of the demeanor of the
witness at the time of the prior statement, it would be difficult to
improve upon Judge Learned Hand's observation that when the jury decides
that the truth is not what the witness says now but what he said before,
they are still deciding from what they see and hear in court (Di Carlo
v. U.S., 6 F.2d 364 (2d Cir. 1925)).
The rule as submitted by the Court has positive advantages. The
prior statement was made nearer in time to the events, when memory was
fresher and intervening influences had not been brought into play. A
realistic method is provided for dealing with the turncoat witness who
changes his story on the stand (see Comment, California Evidence Code
1235; McCormick, Evidence, 38 (2nd ed. 1972)).
New Jersey, California, and Utah have adopted a rule similar to this
one; and Nevada, New Mexico, and Wisconsin have adopted the identical
Federal rule.
For all of these reasons, we think the House amendment should be
rejected and the rule as submitted by the Supreme Court reinstated. (It
would appear that some of the opposition to this Rule is based on a
concern that a person could be convicted solely upon evidence admissible
under this Rule. The Rule, however, is not addressed to the question of
the sufficiency of evidence to send a case to the jury, but merely as to
its admissibility. Factual circumstances could well arise where, if this
were the sole evidence, dismissal would be appropriate).
As submitted by the Supreme Court and as passed by the House,
subdivision (d)(1)(c) of rule 801 made admissible the prior statement
identifying a person made after perceiving him. The committee decided
to delete this provision because of the concern that a person could be
convicted solely upon evidence admissible under this subdivision.
The House approved the long-accepted rule that ''a statement by a
coconspirator of a party during the course and in furtherance of the
conspiracy'' is not hearsay as it was submitted by the Supreme Court.
While the rule refers to a coconspirator, it is this committee's
understanding that the rule is meant to carry forward the universally
accepted doctrine that a joint venturer is considered as a coconspirator
for the purposes of this rule even though no conspiracy has been
charged. United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert.
denied 393 U.S. 913 (1968); United States v. Spencer, 415 F.2d 1301,
1304 (7th Cir. 1969).
Rule 801 supplies some basic definitions for the rules of evidence
that deal with hearsay. Rule 801(d)(1) defines certain statements as
not hearsay. The Senate amendments make two changes in it.
The House bill provides that a statement is not hearsay if the
declarant testifies and is subject to cross-examination concerning the
statement and if the statement is inconsistent with his testimony and
was given under oath subject to cross-examination and subject to the
penalty of perjury at a trial or hearing or in a deposition. The Senate
amendment drops the requirement that the prior statement be given under
oath subject to cross-examination and subject to the penalty of perjury
at a trial or hearing or in a deposition.
The Conference adopts the Senate amendment with an amendment, so that
the rule now requires that the prior inconsistent statement be given
under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition. The rule as adopted covers
statements before a grand jury. Prior inconsistent statements may, of
course, be used for impeaching the credibility of a witness. When the
prior inconsistent statement is one made by a defendant in a criminal
case, it is covered by Rule 801(d)(2).
The House bill provides that a statement is not hearsay if the
declarant testifies and is subject to cross-examination concerning the
statement and the statement is one of identification of a person made
after perceiving him. The Senate amendment eliminated this provision.
The Conference adopts the Senate amendment.
The amendments are technical. No substantive change is intended.
Subd. (d)(1). Pub. L. 94-113 added cl. (C).
Section 2 of Pub. L. 94-113 provided that: ''This Act (enacting
subd. (d)(1)(C)) shall become effective on the fifteenth day after the
date of the enactment of this Act (Oct. 16, 1975).''
28 USC Rule 802. Hearsay Rule
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1939.)
The provision excepting from the operation of the rule hearsay which
is made admissible by other rules adopted by the Supreme Court or by Act
of Congress continues the admissibility thereunder of hearsay which
would not qualify under these Evidence Rules. The following examples
illustrate the working of the exception:
Rule 4(g): proof of service by affidavit.
Rule 32: admissibility of depositions.
Rule 43(e): affidavits when motion based on facts not appearing of
record.
Rule 56: affidavits in summary judgment proceedings.
Rule 65(b): showing by affidavit for temporary restraining order.
Rule 4(a): affidavits to show grounds for issuing warrants.
Rule 12(b)(4): affidavits to determine issues of fact in connection
with motions.
10 U.S.C. 7730: affidavits of unavailable witnesses in actions for
damages caused by vessel in naval service, or towage or salvage of same,
when taking of testimony or bringing of action delayed or stayed on
security grounds.
29 U.S.C. 161(4): affidavit as proof of service in NLRB
proceedings.
38 U.S.C. 5206: affidavit as proof of posting notice of sale of
unclaimed property by Veterans Administration.
28 USC Rule 803. Hearsay Exceptions; Availability of Declarant
Immaterial
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(1) Present sense impression. -- A statement describing or explaining
an event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter.
(2) Excited utterance. -- A statement relating to a startling event
or condition made while the declarant was under the stress of excitement
caused by the event or condition.
(3) Then existing mental, emotional, or physical condition. -- A
statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement
of memory or belief to prove the fact remembered or believed unless it
relates to the execution, revocation, identification, or terms of
declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. --
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or
treatment.
(5) Recorded recollection. -- A memorandum or record concerning a
matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter was
fresh in the witness' memory and to reflect that knowledge correctly.
If admitted, the memorandum or record may be read into evidence but may
not itself be received as an exhibit unless offered by an adverse party.
(6) Records of regularly conducted activity. -- A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report,
record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the source of information
or the method or circumstances of preparation indicate lack of
trustworthiness. The term ''business'' as used in this paragraph
includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6). -- Evidence that a matter is not included
in the memoranda reports, records, or data compilations, in any form,
kept in accordance with the provisions of paragraph (6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind
of which a memorandum, report, record, or data compilation was regularly
made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(8) Public records and reports. -- Records, reports, statements, or
data compilations, in any form, of public offices or agencies, setting
forth (A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there was a
duty to report, excluding, however, in criminal cases matters observed
by police officers and other law enforcement personnel, or (C) in civil
actions and proceedings and against the Government in criminal cases,
factual findings resulting from an investigation made pursuant to
authority granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(9) Records of vital statistics. -- Records or data compilations, in
any form, of births, fetal deaths, deaths, or marriages, if the report
thereof was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. -- To prove the absence of a
record, report, statement, or data compilation, in any form, or the
nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a
certification in accordance with rule 902, or testimony, that diligent
search failed to disclose the record, report, statement, or data
compilation, or entry.
(11) Records of religious organizations. -- Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood
or marriage, or other similar facts of personal or family history,
contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. -- Statements of
fact contained in a certificate that the maker performed a marriage or
other ceremony or administered a sacrament, made by a clergyman, public
official, or other person authorized by the rules or practices of a
religious organization or by law to perform the act certified, and
purporting to have been issued at the time of the act or within a
reasonable time thereafter.
(13) Family records. -- Statements of fact concerning personal or
family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings on
urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property. -- The
record of a document purporting to establish or affect an interest in
property, as proof of the content of the original recorded document and
its execution and delivery by each person by whom it purports to have
been executed, if the record is a record of a public office and an
applicable statute authorizes the recording of documents of that kind in
that office.
(15) Statements in documents affecting an interest in property. -- A
statement contained in a document purporting to establish or affect an
interest in property if the matter stated was relevant to the purpose of
the document, unless dealings with the property since the document was
made have been inconsistent with the truth of the statement or the
purport of the document.
(16) Statements in ancient documents. -- Statements in a document in
existence twenty years or more the authenticity of which is established.
(17) Market reports, commercial publications. -- Market quotations,
tabulations, lists, directories, or other published compilations,
generally used and relied upon by the public or by persons in particular
occupations.
(18) Learned treatises. -- To the extent called to the attention of
an expert witness upon cross-examination or relied upon by the expert
witness in direct examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of history, medicine,
or other science or art, established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or by
judicial notice. If admitted, the statements may be read into evidence
but may not be received as exhibits.
(19) Reputation concerning personal or family history. -- Reputation
among members of a person's family by blood, adoption, or marriage, or
among a person's associates, or in the community, concerning a person's
birth, adoption, marriage, divorce, death, legitimacy, relationship by
blood, adoption, or marriage, ancestry, or other similar fact of
personal or family history.
(20) Reputation concerning boundaries or general history. --
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the community or
State or nation in which located.
(21) Reputation as to character. -- Reputation of a person's
character among associates or in the community.
(22) Judgment of previous conviction. -- Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but not upon a
plea of nolo contendere), adjudging a person guilty of a crime
punishable by death or imprisonment in excess of one year, to prove any
fact essential to sustain the judgment, but not including, when offered
by the Government in a criminal prosecution for purposes other than
impeachment, judgments against persons other than the accused. The
pendency of an appeal may be shown but does not affect admissibility.
(23) Judgment as to personal, family, or general history, or
boundaries. -- Judgments as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the same
would be provable by evidence of reputation.
(24) Other exceptions. -- A statement not specifically covered by any
of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of justice
will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance
of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to offer
the statement and the particulars of it, including the name and address
of the declarant.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1939; Pub. L. 94-149,
1(11), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987.)
The exceptions are phrased in terms of nonapplication of the hearsay
rule, rather than in positive terms of admissibility, in order to repel
any implication that other possible grounds for exclusion are eliminated
from consideration.
The present rule proceeds upon the theory that under appropriate
circumstances a hearsay statement may possess circumstantial guarantees
of trustworthiness sufficient to justify nonproduction of the declarant
in person at the trial even though he may be available. The theory
finds vast support in the many exceptions to the hearsay rule developed
by the common law in which unavailability of the declarant is not a
relevant factor. The present rule is a synthesis of them, with revision
where modern developments and conditions are believed to make that
course appropriate.
In a hearsay situation, the declarant is, of course, a witness, and
neither this rule nor Rule 804 dispenses with the requirement of
firsthand knowledge. It may appear from his statement or be inferable
from circumstances.
See Rule 602.
Exceptions (1) and (2). In considerable measure these two examples
overlap, though based on somewhat different theories. The most
significant practical difference will lie in the time lapse allowable
between event and statement.
The underlying theory of Exception (paragraph) (1) is that
substantial contemporaneity of event and statement negative the
likelihood of deliberate of conscious misrepresentation. Moreover, if
the witness is the declarant, he may be examined on the statement. If
the witness is not the declarant, he may be examined as to the
circumstances as an aid in evaluating the statement. Morgan, Basic
Problems of Evidence 340-341 (1962).
The theory of Exception (paragraph) (2) is simply that circumstances
may produce a condition of excitement which temporarily stills the
capacity of reflection and produces utterances free of conscious
fabrication. 6 Wigmore 1747, p. 135. Spontaneity is the key factor in
each instance, though arrived at by somewhat different routes. Both are
needed in order to avoid needless niggling.
While the theory of Exception (paragraph) (2) has been criticized on
the ground that excitement impairs accuracy of observation as well as
eliminating conscious fabrication, Hutchins and Slesinger, Some
Observations on the Law of Evidence: Spontaneous Exclamations, 28
Colum.L.Rev. 432 (1928), it finds support in cases without number. See
cases in 6 Wigmore 1750; Annot., 53 A.L.R.2d 1245 (statements as to
cause of or responsibility for motor vehicle accident); Annot., 4
A.L.R.3d 149 (accusatory statements by homicide victims). Since
unexciting events are less likely to evoke comment, decisions involving
Exception (paragraph) (1) are far less numerous. Illustrative are Tampa
Elec. Co. v. Getrost, 151 Fla. 558, 10 So.2d 83 (1942); Houston
Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942); and cases
cited in McCormick 273, p. 585, n. 4.
With respect to the time element, Exception (paragraph) (1)
recognizes that in many, if not most, instances precise contemporaneity
is not possible, and hence a slight lapse is allowable. Under Exception
(paragraph) (2) the standard of measurement is the duration of the state
of excitement. ''How long can excitement prevail? Obviously there are
no pat answers and the character of the transaction or event will
largely determine the significance of the time factor.'' Slough,
Spontaneous Statements and State of Mind, 46 Iowa L.Rev. 224, 243
(1961); McCormick 272, p. 580.
Participation by the declarant is not required: a nonparticipant may
be moved to describe what he perceives, and one may be startled by an
event in which he is not an actor. Slough, supra; McCormick, supra; 6
Wigmore 1755; Annot., 78 A.L.R.2d 300.
Whether proof of the startling event may be made by the statement
itself is largely an academic question, since in most cases there is
present at least circumstantial evidence that something of a startling
nature must have occurred. For cases in which the evidence consists of
the condition of the declarant (injuries, state of shock), see Insurance
Co. v. Mosely, 75 U.S. (8 Wall.), 397, 19 L.Ed. 437 (1869); Wheeler v.
United States, 93 U.S.A.App. D.C. 159, 211 F.2d 19 (1953); cert.
denied 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140; Wetherbee v. Safety
Casualty Co., 219 F.2d 274 (5th Cir. 1955); Lampe v. United States, 97
U.S.App.D.C. 160, 229 F.2d 43 (1956). Nevertheless, on occasion the
only evidence may be the content of the statement itself, and rulings
that it may be sufficient are described as ''increasing,'' Slough, supra
at 246, and as the ''prevailing practice,'' McCormick 272, p. 579.
Illustrative are Armour & Co. v. Industrial Commission, 78 Colo. 569,
243 P. 546 (1926); Young v. Stewart, 191 N.C. 297, 131 S.E. 735
(1926). Moreover, under Rule 104(a) the judge is not limited by the
hearsay rule in passing upon preliminary questions of fact.
Proof of declarant's perception by his statement presents similar
considerations when declarant is identified. People v. Poland, 22
Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an
unidentified bystander, the cases indicate hesitancy in upholding the
statement alone as sufficient, Garrett v. Howden, 73 N.M. 307, 387 P.2d
874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939), a result
which would under appropriate circumstances be consistent with the rule.
Permissible subject matter of the statement is limited under
Exception (paragraph) (1) to description or explanation of the event or
condition, the assumption being that spontaneity, in the absence of a
startling event, may extend no farther. In Exception (paragraph) (2),
however, the statement need only ''relate'' to the startling event or
condition, thus affording a broader scope of subject matter coverage. 6
Wigmore 1750, 1754. See Sanitary Grocery Co. v. Snead, 67 App.D.C.
129, 90 F.2d 374 (1937), slip-and-fall case sustaining admissibility of
clerk's statement, ''That has been on the floor for a couple of hours,''
and Murphy Auto Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d
508 (1957), upholding admission, on issue of driver's agency, of his
statement that he had to call on a customer and was in a hurry to get
home. Quick, Hearsay, Excitement, Necessity and the Uniform Rules: A
Reappraisal of Rule 63(4), 6 Wayne L.Rev. 204, 206-209 (1960).
Similar provisions are found in Uniform Rule 63(4)(a) and (b);
California Evidence Code 1240 (as to Exception (2) only); Kansas Code
of Civil Procedure 60-460(d)(1) and (2); New Jersey Evidence Rule
63(4).
Exception (3) is essentially a specialized application of Exception
(paragraph) (1), presented separately to enhance its usefulness and
accessibility. See McCormick 265, 268.
The exclusion of ''statements of memory or belief to prove the fact
remembered or believed'' is necessary to avoid the virtual destruction
of the hearsay rule which would otherwise result from allowing state of
mind, provable by a hearsay statement, to serve as the basis for an
inference of the happening of the event which produced the state of
mind). Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196
(1933); Maguire, The Hillmon Case -- Thirty-three Years After, 38
Harv.L.Rev. 709, 719-731 (1925); Hinton, States of Mind and the Hearsay
Rule, 1 U.Chi.L.Rev. 394, 421-423 (1934). The rule of Mutual Life Ins.
Co. v. Hillman, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892),
allowing evidence of intention as tending to prove the doing of the act
intended, is of course, left undisturbed.
The carving out, from the exclusion mentioned in the preceding
paragraph, of declarations relating to the execution, revocation,
identification, or terms of declarant's will represents an ad hoc
judgment which finds ample reinforcement in the decisions, resting on
practical grounds of necessity and expediency rather than logic.
McCormick 271, pp. 577-578; Annot., 34 A.L.R.2d 588, 62 A.L.R.2d 855.
A similar recognition of the need for and practical value of this kind
of evidence is found in California Evidence Code 1260.
Exception (4). Even those few jurisdictions which have shied away
from generally admitting statements of present condition have allowed
them if made to a physician for purposes of diagnosis and treatment in
view of the patient's strong motivation to be truthful. McCormick 266,
p. 563. The same guarantee of trustworthiness extends to statements of
past conditions and medical history, made for purposes of diagnosis or
treatment. It also extends to statements as to causation, reasonably
pertinent to the same purposes, in accord with the current trend, Shell
Oil Co. v. Industrial Commission, 2 Ill.2d 590, 119 N.E.2d 224 (1954);
McCormick 266, p. 564; New Jersey Evidence Rule 63(12)(c).
Statements as to fault would not ordinarily qualify under this latter
language. Thus a patient's statement that he was struck by an
automobile would qualify but not his statement that the car was driven
through a red light. Under the exception the statement need not have
been made to a physician. Statements to hospital attendants, ambulance
drivers, or even members of the family might be included.
Conventional doctrine has excluded from the hearsay exception, as not
within its guarantee of truthfulness, statements to a physician
consulted only for the purpose of enabling him to testify. While these
statements were not admissible as substantive evidence, the expert was
allowed to state the basis of his opinion, including statements of this
kind. The distinction thus called for was one most unlikely to be made
by juries. The rule accordingly rejects the limitation. This position
is consistent with the provision of Rule 703 that the facts on which
expert testimony is based need not be admissible in evidence if of a
kind ordinarily relied upon by experts in the field.
Exception (5). A hearsay exception for recorded recollection is
generally recognized and has been described as having ''long been
favored by the federal and practically all the state courts that have
had occasion to decide the question.'' United States v. Kelly, 349 F.2d
720, 770 (2d Cir. 1965), citing numerous cases and sustaining the
exception against a claimed denial of the right of confrontation. Many
additional cases are cited in Annot., 82 A.L.R.2d 473, 520. The
guarantee of trustworthiness is found in the reliability inherent in a
record made while events were still fresh in mind and accurately
reflecting them. Owens v. State, 67 Md. 307, 316, 10 A. 210, 212
(1887).
The principal controversy attending the exception has centered, not
upon the propriety of the exception itself, but upon the question
whether a preliminary requirement of impaired memory on the part of the
witness should be imposed. The authorities are divided. If regard be
had only to the accuracy of the evidence, admittedly impairment of the
memory of the witness adds nothing to it and should not be required.
McCormick 277, p. 593; 3 Wigmore 738, p. 76; Jordan v. People,
151 Colo. 133, 376 P.2d 699 (1962), cert. denied 373 U.S. 944, 83
S.Ct. 1553, 10 L.Ed.2d 699; Hall v. State, 223 Md. 158, 162 A.2d 751
(1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124 (1965).
Nevertheless, the absence of the requirement, it is believed, would
encourage the use of statements carefully prepared for purposes of
litigation under the supervision of attorneys, investigators, or claim
adjusters. Hence the example includes a requirement that the witness
not have ''sufficient recollection to enable him to testify fully and
accurately.'' To the same effect are California Evidence Code 1237 and
New Jersey Rule 63(1)(b), and this has been the position of the federal
courts. Vicksburg & Meridian R.R. v. O'Brien, 119 U.S. 99, 7 S.Ct. 118,
30 L.Ed. 299 (1886); Ahern v. Webb, 268 F.2d 45 (10th Cir. 1959); and
see N.L.R.B. v. Hudson Pulp and Paper Corp., 273 F.2d 660, 665 (5th Cir.
1960); N.L.R.B. v. Federal Dairy Co., 297 F.2d 487 (1st Cir. 1962).
But cf. United States v. Adams, 385 F.2d 548 (2d Cir. 1967).
No attempt is made in the exception to spell out the method of
establishing the initial knowledge or the contemporaneity and accuracy
of the record, leaving them to be dealt with as the circumstances of the
particular case might indicate. Multiple person involvement in the
process of observing and recording, as in Rathbun v. Brancatella, 93
N.J.L. 222, 107 A. 279 (1919), is entirely consistent with the
exception.
Locating the exception at this place in the scheme of the rules is a
matter of choice. There were two other possibilities. The first was to
regard the statement as one of the group of prior statements of a
testifying witness which are excluded entirely from the category of
hearsay by Rule 801(d)(1). That category, however, requires that
declarant be ''subject to cross-examination,'' as to which the impaired
memory aspect of the exception raises doubts. The other possibility was
to include the exception among those covered by Rule 804. Since
unavailability is required by that rule and lack of memory is listed as
a species of unavailability by the definition of the term in Rule
804(a)(3), that treatment at first impression would seem appropriate.
The fact is, however, that the unavailability requirement of the
exception is of a limited and peculiar nature. Accordingly, the
exception is located at this point rather than in the context of a rule
where unavailability is conceived of more broadly.
Exception (6) represents an area which has received much attention
from those seeking to improve the law of evidence. The Commonwealth
Fund Act was the result of a study completed in 1927 by a distinguished
committee under the chairmanship of Professor Morgan. Morgan et al.,
The Law of Evidence: Some Proposals for its Reform 63 (1927). With
changes too minor to mention, it was adopted by Congress in 1936 as the
rule for federal courts. 28 U.S.C. 1732. A number of states took
similar action. The Commissioners on Uniform State Laws in 1936
promulgated the Uniform Business Records as Evidence Act, 9A U.L.A. 506,
which has acquired a substantial following in the states. Model Code
Rule 514 and Uniform Rule 63(13) also deal with the subject. Difference
of varying degrees of importance exist among these various treatments.
These reform efforts were largely within the context of business and
commercial records, as the kind usually encountered, and concentrated
considerable attention upon relaxing the requirement of producing as
witnesses, or accounting for the nonproduction of, all participants in
the process of gathering, transmitting, and recording information which
the common law had evolved as a burdensome and crippling aspect of using
records of this type. In their areas of primary emphasis on witnesses
to be called and the general admissibility of ordinary business and
commercial records, the Commonwealth Fund Act and the Uniform Act appear
to have worked well. The exception seeks to preserve their advantages.
On the subject of what witnesses must be called, the Commonwealth
Fund Act eliminated the common law requirement of calling or accounting
for all participants by failing to mention it. United States v.
Mortimer, 118 F.2d 266 (2d Cir. 1941); La Porte v. United States, 300
F.2d 878 (9th Cir. 1962); McCormick 290, p. 608. Model Code Rule 514
and Uniform Rule 63(13) did likewise. The Uniform Act, however,
abolished the common law requirement in express terms, providing that
the requisite foundation testimony might be furnished by ''the custodian
or other qualified witness.'' Uniform Business Records as Evidence Act,
2; 9A U.L.A. 506. The exception follows the Uniform Act in this
respect.
The element of unusual reliability of business records is said
variously to be supplied by systematic checking, by regularity and
continuity which produce habits of precision, by actual experience of
business in relying upon them, or by a duty to make an accurate record
as part of a continuing job or occupation. McCormick 281, 286, 287;
Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961). The
model statutes and rules have sought to capture these factors and to
extend their impact by employing the phrase ''regular course of
business,'' in conjunction with a definition of ''business'' far broader
than its ordinarily accepted meaning. The result is a tendency unduly
to emphasize a requirement of routineness and repetitiveness and an
insistence that other types of records be squeezed into the fact
patterns which give rise to traditional business records. The rule
therefore adopts the phrase ''the course of a regularly conducted
activity'' as capturing the essential basis of the hearsay exception as
it has evolved and the essential element which can be abstracted from
the various specifications of what is a ''business.''
Amplification of the kinds of activities producing admissible records
has given rise to problems which conventional business records by their
nature avoid. They are problems of the source of the recorded
information, of entries in opinion form, of motivation, and of
involvement as participant in the matters recorded.
Sources of information presented no substantial problem with ordinary
business records. All participants, including the observer or
participant furnishing the information to be recorded, were acting
routinely, under a duty of accuracy, with employer reliance on the
result, or in short ''in the regular course of business.'' If, however,
the supplier of the information does not act in the regular course, an
essential link is broken; the assurance of accuracy does not extend to
the information itself, and the fact that it may be recorded with
scrupulous accuracy is of no avail. An illustration is the police
report incorporating information obtained from a bystander: the officer
qualifies as acting in the regular course but the informant does not.
The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930),
held that a report thus prepared was inadmissible. Most of the
authorities have agreed with the decision. Gencarella v. Fyfe, 171
F.2d 419 (1st Cir. 1948); Gordon v. Robinson, 210 F.2d 192 (3d Cir.
1954); Standard Oil Co. of California v. Moore, 251 F.2d 188, 214
(9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d
1148; Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965);
Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor Express, Inc., 360
F.2d 933 (2d Cir 1966). Contra, 5 Wigmore 1530a, n. 1, pp. 391-392.
The point is not dealt with specifically in the Commonwealth Fund Act,
the Uniform Act, or Uniform Rule 63(13). However, Model Code Rule 514
contains the requirement ''that it was the regular course of that
business for one with personal knowledge * * * to make such a memorandum
or record or to transmit information thereof to be included in such a
memorandum or record * * *.'' The rule follows this lead in requiring an
informant with knowledge acting in the course of the regularly conducted
activity.
Entries in the form of opinions were not encountered in traditional
business records in view of the purely factual nature of the items
recorded, but they are now commonly encountered with respect to medical
diagnoses, prognoses, and test results, as well as occasionally in other
areas. The Commonwealth Fund Act provided only for records of an ''act,
transaction, occurrence, or event,'' while the Uniform Act, Model Code
Rule 514, and Uniform Rule 63(13) merely added the ambiguous term
''condition.'' The limited phrasing of the Commonwealth Fund Act, 28
U.S.C. 1732, may account for the reluctance of some federal decisions
to admit diagnostic entries. New York Life Ins. Co. v. Taylor, 79
U.S.App.D.C. 66, 147 F.2d 297 (1945); Lyles v. United States, 103
U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied 356 U.S. 961, 78
S.Ct. 997, 2 L.Ed.2d 1067; England v. United States, 174 F.2d 466 (5th
Cir. 1949); Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967).
Other federal decisions, however, experienced no difficulty in freely
admitting diagnostic entries. Reed v. Order of United Commercial
Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v.
Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina
v. Erickson, 226 F.2d 475 (9th Cir. 1955); Thomas v. Hogan, 308 F.2d
355 (4th Cir. 1962); Glawe v. Rulon, 284 F.2d 495 (8th Cir. 1960). In
the state courts, the trend favors admissibility. Borucki v. MacKenzie
Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); Allen v. St. Louis
Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022
(1956); People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490 (1940); Weis
v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947). In order to make
clear its adherence to the latter position, the rule specifically
includes both diagnoses and opinions, in addition to acts, events, and
conditions, as proper subjects of admissible entries.
Problems of the motivation of the informant have been a source of
difficulty and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63
S.Ct. 477, 87 L.Ed. 645 (1943), exclusion of an accident report made by
the since deceased engineer, offered by defendant railroad trustees in a
grade crossing collision case, was upheld. The report was not ''in the
regular course of business,'' not a record of the systematic conduct of
the business as a business, said the Court. The report was prepared for
use in litigating, not railroading. While the opinion mentions the
motivation of the engineer only obliquely, the emphasis on records of
routine operations is significant only by virtue of impact on motivation
to be accurate. Absence of routineness raises lack of motivation to be
accurate. The opinion of the Court of Appeals had gone beyond mere lack
of motive to be accurate: the engineer's statement was ''dripping with
motivations to misrepresent.'' Hoffman v. Palmer, 129 F.2d 976, 991 (2d
Cir. 1942). The direct introduction of motivation is a disturbing
factor, since absence of motivation to misrepresent has not
traditionally been a requirement of the rule; that records might be
self-serving has not been a ground for exclusion. Laughlin, Business
Records and the Like, 46 Iowa L.Rev. 276, 285 (1961). As Judge Clark
said in his dissent, ''I submit that there is hardly a grocer's account
book which could not be excluded on that basis.'' 129 F.2d at 1002. A
physician's evaluation report of a personal injury litigant would appear
to be in the routine of his business. If the report is offered by the
party at whose instance it was made, however, it has been held
inadmissible, Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y.
1965), otherwise if offered by the opposite party, Korte v. New York,
N.H. & H.R. Co., 191 F.2d 86 (2d Cir. 1951), cert. denied 342 U.S. 868,
72 S.Ct. 108, 96 L.Ed. 652.
The decisions hinge on motivation and which party is entitled to be
concerned about it. Professor McCormick believed that the doctor's
report or the accident report were sufficiently routine to justify
admissibility. McCormick 287, p. 604. Yet hesitation must be
experienced in admitting everything which is observed and recorded in
the course of a regularly conducted activity. Efforts to set a limit
are illustrated by Hartzog v. United States, 217 F.2d 706 (4th Cir.
1954), error to admit worksheets made by since deceased deputy collector
in preparation for the instant income tax evasion prosecution, and
United States v. Ware, 247 F.2d 698 (7th Cir. 1957), error to admit
narcotics agents' records of purchases. See also Exception (paragraph)
(8), infra, as to the public record aspects of records of this nature.
Some decisions have been satisfied as to motivation of an accident
report if made pursuant to statutory duty, United States v. New York
Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962); Taylor v.
Baltimore & O. R. Co., 344 F.2d 281 (2d Cir. 1965), since the report
was oriented in a direction other than the litigation which ensued. Cf.
Matthews v. United States, 217 F.2d 409 (5th Cir. 1954). The
formulation of specific terms which would assure satisfactory results in
all cases is not possible. Consequently the rule proceeds from the base
that records made in the course of a regularly conducted activity will
be taken as admissible but subject to authority to exclude if ''the
sources of information or other circumstances indicate lack of
trustworthiness.''
Occasional decisions have reached for enhanced accuracy by requiring
involvement as a participant in matters reported. Clainos v. United
States, 82 U.S.App.D.C. 278, 163 F.2d 593 (1947), error to admit police
records of convictions; Standard Oil Co. of California v. Moore, 251
F.2d 188 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2
L.Ed.2d 1148, error to admit employees' records of observed business
practices of others. The rule includes no requirement of this nature.
Wholly acceptable records may involve matters merely observed, e.g. the
weather.
The form which the ''record'' may assume under the rule is described
broadly as a ''memorandum, report, record, or data compilation, in any
form.'' The expression ''data compilation'' is used as broadly
descriptive of any means of storing information other than the
conventional words and figures in written or documentary form. It
includes, but is by no means limited to, electronic computer storage.
The term is borrowed from revised Rule 34(a) of the Rules of Civil
Procedure.
Exception (7). Failure of a record to mention a matter which would
ordinarily be mentioned is satisfactory evidence of its nonexistence.
Uniform Rule 63(14), Comment. While probably not hearsay as defined in
Rule 801, supra, decisions may be found which class the evidence not
only as hearsay but also as not within any exception. In order to set
the question at rest in favor of admissibility, it is specifically
treated here. McCormick 289, p. 609; Morgan, Basic Problems of
Evidence 314 (1962); 5 Wigmore 1531; Uniform Rule 63(14); California
Evidence Code 1272; Kansas Code of Civil Procedure 60-460(n); New
Jersey Evidence Rule 63(14).
Exception (8). Public records are a recognized hearsay exception at
common law and have been the subject of statutes without number.
McCormick 291. See, for example, 28 U.S.C. 1733, the relative
narrowness of which is illustrated by its nonapplicability to nonfederal
public agencies, thus necessitating report to the less appropriate
business record exception to the hearsay rule. Kay v. United States,
255 F.2d 476 (4th Cir. 1958). The rule makes no distinction between
federal and nonfederal offices and agencies.
Justification for the exception is the assumption that a public
official will perform his duty properly and the unlikelihood that he
will remember details independently of the record. Wong Wing Foo v.
McGrath, 196 F.2d 120 (9th Cir. 1952), and see Chesapeake & Delaware
Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889
(1919). As to items (a) and (b), further support is found in the
reliability factors underlying records of regularly conducted activities
generally. See Exception (paragraph) (6), supra.
(a) Cases illustrating the admissibility of records of the office's
or agency's own activities are numerous. Chesapeake & Delaware Canal
Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889 (1919),
Treasury records of miscellaneous receipts and disbursements; Howard v.
Perrin, 200 U.S. 71, 26 S.Ct. 195, 50 I.Ed. 374 (1906), General Land
Office records; Ballew v. United States, 160 U.S. 187, 16 S.Ct. 263,
40 L.Ed. 388 (1895), Pension Office records.
(b) Cases sustaining admissibility of records of matters observed are
also numerous. United States v. Van Hook, 284 F.2d 489 (7th Cir.
1960), remanded for resentencing 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d
821, letter from induction officer to District Attorney, pursuant to
army regulations, stating fact and circumstances of refusal to be
inducted; T'Kach v. United States, 242 F.2d 937 (5th Cir. 1957),
affidavit of White House personnel officer that search of records showed
no employment of accused, charged with fraudulently representing himself
as an envoy of the President; Minnehaha County v. Kelley, 150 F.2d 356
(8th Cir. 1945); Weather Bureau records of rainfall; United States v.
Meyer, 113 F.2d 387 (7th Cir. 1940), cert. denied 311 U.S. 706, 61
S.Ct. 174, 85 L.Ed. 459, map prepared by government engineer from
information furnished by men working under his supervision.
(c) The more controversial area of public records is that of the
so-called ''evaluative'' report. The disagreement among the decisions
has been due in part, no doubt, to the variety of situations
encountered, as well as to differences in principle. Sustaining
admissibility are such cases as United States v. Dumas, 149 U.S. 278,
13 S.Ct. 872, 37 L.Ed. 734 (1893), statement of account certified by
Postmaster General in action against postmaster; McCarty v. United
States, 185 F.2d 520 (5th Cir. 1950), reh. denied 187 F.2d 234,
Certificate of Settlement of General Accounting Office showing
indebtedness and letter from Army official stating Government had
performed, in action on contract to purchase and remove waste food from
Army camp; Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467 (3d
Cir. 1950), report of Bureau of Mines as to cause of gas tank explosion;
Petition of W -- , 164 F.Supp. 659 (E.D.Pa.1958), report by Immigration
and Naturalization Service investigator that petitioner was known in
community as wife of man to whom she was not married. To the opposite
effect and denying admissibility are Franklin v. Skelly Oil Co., 141
F.2d 568 (10th Cir. 1944), State Fire Marshal's report of cause of gas
explosion; Lomax Transp. Co. v. United States, 183 F.2d 331 (9th Cir.
1950), Certificate of Settlement from General Accounting Office in
action for naval supplies lost in warehouse fire; Yung Jin Teung v.
Dulles, 229 F.2d 244 (2d Cir. 1956), ''Status Reports'' offered to
justify delay in processing passport applications. Police reports have
generally been excluded except to the extent to which they incorporate
firsthand observations of the officer. Annot., 69 A.L.R.2d 1148.
Various kinds of evaluative reports are admissible under federal
statutes: 7 U.S.C. 78, findings of Secretary of Agriculture prima
facie evidence of true grade of grain; 7 U.S.C. 210(f), findings of
Secretary of Agriculture prima facie evidence in action for damages
against stockyard owner; 7 U.S.C. 292, order by Secretary of
Agriculture prima facie evidence in judicial enforcement proceedings
against producers association monopoly; 7 U.S.C. 1622(h), Department
of Agriculture inspection certificates of products shipped in interstate
commerce prima facie evidence; 8 U.S.C. 1440(c), separation of alien
from military service on conditions other than honorable provable by
certificate from department in proceedings to revoke citizenship; 18
U.S.C. 4245, certificate of Director of Prisons that convicted person
has been examined and found probably incompetent at time of trial prima
facie evidence in court hearing on competency; 42 U.S.C. 269(b), bill
of health by appropriate official prima facie evidence of vessel's
sanitary history and condition and compliance with regulations; 46
U.S.C. 679, certificate of consul presumptive evidence of refusal of
master to transport destitute seamen to United States. While these
statutory exceptions to the hearsay rule are left undisturbed, Rule 802,
the willingness of Congress to recognize a substantial measure of
admissibility for evaluative reports is a helpful guide.
Factors which may be of assistance in passing upon the admissibility
of evaluative reports include; (1) the timeliness of the investigation,
McCormack, Can the Courts Make Wider Use of Reports of Official
Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or
experience of the official, id., (3) whether a hearing was held and the
level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568
(10th Cir. 1944); (4) possible motivation problems suggested by Palmer
v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no
doubt could be added.
The formulation of an approach which would give appropriate weight to
all possible factors in every situation is an obvious impossibility.
Hence the rule, as in Exception (paragraph) (6), assumes admissibility
in the first instance but with ample provision for escape if sufficient
negative factors are present. In one respect, however, the rule with
respect to evaluate reports under item (c) is very specific; they are
admissible only in civil cases and against the government in criminal
cases in view of the almost certain collision with confrontation rights
which would result from their use against the accused in a criminal
case.
Exception (9). Records of vital statistics are commonly the subject
of particular statutes making them admissible in evidence. Uniform
Vital Statistics Act, 9C U.L.A. 350 (1957). The rule is in principle
narrower than Uniform Rule 63(16) which includes reports required of
persons performing functions authorized by statute, yet in practical
effect the two are substantially the same. Comment Uniform Rule 63(16).
The exception as drafted is in the pattern of California Evidence Code
1281.
Exception (10). The principle of proving nonoccurrence of an event
by evidence of the absence of a record which would regularly be made of
its occurrence, developed in Exception (paragraph) (7) with respect to
regularly conducted activities, is here extended to public records of
the kind mentioned in Exceptions (paragraphs) (8) and (9). 5 Wigmore
1633(6), p. 519. Some harmless duplication no doubt exists with
Exception (paragraph) (7). For instances of federal statutes
recognizing this method of proof, see 8 U.S.C. 1284(b), proof of
absence of alien crewman's name from outgoing manifest prima facie
evidence of failure to detain or deport, and 42 U.S.C. 405(c)(3),
(4)(B), (4)(C), absence of HEW (Department of Health, Education, and
Welfare) record prima facie evidence of no wages or self-employment
income.
The rule includes situations in which absence of a record may itself
be the ultimate focal point of inquiry, e.g. People v. Love, 310 Ill.
558, 142 N.E. 204 (1923), certificate of Secretary of State admitted to
show failure to file documents required by Securities Law, as well as
cases where the absence of a record is offered as proof of the
nonoccurrence of an event ordinarily recorded.
The refusal of the common law to allow proof by certificate of the
lack of a record or entry has no apparent justification, 5 Wigmore
1678(7), p. 752. The rule takes the opposite position, as do Uniform
Rule 63(17); California Evidence Code 1284; Kansas Code of Civil
Procedure 60-460(c); New Jersey Evidence Rule 63(17). Congress has
recognized certification as evidence of the lack of a record. 8 U.S.C.
1360(d), certificate of Attorney General or other designated officer
that no record of Immigration and Naturalization Service of specified
nature or entry therein is found, admissible in alien cases.
Exception (11). Records of activities of religious organizations are
currently recognized as admissible at least to the extent of the
business records exception to the hearsay rule, 5 Wigmore 1523, p.
371, and Exception (paragraph) (6) would be applicable. However, both
the business record doctrine and Exception (paragraph) (6) require that
the person furnishing the information be one in the business or
activity. The result is such decisions as Daily v. Grand Lodge, 311
Ill. 184, 142 N.E. 478 (1924), holding a church record admissible to
prove fact, date, and place of baptism, but not age of child except that
he had at least been born at the time. In view of the unlikelihood that
false information would be furnished on occasions of this kind, the rule
contains no requirement that the informant be in the course of the
activity. See California Evidence Code 1315 and Comment.
Exception (12). The principle of proof by certification is
recognized as to public officials in Exceptions (paragraphs) (8) and
(10), and with respect to authentication in Rule 902. The present
exception is a duplication to the extent that it deals with a
certificate by a public official, as in the case of a judge who performs
a marriage ceremony. The area covered by the rule is, however,
substantially larger and extends the certification procedure to
clergymen and the like who perform marriages and other ceremonies or
administer sacraments. Thus certificates of such matters as baptism or
confirmation, as well as marriage, are included. In principle they are
as acceptable evidence as certificates of public officers. See 5
Wigmore 1645, as to marriage certificates. When the person executing
the certificate is not a public official, the self-authenticating
character of documents purporting to emanate from public officials, see
Rule 902, is lacking and proof is required that the person was
authorized and did make the certificate. The time element, however, may
safely be taken as supplied by the certificate, once authority and
authenticity are established, particularly in view of the presumption
that a document was executed on the date it bears.
For similar rules, some limited to certificates of marriage, with
variations in foundation requirements, see Uniform Rule 63(18);
California Evidence Code 1316; Kansas Code of Civil Procedure
60-460(p); New Jersey Evidence Rule 63(18).
Exception (13). Records of family history kept in family Bibles have
by long tradition been received in evidence. 5 Wigmore 1495, 1496,
citing numerous statutes and decisions. See also Regulations, Social
Security Administration, 20 C.F.R. 404.703(c), recognizing family Bible
entries as proof of age in the absence of public or church records.
Opinions in the area also include inscriptions on tombstones, publicly
displayed pedigrees, and engravings on rings. Wigmore, supra. The rule
is substantially identical in coverage with California Evidence Code
1312.
Exception (14). The recording of title documents is a purely
statutory development. Under any theory of the admissibility of public
records, the records would be receivable as evidence of the contents of
the recorded document, else the recording process would be reduced to a
nullity. When, however, the record is offered for the further purpose
of proving execution and delivery, a problem of lack of first-hand
knowledge by the recorder, not present as to contents, is presented.
This problem is solved, seemingly in all jurisdictions, by qualifying
for recording only those documents shown by a specified procedure,
either acknowledgement or a form of probate, to have been executed and
delivered. 5 Wigmore 1647-1651. Thus what may appear in the rule, at
first glance, as endowing the record with an effect independently of
local law and inviting difficulties of an Erie nature under Cities
Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196
(1939), is not present, since the local law in fact governs under the
example.
Exception (15). Dispositive documents often contain recitals of
fact. Thus a deed purporting to have been executed by an attorney in
fact may recite the existence of the power of attorney, or a deed may
recite that the grantors are all the heirs of the last record owner.
Under the rule, these recitals are exempted from the hearsay rule. The
circumstances under which dispositive documents are executed and the
requirement that the recital be germane to the purpose of the document
are believed to be adequate guarantees of trustworthiness, particularly
in view of the nonapplicability of the rule if dealings with the
property have been inconsistent with the document. The age of the
document is of no significance, though in practical application the
document will most often be an ancient one. See Uniform Rule 63(29),
Comment.
Similar provisions are contained in Uniform Rule 63(29); California
Evidence Code 1330; Kansas Code of Civil Procedure 60-460(aa); New
Jersey Evidence Rule 63(29).
Exception (16). Authenticating a document as ancient, essentially in
the pattern of the common law, as provided in Rule 901(b)(8), leaves
open as a separate question the admissibility of assertive statements
contained therein as against a hearsay objection. 7 Wigmore 2145a.
Wigmore further states that the ancient document technique of
authentication is universally conceded to apply to all sorts of
documents, including letters, records, contracts, maps, and
certificates, in addition to title documents, citing numerous decisions.
Id. 2145. Since most of these items are significant evidentially only
insofar as they are assertive, their admission in evidence must be as a
hearsay exception. But see 5 id. 1573, p. 429, referring to recitals
in ancient deeds as a ''limited'' hearsay exception. The former
position is believed to be the correct one in reason and authority. As
pointed out in McCormick 298, danger of mistake is minimized by
authentication requirements, and age affords assurance that the writing
antedates the present controversy. See Dallas County v. Commercial
Union Assurance Co., 286 F.2d 388 (5th Cir. 1961), upholding
admissibility of 58-year-old newspaper story. Cf. Morgan, Basic
Problems of Evidence 364 (1962), but see id. 254.
For a similar provision, but with the added requirement that ''the
statement has since generally been acted upon as true by persons having
an interest in the matter,'' see California Evidence Code 1331.
Exception (17). Ample authority at common law supported the
admission in evidence of items falling in this category. While
Wigmore's text is narrowly oriented to lists, etc., prepared for the use
of a trade or profession, 6 Wigmore 1702, authorities are cited which
include other kinds of publications, for example, newspaper market
reports, telephone directories, and city directories. Id. 1702-1706.
The basis of trustworthiness is general reliance by the public or by a
particular segment of it, and the motivation of the compiler to foster
reliance by being accurate.
For similar provisions, see Uniform Rule 63(30); California Evidence
Code 1340; Kansas Code of Civil Procedure 60-460(bb); New Jersey
Evidence Rule 63(30). Uniform Commercial Code 2-724 provides for
admissibility in evidence of ''reports in official publications or trade
journals or in newspapers or periodicals of general circulation
published as the reports of such (established commodity) market.''
Exception (18). The writers have generally favored the admissibility
of learned treatises, McCormick 296, p. 621; Morgan, Basic Problems
of Evidence 366 (1962); 6 Wigmore 1692, with the support of occasional
decisions and rules, City of Dothan v. Hardy, 237 Ala. 603, 188 So.
264 (1939); Lewandowski v. Preferred Risk Mut. Ins. Co., 33 Wis.2d
69, 146 N.W.2d 505 (1966), 66 Mich.L.Rev. 183 (1967); Uniform Rule
63(31); Kansas Code of Civil Procedure 60-460(ce), but the great
weight of authority has been that learned treatises are not admissible
as substantive evidence though usable in the cross-examination of
experts. The foundation of the minority view is that the hearsay
objection must be regarded as unimpressive when directed against
treatises since a high standard of accuracy is engendered by various
factors: the treatise is written primarily and impartially for
professionals, subject to scrutiny and exposure for inaccuracy, with the
reputation of the writer at stake. 6 Wigmore 1692. Sound as this
position may be with respect to trustworthiness, there is, nevertheless,
an additional difficulty in the likelihood that the treatise will be
misunderstood and misapplied without expert assistance and supervision.
This difficulty is recognized in the cases demonstrating unwillingness
to sustain findings relative to disability on the basis of judicially
noticed medical texts. Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966);
Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Colwell v. Gardner,
386 F.2d 56 (6th Cir. 1967); Glendenning v. Ribicoff, 213 F.Supp. 301
(W.D.Mo. 1962); Cook v. Celebrezze, 217 F.Supp. 366 (W.D.Mo. 1963);
Sosna v. Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); and see McDaniel
v. Celebrezze, 331 F.2d 426 (4th Cir. 1964). The rule avoids the danger
of misunderstanding and misapplication by limiting the use of treatises
as substantive evidence to situations in which an expert is on the stand
and available to explain and assist in the application of the treatise
if declared. The limitation upon receiving the publication itself
physically in evidence, contained in the last sentence, is designed to
further this policy.
The relevance of the use of treatises on cross-examination is
evident. This use of treatises has been the subject of varied views.
The most restrictive position is that the witness must have stated
expressly on direct his reliance upon the treatise. A slightly more
liberal approach still insists upon reliance but allows it to be
developed on cross-examination. Further relaxation dispenses with
reliance but requires recognition as an authority by the witness,
developable on cross-examination. The greatest liberality is found in
decisions allowing use of the treatise on cross-examination when its
status as an authority is established by any means. Annot., 60 A.L.R.2d
77. The exception is hinged upon this last position, which is that of
the Supreme Court, Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94
L.Ed. 63 (1949), and of recent well considered state court decisions,
City of St. Petersburg v. Ferguson, 193 So.2d 648 (Fla.App. 1967),
cert. denied Fla., 201 So.2d 556; Darling v. Charleston Memorial
Community Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965); Dabroe v.
Rhodes Co., 64 Wash.2d 431, 392 P.2d 317 (1964).
In Reilly v. Pinkus, supra, the Court pointed out that testing of
professional knowledge was incomplete without exploration of the
witness' knowledge of and attitude toward established treatises in the
field. The process works equally well in reverse and furnishes the
basis of the rule.
The rule does not require that the witness rely upon or recognize the
treatise as authoritative, thus avoiding the possibility that the expert
may at the outset block cross-examination by refusing to concede
reliance or authoritativeness. Dabroe v. Rhodes Co., supra. Moreover,
the rule avoids the unreality of admitting evidence for the purpose of
impeachment only, with an instruction to the jury not to consider it
otherwise. The parallel to the treatment of prior inconsistent
statements will be apparent. See Rules 6130(b) and 801(d)(1).
Exceptions (19), (20), and (21). Trustworthiness in reputation
evidence is found ''when the topic is such that the facts are likely to
have been inquired about and that persons having personal knowledge have
disclosed facts which have thus been discussed in the community; and
thus the community's conclusion, if any has been formed, is likely to be
a trustworthy one.'' 5 Wigmore 1580, p. 444, and see also 1583. On
this common foundation, reputation as to land boundaries, customs,
general history, character, and marriage have come to be regarded as
admissible. The breadth of the underlying principle suggests the
formulation of an equally broad exception, but tradition has in fact
been much narrower and more particularized, and this is the pattern of
these exceptions in the rule.
Exception (paragraph) (19) is concerned with matters of personal and
family history. Marriage is universally conceded to be a proper subject
of proof by evidence of reputation in the community. 5 Wigmore 1602.
As to such items as legitimacy, relationship, adoption, birth, and
death, the decisions are divided. Id. 1605. All seem to be susceptible
to being the subject of well founded repute. The ''world'' in which the
reputation may exist may be family, associates, or community. This
world has proved capable of expanding with changing times from the
single uncomplicated neighborhood, in which all activities take place,
to the multiple and unrelated worlds of work, religious affiliation, and
social activity, in each of which a reputation may be generated. People
v. Reeves, 360 Ill. 55, 195 N.E. 443 (1935); State v. Axilrod, 248
Minn. 204, 79 N.W.2d 677 (1956); Mass.Stat. 1947, c. 410, M.G.L.A. c.
233 21A; 5 Wigmore 1616. The family has often served as the point of
beginning for allowing community reputation. 5 Wigmore 1488. For
comparable provisions see Uniform Rule 63(26), (27)(c); California
Evidence Code 1313, 1314; Kansas Code of Civil Procedure 60-460(x),
(y)(3); New Jersey Evidence Rule 63(26), (27)(c).
The first portion of Exception (paragraph) (20) is based upon the
general admissibility of evidence of reputation as to land boundaries
and land customs, expanded in this country to include private as well as
public boundaries. McCormick 299, p. 625. The reputation is required
to antedate the controversy, though not to be ancient. The second
portion is likewise supported by authority, id., and is designed to
facilitate proof of events when judicial notice is not available The
historical character of the subject matter dispenses with any need that
the reputation antedate the controversy with respect to which it is
offered. For similar provisions see Uniform Rule 63(27)(a), (b);
California Evidence Code 1320-1322; Kansas Code of Civil Procedure
60-460(y), (1), (2); New Jersey Evidence Rule 63(27)(a), (b).
Exception (paragraph) (21) recognizes the traditional acceptance of
reputation evidence as a means of proving human character. McCormick
44, 158. The exception deals only with the hearsay aspect of this kind
of evidence. Limitations upon admissibility based on other grounds will
be found in Rules 404, relevancy of character evidence generally, and
608, character of witness. The exception is in effect a reiteration, in
the context of hearsay, of Rule 405(a). Similar provisions are
contained in Uniform Rule 63(28); California Evidence Code 1324;
Kansas Code of Civil Procedure 60-460(z); New Jersey Evidence Rule
63(28).
Exception (22). When the status of a former judgment is under
consideration in subsequent litigation, three possibilities must be
noted: (1) the former judgment is conclusive under the doctrine of res
judicata, either as a bar or a collateral estoppel; or (2) it is
admissible in evidence for what it is worth; or (3) it may be of no
effect at all. The first situation does not involve any problem of
evidence except in the way that principles of substantive law generally
bear upon the relevancy and materiality of evidence. The rule does not
deal with the substantive effect of the judgment as a bar or collateral
estoppel. When, however, the doctrine of res judicata does not apply to
make the judgment either a bar or a collateral estoppel, a choice is
presented between the second and third alternatives. The rule adopts
the second for judgments of criminal conviction of felony grade. This
is the direction of the decisions, Annot., 18 A.L.R.2d 1287, 1299, which
manifest an increasing reluctance to reject in toto the validity of the
law's factfinding processes outside the confines of res judicata and
collateral estoppel. While this may leave a jury with the evidence of
conviction but without means to evaluate it, as suggested by Judge
Hinton, Note 27 Ill.L.Rev. 195 (1932), it seems safe to assume that the
jury will give it substantial effect unless defendant offers a
satisfactory explanation, a possibility not foreclosed by the provision.
But see North River Ins. Co. v. Militello, 104 Colo. 28, 88 P.2d 567
(1939), in which the jury found for plaintiff on a fire policy despite
the introduction of his conviction for arson. For supporting federal
decisions see Clark, J., in New York & Cuba Mail S.S. Co. v. Continental
Cas. Co., 117 F.2d 404, 411 (2d Cir. 1941); Connecticut Fire Ins. Co.
v. Farrara, 277 F.2d 388 (8th Cir. 1960).
Practical considerations require exclusion of convictions of minor
offenses, not became the administration of justice in its lower echelons
must be inferior, but because motivation to defend at this level is
often minimal or nonexistent. Cope v. Goble, 39 Cal.App.2d 448, 103
P.2d 598 (1940); Jones v. Talbot, 87 Idaho 498, 394 P.2d 316 (1964);
Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528 (1943); Annot., 18
A.L.R.2d 1287, 1295-1297; 16 Brooklyn L.Rev. 286 (1950); 50
Colum.L.Rev. 529 (1950); 35 Cornell L.Q. 872 (1950). Hence the rule
includes only convictions of felony grade, measured by federal
standards.
Judgments of conviction based upon pleas of nolo contendere are not
included. This position is consistent with the treatment of nolo pleas
in Rule 410 and the authorities cited in the Advisory Committee's Note
in support thereof.
While these rules do not in general purport to resolve constitutional
issues, they have in general been drafted with a view to avoiding
collision with constitutional principles. Consequently the exception
does not include evidence of the conviction of a third person, offered
against the accused in a criminal prosecution to prove any fact
essential to sustain the judgment of conviction. A contrary position
would seem clearly to violate the right of confrontation. Kirby v.
United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), error to
convict of possessing stolen postage stamps with the only evidence of
theft being the record of conviction of the thieves The situation is to
be distinguished from cases in which conviction of another person is an
element of the crime, e.g. 15 U.S.C. 902(d), interstate shipment of
firearms to a known convicted felon, and, as specifically provided, from
impeachment.
For comparable provisions see Uniform Rule 63(20); California
Evidence Code 1300; Kansas Code of Civil Procedure 60-460(r); New
Jersey Evidence Rule 63(20).
Exception (23). A hearsay exception in this area was originally
justified on the ground that verdicts were evidence of reputation. As
trial by jury graduated from the category of neighborhood inquests, this
theory lost its validity. It was never valid as to chancery decrees.
Nevertheless the rule persisted, though the judges and writers shifted
ground and began saying that the judgment or decree was as good evidence
as reputation. See City of London v. Clerke, Carth. 181, 90 Eng.Rep.
710 (K.B. 1691); Neill v. Duke of Devonshire, 8 App.Cas. 135 (1882).
The shift appears to be correct, since the process of inquiry, sifting,
and scrutiny which is relied upon to render reputation reliable is
present in perhaps greater measure in the process of litigation. While
this might suggest a broader area of application, the affinity to
reputation is strong, and paragraph (paragraph) (23) goes no further,
not even including character.
The leading case in the United States, Patterson v. Gaines, 47 U.S.
(6 How.) 550, 599, 12 L.Ed. 553 (1847), follows in the pattern of the
English decisions, mentioning as illustrative matters thus provable:
manorial rights, public rights of way, immemorial custom, disputed
boundary, and pedigree. More recent recognition of the principle is
found in Grant Bros. Construction Co. v. United States, 232 U.S. 647,
34 S.Ct. 452, 58 L.Ed. 776 (1914), in action for penalties under Alien
Contract Labor Law, decision of board of inquiry of Immigration Service
admissible to prove alienage of laborers, as a matter of pedigree;
United States v. Mid-Continent Petroleum Corp., 67 F.2d 37 (10th Cir.
1933), records of commission enrolling Indians admissible on pedigree;
Jung Yen Loy v. Cahill, 81 F.2d 809 (9th Cir. 1936), board decisions as
to citizenship of plaintiff's father admissible in proceeding for
declaration of citizenship. Contra, In re Estate of Cunha, 49 Haw.
273, 414 P.2d 925 (1966).
Rule 803(3) was approved in the form submitted by the Court to
Congress. However, the Committee intends that the Rule be construed to
limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145 U.S.
285, 295-300 (1892), so as to render statements of intent by a declarant
admissible only to prove his future conduct, not the future conduct of
another person.
After giving particular attention to the question of physical
examination made solely to enable a physician to testify, the Committee
approved Rule 803(4) as submitted to Congress, with the understanding
that it is not intended in any way to adversely affect present privilege
rules or those subsequently adopted.
Rule 803(5) as submitted by the Court permitted the reading into
evidence of a memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable him to testify accurately and fully, ''shown to have been made
when the matter was fresh in his memory and to reflect that knowledge
correctly.'' The Committee amended this Rule to add the words ''or
adopted by the witness'' after the phrase ''shown to have been made'', a
treatment consistent with the definition of ''statement'' in the Jencks
Act, 18 U.S.C. 3500. Moreover, it is the Committee's understanding that
a memorandum or report, although barred under this Rule, would
nonetheless be admissible if it came within another hearsay exception.
This last stated principle is deemed applicable to all the hearsay
rules.
Rule 803(6) as submitted by the Court permitted a record made ''in
the course of a regularly conducted activity'' to be admissible in
certain circumstances. The Committee believed there were insufficient
guarantees of reliability in records made in the course of activities
falling outside the scope of ''business'' activities as that term is
broadly defined in 28 U.S.C. 1732. Moreover, the Committee concluded
that the additional requirement of Section 1732 that it must have been
the regular practice of a business to make the record is a necessary
further assurance of its trustworthiness. The Committee accordingly
amended the Rule to incorporate these limitations.
Rule 803(7) as submitted by the Court concerned the absence of entry
in the records of a ''regularly conducted activity.'' The Committee
amended this Rule to conform with its action with respect to Rule
803(6).
The Committee approved Rule 803(8) without substantive change from
the form in which it was submitted by the Court. The Committee intends
that the phrase ''factual findings'' be strictly construed and that
evaluations or opinions contained in public reports shall not be
admissible under this Rule.
The Committee approved this Rule in the form submitted by the Court,
intending that the phrase ''Statements of fact concerning personal or
family history'' be read to include the specific types of such
statements enumerated in Rule 803(11).
The House approved this rule as it was submitted by the Supreme Court
''with the understanding that it is not intended in any way to adversely
affect present privilege rules.'' We also approve this rule, and we
would point out with respect to the question of its relation to
privileges, it must be read in conjunction with rule 35 of the Federal
Rules of Civil Procedure which provides that whenever the physical or
mental condition of a party (plaintiff or defendant) is in controversy,
the court may require him to submit to an examination by a physician.
It is these examinations which will normally be admitted under this
exception.
Rule 803(5) as submitted by the Court permitted the reading into
evidence of a memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable him to testify accurately and fully, ''shown to have been made
when the matter was fresh in his memory and to reflect that knowledge
correctly.'' The House amended the rule to add the words ''or adopted by
the witness'' after the phrase ''shown to have been made,'' language
parallel to the Jencks Act (18 U.S.C. 3500).
The committee accepts the House amendment with the understanding and
belief that it was not intended to narrow the scope of applicability of
the rule. In fact, we understand it to clarify the rule's applicability
to a memorandum adopted by the witness as well as one made by him.
While the rule as submitted by the Court was silent on the question of
who made the memorandum, we view the House amendment as a helpful
clarification, noting, however, that the Advisory Committee's note to
this rule suggests that the important thing is the accuracy of the
memorandum rather than who made it.
The committee does not view the House amendment as precluding
admissibility in situations in which multiple participants were
involved.
When the verifying witness has not prepared the report, but merely
examined it and found it accurate, he has adopted the report, and it is
therefore admissible. The rule should also be interpreted to cover
other situations involving multiple participants, e.g., employer
dictating to secretary, secretary making memorandum at direction of
employer, or information being passed along a chain of persons, as in
Curtis v. Bradley (65 Conn. 99, 31 Atl. 591 (1894); see, also Rathbun
v. Brancatella, 93 N.J.L. 222, 107 Atl. 279 (1919); see, also McCormick
on Evidence, 303 (2d ed. 1972)).
The committee also accepts the understanding of the House that a
memorandum or report, although barred under rule, would nonetheless be
admissible if it came within another hearsay exception. We consider
this principle to be applicable to all the hearsay rules.
Rule 803(6) as submitted by the Supreme Court permitted a record made
in the course of a regularly conducted activity to be admissible in
certain circumstances. This rule constituted a broadening of the
traditional business records hearsay exception which has been long
advocated by scholars and judges active in the law of evidence
The House felt there were insufficient guarantees of reliability of
records not within a broadly defined business records exception. We
disagree. Even under the House definition of ''business'' including
profession, occupation, and ''calling of every kind,'' the records of
many regularly conducted activities will, or may be, excluded from
evidence. Under the principle of ejusdem generis, the intent of
''calling of every kind'' would seem to be related to work-related
endeavors -- e.g., butcher, baker, artist, etc.
Thus, it appears that the records of many institutions or groups
might not be admissible under the House amendments. For example,
schools, churches, and hospitals will not normally be considered
businesses within the definition. Yet, these are groups which keep
financial and other records on a regular basis in a manner similar to
business enterprises. We believe these records are of equivalent
trustworthiness and should be admitted into evidence.
Three states, which have recently codified their evidence rules, have
adopted the Supreme Court version of rule 803(6), providing for
admission of memoranda of a ''regularly conducted activity.'' None
adopted the words ''business activity'' used in the House amendment.
(See Nev. Rev. Stats. 15.135; N. Mex. Stats. (1973 Supp.)
20-4-803(6); West's Wis. Stats. Anno. (1973 Supp.) 908.03(6).)
Therefore, the committee deleted the word ''business'' as it appears
before the word ''activity''. The last sentence then is unnecessary and
was also deleted.
It is the understanding of the committee that the use of the phrase
''person with knowledge'' is not intended to imply that the party
seeking to introduce the memorandum, report, record, or data compilation
must be able to produce, or even identify, the specific individual upon
whose first-hand knowledge the memorandum, report, record or data
compilation was based. A sufficient foundation for the introduction of
such evidence will be laid if the party seeking to introduce the
evidence is able to show that it was the regular practice of the
activity to base such memorandums, reports, records, or data
compilations upon a transmission from a person with knowledge, e.g., in
the case of the content of a shipment of goods, upon a report from the
company's receiving agent or in the case of a computer printout, upon a
report from the company's computer programer or one who has knowledge of
the particular record system. In short, the scope of the phrase
''person with knowledge'' is meant to be coterminous with the custodian
of the evidence or other qualified witness. The committee believes this
represents the desired rule in light of the complex nature of modern
business organizations.
The House approved rule 803(8), as submitted by the Supreme Court,
with one substantive change. It excluded from the hearsay exception
reports containing matters observed by police officers and other law
enforcement personnel in criminal cases. Ostensibly, the reason for
this exclusion is that observations by police officers at the scene of
the crime or the apprehension of the defendant are not as reliable as
observations by public officials in other cases because of the
adversarial nature of the confrontation between the police and the
defendant in criminal cases.
The committee accepts the House's decision to exclude such recorded
observations where the police officer is available to testify in court
about his observation. However, where he is unavailable as
unavailability is defined in rule 804(a)(4) and (a)(5), the report
should be admitted as the best available evidence. Accordingly, the
committee has amended rule 803(8) to refer to the provision of
(proposed) rule 804(b)(5) (deleted), which allows the admission of such
reports, records or other statements where the police officer or other
law enforcement officer is unavailable because of death, then existing
physical or mental illness or infirmity, or not being successfully
subject to legal process.
The House Judiciary Committee report contained a statement of intent
that ''the phrase 'factual findings' in subdivision (c) be strictly
construed and that evaluations or opinions contained in public reports
shall not be admissible under this rule.'' The committee takes strong
exception to this limiting understanding of the application of the rule.
We do not think it reflects an understanding of the intended operation
of the rule as explained in the Advisory Committee notes to this
subsection. The Advisory Committee notes on subsection (c) of this
subdivision point out that various kinds of evaluative reports are now
admissible under Federal statutes. 7 U.S.C. 78, findings of Secretary
of Agriculture prima facie evidence of true grade of grain; 42 U.S.C.
269(b), bill of health by appropriate official prima facie evidence of
vessel's sanitary history and condition and compliance with regulations.
These statutory exceptions to the hearsay rule are preserved. Rule
802. The willingness of Congress to recognize these and other such
evaluative reports provides a helpful guide in determining the kind of
reports which are intended to be admissible under this rule. We think
the restrictive interpretation of the House overlooks the fact that
while the Advisory Committee assumes admissibility in the first instance
of evaluative reports, they are not admissible if, as the rule states,
''the sources of information or other circumstances indicate lack of
trustworthiness.''
The Advisory Committee explains the factors to be considered:
Factors which may be assistance in passing upon the admissibility of
evaluative reports include: (1) the timeliness of the investigation,
McCormick, Can the Courts Make Wider Use of Reports of Official
Investigations? 42 Iowa L.Rev. 363 (1957); (2) the special skill or
experience of the official, id.; (3) whether a hearing was held and the
level at which conducted, Franklin v. Skelly Oil Co., 141 F.2d 568
(19th Cir. 1944); (4) possible motivation problems suggested by Palmer
v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others
no doubt could be added.
The committee concludes that the language of the rule together with
the explanation provided by the Advisory Committee furnish sufficient
guidance on the admissibility of evaluative reports.
The proposed Rules of Evidence submitted to Congress contained
identical provisions in rules 803 and 804 (which set forth the various
hearsay exceptions), admitting any hearsay statement not specifically
covered by any of the stated exceptions, if the hearsay statement was
found to have ''comparable circumstantial guarantees of
trustworthiness.'' The House deleted these provisions (proposed rules
803(24) and 804(b)(6)((5))) as injecting ''too much uncertainty'' into
the law of evidence and impairing the ability of practitioners to
prepare for trial. The House felt that rule 102, which directs the
courts to construe the Rules of Evidence so as to promote growth and
development, would permit sufficient flexibility to admit hearsay
evidence in appropriate cases under various factual situations that
might arise.
We disagree with the total rejection of a residual hearsay exception.
While we view rule 102 as being intended to provide for a broader
construction and interpretation of these rules, we feel that, without a
separate residual provision, the specifically enumerated exceptions
could become tortured beyond any reasonable circumstances which they
were intended to include (even if broadly construed). Moreover, these
exceptions, while they reflect the most typical and well recognized
exceptions to the hearsay rule, may not encompass every situation in
which the reliability and appropriateness of a particular piece of
hearsay evidence make clear that it should be heard and considered by
the trier of fact.
The committee believes that there are certain exceptional
circumstances where evidence which is found by a court to have
guarantees of trust worthiness equivalent to or exceeding the guarantees
reflected by the presently listed exceptions, and to have a high degree
of prolativeness and necessity could properly be admissible.
The case of Dallas County v. Commercial Union Assoc. Co., Ltd., 286
F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that case
was whether the tower of the county courthouse collapsed because it was
struck by lightning (covered by insurance) or because of structural
weakness and deterioration of the structure (not covered).
Investigation of the structure revealed the presence of charcoal and
charred timbers. In order to show that lightning may not have been the
cause of the charring, the insurer offered a copy of a local newspaper
published over 50 years earlier containing an unsigned article
describing a fire in the courthouse while it was under construction.
The Court found that the newspaper did not qualify for admission as a
business record or an ancient document and did not fit within any other
recognized hearsay exception. The court concluded, however, that the
article was trustworthy because it was inconceivable that a newspaper
reporter in a small town would report a fire in the courthouse if none
had occurred. See also United States v. Barbati, 284 F. Supp. 409
(E.D.N.Y. 1968).
Because exceptional cases like the Dallas County case may arise in
the future, the committee has decided to reinstate a residual exception
for rules 803 and 804(b).
The committee, however, also agrees with those supporters of the
House version who felt that an overly broad residual hearsay exception
could emasculate the hearsay rule and the recognized exceptions or
vitiate the rationale behind codification of the rules.
Therefore, the committee has adopted a residual exception for rules
803 and 804(b) of much narrower scope and applicability than the Supreme
Court version. In order to qualify for admission, a hearsay statement
not falling within one of the recognized exceptions would have to
satisfy at least four conditions. First, it must have ''equivalent
circumstantial guarantees of trustworthiness.'' Second, it must be
offered as evidence of a material fact. Third, the court must determine
that the statement ''is more probative on the point for which it is
offered than any other evidence which the proponent can procure through
reasonable efforts.'' This requirement is intended to insure that only
statements which have high probative value and necessity may qualify for
admission under the residual exceptions. Fourth, the court must
determine that ''the general purposes of these rules and the interests
of justice will best be served by admission of the statement into
evidence.''
It is intended that the residual hearsay exceptions will be used very
rarely, an only in exceptional circumstances. The committee does not
intend to establish a broad license for trial judges to admit hearsay
statements that do not fall within one of the other exceptions contained
in rules 803 and 804(b). The residual exceptions are not meant to
authorize major judicial revisions of the hearsay rule, including its
present exceptions. Such major revisions are best accomplished by
legislative action. It is intended that in any case in which evidence
is sought to be admitted under these subsections, the trial judge will
exercise no less care, reflection and caution than the courts did under
the common law in establishing the now-recognized exceptions to the
hearsay rule.
In order to establish a well-defined jurisprudence, the special facts
and circumstances which, in the court's judgment, indicates that the
statement has a sufficiently high degree of trustworthiness and
necessity to justify its admission should be stated on the record. It
is expected that the court will give the opposing party a full and
adequate opportunity to contest the admission of any statement sought to
be introduced under these subsections.
Rule 803 defines when hearsay statements are admissible in evidence
even though the declarant is available as a witness. The Senate
amendments make three changes in this rule.
The House bill provides in subsection (6) that records of a regularly
conducted ''business'' activity qualify for admission into evidence as
an exception to the hearsay rule. ''Business'' is defined as including
''business, profession, occupation and calling of every kind.'' The
Senate amendment drops the requirement that the records be those of a
''business'' activity and eliminates the definition of ''business.'' The
Senate amendment provides that records are admissible if they are
records of a regularly conducted ''activity.''
The Conference adopts the House provision that the records must be
those of a regularly conducted ''business'' activity. The Conferees
changed the definition of ''business'' contained in the House provision
in order to make it clear that the records of institutions and
associations like schools, churches and hospitals are admissible under
this provision. The records of public schools and hospitals are also
covered by Rule 803(8), which deals with public records and reports.
The Senate amendment adds language, not contained in the House bill,
that refers to another rule that was added by the Senate in another
amendment ((proposed) Rule 804(b)(5) -- Criminal law enforcement records
and reports (deleted)).
In view of its action on (proposed) Rule 804(b)(5) (Criminal law
enforcement records and reports) (deleted), the Conference does not
adopt the Senate amendment and restores the bill to the House version.
The Senate amendment adds a new subsection, (24), which makes
admissible a hearsay statement not specifically covered by any of the
previous twenty-three subsections, if the statement has equivalent
circumstantial guarantees of trustworthiness and if the court determines
that (A) the statement is offered as evidence of a material fact; (B)
the statement is more probative on the point for which it is offered
than any other evidence the proponent can procure through reasonable
efforts; and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement into
evidence.
The House bill eliminated a similar, but broader, provision because
of the conviction that such a provision injected too much uncertainty
into the law of evidence regarding hearsay and impaired the ability of a
litigant to prepare adequately for trial.
The Conference adopts the Senate amendment with an amendment that
provides that a party intending to request the court to use a statement
under this provision must notify any adverse party of this intention as
well as of the particulars of the statement, including the name and
address of the declarant. This notice must be given sufficiently in
advance of the trial or hearing to provide any adverse party with a fair
opportunity to prepare to contest the use of the statement.
The amendments are technical. No substantive change is intended.
Exception (23). Pub. L. 94-149 inserted a comma immediately after
''family'' in catchline.
28 USC Rule 804. Hearsay Exceptions; Declarant Unavailable
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Definition of unavailability. -- ''Unavailability as a witness''
includes situations in which the declarant --
(1) is exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of the declarant's
statement; or
(2) persists in refusing to testify concerning the subject matter of
the declarant's statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the
declarant's statement; or
(4) is unable to be present or to testify at the hearing because of
death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has
been unable to procure the declarant's attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or (4), the declarant's
attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal,
claim of lack of memory, inability, or absence is due to the procurement
or wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.
(b) Hearsay exceptions. -- The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. -- Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition taken
in compliance with law in the course of the same or another proceeding,
if the party against whom the testimony is now offered, or, in a civil
action or proceeding, a predecessor in interest, had an opportunity and
similar motive to develop the testimony by direct, cross, or redirect
examination.
(2) Statement under belief of impending death. -- In a prosecution
for homicide or in a civil action or proceeding, a statement made by a
declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant believed to
be impending death.
(3) Statement against interest. -- A statement which was at the time
of its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant's position
would not have made the statement unless believing it to be true. A
statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
(4) Statement of personal or family history. -- (A) A statement
concerning the declarant's own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or
other similar fact of personal or family history, even though declarant
had no means of acquiring personal knowledge of the matter stated; or
(B) a statement concerning the foregoing matters, and death also, of
another person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the other's
family as to be likely to have accurate information concerning the
matter declared.
(5) Other exceptions. -- A statement not specifically covered by any
of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of justice
will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance
of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to offer
the statement and the particulars of it, including the name and address
of the declarant.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1942; Pub. L. 94-149,
1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2, 1987, eff. Oct. 1,
1987; Pub. L. 100-690, title VII, 7075(b), Nov. 18, 1988, 102 Stat.
4405.)
As to firsthand knowledge on the part of hearsay declarants, see the
introductory portion of the Advisory Committee's Note to Rule 803.
Subdivision (a). The definition of unavailability implements the
division of hearsay exceptions into two categories by Rules 803 and
804(b).
At common law the unavailability requirement was evolved in
connection with particular hearsay exceptions rather than along general
lines. For example, see the separate explication of unavailability in
relation to former testimony, declarations against interest, and
statements of pedigree, separately developed in McCormick 234, 257,
and 297. However, no reason is apparent for making distinctions as to
what satisfies unavailability for the different exceptions. The
treatment in the rule is therefore uniform although differences in the
range of process for witnesses between civil and criminal cases will
lead to a less exacting requirement under item (5). See Rule 45(e) of
the Federal Rules of Civil Procedure and Rule 17(e) of the Federal Rules
of Criminal Procedure.
Five instances of unavailability are specified:
(1) Substantial authority supports the position that exercise of a
claim of privilege by the declarant satisfies the requirement of
unavailability (usually in connection with former testimony). Wyatt v.
State, 35 Ala.App. 147, 46 So.2d 837 (1950); State v. Stewart, 85 Kan.
404, 116 P. 489 (1911); Annot., 45 A.L.R.2d 1354; Uniform Rule
62(7)(a); California Evidence Code 240(a)(1); Kansas Code of Civil
Procedure 60-459(g) (1). A ruling by the judge is required, which
clearly implies that an actual claim of privilege must be made.
(2) A witness is rendered unavailable if he simply refuses to testify
concerning the subject matter of his statement despite judicial
pressures to do so, a position supported by similar considerations of
practicality. Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963);
People v. Pickett, 339 Mich. 294, 63 N.W.2d 681, 45 A.L.R.2d 1341
(1954). Contra, Pleau v. State, 255 Wis. 362, 38 N.W.2d 496 (1949).
(3) The position that a claimed lack of memory by the witness of the
subject matter of his statement constitutes unavailability likewise
finds support in the cases, though not without dissent. McCormick 234,
p. 494. If the claim is successful, the practical effect is to put the
testimony beyond reach, as in the other instances. In this instance,
however, it will be noted that the lack of memory must be established by
the testimony of the witness himself, which clearly contemplates his
production and subjection to cross-examination.
(4) Death and infirmity find general recognition as ground.
McCormick 234, 257, 297; Uniform Rule 62(7)(c); California Evidence
Code 240(a)(3); Kansas Code of Civil Procedure 60-459(g)(3); New
Jersey Evidence Rule 62(6)(c). See also the provisions on use of
depositions in Rule 32(a)(3) of the Federal Rules of Civil Procedure and
Rule 15(e) of the Federal Rules of Criminal Procedure.
(5) Absence from the hearing coupled with inability to compel
attendance by process or other reasonable means also satisfies the
requirement. McCormick 234; Uniform Rule 62(7)(d) and (e);
California Evidence Code 240(a)(4) and (5); Kansas Code of Civil
Procedure 60-459(g)(4) and (5); New Jersey Rule 62(6)(b) and (d). See
the discussion of procuring attendance of witnesses who are nonresidents
or in custody in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20
L.Ed.2d 255 (1968).
If the conditions otherwise constituting unavailability result from
the procurement or wrongdoing of the proponent of the statement, the
requirement is not satisfied. The rule contains no requirement that an
attempt be made to take the deposition of a declarant.
Subdivision (b). Rule 803 supra, is based upon the assumption that a
hearsay statement falling within one of its exceptions possesses
qualities which justify the conclusion that whether the declarant is
available or unavailable is not a relevant factor in determining
admissibility. The instant rule proceeds upon a different theory:
hearsay which admittedly is not equal in quality to testimony of the
declarant on the stand may nevertheless be admitted if the declarant is
unavailable and if his statement meets a specified standard. The rule
expresses preferences: testimony given on the stand in person is
preferred over hearsay, and hearsay, if of the specified quality, is
preferred over complete loss of the evidence of the declarant. The
exceptions evolved at common law with respect to declarations of
unavailable declarants furnish the basis for the exceptions enumerated
in the proposal. The term ''unavailable'' is defined in subdivision
(a).
Exception (1). Former testimony does not rely upon some set of
circumstances to substitute for oath and cross-examination, since both
oath and opportunity to cross-examine were present in fact. The only
missing one of the ideal conditions for the giving of testimony is the
presence of trier and opponent (''demeanor evidence''). This is lacking
with all hearsay exceptions. Hence it may be argued that former
testimony is the strongest hearsay and should be included under Rule
803, supra. However, opportunity to observe demeanor is what in a large
measure confers depth and meaning upon oath and cross-examination. Thus
in cases under Rule 803 demeanor lacks the significance which it
possesses with respect to testimony. In any event, the tradition,
founded in experience, uniformly favors production of the witness if he
is available. The exception indicates continuation of the policy. This
preference for the presence of the witness is apparent also in rules and
statutes on the use of depositions, which deal with substantially the
same problem.
Under the exception, the testimony may be offered (1) against the
party against whom it was previously offered or (2) against the party by
whom it was previously offered. In each instance the question resolves
itself into whether fairness allows imposing, upon the party against
whom now offered, the handling of the witness on the earlier occasion.
(1) If the party against whom now offered is the one against whom the
testimony was offered previously, no unfairness is apparent in requiring
him to accept his own prior conduct of cross-examination or decision not
to cross-examine. Only demeanor has been lost, and that is inherent in
the situation. (2) If the party against whom now offered is the one by
whom the testimony was offered previously, a satisfactory answer becomes
somewhat more difficult. One possibility is to proceed somewhat along
the line of an adoptive admission, i.e. by offering the testimony
proponent in effect adopts it. However, this theory savors of discarded
concepts of witnesses' belonging to a party, of litigants' ability to
pick and choose witnesses, and of vouching for one's own witnesses. Cf.
McCormick 246, pp. 526-527; 4 Wigmore 1075. A more direct and
acceptable approach is simply to recognize direct and redirect
examination of one's own witness as the equivalent of cross-examining an
opponent's witness. Falknor, Former Testimony and the Uniform Rules: A
Comment, 38 N.Y.U.L.Rev. 651, n. 1 (1963); McCormick 231, p. 483.
See also 5 Wigmore 1389. Allowable techniques for dealing with
hostile, doublecrossing, forgetful, and mentally deficient witnesses
leave no substance to a claim that one could not adequately develop his
own witness at the former hearing. An even less appealing argument is
presented when failure to develop fully was the result of a deliberate
choice.
The common law did not limit the admissibility of former testimony to
that given in an earlier trial of the same case, although it did require
identity of issues as a means of insuring that the former handling of
the witness was the equivalent of what would now be done if the
opportunity were presented. Modern decisions reduce the requirement to
''substantial'' identity. McCormick 233. Since identity of issues is
significant only in that it bears on motive and interest in developing
fully the testimony of the witness, expressing the matter in the latter
terms is preferable. Id. Testimony given at a preliminary hearing was
held in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d
489 (1970), to satisfy confrontation requirements in this respect.
As a further assurance of fairness in thrusting upon a party the
prior handling of the witness, the common law also insisted upon
identity of parties, deviating only to the extent of allowing
substitution of successors in a narrowly construed privity. Mutuality
as an aspect of identity is now generally discredited, and the
requirement of identity of the offering party disappears except as it
might affect motive to develop the testimony. Falknor, supra, at 652;
McCormick 232, pp. 487-488. The question remains whether strict
identity, or privity, should continue as a requirement with respect to
the party against whom offered. The rule departs to the extent of
allowing substitution of one with the right and opportunity to develop
the testimony with similar motive and interest. This position is
supported by modern decisions. McCormick 232, pp. 489-490; 5 Wigmore
1388.
Provisions of the same tenor will be found in Uniform Rule 63(3)(b);
California Evidence Code 1290-1292; Kansas Code of Civil Procedure
60-460(c)(2); New Jersey Evidence Rule 63(3). Unlike the rule, the
latter three provide either that former testimony is not admissible if
the right of confrontation is denied or that it is not admissible if the
accused was not a party to the prior hearing. The genesis of these
limitations is a caveat in Uniform Rule 63(3) Comment that use of former
testimony against an accused may violate his right of confrontation.
Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409
(1895), held that the right was not violated by the Government's use, on
a retrial of the same case, of testimony given at the first trial by two
witnesses since deceased. The decision leaves open the questions (1)
whether direct and redirect are equivalent to cross-examination for
purposes of confrontation, (2) whether testimony given in a different
proceeding is acceptable, and (3) whether the accused must himself have
been a party to the earlier proceeding or whether a similarly situated
person will serve the purpose. Professor Falknor concluded that, if a
dying declaration untested by cross-examination is constitutionally
admissible, former testimony tested by the cross-examination of one
similarly situated does not offend against confrontation. Falknor,
supra, at 659-660. The constitutional acceptability of dying
declarations has often been conceded. Mattox v. United States, 156
U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Kirby v. United
States, 174 U.S. 47, 61, 19 S.Ct. 574, 43 L.Ed. 890 (1899); Pointer v.
Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
Exception (2). The exception is the familiar dying declaration of
the common law, expanded somewhat beyond its traditionally narrow
limits. While the original religious justification for the exception
may have lost its conviction for some persons over the years, it can
scarcely be doubted that powerful psychological pressures are present.
See 5 Wigmore 1443 and the classic statement of Chief Baron Eyre in Rex
v. Woodcock, 1 Leach 500, 502, 168 Eng.Rep. 352, 353 (K.B. 1789).
The common law required that the statement be that of the victim,
offered in a prosecution for criminal homicide. Thus declarations by
victims in prosecutions for other crimes, e.g. a declaration by a rape
victim who dies in childbirth, and all declarations in civil cases were
outside the scope of the exception. An occasional statute has removed
these restrictions, as in Colo.R.S. 52-1-20, or has expanded the area
of offenses to include abortions, 5 Wigmore 1432, p. 224, n. 4.
Kansas by decision extended the exception to civil cases. Thurston v.
Fritz, 91 Kan. 468, 138 P. 625 (1914). While the common law exception
no doubt originated as a result of the exceptional need for the evidence
in homicide cases, the theory of admissibility applies equally in civil
cases and in prosecutions for crimes other than homicide. The same
considerations suggest abandonment of the limitation to circumstances
attending the event in question, yet when the statement deals with
matters other than the supposed death, its influence is believed to be
sufficiently attenuated to justify the limitation. Unavailability is
not limited to death. See subdivision (a) of this rule. Any problem as
to declarations phrased in terms of opinion is laid at rest by Rule 701,
and continuation of a requirement of first-hand knowledge is assured by
Rule 602.
Comparable provisions are found in Uniform Rule 63 (5); California
Evidence Code 1242; Kansas Code of Civil Procedure 60-460(e); New
Jersey Evidence Rule 63(5).
Exception (3). The circumstantial guaranty of reliability for
declarations against interest is the assumption that persons do not make
statements which are damaging to themselves unless satisfied for good
reason that they are true. Hileman v. Northwest Engineering Co., 346
F.2d 668 (6th Cir. 1965). If the statement is that of a party, offered
by his opponent, it comes in as an admission, Rule 803(d)(2), and there
is no occasion to inquire whether it is against interest, this not being
a condition precedent to admissibility of admissions by opponents.
The common law required that the interest declared against be
pecuniary or proprietary but within this limitation demonstrated
striking ingenuity in discovering an against-interest aspect. Higham v.
Ridgeway, 10 East 109, 103 Eng.Rep. 717 (K.B. 1808); Reg. v.
Overseers of Birmingham, 1 B. & S. 763, 121 Eng.Rep. 897 (Q.B. 1861);
McCormick, 256, p. 551, nn. 2 and 3.
The exception discards the common law limitation and expands to the
full logical limit. One result is to remove doubt as to the
admissibility of declarations tending to establish a tort liability
against the declarant or to extinguish one which might be asserted by
him, in accordance with the trend of the decisions in this country.
McCormick 254, pp. 548-549. Another is to allow statements tending to
expose declarant to hatred, ridicule, or disgrace, the motivation here
being considered to be as strong as when financial interests are at
stake. McCormick 255, p. 551. And finally, exposure to criminal
liability satisfies the against-interest requirement. The refusal of
the common law to concede the adequacy of a penal interest was no doubt
indefensible in logic, see the dissent of Mr. Justice Holmes in
Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820
(1913), but one senses in the decisions a distrust of evidence of
confessions by third persons offered to exculpate the accused arising
from suspicions of fabrication either of the fact of the making of the
confession or in its contents, enhanced in either instance by the
required unavailability of the declarant. Nevertheless, an increasing
amount of decisional law recognizes exposure to punishment for crime as
a sufficient stake. People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr.
841, 389 P.2d 377 (1964); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d
284 (1945); Band's Refuse Removal, Inc. v. Fairlawn Borough, 62
N.J.Super. 552, 163 A.2d 465 (1960); Newberry v. Commonwealth, 191 Va.
445, 61 S.E.2d 318 (1950); Annot., 162 A.L.R. 446. The requirement of
corroboration is included in the rule in order to effect an
accommodation between these competing considerations. When the
statement is offered by the accused by way of exculpation, the resulting
situation is not adapted to control by rulings as to the weight of the
evidence and, hence the provision is cast in terms of a requirement
preliminary to admissibility. Cf. Rule 406(a). The requirement of
corroboration should be construed in such a manner as to effectuate its
purpose of circumventing fabrication.
Ordinarily the third-party confession is thought of in terms of
exculpating the accused, but this is by no means always or necessarily
the case: it may include statements implicating him, and under the
general theory of declarations against interest they would be admissible
as related statements. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct.
1074, 13 L.Ed.2d 934 (1965), and Bruton v. United States, 389 U.S. 818,
88 S.Ct. 126, 19 L.Ed.2d 70 (1968), both involved confessions by
codefendants which implicated the accused. While the confession was not
actually offered in evidence in Douglas, the procedure followed
effectively put it before the jury, which the Court ruled to be error.
Whether the confession might have been admissible as a declaration
against penal interest was not considered or discussed. Bruton assumed
the inadmissibility, as against the accused, of the implicating
confession of his codefendant, and centered upon the question of the
effectiveness of a limiting instruction. These decisions, however, by
no means require that all statements implicating another person be
excluded from the category of declarations against interest. Whether a
statement is in fact against interest must be determined from the
circumstances of each case. Thus a statement admitting guilt and
implicating another person, made while in custody, may well be motivated
by a desire to curry favor with the authorities and hence fail to
qualify as against interest. See the dissenting opinion of Mr. Justice
White in Bruton. On the other hand, the same words spoken under
different circumstances, e.g., to an acquaintance, would have no
difficulty in qualifying. The rule does not purport to deal with
questions of the right of confrontation.
The balancing of self-serving against dissenting aspects of a
declaration is discussed in McCormick 256.
For comparable provisions, see Uniform Rule 63(10): California
Evidence Code 1230; Kansas Code of Civil Procedure 60-460(j); New
Jersey Evidence Rule 63(10).
Exception (4). The general common law requirement that a declaration
in this area must have been made ante litem motam has been dropped, as
bearing more appropriately on weight than admissibility. See 5 Wigmore
1483. Item (i)((A)) specifically disclaims any need of firsthand
knowledge respecting declarant's own personal history. In some
instances it is self-evident (marriage) and in others impossible and
traditionally not required (date of birth). Item (ii)((B)) deals with
declarations concerning the history of another person. As at common
law, declarant is qualified if related by blood or marriage. 5 Wigmore
1489. In addition, and contrary to the common law, declarant qualifies
by virtue of intimate association with the family. Id., 1487. The
requirement sometimes encountered that when the subject of the statement
is the relationship between two other persons the declarant must qualify
as to both is omitted. Relationship is reciprocal. Id., 1491.
For comparable provisions, see Uniform Rule 63 (23), (24), (25);
California Evidence Code 1310, 1311; Kansas Code of Civil Procedure
60-460(u), (v), (w); New Jersey Evidence Rules 63(23), 63(24), 63(25).
Rule 804(a)(3) was approved in the form submitted by the Court.
However, the Committee intends no change in existing federal law under
which the court may choose to disbelieve the declarant's testimony as to
his lack of memory. See United States v. Insana, 423 F.2d 1165,
1169-1170 (2nd Cir.), cert. denied, 400 U.S. 841 (1970).
Rule 804(a)(5) as submitted to the Congress provided, as one type of
situation in which a declarant would be deemed ''unavailable'', that he
be ''absent from the hearing and the proponent of his statement has been
unable to procure his attendance by process or other reasonable means.''
The Committee amended the Rule to insert after the word ''attendance''
the parenthetical expression ''(or, in the case of a hearsay exception
under subdivision (b)(2), (3), or (4), his attendance or testimony)''.
The amendment is designed primarily to require that an attempt be made
to depose a witness (as well as to seek his attendance) as a
precondition to the witness being deemed unavailable. The Committee,
however, recognized the propriety of an exception to this additional
requirement when it is the declarant's former testimony that is sought
to be admitted under subdivision (b)(1).
Rule 804(b)(1) as submitted by the Court allowed prior testimony of
an unavailable witness to be admissible if the party against whom it is
offered or a person ''with motive and interest similar'' to his had an
opportunity to examine the witness. The Committee considered that it is
generally unfair to impose upon the party against whom the hearsay
evidence is being offered responsibility for the manner in which the
witness was previously handled by another party. The sole exception to
this, in the Committee's view, is when a party's predecessor in interest
in a civil action or proceeding had an opportunity and similar motive to
examine the witness. The Committee amended the Rule to reflect these
policy determinations.
Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in the
bill) proposed to expand the traditional scope of the dying declaration
exception (i.e. a statement of the victim in a homicide case as to the
cause or circumstances of his believed imminent death) to allow such
statements in all criminal and civil cases. The Committee did not
consider dying declarations as among the most reliable forms of hearsay.
Consequently, it amended the provision to limit their admissibility in
criminal cases to homicide prosecutions, where exceptional need for the
evidence is present. This is existing law. At the same time, the
Committee approved the expansion to civil actions and proceedings where
the stakes do not involve possible imprisonment, although noting that
this could lead to forum shopping in some instances.
Rule 804(b)(4) as submitted by the Court (now Rule 804(b)(3) in the
bill) provided as follows:
Statement against interest. -- A statement which was at the time of
its making so far contrary to the declarant's pecuniary or proprietary
interest or so far tended to subject him to civil or criminal liability
or to render invalid a claim by him against another or to make him an
object of hatred, ridicule, or disgrace, that a reasonable man in his
position would not have made the statement unless he believed it to be
true. A statement tending to exculpate the accused is not admissible
unless corroborated.
The Committee determined to retain the traditional hearsay exception
for statements against pecuniary or proprietary interest. However, it
deemed the Court's additional references to statements tending to
subject a declarant to civil liability or to render invalid a claim by
him against another to be redundant as included within the scope of the
reference to statements against pecuniary or proprietary interest. See
Gichner v. Antonio Triano Tile and Marble Co., 410 F.2d 238 (D.C. Cir.
1968). Those additional references were accordingly deleted.
The Court's Rule also proposed to expand the hearsay limitation from
its present federal limitation to include statements subjecting the
declarant to criminal liability and statements tending to make him an
object of hatred, ridicule, or disgrace. The Committee eliminated the
latter category from the subdivision as lacking sufficient guarantees of
reliability. See United States v. Dovico, 380 F.2d 325, 327nn.2,4 (2nd
Cir.), cert. denied, 389 U.S. 944 (1967). As for statements against
penal interest, the Committee shared the view of the Court that some
such statements do possess adequate assurances of reliability and should
be admissible. It believed, however, as did the Court, that statements
of this type tending to exculpate the accused are more suspect and so
should have their admissibility conditioned upon some further provision
insuring trustworthiness. The proposal in the Court Rule to add a
requirement of simple corroboration was, however, deemed ineffective to
accomplish this purpose since the accused's own testimony might suffice
while not necessarily increasing the reliability of the hearsay
statement. The Committee settled upon the language ''unless
corroborating circumstances clearly indicate the trustworthiness of the
statement'' as affording a proper standard and degree of discretion. It
was contemplated that the result in such cases as Donnelly v. United
States, 228 U.S. 243 (1912), where the circumstances plainly indicated
reliability, would be changed. The Committee also added to the Rule the
final sentence from the 1971 Advisory Committee draft, designed to
codify the doctrine of Bruton v. United States, 391 U.S. 123 (1968).
The Committee does not intend to affect the existing exception to the
Bruton principle where the codefendant takes the stand and is subject to
cross-examination, but believed there was no need to make specific
provision for this situation in the Rule, since in that even the
declarant would not be ''unavailable''.
Subdivision (a) of rule 804 as submitted by the Supreme Court defined
the conditions under which a witness was considered to be unavailable.
It was amended in the House.
The purpose of the amendment, according to the report of the House
Committee on the Judiciary, is ''primarily to require that an attempt be
made to depose a witness (as well as to seek his attendance) as a
precondition to the witness being unavailable.''
Under the House amendment, before a witness is declared unavailable,
a party must try to depose a witness (declarant) with respect to dying
declarations, declarations against interest, and declarations of
pedigree. None of these situations would seem to warrant this needless,
impractical and highly restrictive complication. A good case can be
made for eliminating the unavailability requirement entirely for
declarations against interest cases. (Uniform rule 63(10); Kan. Stat.
Anno. 60-460(j); 2A N.J. Stats. Anno. 84-63(10).)
In dying declaration cases, the declarant will usually, though not
necessarily, be deceased at the time of trial. Pedigree statements
which are admittedly and necessarily based largely on word of mouth are
not greatly fortified by a deposition requirement.
Depositions are expensive and time-consuming. In any event,
deposition procedures are available to those who wish to resort to them.
Moreover, the deposition procedures of the Civil Rules and Criminal
Rules are only imperfectly adapted to implementing the amendment. No
purpose is served unless the deposition, if taken, may be used in
evidence. Under Civil Rule (a)(3) and Criminal Rule 15(e), a
deposition, though taken, may not be admissible, and under Criminal Rule
15(a) substantial obstacles exist in the way of even taking a
deposition.
For these reasons, the committee deleted the House amendment.
The committee understands that the rule as to unavailability, as
explained by the Advisory Committee ''contains no requirement that an
attempt be made to take the deposition of a declarant.'' In reflecting
the committee's judgment, the statement is accurate insofar as it goes.
Where, however, the proponent of the statement, with knowledge of the
existence of the statement, fails to confront the declarant with the
statement at the taking of the deposition, then the proponent should
not, in fairness, be permitted to treat the declarant as ''unavailable''
simply because the declarant was not amendable to process compelling his
attendance at trial. The committee does not consider it necessary to
amend the rule to this effect because such a situation abuses, not
conforms to, the rule. Fairness would preclude a person from
introducing a hearsay statement on a particular issue if the person
taking the deposition was aware of the issue at the time of the
deposition but failed to depose the unavailable witness on that issue.
Former testimony. -- Rule 804(b)(1) as submitted by the Court allowed
prior testimony of an unavailable witness to be admissible if the party
against whom it is offered or a person ''with motive and interest
similar'' to his had an opportunity to examine the witness.
The House amended the rule to apply only to a party's predecessor in
interest. Although the committee recognizes considerable merit to the
rule submitted by the Supreme Court, a position which has been advocated
by many scholars and judges, we have concluded that the difference
between the two versions is not great and we accept the House amendment.
The rule defines those statements which are considered to be against
interest and thus of sufficient trustworthiness to be admissible even
though hearsay. With regard to the type of interest declared against,
the version submitted by the Supreme Court included inter alia,
statements tending to subject a declarant to civil liability or to
invalidate a claim by him against another. The House struck these
provisions as redundant. In view of the conflicting case law construing
pecuniary or proprietary interests narrowly so as to exclude, e.g., tort
cases, this deletion could be misconstrued.
Three States which have recently codified their rules of evidence
have followed the Supreme Court's version of this rule, i.e., that a
statement is against interest if it tends to subject a declarant to
civil liability. (Nev. Rev. Stats. 51.345; N. Mex. Stats. (1973
supp.) 20-4-804(4); West's Wis. Stats. Anno. (1973 supp.)
908.045(4).)
The committee believes that the reference to statements tending to
subject a person to civil liability constitutes a desirable
clarification of the scope of the rule. Therefore, we have reinstated
the Supreme Court language on this matter.
The Court rule also proposed to expand the hearsay limitation from
its present federal limitation to include statements subjecting the
declarant to statements tending to make him an object of hatred,
ridicule, or disgrace. The House eliminated the latter category from
the subdivision as lacking sufficient guarantees of reliability.
Although there is considerable support for the admissibility of such
statements (all three of the State rules referred to supra, would admit
such statements), we accept the deletion by the House.
The House amended this exception to add a sentence making
inadmissible a statement or confession offered against the accused in a
criminal case, made by a codefendant or other person implicating both
himself and the accused. The sentence was added to codify the
constitutional principle announced in Bruton v. United States, 391 U.S.
123 (1968). Bruton held that the admission of the extrajudicial hearsay
statement of one codefendant inculpating a second codefendant violated
the confrontation clause of the sixth amendment.
The committee decided to delete this provision because the basic
approach of the rules is to avoid codifying, or attempting to codify,
constitutional evidentiary principles, such as the fifth amendment's
right against self-incrimination and, here, the sixth amendment's right
of confrontation. Codification of a constitutional principle is
unnecessary and, where the principle is under development, often unwise.
Furthermore, the House provision does not appear to recognize the
exceptions to the Bruton rule, e.g. where the codefendant takes the
stand and is subject to cross examination; where the accused confessed,
see United States v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert.
denied 397 U.S. 942 (1907); where the accused was placed at the scene
of the crime, see United States v. Zelker, 452 F.2d 1009 (2d Cir.
1971). For these reasons, the committee decided to delete this
provision.
Note to Subdivision (b)(5). See Note to Paragraph (24), Notes of
Committee on the Judiciary, Senate Report No. 93-1277, set out as a
note under rule 803 of these rules.
Rule 804 defines what hearsay statements are admissible in evidence
if the declarant is unavailable as a witness. The Senate amendments
make four changes in the rule.
Subsection (a) defines the term ''unavailability as a witness''. The
House bill provides in subsection (a)(5) that the party who desires to
use the statement must be unable to procure the declarant's attendance
by process or other reasonable means. In the case of dying
declarations, statements against interest and statements of personal or
family history, the House bill requires that the proponent must also be
unable to procure the declarant's testimony (such as by deposition or
interrogatories) by process or other reasonable means. The Senate
amendment eliminates this latter provision.
The Conference adopts the provision contained in the House bill.
The Senate amendment to subsection (b)(3) provides that a statement
is against interest and not excluded by the hearsay rule when the
declarant is unavailable as a witness, if the statement tends to subject
a person to civil or criminal liability or renders invalid a claim by
him against another. The House bill did not refer specifically to civil
liability and to rendering invalid a claim against another. The Senate
amendment also deletes from the House bill the provision that subsection
(b)(3) does not apply to a statement or confession, made by a
codefendant or another, which implicates the accused and the person who
made the statement, when that statement or confession is offered against
the accused in a criminal case.
The Conference adopts the Senate amendment. The Conferees intend to
include within the purview of this rule, statements subjecting a person
to civil liability and statements rendering claims invalid. The
Conferees agree to delete the provision regarding statements by a
codefendant, thereby reflecting the general approach in the Rules of
Evidence to avoid attempting to codify constitutional evidentiary
principles.
The Senate amendment adds a new subsection, (b)(6) (now (b)(5)),
which makes admissible a hearsay statement not specifically covered by
any of the five previous subsections, if the statement has equivalent
circumstantial guarantees of trustworthiness and if the court determines
that (A) the statement is offered as evidence of a material fact; (B)
the statement is more probative on the point for which it is offered
than any other evidence the proponent can procure through reasonable
efforts; and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement into
evidence.
The House bill eliminated a similar, but broader, provision because
of the conviction that such a provision injected too much uncertainty
into the law of evidence regarding hearsay and impaired the ability of a
litigant to prepare adequately for trial.
The Conference adopts the Senate amendment with an amendment that
renumbers this subsection and provides that a party intending to request
the court to use a statement under this provision must notify any
adverse party of this intention as well as of the particulars of the
statement, including the name and address of the declarant. This notice
must be given sufficiently in advance of the trial or hearing to provide
any adverse party with a fair opportunity to prepare the contest the use
of the statement.
The amendments are technical. No substantive change is intended.
Pub. L. 94-149, 1(12), substituted a semicolon for the colon in
catchline.
Subd. (b)(3). Pub. L. 94-149, 1(13), substituted ''admissible'' for
''admissable''.
Subd. (a)(5). Pub. L. 100-690 substituted ''subdivision'' for
''subdivisions''.
28 USC Rule 805. Hearsay Within Hearsay
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Hearsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an exception
to the hearsay rule provided in these rules.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1943.)
On principle it scarcely seems open to doubt that the hearsay rule
should not call for exclusion of a hearsay statement which includes a
further hearsay statement when both conform to the requirements of a
hearsay exception. Thus a hospital record might contain an entry of the
patient's age based on information furnished by his wife. The hospital
record would qualify as a regular entry except that the person who
furnished the information was not acting in the routine of the business.
However, her statement independently qualifies as a statement of
pedigree (if she is unavailable) or as a statement made for purposes of
diagnosis or treatment, and hence each link in the chain falls under
sufficient assurances. Or, further to illustrate, a dying declaration
may incorporate a declaration against interest by another declarant.
See McCormick 290, p. 611.
28 USC Rule 806. Attacking and Supporting Credibility of Declarant
TITLE 28, APPENDIX -- RULES OF EVIDENCE
When a hearsay statement, or a statement defined in Rule 801(d)(2),
(C), (D), or (E), has been admitted in evidence, the credibility of the
declarant may be attacked, and if attacked may be supported, by any
evidence which would be admissible for those purposes if declarant had
testified as a witness. Evidence of a statement or conduct by the
declarant at any time, inconsistent with the declarant's hearsay
statement, is not subject to any requirement that the declarant may have
been afforded an opportunity to deny or explain. If the party against
whom a hearsay statement has been admitted calls the declarant as a
witness, the party is entitled to examine the declarant on the statement
as if under cross-examination.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1943; Mar. 2, 1987, eff.
Oct. 1, 1987.)
The declarant of a hearsay statement which is admitted in evidence is
in effect a witness. His credibility should in fairness be subject to
impeachment and support as though he had in fact testified. See Rules
608 and 609. There are however, some special aspects of the impeaching
of a hearsay declarant which require consideration. These special
aspects center upon impeachment by inconsistent statement, arise from
factual differences which exist between the use of hearsay and an actual
witness and also between various kinds of hearsay, and involve the
question of applying to declarants the general rule disallowing evidence
of an inconsistent statement to impeach a witness unless he is afforded
an opportunity to deny or explain. See Rule 613(b).
The principle difference between using hearsay and an actual witness
is that the inconsistent statement will in the case of the witness
almost inevitably of necessity in the nature of things be a prior
statement, which it is entirely possible and feasible to call to his
attention, while in the case of hearsay the inconsistent statement may
well be a subsequent one, which practically precludes calling it to the
attention of the declarant. The result of insisting upon observation of
this impossible requirement in the hearsay situation is to deny the
opponent, already barred from cross-examination, any benefit of this
important technique of impeachment. The writers favor allowing the
subsequent statement. McCormick 37, p. 69; 3 Wigmore 1033. The
cases, however, are divided. Cases allowing the impeachment include
People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946); People v.
Rosoto, 58 Cal.2d 304, 23 Cal.Rptr. 779, 373 P.2d 867 (1962); Carver v.
United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602 (1897).
Contra, Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed.
409 (1895); People v. Hines, 284 N.Y. 93, 29 N.E.2d 483 (1940). The
force of Mattox, where the hearsay was the former testimony of a
deceased witness and the denial of use of a subsequent inconsistent
statement was upheld, is much diminished by Carver, where the hearsay
was a dying declaration and denial of use of a subsequent inconsistent
statement resulted in reversal. The difference in the particular brand
of hearsay seems unimportant when the inconsistent statement is a
subsequent one. True, the opponent is not totally deprived of
cross-examination when the hearsay is former testimony or a deposition
but he is deprived of cross-examining on the statement or along lines
suggested by it. Mr. Justice Shiras, with two justices joining him,
dissented vigorously in Mattox.
When the impeaching statement was made prior to the hearsay
statement, differences in the kinds of hearsay appear which arguably may
justify differences in treatment. If the hearsay consisted of a simple
statement by the witness, e.g. a dying declaration or a declaration
against interest, the feasibility of affording him an opportunity to
deny or explain encounters the same practical impossibility as where the
statement is a subsequent one, just discussed, although here the
impossibility arises from the total absence of anything resembling a
hearing at which the matter could be put to him. The courts by a large
majority have ruled in favor of allowing the statement to be used under
these circumstances. McCormick 37, p. 69; 3 Wigmore 1033. If,
however, the hearsay consists of former testimony or a deposition, the
possibility of calling the prior statement to the attention of the
witness or deponent is not ruled out, since the opportunity to
cross-examine was available. It might thus be concluded that with
former testimony or depositions the conventional foundation should be
insisted upon. Most of the cases involve depositions, and Wigmore
describes them as divided. 3 Wigmore 1031. Deposition procedures at
best are cumbersome and expensive, and to require the laying of the
foundation may impose an undue burden. Under the federal practice,
there is no way of knowing with certainty at the time of taking a
deposition whether it is merely for discovery or will ultimately end up
in evidence. With respect to both former testimony and depositions the
possibility exists that knowledge of the statement might not be acquired
until after the time of the cross-examination. Moreover, the expanded
admissibility of former testimony and depositions under Rule 804(b)(1)
calls for a correspondingly expanded approach to impeachment. The rule
dispenses with the requirement in all hearsay situations, which is
readily administered and best calculated to lead to fair results.
Notice should be taken that Rule 26(f) of the Federal Rules of Civil
Procedure, as originally submitted by the Advisory Committee, ended with
the following:
''* * * and, without having first called them to the deponent's
attention, may show statements contradictory thereto made at any time by
the deponent.''
This language did not appear in the rule as promulgated in December,
1937. See 4 Moore's Federal Practice 26.01(9), 26.35 (2d ed. 1967).
In 1951, Nebraska adopted a provision strongly resembling the one
stricken from the federal rule:
''Any party may impeach any adverse deponent by self-contradiction
without having laid foundation for such impeachment at the time such
deposition was taken.'' R.S.Neb. 25-1267.07.
For similar provisions, see Uniform Rule 65; California Evidence
Code 1202; Kansas Code of Civil Procedure 60-462; New Jersey
Evidence Rule 65.
The provision for cross-examination of a declarant upon his hearsay
statement is a corollary of general principles of cross-examination. A
similar provision is found in California Evidence Code 1203.
Rule 906, as passed by the House and as proposed by the Supreme Court
provides that whenever a hearsay statement is admitted, the credibility
of the declarant of the statement may be attacked, and if attacked may
be supported, by any evidence which would be admissible for those
purposes if the declarant had testified as a witness. Rule 801 defines
what is a hearsay statement. While statements by a person authorized by
a party-opponent to make a statement concerning the subject, by the
party-opponent's agent or by a coconspirator of a party -- see rule
801(d)(2)(c), (d) and (e) -- are traditionally defined as exceptions to
the hearsay rule, rule 801 defines such admission by a party-opponent as
statements which are not hearsay. Consequently, rule 806 by referring
exclusively to the admission of hearsay statements, does not appear to
allow the credibility of the declarant to be attacked when the declarant
is a coconspirator, agent or authorized spokesman. The committee is of
the view that such statements should open the declarant to attacks on
his credibility. Indeed, the reason such statements are excluded from
the operation of rule 806 is likely attributable to the drafting
technique used to codify the hearsay rule, viz some statements, instead
of being referred to as exceptions to the hearsay rule, are defined as
statements which are not hearsay. The phrase ''or a statement defined
in rule 801(d)(2)(c), (d) and (e)'' is added to the rule in order to
subject the declarant of such statements, like the declarant of hearsay
statements, to attacks on his credibility. (The committee considered it
unnecessary to include statements contained in rule 801(d)(2)(A) and (B)
-- the statement by the party-opponent himself or the statement of which
he has manifested his adoption -- because the credibility of the
party-opponent is always subject to an attack on his credibility).
The Senate amendment permits an attack upon the credibility of the
declarant of a statement if the statement is one by a person authorized
by a party-opponent to make a statement concerning the subject, one by
an agent of a party-opponent, or one by a coconspirator of the
party-opponent, as these statements are defined in Rules 801(d)(2)(C),
(D) and (E). The House bill has no such provision.
The Conference adopts the Senate amendment. The Senate amendment
conforms the rule to present practice.
The amendments are technical. No substantive change is intended.
28 USC ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 901. Requirement of Authentication or Identification
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) General provision. -- The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.
(b) Illustrations. -- By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. -- Testimony that a matter
is what it is claimed to be.
(2) Nonexpert opinion on handwriting. -- Nonexpert opinion as to the
genuineness of handwriting, based upon familiarity not acquired for
purposes of the litigation.
(3) Comparison by trier or expert witness. -- Comparison by the trier
of fact or by expert witnesses with specimens which have been
authenticated.
(4) Distinctive characteristics and the like. -- Appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
(5) Voice identification. -- Identification of a voice, whether heard
firsthand or through mechanical or electronic transmission or recording,
by opinion based upon hearing the voice at any time under circumstances
connecting it with the alleged speaker.
(6) Telephone conversations. -- Telephone conversations, by evidence
that a call was made to the number assigned at the time by the telephone
company to a particular person or business, if (A) in the case of a
person, circumstances, including self-identification, show the person
answering to be the one called, or (B) in the case of a business, the
call was made to a place of business and the conversation related to
business reasonably transacted over the telephone.
(7) Public records or reports. -- Evidence that a writing authorized
by law to be recorded or filed and in fact recorded or filed in a public
office, or a purported public record, report, statement, or data
compilation, in any form, is from the public office where items of this
nature are kept.
(8) Ancient documents or data compilation. -- Evidence that a
document or data compilation, in any form, (A) is in such condition as
to create no suspicion concerning its authenticity, (B) was in a place
where it, if authentic, would likely be, and (C) has been in existence
20 years or more at the time it is offered.
(9) Process or system. -- Evidence describing a process or system
used to produce a result and showing that the process or system produces
an accurate result.
(10) Methods provided by statute or rule. -- Any method of
authentication or identification provided by Act of Congress or by other
rules prescribed by the Supreme Court pursuant to statutory authority.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1943.)
Subdivision (a). Authentication and identification represent a
special aspect of relevancy. Michael and Adler, Real Proof, 5
Vand.L.Rev. 344, 362 (1952); McCormick 179, 185; Morgan, Basic
Problems of Evidence 378. (1962). Thus a telephone conversation may be
irrelevant because on an unrelated topic or because the speaker is not
identified. The latter aspect is the one here involved. Wigmore
describes the need for authentication as ''an inherent logical
necessity.'' 7 Wigmore 2129, p. 564.
This requirement of showing authenticity or identity fails in the
category of relevancy dependent upon fulfillment of a condition of fact
and is governed by the procedure set forth in Rule 104(b).
The common law approach to authentication of documents has been
criticized as an ''attitude of agnosticism,'' McCormick, Cases on
Evidence 388, n. 4 (3rd ed. 1956), as one which ''departs sharply from
men's customs in ordinary affairs,'' and as presenting only a slight
obstacle to the introduction of forgeries in comparison to the time and
expense devoted to proving genuine writings which correctly show their
origin on their face, McCormick 185, pp. 395, 396. Today, such
available procedures as requests to admit and pretrial conference afford
the means of eliminating much of the need for authentication or
identification. Also, significant inroads upon the traditional
insistence on authentication and identification have been made by
accepting as at least prima facie genuine items of the kind treated in
Rule 902, infra. However, the need for suitable methods of proof still
remains, since criminal cases pose their own obstacles to the use of
preliminary procedures, unforeseen contingencies may arise, and cases of
genuine controversy will still occur.
Subdivision (b). The treatment of authentication and identification
draws largely upon the experience embodied in the common law and in
statutes to furnish illustrative applications of the general principle
set forth in subdivision (a). The examples are not intended as an
exclusive enumeration of allowable methods but are meant to guide and
suggest, leaving room for growth and development in this area of the
law.
The examples relate for the most part to documents, with some
attention given to voice communications and computer print-outs. As
Wigmore noted, no special rules have been developed for authenticating
chattels. Wigmore, Code of Evidence 2086 (3rd ed. 1942).
It should be observed that compliance with requirements of
authentication or identification by no means assures admission of an
item into evidence, as other bars, hearsay for example, may remain.
Example (1). Example (1) contemplates a broad spectrum ranging from
testimony of a witness who was present at the signing of a document to
testimony establishing narcotics as taken from an accused and accounting
for custody through the period until trial, including laboratory
analysis. See California Evidence Code 1413, eyewitness to signing.
Example (2). Example (2) states conventional doctrine as to lay
identification of handwriting, which recognizes that a sufficient
familiarity with the handwriting of another person may be acquired by
seeing him write, by exchanging correspondence, or by other means, to
afford a basis for identifying it on subsequent occasions. McCormick
189. See also California Evidence Code 1416. Testimony based upon
familiarity acquired for purposes of the litigation is reserved to the
expert under the example which follows.
Example (3). The history of common law restrictions upon the
technique of proving or disproving the genuineness of a disputed
specimen of handwriting through comparison with a genuine specimen, by
either the testimony of expert witnesses or direct viewing by the triers
themselves, is detailed in 7 Wigmore 1991-1994. In breaking away, the
English Common Law Procedure Act of 1854, 17 and 18 Viet., c. 125, 27,
cautiously allowed expert or trier to use exemplars ''proved to the
satisfaction of the judge to be genuine'' for purposes of comparison.
The language found its way into numerous statutes in this country, e.g.,
California Evidence Code 1417, 1418. While explainable as a measure
of prudence in the process of breaking with precedent in the handwriting
situation, the reservation to the judge of the question of the
genuineness of exemplars and the imposition of an unusually high
standard of persuasion are at variance with the general treatment of
relevancy which depends upon fulfillment of a condition of fact. Rule
104(b). No similar attitude is found in other comparison situations,
e.g., ballistics comparison by jury, as in Evans v. Commonwealth, 230
Ky. 411, 19 S.W.2d 1091 (1929), or by experts, Annot. 26 A.L.R.2d 892,
and no reason appears for its continued existence in handwriting cases.
Consequently Example (3) sets no higher standard for handwriting
specimens and treats all comparison situations alike, to be governed by
Rule 104(b). This approach is consistent with 28 U.S.C. 1731: ''The
admitted or proved handwriting of any person shall be admissible, for
purposes of comparison, to determine genuineness of other handwriting
attributed to such person.''
Precedent supports the acceptance of visual comparison as
sufficiently satisfying preliminary authentication requirements for
admission in evidence. Brandon v. Collins, 267 F.2d 731 (2d Cir.
1959); Wausau Sulphate Fibre Co. v. Commissioner of Internal Revenue,
61 F.2d 879 (7th Cir. 1932); Desimone v. United States, 227 F.2d 864
(9th Cir. 1955).
Example (4). The characteristics of the offered item itself,
considered in the light of circumstances, afford authentication
techniques in great variety. Thus a document or telephone conversation
may be shown to have emanated from a particular person by virtue of its
disclosing knowledge of facts known peculiarly to him; Globe Automatic
Sprinkler Co. v. Braniff, 89 Okl. 105, 214 P. 127 (1923); California
Evidence Code 1421; similarly, a letter may be authenticated by
content and circumstances indicating it was in reply to a duly
authenticated one. McCormick 192; California Evidence Code 1420.
Language patterns may indicate authenticity or its opposite. Magnuson
v. State, 187 Wis. 122, 203 N.W. 749 (1925); Arens and Meadow,
Psycholinguistics and the Confession Dilemma, 56 Colum.L.Rev. 19 (1956).
Example (5). Since aural voice identification is not a subject of
expert testimony, the requisite familiarity may be acquired either
before or after the particular speaking which is the subject of the
identification, in this respect resembling visual identification of a
person rather than identification of handwriting. Cf. Example (2),
supra, People v. Nichols, 378 Ill. 487, 38 N.E.2d 766 (1942); McGuire
v. State, 200 Md. 601, 92 A.2d 582 (1952); State v. McGee, 336 Mo.
1082, 83 S.W.2d 98 (1935).
Example (6). The cases are in agreement that a mere assertion of his
identity by a person talking on the telephone is not sufficient evidence
of the authenticity of the conversation and that additional evidence of
his identity is required. The additional evidence need not fall in any
set pattern. Thus the content of his statements or the reply technique,
under Example (4), supra, or voice identification under Example (5), may
furnish the necessary foundation. Outgoing calls made by the witness
involve additional factors bearing upon authenticity. The calling of a
number assigned by the telephone company reasonably supports the
assumption that the listing is correct and that the number is the one
reached. If the number is that of a place of business, the mass of
authority allows an ensuing conversation if it relates to business
reasonably transacted over the telephone, on the theory that the
maintenance of the telephone connection is an invitation to do business
without further identification. Matton v. Hoover Co., 350 Mo. 506,
166 S.W.2d 557 (1942); City of Pawhuska v. Crutchfield, 147 Okl. 4.
293 P. 1095 (1930); Zurich General Acc. & Liability Ins. Co. v.
Baum, 159 Va. 404, 165 S.E. 518 (1932). Otherwise, some additional
circumstance of identification of the speaker is required. The
authorities divide on the question whether the self-identifying
statement of the person answering suffices. Example (6) answers in the
affirmative on the assumption that usual conduct respecting telephone
calls furnish adequate assurances of regularity, bearing in mind that
the entire matter is open to exploration before the trier of fact. In
general, see McCormick 193; 7 Wigmore 2155; Annot., 71 A.L.R. 5, 105
id. 326.
Example (7). Public records are regularly authenticated by proof of
custody, without more. McCormick 191; 7 Wigmore 2158, 2159. The
example extends the principle to include data stored in computers and
similar methods, of which increasing use in the public records area may
be expected. See California Evidence Code 1532, 1600.
Example (8). The familiar ancient document rule of the common law is
extended to include data stored electronically or by other similar
means. Since the importance of appearance diminishes in this situation,
the importance of custody or place where found increases
correspondingly. This expansion is necessary in view of the widespread
use of methods of storing data in forms other than conventional written
records.
Any time period selected is bound to be arbitrary. The common law
period of 30 years is here reduced to 20 years, with some shift of
emphasis from the probable unavailability of witnesses to the
unlikeliness of a still viable fraud after the lapse of time. The
shorter period is specified in the English Evidence Act of 1938, 1 & 2
Geo. 6, c. 28, and in Oregon R.S. 1963, 41.360(34). See also the
numerous statutes prescribing periods of less than 30 years in the case
of recorded documents. 7 Wigmore 2143.
The application of Example (8) is not subject to any limitation to
title documents or to any requirement that possession, in the case of a
title document, has been consistent with the document. See McCormick
190.
Example (9). Example (9) is designed for situations in which the
accuracy of a result is dependent upon a process or system which
produces it. X-rays afford a familiar instance. Among more recent
developments is the computer, as to which see Transport Indemnity Co.
v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Veres, 7
Ariz.App. 117, 436 P.2d 629 (1968); Merrick v. United States Rubber
Co., 7 Ariz.App. 433, 440 P.2d 314 (1968); Freed, Computer Print-Outs
as Evidence, 16 Am.Jur. Proof of Facts 273; Symposium, Law and
Computers in the Mid-Sixties, ALI-ABA (1966); 37 Albany L.Rev. 61
(1967). Example (9) does not, of course, foreclose taking judicial
notice of the accuracy of the process or system.
Example (10). The example makes clear that methods of authentication
provided by Act of Congress and by the Rules of Civil and Criminal
Procedure or by Bankruptcy Rules are not intended to be superseded.
Illustrative are the provisions for authentication of official records
in Civil Procedure Rule 44 and Criminal Procedure Rule 27, for
authentication of records of proceedings by court reporters in 28 U.S.C.
753(b) and Civil Procedure Rule 80(c), and for authentication of
depositions in Civil Procedure Rule 30(f).
28 USC Rule 902. Self-authentication
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(1) Domestic public documents under seal. -- A document bearing a
seal purporting to be that of the United States, or of any State,
district, Commonwealth, territory, or insular possession thereof, or the
Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of
a political subdivision, department, officer, or agency thereof, and a
signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. -- A document
purporting to bear the signature in the official capacity of an officer
or employee of any entity included in paragraph (1) hereof, having no
seal, if a public officer having a seal and having official duties in
the district or political subdivision of the officer or employee
certifies under seal that the signer has the official capacity and that
the signature is genuine.
(3) Foreign public documents. -- A document purporting to be executed
or attested in an official capacity by a person authorized by the laws
of a foreign country to make the execution or attestation, and
accompanied by a final certification as to the genuineness of the
signature and official position (A) of the executing or attesting
person, or (B) of any foreign official whose certificate of genuineness
of signature and official position relates to the execution or
attestation or is in a chain of certificates of genuineness of signature
and official position relating to the execution or attestation. A final
certification may be made by a secretary of an embassy or legation,
consul general, consul, vice consul, or consular agent of the United
States, or a diplomatic or consular official of the foreign country
assigned or accredited to the United States. If reasonable opportunity
has been given to all parties to investigate the authenticity and
accuracy of official documents, the court may, for good cause shown,
order that they be treated as presumptively authentic without final
certification or permit them to be evidenced by an attested summary with
or without final certification.
(4) Certified copies of public records. -- A copy of an official
record or report or entry therein, or of a document authorized by law to
be recorded or filed and actually recorded or filed in a public office,
including data compilations in any form, certified as correct by the
custodian or other person authorized to make the certification, by
certificate complying with paragraph (1), (2), or (3) of this rule or
complying with any Act of Congress or rule prescribed by the Supreme
Court pursuant to statutory authority.
(5) Official publications. -- Books, pamphlets, or other publications
purporting to be issued by public authority.
(6) Newspapers and periodicals. -- Printed materials purporting to be
newspapers or periodicals.
(7) Trade inscriptions and the like. -- Inscriptions, signs, tags, or
labels purporting to have been affixed in the course of business and
indicating ownership, control, or origin.
(8) Acknowledged documents. -- Documents accompanied by a certificate
of acknowledgment executed in the manner provided by law by a notary
public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. -- Commercial paper,
signatures thereon, and documents relating thereto to the extent
provided by general commercial law.
(10) Presumptions under Acts of Congress. -- Any signature, document,
or other matter declared by Act of Congress to be presumptively or prima
facie genuine or authentic.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1944; Mar. 2, 1987, eff.
Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)
Case law and statutes have, over the years, developed a substantial
body of instances in which authenticity is taken as sufficiently
established for purposes of admissibility without extrinsic evidence to
that effect, sometimes for reasons of policy but perhaps more often
because practical considerations reduce the possibility of
unauthenticity to a very small dimension. The present rule collects and
incorporates these situations, in some instances expanding them to
occupy a larger area which their underlying considerations justify. In
no instance is the opposite party foreclosed from disputing
authenticity.
Paragraph (1). The acceptance of documents bearing a public seal and
signature, most often encountered in practice in the form of
acknowledgments or certificates authenticating copies of public records,
is actually of broad application. Whether theoretically based in whole
or in part upon judicial notice, the practical underlying considerations
are that forgery is a crime and detection is fairly easy and certain. 7
Wigmore 2161, p. 638; California Evidence Code 1452. More than 50
provisions for judicial notice of official seals are contained in the
United States Code.
Paragraph (2). While statutes are found which raise a presumption of
genuineness of purported official signatures in the absence of an
official seal, 7 Wigmore 2167; California Evidence Code 1453, the
greater ease of effecting a forgery under these circumstances is
apparent. Hence this paragraph of the rule calls for authentication by
an officer who has a seal. Notarial acts by members of the armed forces
and other special situations are covered in paragraph (10).
Paragraph (3) provides a method for extending the presumption of
authenticity to foreign official documents by a procedure of
certification. It is derived from Rule 44(a)(2) of the Rules of Civil
Procedure but is broader in applying to public documents rather than
being limited to public records.
Paragraph (4). The common law and innumerable statutes have
recognized the procedure of authenticating copies of public records by
certificate. The certificate qualifies as a public document, receivable
as authentic when in conformity with paragraph (1), (2), or (3). Rule
44(a) of the Rules of Civil Procedure and Rule 27 of the Rules of
Criminal Procedure have provided authentication procedures of this
nature for both domestic and foreign public records. It will be
observed that the certification procedure here provided extends only to
public records, reports, and recorded documents, all including data
compilations, and does not apply to public documents generally. Hence
documents provable when presented in original form under paragraphs (1),
(2), or (3) may not be provable by certified copy under paragraph (4).
Paragraph (5). Dispensing with preliminary proof of the genuineness
of purportedly official publications, most commonly encountered in
connection with statutes, court reports, rules, and regulations, has
been greatly enlarged by statutes and decisions. 5 Wigmore 1684.
Paragraph (5), it will be noted, does not confer admissibility upon all
official publications; it merely provides a means whereby their
authenticity may be taken as established for purposes of admissibility.
Rule 44(a) of the Rules of Civil Procedure has been to the same effect.
Paragraph (6). The likelihood of forgery of newspapers or
periodicals is slight indeed. Hence no danger is apparent in receiving
them. Establishing the authenticity of the publication may, of course,
leave still open questions of authority and responsibility for items
therein contained. See 7 Wigmore 2150. Cf. 39 U.S.C. 4005(b),
public advertisement prima facie evidence of agency of person named, in
postal fraud order proceeding; Canadian Uniform Evidence Act, Draft of
1936, printed copy of newspaper prima facie evidence that notices or
advertisements were authorized.
Paragraph (7). Several factors justify dispensing with preliminary
proof of genuineness of commercial and mercantile labels and the like.
The risk of forgery is minimal. Trademark infringement involves serious
penalties. Great efforts are devoted to inducing the public to buy in
reliance on brand names, and substantial protection is given them.
Hence the fairness of this treatment finds recognition in the cases.
Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762 (1932), Baby
Ruth candy bar; Doyle v. Continental Baking Co., 262 Mass. 516, 160
N.E. 325 (1928), loaf of bread; Weiner v. Mager & Throne, Inc., 167
Misc. 338, 3 N.Y.S.2d 918 (1938), same. And see W.Va.Code 1966,
47-3-5, trade-mark on bottle prima facie evidence of ownership. Contra,
Keegan v. Green Giant Co., 150 Me. 283, 110 A.2d 599 (1954); Murphy
v. Campbell Soup Co., 62 F.2d 564 (1st Cir. 1933). Cattle brands have
received similar acceptance in the western states. Rev.Code Mont.1947,
46-606; State v. Wolfley, 75 Kan. 406, 89 P. 1046 (1907); Annot.,
11 L.R.A. (N.S.) 87. Inscriptions on trains and vehicles are held to be
prima facie evidence of ownership or control. Pittsburgh, Ft. W. & C.
Ry. v. Callaghan, 157 Ill. 406, 41 N.E. 909 (1895); 9 Wigmore 2510a.
See also the provision of 19 U.S.C. 1615(2) that marks, labels, brands,
or stamps indicating foreign origin are prima facie evidence of foreign
origin of merchandise.
Paragraph (8). In virtually every state, acknowledged title
documents are receivable in evidence without further proof. Statutes
are collected in 5 Wigmore 1676. If this authentication suffices for
documents of the importance of those affecting titles, logic scarcely
permits denying this method when other kinds of documents are involved.
Instances of broadly inclusive statutes are California Evidence Code
1451 and N.Y.CPLR 4538, McKinney's Consol. Laws 1963.
Paragraph (9). Issues of the authenticity of commercial paper in
federal courts will usually arise in diversity cases, will involve an
element of a cause of action or defense, and with respect to
presumptions and burden of proof will be controlled by Erie Railroad Co.
v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Rule
302, supra. There may, however, be questions of authenticity involving
lesser segments of a case or the case may be one governed by federal
common law. Clearfield Trust Co. v. United States, 318 U.S. 363, 63
S.Ct. 573, 87 L.Ed. 838 (1943). Cf. United States v. Yazell, 382 U.S.
341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). In these situations, resort
to the useful authentication provisions of the Uniform Commercial Code
is provided for. While the phrasing is in terms of ''general commercial
law,'' in order to avoid the potential complication inherent in
borrowing local statutes, today one would have difficulty in determining
the general commercial law without referring to the Code. See Williams
v. Walker-Thomas-Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445
(1965). Pertinent Code provisions are sections 1-202, 3-307, and 3-510,
dealing with third-party documents, signatures on negotiable
instruments, protests, and statements of dishonor.
Paragraph (10). The paragraph continues in effect dispensations with
preliminary proof of genuineness provided in various Acts of Congress.
See, for example, 10 U.S.C. 936, signature, without seal, together with
title, prima facie evidence of authenticity of acts of certain military
personnel who are given notarial power; 15 U.S.C. 77f(a), signature
on SEC registration presumed genuine; 26 U.S.C. 6064, signature to
tax return prima facie genuine.
Rule 902(8) as submitted by the Court referred to certificates of
acknowledgment ''under the hand and seal of'' a notary public or other
officer authorized by law to take acknowledgments. The Committee
amended the Rule to eliminate the requirement, believed to be
inconsistent with the law in some States, that a notary public must
affix a seal to a document acknowledged before him. As amended the Rule
merely requires that the document be executed in the manner prescribed
by State law.
The Committee approved Rule 902(9) as submitted by the Court. With
respect to the meaning of the phrase ''general commercial law'', the
Committee intends that the Uniform Commercial Code, which has been
adopted in virtually every State, will be followed generally, but that
federal commercial law will apply where federal commercial paper is
involved. See Clearfield Trust Co. v. United States, 318 U.S. 363
(1943). Further, in those instances in which the issues are governed by
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), State law will apply
irrespective of whether it is the Uniform Commercial Code.
The amendments are technical. No substantive change is intended.
These two sentences were inadvertently eliminated from the 1987
amendments. The amendment is technical. No substantive change is
intended.
28 USC Rule 903. Subscribing Witness' Testimony Unnecessary
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The testimony of a subscribing witness is not necessary to
authenticate a writing unless required by the laws of the jurisdiction
whose laws govern the validity of the writing.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1945.)
The common law required that attesting witnesses be produced or
accounted for. Today the requirement has generally been abolished
except with respect to documents which must be attested to be valid,
e.g. wills in some states. McCormick 188. Uniform Rule 71;
California Evidence Code 1411; Kansas Code of Civil Procedure 60-468;
New Jersey Evidence Rule 71; New York CPLR Rule 4537.
28 USC ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 1001. Definitions
TITLE 28, APPENDIX -- RULES OF EVIDENCE
For purposes of this article the following definitions are
applicable:
(1) Writings and recordings. -- ''Writings'' and ''recordings''
consist of letters, words, or numbers, or their equivalent, set down by
handwriting, typewriting, printing, photostating, photographing,
magnetic impulse, mechanical or electronic recording, or other form of
data compilation.
(2) Photographs. -- ''Photographs'' include still photographs, X-ray
films, video tapes, and motion pictures.
(3) Original. -- An ''original'' of a writing or recording is the
writing or recording itself or any counterpart intended to have the same
effect by a person executing or issuing it. An ''original'' of a
photograph includes the negative or any print therefrom. If data are
stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an
''original''.
(4) Duplicate. -- A ''duplicate'' is a counterpart produced by the
same impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1945.)
In an earlier day, when discovery and other related procedures were
strictly limited, the misleading named ''best evidence rule'' afforded
substantial guarantees against inaccuracies and fraud by its insistence
upon production of original documents. The great enlargement of the
scope of discovery and related procedures in recent times has measurably
reduced the need for the rule. Nevertheless important areas of
usefulness persist: discovery of documents outside the jurisdiction may
require substantial outlay of time and money; the unanticipated
document may not practically be discoverable; criminal cases have
built-in limitations on discovery. Cleary and Strong, The Best Evidence
Rule: An Evaluation in Context, 51 Iowa L.Rev. 825 (1966).
Paragraph (1). Traditionally the rule requiring the original
centered upon accumulations of data and expressions affecting legal
relations set forth in words and figures. This meant that the rule was
one essentially related to writings. Present day techniques have
expanded methods of storing data, yet the essential form which the
information ultimately assumes for usable purposes is words and figures.
Hence the considerations underlying the rule dictate its expansion to
include computers, photographic systems, and other modern developments.
Paragraph (3). In most instances, what is an original will be
self-evident and further refinement will be unnecessary. However, in
some instances particularized definition is required. A carbon copy of
a contract executed in duplicate becomes an original, as does a sales
ticket carbon copy given to a customer. While strictly speaking the
original of a photograph might be thought to be only the negative,
practicality and common usage require that any print from the negative
be regarded as an original. Similarly, practicality and usage confer
the status of original upon any computer printout. Transport Indemnity
Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965).
Paragraph (4). The definition describes ''copies'' produced by
methods possessing an accuracy which virtually eliminates the
possibility of error. Copies thus produced are given the status of
originals in large measure by Rule 1003, infra. Copies subsequently
produced manually, whether handwritten or typed, are not within the
definition. It should be noted that what is an original for some
purposes may be a duplicate for others. Thus a bank's microfilm record
of checks cleared is the original as a record. However, a print offered
as a copy of a check whose contents are in controversy is a duplicate.
This result is substantially consistent with 28 U.S.C. 1732(b). Compare
26 U.S.C. 7513(c), giving full status as originals to photographic
reproductions of tax returns and other documents, made by authority of
the Secretary of the Treasury, and 44 U.S.C. 399(a), giving original
status to photographic copies in the National Archives.
The Committee amended this Rule expressly to include ''video tapes''
in the definition of ''photographs.''
28 USC Rule 1002. Requirement of Original
TITLE 28, APPENDIX -- RULES OF EVIDENCE
To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as
otherwise provided in these rules or by Act of Congress.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1946.)
The rule is the familiar one requiring production of the original of
a document to prove its contents, expanded to include writings,
recordings, and photographs, as defined in Rule 1001(1) and (2), supra.
Application of the rule requires a resolution of the question whether
contents are sought to be proved. Thus an event may be proved by
nondocumentary evidence, even though a written record of it was made.
If, however, the event is sought to be proved by the written record, the
rule applies. For example, payment may be proved without producing the
written receipt which was given. Earnings may be proved without
producing books of account in which they are entered. McCormick 198;
4 Wigmore 1245. Nor does the rule apply to testimony that books or
records have been examined and found not to contain any reference to a
designated matter.
The assumption should not be made that the rule will come into
operation on every occasion when use is made of a photograph in
evidence. On the contrary, the rule will seldom apply to ordinary
photographs. In most instances a party wishes to introduce the item and
the question raised is the propriety of receiving it in evidence. Cases
in which an offer is made of the testimony of a witness as to what he
saw in a photograph or motion picture, without producing the same, are
most unusual. The usual course is for a witness on the stand to
identify the photograph or motion picture as a correct representation of
events which he saw or of a scene with which he is familiar. In fact he
adopts the picture as his testimony, or, in common parlance, uses the
picture to illustrate his testimony. Under these circumstances, no
effort is made to prove the contents of the picture, and the rule is
inapplicable. Paradis, The Celluloid Witness, 37 U.Colo.L. Rev. 235,
249-251 (1965).
On occasion, however, situations arise in which contents are sought
to be proved. Copyright, defamation, and invasion of privacy by
photograph or motion picture falls in this category. Similarly as to
situations in which the picture is offered as having independent
probative value, e.g. automatic photograph of bank robber. See People
v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792 (1948) photograph of
defendants engaged in indecent act; Mouser and Philbin, Photographic
Evidence -- Is There a Recognized Basis for Admissibility? 8 Hastings
L.J. 310 (1957). The most commonly encountered of this latter group is
of course, the X-ray, with substantial authority calling for production
of the original. Daniels v. Iowa City, 191 Iowa 811, 183 N.W. 415
(1921); Cellamare v. Third Acc. Transit Corp., 273 App.Div. 260, 77
N.Y.S.2d 91 (1948); Patrick & Tilman v. Matkin, 154 Okl. 232, 7 P.2d
414 (1932); Mendoza v. Rivera, 78 P.R.R. 569 (1955)
It should be noted, however, that Rule 703, supra, allows an expert
to give an opinion based on matters not in evidence, and the present
rule must be read as being limited accordingly in its application.
Hospital records which may be admitted as business records under Rule
803(6) commonly contain reports interpreting X-rays by the staff
radiologist, who qualifies as an expert, and these reports need not be
excluded from the records by the instant rule.
The reference to Acts of Congress is made in view of such statutory
provisions as 26 U.S.C. 7513, photographic reproductions of tax returns
and documents, made by authority of the Secretary of the Treasury,
treated as originals, and 44 U.S.C. 399(a), photographic copies in
National Archives treated as originals.
28 USC Rule 1003. Admissibility of Duplicates
TITLE 28, APPENDIX -- RULES OF EVIDENCE
A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original
or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1946.)
When the only concern is with getting the words or other contents
before the court with accuracy and precision, then a counterpart serves
equally as well as the original, if the counterpart is the product of a
method which insures accuracy and genuineness. By definition in Rule
1001(4), supra, a ''duplicate'' possesses this character.
Therefore, if no genuine issue exists as to authenticity and no other
reason exists for requiring the original, a duplicate is admissible
under the rule. This position finds support in the decisions, Myrick v.
United States, 332 F.2d 279 (5th Cir. 1964), no error in admitting
photostatic copies of checks instead of original microfilm in absence of
suggestion to trial judge that photostats were incorrect; Johns v.
United States, 323 F.2d 421 (5th Cir. 1963), not error to admit
concededly accurate tape recording made from original wire recording;
Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963), not error to admit
copy of agreement when opponent had original and did not on appeal claim
any discrepancy. Other reasons for requiring the original may be
present when only a part of the original is reproduced and the remainder
is needed for cross-examination or may disclose matters qualifying the
part offered or otherwise useful to the opposing party. United States
v. Alexander, 326 F.2d 736 (4th Cir. 1964). And see Toho Bussan Kaisha,
Ltd. v. American President Lines, Ltd., 265 F.2d 418, 76 A.L.R.2d 1344
(2d Cir. 1959).
The Committee approved this Rule in the form submitted by the Court,
with the expectation that the courts would be liberal in deciding that a
''genuine question is raised as to the authenticity of the original.''
28 USC Rule 1004. Admissibility of Other Evidence of Contents
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The original is not required, and other evidence of the contents of a
writing, recording, or photograph is admissible if --
(1) Originals lost or destroyed. -- All originals are lost or have
been destroyed, unless the proponent lost or destroyed them in bad
faith; or
(2) Original not obtainable. -- No original can be obtained by any
available judicial process or procedure; or
(3) Original in possession of opponent. -- At a time when an original
was under the control of the party against whom offered, that party was
put on notice, by the pleadings or otherwise, that the contents would be
a subject of proof at the hearing, and that party does not produce the
original at the hearing; or
(4) Collateral matters. -- The writing, recording, or photograph is
not closely related to a controlling issue.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1946; Mar. 2, 1987, eff.
Oct. 1, 1987.)
Basically the rule requiring the production of the original as proof
of contents has developed as a rule of preference: if failure to
produce the original is satisfactory explained, secondary evidence is
admissible. The instant rule specifies the circumstances under which
production of the original is excused.
The rule recognizes no ''degrees'' of secondary evidence. While
strict logic might call for extending the principle of preference beyond
simply preferring the original, the formulation of a hierarchy of
preferences and a procedure for making it effective is believed to
involve unwarranted complexities. Most, if not all, that would be
accomplished by an extended scheme of preferences will, in any event, be
achieved through the normal motivation of a party to present the most
convincing evidence possible and the arguments and procedures available
to his opponent if he does not. Compare McCormick 207.
Paragraph (1). Loss or destruction of the original, unless due to
bad faith of the proponent, is a satisfactory explanation of
nonproduction. McCormick 201.
Paragraph (2). When the original is in the possession of a third
person, inability to procure it from him by resort to process or other
judicial procedure is sufficient explanation of nonproduction. Judicial
procedure includes subpoena duces tecum as an incident to the taking of
a deposition in another jurisdiction. No further showing is required.
See McCormick 202.
Paragraph (3). A party who has an original in his control has no
need for the protection of the rule if put on notice that proof of
contents will be made. He can ward off secondary evidence by offering
the original. The notice procedure here provided is not to be confused
with orders to produce or other discovery procedures, as the purpose of
the procedure under this rule is to afford the opposite party an
opportunity to produce the original, not to compel him to do so.
McCormick 203.
Paragraph (4). While difficult to define with precision, situations
arise in which no good purpose is served by production of the original.
Examples are the newspaper in an action for the price of publishing
defendant's advertisement, Foster-Holcomb Investment Co. v. Little Rock
Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar
transfer of plaintiff claiming status as a passenger, Chicago City Ry.
Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are
collected in McCormick 200, p. 412, n. 1.
The Committee approved Rule 1004(1) in the form submitted to
Congress. However, the Committee intends that loss or destruction of an
original by another person at the instigation of the proponent should be
considered as tantamount to loss or destruction in bad faith by the
proponent himself.
The amendments are technical. No substantive change is intended.
28 USC Rule 1005. Public Records
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The contents of an official record, or of a document authorized to be
recorded or filed and actually recorded or filed, including data
compilations in any form, if otherwise admissible, may be proved by
copy, certified as correct in accordance with rule 902 or testified to
be correct by a witness who has compared it with the original. If a
copy which complies with the foregoing cannot be obtained by the
exercise of reasonable diligence, then other evidence of the contents
may be given.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1946.)
Public records call for somewhat different treatment. Removing them
from their usual place of keeping would be attended by serious
inconvenience to the public and to the custodian. As a consequence
judicial decisions and statutes commonly hold that no explanation need
be given for failure to produce the original of a public record.
McCormick 204; 4 Wigmore 1215-1228. This blanket dispensation from
producing or accounting for the original would open the door to the
introduction of every kind of secondary evidence of contents of public
records were it not for the preference given certified or compared
copies. Recognition of degrees of secondary evidence in this situation
is an appropriate quid pro quo for not applying the requirement of
producing the original.
The provisions of 28 U.S.C. 1733(b) apply only to departments or
agencies of the United States. The rule, however, applies to public
records generally and is comparable in scope in this respect to Rule
44(a) of the Rules of Civil Procedure.
28 USC Rule 1006. Summaries
TITLE 28, APPENDIX -- RULES OF EVIDENCE
The contents of voluminous writings, recordings, or photographs which
cannot conveniently be examined in court may be presented in the form of
a chart, summary, or calculation. The originals, or duplicates, shall
be made available for examination or copying, or both, by other parties
at reasonable time and place. The court may order that they be produced
in court.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1946.)
The admission of summaries of voluminous books, records, or documents
offers the only practicable means of making their contents available to
judge and jury. The rule recognizes this practice, with appropriate
safeguards. 4 Wigmore 1230.
28 USC Rule 1007. Testimony or Written Admission of Party
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Contents of writings, recordings, or photographs may be proved by the
testimony or deposition of the party against whom offered or by that
party's written admission, without accounting for the nonproduction of
the original.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1947; Mar. 2, 1987, eff.
Oct. 1, 1987.)
While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151
Eng. Rep. 579 (Exch. 1840), allows proof of contents by evidence of an
oral admission by the party against whom offered, without accounting for
nonproduction of the original, the risk of inaccuracy is substantial and
the decision is at odds with the purpose of the rule giving preference
to the original. See 4 Wigmore 1255. The instant rule follows
Professor McCormick's suggestion of limiting this use of admissions to
those made in the course of giving testimony or in writing. McCormick
208, p. 424. The limitation, of course, does not call for excluding
evidence of an oral admission when nonproduction of the original has
been accounted for and secondary evidence generally has become
admissible. Rule 1004, supra.
A similar provision is contained in New Jersey Evidence Rule
70(1)(h).
The amendment is technical. No substantive change is intended.
28 USC Rule 1008. Functions of Court and Jury
TITLE 28, APPENDIX -- RULES OF EVIDENCE
When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the
fulfillment of a condition of fact, the question whether the condition
has been fulfilled is ordinarily for the court to determine in
accordance with the provisions of rule 104. However, when an issue is
raised (a) whether the asserted writing ever existed, or (b) whether
another writing, recording, or photograph produced at the trial is the
original, or (c) whether other evidence of contents correctly reflects
the contents, the issue is for the trier of fact to determine as in the
case of other issues of fact.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1947.)
Most preliminary questions of fact in connection with applying the
rule preferring the original as evidence of contents are for the judge,
under the general principles announced in Rule 104, supra. Thus, the
question whether the loss of the originals has been established, or of
the fulfillment of other conditions specified in Rule 1004, supra, is
for the judge. However, questions may arise which go beyond the mere
administration of the rule preferring the original and into the merits
of the controversy. For example, plaintiff offers secondary evidence of
the contents of an alleged contract, after first introducing evidence of
loss of the original, and defendant counters with evidence that no such
contract was ever executed. If the judge decides that the contract was
never executed and excludes the secondary evidence, the case is at an
end without ever going to the jury on a central issue. Levin,
Authentication and Content of Writings, 10 Rutgers L.Rev. 632, 644
(1956). The latter portion of the instant rule is designed to insure
treatment of these situations as raising jury questions. The decision
is not one for uncontrolled discretion of the jury but is subject to the
control exercised generally by the judge over jury determinations. See
Rule 104(b), supra.
For similar provisions, see Uniform Rule 70(2); Kansas Code of Civil
Procedure 60-467(b); New Jersey Evidence Rule 70(2), (3).
28 USC ARTICLE XI. MISCELLANEOUS RULES
TITLE 28, APPENDIX -- RULES OF EVIDENCE
28 USC Rule 1101. Applicability of Rules
TITLE 28, APPENDIX -- RULES OF EVIDENCE
(a) Courts and magistrates. -- These rules apply to the United States
district courts, the District Court of Guam, the District Court of the
Virgin Islands, the District Court for the Northern Mariana Islands, the
United States courts of appeals, the United States Claims Court, and to
United States bankruptcy judges and United States magistrates, in the
actions, cases, and proceedings and to the extent hereinafter set forth.
The terms ''judge'' and ''court'' in these rules include United States
bankruptcy judges and United States magistrates.
(b) Proceedings generally. -- These rules apply generally to civil
actions and proceedings, including admiralty and maritime cases, to
criminal cases and proceedings, to contempt proceedings except those in
which the court may act summarily, and to proceedings and cases under
title 11, United States Code.
(c) Rule of privilege. -- The rule with respect to privileges applies
at all stages of all actions, cases, and proceedings.
(d) Rules inapplicable. -- The rules (other than with respect to
privileges) do not apply in the following situations:
(1) Preliminary questions of fact. -- The determination of questions
of fact preliminary to admissibility of evidence when the issue is to be
determined by the court under rule 104.
(2) Grand jury. -- Proceedings before grand juries.
(3) Miscellaneous proceedings. -- Proceedings for extradition or
rendition; preliminary examinations in criminal cases; sentencing, or
granting or revoking probation; issuance of warrants for arrest,
criminal summonses, and search warrants; and proceedings with respect
to release on bail or otherwise.
(e) Rules applicable in part. -- In the following proceedings these
rules apply to the extent that matters of evidence are not provided for
in the statutes which govern procedure therein or in other rules
prescribed by the Supreme Court pursuant to statutory authority: the
trial of minor and petty offenses by United States magistrates; review
of agency actions when the facts are subject to trial de novo under
section 706(2)(F) of title 5, United States Code; review of orders of
the Secretary of Agriculture under section 2 of the Act entitled ''An
Act to authorize association of producers of agricultural products''
approved February 18, 1922 (7 U.S.C. 292), and under sections 6 and 7(c)
of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499f,
499g(c)); naturalization and revocation of naturalization under
sections 310-318 of the Immigration and Nationality Act (8 U.S.C.
1421-1429); prize proceedings in admiralty under sections 7651-7681 of
title 10, United States Code; review of orders of the Secretary of the
Interior under section 2 of the Act entitled ''An Act authorizing
associations of producers of aquatic products'' approved June 25, 1934
(15 U.S.C. 522); review of orders of petroleum control boards under
section 5 of the Act entitled ''An Act to regulate interstate and
foreign commerce in petroleum and its products by prohibiting the
shipment in such commerce of petroleum and its products produced in
violation of State law, and for other purposes'', approved February 22,
1935 (15 U.S.C. 715d); actions for fines, penalties, or forfeitures
under part V of title IV of the Tariff Act of 1930 (19 U.S.C.
1581-1624), or under the Anti-Smuggling Act (19 U.S.C. 1701-1711);
criminal libel for condemnation, exclusion of imports, or other
proceedings under the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
301-392); disputes between seamen under sections 4079, 4080, and 4081
of the Revised Statutes (22 U.S.C. 256-258); habeas corpus under
sections 2241-2254 of title 28, United States Code; motions to vacate,
set aside or correct sentence under section 2255 of title 28, United
States Code; actions for penalties for refusal to transport destitute
seamen under section 4578 of the Revised Statutes (46 U.S.C. 679); /1/
actions against the United States under the Act entitled ''An Act
authorizing suits against the United States in admiralty for damage
caused by and salvage service rendered to public vessels belonging to
the United States, and for other purposes'', approved March 3, 1925 (46
U.S.C. 781-790), as implemented by section 7730 of title 10, United
States Code.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1947; Pub. L. 94-149,
1(14), Dec. 12, 1975, 89 Stat. 806; Pub. L. 95-598, title II, 251,
252, Nov. 6, 1978, 92 Stat. 2673; Pub. L. 97-164, title I, 142, Apr.
2, 1982, 96 Stat. 45; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988,
eff. Nov. 1, 1988; Pub. L. 100-690, title VII, 7075(c), Nov. 18,
1988, 102 Stat. 4405.)
Subdivision (a). The various enabling acts contain differences in
phraseology in their descriptions of the courts over which the Supreme
Court's power to make rules of practice and procedure extends. The act
concerning civil actions, as amended in 1966, refers to ''the district
courts * * * of the United States in civil actions, including admiralty
and maritime cases. * * *'' 28 U.S.C. 2072, Pub. L. 89-773, 1, 80
Stat. 1323. The bankruptcy authorization is for rules of practice and
procedure ''under the Bankruptcy Act.'' 28 U.S.C. 2075, Pub. L.
88-623, 1, 78 Stat. 1001. The Bankruptcy Act in turn creates
bankruptcy courts of ''the United States district courts and the
district courts of the Territories and possessions to which this title
is or may hereafter be applicable.'' 11 U.S.C. 1(10), 11(a). The
provision as to criminal rules up to and including verdicts applies to
''criminal cases and proceedings to punish for criminal contempt of
court in the United States district courts, in the district courts for
the districts of the Canal Zone and Virgin Islands, in the Supreme Court
of Puerto Rico, and in proceedings before United States magistrates.''
18 U.S.C. 3771.
These various provisions do not in terms describe the same courts.
In congressional usage the phrase ''district courts of the United
States,'' without further qualification, traditionally has included the
district courts established by Congress in the states under Article III
of the Constitution, which are ''constitutional'' courts, and has not
included the territorial courts created under Article IV, Section 3,
Clause 2, which are ''legislative'' courts. Hornbuckle v. Toombs, 85
U.S. 648, 21 L.Ed. 966 (1873). However, any doubt as to the inclusion
of the District Court for the District of Columbia in the phrase is laid
at rest by the provisions of the Judicial Code constituting the judicial
districts, 28 U.S.C. 81 et seq. creating district courts therein, Id.
132, and specifically providing that the term ''district court of the
United States'' means the courts so constituted. Id. 451. The District
of Columbia is included. Id. 88. Moreover, when these provisions were
enacted, reference to the District of Columbia was deleted from the
original civil rules enabling act. 28 U.S.C. 2072. Likewise Puerto
Rico is made a district, with a district court, and included in the
term. Id. 119. The question is simply one of the extent of the
authority conferred by Congress. With respect to civil rules it seems
clearly to include the district courts in the states, the District Court
for the District of Columbia, and the District Court for the District of
Puerto Rico.
The bankruptcy coverage is broader. The bankruptcy courts include
''the United States district courts,'' which includes those enumerated
above. Bankruptcy courts also include ''the district courts of the
Territories and possessions to which this title is or may hereafter be
applicable.'' 11 U.S.C. 1(10), 11(a). These courts include the
district courts of Guam and the Virgin Islands. 48 U.S.C. 1424(b),
1615. Professor Moore points out that whether the District Court for
the District of the Canal Zone is a court of bankruptcy ''is not free
from doubt in view of the fact that no other statute expressly or
inferentially provides for the applicability of the Bankruptcy Act in
the Zone.'' He further observes that while there seems to be little
doubt that the Zone is a territory or possession within the meaning of
the Bankruptcy Act, 11 U.S.C. 1(10), it must be noted that the appendix
to the Canal Zone Code of 1934 did not list the Act among the laws of
the United States applicable to the Zone. 1 Moore's Collier on
Bankruptcy 1.10, pp. 67, 72, n. 25 (14th ed. 1967). The Code of 1962
confers on the district court jurisdiction of:
''(4) actions and proceedings involving laws of the United States
applicable to the Canal Zone; and
''(5) other matters and proceedings wherein jurisdiction is conferred
by this Code or any other law.'' Canal Zone Code, 1962, Title 3, 141.
Admiralty jurisdiction is expressly conferred. Id. 142. General
powers are conferred on the district court, ''if the course of
proceeding is not specifically prescribed by this Code, by the statute,
or by applicable rule of the Supreme Court of the United States * * *''
Id. 279. Neither these provisions nor 1(10) of the Bankruptcy Act
(''district courts of the Territories and possessions to which this
title is or may hereafter be applicable'') furnishes a satisfactory
answer as to the status of the District Court for the District of the
Canal Zone as a court of bankruptcy. However, the fact is that this
court exercises no bankruptcy jurisdiction in practice.
The criminal rules enabling act specifies United States district
courts, district courts for the districts of the Canal Zone and the
Virgin Islands, the Supreme Court of the Commonwealth of Puerto Rico,
and proceedings before United States commissioners. Aside from the
addition of commissioners, now magistrates, this scheme differs from the
bankruptcy pattern in that it makes no mention of the District Court of
Guam but by specific mention removes the Canal Zone from the doubtful
list.
The further difference in including the Supreme Court of the
Commonwealth of Puerto Rico seems not to be significant for present
purposes, since the Supreme Court of the Commonwealth of Puerto Rico is
an appellate court. The Rules of Criminal Procedure have not been made
applicable to it, as being unneeded and inappropriate, Rule 54(a) of the
Federal Rules of Criminal Procedure, and the same approach is indicated
with respect to rules of evidence.
If one were to stop at this point and frame a rule governing the
applicability of the proposed rules of evidence in terms of the
authority conferred by the three enabling acts, an irregular pattern
would emerge as follows:
Civil actions, including admiralty and maritime cases -- district
courts in the states, District of Columbia, and Puerto Rico.
Bankruptcy -- same as civil actions, plus Guam and Virgin Islands.
Criminal cases -- same as civil actions, plus Canal Zone and Virgin
Islands (but not Guam).
This irregular pattern need not, however, be accepted. Originally
the Advisory Committee on the Rules of Civil Procedure took the position
that, although the phrase ''district courts of the United States'' did
not include territorial courts, provisions in the organic laws of Puerto
Rico and Hawaii would make the rules applicable to the district courts
thereof, though this would not be so as to Alaska, the Virgin Islands,
or the Canal Zone, whose organic acts contained no corresponding
provisions. At the suggestion of the Court, however, the Advisory
Committee struck from its notes a statement to the above effect. 2
Moore's Federal Practice 1.07 (2nd ed. 1967); 1 Barron and Holtzoff,
Federal Practice and Procedure 121 (Wright ed. 1960). Congress
thereafter by various enactments provided that the rules and future
amendments thereto should apply to the district courts of Hawaii, 53
Stat. 841 (1939), Puerto Rico, 54 Stat. 22 (1940), Alaska, 63 Stat.
445 (1949), Guam, 64 Stat. 384-390 (1950), and the Virgin Islands, 68
Stat. 497, 507 (1954). The original enabling act for rules of criminal
procedure specifically mentioned the district courts of the Canal Zone
and the Virgin Islands. The Commonwealth of Puerto Rico was blanketed
in by creating its court a ''district court of the United States'' as
previously described. Although Guam is not mentioned in either the
enabling act or in the expanded definition of ''district court of the
United States,'' the Supreme Court in 1956 amended Rule 54(a) to state
that the Rules of Criminal Procedure are applicable in Guam. The Court
took this step following the enactment of legislation by Congress in
1950 that rules theretofore or thereafter promulgated by the Court in
civil cases, admiralty, criminal cases and bankruptcy should apply to
the District Court of Guam, 48 U.S.C. 1424(b), and two Ninth Circuit
decisions upholding the applicability of the Rules of Criminal Procedure
to Guam. Pugh v. United States, 212 F.2d 761 (9th Cir. 1954);
Hatchett v. Guam, 212 F.2d 767 (9th Cir. 1954); Orfield, The Scope of
the Federal Rules of Criminal Procedure, 38 U. of Det.L.J. 173, 187
(1960).
From this history, the reasonable conclusion is that Congressional
enactment of a provision that rules and future amendments shall apply in
the courts of a territory or possession is the equivalent of mention in
an enabling act and that a rule on scope and applicability may properly
be drafted accordingly. Therefore the pattern set by Rule 54 of the
Federal Rules of Criminal Procedure is here followed.
The substitution of magistrates in lieu of commissioners is made in
pursuance of the Federal Magistrates Act, P.L. 90-578, approved October
17, 1968, 82 Stat. 1107.
Subdivision (b) is a combination of the language of the enabling
acts, supra, with respect to the kinds of proceedings in which the
making of rules is authorized. It is subject to the qualifications
expressed in the subdivisions which follow.
Subdivision (c), singling out the rules of privilege for special
treatment, is made necessary by the limited applicability of the
remaining rules.
Subdivision (d). The rule is not intended as an expression as to
when due process or other constitutional provisions may require an
evidentiary hearing. Paragraph (1) restates, for convenience, the
provisions of the second sentence of Rule 104(a), supra. See Advisory
Committee's Note to that rule.
(2) While some states have statutory requirements that indictments be
based on ''legal evidence,'' and there is some case law to the effect
that the rules of evidence apply to grand jury proceedings, 1 Wigmore
4(5), the Supreme Court has not accepted this view. In Costello v.
United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1965), the
Court refused to allow an indictment to be attacked, for either
constitutional or policy reasons, on the ground that only hearsay
evidence was presented.
''It would run counter to the whole history of the grand jury
institution, in which laymen conduct their inquiries unfettered by
technical rules. Neither justice nor the concept of a fair trial
requires such a change.'' Id. at 364. The rule as drafted does not deal
with the evidence required to support an indictment.
(3) The rule exempts preliminary examinations in criminal cases.
Authority as to the applicability of the rules of evidence to
preliminary examinations has been meagre and conflicting. Goldstein,
The State and the Accused: Balance of Advantage in Criminal Procedure,
69 Yale L.J. 1149, 1168, n. 53 (1960); Comment, Preliminary Hearings
on Indictable Offenses in Philadelphia, 106 U. of Pa.L.Rev. 589,
592-593 (1958). Hearsay testimony is, however, customarily received in
such examinations. Thus in a Dyer Act case, for example, an affidavit
may properly be used in a preliminary examination to prove ownership of
the stolen vehicle, thus saving the victim of the crime the hardship of
having to travel twice to a distant district for the sole purpose of
testifying as to ownership. It is believed that the extent of the
applicability of the Rules of Evidence to preliminary examinations
should be appropriately dealt with by the Federal Rules of Criminal
Procedure which regulate those proceedings.
Extradition and rendition proceedings are governed in detail by
statute. 18 U.S.C. 3181-3195. They are essentially administrative in
character. Traditionally the rules of evidence have not applied. 1
Wigmore 4(6). Extradition proceedings are accepted from the operation
of the Rules of Criminal Procedure. Rule 54(b)(5) of Federal Rules of
Criminal Procedure.
The rules of evidence have not been regarded as applicable to
sentencing or probation proceedings, where great reliance is placed upon
the presentence investigation and report. Rule 32(c) of the Federal
Rules of Criminal Procedure requires a presentence investigation and
report in every case unless the court otherwise directs. In Williams v.
New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), in which
the judge overruled a jury recommendation of life imprisonment and
imposed a death sentence, the Court said that due process does not
require confrontation or cross-examination in sentencing or passing on
probation, and that the judge has broad discretion as to the sources and
types of information relied upon. Compare the recommendation that the
substance of all derogatory information be disclosed to the defendant,
in A.B.A. Project on Minimum Standards for Criminal Justice, Sentencing
Alternatives and Procedures 4.4, Tentative Draft (1967, Sobeloff,
Chm.). Williams was adhered to in Specht v. Patterson, 386 U.S. 605, 87
S.Ct. 1209, 18 L.Ed.2d 326 (1967), but not extended to a proceeding
under the Colorado Sex Offenders Act, which was said to be a new charge
leading in effect to punishment, more like the recidivist statutes where
opportunity must be given to be heard on the habitual criminal issue.
Warrants for arrest, criminal summonses, and search warrants are
issued upon complaint or affidavit showing probable cause. Rules 4(a)
and 41(c) of the Federal Rules of Criminal Procedure. The nature of the
proceedings makes application of the formal rules of evidence
inappropriate and impracticable.
Criminal contempts are punishable summarily if the judge certifies
that he saw or heard the contempt and that it was committed in the
presence of the court. Rule 42(a) of the Federal Rules of Criminal
Procedure. The circumstances which preclude application of the rules of
evidence in this situation are not present, however, in other cases of
criminal contempt.
Proceedings with respect to release on bail or otherwise do not call
for application of the rules of evidence. The governing statute
specifically provides:
''Information stated in, or offered in connection with, any order
entered pursuant to this section need not conform to the rules
pertaining to the admissibility of evidence in a court of law.'' 18
U.S.C.A. 3146(f). This provision is consistent with the type of inquiry
contemplated in A.B.A. Project on Minimum Standards for Criminal
Justice, Standards Relating to Pretrial Release, 4.5(b), (c), p. 16
(1968). The references to the weight of the evidence against the
accused, in Rule 46(a)(1), (c) of the Federal Rules of Criminal
Procedure and in 18 U.S.C.A. 3146(b), as a factor to be considered,
clearly do not have in view evidence introduced at a hearing.
The rule does not exempt habeas corpus proceedings. The Supreme
Court held in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed.
830 (1941), that the practice of disposing of matters of fact on
affidavit, which prevailed in some circuits, did not ''satisfy the
command of the statute that the judge shall proceed 'to determine the
facts of the case, by hearing the testimony and arguments.''' This view
accords with the emphasis in Townsend v. Sain, 372 U.S. 293, 83 S.Ct.
745, 9 L.Ed.2d 770 (1963), upon trial-type proceedings, Id. 311, 83
S.Ct. 745, with demeanor evidence as a significant factor, Id. 322, 83
S.Ct. 745, in applications by state prisoners aggrieved by
unconstitutional detentions. Hence subdivision (e) applies the rules to
habeas corpus proceedings to the extent not inconsistent with the
statute.
Subdivision (e). In a substantial number of special proceedings, ad
hoc evaluation has resulted in the promulgation of particularized
evidentiary provisions, by Act of Congress or by rule adopted by the
Supreme Court. Well adapted to the particular proceedings, though not
apt candidates for inclusion in a set of general rules, they are left
undisturbed. Otherwise, however, the rules of evidence are applicable
to the proceedings enumerated in the subdivision.
Subdivision (a) as submitted to the Congress, in stating the courts
and judges to which the Rules of Evidence apply, omitted the Court of
Claims and commissioners of that Court. At the request of the Court of
Claims, the Committee amended the Rule to include the Court and its
commissioners within the purview of the Rules.
Subdivision (b) was amended merely to substitute positive law
citations for those which were not.
Subdivision (a) is amended to delete the reference to the District
Court for the District of the Canal Zone, which no longer exists, and to
add the District Court for the Northern Mariana Islands. The United
States bankruptcy judges are added to conform the subdivision with Rule
1101(b) and Bankruptcy Rule 9017.
The amendments are technical. No substantive change is intended.
The Tariff Act of 1930, referred to in subsec. (e), is act June 17,
1930, ch. 497, 46 Stat. 590, as amended, which is classified
principally to chapter 4 ( 1202 et seq.) of Title 19, Customs Duties.
Part V of title IV of the Tariff Act of 1930 enacted part V ( 1581 et
seq.) of subtitle III of chapter 4 of Title 19. For complete
classification of this Act to the Code, see section 1654 of Title 19 and
Tables.
The Anti-Smuggling Act (19 U.S.C. 1701-1711), referred to in subsec.
(e), is act Aug. 5, 1935, ch. 438, 49 Stat. 517, as amended, which is
classified principally to chapter 5 ( 1701 et seq.) of Title 19. For
complete classification of this Act to the Code, see section 1711 of
Title 19 and Tables.
The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392),
referred to in subsec. (e), is act June 25, 1938, ch. 675, 52 Stat.
1040, as amended, which is classified generally to chapter 9 ( 301 et
seq.) of Title 21, Food and Drugs. For complete classification of this
Act to the Code, see section 301 of Title 21 and Tables.
Section 4578 of the Revised Statutes (46 U.S.C. 679), referred to in
subsec. (e), was repealed and reenacted as section 11104(b)-(d) of
Title 46, Shipping, by Pub. L. 98-89, 1, 2(a), 4(b), Aug. 26, 1983,
97 Stat. 500.
''An Act authorizing suits against the United States in admiralty for
damage caused by and salvage service rendered to public vessels
belonging to the United States, and for other purposes,'' approved Mar.
3, 1925 (46 U.S.C. 781-790), referred to in subsec. (e), is act Mar.
3, 1925, ch. 428, 43 Stat. 1112, as amended, known as the ''Public
Vessels Act'', which is classified generally to chapter 22 ( 781 et
seq.) of Title 46, Appendix, Shipping. For complete classification of
this Act to the Code, see Short Title note set out under section 781 of
Title 46, Appendix, and Tables.
Subd. (e). Pub. L. 94-149 substituted ''admiralty'' for
''admirality''.
Subd. (a). Pub. L. 95-598, 252, directed the amendment of this subd.
by adding ''the United States bankruptcy courts,'' after ''the United
States district courts,'', which amendment did not become effective
pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an
Effective Date note preceding section 101 of Title 11, Bankruptcy.
Pub. L. 95-598, 251(a), struck out '', referees in bankruptcy,''
after ''United States magistrates''.
Subd. (b). Pub. L. 95-598, 251(b), substituted ''title 11, United
States Code'' for ''the Bankruptcy Act''.
Subd. (a). Pub. L. 97-164 substituted ''United States Claims Court''
for ''Court of Claims'' and struck out ''and commissioners of the Court
of Claims'' after ''these rules include United States magistrates''.
Subd. (a). Pub. L. 100-690, 7075(c)(1), which directed amendment of
subd. (a) by striking ''Rules'' and inserting ''rules'', could not be
executed because of the intervening amendment by the Court by order
dated Apr. 25, 1988, eff. Nov. 1, 1988.
Pub. L. 100-690, 7075(c)(2), substituted ''courts of appeals'' for
''Courts of Appeals''.
References to United States Claims Court deemed to refer to United
States Court of Federal Claims, see section 902(b) of Pub. L. 102-572,
set out as a note under section 171 of this title.
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Amendment of subds. (a) and (b) of this rule by section 251 of Pub.
L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L.
95-598, set out as an Effective Dates note preceding section 101 of the
Appendix to Title 11, Bankruptcy. For Bankruptcy Jurisdiction and
procedure during transition period, see note preceding section 1471 of
this title.
Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402
of Pub. L. 97-164, set out as a note under section 171 of this title.
/1/ Repealed and reenacted as 46 U.S.C. 11104(b)-(d) by Pub. L.
98-89, 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500.
28 USC Rule 1102. Amendments
TITLE 28, APPENDIX -- RULES OF EVIDENCE
Amendments to the Federal Rules of Evidence may be made as provided
in section 2072 of title 28 of the United States Code.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1948; Apr. 30, 1991,
eff. Dec. 1, 1991.)
The amendment is technical. No substantive change is intended.
28 USC Rule 1103. Title
TITLE 28, APPENDIX -- RULES OF EVIDENCE
These rules may be known and cited as the Federal Rules of Evidence.
(Pub. L. 93-595, 1, Jan. 2, 1975, 88 Stat. 1948.)
Pub. L. 95-540, 1, Oct. 28, 1978, 92 Stat. 2046, provided: ''That
this Act (enacting rule 412 of these rules and a provision set out as a
note under rule 412 of these rules) may be cited as the 'Privacy
Protection for Rape Victims Act of 1978'.''
28 USC TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC RULES OF THE SUPREME COURT OF THE UNITED STATES
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
Rule
1. Clerk.
2. Library.
3. Term.
4. Sessions and Quorum.
5. Admission to the Bar.
6. Argument Pro Hac Vice.
7. Prohibition Against Practice.
8. Disbarment and Disciplinary Action.
9. Appearance of Counsel.
10. Considerations Governing Review on Writ of Certiorari.
11. Certiorari to a United States Court of Appeals Before Judgment.
12. Review on Certiorari; How Sought; Parties.
13. Review on Certiorari; Time for Petitioning.
14. Content of the Petition for a Writ of Certiorari.
15. Brief in Opposition; Reply Brief; Supplemental Brief.
16. Disposition of a Petition for a Writ of Certiorari.
17. Procedure in an Original Action.
18. Appeal from a United States District Court.
19. Procedure on a Certified Question.
20. Procedure on a Petition for an Extraordinary Writ.
21. Motions to the Court.
22. Applications to Individual Justices.
23. Stays.
24. Brief on the Merits; In General.
25. Brief on the Merits; Time for Filing.
26. The Joint Appendix.
27. The Calendar.
28. Oral Argument.
29. Filing and Service of Documents; Special Notifications.
30. Computation and Enlargement of Time.
31. Translations.
32. Models, Diagrams, and Exhibits.
33. Printing Requirements.
34. Form of Typewritten Papers.
35. Death, Substitution, and Revivor; Public Officers.
36. Custody of Prisoners in Habeas Corpus Proceedings.
37. Brief of an Amicus Curiae.
38. Fees.
39. Proceedings In Forma Pauperis.
40. Veterans, Seamen, and Military Cases.
41. Opinions of the Court.
42. Interest and Damages.
43. Costs.
44. Rehearing.
45. Process; Mandates.
46. Dismissing Cases.
47. Term ''State Court''.
48. Effective Date of Amendments.
This table shows the corresponding relationship between the rules
effective June 30, 1980, and the rules effective January 1, 1990.
This table shows the corresponding relationship between the rules
effective July 1, 1970, and the rules effective June 30, 1980.
This table shows corresponding relationship between the rules
effective July 1, 1925, the rules effective July 1, 1928, the rules
effective Feb. 27, 1939, the rules effective July 1, 1954, the rules
effective Oct. 2, 1967, and the rules effective July 1, 1970.
28 USC PART I. THE COURT
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 1. Clerk
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The Clerk shall maintain the Court's records and shall not permit
any of them to be removed from the Court building except as authorized
by the Court. Any pleading, paper, or brief filed with the Clerk and
made a part of the Court's records may not thereafter be withdrawn from
the official Court files. After the conclusion of the proceedings in
this Court, any original records and papers transmitted to this Court by
any other court will be returned to the court from which they were
received.
.2. The office of the Clerk will be open, except on a federal legal
holiday, from 9 a.m. to 5 p.m., Monday through Friday, unless otherwise
ordered by the Court or the Chief Justice. See 5 U.S.C. 6103 for a
list of federal legal holidays.
Appointment, removal, and compensation of Clerk of Supreme Court, see
section 671 of this title.
Court always open, see section 452 of this title.
28 USC Rule 2. Library
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The Court's library is available for use by appropriate personnel
of this Court, members of the Bar of this Court, Members of Congress and
their legal staffs, and attorneys for the United States, its departments
and agencies.
.2. The library will be open during such times as the reasonable
needs of the Bar may require. Its operation shall be governed by
regulations made by the Librarian with the approval of the Chief Justice
or the Court.
.3. Library books may not be removed from the building, except by a
Justice or a member of a Justice's legal staff.
Appointment, compensation, and duties of Supreme Court Librarian, see
section 674 of this title.
Law Library of Congress --
Purchase of books under direction of Chief Justice, see section 135
of Title 2, The Congress.
Use and regulation by Supreme Court Justices, see section 137 of
Title 2.
28 USC Rule 3. Term
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The Court will hold a continuous annual Term commencing on the
first Monday in October. See 28 U.S.C. 2. At the end of each Term, all
cases pending on the docket will be continued to the next Term.
.2. The Court at every Term will announce the date after which no
case will be called for oral argument at that Term unless otherwise
ordered.
28 USC Rule 4. Sessions and Quorum
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Open sessions of the Court will be held beginning at 10 a.m. on
the first Monday in October of each year, and thereafter as announced by
the Court. Unless otherwise ordered, the Court will sit to hear
arguments from 10 a.m. until noon and from 1 p.m. until 3 p.m.
.2. Any six Members of the Court constitute a quorum. See 28 U.S.C.
1. In the absence of a quorum on any day appointed for holding a session
of the Court, the Justices attending, or if no Justice is present, the
Clerk or a Deputy Clerk may announce that the Court will not meet until
there is a quorum.
.3. The Court in appropriate circumstances may direct the Clerk or
the Marshal to announce recesses.
Quorum of Supreme Court justices absent, see section 2109 of this
title.
28 USC PART II. ATTORNEYS AND COUNSELORS
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 5. Admission to the Bar
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. It shall be requisite for admission to the Bar of this Court that
the applicant shall have been admitted to practice in the highest court
of a State, Commonwealth, Territory or Possession, or of the District of
Columbia for the three years immediately preceding the date of
application and shall have been free from any adverse disciplinary
action whatsoever during that 3-year period, and that the applicant
appears to the Court to be of good moral and professional character.
.2. Each applicant shall file with the Clerk (1) a certificate from
the presiding judge, clerk, or other authorized official of that court
evidencing the applicant's admission to practice there and the
applicant's current good standing, and (2) a completely executed copy of
the form approved by the Court and furnished by the Clerk containing (i)
the applicant's personal statement and (ii) the statement of two
sponsors (who must be members of the Bar of this Court and who must
personally know, but not be related to, the applicant) endorsing the
correctness of the applicant's statement, stating that the applicant
possesses all the qualifications required for admission, and affirming
that the applicant is of good moral and professional character.
.3. If the documents submitted demonstrate that the applicant
possesses the necessary qualifications, has signed the oath or
affirmation, and has paid the required fee, the Clerk will notify the
applicant of acceptance by the Court as a member of the Bar and issue a
certificate of admission. An applicant who so desires may be admitted
in open court on oral motion by a member of the Bar of this Court,
provided that all other requirements for admission have been satisfied.
.4. Each applicant shall take or subscribe to the following oath or
affirmation:
I, ......................, do solemnly swear (or affirm) that as an
attorney and as a counselor of this Court, I will conduct myself
uprightly and according to law, and that I will support the Constitution
of the United States.
.5. The fee for admission to the Bar and a certificate under seal is
$100, payable to the Marshal, U.S. Supreme Court. The Marshal shall
maintain the proceeds as a separate fund to be disbursed by the Marshal
at the direction of the Chief Justice for the costs of admissions, for
the benefit of the Court and the Supreme Court Bar, and for related
purposes.
.6. The cost for a duplicate certificate of admission to the Bar
under seal is $10, payable to the Marshal, U.S. Supreme Court. The
proceeds shall be maintained by the Marshal as provided in paragraph .5
of this Rule.
28 USC Rule 6. Argument Pro Hac Vice
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. An attorney not admitted to practice in the highest court of a
State, Commonwealth, Territory or Possession, or of the District of
Columbia for the requisite three years, but who is otherwise eligible
for admission to practice in this Court under Rule 5.1, may be permitted
to argue pro hac vice.
.2. An attorney, barrister, or advocate who is qualified to practice
in the courts of a foreign state may be permitted to argue pro hac vice.
.3. Oral argument pro hac vice will be allowed only on motion of the
attorney of record for the party on whose behalf leave is requested.
The motion must briefly and distinctly state the appropriate
qualifications of the attorney who is to argue pro hac vice. It must be
filed with the Clerk, in the form prescribed by Rule 21, no later than
the date on which the respondent's or appellee's brief on the merits is
due to be filed and must be accompanied by proof of service pursuant to
Rule 29.
28 USC Rule 7. Prohibition Against Practice
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The Clerk shall not practice as an attorney or counselor while
holding office.
.2. No law clerk, secretary to a Justice, or other employee of this
Court shall practice as an attorney or counselor in any court or before
any agency of government while employed at the Court; nor shall any
person after leaving employment in this Court participate, by way of any
form of professional consultation or assistance, in any case pending
before this Court or in any case being considered for filing in this
Court, until two years have elapsed after separation; nor shall a
former employee ever participate, by way of any form of professional
consultation or assistance, in any case that was pending in this Court
during the employee's tenure.
Practice of law by justices, see section 454 of this title.
28 USC Rule 8. Disbarment and Disciplinary Action
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Whenever it is shown to the Court that a member of the Bar of
this Court has been disbarred or suspended from practice in any court of
record, or has engaged in conduct unbecoming a member of the Bar of this
Court, that member will be suspended from practice before this Court
forthwith and will be afforded the opportunity to show cause, within 40
days, why a disbarment order should not be entered. Upon response, or
upon the expiration of the 40 days if no response is made, the Court
will enter an appropriate order.
.2. The Court may, after reasonable notice and an opportunity to show
cause why disciplinary action should not be taken, and after a hearing
if material facts are in dispute, take any appropriate disciplinary
action against any attorney who practices before it for conduct
unbecoming a member of the Bar or for failure to comply with these Rules
or any Rule of the Court.
28 USC Rule 9. Appearance of Counsel
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. An attorney seeking to file a pleading, motion, or other paper in
this Court in a representative capacity must first be admitted to
practice before this Court pursuant to Rule 5. The attorney whose name,
address, and telephone number appear on the cover of a document being
filed will be deemed counsel of record, and a separate notice of
appearance need not be filed. If the name of more than one attorney is
shown on the cover of the document, the attorney who is counsel of
record must be clearly identified.
.2. An attorney representing a party who will not be filing a
document must enter a separate notice of appearance as counsel of record
indicating the name of the party represented. If an attorney is to be
substituted as counsel of record in a particular case, a separate notice
of appearance must also be entered.
28 USC PART III. JURISDICTION ON WRIT OF CERTIORARI
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 10. Considerations Governing Review on Writ of Certiorari
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A review on writ of certiorari is not a matter of right, but of
judicial discretion. A petition for a writ of certiorari will be
granted only when there are special and important reasons therefor. The
following, while neither controlling nor fully measuring the Court's
discretion, indicate the character of reasons that will be considered:
(a) When a United States court of appeals has rendered a decision in
conflict with the decision of another United States court of appeals on
the same matter; or has decided a federal question in a way in conflict
with a state court of last resort; or has so far departed from the
accepted and usual course of judicial proceedings, or sanctioned such a
departure by a lower court, as to call for an exercise of this Court's
power of supervision.
(b) When a state court of last resort has decided a federal question
in a way that conflicts with the decision of another state court of last
resort or of a United States court of appeals.
(c) When a state court or a United States court of appeals has
decided an important question of federal law which has not been, but
should be, settled by this Court, or has decided a federal question in a
way that conflicts with applicable decisions of this Court.
.2. The same general considerations outlined above will control in
respect to a petition for a writ of certiorari to review a judgment of
the United States Court of Military Appeals.
Review of cases in the courts of appeals, see section 1254 of this
title.
Review of decisions of the United States Court of Military Appeals,
see section 1259 of this title.
Review of judgments and decrees of Supreme Court of Puerto Rico, see
section 1258 of this title.
Review of orders and judgments of courts of appeals reviewing orders
of Federal agencies, see section 2350 of this title.
Review of State court decisions to be same as review of United States
court decisions, see section 2104 of this title.
28 USC Rule 11. Certiorari to a United States Court of Appeals Before
Judgment
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
A petition for a writ of certiorari to review a case pending in a
United States court of appeals, before judgment is given in that court,
will be granted only upon a showing that the case is of such imperative
public importance as to justify deviation from normal appellate practice
and to require immediate settlement in this Court. 28 U.S.C. 2101(e).
28 USC Rule 12. Review on Certiorari; How Sought; Parties
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The petitioner's counsel, who must be a member of the Bar of this
Court, shall file, with proof of service as provided by Rule 29, 40
copies of a printed petition for a writ of certiorari, which shall
comply in all respects with Rule 14, and shall pay the docket fee
prescribed by Rule 38. The case then will be placed on the docket. It
shall be the duty of counsel for the petitioner to notify all
respondents, on a form supplied by the Clerk, of the date of filing and
of the docket number of the case. The notice shall be served as
required by Rule 29.
.2. Parties interested jointly, severally, or otherwise in a judgment
may petition separately for a writ of certiorari; or any two or more
may join in a petition. A party who is not shown on the petition for a
writ of certiorari to have joined therein at the time the petition is
filed with the Clerk may not thereafter join in that petition. When two
or more cases are sought to be reviewed on a writ of certiorari to the
same court and involve identical or closely related questions, a single
petition for a writ of certiorari covering all the cases will suffice.
A petition for a writ of certiorari shall not be joined with any other
pleading.
.3. Not more than 30 days after receipt of the petition for a writ of
certiorari, counsel for a respondent wishing to file a cross-petition
that would otherwise be untimely shall file, with proof of service as
prescribed by Rule 29, 40 printed copies of a cross-petition for a writ
of certiorari, which shall comply in all respects with Rule 14, except
that materials printed in the appendix to the original petition need not
be reprinted, and shall pay the docket fee pursuant to Rule 38. The
cover of the petition shall clearly indicate that it is a
cross-petition. The cross-petition will then be placed on the docket
subject, however, to the provisions of Rule 13.5. It shall be the duty
of counsel for the cross-petitioner to notify the cross-respondent, on a
form supplied by the Clerk, of the date of docketing and of the docket
number of the cross-petition. The notice shall be served as required by
Rule 29. A cross-petition for a writ of certiorari may not be joined
with any other pleading, and the Clerk shall not accept any pleading so
joined. The time for filing a cross-petition may not be extended.
.4. All parties to the proceeding in the court whose judgment is
sought to be reviewed shall be deemed parties in this Court, unless the
petitioner notifies the Clerk of this Court in writing of the
petitioner's belief that one or more of the parties below has no
interest in the outcome of the petition. A copy of the notice shall be
served as required by Rule 29 on all parties to the proceeding below. A
party noted as no longer interested may remain a party by promptly
notifying the Clerk, with service on the other parties, of an intention
to remain a party. All parties other than petitioners shall be
respondents, but any respondent who supports the position of a
petitioner shall meet the time schedule for filing papers which is
provided for that petitioner, except that a response to the petition
shall be filed within 20 days after its receipt, and the time may not be
extended.
.5. The clerk of the court having possession of the record shall
retain custody thereof pending notification from the Clerk of this Court
that the record is to be certified and transmitted to this Court. When
requested by the Clerk of this Court to certify and transmit the record,
or any part of it, the clerk of the court having possession of the
record shall number the documents to be certified and shall transmit
therewith a numbered list specifically identifying each document
transmitted. If the record, or stipulated portions thereof, has been
printed for the use of the court below, that printed record, plus the
proceedings in the court below, may be certified as the record unless
one of the parties or the Clerk of this Court otherwise requests. The
record may consist of certified copies, but the presiding judge of the
lower court who believes that original papers of any kind should be seen
by this Court may, by order, make provision for their transport,
safekeeping, and return.
28 USC Rule 13. Review on Certiorari; Time for Petitioning
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A petition for a writ of certiorari to review a judgment in any
case, civil or criminal, entered by a state court of last resort, a
United States court of appeals, or the United States Court of Military
Appeals shall be deemed in time when it is filed with the Clerk of this
Court within 90 days after the entry of the judgment. A petition for a
writ of certiorari seeking review of a judgment of a lower state court
which is subject to discretionary review by the state court of last
resort shall be deemed in time when it is filed with the Clerk within 90
days after the entry of the order denying discretionary review.
.2. A Justice of this Court, for good cause shown, may extend the
time to file a petition for a writ of certiorari for a period not
exceeding 60 days.
.3. The Clerk will refuse to receive any petition for a writ of
certiorari which is jurisdictionally out of time.
.4. The time for filing a petition for a writ of certiorari runs from
the date the judgment or decree sought to be reviewed is rendered, and
not from the date of the issuance of the mandate (or its equivalent
under local practice). However, if a petition for rehearing is timely
filed in the lower court by any party in the case, the time for filing
the petition for a writ of certiorari for all parties (whether or not
they requested rehearing or joined in the petition for rehearing) runs
from the date of the denial of the petition for rehearing or the entry
of a subsequent judgment. A suggestion made to a United States court of
appeals for a rehearing in banc pursuant to Rule 35(b), Federal Rules of
Appellate Procedure, is not a petition for rehearing within the meaning
of this Rule.
.5. A cross-petition for a writ of certiorari shall be deemed in time
when it is filed with the Clerk as provided in paragraphs .1, .2, and .4
of this Rule, or in Rule 12.3. However, a cross-petition which, except
for Rule 12.3, would be untimely, will not be granted unless a timely
petition for a writ of certiorari of another party to the case is
granted.
.6. An application to extend the time to file a petition for a writ
of certiorari must set out the grounds on which the jurisdiction of this
Court is invoked, must identify the judgment sought to be reviewed and
have appended thereto a copy of the opinion and any order respecting
rehearing, and must set forth with specificity the reasons why the
granting of an extension of time is thought justified. For the time and
manner of presenting the application, see Rules 21, 22, and 30. An
application to extend the time to file a petition for a writ of
certiorari is not favored.
Federal Rules of Appellate Procedure, referred to in par. (4), are
set out in this Appendix.
28 USC Rule 14. Content of the Petition for a Writ of Certiorari
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The petition for a writ of certiorari shall contain, in the order
here indicated:
(a) The questions presented for review, expressed in the terms and
circumstances of the case, but without unnecessary detail. The
questions should be short and concise and should not be argumentative or
repetitious. They must be set forth on the first page following the
cover with no other information appearing on that page. The statement
of any question presented will be deemed to comprise every subsidiary
question fairly included therein. Only the questions set forth in the
petition, or fairly included therein, will be considered by the Court.
(b) A list of all parties to the proceeding in the court whose
judgment is sought to be reviewed, unless the names of all parties
appear in the caption of the case. This listing may be done in a
footnote. See also Rule 29.1 for the required listing of parent
companies and nonwholly owned subsidiaries.
(c) A table of contents and a table of authorities, if the petition
exceeds five pages.
(d) A reference to the official and unofficial reports of opinions
delivered in the case by other courts or administrative agencies.
(e) A concise statement of the grounds on which the jurisdiction of
this Court is invoked showing:
(i) The date of the entry of the judgment or decree sought to be
reviewed;
(ii) The date of any order respecting a rehearing, and the date and
terms of any order granting an extension of time within which to file
the petition for a writ of certiorari;
(iii) Express reliance upon Rule 12.3 when a cross-petition for a
writ of certiorari is filed under that Rule and the date of receipt of
the petition for a writ of certiorari in connection with which the
cross-petition is filed; and
(iv) The statutory provision believed to confer on this Court
jurisdiction to review the judgment or decree in question by writ of
certiorari.
(f) The constitutional provisions, treaties, statutes, ordinances,
and regulations involved in the case, setting them out verbatim, and
giving the appropriate citation therefor. If the provisions involved
are lengthy, their citation alone will suffice at this point and their
pertinent text must be set forth in the appendix referred to in
subparagraph .1(k) of this Rule.
(g) A concise statement of the case containing the facts material to
the consideration of the questions presented.
(h) If review of a judgment of a state court is sought, the statement
of the case shall also specify the stage in the proceedings, both in the
court of first instance and in the appellate courts, at which the
federal questions sought to be reviewed were raised; the method or
manner of raising them and the way in which they were passed upon by
those courts; and such pertinent quotation of specific portions of the
record or summary thereof, with specific reference to the places in the
record where the matter appears (e.g., ruling on exception, portion of
court's charge and exception thereto, assignment of errors) as will show
that the federal question was timely and properly raised so as to give
this Court jurisdiction to review the judgment on a writ of certiorari.
When the portions of the record relied upon under this subparagraph are
voluminous, they shall be included in the appendix referred to in
subparagraph .1(k) of this Rule.
(i) If review of a judgment of a United States court of appeals is
sought, the statement of the case shall also show the basis for federal
jurisdiction in the court of first instance.
(j) A direct and concise argument amplifying the reasons relied on
for the allowance of the writ. See Rule 10.
(k) An appendix containing, in the following order:
(i) The opinions, orders, findings of fact, and conclusions of law,
whether written or orally given and transcribed, delivered upon the
rendering of the judgment or decree by the court whose decision is
sought to be reviewed.
(ii) Any other opinions, orders, findings of fact, and conclusions of
law rendered in the case by courts or administrative agencies, and, if
reference thereto is necessary to ascertain the grounds of the judgment
or decree, of those in companion cases. Each document shall include the
caption showing the name of the issuing court or agency, the title and
number of the case, and the date of entry.
(iii) Any order on rehearing, including the caption showing the name
of the issuing court, the title and number of the case, and the date of
entry.
(iv) The judgment sought to be reviewed if the date of its entry is
different from the date of the opinion or order required in
sub-subparagraph (i) of this subparagraph.
(v) Any other appended materials.
If what is required by subparagraphs .1(f), (h), and (k) of this Rule
to be included in or filed with the petition is voluminous, it may be
presented in a separate volume or volumes with appropriate covers.
.2. The petition for a writ of certiorari and the appendix thereto,
whether in the same or a separate volume, shall be produced in
conformity with Rule 33. The Clerk shall not accept any petition for a
writ of certiorari that does not comply with this Rule and with Rule 33,
except that a party proceeding in forma pauperis may proceed in the
manner provided in Rule 39.
.3. All contentions in support of a petition for a writ of certiorari
shall be set forth in the body of the petition, as provided in
subparagraph .1(j) of this Rule. No separate brief in support of a
petition for a writ of certiorari will be received, and the Clerk will
refuse to file any petition for a writ of certiorari to which is annexed
or appended any supporting brief.
.4. The petition for a writ of certiorari shall be as short as
possible and may not exceed the page limitations set out in Rule 33.
.5. The failure of a petitioner to present with accuracy, brevity,
and clearness whatever is essential to a ready and adequate
understanding of the points requiring consideration will be a sufficient
reason for denying the petition.
28 USC Rule 15. Brief in Opposition; Reply Brief; Supplemental Brief
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A brief in opposition to a petition for a writ of certiorari
serves an important purpose in assisting the Court in the exercise of
its discretionary jurisdiction. In addition to other arguments for
denying the petition, the brief in opposition should address any
perceived misstatements of fact or law set forth in the petition which
have a bearing on the question of what issues would properly be before
the Court if certiorari were granted. Unless this is done, the Court
may grant the petition in the mistaken belief that the issues presented
can be decided, only to learn upon full consideration of the briefs and
record at the time of oral argument that such is not the case. Counsel
are admonished that they have an obligation to the Court to point out
any perceived misstatements in the brief in opposition, and not later.
Any defect of this sort in the proceedings below that does not go to
jurisdiction may be deemed waived if not called to the attention of the
Court by the respondent in the brief in opposition.
.2. The respondent shall have 30 days (unless enlarged by the Court
or a Justice thereof or by the Clerk pursuant to Rule 30.4) after
receipt of a petition within which to file 40 printed copies of an
opposing brief disclosing any matter or ground as to why the case should
not be reviewed by this Court. See Rule 10. The brief in opposition
shall comply with Rule 33 and with the requirements of Rule 24 governing
a respondent's brief, and shall be served as prescribed by Rule 29. A
brief in opposition shall not be joined with any other pleading. The
Clerk shall not accept a brief which does not comply with this Rule and
with Rule 33, except that a party proceeding in forma pauperis may
proceed in the manner provided in Rule 39. If the petitioner is
proceeding in forma pauperis, the respondent may file 12 typewritten
copies of a brief in opposition prepared in the manner prescribed by
Rule 34.
.3. A brief in opposition shall be as short as possible and may not
exceed the page limitations set out in Rule 33.
.4. No motion by a respondent to dismiss a petition for a writ of
certiorari will be received. Objections to the jurisdiction of the
Court to grant a writ of certiorari may be included in the brief in
opposition.
.5. Upon the filing of a brief in opposition, the expiration of the
time allowed therefor, or an express waiver of the right to file, the
petition and brief in opposition, if any, will be distributed by the
Clerk to the Court for its consideration. However, if a cross-petition
for a writ of certiorari has been filed, distribution of both it and the
petition for a writ of certiorari will be delayed until the filing of a
brief in opposition by the cross-respondent, the expiration of the time
allowed therefor, or an express waiver of the right to file.
.6. A reply brief addressed to arguments first raised in the brief in
opposition may be filed by any petitioner, but distribution and
consideration by the Court under paragraph .5 of this Rule will not be
delayed pending its filing. Forty copies of the reply brief, prepared
in accordance with Rule 33 and served as prescribed by Rule 29, shall be
filed.
.7. Any party may file a supplemental brief at any time while a
petition for a writ of certiorari is pending calling attention to new
cases or legislation or other intervening matter not available at the
time of the party's last filing. A supplemental brief must be
restricted to new matter. Forty copies of the supplemental brief,
prepared in accordance with Rule 33 and served as prescribed by Rule 29,
shall be filed.
28 USC Rule 16. Disposition of a Petition for a Writ of Certiorari
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. After consideration of the papers distributed pursuant to Rule
15, the Court will enter an appropriate order. The order may be a
summary disposition on the merits.
.2. Whenever a petition for a writ of certiorari to review a decision
of any court is granted, the Clerk shall enter an order to that effect
and shall forthwith notify the court below and counsel of record. The
case will then be scheduled for briefing and oral argument. If the
record has not previously been filed, the Clerk of this Court shall
request the clerk of the court having possession of the record to
certify it and transmit it to this Court. A formal writ shall not issue
unless specially directed.
.3. Whenever a petition for a writ of certiorari to review a decision
of any court is denied, the Clerk shall enter an order to that effect
and shall forthwith notify the court below and counsel of record. The
order of denial will not be suspended pending disposition of a petition
for rehearing except by order of the Court or a Justice.
28 USC PART IV. OTHER JURISDICTION
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 17. Procedure in an Original Action
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. This Rule applies only to an action within the Court's original
jurisdiction under Article III of the Constitution of the United States.
See also 28 U.S.C. 1251 and the Eleventh Amendment to the Constitution
of the United States. A petition for an extraordinary writ in aid of
the Court's appellate jurisdiction must be filed in accordance with Rule
20.
.2. The form of pleadings and motions prescribed by the Federal Rules
of Civil Procedure should be followed in an original action to be filed
in this Court. In other respects those Rules, when their application is
appropriate, may be taken as a guide to procedure in an original action
in this Court.
.3. The initial pleading in any original action shall be prefaced by
a motion for leave to file, and both the pleading and motion must be
printed in conformity with Rule 33. A brief in support of the motion
for leave to file, which shall also comply with Rule 33, may also be
filed with the motion and pleading. Sixty copies of each document, with
proof of service as prescribed by Rule 29, are required, except that
when an adverse party is a State, service shall be made on both the
Governor and the attorney general of that State.
.4. The case will be placed on the docket when the motion for leave
to file and the pleading are filed with the Clerk. The docket fee
provided by Rule 38 must be paid at that time.
.5. Within 60 days after the receipt of the motion for leave to file
and the pleading, an adverse party may file, with proof of service as
prescribed by Rule 29, 60 printed copies of a brief in opposition to the
motion. The brief shall comply with Rule 33. When the brief in
opposition has been filed, or when the time within which it may be filed
has expired, the motion, pleading, and briefs will be distributed to the
Court by the Clerk. The Court may thereafter grant or deny the motion,
set it down for oral argument, direct that additional pleadings be
filed, or require that other proceedings be conducted.
.6. A summons issuing out of this Court in an original action shall
be served on the defendant 60 days before the return day set out
therein. If the defendant does not respond by the return day, the
plaintiff may proceed ex parte.
.7. Process against a State issued from the Court in an original
action shall be served on both the Governor and the attorney general of
that State.
Federal Rules of Civil Procedure, referred to in par. (2), are set
out in this Appendix.
Issues of fact in Supreme Court; trial by jury, see section 1872 of
this title.
28 USC Rule 18. Appeal from a United States District Court
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A direct appeal from a decision of a United States district
court, when authorized by law, is commenced by filing a notice of appeal
with the clerk of the district court within 30 days after the entry of
the judgment sought to be reviewed. The time may not be extended. The
notice of appeal shall specify the parties taking the appeal, shall
designate the judgment, or part thereof, appealed from and the date of
its entry, and shall specify the statute or statutes under which the
appeal is taken. A copy of the notice of appeal shall be served on all
parties to the proceeding pursuant to Rule 29 and proof of service must
be filed in the district court with the notice of appeal.
.2. All parties to the proceeding in the district court shall be
deemed parties to the appeal, but a party having no interest in the
outcome of the appeal may so notify the Clerk of this Court and shall
serve a copy of the notice on all other parties. Parties interested
jointly, severally, or otherwise in the judgment may appeal separately;
or any two or more may join in an appeal.
.3. Not more than 60 days after the filing of the notice of appeal in
the district court, counsel for the appellant shall file, with proof of
service as prescribed by Rule 29, 40 printed copies of a statement as to
jurisdiction and pay the docket fee prescribed by Rule 38. The
jurisdictional statement shall follow, insofar as applicable, the form
for a petition for a writ of certiorari prescribed by Rule 14. The
appendix must also include a copy of the notice of appeal showing the
date it was filed in the district court. The jurisdictional statement
and the appendices thereto must be produced in conformity with Rule 33,
except that a party proceeding in forma pauperis may proceed in the
manner prescribed in Rule 39. A Justice of this Court may, for good
cause shown, extend the time for filing a jurisdictional statement for a
period not exceeding 60 days. An application to extend the time to file
a jurisdictional statement must set out the basis of jurisdiction in
this Court, must identify the judgment to be reviewed, must include a
copy of the opinion, any order respecting rehearing, and the notice of
appeal, and must set forth specific reasons why the granting of an
extension of time is justified. For the time and manner of presenting
the application, see Rules 21, 22, and 30. An application to extend the
time to file a jurisdictional statement is not favored.
.4. The clerk of the district court shall retain possession of the
record pending notification from the Clerk of this Court that the record
is to be certified and transmitted. See Rule 12.5.
.5. After a notice of appeal has been filed, but before the case is
docketed in this Court, the parties may dismiss the appeal by
stipulation filed in the district court, or the district court may
dismiss the appeal upon motion of the appellant and notice to all
parties. If a notice of appeal has been filed, but the case has not
been docketed in this Court within the time prescribed for docketing or
any enlargement thereof, the district court may dismiss the appeal upon
the motion of the appellee and notice to all parties and may make any
order with respect to costs as may be just. If an appellee's motion to
dismiss the appeal is not granted, the appellee may have the case
docketed in this Court and may seek to have the appeal dismissed by
filing a motion pursuant to Rule 21. If the appeal is dismissed, the
Court may give judgment for costs against the appellant.
.6. Within 30 days after receipt of the jurisdictional statement, the
appellee may file 40 printed copies of a motion to dismiss, to affirm,
or, in the alternative, to affirm and dismiss. The motion shall comply
in all respects with Rules 21 and 33, except that a party proceeding in
forma pauperis may proceed in the manner provided in Rule 39. The Court
may permit the appellee to defend a judgment on any ground that the law
and record permit and that would not expand the relief granted.
.7. Upon the filing of the motion, or the expiration of the time
allowed therefor, or an express waiver of the right to file, the
jurisdictional statement and motion, if any, will be distributed by the
Clerk to the Court for its consideration.
.8. A brief opposing a motion to dismiss or affirm may be filed by an
appellant, but distribution to the Court under paragraph .7 of this Rule
will not be delayed pending its receipt. Forty copies, prepared in
accordance with Rule 33 and served as prescribed by Rule 29, shall be
filed.
.9. Any party may file a supplemental brief at any time while a
jurisdictional statement is pending, calling attention to new cases, new
legislation, or other intervening matter not available at the time of
the party's last filing. Forty copies, prepared in accordance with Rule
33 and served as prescribed by Rule 29, shall be filed.
.10. After consideration of the papers distributed under this Rule,
the Court may summarily dispose of the appeal on the merits, note
probable jurisdiction, or postpone jurisdiction to the hearing on the
merits. If not disposed of summarily, the case will stand for briefing
and oral argument on the merits. If consideration of jurisdiction is
postponed, counsel, at the outset of their briefs and at oral argument,
shall address the question of jurisdiction.
Direct appeals from decisions of district court of three judges, see
section 1253 of this title.
Time for appeal and docketing, see section 2101 of this title.
28 USC Rule 19. Procedure on a Certified Question
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A United States court of appeals may certify to this Court a
question or proposition of law concerning which it desires instruction
for the proper decision of a case. The certificate submitted shall
contain a statement of the nature of the case and the facts on which the
question or proposition of law arises. Only questions or propositions
of law may be certified, and they must be distinct and definite.
.2. When a case is certified by a United States court of appeals,
this Court, on application or on its own motion, may consider and decide
the entire matter in controversy. See 28 U.S.C. 1254(2).
.3. When a case is certified, the Clerk will notify the respective
parties and docket the case. Counsel shall then enter their
appearances. After docketing, the certificate shall be submitted to the
Court for a preliminary examination to determine whether the case shall
be briefed, set for argument, or dismissed. No brief may be filed prior
to the preliminary examination of the certificate.
.4. If the Court orders that the case be briefed or set for argument,
the parties shall be notified and permitted to file briefs. The Clerk
of this Court shall then request the clerk of the court from which the
case originates to certify the record and transmit it to this Court.
Any portion of the record to which the parties wish to direct the
Court's particular attention shall be printed in a joint appendix
prepared by the appellant in the court below under the procedures
provided in Rule 26, but the fact that any part of the record has not
been printed shall not prevent the parties or the Court from relying on
it.
.5. A brief on the merits in a case on certificate shall comply with
Rules 24, 25, and 33, except that the brief of the party who is the
appellant below shall be filed within 45 days of the order requiring
briefs or setting the case for argument.
Review of orders and judgments of courts of appeals reviewing orders
of Federal agencies, see section 2350 of this title.
28 USC Rule 20. Procedure on a Petition for an Extraordinary Writ
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The issuance by the Court of an extraordinary writ authorized by
28 U.S.C. 1651(a) is not a matter of right, but of discretion sparingly
exercised. To justify the granting of any writ under that provision, it
must be shown that the writ will be in aid of the Court's appellate
jurisdiction, that there are present exceptional circumstances
warranting the exercise of the Court's discretionary powers, and that
adequate relief cannot be obtained in any other form or from any other
court.
.2. The petition in any proceeding seeking the issuance by this Court
of a writ authorized by 28 U.S.C. 1651(a), 2241, or 2254(a), shall
comply in all respects with Rule 33, except that a party proceeding in
forma pauperis may proceed in the manner provided in Rule 39. The
petition shall be captioned ''In re (name of petitioner)'' and shall
follow, insofar as applicable, the form of a petition for a writ of
certiorari prescribed by Rule 14. All contentions in support of the
petition shall be included in the petition. The case will be placed on
the docket when 40 printed copies, with proof of service as prescribed
by Rule 29 (subject to subparagraph .4(b) of this Rule), are filed with
the Clerk and the docket fee is paid.
.3. (a) A petition seeking the issuance of a writ of prohibition, a
writ of mandamus, or both in the alternative, shall set forth the name
and office or function of every person against whom relief is sought and
shall set forth with particularity why the relief sought is not
available in any other court. There shall be appended to the petition a
copy of the judgment or order in respect of which the writ is sought,
including a copy of any opinion rendered in that connection, and any
other paper essential to an understanding of the petition.
(b) The petition shall be served on the judge or judges to whom the
writ is sought to be directed and shall also be served on every other
party to the proceeding in respect of which relief is desired. The
judge or judges and the other parties may, within 30 days after receipt
of the petition, file 40 printed copies of a brief or briefs in
opposition thereto, which shall comply fully with Rule 15. If the judge
or judges who are named respondents do not desire to respond to the
petition, they may so advise the Clerk and all parties by letter. All
persons served shall be deemed respondents for all purposes in the
proceedings in this Court.
.4. (a) A petition seeking the issuance of a writ of habeas corpus
shall comply with the requirements of 28 U.S.C. 2241 and 2242, and in
particular with the provision in the last paragraph of 2242 requiring a
statement of the ''reasons for not making application to the district
court of the district in which the applicant is held.'' If the relief
sought is from the judgment of a state court, the petition shall set
forth specifically how and wherein the petitioner has exhausted
available remedies in the state courts or otherwise comes within the
provisions of 28 U.S.C. 2254(b). To justify the granting of a writ of
habeas corpus, the petitioner must show exceptional circumstances
warranting the exercise of the Court's discretionary powers and must
show that adequate relief cannot be obtained in any other form or from
any other court. These writs are rarely granted.
(b) Proceedings under this paragraph .4 will be ex parte, unless the
Court requires the respondent to show cause why the petition for a writ
of habeas corpus should not be granted. A response, if ordered, shall
comply fully with Rule 15. Neither the denial of the petition, without
more, nor an order of transfer to a district court under the authority
of 28 U.S.C. 2241(b), is an adjudication on the merits, and therefore
does not preclude further application to another court for the relief
sought.
.5. When a brief in opposition under subparagraph .3(b) has been
filed, when a response under subparagraph .4(b) has been ordered and
filed, when the time within which it may be filed has expired, or upon
an express waiver of the right to file, the papers will be distributed
to the Court by the Clerk.
.6. If the Court orders the case to be set for argument, the Clerk
will notify the parties whether additional briefs are required, when
they must be filed, and, if the case involves a petition for a common
law writ of certiorari, that the parties shall proceed to print a joint
appendix pursuant to Rule 26.
28 USC PART V. MOTIONS AND APPLICATIONS
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 21. Motions to the Court
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Every motion to the Court shall clearly state its purpose and the
facts on which it is based and (except for a motion to dismiss or affirm
under Rule 18) may present legal argument in support thereof. No
separate brief may be filed. A motion shall be as short as possible and
shall comply with any applicable page limits. For an application
addressed to a single Justice, see Rule 22.
.2. (a) A motion in any action within the Court's original
jurisdiction shall comply with Rule 17.3.
(b) A motion to dismiss or affirm under Rule 18, a motion to dismiss
as moot (or a suggestion of mootness), a motion for permission to file a
brief amicus curiae, and any motion the granting of which would be
dispositive of the entire case or would affect the final judgment to be
entered (other than a motion to docket and dismiss under Rule 18.5 or a
motion for voluntary dismissal under Rule 46) shall be printed in
accordance with Rule 33 and shall comply with all other requirements of
that Rule. Forty copies of the motion shall be filed.
(c) Any other motion to the Court may be typewritten in accordance
with Rule 34, but the Court may subsequently require the motion to be
printed by the moving party in the manner provided by Rule 33.
.3. A motion to the Court shall be filed with the Clerk and must be
accompanied by proof of service as provided by Rule 29. No motion shall
be presented in open court, other than a motion for admission to the
Bar, except when the proceeding to which it refers is being argued.
Oral argument will not be permitted on any motion unless the Court so
directs.
.4. A response to a motion shall be made as promptly as possible
considering the nature of the relief asked and any asserted need for
emergency action, and, in any event, shall be made within 10 days of
receipt, unless otherwise ordered by the Court or a Justice or by the
Clerk under the provisions of Rule 30.4. A response to a printed motion
shall be printed if time permits. In an appropriate case, however, the
Court may act on a motion without waiting for a response.
28 USC Rule 22. Applications to Individual Justices
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. An application addressed to an individual Justice shall be
submitted to the Clerk, who will promptly transmit it to the Justice
concerned.
.2. The original and two copies of any application addressed to an
individual Justice shall be filed in the form prescribed by Rule 34, and
shall be accompanied by proof of service on all parties.
.3. The Clerk in due course will advise all counsel concerned, by
means as speedy as may be appropriate, of the disposition made of the
application.
.4. The application shall be addressed to the Justice allotted to the
Circuit within which the case arises. When the Circuit Justice is
unavailable for any reason, the application addressed to that Justice
will be distributed to the Justice then available who is next junior to
the Circuit Justice; the turn of the Chief Justice follows that of the
most junior Justice.
.5. A Justice denying the application will note the denial thereon.
Thereafter, unless action thereon is restricted by law to the Circuit
Justice or is out of time under Rule 30.2, the party making the
application, except in the case of an application for an extension of
time, may renew it to any other Justice, subject to the provisions of
this Rule. Except when the denial has been without prejudice, a renewed
application is not favored. Any renewed application may be made by
sending a letter to the Clerk of the Court addressed to another Justice
to which must be attached 12 copies of the original application,
together with proof of service pursuant to Rule 29.
.6. A Justice to whom an application for a stay or for bail is
submitted may refer it to the Court for determination.
Allotment of Supreme Court justices to circuits, see section 42 of
this title.
28 USC Rule 23. Stays
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A stay may be granted by a Justice of this Court as permitted by
law.
.2. A petitioner entitled thereto may present to a Justice of this
Court an application to stay the enforcement of the judgment sought to
be reviewed on writ of certiorari. 28 U.S.C. 2101(f).
.3. An application for a stay must set forth with particularity why
the relief sought is not available from any other court or judge
thereof. Except in the most extraordinary circumstances, an application
for a stay will not be entertained unless the relief requested has first
been sought in the appropriate court or courts below or from a judge or
judges thereof. An application for a stay must identify the judgment
sought to be reviewed and have appended thereto a copy of the order and
opinion, if any, and a copy of the order, if any, of the court or judge
below denying the relief sought, and must set forth with specificity the
reasons why the granting of a stay is deemed justified. The form and
content of an application for a stay are governed by Rule 22.
.4. The judge, court, or Justice granting an application for a stay
pending review by this Court may condition the stay on the filing of a
supersedeas bond having an approved surety or sureties. The bond shall
be conditioned on the satisfaction of the judgment in full, together
with any costs, interest, and damages for delay that may be awarded. If
a part of the judgment sought to be reviewed has already been satisfied,
or is otherwise secured, the bond may be conditioned on the satisfaction
of the part of the judgment not otherwise secured or satisfied, together
with costs, interest, and damages.
United States, security for costs or damages not required, see
section 2408 of this title.
28 USC PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 24. Brief on the Merits; In General
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A brief of a petitioner or an appellant on the merits must comply
in all respects with Rule 33, and must contain in the order here
indicated:
(a) The questions presented for review, stated as required by Rule
14. The phrasing of the questions presented need not be identical with
that set forth in the petition for a writ of certiorari or the
jurisdictional statement, but the brief may not raise additional
questions or change the substance of the questions already presented in
those documents. At its option, however, the Court may consider a plain
error not among the questions presented but evident from the record and
otherwise within its jurisdiction to decide.
(b) A list of all parties to the proceeding in the court whose
judgment is sought to be reviewed, unless the caption of the case in
this Court contains the names of all parties. This listing may be done
in a footnote. See also Rule 29.1, which requires a list of parent
companies and nonwholly owned subsidiaries.
(c) A table of contents and a table of authorities, if the brief
exceeds five pages.
(d) Citations of the opinions and judgments delivered in the courts
below.
(e) A concise statement of the grounds on which the jurisdiction of
this Court is invoked, with citation of the statutory provision and of
the time factors upon which jurisdiction rests.
(f) The constitutional provisions, treaties, statutes, ordinances,
and regulations which the case involves, setting them out verbatim and
giving the appropriate citation therefor. If the provisions involved
are lengthy, their citation alone will suffice at this point, and their
pertinent text, if not already set forth in the petition for a writ of
certiorari, jurisdictional statement, or an appendix to either document,
shall be set forth in an appendix to the brief.
(g) A concise statement of the case containing all that is material
to the consideration of the questions presented, with appropriate
references to the joint appendix, e.g. (J.A. 12) or to the record, e.g.
(R. 12).
(h) A summary of the argument, suitably paragraphed, which should be
a succinct, but accurate and clear, condensation of the argument
actually made in the body of the brief. A mere repetition of the
headings under which the argument is arranged is not sufficient.
(i) The argument, exhibiting clearly the points of fact and of law
being presented and citing the authorities and statutes relied upon.
(j) A conclusion, specifying with particularity the relief which the
party seeks.
.2. The brief filed by a respondent or an appellee must conform to
the foregoing requirements, except that no statement of the case need be
made beyond what may be deemed necessary to correct any inaccuracy or
omission in the statement by the other side. Items required by
subparagraphs .1(a), (b), (d), (e), and (f) of this Rule need not be
included unless the respondent or appellee is dissatisfied with their
presentation by the other side.
.3. A brief on the merits shall be as short as possible and shall not
exceed the page limitations set out in Rule 33. An appendix to a brief
must be limited to relevant material, and counsel are cautioned not to
include in an appendix arguments or citations that properly belong in
the body of the brief.
.4. A reply brief shall conform to those portions of this Rule that
are applicable to the brief of a respondent or an appellee, but, if
appropriately divided by topical headings, need not contain a summary of
the argument.
.5. A reference to the joint appendix or to the record set forth in
any brief must be accompanied by the appropriate page number. If the
reference is to an exhibit, the page numbers at which the exhibit
appears, at which it was offered in evidence, and at which it was ruled
on by the judge must be indicated, e.g. (Pl.Ex. 14; R.199, 2134).
.6. A brief must be compact, logically arranged with proper headings,
concise, and free from burdensome, irrelevant, immaterial, and
scandalous matter. A brief not complying with this paragraph may be
disregarded and stricken by the Court.
28 USC Rule 25. Brief on the Merits; Time for Filing
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Counsel for the petitioner or appellant shall file with the Clerk
40 copies of a brief on the merits within 45 days of the order granting
the writ of certiorari or of the order noting or postponing probable
jurisdiction.
.2. Forty copies of the brief of the respondent or appellee must be
filed with the Clerk within 30 days after the receipt of the brief filed
by the petitioner or appellant.
.3. A reply brief, if any, must be filed within 30 days after receipt
of the brief for the respondent or appellee, or must actually be
received by the Clerk not later than one week before the date of oral
argument, whichever is earlier. Forty copies are required.
.4. The periods of time stated in paragraphs .1 and .2 of this Rule
may be enlarged as provided in Rule 30. If a case is advanced for
hearing, the time for filing briefs on the merits may be abridged as
circumstances require pursuant to the order of the Court on its own
motion or a party's application.
.5. A party desiring to present late authorities, newly enacted
legislation, or other intervening matter that was not available in time
to have been included in a brief may file 40 printed copies of a
supplemental brief, restricted to new matter and otherwise presented in
conformity with these Rules, up to the time the case is called for oral
argument, or by leave of the Court thereafter.
.6. No brief will be received through the Clerk or otherwise after a
case has been argued or submitted, except from a party and upon leave of
the Court.
.7. No brief will be received by the Clerk unless it is accompanied
by proof of service as required by Rule 29.
28 USC Rule 26. The Joint Appendix
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Unless the parties agree to use the deferred method allowed in
paragraph .4 of this Rule, or the Court so directs, the petitioner or
appellant, within 45 days after the entry of the order granting the writ
of certiorari, or noting or postponing jurisdiction, shall file 40
copies of a joint appendix, printed as prescribed by Rule 33. The joint
appendix shall contain: (1) the relevant docket entries in all the
courts below; (2) any relevant pleading, jury instruction, finding,
conclusion, or opinion; (3) the judgment, order, or decision sought to
be reviewed; and (4) any other parts of the record which the parties
particularly wish to bring to the Court's attention. Any of the
foregoing items which have already been reproduced in a petition for a
writ of certiorari, jurisdictional statement, brief in opposition to a
petition for a writ of certiorari, motion to dismiss or affirm, or any
appendix to the foregoing complying with Rule 33 need not be reproduced
again in the joint appendix. The petitioner or appellant shall serve
three copies of the joint appendix on each of the other parties to the
proceeding.
.2. The parties are encouraged to agree to the contents of the joint
appendix. In the absence of agreement, the petitioner or appellant
shall, not later than 10 days after receipt of the order granting the
writ of certiorari, or noting or postponing jurisdiction, serve on the
respondent or appellee a designation of parts of the record to be
included in the joint appendix. A respondent or appellee who deems the
parts of the record so designated not to be sufficient shall, within 10
days after receipt of the designation, serve upon the petitioner or
appellant a designation of additional parts to be included in the joint
appendix, and the petitioner or appellant shall include the parts so
designated. If the respondent or appellee has been permitted by this
Court to proceed in forma pauperis, the petitioner or appellant may seek
by motion to be excused from printing portions of the record deemed
unnecessary.
In making these designations, counsel should include only those
materials the Court should examine. Unnecessary designations should be
avoided. The record is on file with the Clerk and available to the
Justices. Counsel may refer in their briefs and in oral argument to
relevant portions of the record not included in the joint appendix.
.3. When the joint appendix is filed, the petitioner or appellant
shall immediately file with the Clerk a statement of the cost of
printing 50 copies and shall serve a copy of the statement on each of
the other parties to the proceeding pursuant to Rule 29. Unless the
parties otherwise agree, the cost of producing the joint appendix shall
initially be paid by the petitioner or appellant; but a petitioner or
appellant who considers that parts of the record designated by the
respondent or appellee are unnecessary for the determination of the
issues presented may so advise the respondent or appellee who then shall
advance the cost of printing the additional parts, unless the Court or a
Justice otherwise fixes the initial allocation of the costs. The cost
of printing the joint appendix shall be taxed as costs in the case, but
if a party unnecessarily causes matter to be included in the joint
appendix or prints excessive copies, the Court may impose the costs
thereof on that party.
.4. (a) If the parties agree, or if the Court shall so order,
preparation of the joint appendix may be deferred until after the briefs
have been filed. In that event, the petitioner or appellant shall file
the joint appendix within 14 days after receipt of the brief of the
respondent or appellee. The provisions of paragraphs .1, .2, and .3 of
this Rule shall be followed, except that the designations referred to
therein shall be made by each party when that party's brief is served.
(b) If the deferred method is used, the briefs may make reference to
the pages of the record involved. In that event, the printed joint
appendix must also include in brackets on each page thereof the page
number of the record where that material may be found. A party desiring
to refer directly to the pages of the joint appendix may serve and file
typewritten or page-proof copies of the brief within the time required
by Rule 25, with appropriate references to the pages of the record
involved. In that event, within 10 days after the joint appendix is
filed, copies of the brief in the form prescribed by Rule 33 containing
references to the pages of the joint appendix, in place of or in
addition to the initial references to the pages of the record involved,
shall be served and filed. No other change may be made in the brief as
initially served and filed, except that typographical errors may be
corrected.
.5. The joint appendix must be prefaced by a table of contents
showing the parts of the record which it contains, in the order in which
the parts are set out therein, with references to the pages of the joint
appendix at which each part begins. The relevant docket entries must be
set out following the table of contents. Thereafter, the other parts of
the record shall be set out in chronological order. When testimony
contained in the reporter's transcript of proceedings is set out in the
joint appendix, the page of the transcript at which the testimony
appears shall be indicated in brackets immediately before the statement
which is set out. Omissions in the transcript or in any other document
printed in the joint appendix must be indicated by asterisks.
Immaterial formal matters (captions, subscriptions, acknowledgments,
etc.) shall be omitted. A question and its answer may be contained in a
single paragraph.
.6. Exhibits designated for inclusion in the joint appendix may be
contained in a separate volume or volumes suitably indexed. The
transcript of a proceeding before an administrative agency, board,
commission, or officer used in an action in a district court or court of
appeals shall be regarded as an exhibit for the purposes of this
paragraph.
.7. The Court by order may dispense with the requirement of a joint
appendix and may permit a case to be heard on the original record (with
such copies of the record, or relevant parts thereof, as the Court may
require), or on the appendix used in the court below, if it conforms to
the requirements of this Rule.
.8. For good cause shown, the time limits specified in this Rule may
be shortened or enlarged by the Court, by a Justice thereof, or by the
Clerk under the provisions of Rule 30.4.
28 USC Rule 27. The Calendar
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. The Clerk shall from time to time prepare calendars of cases
ready for argument. A case will not normally be called for argument
less than two weeks after the brief of the respondent or appellee is
due.
.2. The Clerk will advise counsel when they are required to appear
for oral argument and will publish a hearing list in advance of each
argument session for the convenience of counsel and the information of
the public.
.3. On the Court's own motion, or on motion of one or more parties,
the Court may order that two or more cases, involving what appear to be
the same or related questions, be argued together as one case or on any
other terms as may be prescribed.
Priority on docket of criminal cases from State court, see section
2102 of this title.
28 USC Rule 28. Oral Argument
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Oral argument should emphasize and clarify the written arguments
appearing in the briefs on the merits. Counsel should assume that all
Justices of the Court have read the briefs in advance of oral argument.
The Court looks with disfavor on oral argument read from a prepared
text.
.2. The petitioner or appellant is entitled to open and conclude the
argument. A cross-writ of certiorari shall be argued with the initial
writ of certiorari as one case in the time allowed for that one case and
the Court will advise the parties who will open and close.
.3. Unless otherwise directed, one-half hour on each side is allowed
for argument. Counsel is not required to use all the allotted time. A
request for additional time to argue must be presented by a motion to
the Court under Rule 21 not later than 15 days after service of the
petitioner's or appellant's brief on the merits and shall set forth with
specificity and conciseness why the case cannot be presented within the
half-hour limitation. Additional time is rarely accorded.
.4. Only one attorney will be heard for each side, except by special
permission granted upon a request presented not later than 15 days after
service of the petitioner's or appellant's brief on the merits. The
request must be presented by a motion to the Court under Rule 21 and
shall set forth with specificity and conciseness why more than one
attorney should argue. Divided argument is not favored.
.5. In any case, and regardless of the number of counsel
participating, counsel having the opening must present the case fairly
and completely and not reserve points of substance for rebuttal.
.6. Oral argument will not be allowed on behalf of any party for whom
no brief has been filed.
.7. By leave of the Court, and subject to paragraph .4 of this Rule,
counsel for an amicus curiae whose brief has been duly filed pursuant to
Rule 37 may, with the consent of a party, argue orally on the side of
that party. In the absence of consent, counsel for an amicus curiae may
orally argue only by leave of the Court on a motion particularly setting
forth why oral argument is thought to provide assistance to the Court
not otherwise available. The motion will be granted only in the most
extraordinary circumstances.
28 USC PART VII. PRACTICE AND PROCEDURE
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 29. Filing and Service of Documents; Special Notifications
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Any pleading, motion, notice, brief, or other document or paper
required or permitted to be presented to this Court, or to a Justice,
shall be filed with the Clerk. Every document, except a joint appendix
or brief amicus curiae, filed by or on behalf of one or more
corporations, shall include a list naming all parent companies and
subsidiaries (except wholly owned subsidiaries) of each corporation.
This listing may be done in a footnote. If there is no parent or
subsidiary company to be listed, a notation to this effect shall be
included in the document. If a list has been included in a document
filed earlier in the particular case, reference may be made to the
earlier document and only amendments to the listing to make it currently
accurate need to be included in the document currently being filed.
.2. To be timely filed, a document must actually be received by the
Clerk within the time specified for filing; or be sent to the Clerk by
first-class mail, postage prepaid, and bear a postmark showing that the
document was mailed on or before the last day for filing; or, if being
filed by an inmate confined in an institution, be deposited in the
institution's internal mail system on or before the last day for filing
and be accompanied by a notarized statement or declaration in compliance
with 28 U.S.C. 1746 setting forth the date of deposit and stating that
first-class postage has been prepaid. If the postmark is missing or not
legible, the Clerk shall require the person who mailed the document to
submit a notarized statement or declaration in compliance with 28 U.S.C.
1746 setting forth the details of the mailing and stating that the
mailing took place on a particular date within the permitted time. A
document forwarded through a private delivery or courier service must be
received by the Clerk within the time permitted for filing.
.3. Any pleading, motion, notice, brief, or other document required
by these Rules to be served may be served personally or by mail on each
party to the proceeding at or before the time of filing. If the
document has been produced under Rule 33, three copies shall be served
on each other party separately represented in the proceeding. If the
document is typewritten pursuant to Rule 34, service of a single copy on
each other party separately represented shall suffice. If personal
service is made, it may consist of delivery at the office of counsel of
record, either to counsel or to an employee therein. If service is by
mail, it shall consist of depositing the document in a United States
post office or mailbox, with first-class postage prepaid, addressed to
counsel of record at the proper post office address. When a party is
not represented by counsel, service shall be made upon the party,
personally or by mail.
.4. (a) If the United States or any department, office, agency,
officer, or employee thereof is a party to be served, service must also
be made upon the Solicitor General, Department of Justice, Washington,
D.C. 20530. If a response by the Solicitor General is required or
permitted within a prescribed period after service, the time does not
begin to run until the document actually has been received by the
Solicitor General's office. When an agency of the United States is
authorized by law to appear on its own behalf as a party, or when an
officer or employee of the United States is a party, the agency,
officer, or employee must also be served, in addition to the Solicitor
General; and if a response is required or permitted within a prescribed
period, the time does not begin to run until the document actually has
been received by the agency, the officer, the employee, and the
Solicitor General's office.
(b) In any proceeding in this Court wherein the constitutionality of
an Act of Congress is drawn in question, and the United States or any
department, office, agency, officer, or employee thereof is not a party,
the initial pleading, motion, or paper filed in this Court shall recite
that 28 U.S.C. 2403(a) may be applicable, and the document must be
served on the Solicitor General, Department of Justice, Washington, D.C.
20530. In a proceeding from any court of the United States, as defined
by 28 U.S.C. 451, the initial pleading, motion, or paper shall also
state whether or not that court, pursuant to 28 U.S.C. 2403(a), has
certified to the Attorney General the fact that the constitutionality of
an Act of Congress was drawn into question.
(c) In any proceeding in this Court wherein the constitutionality of
any statute of a State is drawn into question, and the State or any
agency, officer, or employee thereof is not a party, the initial
pleading, motion, or paper filed in this Court shall recite that 28
U.S.C. 2403(b) may be applicable and shall be served upon the attorney
general of that State. In a proceeding from any court of the United
States, as defined by 28 U.S.C. 451, the initial pleading, motion, or
paper shall state whether or not that court, pursuant to 28 U.S.C.
2403(b), has certified to the state attorney general the fact that the
constitutionality of a statute of that State was drawn into question.
.5. Proof of service, when required by these Rules, must accompany
the document when it is presented to the Clerk for filing and must be
separate from it. Proof of service may be shown by any one of the
methods set forth below, and must contain, or be accompanied by, a
statement that all parties required to be served have been served,
together with a list of the names, addresses, and telephone numbers of
counsel indicating the name of the party or parties each counsel
represents. It is not necessary that service on each party required to
be served be made in the same manner or evidenced by the same proof.
(a) By an acknowledgment of service of the document in question,
signed by counsel of record for the party served.
(b) By a certificate of service of the document in question, reciting
the facts and circumstances of service in compliance with the
appropriate paragraph or paragraphs of this Rule, and signed by a member
of the Bar of this Court representing the party on whose behalf service
is made.
(c) By a notarized affidavit or declaration in compliance with 28
U.S.C. 1746, reciting the facts and circumstances of service in
accordance with the appropriate paragraph or paragraphs of this Rule,
whenever service is made by any person not a member of the Bar of this
Court.
28 USC Rule 30. Computation and Enlargement of Time
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. In computing any period of time prescribed or allowed by these
Rules, by order of the Court, or by an 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 shall
be included, unless it is a Saturday, a Sunday, a federal legal holiday,
or a day on which the Court building has been closed by order of the
Court or the Chief Justice, in which event the period extends until the
end of the next day which is not a Saturday, a Sunday, a federal legal
holiday, or a day on which the Court building has been closed. See 5
U.S.C. 6103 for a list of federal legal holidays.
.2. Whenever a Justice of this Court or the Clerk is empowered by law
or these Rules to extend the time for filing any document or paper, an
application seeking an extension must be presented to the Clerk within
the period sought to be extended. However, an application for an
extension of time to file a petition for a writ of certiorari or to
docket an appeal must be submitted at least 10 days before the specified
final filing date. If received less than 10 days before the final
filing date, the application will not be granted except in the most
extraordinary circumstances.
.3. An application to extend the time within which a party may file a
petition for a writ of certiorari or docket an appeal shall be presented
in the form prescribed by Rules 13.6 and 18.3, respectively. An
application to extend the time within which to file any other document
or paper may be presented in the form of a letter to the Clerk setting
forth with specificity the reasons why the granting of an extension of
time is justified. Any application seeking an extension of time must be
presented and served upon all other parties as provided in Rule 22, and,
once denied, may not be renewed.
.4. An application to extend the time for filing a brief, motion,
joint appendix, or other paper, for designating parts of a record to be
printed in the appendix, or for complying with any other time limit
provided by these Rules (except an application for an extension of time
to file a petition for a writ of certiorari, to docket an appeal, to
file a reply brief on the merits, to file a petition for rehearing, or
to issue a mandate forthwith) shall in the first instance be acted upon
by the Clerk, whether addressed to the Clerk, to the Court, or to a
Justice. Any party aggrieved by the Clerk's action on an application to
extend time may request that it be submitted to a Justice or to the
Court. The Clerk shall report action under this Rule to the Court in
accordance with instructions that may be issued by the Court.
28 USC Rule 31. Translations
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
Whenever any record to be transmitted to this Court contains any
material written in a foreign language without a translation made under
the authority of the lower court, or admitted to be correct, the clerk
of the court transmitting the record shall immediately advise the Clerk
of this Court to the end that this Court may order that a translation be
supplied and, if necessary, printed as a part of the joint appendix.
28 USC Rule 32. Models, Diagrams, and Exhibits
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Models, diagrams, and exhibits of material forming part of the
evidence taken in a case, and brought to this Court for its inspection,
shall be placed in the custody of the Clerk at least two weeks before
the case is to be heard or submitted.
.2. All models, diagrams, and exhibits of material placed in the
custody of the Clerk must be removed by the parties within 40 days after
the case is decided. When this is not done, the Clerk shall notify
counsel to remove the articles forthwith. If they are not removed
within a reasonable time thereafter, the Clerk shall destroy them or
make any other appropriate disposition of them.
28 USC Rule 33. Printing Requirements
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. (a) Except for papers permitted by Rules 21, 22, and 39 to be
submitted in typewritten form (see Rule 34), every document filed with
the Court must be printed by a standard typographic printing process or
be typed and reproduced by offset printing, photocopying, computer
printing, or similar process. The process used must produce a clear,
black image on white paper. In an original action under Rule 17, 60
copies of every document printed under this Rule must be filed; in all
other cases, 40 copies must be filed.
(b) The text of every document, including any appendix thereto,
produced by standard typographic printing must appear in print as
11-point or larger type with 2-point or more leading between lines. The
print size and typeface of the United States Reports from Volume 453 to
date are acceptable. Similar print size and typeface should be standard
throughout. No attempt should be made to reduce or condense the
typeface in a manner that would increase the content of a document.
Footnotes must appear in print as 9-point or larger type with 2-point or
more leading between lines. A document must be printed on both sides of
the page.
(c) The text of every document, including any appendix thereto,
printed or duplicated by any process other than standard typographic
printing shall be done in pica type at no more than 10 characters per
inch. The lines must be double spaced. The right-hand margin need not
be justified, but there must be a margin of at least three-fourths of an
inch. In footnotes, elite type at no more than 12 characters per inch
may be used. The document should be printed on both sides of the page,
if practicable. It shall not be reduced in duplication. A document
which is photographically reduced so that the print size is smaller than
pica type will not be received by the Clerk.
(d) Whether printed under subparagraph (b) or (c) of this paragraph,
every document must be produced on opaque, unglazed paper 6 1/8 by 9 1/4
inches in size, with type matter approximately 4 1/8 by 7 1/8 inches and
margins of at least three-fourths of an inch on all sides. The document
must be firmly bound in at least two places along the left margin
(saddle stitch or perfect binding preferred) so as to make an easily
opened volume, and no part of the text shall be obscured by the binding.
Spiral and other plastic bindings may not be used. Appendices in
patent cases may be duplicated in such size as is necessary to utilize
copies of patent documents.
.2. Every document must bear on the cover, in the following order,
from the top of the page: (1) the number of the case or, if there is
none, a space for one; (2) the name of this Court; (3) the Term; (4)
the caption of the case as appropriate in this Court; (5) the nature of
the proceeding and the name of the court from which the action is
brought (e.g., ''Petition for Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit''; or, for a merits brief, ''On
Writ of Certiorari to the United States Court of Appeals for the Fifth
Circuit''); (6) the title of the paper (e.g., ''Petition for Writ of
Certiorari,'' ''Brief for Respondent,'' ''Joint Appendix''); (7) the
name of the member of the Bar of this Court who is counsel of record for
the party concerned, and upon whom service is to be made, with a
notation directly thereunder that the attorney is the counsel of record
together with counsel's office address and telephone number. (There can
be only one counsel of record noted on a single document.) The
individual names of other members of the Bar of this Court, or of the
Bar of the highest court of a State, and, if desired, their post office
addresses, may be added, but counsel of record must be clearly
identified. Names of persons other than attorneys admitted to a state
Bar may not be listed. The foregoing must be displayed in an
appropriate typographic manner and, except for the identification of
counsel, may not be set in type smaller than 11-point or uppercase pica.
.3. Every document produced under this Rule shall comply with the
page limits shown below and shall have a suitable cover consisting of
heavy paper in the color indicated. Counsel must be certain that there
is adequate contrast between the printing and the color of the cover.
The above page limitations are exclusive of the questions presented
page, the subject index, the table of authorities, and the appendix.
Verbatim quotations required by Rule 14.1(f), if set forth in the text
of the brief rather than the appendix, are also excluded. A motion for
leave to file a brief amicus curiae filed pursuant to Rule 37 must be
printed with the brief.
A document filed by the United States, by any department, office, or
agency of the United States, or by any officer or employee of the United
States represented by the Solicitor General shall have a gray cover.
A joint appendix and any other document shall have a tan cover.
In a case filed under the original jurisdiction of the Court, the
initial pleading and motion for leave to file and any accompanying brief
shall have white covers. A brief in opposition to the motion for leave
to file shall have an orange cover; exceptions to the report of a
special master shall have a light blue cover, if filed by the plaintiff,
and a light red cover, if filed by any other party; and a reply brief
to any exceptions shall have a yellow cover.
.4. The Court or a Justice, for good cause shown, may grant leave to
file a document in excess of the page limits, but these applications are
not favored. An application to exceed page limits shall comply in all
respects with Rule 22 and must be submitted at least 15 days before the
filing date of the document in question, except in the most
extraordinary circumstances.
.5. Every document which exceeds five pages (other than a single
joint appendix) shall, regardless of the method of duplication, contain
a table of contents and a table of authorities (i.e., cases
alphabetically arranged, constitutional provisions, statutes, textbooks,
etc.) with correct references to the pages in the document where they
are cited.
.6. The body of every document at its close shall bear the name of
counsel of record and such other counsel, identified on the cover of the
document in conformity with paragraph .2(7) of this Rule, as may be
desired. One copy of every motion or application (other than a motion
to dismiss or affirm under Rule 18) must in addition be signed by
counsel of record at the end thereof.
.7. The Clerk shall not accept for filing any document presented in a
form not in compliance with this Rule, but shall return it indicating to
the defaulting party any failure to comply. The filing, however, shall
not thereby be deemed untimely provided that new and proper copies are
promptly substituted. If the Court finds that the provisions of this
Rule have not been adhered to, it may impose, in its discretion,
appropriate sanctions including but not limited to dismissal of the
action, imposition of costs, or disciplinary sanction upon counsel.
28 USC Rule 34. Form of Typewritten Papers
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Any paper specifically permitted by these Rules to be presented
to the Court without being printed shall, subject to Rule 39.3, be
typewritten on opaque, unglazed paper 8 1/2 x 11 inches in size and
shall be stapled or bound at the upper left-hand corner. The typed
matter, except quotations, must be double spaced. Copies, if required,
must be produced on the same type of paper. All copies presented to the
Court must be legible.
.2. The original of any motion or application (except a motion to
dismiss or affirm under Rule 18.6) must be signed in manuscript by the
party proceeding pro se or by counsel of record who must be a member of
the Bar of this Court.
28 USC Rule 35. Death, Substitution, and Revivor; Public Officers
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. In the event a party dies after filing a notice of appeal to this
Court, or after filing a petition for a writ of certiorari, the
authorized representative of the deceased party may appear and, upon
motion, be substituted as a party to the proceeding. If the
representative does not voluntarily become a party, any other party may
suggest the death on the record and on motion seek an order requiring
the representative to become a party within a designated time. If the
representative then fails to become a party, the party so moving, if a
respondent or appellee, shall be entitled to have the petition for a
writ of certiorari or the appeal dismissed or the judgment vacated for
mootness, as may be appropriate. A party so moving who is a petitioner
or appellant shall be entitled to proceed as in any other case of
nonappearance by a respondent or appellee. The substitution of a
representative of the deceased, or the suggestion of death by a party,
must be made within six months after the death of the party, or the case
shall abate.
.2. Whenever a case cannot be revived in the court whose judgment is
sought to be reviewed because the deceased party has no authorized
representative within the jurisdiction of that court, but does have an
authorized representative elsewhere, proceedings shall be conducted as
this Court may direct.
.3. When a public officer, who is a party to a proceeding in this
Court in an official capacity, dies, resigns, or otherwise ceases to
hold office, the action does not abate and any successor in office is
automatically substituted as a party. Proceedings following the
substitution shall be in the name of the substituted party, but any
misnomer not affecting the substantial rights of the parties shall be
disregarded.
.4. A public officer who is a party to a proceeding in this Court in
an official capacity may be described as a party by the officer's
official title rather than by name, but the Court may require the name
to be added.
28 USC Rule 36. Custody of Prisoners in Habeas Corpus Proceedings
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Pending review in this Court of a decision in a habeas corpus
proceeding commenced before a court, Justice, or judge of the United
States, the person having custody of the prisoner shall not transfer
custody to another person unless the transfer is authorized in
accordance with the provisions of this Rule.
.2. Upon application by a custodian showing a need therefor, the
court, Justice, or judge rendering the decision under review may
authorize transfer and the substitution of a successor custodian as a
party.
.3. (a) Pending review of a decision failing or refusing to release a
prisoner, the prisoner may be detained in the custody from which release
is sought or in other appropriate custody or may be enlarged upon
personal recognizance or bail, as may appear fitting to the court,
Justice, or judge rendering the decision, or to the court of appeals or
to this Court or to a judge or Justice of either court.
(b) Pending review of a decision ordering release, the prisoner shall
be enlarged upon personal recognizance or bail, unless the court,
Justice, or judge rendering the decision, or the court of appeals, or
this Court, or a judge or Justice of either court, shall otherwise
order.
.4. An initial order respecting the custody or enlargement of the
prisoner, and any recognizance or surety taken, shall continue in effect
pending review in the court of appeals and in this Court unless for
reasons shown to the court of appeals or to this Court, or to a judge or
Justice of either court, the order is modified or an independent order
respecting custody, enlargement, or surety is entered.
28 USC Rule 37. Brief of an Amicus Curiae
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. An amicus curiae brief which brings relevant matter to the
attention of the Court that has not already been brought to its
attention by the parties is of considerable help to the Court. An
amicus brief which does not serve this purpose simply burdens the staff
and facilities of the Court and its filing is not favored.
.2. A brief of an amicus curiae submitted prior to the consideration
of a petition for a writ of certiorari or a jurisdictional statement,
accompanied by the written consent of all parties, may be filed only if
submitted within the time allowed for filing a brief in opposition to
the petition for a writ of certiorari or for filing a motion to dismiss
or affirm. A motion for leave to file a brief amicus curiae when
consent has been refused is not favored. Any such motion must be filed
within the time allowed for the filing of the brief amicus curiae, must
indicate the party or parties who have refused consent, and must be
printed with the proposed brief. The cover of the brief must identify
the party supported.
.3. A brief of an amicus curiae in a case before the Court for oral
argument may be filed when accompanied by the written consent of all
parties and presented within the time allowed for the filing of the
brief of the party supported, or, if in support of neither party, within
the time allowed for filing the petitioner's or appellant's brief. A
brief amicus curiae must identify the party supported or indicate
whether it suggests affirmance or reversal, and must be as concise as
possible. No reply brief of an amicus curiae and no brief of an amicus
curiae in support of a petition for rehearing will be received.
.4. When consent to the filing of a brief of an amicus curiae in a
case before the Court for oral argument is refused by a party to the
case, a motion for leave to file indicating the party or parties who
have refused consent, accompanied by the proposed brief and printed with
it, may be presented to the Court. A motion will not be received unless
submitted within the time allowed for the filing of an amicus brief on
written consent. The motion shall concisely state the nature of the
applicant's interest and set forth facts or questions of law that have
not been, or reasons for believing that they will not be, presented by
the parties and their relevancy to the disposition of the case. The
motion may in no event exceed five pages. A party served with the
motion may file an objection thereto concisely stating the reasons for
withholding consent which must be printed in accordance with Rule 33.
The cover of an amicus brief must identify the party supported or
indicate whether it supports affirmance or reversal.
.5. Consent to the filing of a brief of an amicus curiae is not
necessary when the brief is presented on behalf of the United States by
the Solicitor General; on behalf of any agency of the United States
authorized by law to appear on its own behalf when submitted by the
agency's authorized legal representative; on behalf of a State,
Territory, or Commonwealth when submitted by its Attorney General; or
on behalf of a political subdivision of a State, Territory, or
Commonwealth when submitted by its authorized law officer.
.6. Every brief or motion filed under this Rule must comply with the
applicable provisions of Rules 21, 24, and 33 (except that it shall be
sufficient to set forth in the brief the interest of the amicus curiae,
the argument, the summary of the argument, and the conclusion); and
shall be accompanied by proof of service as required by Rule 29.
28 USC Rule 38. Fees
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
In pursuance of 28 U.S.C. 1911, the fees to be charged by the Clerk
are fixed as follows:
(a) For docketing a case on a petition for a writ of certiorari or on
appeal or docketing any other proceeding, except a certified question or
a motion to docket and dismiss an appeal pursuant to Rule 18.5, $300.00.
(b) For filing a petition for rehearing or a motion for leave to file
a petition for rehearing, $200.00.
(c) For the reproduction and certification of any record or paper,
$1.00 per page; and for comparing with the original thereof any
photographic reproduction of any record or paper, when furnished by the
person requesting its certification, $.50 per page.
(d) For a certificate under seal, $25.00.
(e) For a check paid to the Court, Clerk, or Marshal which is
returned for lack of funds, $35.00.
28 USC Rule 39. Proceedings In Forma Pauperis
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A party desiring to proceed in forma pauperis shall file with the
pleading a motion for leave to proceed in forma pauperis, together with
the party's notarized affidavit or declaration (in compliance with 28
U.S.C. 1746) in the form prescribed by the Federal Rules of Appellate
Procedure, Form 4. See 28 U.S.C. 1915. If the United States district
court or the United States court of appeals has appointed counsel under
the Criminal Justice Act of 1964, as amended, the party need not file an
affidavit or declaration in compliance with 28 U.S.C. 1746, but the
motion must indicate that counsel was appointed under the Criminal
Justice Act. See 18 U.S.C. 3006A(d)(6). The motion shall also state
whether or not leave to proceed in forma pauperis was sought in any
other court and, if so, whether leave was granted.
.2. The motion, and affidavit or declaration if required, must be
filed with the petition for a writ of certiorari, jurisdictional
statement, or petition for an extraordinary writ, as the case may be,
and shall comply in every respect with Rule 21, except that it shall be
sufficient to file a single copy. If not received together, the
documents will be returned by the Clerk.
.3. Every paper or document presented under this Rule must be clearly
legible and, whenever possible, must comply with Rule 34. While making
due allowance for any case presented under this Rule by a person
appearing pro se, the Clerk will refuse to receive any document sought
to be filed that does not comply with the substance of these Rules, or
when it appears that the document is obviously and jurisdictionally out
of time.
.4. When the papers required by paragraphs .1 and .2 of this Rule are
presented to the Clerk, accompanied by proof of service as prescribed by
Rule 29, they are to be placed on the docket without the payment of a
docket fee or any other fee.
.5. The respondent or appellee in a case filed in forma pauperis may
respond in the same manner and within the same time as in any other case
of the same nature, except that the filing of 12 copies of a typewritten
response, with proof of service as required by Rule 29, will suffice
whenever the petitioner or appellant has filed typewritten papers. The
respondent or appellee may challenge the grounds for the motion to
proceed in forma pauperis in a separate document or in the response
itself.
.6. Whenever the Court appoints a member of the Bar to serve as
counsel for an indigent party in a case set for oral argument, the
briefs prepared by that counsel, unless otherwise requested, will be
printed under the supervision of the Clerk. The Clerk will also
reimburse appointed counsel for any necessary travel expenses to
Washington, D.C., and return in connection with the argument.
.7. In a case in which certiorari has been granted or jurisdiction
has been noted or postponed, this Court may appoint counsel to represent
a party financially unable to afford an attorney to the extent
authorized by the Criminal Justice Act of 1964, as amended, 18 U.S.C.
3006A.
.8. If satisfied that a petition for a writ of certiorari,
jurisdictional statement, or petition for an extraordinary writ, as the
case may be, is frivolous or malicious, the Court may deny a motion for
leave to proceed in forma pauperis.
(As amended Apr. 29, 1991, eff. July 1, 1991.)
Federal Rules of Appellate Procedure, referred to in par. .1, are
set out in this Appendix.
The Criminal Justice Act of 1964, referred to in pars. .1 and .7, is
Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended, which
enacted section 3006A of Title 18, Crimes and Criminal Procedure, and
provisions set out as notes under section 3006A of Title 18. For
complete classification of this Act to the Code, see Short Title note
set out under section 3006A of Title 18 and Tables.
28 USC Rule 40. Veterans, Seamen, and Military Cases
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A veteran suing to establish reemployment rights under 38 U.S.C.
2022, or under any other provision of law exempting a veteran from the
payment of fees or court costs, may file a motion to proceed upon
typewritten papers under Rule 34, except that the motion shall ask leave
to proceed as a veteran, and the affidavit shall set forth the moving
party's status as a veteran.
.2. A seaman suing pursuant to 28 U.S.C. 1916 may proceed without
the prepayment of fees or costs or furnishing security therefor, but a
seaman is not relieved of printing costs nor entitled to proceed on
typewritten papers.
.3. An accused person petitioning for a writ of certiorari to review
a decision of the United States Court of Military Appeals pursuant to 28
U.S.C. 1259 may proceed without the prepayment of fees or costs or
furnishing security therefor and without filing an affidavit of
indigency, but is not relieved of the printing requirements under Rule
33 and is not entitled to proceed on typewritten papers except as
authorized by the Court on separate motion.
28 USC PART VIII. DISPOSITION OF CASES
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 41. Opinions of the Court
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
Opinions of the Court will be released by the Clerk in preliminary
form immediately upon delivery. Thereafter the Clerk shall cause the
opinions of the Court to be issued in slip form and shall deliver them
to the Reporter of Decisions who shall prepare them for publication in
the preliminary prints and bound volumes of the United States Reports.
Appointment and duties of Supreme Court Reporter, see section 673 of
this title.
Printing and binding for Supreme Court, see section 676 of this
title.
Supreme Court reports and digests, printing, binding and
distribution, see sections 411 and 412 of this title.
28 USC Rule 42. Interest and Damages
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. If a judgment for money in a civil case is affirmed, whatever
interest is allowed by law shall be payable from the date the judgment
below was entered. If a judgment is modified or reversed with a
direction that a judgment for money be entered below, the mandate will
contain instructions with respect to the allowance of interest.
Interest will be allowed at the same rate that similar judgments bear
interest in the courts of the State in which judgment was entered or was
directed to be entered.
.2. When a petition for a writ of certiorari, an appeal, or
application for other relief is frivolous, the Court may award the
respondent or appellee just damages and single or double costs. Damages
or costs may be awarded against the petitioner, appellant, or applicant,
or against the party's attorney or against both.
Damages and costs on affirmance, Supreme Court, see section 1912 of
this title.
28 USC Rule 43. Costs
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. If a judgment or decree is affirmed by this Court, costs shall be
paid by the petitioner or appellant, unless otherwise ordered by the
Court.
.2. If a judgment or decree is reversed or vacated by this Court,
costs shall be allowed to the petitioner or appellant, unless otherwise
ordered by the Court.
.3. The fees of the Clerk and the costs of printing the joint
appendix are the only taxable items in this Court. The cost of the
transcript of the record from the court below is also a taxable item,
but shall be taxable in that court as costs in the case. The expenses
of printing briefs, motions, petitions, or jurisdictional statements are
not taxable.
.4. In a case involving a certified question, costs shall be equally
divided unless otherwise ordered by the Court; but if a decision is
rendered on the whole matter in controversy, see Rule 19.2, costs shall
be allowed as provided in paragraphs .1 and .2 of this Rule.
.5. In a civil action commenced on or after July 18, 1966, costs
under this Rule shall be allowed for or against the United States, or an
officer or agent thereof, unless expressly waived or otherwise ordered
by the Court. See 28 U.S.C. 2412.
.6. When costs are allowed in this Court, the Clerk shall insert an
itemization of the costs in the body of the mandate or judgment sent to
the court below. The prevailing side shall not submit a bill of costs.
.7. If appropriate, the Court may adjudge double costs.
28 USC Rule 44. Rehearing
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. A petition for the rehearing of any judgment or decision of the
Court on the merits shall be filed within 25 days after the entry of the
judgment or decision, unless the time is shortened or enlarged by the
Court or a Justice. Forty printed copies, produced in conformity with
Rule 33, must be filed (except when the party is proceeding in forma
pauperis under Rule 39), accompanied by proof of service as prescribed
by Rule 29 and the filing fee required by Rule 38. The petition must
briefly and distinctly state its grounds. Counsel must certify that the
petition is presented in good faith and not for delay; one copy of the
certificate shall bear the manuscript signature of counsel. A petition
for rehearing is not subject to oral argument, and will not be granted
except at the instance of a Justice who concurred in the judgment or
decision and with the concurrence of a majority of the Court.
.2. A petition for the rehearing of an order denying a petition for a
writ of certiorari shall be filed within 25 days after the date of the
order of denial and shall comply with all the form and filing
requirements of paragraph .1 of this Rule, including the payment of the
filing fee if required, but its grounds must be limited to intervening
circumstances of a substantial or controlling effect or to other
substantial grounds not previously presented. Counsel must certify that
the petition is restricted to the grounds specified in this paragraph
and that it is presented in good faith and not for delay. One copy of
the certificate shall bear the manuscript signature of counsel or of a
party not represented by counsel. A petition without a certificate
shall be rejected by the Clerk. The petition is not subject to oral
argument.
.3. No response to a petition for rehearing will be received unless
requested by the Court, but no petition will be granted without an
opportunity to submit a response.
.4. Consecutive petitions and petitions that are out of time under
this Rule will not be received.
28 USC Rule 45. Process; Mandates
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. All process of this Court shall be in the name of the President
of the United States.
.2. In a case coming from a state court, the mandate shall issue 25
days after the entry of judgment, unless the time is shortened or
enlarged by the Court or a Justice, or unless the parties stipulate that
it be issued sooner. The filing of a petition for rehearing, unless
otherwise ordered, will stay the mandate until disposition of the
petition. If the petition is then denied, the mandate shall issue
forthwith.
.3. In a case coming from a United States court, a formal mandate
will not issue unless specially directed; instead, the Clerk will send
the court a copy of the opinion or order of this Court and a certified
copy of the judgment (which shall include provisions for the recovery of
costs, if any are awarded). In all other respects, the provisions of
paragraph .2 of this Rule apply.
Determination by Supreme Court, remand, see section 2106 of this
title.
Marshal to serve and execute process, see section 672 of this title.
Seal and teste of process, see section 1691 of this title.
28 USC Rule 46. Dismissing Cases
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
.1. Whenever all parties, at any stage of the proceedings, file with
the Clerk an agreement in writing that a case be dismissed, specifying
the terms with respect to the payment of costs, and pay to the Clerk any
fees that may be due, the Clerk, without further reference to the Court,
shall enter an order of dismissal.
.2. (a) A petitioner or appellant in a case in this Court may file a
motion to dismiss the case, with proof of service as prescribed by Rule
29, and must tender to the Clerk any fees and costs payable. An adverse
party may, within 15 days after service thereof, file an objection,
limited to the quantum of damages and costs in this Court alleged to be
payable, or, in a proper case, to a showing that the moving party does
not represent all petitioners or appellants. The Clerk will refuse to
receive any objection not so limited.
(b) When the objection goes to the standing of the moving party to
represent the entire side, the party moving for dismissal, within 10
days thereafter, may file a reply, after which time the matter shall be
submitted to the Court for its determination.
(c) If no objection is filed, or if upon objection going only to the
quantum of damages and costs in this Court, the party moving for
dismissal, within 10 days thereafter, tenders the whole of such
additional damages and costs demanded, the Clerk, without further
reference to the Court, shall enter an order of dismissal. If, after
objection as to the quantum of damages and costs in this Court, the
moving party does not respond with a tender within 10 days, the Clerk
shall report the matter to the Court for its determination.
.3. No mandate or other process shall issue on a dismissal under this
Rule without an order of the Court.
28 USC PART IX. APPLICATION OF TERMS AND EFFECTIVE DATE
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
28 USC Rule 47. Term ''State Court''
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
The term ''state court'' when used in these Rules includes the
District of Columbia Court of Appeals and the Supreme Court of the
Commonwealth of Puerto Rico. See 28 U.S.C. 1257 and 1258. References
in these Rules to the common law and statutes of a State include the
common law and statutes of the District of Columbia and of the
Commonwealth of Puerto Rico.
28 USC Rule 48. Effective Date of Amendments
TITLE 28, APPENDIX -- RULES OF THE SUPREME COURT
These Rules adopted December 5, 1989, shall be effective January 1,
1990.
28 USC TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC General Order No. 1
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
General Order No. 1 of the United States Claims Court, October 7,
1982, provided that:
''The United States Claims Court inherits substantially all of the
jurisdiction, caseload and grand tradition of the United States Court of
Claims. To assure continuity in carrying out the business of the court,
and to promote the interests of justice and service to the public, it is
ordered as follows:
''(1) All published decisions of the United States Court of Claims
are accepted as binding precedent for the United States Claims Court,
unless and until modified by decisions of the United States Court of
Appeals for the Federal Circuit or the United States Supreme Court.
''(2) Every order, decision and ruling entered by the trial or
appellate divisions of the United States Court of Claims in cases now
pending before the United States Claims Court is adopted in its entirety
and will be given full force and effect, unless and until a judge of the
United States Claims Court determines such order should be modified,
amended or rescinded.
''(3) The United States Claims Court will be the custodian of all
records of the United States Court of Claims.
''(4) The United States Claims Court will provide for the publication
of all United States Court of Claims decisions which have been certified
for publication in the United States Court of Claims Reporter.''
28 USC General Order No. 3
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
IT IS ORDERED that the attached rules (set out below) are adopted as
the Rules of the United States Claims Court effective October 1, 1982.
October 7, 1982
By the Court
Alex Kozinski
Chief Judge
28 USC General Order No. 9
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
IT IS ORDERED this date that the attached rules (set out below) are
adopted as the Rules of the United States Claims Court effective
February 15, 1984.
January 27, 1984
By the Court
Alex Kozinski
Chief Judge
28 USC General Order No. 11
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
IT IS ORDERED this date that the attached rules (set out below) are
adopted as the Rules of the United States Claims Court effective
November 1, 1985.
October 28, 1985
By the Court
Alex Kozinski
Chief Judge
28 USC General Order No. 28
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
IT IS ORDERED this date that the attached rules (set out below) are
adopted as the Rules of the United States Claims Court effective March
15, 1991.
March 14, 1991
By the Court
Loren A. Smith
Chief Judge
28 USC General Order No. 31
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
IT IS ORDERED this date that the attached rules (set out below) are
adopted as the Rules of the United States Claims Court effective March
15, 1992.
March 13, 1992
By the Court
Loren A. Smith
Chief Judge
28 USC General Order No. 33
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
On October 29, 1992, the Federal Courts Administration Act of 1992,
Pub. L. No. 102-572, 106 Stat. 4506 (1992), became effective.
Pursuant to Title IX, the United States Claims Court is renamed the
United States Court of Federal Claims. For all purposes the new name
may be substituted for the previous name. It shall have the identical
legal consequences. All documents, motions, orders, forms, or other
written instruments shall apply to the new name as they did to the
previous name. From this date forward the new name shall be used in
place of the United States Claims Court. The Clerk's Office, however,
will not reject any filings or pleadings because of the use of the
previous name.
IT IS ORDERED, as follows:
(1) All General Orders of the former United States Claims Court are
fully applicable to the United States Court of Federal Claims.
(2) Decisions of the United States Court of Federal Claims will be
published in the Federal Claims Reporter and cited as ''Fed. Cl.''
Citations to decisions of the former United States Claims Court shall
continue to be cited as decisions of the United States Claims Court
(''Cl. Ct.'').
(3) The Rules of the United States Court of Federal Claims shall be
abbreviated as ''RCFC''.
(4) All members in good standing of the bar of the United States
Claims Court shall continue to be members of the bar of the United
States Court of Federal Claims.
(5) Some of the rules do not conform to the statute. The statute
will control if there is a conflict. The Court is drafting changes to
the RCFC to conform the rules to the recent legislative changes. The
court would welcome written comments regarding changes. All written
comments should be addressed to: The Honorable John P. Wiese,
Chairman, Rules Committee, 717 Madison Place, N.W., Washington, D.C.
20005.
In order to use resources efficiently, all paper stocks bearing the
name ''United States Claims Court'' will be used until exhausted, except
as change is needed.
December 4, 1992
By the Court
Loren A. Smith
Chief Judge
28 USC Change of Name
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
References to United States Claims Court deemed to refer to United
States Court of Federal Claims and references to Claims Court deemed to
refer to Court of Federal Claims, see section 902(b) of Pub. L.
102-572, set out as a note under section 171 of this title.
28 USC RULES
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Rule
1. Scope of Rules.
(a) Scope.
(b) Federal Rules of Civil Procedure.
2. One Form of Action.
PLEADINGS, MOTIONS, AND ORDERS
3. Commencement of Action.
(a) Complaint; Filing Period.
(b) Date of Filing.
(c) Copies.
4. Process.
(a) Service upon the United States.
(b) Copies.
(c) Proof and Date of Service.
5. Service and Filing of Other Papers.
(a) Service; When Required.
(b) Same; How Made.
(c) Filing; Certificate of Service.
(d) Filing with the Court Defined.
(e) Proof of Service.
6. Time.
(a) Computation.
(b) Enlargement.
(c) Additional Time After Service.
(d) When Time Begins To Run.
7. Pleadings Allowed; Form of Motions.
(a) Pleadings.
(b) Motions and Other Papers.
(c) Demurrers, Pleas, Etc., Abolished.
8. General Rules of Pleading.
(a) Claims for Relief.
(b) Defenses; Form of Denials.
(c) Affirmative Defenses.
(d) Effect of Failure To Deny.
(e) Pleading To Be Concise and Direct; Consistency.
(f) Construction of Pleadings.
9. Pleading Special Matters.
(a) Capacity.
(b) Fraud, Mistake, Condition of the Mind.
(c) Conditions Precedent.
(d) Official Document or Act.
(e) Judgment.
(f) Time and Place.
(g) Special Damage.
(h) Special Matters Required in Complaint.
10. Form of Pleadings.
(a) Caption; Names of Parties.
(b) Paragraphs; Separate Statements.
(c) Adoption by Reference; Exhibits.
11. Signing of Pleadings, Motions, and Other Papers; Sanctions.
12. Defenses and Objections -- When and How Presented -- By Pleading
or Motion -- Motion for Judgment on the Pleadings.
(a) When Presented.
(b) How Presented.
(c) Motion for Judgment on the Pleadings.
(d) Preliminary Hearings.
(e) Motion for More Definite Statement.
(f) Motion To Strike.
(g) Consolidation of Defenses in Motion.
(h) Waiver of Preservation of Certain Defenses.
(i) Suspension of Discovery.
13. Counterclaim.
(a) Compulsory Counterclaims.
(b) Permissive Counterclaims.
(c) Counterclaim Exceeding Opposing Claim.
(d) Counterclaim Against the United States (not used).
(e) Counterclaim Maturing or Acquired After Pleading.
(f) Omitted Counterclaim.
(g) Cross-Claim Against Co-Party (not used).
(h) Joinder of Additional Parties (not used).
(i) Separate Trials; Separate Judgments.
14. Third-Party Practice.
(a) When Third Parties May Be Brought In.
(b) Content of Motion for Notice to Third Parties.
(c) Issuance and Service of Notice.
(d) Service of Notice by Publication.
(e) Contents of Motion for Summons to Third Parties.
(f) Issuance and Service of Summons.
(g) Pleadings of Third Parties.
15. Amended and Supplemental Pleadings.
(a) Amendments.
(b) Amendments To Conform to the Evidence.
(c) Relation Back of Amendments.
(d) Supplemental Pleadings.
(e) Form and Filing.
16. Pretrial Conferences; Scheduling; Management.
(a) Pretrial Conferences; Objectives.
(b) Scheduling and Planning.
(c) Subjects To Be Discussed at Pretrial Conferences.
(d) Final Pretrial Conference.
(e) Pretrial Orders.
(f) Sanctions.
17. Parties Plaintiff and Defendant; Capacity.
(a) Real Party in Interest.
(b) Capacity To Sue or Be Sued.
(c) Infants or Incompetent Persons.
18. Joinder of Claims and Remedies.
(a) Joinder of Claims.
(b) Joinder of Remedies.
19. Joinder of Persons Needed for Just Adjudication.
(a) Persons To Be Joined If Feasible.
(b) Determination by Court Whenever Joinder Not Feasible.
(c) Pleading Reasons for Nonjoinder.
(d) Exception of Class Actions.
20. Permissive Joinder of Parties.
(a) Permissive Joinder.
(b) Separate Trials.
21. Misjoinder and Non-Joinder of Parties.
23. Class Actions.
24. Intervention.
(a) Intervention of Right.
(b) Permissive Intervention.
(c) Procedure.
25. Substitution of Parties.
(a) Death.
(b) Incompetency.
(c) Transfer of Interest.
(d) Public Officers; Death or Separation from Office (not used).
26. General Provisions Governing Discovery.
(a) Discovery Methods.
(b) Discovery Scope and Limits.
(c) Protective Orders.
(d) Sequence and Timing of Discovery.
(e) Supplementation of Responses.
(f) Discovery Conference.
(g) Signing of Discovery Requests, Responses, and Objections.
27. Discovery To Perfect Complaint or Pending Appeal.
(a) Preliminary Complaint.
(b) Pending Appeal.
(c) Perpetuation by Action (not used).
28. Persons Before Whom Depositions May Be Taken.
(a) Within the United States.
(b) In Foreign Countries.
(c) Disqualification for Interest.
(d) Fees.
29. Stipulations Regarding Discovery Procedure.
30. Depositions upon Oral Examination.
(a) When Depositions May Be Taken.
(b) Notice of Examination: General Requirements; Special Notice;
Non-Stenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.
(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections.
(d) Motion To Terminate or Limit Examination.
(e) Submission To Witness; Changes; Signing.
(f) Certification and Filing by Officer; Exhibits; Copies; Notice
of Completion.
(g) Failure To Attend or To Serve Subpoena; Expenses.
31. Depositions upon Written Questions.
(a) Serving Questions; Notice.
(b) Officer To Take Responses and Prepare Record.
(c) Notice of Receipt.
32. Use of Depositions in Court Proceedings.
(a) Use of Depositions.
(b) Objections to Admissibility.
(c) Effect of Taking or Using Depositions (not used).
(d) Effect of Errors and Irregularities in Depositions.
33. Interrogatories to Parties.
(a) Availability; Procedures for Use.
(b) Scope; Use at Trial.
(c) Option To Produce Business Records.
34. Production of Documents and Things and Entry upon Land for
Inspection and Other Purposes.
(a) Scope.
(b) Procedure.
(c) Persons Not Parties.
(d) Calls.
35. Physical and Mental Examination of Persons.
(a) Order for Examination.
(b) Report of Examiner.
36. Requests for Admission.
(a) Request for Admission.
(b) Effect of Admission.
37. Failure To Make or Cooperate in Discovery; Sanctions.
(a) Motion for Order Compelling Discovery.
(b) Failure To Comply with Order.
(c) Expenses on Failure To Admit.
(d) Failure of Party To Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection.
(e) Subpoena of Person in Foreign Country (not used).
(f) Expenses Against United States (not used).
(g) Failure To Participate in the Framing of a Discovery Plan.
39. Trial.
(a) By the Court.
(b) Reporting Arrangements; Return of Transcript.
40. Assignment of Cases for Trial.
41. Dismissal of Actions.
(a) Voluntary Dismissal; Effect Thereof.
(b) Involuntary Dismissal; Effect Thereof.
(c) Dismissal of Counterclaim or Third-Party Claim.
(d) Costs of Previously Dismissed Action.
42. Consolidation; Separate Trials.
(a) Consolidation.
(b) Separate Trials.
(c) Separate Determination of Liability.
43. Taking of Testimony.
(a) Form.
(b) Affirmation in Lieu of Oath.
(c) Evidence on Motions.
(d) Interpreters.
44. Proof of Official Record.
(a) Authentication.
(b) Lack of Record.
(c) Other Proof.
(d) Proof of Rules and Regulations.
44.1. Determination of Foreign Law.
45. Subpoena.
(a) Form; Issuance.
(b) Service.
(c) Protection of Persons Subject to Subpoenas.
(d) Duties in Responding to Subpoena.
(e) Contempt.
46. Exceptions Unnecessary.
52. Findings by the Court; Judgment on Partial Findings.
(a) Effect.
(b) Amendment.
(c) Judgment on Partial Findings.
52.1. Unpublished Opinions.
(a) Citation.
(b) Request to Publish.
53. Masters.
(a) Appointment and Compensation.
(b) Reference.
(c) Powers.
(d) Proceedings.
(e) Report.
54. Judgments; Costs.
(a) Definition; Form.
(b) Judgment upon Multiple Claims or Involving Multiple Parties.
(c) Demand for Judgment.
(d) Costs.
55. Default.
(a) Entry.
(b) Judgment.
(c) Setting Aside Default.
(d) Plaintiffs; Counterclaimants.
(e) Judgment Against the United States.
56. Summary Judgment.
(a) For Claimant.
(b) For Defending Party.
(c) Motion and Proceedings Thereon.
(d) Procedures.
(e) Case Not Fully Adjudicated on Motion.
(f) Form of Affidavits; Further Testimony; Defense Required.
(g) When Affidavits Are Unavailable.
(h) Affidavits Made in Bad Faith.
56.1. Review of Decision on the Basis of Administrative Record.
(a) Standards.
(b) Procedures.
57. Declaratory Judgments.
58. Entry of Judgment.
59. New Trials; Rehearings; Amendment of Judgments;
Reconsideration.
(a) Grounds.
(b) Time for Motion and Response.
(c) On Initiative of Court.
(d) Motion To Alter or Amend a Judgment.
60. Relief from Judgment or Order.
(a) Clerical Mistakes.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc.
60.1. Remand; Extension or Termination of Stay of Proceedings on
Remand; Disposition of Case.
(a) Remand.
(b) Extension or Termination of Stay of Proceedings on Remand;
Disposition of Case.
61. Harmless Error.
62. Stay of Proceedings To Enforce a Judgment.
(a) Automatic Stay; Exceptions -- Injunctions and Patent
Accountings.
(b) Stay on Motion for New Trial or for Judgment.
(c) Injunction Pending Appeal.
(d) Stay upon Appeal.
(e) Stay in Favor of the United States or Agency Thereof.
(f) Power of Appellate Court Not Limited.
(g) Stay of Judgment as to Multiple Claims or Multiple Parties.
63. Inability of a Judge to Proceed.
(a) Inability.
(b) Voluntary Disqualification.
(c) Affidavit of Bias or Prejudice.
PROCEEDINGS
65. Injunctions.
(a) Preliminary Injunction.
(b) Temporary Restraining Order; Notice; Hearing; Duration.
(c) Security.
(d) Form and Scope of Injunction or Restraining Order.
(e) Employer and Employee.
(f) Procedures.
65.1. Security: Proceedings Against Sureties.
(a) Proceedings.
(b) Sureties.
68. Offer of Judgment.
72. Notice of Appeal.
77. Court and Clerk.
(a) Name.
(b) Seal.
(c) Court Always Open.
(d) Citations.
(e) Judicial Power.
(f) Assignment of Cases.
(g) Signing of Orders for Absent Judges.
(h) Trials and Hearings; Orders in Chambers.
(i) Clerk's Office and Orders by Clerk.
(j) Notice of Orders or Judgments.
(k) Fee Schedule.
(l) Scheduling Courtrooms.
(m) Officers and Employees of the Court; Practice of Law.
77.1. Case Management.
(a) Responsibility.
(b) Scheduling.
77.2. Clerk Authorized To Act on Certain Motions.
(a) Motions Enumerated.
(b) Maximum Time Allowable.
(c) Denial of Motions for Enlargement.
(d) Review by the Court.
77.3. Withdrawal of Papers, Exhibits and In Camera Documents.
(a) Temporary Withdrawal.
(b) Withdrawal for Trial.
(c) Permanent Withdrawal.
(d) Physical Exhibits and In Camera Documents.
77.4. Taxation of Costs.
(a) Filing Bill of Costs.
(b) Objections to Bill of Costs.
(c) Costs in Settlements.
(d) No Extensions.
78. Motions Day.
79. Books and Records Kept by the Clerk and Entries Therein.
(a) Docket.
(b) Judgments and Orders.
(c) Indices; Calendars.
(d) Other Books and Records of the Clerk.
80. Reporter; Record or Transcript as Evidence.
(a) Reporter.
(b) Preparation of Transcript and Exhibits.
(c) Copies of Transcript.
(d) Report or Transcript as Evidence.
81. Attorneys.
(a) Attorneys Eligible To Practice.
(b) Admission to Practice.
(c) Disbarment.
(d) Attorneys of Record.
(e) Application for Attorneys' Fees and Expenses.
82. Form, Size and Duplication of all Papers.
(a) General.
(b) Duplication.
(c) Form and Size.
(d) Date.
(e) Telephone Number.
83. Number of Copies.
83.1. Content of Briefs or Memoranda; Length of Briefs or
Memoranda.
(a) Content of Briefs or Memoranda.
(b) Length of Briefs or Memoranda.
83.2. Time for Filing.
(a) Responses and Objections.
(b) Replies.
(c) Motions Under Rules 12(b), 12(c) and 56.
(d) Leave of Court.
(e) Cross-motions.
(f) Reconsideration of Orders.
84. Transfers and Referrals.
(a) Transfers from Other Courts.
(b) Referral of Cases by the Comptroller General.
85. Title.
86. Effective Date.
A. Instructions to Reporters; Forms.
B. Procedures for Processing Complaints of Judicial Misconduct
Pursuant to 28 U.S.C. 372(c).
C. Procedure in Common Carrier Cases.
D. Procedure in Congressional Reference Cases (28 U.S.C. 1492,
2509).
E. Application for Attorneys' Fees Under Equal Access to Justice
Act.
F. United States Court of Federal Claims Rules of Disciplinary
Enforcement.
G. Procedures Before Trial.
H. Motions.
I. Bill of Costs.
J. TITLES I-IV Vaccine Rules of the Office of Special Masters of the
United States Court of Federal Claims.
TITLES V-VIII Review of Decisions of Special Masters Rendered
Pursuant to the National Vaccine Injury Compensation Program.
K. United States Court of Federal Claims Cover Sheet.
L. United States Court of Federal Claims Subpoena.
Vaccine Subpoena.
The rules of the United States Court of Federal Claims are based upon
the Federal Rules of Civil Procedure (Fed. R. Civ. P. or the Federal
Rules). For ease of reference to rulings in Federal Rules Decisions on
comparable rules, chapter titles and rule numbers of the Court of
Federal Claims rules follow closely the Fed. R. Civ. P. Amendments and
additions to the Federal Rules have been made as required to give effect
to the jurisdictional differences of the Court of Federal Claims.
Federal Rules which are not applicable to the Court of Federal Claims
have been omitted, and subdivisions of the Federal Rules that have not
been used, either in amended or supplemented form, are so designated.
Rule
22. Interpleader.
23.1. Derivative Actions by Shareholders.
23.2. Actions Relating to Unincorporated Associations.
38. Jury Trial of Right.
47. Jurors.
48. Juries of Less than Twelve -- Majority Verdict.
49. Special Verdicts and Interrogatories.
50. Motion for a Directed Verdict and for Judgment Notwithstanding
the Verdict.
51. Instructions to Jury; Objection.
64. Seizure of Person or Property.
66. Receivers Appointed by Federal Courts.
67. Deposit in Court.
69. Execution.
70. Judgment for Specific Acts; Vesting Title.
71. Process in Behalf of and Against Persons Not Parties.
71A. Condemnation of Property.
73. Appeal to a Court of Appeals.
74. Joint Appeals to the Supreme Court or to a Court of Appeals.
75. Record on Appeal to a Court of Appeals.
76. Record on Appeal to a Court of Appeals; Agreed Statement.
28 USC RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
The United States Claims Court was created by the Federal Courts
Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (1982)), and
redesignated the United States Court of Federal Claims by the Federal
Courts Administration Act of 1992 (Pub. L. 102-572, 106 Stat. 4516). It
inherited substantially all of the jurisdiction formerly exercised by
the United States Court of Claims. Section 139(b)(1) of the Act, 28
U.S.C. 2503(b), authorizes the United States Court of Federal Claims to
prescribe rules of practice and procedure for its proceedings.
28 USC TITLE I. SCOPE OF RULES -- ONE FORM OF ACTION
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 1. Scope of Rules
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Scope. (1) These rules govern all proceedings in actions filed
in the United States Court of Federal Claims on or after October 1,
1982, and all further proceedings in actions then pending, except to the
extent that in the opinion of the court their application in a
particular action pending on October 1, 1982, would not be feasible or
would work an injustice. In such event the court by order shall adapt
the prior procedures of the United States Court of Claims as required.
These rules shall be cited as RCFC.
(2) These rules shall be construed to secure the just, speedy, and
inexpensive determination of every action.
(3) In all cases not provided for by rule, a judge may regulate the
applicable practice in any manner not inconsistent with these rules.
(b) Federal Rules of Civil Procedure. The Federal Rules applicable
to civil actions tried by the court sitting without a jury and in effect
on December 1, 1991, have been incorporated in these rules to the extent
that they appropriately can be applied to proceedings in this court.
(As amended Dec. 4, 1992.)
28 USC Rule 2. One Form of Action
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
There shall be one form of action to be known as a ''civil action.''
28 USC TITLE II. COMMENCEMENT OF ACTION: SERVICE OF PROCESS,
PLEADINGS, MOTIONS, AND ORDERS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 3. Commencement of Action
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Complaint; Filing Period. A civil action in this court shall be
commenced by filing a complaint with the Clerk of the Court. See Rule
77(f)(2).
(b) Date of Filing. (1) The records of the clerk, including the date
stamped on the complaint, shall be final and conclusive evidence of the
date on which a complaint was filed, in the absence of the filing and
allowance of a motion under subdivision (b)(2) of this rule.
(2)(A) A party plaintiff who contends that the effective date of
plaintiff's complaint should properly be a date earlier than that shown
by the clerk's records may seek a corrective order from the court by
means of a motion.
(B) Upon motion of a party plaintiff supported by a proper showing
that the clerk's records are factually incorrect, the court will correct
the records by order.
(C) In a situation where a complaint is stamped by the clerk after
the last date allowed by a statute of limitations for the filing of the
complaint, if the complaint was received by the clerk through the mail,
it may, by order of court, upon motion of the party plaintiff, be deemed
to have been filed on the last date allowed if there is a proper showing
(i) that the complaint was sent by registered or certified mail,
properly addressed to the clerk at 717 Madison Place, N.W., Washington,
D.C. 20005, and with return receipt requested; (ii) that it was
deposited in the mail sufficiently in advance of the last date allowed
for filing to provide for receipt by the clerk on or before such date in
the ordinary course of the mail; and (iii) that the party plaintiff as
sender exercised no control over the mailing between the deposit of the
complaint in the mail and its delivery.
(c) Copies. Plaintiff shall file an original and 7 copies of the
complaint, the original of which shall be accompanied by the completed
cover sheet as shown in Appendix K utilizing the Cover Sheet
Information. See Rule 83.
28 USC Rule 4. Process
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Service upon the United States. Service of the complaint upon
the United States shall be made through the delivery by the clerk to the
Attorney General, or to an agent designated by authority of the Attorney
General, of copies of the complaint in numbers prescribed by subdivision
(b) of this rule.
(b) Copies. The clerk shall serve on the Attorney General or his
designated agent 5 copies of the complaint.
(c) Proof and Date of Service. At the time the clerk serves a
complaint the clerk shall enter the fact of service on the docket, and
such entry shall be prima facie evidence of service. For the purposes
of this rule, the date of service shall be the date of filing with the
clerk.
28 USC Rule 5. Service and Filing of Other Papers
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(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,
every paper relating to discovery required to be served upon a party
unless the court otherwise orders, every written motion, and every
written notice, appearance, demand, offer of judgment, designation of
record on appeal, and similar paper shall be served upon each of the
parties.
(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 by mailing it to
the attorney or party at the last known address or, if no address is
known, by leaving it with the clerk. 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 attorney's or party'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, but filing is not.
(c) 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, except that depositions upon
oral examination and notices thereof, written questions,
interrogatories, requests for documents, requests for admission, and
answers and responses thereto and other related discovery materials
shall not be filed unless on order of court. See Rule 83.
(d) 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 chambers, in which event the judge shall note thereon the
filing date and forthwith transmit them to the office of the clerk.
Papers my not be filed by facsimile transmission. All matters are to be
brought to the attention of a judge through formal filings rather than
by correspondence; letters are not to be directed to a judge unless
specifically requested.
(e) Proof of Service. (1) Service shall be made by the party,
attorney of record or any other person acting under the attorney of
record's direction. The person making service shall execute a
certificate of service that contains the following information:
(A) the day and manner of service;
(B) the person and/or entity served; and
(C) the method of service employed, e.g., personal, mail,
substituted, etc.
(2) The certificate of service shall be attached at the end of the
original document, including appendices, and copies thereof. If service
other than by mail is used and it is impractical to attach the
certificate at time of filing, such certificate may be filed
subsequently.
(3) The certificate may at any time be amended or supplied unless to
do so would result in material prejudice to the substantial rights of
any party.
28 USC Rule 6. Time
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Computation. In computing any period of time prescribed or
allowed by these rules, 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 clerk's
office inaccessible, in which event the period runs until the end of the
next day which is not a Saturday, a Sunday, or a legal holiday. 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(i), legal holiday
includes New Year's Day, Inauguration Day, Martin Luther King's
Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, or any
other day appointed as a holiday by the President or the Congress of the
United States.
(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) order the period enlarged if request therefor is made
by motion showing good cause 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 52(b),
59(b) and (d), 60(b) and 77.4, except to the extent and under the
conditions stated in them. Every motion for enlargement of time must
set forth therein the specific number of additional days requested, the
date to which the enlargement is to run, the extent to which the time
for the performance of the particular act has been previously enlarged,
and the reason or reasons upon which the motion for enlargement is
based. Motions for enlargement will not be granted on the basis of
nonspecific assertions that counsel has been delayed because of the
press of other business. Where a motion for enlargement is based on the
occurrence of some unanticipated event, counsel must file the motion
promptly upon learning of the event. In general, motions for
enlargement must be filed at the earliest practicable time and make a
persuasive showing that counsel has been working on the matter
diligently or has been prevented from doing so by significant matters
beyond counsel's control. Motions for enlargements of time must contain
a representation that the moving party has discussed the motion with
opposing counsel and a statement whether an opposition will be filed or,
if opposing counsel cannot be consulted, an explanation of the efforts
made to do so.
(c) Additional Time After Service. 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 paper, and the service is made other than
by hand on the same day, 3 calendar days shall be added to the
prescribed period, except that no days shall be added when a date or
time limitation is set by a court order or when a motion is filed
pursuant to Rule 59(b) or 83.2(f).
(d) When Time Begins To Run. In computing any period of time
prescribed or allowed by these rules, or by order of court, or by any
applicable statute, the period of time shall commence to run on the day
after the service of a paper or the filing of a court order, unless
otherwise particularly specified in these rules.
28 USC TITLE III. PLEADINGS AND MOTIONS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 7. Pleadings Allowed; Form of Motions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Pleadings. There shall be a complaint and an answer; and if the
answer contains a counterclaim or offset or a plea of fraud, there shall
be a reply thereto. There shall be such third-party pleadings as are
permitted by Rule 14. No other pleading shall be allowed, except that
the court may order a reply to an answer, or a responsive pleading to a
third-party complaint or answer.
(b) Motions and Other Papers. (1) An application to the court for an
order shall be by motion which, unless made during a hearing or trial,
shall be made in writing, shall state with particularity the grounds
therefor, and shall set forth the relief or order sought, and shall
comply with Appendix H. Any motion, objection, or response may be
accompanied by a brief or memorandum, and, if necessary, by supporting
affidavits that shall be attached to the motion. Any motion may be
accompanied by a proposed order.
(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. See Rules 10(a), 82, 83.1.
(3) All motions shall be signed in accordance with Rule 11. See Rule
83.
(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and
exceptions for insufficiency of a pleading shall not be used.
28 USC Rule 8. General Rules of Pleading
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, 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 to which the pleader is entitled. Relief in the alternative or
of several different types may be demanded.
(b) Defenses; Form of Denials. A party shall state in short and
plain terms the party's defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies. If the party
is without knowledge or information sufficient to form a belief as to
the truth of an averment, the party shall so state and this has the
effect of a denial. Denials shall fairly meet the substance of the
averments denied. When a pleader intends in good faith to deny only a
part or a qualification of an averment, the pleader shall specify so
much of it as is true and material and shall deny only the remainder.
Unless the pleader intends in good faith to controvert all the averments
of the preceding pleading, the pleader may make denials as specific
denials of designated averments or paragraphs, or the pleader may
generally deny all the averments except such designated averments or
paragraphs as the pleader expressly admits; but, when the pleader does
so intend to controvert all its averments, including averments of the
grounds upon which the court's jurisdiction depends, the pleader may do
so by general denial subject to the obligations set forth in Rule 11.
(c) Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction, arbitration
and award, discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, laches, license, payment, release, res
judicata, statute of frauds, statute of limitations, waiver, and any
other matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court, 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 or equitable 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.
28 USC Rule 9. Pleading Special Matters
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(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, a party shall do so by specific
negative averment, which shall include such supporting particulars as
are peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence
of conditions precedent, it is sufficient to aver generally that all
conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act. In pleading an official document or
official act it is sufficient to aver that the document was issued or
the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be
considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.
(h) Special Matters Required in Complaint. The complaint shall
include:
(1) Action by Other Tribunal or Body. Any action on the claim taken
by Congress or by any department or agency of the United States, or in
any judicial proceeding, including any in the Tax Court of the United
States.
(2) Citations of Statutes, Regulations, Orders. A clear citation of
the Act of Congress, regulation of an executive department or agency, or
Executive order of the President, where the claim is founded upon such
an act, regulation, or order.
(3) Contracts or Treaties. If the claim is founded upon a contract
or treaty with the United States, a description of the contract or
treaty sufficient to identify it. In addition, the plaintiff shall
plead the substance of those portions of the contract or treaty on which
the plaintiff relies, or shall annex to the complaint a copy of the
contract or treaty, indicating the provisions thereof on which the
plaintiff relies.
(4) Patent Suits. In any patent suit, the claim or claims of the
patent or patents alleged to be infringed.
(5) Ownership of Claim; Assignment. If the plaintiff is the owner by
assignment or other transfer of the claim, in whole or in part, when and
upon what consideration the assignment or transfer was made.
(6) Tax Refund Suits. In any action for refund of federal tax, for
each tax year or period for which a refund is sought, the amount, date,
and place of each payment to be refunded; the date and place the
return, if any, was filed; the name and address of the taxpayer or
taxpayers appearing on the tax return; the date and place the claim for
refund was filed; the name and address of the taxpayer or taxpayers
appearing on the claim; and the identification number shown on the
return for each plaintiff.
28 USC Rule 10. Form of Pleadings
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(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, see
Rule 20(a), the United States being designated as the party defendant in
every case, but in other pleadings and other papers it is sufficient to
state the name of the first party on each side with an appropriate
indication of other parties. But see Rule 72. In pleadings and papers
other than the complaint, the name of the judge assigned to the case
shall appear under the docket number.
(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
unless otherwise indicated, but the adverse party shall not be deemed to
have admitted the truth of the allegations in such exhibit merely
because the adverse party has failed to deny them explicitly.
(As amended July 15, 1992.)
28 USC Rule 11. Signing of Pleadings, Motions, and Other Papers;
Sanctions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Every pleading, motion, and other paper of a party represented by an
attorney shall be signed by or for the attorney of record in the signing
attorney's own individual name, whose address and telephone number shall
be stated. See Rule 81(d)(2). A party who is not represented by an
attorney shall sign the pleading, motion, or other paper and state the
party's address. Any stipulation for a money judgment shall be signed
by an authorized representative of the Attorney General. Except when
otherwise specifically provided by rule or statute, pleadings need not
be verified or accompanied by affidavit. The rule in equity that the
averments of an answer under oath must be overcome by the testimony of
two witnesses or of one witness sustained by corroborating circumstances
is abolished. The signature of an attorney or party constitutes a
certificate by the attorney or party that the attorney or party has read
the pleading, motion, or other paper; that to the best of the
attorney's or party's knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification,
or reversal of existing law; and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. If a pleading, motion, or
other paper is not signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention of the pleader or
movant. If a pleading, motion, or other paper is signed in violation of
this rule, the court, upon motion or upon its own initiative, shall
impose upon the person who signed it, a represented party, or both, an
appropriate sanction, which may include an order to pay to the other
party or parties the amount of the reasonable expenses incurred because
of the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.
28 USC Rule 12. Defenses and Objections -- When and How Presented -- By
Pleading or Motion -- Motion for Judgment on the Pleadings
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) When Presented. The United States shall file its answer to the
complaint within 60 days after the service of the pleading in which the
claim is asserted. After service of an answer containing a
counterclaim, offset, or plea of fraud, plaintiff shall have 20 days
within which to file a reply to the counterclaim, offset or plea of
fraud. If a reply to an answer or a responsive pleading to a
third-party complaint or answer is ordered by the court, the reply or
responsive pleading shall be filed within 20 days after service of the
order unless the order otherwise directs. The service of a motion
permitted under this rule or Rule 56 alters these periods of time, as
follows, unless a different time is fixed by order of the court: (1) if
the court denies or partially denies or partially allows the motion or
postpones its disposition until the trial on the merits or the motion is
withdrawn, the responsive pleading shall be filed within 10 days after
notice of the court's action, or the date on which the motion is
withdrawn, or by the date the response otherwise would have been due,
whichever is later; (2) if the court grants a motion for a more
definite statement, the responsive pleading shall be filed 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, 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) insufficiency of
process; (4) failure to state a claim upon which relief can be granted.
A motion making any of these defenses shall be made before pleading if
a further pleading is permitted. No defense or objection is waived by
being joined with one or more other defenses or objections in a
responsive pleading or motion. If a pleading sets forth a claim for
relief to which the adverse party is not required to serve a responsive
pleading, the adverse party may assert at the trial any defense in law
or fact to that claim for relief. If, on a motion asserting the defense
numbered (4) 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)-(4) 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 the party's
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 that 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) of this rule
on any of the grounds there stated.
(h) Waiver of Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person or
insufficiency of process is waived (A) if omitted from a motion in the
circumstances described in subdivision (g) of this rule, 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, and an objection of failure to state a legal defense to a
claim, may be made in any pleading permitted or ordered under Rule 7(a),
or by motion for judgment on the pleadings, or at the trial on the
merits.
(3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.
(i) Suspension of Discovery. The filing of a motion pursuant to Rule
12(b), 12(c) or 56 shall not suspend discovery unless for good cause
shown on separate motion the court in its discretion so orders.
28 USC Rule 13. Counterclaim
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Compulsory Counterclaims. The answer shall state as a
counterclaim any claim which, at the time of serving the answer, the
defendant has against any plaintiff, 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 answer need not
state the claim if at the time the action was commenced the claim was
the subject of another pending action.
(b) Permissive Counterclaims. The answer 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. (Not used.)
(e) Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the defendant after serving its
pleading may, with the permission of the court, be presented as a
counterclaim by supplemental pleading.
(f) Omitted Counterclaim. When the defendant fails to set up a
counterclaim through oversight, inadvertence or excusable neglect, or
when justice requires, it may by leave of court set up the counterclaim
by amendment.
(g) Cross-Claim Against Co-Party. (Not used.)
(h) Joinder of Additional Parties. (Not used.)
(i) Separate Trials; Separate Judgments. If the court orders
separate trials as provided in Rule 42(b), judgment on a counterclaim
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.
28 USC Rule 14. Third-Party Practice
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) When Third Parties May Be Brought In. (1) The court, on its own
motion or on the motion of a party, may notify any person with legal
capacity to sue and be sued and who is alleged to have an interest in
the subject matter of any pending action to appear as a party and assert
an interest, if any, therein.
(2) On motion of the United States, the court may summon any third
person against whom the United States may be asserting a claim or
contingent claim for the recovery of money paid by the United States in
respect of the transaction or matter which constitutes the subject
matter of the suit to appear as a party and defend the third party's
interest, if any, in such suit.
(3) A motion made by the plaintiff under subdivision (a)(1) hereof
shall be filed at the time the complaint is filed. Copies and service
of such a motion shall be as provided in Rules 3(c) and 4. A motion
made by the United States under subdivision (a)(1) or (2) hereof shall
be filed on or before the date on which the answer is required to be
filed. For good cause shown, the court may allow any such motion to be
filed at a later time.
(b) Content of Motion for Notice to Third Parties. A party desiring
to bring in a third party pursuant to subdivision (a)(1) of this rule
shall file with the clerk a written motion which shall:
(1) state the name and address of such person, if known;
(2) if the address of such person is unknown, or if such person
resides outside the jurisdiction of the United States, or there is good
reason why service on such person cannot be had, be accompanied by an
affidavit showing why service cannot be had on such person and stating
the last-known address of such person; and
(3) set forth the interest which such person appears to have in the
action.
(c) Issuance and Service of Notice. (1) If the court, on its own
motion or on the motion of a party, orders any third person to be
notified pursuant to subdivision (a)(1) of this rule, the clerk shall
issue an original and 1 copy of the notice for each third person to be
notified. The notice shall contain the names of the parties and a
statement of the time within which such third person may appear and
shall state that in case the third party fails to appear and assert a
claim in the subject matter of the action, the claim or interest of the
third party therein shall forever be barred. The notice shall indicate
that it is accompanied by a copy of the pleadings, which shall be
attached by the moving party.
(2) Upon the issuance of such notice upon motion of a party, the
notice shall be delivered by the clerk to the moving party, who shall at
the moving party's expense cause the same to be served on the person to
be notified by registered or certified mail, return receipt requested,
with the moving party to file with the clerk the return of such service,
which return shall include the copy of the notice with return receipt
attached.
(3) When the court directs the issuance of a notice to a third person
on its own motion, each of the existing parties shall, on request of the
clerk, deliver to the clerk a sufficient number of copies of pleadings
filed by such party to provide the third party to be notified with a
copy of each of such pleadings, and the clerk shall forthwith issue such
notice as specified in subdivision (c)(1) of this rule and shall forward
the same with accompanying copies of the pleadings to the Attorney
General for service as provided in subdivision (c)(2) of this rule.
(4) When service of the notice required by subdivision (c)(1) of this
rule is to be effected upon a third person in a foreign country, service
of the notice may be made by the moving party or the court, as required
by subdivisions (c)(2) and (3) of this rule, and proof of such service
may be made in the manner authorized by Rule 4(i) of the Federal Rules.
(d) Service of Notice by Publication. Where, upon motion of a party,
the court under subdivision (a)(1) of this rule directs the issuance of
a notice to a person upon whom service cannot be had, the moving party
shall cause such notice to be published in a newspaper of general
circulation in a place designated in the order, for a specified time,
not less than once in each of 4 successive weeks. On or before the day
of the first publication, the moving party shall send a copy of the
notice by registered or certified mail to such person at such person's
last-known address and shall file with the clerk an affidavit showing
such mailing. The moving party shall procure an affidavit of the
publisher showing that publication of the notice has been had as
required by the order and shall file such affidavit with the clerk, who
shall make an entry on the docket that publication has been had. The
affidavit of mailing and the publisher's affidavit, together with the
clerk's entry, shall constitute proof of service by publication.
Service shall be deemed complete on the date of the last publication.
The costs of such service by publication shall be paid by the party at
whose instance it was made.
(e) Contents of Motion for Summons to Third Parties. When the United
States is asserting a claim for damages or other demand against a third
person for the recovery of money paid by the United States in respect of
the transaction or matter which constitutes the subject matter of any
pending action and desires to have such third person brought in pursuant
to subdivision (a)(2) of this rule, it shall file a written motion,
which shall comply with the requirements of subdivision (b) of this rule
and which shall be accompanied by an appropriate pleading setting forth
the claim or contingent claim which it is asserting against such third
person.
(f) Issuance and Service of Summons. If the court, on motion of the
United States, summons a third person pursuant to subdivision (a)(2) of
this rule to answer a claim or contingent claim asserted by the United
States, the clerk shall issue an original and 1 copy of such summons for
each person to be summoned. The summons shall contain the names of the
parties and a statement of the time within which the party summoned is
required to appear and answer. The summons shall also state that the
United States is asserting a claim against such person, as described in
the accompanying pleading of the United States, and shall further state
that if such third person fails to appear and answer the claim asserted
by the United States, judgment pro confesso may be entered against such
third person upon the claim of the United States to the same extent as
if said third person had appeared and admitted the truth of all the
allegations made on behalf of the United States. The summons shall
indicate that it is accompanied by a copy or copies of all pleadings
filed in said action, naming such pleadings which shall be attached by
the moving party. Upon issuance of the summons, the clerk shall deliver
the summons to the Attorney General for personal service and the return
of such service shall be made directly to the clerk.
(g) Pleadings of Third Parties. Within 40 days after service upon a
third person of a notice or summons issued pursuant to this rule, such
person may file a complaint setting forth the person's interest, if any,
in the subject matter of the action and the nature of the person's claim
against the United States, or an answer, or both, which pleadings shall
comply with the requirements of these rules with respect to the filing
of original complaints and answers, except that only an original and 2
copies of a complaint are to be filed with proof of service.
28 USC Rule 15. Amended and Supplemental Pleadings
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Amendments. A party may amend the party's own pleadings once as
a matter of course at any time before a response is served or, if the
response is one to which no further pleading is permitted and the action
has not been scheduled for trial, the party may so amend it at any time
within 20 days after it is served. Otherwise a party may amend the
party's own pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires. A party shall plead in response to an amended pleading within
the time remaining for response to the original pleading or within 10
days after service of the amended pleading, whichever period may be the
longer, unless the court otherwise orders.
(b) Amendments To Conform to the Evidence. When issues not raised by
the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings to
be amended and shall do so freely when the presentation of the merits of
the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice
him in maintaining his 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. Whenever 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, the amendment relates back to the date of the original
pleading.
(d) Supplemental Pleadings. Upon motion of a party the court may,
upon reasonable notice and upon such terms as are just, permit the party
to file a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading
sought to be supplemented. Permission may be granted even though the
original pleading is defective in its statements of a claim for relief
or defense. If the court deems it advisable that the adverse party
plead to the supplemental pleading, it shall so order, specifying the
time therefor.
(e) Form and Filing. Every amendment to a pleading shall (1) include
so much of the prior pleading as may be required to show clearly how the
pleading is to stand amended; (2) comply with the rules for caption,
designation, and signature; (3) carry designation as the first, second,
or subsequent amended pleading; and (4) comply with the requirements of
Rules 82 and 83, except that upon a proper showing, by motion filed with
the court or during pretrial conference or at trial, that the proposed
amendments are minor in character or of such brevity as to warrant the
use of pasters or interlineation, the court may waive the requirements
of this subdivision (e)(4) of this rule.
28 USC Rule 16. Pretrial Conferences; Scheduling; Management
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Pretrial Conferences; Objectives. (1) All procedures before
trial shall be governed by Appendix G. (2) In any action, the court in
its discretion by appropriate order may direct the attorneys for the
parties and any unrepresented parties to confer and/or exchange:
(i) lists containing the names and addresses of all witnesses they
respectively expect to call at trial;
(ii) lists of the documentary exhibits which they respectively intend
to offer at trial;
(iii) written statements of material matters of fact as to which they
respectively believe there is no substantial controversy;
(iv) written statements of issues of fact and law they respectively
believe are in dispute; and
(v) such other matters as may be directed by the court.
(3) In any action, the court may in its discretion direct the
attorneys for the parties and any unrepresented parties to appear before
it for a conference, or conferences, before trial or to arrange a
telephone conference, or conferences for such purposes as:
(i) expediting the disposition of the action;
(ii) establishing early and continuing control so that the case will
not be protracted because of lack of management;
(iii) discouraging wasteful pretrial activities;
(iv) improving the quality of the trial through more thorough
preparation;
(v) facilitating the settlement of the case; and
(vi) such other matters as may aid in the disposition of the action.
(b) Scheduling and Planning. After the initial status report or
conference, the court shall enter a scheduling order that limits the
time:
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include:
(4) the date or dates for conferences before trial, a final pretrial
conference, and trial; and
(5) any other matters appropriate in the circumstances of the case.
(c) Subjects To Be Discussed at Pretrial Conferences. The
participants at any conference under this rule may consider and take
action with respect to:
(1) the formulation and simplification of the issues, including the
elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof, stipulations regarding the
authenticity of documents, and advance rulings from the court on the
admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence;
(5) the identification of witnesses and documents, the need and
schedule for filing and exchanging pretrial briefs, and the date or
dates for further conferences and for trial;
(6) the advisability of referring matters to a master;
(7) the possibility of settlement or the use of extrajudicial
procedures to resolve the dispute;
(8) the form and substance of the pretrial order;
(9) the disposition of pending motions;
(10) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual proof
problems; and
(11) such other matters as may aid in the disposition of the action.
At least one of the attorneys for each party participating in any
conference before trial shall have authority to enter into stipulations
and to make admissions regarding all matters that the participants may
reasonably anticipate may be discussed.
(d) Final Pretrial Conference. Any final pretrial conference shall
be held as close to the time of trial as reasonable under the
circumstances. The participants at any such conference shall formulate
a plan for trial, including the program for facilitating the admission
of evidence. The conference shall be attended by at least one of the
attorneys who will conduct the trial for each of the parties and by any
unrepresented parties.
(e) Pretrial Orders. After any conference held pursuant to this
rule, an order shall be entered reciting the action taken, except that
after the final pretrial conference the court may recite the contents of
its order, other than scheduling matters, on the record. The pretrial
order shall control the subsequent course of the action unless modified
by a subsequent order. The order following a final pretrial conference
shall be modified only to prevent manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a
scheduling or pretrial order, or if no appearance is made on behalf of a
party at a scheduling or pretrial conference, or if a party or party's
attorney is substantially unprepared to participate in the conference,
or if a party or party's attorney fails to participate in good faith,
the court, upon motion or its own initiative, may make such orders with
regard thereto as are just, and among others any of the orders provided
in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other
sanction, the court shall require the party or the attorney representing
the party or both to pay the reasonable expenses incurred because of any
noncompliance with this rule, including attorneys' fees, unless the
court finds that the noncompliance was substantially justified or that
other circumstances make an award of expenses unjust.
The United States Claims Court (now United States Court of Federal
Claims) is sensitive to rising litigation costs and the delay often
inherent in the traditional judicial resolution of complex legal claims.
While the mandates of due process inevitably place limits on how
expeditious a trial of a complex issue can be, there are no such limits
when parties voluntarily seek noncompulsory settlements. Since justice
delayed is justice denied, it is an obligation of this court to further
the settlement process in all ways consistent with the ultimate
guarantee of a fair and complete hearing to those disputes that cannot
be resolved by mutual consent. Courts are institutions of last resort
and while preserving that ''last resort'' as a sacred trust, they should
insure its use only when other methods of dispute resolution have
failed. In response to these concerns, the court is implementing two
methods of Alternative Dispute Resolution: Settlement Judges and
Mini-Trials. The methods to be used in the Claims Court (now Court of
Federal Claims) are described in the ''Notice to Counsel'' attached to
this Order.
IT IS ORDERED, effective this date, that the Notice to Counsel shall
be distributed as follows:
(1) to counsel for all parties in cases currently pending before the
Claims Court (now Court of Federal Claims), and
(2) to counsel for all parties in cases filed after the date of this
Order.
April 15, 1987
By the Court Loren A. Smith Chief Judge
In response to rising litigation costs and the delay often inherent
in the traditional judicial resolution of complex legal claims, the
United States Claims Court is implementing two methods of alternative
dispute resolution (ADR) for use in appropriate cases. The Claims Court
encourages all reasonable avenues toward settlement of disputes,
including the usual dialogue between the trial judge and counsel.
Implementation by the court of these ADR methods does not preclude use
by the parties of other ADR techniques which do not require court
involvement.
The ADR methods outlined below are both voluntary and flexible, and
should be employed early in the litigation process in order to minimize
discovery. Both parties must agree to use the procedures. Because
these procedures are designed to promote settlement and involve the
application of judicial resources, however, the court views their use as
most appropriate where the parties anticipate a lengthy discovery period
followed by a protracted trial. These requirements typically will be
met where the amount in controversy is greater than $100,000 and trial
is expected to last more than one week.
When both counsel agree and wish to employ one of the ADR methods
offered, they should notify the presiding judge of their intent as early
as possible in the proceedings, or concurrently with submission of the
Joint Preliminary Status Report required by Appendix G. The presiding
judge will consider counsels' request and make the final decision
whether to refer the case to ADR. If ADR is considered appropriate, the
presiding judge will refer the case to the Office of the Clerk for
assignment to a Claims Court judge who will preside over the ADR
procedure adopted. The ADR judge will exercise ultimate authority over
the form and function of each method within the general guidelines
adopted by the court. Accordingly, the parties will promptly meet with
the assigned ADR judge to establish a schedule and procedures for the
technique chosen. Should either of these techniques fail to produce a
satisfactory settlement, the case will be returned to the presiding
judge's docket. Except as allowed by Federal Rule of Evidence 408, all
representations made in the course of the selected ADR proceeding are
confidential and may not be used for any reason in subsequent
litigation.
I. Settlement Judge
In many circumstances, settlement can be fostered by a frank,
in-depth discussion of the strengths and weaknesses of each party's case
before a neutral advisor. Although this alternative can be used
successfully at any stage of the litigation, it is suggested that it be
adopted as early in the process as feasible to eliminate unnecessary
cost and delay. Moreover, the agenda for these meetings with the
settlement judge should remain flexible to accommodate the requirements
of the individual cases. Through this ADR method, the parties will gain
the benefit of a judicial assessment of their settlement positions,
without jeopardizing their ability to obtain an ''impartial'' resolution
of their case by the presiding judge should settlement not be reached.
II. Mini-Trial
The mini-trial is a highly flexible, expedited procedure where each
party presents an abbreviated version of its case to a neutral advisor
(a judge other than the presiding judge), who then assists the parties
to negotiate a settlement. Because the mini-trial similarly is designed
to eliminate unnecessary cost and delay, it should be adopted before
extensive discovery commences. This ADR technique, however, should be
employed only in those cases which involve factual disputes and are
governed by well-established principles of law. Cases which present
novel issues of law or where witness credibility is a major factor are
handled more effectively by traditional judicial methods.
Although the procedures for each mini-trial should be designed to
meet the needs of the individual case, the following guidelines are
appropriate in most circumstances:
(a) Time Frame -- The mini-trial should be governed by strict time
limitations. The entire process, including discovery and trial, should
conclude within one to three months.
(b) Participants -- Each party should be represented by an individual
with authority to make a final recommendation as to settlement and may
be represented by counsel. The participation of senior
management/agency officials (principals) with first-hand knowledge of
the underlying dispute is highly recommended.
(c) Discovery -- Any discovery conducted should be expedited, limited
in scope where feasible, and scheduled to conclude at least two weeks
prior to the mini-trial. Counsel bear a special responsibility to
conduct discovery expeditiously and voluntarily in a mini-trial
situation. Any discovery disputes which the parties cannot resolve will
be handled by the mini-trial judge. Discovery taken for the purpose of
the mini-trial may be used in further judicial proceedings if settlement
is not achieved.
(d) Pre-Hearing Matters -- At the close of discovery, the parties
should meet with the mini-trial judge for a pre-hearing conference. The
parties normally should provide for exchange of brief written submittals
summarizing the parties' positions and narrowing the issues in advance
of the hearing. The submittal should include a discussion of both
entitlement and damages. Contemporaneously with the exchange of the
written submittals, the parties should finalize any stipulations needed
for the hearing and, where applicable, exchange witness lists and
exhibits. The parties also should establish final procedures for the
hearing.
(e) Hearing -- The hearing itself is informal and should generally
not exceed one day. The parties may structure their case to include
examination of witnesses, the use of demonstrative evidence, and oral
argument by counsel. Because the rules of evidence and procedure will
not apply, witnesses will be permitted to relate their testimony in the
narrative, objections will not be permitted, and a transcript of the
hearing will not be made. The role of the mini-trial judge similarly is
flexible and may provide for active questioning of witnesses. Each
party should present a closing statement to facilitate the post-hearing
settlement discussions.
(f) Post-Hearing Settlement Discussions -- At the conclusion of the
informal hearing, the principals and/or counsel meet to discuss
resolution of the dispute. The mini-trial judge may play an active role
in the discussions, or be available to render an advisory opinion
concerning the merits of the claim.
III. Comment
The court welcomes further input from the bar and general public on
this Notice to Counsel and General Order No. 13. This input will be
considered, along with the initial practical experience under the Order
in a continuing effort to further the effective administration of
justice.
28 USC TITLE IV. PARTIES
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 17. Parties Plaintiff and Defendant; Capacity
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Real Party in Interest. Every action shall be prosecuted in the
name of the real party in interest. An executor, administrator,
guardian, bailee, trustee of an express trust, a party with whom or in
whose name a contract has been made for the benefit of another, or a
party authorized by statute may sue in that person's own name without
joining the party for whose benefit the action is brought. No action
shall be dismissed on the ground that it is not prosecuted in the name
of the real party in interest until a reasonable time has been allowed
after objection for ratification of commencement of the action by, or
joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same effect as if
the action had been commenced in the name of the real party in interest.
(b) Capacity To Sue or Be Sued. The capacity of an individual, other
than one acting in a representative capacity, to sue or be sued shall be
determined by the law of the individual's domicile. The capacity of a
corporation to sue or be sued shall be determined by the law under which
it was organized. A partnership or other unincorporated association
which has no capacity by law of its state may sue or be sued in its
common name for the purpose of enforcing for or against it a substantive
right existing under the Constitution or laws of the United States. The
capacity to sue or be sued of a representative appointed by a judicial
tribunal shall be determined by the order of the judicial tribunal
appointing or authorizing the representative and the law of the state or
other authority under which the judicial tribunal exercises
jurisdiction.
(c) Infants or Incompetent Persons. Whenever an infant or
incompetent person has a representative, such as a general guardian,
committee, conservator, or other like fiduciary, the representative may
sue or defend on behalf of the infant or incompetent person. If an
infant or incompetent person does not have a duly appointed
representative the infant or incompetent may sue by the infant's or
incompetent's next friend or by a guardian ad litem.
28 USC Rule 18. Joinder of Claims and Remedies
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, or third-party claim, may join, either as
independent or as alternate claims, as many claims as the party has
against an opposing party.
(b) Joinder of Remedies. Whenever a claim is one heretofore
cognizable only after another claim has been prosecuted to a conclusion,
the two claims may be joined in a single action; but the court shall
grant relief in that action only in accordance with the relative
substantive rights of the parties.
28 USC Rule 19. Joinder of Persons Needed for Just Adjudication
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Persons To Be Joined If Feasible. Subject to, and in the manner
provided for by Rule 14, a person who is subject to service of process
and whose joinder will not deprive the court of jurisdiction over the
subject matter of the action shall be joined as a party in the action
if: (1) in the person's absence complete relief cannot be accorded
among those already parties; or (2) the person claims an interest
relating to the subject of the action and is so situated that the
disposition of the action in the person's absence may (i) as a practical
matter impair or impede the person's ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the person's claimed interest. If the person
has not been so joined, the court shall order that the person be made a
party. If the person should join as a plaintiff but refuses to do so,
the person may be made an involuntary plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. If a
person as described in subdivision (a)(1)-(2) of this rule cannot be
made a party, the court shall determine whether in equity and good
conscience the action should proceed among the parties before it, or
should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include: (1)
to what extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties; (2) the extent to
which, by protective provisions in the judgment, by the shaping of
relief, or other measure, the prejudice can be lessened or avoided; (3)
whether a judgment rendered in the person's absence will be adequate;
(4) whether the plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (a)(1)-(2) of this rule who are not
joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to provisions
of Rule 23.
28 USC Rule 20. Permissive Joinder of Parties
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally, or in
the alternative in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question
of law or fact common to all these persons will arise in the action. A
plaintiff need not be interested in obtaining all the relief demanded.
Where two or more plaintiffs demand separate judgments, the complaint
shall state the judgment demanded by each plaintiff, shall list the
plaintiffs alphabetically in the caption on the basis of surnames where
individuals are involved, and shall assign to each plaintiff demanding a
separate judgment a number to be used as a distinguishing subnumeral,
e.g., (1), (2), etc., to the docket number of the case. Judgment may be
given for one or more of the plaintiffs according to their respective
rights to relief.
(1) To add additional plaintiff(s) to a pending action, counsel for
plaintiff(s) shall file a Notice of Additional Plaintiff(s), listing the
plaintiff(s). The notice shall utilize the caption of the original
complaint. The plaintiff(s) to be added shall be listed alphabetically
in the notice and assigned a subnumeral that continues the subnumerals
of the complaint or preceding amended complaint, so that the subnumerals
are consecutive throughout.
(2) The written consent of these individuals added to any pending
action brought under the Fair Labor Standards Act shall accompany the
notice.
(b) Separate Trials. The court may make such orders as will prevent
a party from being embarrassed, delayed, or put to expense, and may
order separate trials or make other orders to prevent delay or
prejudice.
The Fair Labor Standards Act, referred to in subd. (a)(2), probably
means the Fair Labor Standards Act of 1938, act June 25, 1938, ch. 676,
52 Stat. 1060, as amended, which is classified principally to chapter 8
( 201 et seq.) of Title 29, Labor. For complete classification of this
Act to the Code, see section 201 of Title 29 and Tables.
28 USC Rule 21. Misjoinder and Non-Joinder of Parties
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or of its own initiative at any stage of the action and on such
terms as are just. Any claim against a party may be severed and
proceeded with separately. To add plaintiffs, see Rule 20(a)(1)-(2).
28 USC Rule 23. Class Actions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
A motion to certify a class action shall be filed with the complaint
and comply with Rule 3(c), with service to be made as provided in Rule
4. The court shall determine in each case whether a class action may be
maintained and under what terms and conditions.
28 USC Rule 24. Intervention
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of the United
States confers an unconditional right to intervene; or (2) when the
applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede
the applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: (1) when a statute of the United
States confers a conditional right to intervene; or (2) when an
applicant's claim or defense and the main action have a question of law
or fact in common. In exercising its discretion the court shall
consider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
(c) Procedure. A person desiring to intervene shall file with the
court a motion to intervene. The motion shall: (1) state the grounds
therefor; (2) be accompanied by a pleading setting forth the claim or
defense for which intervention is sought; and (3) be served in
accordance with Rule 5. The same procedure shall be followed when a
statute of the United States gives a right to intervene.
28 USC Rule 25. Substitution of Parties
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Death. (1) If a party dies and the claim is not thereby
extinguished, the court may order substitution of the proper parties.
The motion for substitution may be made by any party or by the
successors or representatives of the deceased party, and shall be served
as provided in Rule 5. Unless the motion for substitution is made not
later than 90 days after the death is suggested upon the record by
service of a statement of the fact of the death as provided herein for
the service of the motion, the action shall be dismissed as to the
deceased party.
(2) In the event of the death of one or more of the plaintiffs in an
action in which the right sought to be enforced survives only to the
surviving plaintiffs, the action does not abate. The death shall be
suggested upon the record and the action shall proceed in favor of or
against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon
motion served as provided in subdivision (a) of this rule may allow the
action to be continued by or against the party's representative.
(c) Transfer of Interest. In case of any transfer of interest, the
action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party.
Service of the motion shall be made as provided in subdivision (a) of
this rule.
(d) Public Officers; Death or Separation from Office. (Not used.)
28 USC TITLE V. DEPOSITIONS AND DISCOVERY
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 26. General Provisions Governing Discovery
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Discovery Methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things
or permission to enter upon land or other property, for inspection and
other purposes; physical and mental examinations; requests for
admission; and calls.
(b) Discovery Scope and Limits. Unless otherwise limited by order of
the court in accordance with these rules, the scope of discovery is as
follows:
(1) In General. Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party,
including the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable
matter. It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in
subdivision (a) of this rule shall be limited by the court if it
determines that: (i) the discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other source that is more
convenient, less burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity by discovery in the action to obtain
the information sought; or (iii) the discovery is unduly burdensome or
expensive, taking into account the needs of the case, the amount in
controversy, the limitations on the parties' resources, and the
importance of the issues at stake in the litigation. The court may act
upon its own initiative after reasonable notice or pursuant to a motion
under subdivision (c) of this rule.
(2) Trial Preparation: Materials. Subject to the provisions of
subdivision (b)(3) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under subdivision
(b)(1) of this rule and prepared in anticipation of litigation or for
trial by or for another party or by or for that other party's
representative (including that other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that
party. Upon request, a person not a party may obtain without the
required showing a statement concerning the action or its subject matter
previously made by that person. If the request is refused, the person
may move for a court order. The provisions of Rule 37(a)(4) apply to
the award of expenses incurred in relation to the motion. For purposes
of this paragraph, a statement previously made is (A) a written
statement signed or otherwise adopted or approved by the person making
it, or (B) a stenographic, mechanical, electrical, or other recording,
or a transcription thereof, which is a substantially verbatim recital of
an oral statement by the person making it and contemporaneously
recorded.
(3) Trial Preparation: Experts. Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of
subdivision (b)(1) of this rule and acquired or developed in
anticipation of litigation or for trial, may be obtained only as
follows:
(A)(i) A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of the
grounds for each opinion. (ii) Upon motion, the court may order further
discovery by other means, subject to such restrictions as to scope and
such provisions, pursuant to subdivision (b)(3)(C) of this rule,
concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial, only as provided in Rule
35(b) or upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.
(C) Unless manifest injustice would result: (i) the court shall
require that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subdivisions
(b)(3)(A)(ii) and (b)(3)(B) of this rule; and (ii) with respect to
discovery obtained under subdivision (b)(3)(A)(ii) of this rule the
court may require, and with respect to discovery obtained under
subdivision (b)(3)(B) of this rule the court shall require, the party
seeking discovery to pay the other party a fair portion of the fees and
expenses reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(c) Protective Orders. Upon motion by a party or by the person from
whom discovery is sought, see Appendix G 8, and for good cause shown,
the court may make any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following: (1) that the discovery
not be had; (2) that the discovery may be had only on specified terms
and conditions, including a designation of the time or place; (3) that
the discovery may be had only by a method of discovery other than that
selected by the party seeking discovery; (4) that certain matters not
be inquired into, or that the scope of the discovery be limited to
certain matters; (5) that discovery be conducted with no one present
except persons designated by the court; (6) that a deposition after
being sealed be opened only by order of the court; (7) that a trade
secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
court. If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just, order
that any party or person provide or permit discovery. The provisions of
Rule 37(a)(4) apply to the award of expenses incurred in relation to the
motion.
(d) Sequence and Timing of Discovery. Unless the court upon motion,
for the convenience of parties and witnesses and in the interests of
justice, orders otherwise, methods of discovery may be used in any
sequence and the fact that a party is conducting discovery, whether by
deposition or otherwise, shall not operate to delay any other party's
discovery.
(e) Supplementation of Responses. A party who has responded to a
request for discovery with a response that was complete when made is
under no duty to supplement the party's response to include information
thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the party's
response with respect to any question directly addressed to (A) the
identity and location of persons having knowledge of discoverable
matters, and (B) the identity of each person expected to be called as an
expert witness at trial, the subject matter on which the expert witness
is expected to testify, and the substance of the expert witness'
testimony.
(2) A party is under a duty seasonably to amend a prior response if
the party obtains information upon the basis of which (A) the party
knows that the response was incorrect when made or (B) the party knows
that the response though correct when made is no longer true and the
circumstances are such that a failure to amend the response is in
substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses.
(f) Discovery Conference. At any time after commencement of an
action the court may direct the attorneys for the parties to appear
before it for a conference on the subject of discovery. The court may
do so upon motion by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made
a reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion. Each party and each party's attorney
are under a duty to participate in good faith in the framing of a
discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or
additions to matters set forth in the motion shall be served not later
than 10 days after service of the motion.
Following the discovery conference, the court may enter an order
tentatively identifying the issues for discovery purposes, establishing
a plan and schedule for discovery, setting limitations on discovery, if
any; and determining such other matters, including the allocation of
expenses, as are necessary for the proper management of discovery in the
action. An order may be altered or amended whenever justice so
requires.
Subject to the right of a party who properly moves for a discovery
conference to prompt convening of the conference, the court may combine
the discovery conference with a pretrial conference authorized by Rule
16.
(g) Signing of Discovery Requests, Responses, and Objections. Every
request for discovery or response or objection thereto made by a party
represented by an attorney shall be signed by the attorney of record in
such attorney's individual name, whose address shall be stated. A party
who is not represented by an attorney shall sign the request, response,
or objection and state the party's address. The signature of the
attorney or party constitutes a certification that the attorney or party
has read the request, response, or objection and that to the best of the
attorney's or party's knowledge, information, and belief formed after a
reasonable inquiry it is: (1) consistent with these rules and warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law; (2) not interposed for any
improper purpose, such as to harass or to cause unnecessary delay, or
needless increase in the cost of litigation; and (3) not unreasonable
or unduly burdensome or expensive, given the needs of the case, the
discovery already had in the case, the amount in controversy, and the
importance of the issues at stake in the litigation. If a request,
response, or objection is not signed, it shall be stricken unless it is
signed promptly after the omission is called to the attention of the
party making the request, response, or objection, and a party shall not
be obligated to take any action with respect to it until it is signed.
If a certification is made in violation of these rules, the court,
upon motion or upon its own initiative, shall impose upon the person who
made the certification, the party on whose behalf the request, response,
or objection is made, or both, an appropriate sanction, which may
include an order to pay the amount of the reasonable expenses incurred
because of the violation, including a reasonable attorney's fee.
28 USC Rule 27. Discovery To Perfect Complaint or Pending Appeal
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Preliminary Complaint. (1) Complaint. When a plaintiff cannot
state a case with the requisite particularity without an examination of
documents or things or other information in the possession of the United
States, and the plaintiff has been unable upon application to obtain a
sufficient examination of such documents or things or other information,
such plaintiff may file a complaint stating the plaintiff's claim as far
as is in the plaintiff's power. The complaint shall state specifically:
(A) that it is filed under this rule; (B) the subject matter of a
claim cognizable by this court, with as much particularity as plaintiff
can provide; and (C) a description of the documents or things or other
information required as definite as plaintiff can provide. Within 30
days after filing such preliminary complaint, plaintiff shall file a
motion for leave to take depositions upon oral examination or written
questions, to submit requests for admission or written interrogatories,
or for production of documents or things or permission to enter upon
land or other property for inspection and other purposes, or such
combination thereof as may be needed to obtain from the proper
department or agency of the United States such documents or things or
other information as may be deemed necessary.
(2) Order. If plaintiff's motion is allowed, the court by order
shall designate the persons whose depositions may be taken, the subject
matter of the examination, and whether the depositions shall be taken on
oral examination or written interrogatories. The order shall specify
the extent of other discovery permitted, and a date for completion of
all discovery thereunder.
(3) Amended Complaint. Plaintiff shall file an amended complaint
within 30 days after the discovery has been completed. Defendant need
not respond to a preliminary complaint filed under this rule, but shall
answer or otherwise respond to the amended complaint in accordance with
these rules for answering an original complaint. If plaintiff's motion
is not allowed, or if an amended complaint is not filed after the
requested documents or things or other information is furnished or
obtained, defendant shall file such responsive pleading or motion within
such time as the court may direct.
(b) Pending Appeal. If an appeal has been taken from a judgment of
the court or before the taking of an appeal if the time therefor has not
expired, on motion the court may allow the taking of the depositions of
witnesses to perpetuate their testimony for use in the event of further
proceedings in this court. The party who desires to perpetuate the
testimony may file a motion for leave to take the depositions that shows
(1) the names and addresses of persons to be examined and the substance
of the testimony which the party expects to elicit from each and (2) the
reasons for perpetuating their testimony. If the court finds that the
perpetuation of the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions to be taken and
may make orders of the character provided for by Rules 34 and 35, and
thereupon the depositions may be taken and used in the same manner and
under the same conditions as are prescribed in these rules for
depositions.
(c) Perpetuation by Action. (Not used.)
28 USC Rule 28. Persons Before Whom Depositions May Be Taken
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Within the United States. Within the United States or within a
territory or insular possession subject to the jurisdiction of the
United States, depositions shall be taken before an officer authorized
to administer oaths by the laws of the United States or of the place
where the examination is held or before a person appointed by the court.
A person so appointed has power to administer oaths and take testimony.
The term officer as used in Rules 30, 31 and 32 includes a person
appointed by the court or designated by the parties under Rule 29.
(b) In Foreign Countries. In a foreign country, depositions may be
taken: (1) on notice before a person authorized to administer oaths in
the place in which the examination is held, either by the law thereof or
by the law of the United States; or (2) before a person commissioned by
the court and a person so commissioned shall have the power by virtue of
the person's commission to administer any necessary oath and take
testimony; or (3) pursuant to a letter rogatory. A commission or a
letter rogatory shall be issued on application and notice and on terms
that are just and appropriate. It is not requisite to the issuance of a
commission or a letter rogatory that the taking of the deposition in any
other manner is impracticable or inconvenient; and both a commission
and a letter rogatory may be issued in proper cases. A notice or
commission may designate the person before whom the deposition is to be
taken either by name or descriptive title. A letter rogatory may be
addressed ''To the Appropriate Authority in (here name the country).''
Evidence obtained in response to a letter rogatory need not be excluded
merely for the reason that it is not a verbatim transcript or that the
testimony was not taken under oath or for any similar departure from the
requirements for depositions taken within the United States under these
rules.
(c) Disqualification for Interest. No deposition shall be taken
before a person who is a relative or employee or attorney or counsel of
any of the parties, or is a relative or employee of such attorney or
counsel, or is financially interested in the action.
(d) Fees. The party at whose instance the deposition is taken shall
be responsible for the payment of the officer's fees for taking,
transcribing, and returning the deposition.
28 USC Rule 29. Stipulations Regarding Discovery Procedure
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Unless the court orders otherwise, the parties may by written
stipulation (1) provide that depositions may be taken before any person,
at any time or place, upon any notice, and in any manner and when so
taken may be used like other depositions, and (2) modify the procedures
provided by these rules for other methods of discovery, except that
stipulations extending the time provided in Rules 33, 34 and 36 for
responses to discovery may be made only with the approval of the court.
28 USC Rule 30. Depositions upon Oral Examination
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) When Depositions May Be Taken. After commencement of the action,
any party may take the testimony of any person, including a party, by
deposition upon oral examination. Leave of court, granted with or
without notice, must be obtained only if the plaintiff seeks to take a
deposition prior to the expiration of 30 days after service of the
complaint upon the United States. Leave is not required (1) if the
United States has served a notice of taking deposition or otherwise
sought discovery, or (2) if special notice is given as provided in
subdivision (b)(2) of this rule. The attendance of witnesses may be
compelled by subpoena as provided in Rule 45. The deposition of a
person confined in prison may be taken only by leave of court on such
terms as the court prescribes.
(b) Notice of Examination: General Requirements; Special Notice;
Non-Stenographic Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone. (1) A party
desiring to take the deposition of any person upon oral examination
shall give reasonable notice in writing to every other party to the
action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if
known, and, if the name is not known, a general description sufficient
to identify the person or the particular class or group to which the
person belongs. If a subpoena duces tecum is to be served on the person
to be examined, the designation of the materials to be produced as set
forth in the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a deposition by
the plaintiff if the notice (A) states that the person to be examined is
more than 100 miles from the place of trial, or is about to go out of
the United States, or is bound on a voyage to sea, and will be
unavailable for examination unless the person's deposition is taken
before expiration of the 30-day period, and (B) sets forth facts to
support the statement. The plaintiff's attorney shall sign the notice,
and the attorney's signature constitutes a certification by the attorney
that to the best of the attorney's knowledge, information, and belief
the statement and supporting facts are true. The sanctions provided by
Rule 11 are applicable to the certification.
If the party shows that when the party was served with notice under
subdivision (b)(2) of this rule the party was unable through the
exercise of diligence to obtain counsel to represent the party at the
taking of the deposition, the deposition may not be used against the
party.
(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.
(4) The parties may stipulate in writing or the court may upon motion
order that the testimony at a deposition be recorded by other than
stenographic or electronic means. The stipulation or order shall
designate the person before whom the deposition shall be taken and the
manner of recording, preserving and filing the deposition and may
include other provisions to ensure that the recorded testimony will be
accurate and trustworthy. A party may arrange to have a transcription
made at the party's own expense. Any objections under subdivision (c),
any changes made by the witness, the witness' signature identifying the
deposition as the witness' own or the statement of the officer that is
required if the witness does not sign, as provided in subdivision (e) of
this rule, and the certification of the officer required by subdivision
(f) of this rule shall be set forth in a writing to accompany a
deposition recorded by non-stenographic means.
(5) The notice to a party deponent may be accompanied by a request
made in compliance with Rule 34 for the production of documents and
tangible things at the taking of the deposition. The procedure of Rule
34 shall apply to the request.
(6) A party may in the party's notice and in a subpoena name as the
deponent a public or private corporation or a partnership or association
or governmental agency and describe with reasonable particularity the
matters on which examination is requested. In that event, the
organization so named shall designate one or more officers, directors,
or managing agents, or other persons who consent to testify on its
behalf, and may set forth, for each person designated, the matters on
which each person will testify. A subpoena shall advise a non-party
organization of its duty to make such a designation. The persons so
designated shall testify as to matters known or reasonably available to
the organization. Subdivision (b)(6) of this rule does not preclude
taking a deposition by any other procedure authorized in these rules.
(7) The parties may stipulate in writing or the court may upon motion
order that a deposition be taken by telephone. For the purposes of this
rule and Rules 28(a), 37(b)(1) and 45, a deposition taken by telephone
is taken at the place where the deponent is to answer questions
propounded to him.
(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections. Examination and cross-examination of witnesses may proceed
as permitted at the trial under the provisions of the Federal Rules of
Evidence. The officer before whom the deposition is to be taken shall
put the witness on oath and shall personally, or by someone acting under
the officer's direction and in his presence, record the testimony of the
witness. The testimony shall be taken stenographically or recorded by
any other means ordered in accordance with subdivision (b)(4) of this
rule. If requested by one of the parties, the testimony shall be
transcribed. All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings, shall be noted by the
officer upon the deposition. Evidence objected to shall be taken
subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on
the party taking the deposition and such party shall transmit them to
the officer, who shall propound them to the witness and record the
answers verbatim.
(d) Motion To Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and
upon a showing that the examination is being conducted in bad faith or
in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit
the scope and manner of the taking of the deposition as provided in Rule
26(c). If it is impractical to make such a motion personally or in
writing, the moving party or deponent may do so by telephone, provided
the opposing party has a fair opportunity to participate. If the order
made terminates the examination, it shall be resumed thereafter only
upon the order of the court. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for the time
necessary to make a motion for an order. The provisions of Rule
37(a)(4) apply to the award of expenses incurred in relation to the
motion.
(e) Submission To Witness; Changes; Signing. When the testimony is
fully transcribed the deposition shall be submitted to the witness for
examination and shall be read to or by the witness, unless such
examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall
be entered upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition shall then
be signed by the witness, unless the parties by stipulation waive the
signing or the witness is ill or cannot be found or refuses to sign. If
the deposition is not signed by the witness within 30 days of submission
to the witness, the officer shall sign it and state on the record the
fact of the waiver or of the illness or absence of the witness or the
fact of the refusal to sign together with the reason, if any, given
therefor; and the deposition may then be used as fully as though signed
unless on a motion to suppress under Rule 32(d)(4) the court holds that
the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
(f) Certification and Filing by Officer; Exhibits; Copies; Notice
of Completion. (1) The officer shall certify on the deposition that the
witness was duly sworn by the officer and that the deposition is a true
record of the testimony given by the witness. The officer shall
securely seal the deposition in an envelope endorsed with the title of
the action and marked ''Deposition of (here insert name of witness)''
and shall have it delivered or mailed by registered or certified mail to
the party taking the deposition. Unless otherwise ordered by the court,
the deposition shall not be filed with the court.
Documents and things produced for inspection during the examination
of the witness shall, upon the request of a party, be marked for
identification and annexed to the deposition and may be inspected and
copied by any party, except that if the person producing the materials
desires to retain them the person may (A) offer copies to be marked for
identification and annexed to the deposition and to serve thereafter as
originals if the person affords to all parties fair opportunity to
verify the copies by comparison with the originals, or (B) offer the
originals to be marked for identification, after giving to each party an
opportunity to inspect and copy them, in which event the materials may
then be used in the same manner as if annexed to and returned with the
deposition, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to the deponent.
(3) The party taking the deposition shall serve prompt notice of the
receipt of the deposition to all other parties.
(g) Failure To Attend or To Serve Subpoena; Expenses. (1) If the
party giving the notice of the taking of a deposition fails to attend
and proceed therewith and another party attends in person or by attorney
pursuant to the notice, the court may order the party giving the notice
to pay to such other party the reasonable expenses incurred by such
other party and such other party's attorney in attending, including
reasonable attorneys' fees.
(2) If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon the witness and the witness
because of such failure does not attend, and if another party attends in
person or by attorney because such party expects the deposition of that
witness to be taken, the court may order the party giving the notice to
pay such other party the reasonable expenses incurred by such other
party and such other party's attorney in attending, including reasonable
attorneys' fees.
The Federal Rules of Evidence, referred to in subd. (c), are set out
in this Appendix.
28 USC Rule 31. Depositions upon Written Questions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Serving Questions; Notice. After commencement of the action, any
party may take the testimony of any person, including a party, by
deposition upon written questions. The attendance of witnesses may be
compelled by the use of subpoena as provided in Rule 45. The deposition
of a person confined in prison may be taken only by leave of court on
such terms as the court prescribes.
A party desiring to take a deposition upon written questions shall
serve them upon every other party with a notice stating (1) the name and
address of the person who is to answer them, if known, and if the name
is not known, a general description sufficient to identify the person or
the particular class or group to which the person belongs, and (2) the
name or descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions may be
taken of a public or private corporation or a partnership or association
or governmental agency in accordance with the provisions of Rule
30(b)(6).
Within 30 days after the notice and written questions are served, a
party may serve cross questions upon all other parties. Within 10 days
after being served with cross questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served
with redirect questions, a party may serve recross questions upon all
other parties. The court may for cause shown enlarge or shorten the
time.
(b) Officer To Take Responses and Prepare Record. A copy of the
notice and copies of all questions served shall be delivered by the
party taking the deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by Rule 30(c), (e) and
(f), to take the testimony of the witness in response to the questions
and to prepare, certify, and deliver or mail the deposition, attaching
thereto the copy of the notice and the questions received by the
officer.
(c) Notice of Receipt. When the deposition is received, the party
taking it shall promptly give notice thereof to all other parties.
28 USC Rule 32. Use of Depositions in Court Proceedings
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Use of Depositions. At the trial or upon the hearing of a motion
or an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the Federal Rules of Evidence applied as though the
witness were then present and testifying, may be used against any party
who was present or represented at the taking of the deposition or who
had reasonable notice thereof, in accordance with any of the following
provisions, in addition to Appendix G 12b, governing the use of
depositions as substantive evidence:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness, or
for any other purpose permitted by the Federal Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public
or private corporation, partnership, or association, or governmental
agency which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds: (A) that the witness
is dead; or (B) that the witness is at a greater distance than 100
miles from the place of trial or hearing and the judge after timely
request has refused to authorize a subpoena to the witness or to set a
trial in closer proximity to the place of residence of the witness, or
is out of the United States, unless it appears that the absence of the
witness was procured by the party offering the deposition; or (C) that
the witness is unable to attend or testify because of age, illness,
infirmity, or imprisonment; or (D) that the party offering the
deposition has been unable to procure the attendance of the witness by
subpoena; or (E) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice
and with due regard to the importance of presenting the testimony of
witnesses orally in open court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the offeror to introduce any other part
which ought in fairness to be considered with the part introduced, and
any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect the right
to use depositions previously taken; and, when an action has been
brought in any court of the United States or of any State and another
action involving the same subject matter is afterward brought between
the same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefor. A deposition
previously taken may also be used as permitted by the Federal Rules of
Evidence.
(b) Objections to Admissibility. Subject to the provisions of Rules
28(b) and 32(d)(3), objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were
then present and testifying.
(c) Effect of Taking or Using Depositions. (Not used.)
(d) Effect of Errors and Irregularities in Depositions. (1) As to
Notice. All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon
the party giving the notice.
(2) As to Disqualification of Officer. Objection to taking a
deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(3) As to Taking of Deposition. (A) Objections to the competency of
a witness or to the competency, relevancy, or materiality of testimony
are not waived by failure to make them before or during the taking of
the deposition, unless the ground of the objection is one which might
have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection thereto is
made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Rule
31 are waived unless served in writing upon the party propounding them
within the time allowed for serving the succeeding cross or other
questions and within 5 days after service of the last questions
authorized.
(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, delivered or mailed, or otherwise dealt with by the officer
under Rules 30 and 31 are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
such defect is, or with due diligence might have been, ascertained.
The Federal Rules of Evidence, referred to in subd. (a), are set out
in this Appendix.
28 USC Rule 33. Interrogatories to Parties
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Availability; Procedures for Use. Any party may serve upon any
other party written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a
partnership or association or governmental agency, by any officer or
agent, who shall furnish such information as is available to the party.
Interrogatories may, without leave of court, be served upon the
plaintiff after commencement of the action and upon the United States
after service of the complaint. The form of interrogatories is governed
by Appendix G 7.
Each interrogatory shall be answered separately and fully in writing
under oath, unless it is objected to, in which event the reasons for
objection shall be stated in lieu of an answer. The answers are to be
signed by the person making them, and the objections signed by the
attorney making them. The party upon whom the interrogatories have been
served shall serve a copy of the answers and objections, if any, within
30 days after the service of the interrogatories, except that the
defendant may serve answers or objections within 45 days after service
of the complaint upon the defendant. The court may allow a shorter or
longer time. The party submitting the interrogatories may move for an
order under Rule 37(a) with respect to any objection to or other failure
to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any matters
which can be inquired into under Rule 26(b), and the answers may be used
to the extent permitted by the Federal Rules of Evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or
contention that relates to fact or the application of law to fact, but
the court may order that such an interrogatory need not be answered
until after designated discovery has been completed or until a pretrial
conference or other later time.
(c) Option To Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit, or inspection of such business records, including a
compilation, abstract, or summary thereof, and the burden of deriving or
ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party served, it is a sufficient answer to
such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit, or inspect such
records and to make copies, compilations, abstracts, or summaries. A
specification shall be in sufficient detail to permit the interrogating
party to locate and to identify, as readily as can the party served, the
records from which the answer may be ascertained.
The Federal Rules of Evidence, referred to in subd. (b), are set out
in this Appendix.
28 USC Rule 34. Production of Documents and Things and Entry upon Land
for Inspection and Other Purposes
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Scope. Any party may serve on any other party a request: (1) to
produce and permit the party making the request, or someone acting on
such party's behalf, to inspect and copy, any designated documents
(including writings, drawings, graphs, charts, photographs,
phono-records, and other data compilations from which information can be
obtained, translated, if necessary, by the respondent through detection
devices into reasonably usable form), or to inspect and copy, test, or
sample any tangible things which constitute or contain matters within
the scope of Rule 26(b) and which are in the possession, custody, or
control of the party upon whom the request is served; or (2) to permit
entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling
the property or any designated object or operation thereon, within the
scope of Rule 26(b).
(b) Procedure. The request may, without leave of court, be served
upon the plaintiff after commencement of the action and upon the United
States after service of the complaint. The request shall set forth the
items to be inspected either by individual item or by category, and
describe each item and category with reasonable particularity. The
request shall specify a reasonable time, place, and manner of making the
inspection and performing the related acts.
The party upon whom the request is served shall serve a written
response within 30 days after the service of the request, except that
the United States may serve a response within 45 days after service of
the complaint. The court may allow a shorter or longer time. The
response shall state, with respect to each item or category, that
inspection and related activities will be permitted as requested, unless
the request is objected to, in which event the reasons for objection
shall be stated. If objection is made to part of an item or category,
the part shall be specified. The party submitting the request may move
for an order under Rule 37(a) with respect to any objection to or other
failure to respond to the request or any part thereof, or any failure to
permit inspection as requested.
A party who produces documents for inspection shall produce them as
they are kept in the usual course of business or shall organize and
label them to correspond with the categories in the request.
(c) Persons Not Parties. A person not a party to the action may be
compelled to produce documents and things or to submit to an inspection
as provided in Rule 45.
(d) Calls. (1) Issuance. Pursuant to 28 U.S.C. 2507(a), the court
at any time (A) may call upon any department or agency of the United
States for any information or papers it deems necessary to be filed with
the clerk within a specified time, or
(B) in any case appropriate for a computation by a department or
agency of the United States, the court, upon the motion of a party or on
its own motion, may issue a call for the computation. Within 30 days
after the clerk has served notice of the filing of the computation, each
party shall file with the clerk its acceptance or rejection of the
computation. A rejection shall be accompanied by a statement of the
reasons therefor.
(2) Refusal of Compliance. The head of any department or agency of
the United States may refuse to comply with such a call when, in the
head of the department's or agency's opinion, compliance will be
injurious to the public interest. Such refusal may be made known by a
communication signed by the head of the department or agency and filed
with the clerk.
28 USC Rule 35. Physical and Mental Examination of Persons
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Order for Examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the custody or
under the legal control of a party, is in controversy, the court may
order the party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for examination
the person in the party's custody or legal control. The order may be
made only on motion for good cause shown and upon notice to the person
to be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person or
persons by whom it is to be made.
(b) Report of Examiner. (1) If requested by the party against whom
an order is made under subdivision (a) of this rule or the person
examined, the party causing the examination to be made shall deliver to
the requesting party a copy of a detailed written report of the examiner
setting out the examiner's findings, including results of all tests
made, diagnoses, and conclusions, together with like reports of all
earlier examinations of the same condition. After delivery the party
causing the examination shall be entitled upon request to receive from
the party against whom the order is made a like report of any
examination, previously or thereafter made, of the same condition,
unless, in the case of a report of examination of a person not a party,
the party shows that the party is unable to obtain it. The court on
motion may make an order against a party requiring delivery of a report
on such terms as are just, and if an examiner fails or refuses to make a
report the court may exclude the examiner's testimony if offered at
trial.
(2) By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party examined
waives any privilege the party may have in that action or any other
involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine the party in respect
of the same mental or physical condition.
(3) Subdivision (b) of this rule applies to examinations made by
agreement of the parties, unless the agreement expressly provides
otherwise. Subdivision (b) of this rule does not preclude discovery of
a report of an examiner or the taking of a deposition of the examiner in
accordance with the provisions of any other rule.
28 USC Rule 36. Requests for Admission
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Request for Admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action
only, of the truth of any matters within the scope of Rule 26(b) set
forth in the request that relate to statements or opinions of fact or of
the application of law to facts including the genuineness of any
documents described in the request. Copies of documents shall be served
with the request unless they have been or are otherwise furnished or
made available for inspection and copying. The request may, without
leave of court, be served upon the plaintiff after commencement of the
action and upon the United States after service of the complaint. The
form of requests for admission and answers is governed by Appendix G 7.
Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court may
allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the
matter, signed by the party or by the party's attorney, but, unless the
court shortens the time, the defendant shall not be required to serve
answers or objections before the expiration of 45 days after service of
the complaint. If objection is made, the reasons therefor shall be
stated. The answer shall specifically deny the matter or set forth in
detail the reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify
the party's answer or deny only a part of the matter of which an
admission is requested, the party shall specify so much of it as is true
and qualify or deny the remainder. An answering party may not give lack
of information or knowledge as a reason for failure to admit or deny
unless the answering party states that the answering party has made
reasonable inquiry and that the information known or readily obtainable
by the answering party is insufficient to enable the answering party to
admit or deny. A party who considers that a matter of which an
admission has been requested presents a genuine issue for trial may not,
on that ground alone, object to the request; the party may, subject to
the provisions of Rule 37(d), deny the matter or set forth reasons why
the party cannot admit or deny it.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is
admitted or that an amended answer be served. The court may, in lieu of
these orders, determine that final disposition of the request be made at
a pretrial conference or at a designated time prior to trial. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred in
relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal
or amendment of the admission. Subject to the provisions of Rule 16
governing amendment of a pretrial order, the court may permit withdrawal
or amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to
satisfy the court that withdrawal or amendment will prejudice the party
in maintaining the party's action or defense on the merits. Any
admission made by a party under this rule is for the purpose of the
pending action only and is not an admission by the party for any other
purpose nor may it be used against the party in any other proceeding.
28 USC Rule 37. Failure To Make or Cooperate in Discovery; Sanctions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Motion for Order Compelling Discovery. A party, upon reasonable
notice to other parties and all persons affected thereby, may apply for
an order compelling discovery as follows:
(1) Appropriate Court. (Not Used.)
(2) Motion. If a deponent fails to answer a question propounded or
submitted under Rule 30 or 31, or a corporation or other entity fails to
make a designation under Rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in
response to a request for inspection submitted under Rule 34, fails to
respond that inspection will be permitted as requested or fails to
permit inspection as requested, the discovering party may move for an
order compelling an answer, or a designation, or an order compelling
inspection in accordance with the request. See Appendix G 8. When
taking a deposition on oral examination, the proponent of the question
may complete or adjourn the examination before the proponent applies for
an order.
If the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion
made pursuant to Rule 26(c).
(3) Evasive or Incomplete Answer. For purposes of subdivision (a) of
this rule, an evasive or incomplete answer is to be treated as a failure
to answer.
(4) Award of Expenses of Motion. If the motion is granted, the court
shall, after opportunity for hearing, require the party or deponent
whose conduct necessitated the motion or the party or attorney advising
such conduct or both of them to pay to the moving party the reasonable
expenses incurred in obtaining the order, including attorneys' fees,
unless the court finds that the opposition to the motion was
substantially justified or that other circumstances make an award of
expenses unjust.
If the motion is denied, the court shall, after opportunity for
hearing, require the moving party or the attorney advising the motion or
both of them to pay to the party or deponent who opposed the motion the
reasonable expenses incurred in opposing the motion, including
attorneys' fees, unless the court finds that the making of the motion
was substantially justified or that other circumstances make an award of
expenses unjust.
If the motion is granted in part and denied in part, the court may
apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in a just manner.
(b) Failure To Comply with Order. (1) Sanctions Against a Deponent.
If a deponent fails to be sworn or to answer a question after being
directed to do so by the court, the failure may be considered a contempt
of court.
(2) Sanctions Against a Party. If a party or an officer, director,
or managing agent of a party or a person designated under Rule 30(b)(6)
or 31(a) to testify on behalf of a party fails to obey an order to
provide or permit discovery, including an order made under subdivision
(a) of this rule or Rule 35, or if a party fails to obey an order
entered under Rule 26(f), the court may make such orders in regard to
the failure as are just and among others the following:
(A) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;
(B) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting such party from
introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying
further proceedings unless the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an
order treating as a contempt of court the failure to obey any orders
except an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under Rule 35(a)
requiring the party to produce another for examination, such orders as
are listed in paragraphs (A), (B) and (C) of subdivision (b) of this
rule, unless the party failing to comply shows that the party is unable
to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the attorney
advising such party or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on Failure To Admit. If a party fails to admit the
genuineness of any document or the truth of any matter as requested
under Rule 36, and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter, such
party may apply to the court for an order requiring the other party to
pay such party the reasonable expenses incurred in making that proof,
including reasonable attorneys' fees. The court shall make the order
unless it finds that (1) the request was held objectionable pursuant to
Rule 36(a), or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit had reasonable ground to
believe that the party might prevail on the matter, or (4) there was
other good reason for the failure to admit.
(d) Failure of Party To Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1)
to appear before the officer who is to take the deposition, after being
served with a proper notice, or (2) to serve answers or objections to
interrogatories submitted under Rule 33, after proper service of the
interrogatories, or (3) to serve a written response to a request for
inspection submitted under Rule 34, after proper service of the request,
the court on motion may make such orders in regard to the failure as are
just, and among others it may take any action authorized under
paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule. In lieu
of any order or in addition thereto, the court shall require the party
failing to act or the attorney advising such party or both to pay the
reasonable expenses, including attorneys' fees, caused by the failure,
unless the court finds that the failure was substantially justified or
that other circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused
on the ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order as provided by
Rule 26(c).
(e) Subpoena of Person in Foreign Country. (Not used.)
(f) Expenses Against United States. (Not used.)
(g) Failure To Participate in the Framing of a Discovery Plan. If a
party or a party's attorney fails to participate in good faith in the
framing of a discovery plan by agreement as is required by Rule 26(f),
the court may, after opportunity for hearing, require such party or such
party's attorney to pay to any other party the reasonable expenses,
including attorneys' fees, caused by the failure.
28 USC TITLE VI. TRIALS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 39. Trial
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) By the Court. All contested issues of fact and law shall be
tried at a location selected by the court.
(b) Reporting Arrangements; Return of Transcript. (1) Record of
Proceedings. The court will by contract furnish a reporter to take down
the trial proceedings and transcribe the same in any trial held in any
State of the United States or the District of Columbia. Unless
otherwise ordered by the court for good cause shown, the court will not
furnish a reporter at any trial held at any other place.
(2) Reporter; Control. The reporter shall be under the jurisdiction
and control of the judge.
(3) Return of Transcript and Exhibits. Unless otherwise ordered by
the judge, the reporter shall file the transcript of trial proceedings,
including the exhibits admitted in evidence or designated to accompany
the transcript, with the clerk within 30 days after the conclusion of
the trial session at which such proceedings were had. The filing may be
accomplished by personal delivery of the transcript and exhibits to the
clerk's office or by enclosing them in a packet and transmitting them to
the Clerk, United States Court of Federal Claims, 717 Madison Place,
N.W., Washington, D.C. 20005, in sufficient time for the transcript and
exhibits to be filed within the prescribed period. The obligation for
the filing of the transcript and exhibits within the prescribed period
rests upon the reporter.
(As amended Dec. 4, 1992.)
28 USC Rule 40. Assignment of Cases for Trial
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Assignment of cases for trial is the responsibility of the judge to
whom the case is assigned, and may be made (1) without request of the
parties or (2) upon request of a party and notice to the other parties
or (3) in such other manner as the court deems expedient. All trials
shall be scheduled by the judge by order filed with the clerk.
Precedence shall be given to actions entitled thereto by any statute of
the United States.
28 USC Rule 41. Dismissal of Actions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Voluntary Dismissal; Effect Thereof. (1) By Plaintiff; by
Stipulation. Subject to the provisions of an order under Rule 23 and of
any statute of the United States, an action may be dismissed by the
plaintiff without order of court (A) by filing a notice of dismissal at
any time before service of the answer or a response, whichever first
occurs, or (B) by filing a stipulation of dismissal signed by all
parties who have appeared in the action. Unless otherwise stated in the
notice of dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal operates as an adjudication upon the
merits when filed by a plaintiff who has once dismissed in this court or
in any court of the United States an action based on or including the
same claim.
(2) By Order of Court. Except as provided in paragraph (1) of
subdivision (a) of this rule, an action shall not be dismissed at the
plaintiff's instance save upon order of the court and upon such terms
and conditions as the court deems proper. If a counterclaim has been
pleaded by the United States prior to the service upon it of the
plaintiff's motion to dismiss, the action shall not be dismissed against
the defendant's objection unless the counterclaim can remain pending for
independent adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.
(b) Involuntary Dismissal; Effect Thereof. For failure of the
plaintiff to prosecute or to comply with these rules or any order of
court, the court may dismiss on its own motion or defendant may move for
dismissal of an action or any claim. Unless the court in its order for
dismissal otherwise specifies, a dismissal under subdivision (b) of this
rule and any dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction, or for failure to join a party under
Rule 19, operates as an adjudication upon the merits.
(c) Dismissal of Counterclaim or Third-Party Claim. The provisions
of this rule apply to the dismissal of any counterclaim or third-party
claim. A voluntary dismissal by the claimant alone pursuant to
paragraph (1) of subdivision (a) of this rule shall be made before a
response is served or, if there is none, before the introduction of
evidence at the trial or hearing.
(d) Costs of Previously Dismissed Action. If a plaintiff who has
once dismissed an action in any court commences an action based upon or
including the same claim against the defendant, the court may make such
order for the payment of costs of the action previously dismissed as it
may deem proper and may stay the proceedings in the action until the
plaintiff has complied with the order.
28 USC Rule 42. Consolidation; Separate Trials
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Consolidation. When actions involving a common question of law
or fact are pending before the court, it may order a joint hearing or
trial of any or all the matters in issue in the actions; it may order
all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition
and economy, may order a separate trial of any claim, counterclaim, or
third-party claim, or of any separate issue or of any number of claims,
counterclaims, third-party claims, or issues.
(c) Separate Determination of Liability. Upon stipulation of the
parties, approved by the court, or upon order of the court, a trial may
be limited to the issues of law and fact relating to the right of a
party to recover, reserving the determination of the amount of recovery,
if any, for further proceedings. In any case, whether or not a
stipulation or order has been made under subdivision (c) of this rule,
the court, upon determining that a party is entitled to recover, may
reserve determination of the amount of the recovery for further
proceedings. Any motion for reconsideration shall be filed not later
than 10 days after a separate determination of liability.
28 USC Rule 43. Taking of Testimony
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Form. In all trials the testimony of witnesses shall be taken
orally in open court, unless otherwise provided by an Act of Congress or
by these rules or the Federal Rules of Evidence.
(b) Affirmation in Lieu of Oath. Whenever under these rules an oath
is required to be taken, a solemn affirmation may be accepted in lieu
thereof.
(c) Evidence on Motions. When a motion is based on facts not
appearing of record the court may hear the matter on affidavits
presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or deposition.
(d) Interpreters. The court may appoint an interpreter of its own
selection and may fix the interpreter's reasonable compensation. The
compensation shall be paid out of funds provided by law or by one or
more of the parties as the court may direct and may be taxed ultimately
as costs, in the discretion of the court.
The Federal Rules of Evidence, referred to in subd. (a), are set out
in this Appendix.
28 USC Rule 44. Proof of Official Record
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Authentication. (1) Domestic. An official record kept within
the United States, or any State, district, or commonwealth, or within a
territory subject to the administrative or judicial jurisdiction of the
United States, or an entry therein, when admissible for any purpose, may
be evidenced by an official publication thereof or by a copy attested by
the officer having the legal custody of the record, or by such officer's
deputy, and accompanied by a certificate that such officer has the
custody. The certificate may be made by a judge of a court of record of
the district or political subdivision in which the record is kept,
authenticated by the seal of the court, or may be made by any public
officer having a seal of office and having official duties in the
district or political subdivision in which the record is kept,
authenticated by the seal of such officer's office.
(2) Foreign. A foreign official record, or an entry therein, when
admissible for any purpose, may be evidenced as provided in any treaty
or federal statute or by an official publication thereof or a copy
thereof, attested by a person authorized to make the attestation, and
accompanied by a final certification as to the genuineness of the
signature and official position (A) of the attesting person or (B) of
any foreign official whose certificate of genuineness of signature and
official position relates to the attestation or is in a chain of
certificates of genuineness of signature and official position relating
to the attestation. A final certification may be made by a secretary of
embassy or legation, consul general, consul, vice consul, or consular
agent of the United States, or a diplomatic or consular official of the
foreign country assigned or accredited to the United States. If
reasonable opportunity has been given to all parties to investigate the
authenticity and accuracy of the documents, the court may, for good
cause shown, (A) admit an attested copy without final certification or
(B) permit the foreign official record to be evidenced by an attested
summary with or without a final certification. The final certification
is unnecessary if the record and the attestation are certified as
provided in a treaty or convention to which the United States and the
foreign country in which the official record is located are parties.
(b) Lack of Record. A written statement that after diligent search
no record or entry of a specified tenor is found to exist in the records
designated by the statement, authenticated as provided in subdivision
(a)(1) of this rule in the case of a domestic record or complying with
the requirements of subdivision (a)(2) of this rule for a summary in the
case of a foreign record, is admissible as evidence that the records
contain no such record or entry.
(c) Other Proof. This rule does not prevent the proof of official
records or of entry or lack of entry therein by any other method
authorized by law.
(d) Proof of Rules and Regulations. In a trial, or in making or
opposing a motion, a party relying on a rule or regulation shall submit
the full authentic text thereof for inclusion in the record, unless it
is published in the Federal Register or in the Code of Federal
Regulations. A rule or regulation so furnished need not be certified.
The court may require the appropriate party to furnish the full
authentic texts of additional rules or regulations not published in the
Federal Register or in the Code of Federal Regulations.
28 USC Rule 44.1. Determination of Foreign Law
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
A party who intends to raise an issue concerning the law of a foreign
country shall give notice in the party's pleadings or other reasonable
written notice. The court, in determining foreign law, 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 determination shall be treated as a ruling on a question of
law.
The Federal Rules of Evidence, referred to in text, are set out in
this Appendix.
28 USC Rule 45. Subpoena
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court; and
(B) state the title of the action and its docket number; and
(C) command each person to whom it is directed to attend and give
testimony or to produce and permit inspection and copying of designated
books, documents or tangible things in the possession, custody and
control of that person, or to permit inspection of premises, at a time
and place therein specified; and
(D) set forth the test of subdivision (c) and (d) of this rule.
A command to produce evidence or to permit inspection may be joined
with a command to appear at trial or hearing or at depositions, or may
be issued separately. See Appendix L for subpoena forms.
(2) The clerk shall issue a subpoena, signed but otherwise in blank,
to a party requesting it, who shall complete it before service. An
attorney as officer of the court may also issue and sign a subpoena on
behalf of the Court of Federal Claims. See Appendix L.
(b) Service.
(1) A subpoena may be served by any person who is not a party and is
not less than 18 years of age. Service of a subpoena upon a person
named therein shall be made by delivering a copy thereof to such person
and, if the person's attendance is commanded, by tendering to that
person the fees for one day's attendance and the mileage allowed by law.
See 28 U.S.C. 1821. When the subpoena is issued on behalf of the
United States or an officer or agency thereof, fees and mileage need not
be tendered. Prior notice of any commanded production of documents and
things or inspection of premises before trial shall be served on each
party in the manner prescribed by Rule 5(b).
(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place that is
within 100 miles of the place of the deposition, hearing, trial,
production, or inspection specified in the subpoena; but the court upon
proper application and good cause shown may authorize the service of a
subpoena at any other place. A subpoena directed to a witness in a
foreign country who is a national or resident of the United States shall
issue under the circumstances and in the manner and be served as
provided in Title 28 U.S.C. 1783.
(3) Proof of service when necessary shall be made by filing with the
clerk a statement of the date and manner of service and of the names of
the persons served, certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue burden
or expense on a person subject to that subpoena. The court shall
enforce this duty and impose upon the party or attorney in breach of
this duty an appropriate sanction, which may include, but is not limited
to, lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and
copying of designated books, papers, documents or tangible things or
inspection of premises need not appear in person at the place of
production or inspection unless commanded to appear for deposition,
hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to
produce and permit inspection and copying may, within 14 days after
service of the subpoena or before the time specified for compliance if
such time is less than 14 days after service, serve upon the party or
attorney designated in the subpoena written objection to inspection or
copying of any or all of the designated materials or of the premises.
If objection is made, the party serving the subpoena shall not be
entitled to inspect and copy the materials or inspect the premises
except pursuant to an order of the court. If objection has been made,
the party serving the subpoena may, upon notice to the person commanded
to produce, move at any time for an order to compel the production.
Such an order to compel production shall protect any person who is not a
party or an officer of a party from significant expense resulting from
the inspection and copying commanded.
(3)(A) On timely motion, the court shall quash or modify the subpoena
if it
(i) fails to allow reasonable time for compliance; or
(ii) requires disclosure of privileged or other protected matter and
no exception or waiver applies; or
(iii) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential
research, development, or commercial information; or
(ii) requires disclosure of an unretained expert's opinion or
information not describing specific events or occurrences in dispute an
resulting from the expert's study made not at the request of any party,
the court may, to protect a person subject to or affected by the
subpoena, quash or modify the subpoena or, if the party on whose behalf
the subpoena is issued shows a substantial need for the testimony or
material that cannot be otherwise met without undue hardship and assures
that the person to whom the subpoena is addressed will be reasonably
compensated, the court may order appearance or production only upon
specified conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall
produce them as they are kept in the usual course of business or shall
organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim
that it is privileged or subject to protection as trial preparation
materials, the claim shall be made expressly and shall be supported by a
description of the nature of the documents, communications, or things
not produced that is sufficient to enable the demanding party to contest
the claim.
(e) Contempt. Failure by any person without adequate excuse to obey
a subpoena served upon that person may be deemed a contempt of the court
from which the subpoena issued. An adequate cause for failure to obey
exists when a subpoena purports to require a nonparty to attend or
produce at a place not within the limits provided by clause (ii) of
subparagraph (c)(3)(A).
(As amended Dec. 4, 1992.)
28 USC Rule 46. Exceptions Unnecessary
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Formal exceptions to rulings or orders of the court are unnecessary;
but for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or order
of the court is made or sought, makes known to the court the action
which the party desires the court to take or the party's objection to
the action of the court and the party's grounds therefor; and, if a
party has no opportunity to object to a ruling or order at the time it
is made, the absence of an objection does not thereafter prejudice the
party.
28 USC Rule 52. Findings by the Court; Judgment on Partial Findings
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Effect. In all actions tried upon the facts, the court shall
find the facts specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule 58; and in
granting or refusing interlocutory injunctions the court shall similarly
set forth the findings of fact and conclusions of law which constitute
the grounds of its action. Requests for findings are not necessary for
purposes of review. Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses. It will be sufficient if the
findings of fact and conclusions of law are stated orally and recorded
in open court following the close of the evidence or appear in an
opinion or memorandum of decision filed by the court. Findings of fact
and conclusions of law are unnecessary on decisions of motions under
Rule 12 or 56 or any other motion except as provided in subdivision (c)
of this rule.
(b) Amendment. Upon motion of a party made not later than 10 days
after entry of judgment, the court may amend its findings or make
additional findings and may amend the judgment accordingly. The motion
may be made with a motion for a new trial pursuant to Rule 59. The
question of the sufficiency of the evidence to support the findings may
be raised whether or not the party raising the question has made in the
court an objection to such findings or has made a motion to amend them
or a motion for judgment.
(c) Judgment on Partial Findings. If during a trial a party has been
fully heard with respect to an issue and the court finds against the
party on that issue, the court may enter judgment as a matter of law
against that party on any claim, counterclaim, cross-claim or
third-party claim that cannot under the controlling law be maintained or
defeated without a favorable finding on that issue, or the court may
decline to render any judgment until the close of all the evidence.
Such a judgment shall be supported by findings of fact and conclusions
of law as required by subdivision (a) of this rule.
28 USC Rule 52.1. Unpublished Opinions.
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Citation. Unpublished opinions and orders of the court are
binding on the parties, but have no precedential effect. Opinions and
orders designated as unpublished shall not be employed as authority by
this court and may not be cited by counsel as authority, except in
support of a claim of res judicata, collateral estoppel, or law of the
case.
(b) Request to Publish. Any person deeming an unpublished opinion or
order to be of precedential value may file within 90 days of its
issuance a Request for Publication.
28 USC Rule 53. Masters
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Appointment and Compensation. The court in which any action is
pending may appoint a special master therein, subject to the approval of
the chief judge. As used in these rules the word ''master'' includes a
referee, an auditor, an examiner, and an assessor. The compensation to
be allowed to a master shall be fixed by the court, and shall be charged
upon such of the parties or paid out of any fund or subject matter of
the action, which is in the custody and control of the court as the
court may direct. The master shall not retain the master's report as
security for the master's compensation; but when the party ordered to
pay the compensation allowed by the court does not pay it after notice
and within the time prescribed by the court, the master is entitled to a
writ of execution against the delinquent party.
(b) Reference. A reference to a master shall be the exception and
not the rule. Save in matters of account and of difficult computation
of damages, a reference shall be made only upon a showing that some
exceptional condition requires it.
(c) Powers. The order of reference to the master may specify or
limit the master's powers and may direct the master to report only upon
particular issues or to do or perform particular acts or to receive and
report evidence only and may fix the time and place for beginning and
closing the hearings and for the filing of the master's report. Subject
to the specifications and limitations stated in the order, the master
has and shall exercise the power to regulate all proceedings in every
hearing before the master and to do all acts and take all measures
necessary or proper for the efficient performance of the master's duties
under the order. The master may require the production before the
master of evidence upon all matters embraced in the reference, including
the production of all books, papers, vouchers, documents, and writings
applicable thereto. The master may rule upon the admissibility of
evidence unless otherwise directed by the order of reference and has the
authority to put witnesses on oath and may examine them and may call the
parties to the action and examine them upon oath. When a party so
requests, the master shall make a record of the evidence offered and
excluded in the same manner and subject to the same limitations as
provided in the Federal Rules of Evidence for a court sitting without a
jury.
(d) Proceedings. (1) Meetings. When a reference is made, the clerk
shall forthwith furnish the master with a copy of the order of
reference. Upon receipt thereof unless the order of reference otherwise
provides, the master shall forthwith set a time and place for the first
meeting of the parties or their attorneys to be held within 20 days
after the date of the order of reference and shall notify the parties or
their attorneys. It is the duty of the master to proceed with all
reasonable diligence. Either party, on notice to the parties and
master, may apply to the court for an order requiring the master to
speed the proceedings and to make the master's report. If a party fails
to appear at the time and place appointed, the master may proceed ex
parte or, in the master's discretion, adjourn the proceedings to a
future day, giving notice to the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance of witnesses
before the master by the issuance and service of subpoenas provided in
Rule 45. If without adequate excuse a witness fails to appear or give
evidence, the witness may be subjected to the consequences, penalties,
and remedies provided in Rules 37 and 45.
(3) Statement of Accounts. When matters of accounting are in issue
before the master, the master may prescribe the form in which the
accounts shall be submitted and in any proper case may require or
receive in evidence a statement by a certified public accountant who is
called as a witness. Upon objection of a party to any of the items thus
submitted or upon a showing that the form of statement is insufficient,
the master may require a different form of statement to be furnished, or
the accounts or specific items thereof to be proved by oral examination
of the accounting parties or upon written interrogatories or in such
other manner as the master directs.
(e) Report. (1) Contents and Filing. The master shall prepare a
report upon the matters submitted to the master by the order of
reference and, if required to make findings of fact and conclusions of
law, the master shall set them forth in the report. The master shall
file the report with the clerk and serve on all parties notice of the
filing unless otherwise directed by the order of reference, and shall
file with it a transcript of the proceedings and of the evidence and the
original exhibits. Unless otherwise directed by the order of reference,
the master shall serve a copy of the report on each party.
(2) Acceptance of Report. The court shall accept the master's
findings of fact unless clearly erroneous. Within 10 days after being
served with notice of the filing of the report, any party may serve
written objections thereto upon the other parties. Application to the
court for action upon the report and upon objections thereto shall be by
motion. The court after hearing may adopt the report or may modify it
or may reject it in whole or in part or may receive further evidence or
may recommit it with instructions.
(3) Stipulation as to Findings. The effect of a master's report is
the same whether or not the parties have consented to the reference;
but when the parties stipulate that a master's findings of fact shall be
final, only questions of law arising upon the report shall thereafter be
considered.
(4) Draft Report. Before filing the report, a master may submit a
draft thereof to counsel for all parties for the purpose of receiving
their suggestions.
The Federal Rules of Evidence, referred to in subd. (c), are set out
in this Appendix.
28 USC TITLE VII. JUDGMENT
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 54. Judgments; Costs
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Definition; Form. Judgment as used in these rules includes a
decree and any order from which an appeal lies. A judgment shall not
contain a recital of pleadings, or the record of prior proceedings.
(b) Judgment upon Multiple Claims or Involving Multiple Parties.
When more than one claim for relief is presented in an action, whether
as a claim, counterclaim, or third-party claim, or when multiple parties
are involved, the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay and upon an
express direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision,
however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of
all parties.
(c) Demand for Judgment. A judgment by default shall not be
different in kind from or exceed in amount that prayed for in the demand
for judgment. Except as to a party against whom a judgment is entered
by default, every final judgment shall grant the relief to which the
party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in the party's pleadings.
(d) Costs. Except when express provision therefor is made either in
a statute of the United States or in these rules, costs shall be allowed
as a matter of course to the prevailing party in any action not
dismissed for lack of subject matter jurisdiction, unless the court
otherwise directs; but costs against the United States shall be imposed
only to the extent permitted by law. See Rule 77.4.
28 USC Rule 55. Default
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Entry. When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as provided by
these rules and that fact is made to appear by affidavit or otherwise,
the clerk shall enter such party's default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the Clerk. When the plaintiff's claim against a defendant is
for a sum certain or for a sum which can by computation be made certain,
the clerk upon request of the plaintiff and upon affidavit of the amount
due shall enter judgment for that amount and costs against the
defendant, if the defendant has been defaulted for failure to appear and
if the defendant is not an infant or incompetent person.
(2) By the Court. In all other cases, the party entitled to a
judgment by default shall apply to the court therefor; but no judgment
by default shall be entered against an infant or incompetent person
unless represented in the action by a general guardian, committee,
conservator, or other such representative who has appeared therein. If
the party against whom judgment by default is sought has appeared in the
action, such party or, if appearing by representative, such party's
representative, shall be served with written notice of the application
for judgment at least 3 days prior to the hearing, if any, on such
application. If, in order to enable the court to enter judgment or to
carry it into effect, it is necessary to take an account or to determine
the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may
conduct such hearings or order such references as it deems necessary and
proper.
(c) Setting Aside Default. For good cause shown the court may set
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule 60(b).
(d) Plaintiffs; Counterclaimants. The provisions of this rule apply
whether the party entitled to the judgment by default is a plaintiff, a
third-party plaintiff, or a party who has pleaded a counterclaim. In
all cases a judgment by default is subject to the limitations of Rule
54(c).
(e) Judgment Against the United States. No judgment by default shall
be entered against the United States unless the claimant establishes a
claim or right to relief by evidence satisfactory to the court.
28 USC Rule 56. Summary Judgment
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) For Claimant. A party seeking to recover upon a claim or
counterclaim, or to obtain a declaratory judgment may, at any time after
the expiration of 60 days from the commencement of the action in this
court or after service of a motion for summary judgment by the adverse
party, move with or without supporting affidavits for a summary judgment
in such party's favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim or
counterclaim is asserted or a declaratory judgment is sought may, at any
time, move with or without supporting affidavits for a summary judgment
in such party's favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The judgment sought shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. A
summary judgment, interlocutory in character, may be rendered on the
issue of liability alone although there is a genuine issue as to the
amount of damages.
(d) Procedures. The following procedures shall be followed with
respect to motions for summary judgment other than in actions seeking
review of a decision on the basis of an administrative record:
(1) The moving or cross-moving party shall file, together with its
motion, a separate document entitled Proposed Findings of Uncontroverted
Fact. This document shall contain concise, separately numbered
paragraphs setting forth all of the material facts upon which the party
bases its motion and as to which the party believes there is no genuine
dispute. Each paragraph shall contain citations to the opposing party's
pleadings or to documentary evidence, such as affidavits or exhibits,
filed with the motion or otherwise part of the record in the case.
(2) The opposing party shall file, together with its opposition or
cross-motion, a separate document entitled Statement of Genuine Issues.
This document shall respond by reference to specific paragraph numbers
to those proposed findings of uncontroverted fact as to which it claims
there is a genuine dispute. The party shall state the precise nature of
its disagreement and give its version of the events, supported by record
citations. The opposing party may also file proposed findings of
uncontroverted fact as to any relevant matters not covered by the moving
party's statement.
(3) The parties may dispense with the documents called for in
subdivision (d)(1)-(2) of this rule if they file, no later than the time
of the initial motion, a comprehensive stipulation of all of the
material facts upon which they intend to rely.
In determining any motion for summary judgment, the court will,
absent persuasive reason to the contrary, deem the material facts
claimed and adequately supported by the moving party to be established,
except to the extent that such material facts are included in the
Statement of Genuine Issues and are controverted by affidavit or other
written or oral evidence.
(e) Case Not Fully Adjudicated on Motion. If on motion under this
rule judgment is not rendered upon the whole case or for all the relief
asked and a trial is necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence before it and by
interrogating counsel, shall if practicable ascertain what material
facts exist without substantial controversy and what material facts are
actually and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial controversy,
including the extent to which the amount of damages or other relief is
not in controversy, and directing such further proceedings in the action
as are just. Upon the trial of the action the facts so specified shall
be deemed established, and the trial shall be conducted accordingly.
(f) Form of Affidavits; Further Testimony; Defense Required. See
Appendix H 1. Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to interrogatories, or
further affidavits. When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of such party's pleading, but such
party's response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for
trial. If such party does not so respond, summary judgment, if
appropriate, shall be entered against such party.
(g) When Affidavits are Unavailable. Should it appear from the
affidavits of a party opposing the motion that such party cannot for
reasons stated present by affidavit facts essential to justify such
party's opposition, the court may refuse the application for judgment or
may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other
order as is just.
(h) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or solely for
the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused the other party to
incur, including reasonable attorney's fees, and any offending party or
attorney may be adjudged guilty of contempt.
28 USC Rule 56.1. Review of Decision on the Basis of Administrative
Record.
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Standards. Rule 56(a)-(b) apply.
(b) Procedures.
(1) The moving or cross-moving party shall file, together with its
motion, a separate document entitled Statement of Facts setting forth
the facts necessary to resolve the issues presented on review. This
document shall contain concise, separately numbered paragraphs setting
forth all of the facts upon which the party bases its motion and which
are supported by the record. Each paragraph shall contain citations to
the opposing party's pleadings or to documentary evidence in the record.
(2) The opposing party shall file, together with its cross-motion, a
separate document entitled Counter-Statement of Facts. This document
shall respond, by reference to specific paragraph numbers, to those
statements of facts with which the party disagrees. The party shall
state the precise nature of its disagreement and give its version of the
events supported by record citations. The opposing party may also file
Proposed Additional Facts as to any relevant matters not covered by the
moving party's statement to which the movant shall respond.
28 USC Rule 57. Declaratory Judgments
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
The procedure for obtaining a declaratory judgment pursuant to 28
U.S.C. 1491(a) and 1507 shall be in accordance with these rules. The
existence of another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate. The court may
order a speedy hearing of an action for a declaratory judgment and may
advance it on the calendar.
28 USC Rule 58. Entry of Judgment
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Subject to the provisions of Rule 54(b): (1) upon a decision by the
court that a party shall recover only a sum certain or costs or that all
relief shall be denied, the clerk, unless the court otherwise orders,
shall forthwith prepare, sign, and enter the judgment without awaiting
any direction by the court; (2) upon a decision by the court granting
other relief, the court shall promptly approve the form of the judgment,
and the clerk shall thereupon enter it. Every judgment shall be set
forth on a separate document. A judgment is effective only when so set
forth and when entered as provided in Rule 79(a). Entry of the judgment
shall not be delayed for the taxing of costs. Attorneys shall not
submit forms of judgment except upon direction of the court, and these
directions shall not be given as a matter of course.
28 USC Rule 59. New Trials; Rehearings; Amendment of Judgments;
Reconsideration
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Grounds. (1) A new trial or rehearing or reconsideration may be
granted to all or any of the parties and on all or part of the issues,
for any of the reasons established by the rules of common law or equity
applicable as between private parties in the courts of the United
States. On a motion under this rule, the court may open the judgment if
one has been entered, take additional testimony, amend findings of fact
and conclusions of law or make new findings and conclusions, and direct
the entry of a new judgment.
(2) The court, at any time while a suit is pending before it, or
after proceedings for review have been instituted, or within 2 years
after the final disposition of the suit, may grant the United States a
new trial and stay the payment of any judgment upon satisfactory
evidence, cumulative or otherwise, that any fraud, wrong, or injustice
has been done the United States.
(b) Time for Motion and Response. Except as provided in subdivision
(a)(2) of this rule, a motion filed pursuant to this rule shall be filed
not later than 10 days after the entry of the judgment. No response to
such a motion may be filed. However, the court will not rule in favor
of such a motion without first requesting by order a response to it.
(c) On Initiative of Court. Not later than 10 days after entry of
judgment the court of its own initiative may order a new trial or
rehearing for any reason for which it might have granted a new trial or
rehearing on motion of a party. After giving the parties notice and an
opportunity to be heard on the matter, the court may grant a motion for
a new trial or rehearing, timely filed, for a reason not stated in the
motion. In either case, the court shall specify in the order the
grounds therefor.
(d) Motion To Alter or Amend a Judgment. A motion to alter or amend
the judgment shall be filed not later than 10 days after entry of the
judgment.
28 USC Rule 60. Relief from Judgment or Order
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or
other parts of the record and errors therein arising from oversight or
omission may be corrected by the court at any time of its own initiative
or on the motion of any party and after such notice, if any, as the
court orders. During the pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the appellate court, and
thereafter while the appeal is pending may be so corrected with leave of
the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the
court may relieve a party or the party's legal representative from a
final judgment, order, or proceeding for the following reasons: (1)
mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud,
whether denominated intrinsic or extrinsic, misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2) and (3) not more than one year after the
judgment, order, or proceeding was entered or taken. A motion under
subdivision (b) of this rule does not affect the finality of a judgment
or suspend its operation. This rule does not limit the power of a court
to entertain an independent action or relieve a party from a judgment,
order, or proceeding, or to set aside a judgment for fraud upon the
court. The procedure for obtaining any relief from a judgment shall be
by motion as prescribed in these rules or by an independent action.
28 USC Rule 60.1. Remand; Extension or Termination of Stay of
Proceedings on Remand; Disposition of Case
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Remand. (1) Issuance of Remand Order. At the request of a party
or on its own motion, the court may in any case within its jurisdiction
by order remand appropriate matters to any administrative or executive
body or official with such direction as may be deemed proper and just.
(2) Content of Remand Order. An order of remand shall (A) delineate
the area of further consideration or action deemed warranted on the
remand, and (B) fix the extent to which, and the duration of the period,
not to exceed 6 months, during which court proceedings shall be stayed.
(3) Service of Order. A certified copy of any order issued pursuant
to this rule shall be served by the clerk on the administrative or
executive body or official to whom the order is directed. A copy of the
order shall be served on each party in conformity with Rule 5.
(4) Transmittal of Administrative Record. Following service of the
order as provided for in this rule, the clerk shall transmit the
administrative record, if any, to the Department of Justice for return
to the administrative or executive body or official to whom the order of
remand is directed.
(5) Advice of Administrative Action. In every case in which an order
of remand is entered pursuant to this rule, the attorney of record for
the party so designated in the order of remand shall report to the court
the status of proceedings on remand at intervals of 90 days or less,
beginning with the date of the order.
(b) Extension or Termination of Stay of Proceedings on Remand;
Disposition of Case. (1) Extension. If the administrative or executive
body or official has not, during the period of stay provided for in an
order of remand pursuant to subdivision (a) of this rule, rendered a
decision on the matter remanded, the party to whom opportunity was
afforded to obtain further administrative consideration shall, by motion
pursuant to Rule 6, request an extension of the stay of proceedings, or,
by motion pursuant to Rule 7, request the initiation of proceedings
toward otherwise disposing of the case.
(2) Disposition at Administrative Level. If, during the period of
the stay of proceedings as provided for in a remand order, the parties
dispose of the case at the administrative level, the plaintiff shall
file a motion to dismiss the case with prejudice.
(3) Decision on Remand. Upon completion of proceedings pursuant to
an order of remand under subdivision (a) of this rule, the
administrative or executive body or official to whom the order was
directed shall forward to the clerk for filing 4 copies of the decision
or final action on remand. A copy of such decision or action shall be
served on each party by the clerk.
(4) Action by the Parties. Within 30 days after the filing of a
decision or final action pursuant to subdivision (3) of this rule, each
party shall file with the clerk a notice, indicating whether or not the
decision or final action on remand affords a satisfactory basis for
disposition of the claim at the administrative level, or whether further
proceedings before the court are deemed required, and, if such
proceedings are desired, what those proceedings should be. A copy of
such notice shall be served on each adverse party in conformity with
Rule 5. Thereafter, the court will enter an order prescribing the
procedure to be followed, either specially or pursuant to the rules of
the court, or take such other action as may be deemed appropriate.
28 USC Rule 61. Harmless Error
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
No error in either the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything done or omitted by
the court or by any of the parties is ground for granting a new trial or
for vacating, modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding
must disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties.
28 USC Rule 62. Stay of Proceedings To Enforce a Judgment
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Automatic Stay; Exceptions -- Injunctions and Patent
Accountings. Except as stated herein, no proceedings shall be taken for
enforcement of a judgment until the expiration of 10 days after its
entry. Unless otherwise ordered by the court, an interlocutory or final
judgment in an action for an injunction, or a judgment or order
directing an accounting in an action pursuant to 28 U.S.C. 1498, shall
not be stayed during the period after its entry and until an appeal is
taken or during the pendency of an appeal. The provisions of
subdivision (c) of this rule govern the suspending, modifying,
restoring, or granting of an injunction during the pendency of an
appeal.
(b) Stay on Motion for New Trial or for Judgment. In its discretion
and on such conditions for the security of the adverse party as are
proper, the court may stay the execution of or any proceedings to
enforce a judgment pending the disposition of a motion for a new trial
or to alter or amend a judgment made pursuant to Rule 59, or of a motion
for relief from a judgment or order made pursuant to Rule 60, or of a
motion for amendment to the findings or for additional findings made
pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an appeal is taken from an
interlocutory or final judgment granting, dissolving, or denying an
injunction, the court in its discretion may suspend, modify, restore, or
grant an injunction during the pendency of the appeal upon such terms as
to bond or otherwise as it considers proper for the security of the
rights of the adverse party.
(d) Stay upon Appeal. When an appeal is taken, the appellant by
giving a supersedeas bond may obtain a stay subject to the exceptions
contained in subdivision (a) of this rule. The bond may be given at or
after the time of filing the notice of appeal or of procuring the order
allowing the appeal, as the case may be. The stay is effective when the
supersedeas bond is approved by the court.
(e) Stay in Favor of the United States or Agency Thereof. When an
appeal is taken by the United States or an officer or agency thereof or
by direction of any department of the Government of the United States
and the operation or enforcement of the judgment is stayed, no bond,
obligation, or other security shall be required from the appellant.
(f) Power of Appellate Court Not Limited. The provisions in this
rule do not limit any power of an appellate court or of a judge or
justice thereof to stay proceedings during the pendency of an appeal or
to suspend, modify, restore, or grant an injunction during the pendency
of an appeal or to make any order appropriate to preserve the status quo
or the effectiveness of the judgment subsequently to be entered.
(g) Stay of Judgment as to Multiple Claims or Multiple Parties. When
a court has ordered a final judgment under the conditions stated in Rule
54(b), the court may stay enforcement of that judgment until the
entering of a subsequent judgment or judgments and may prescribe such
conditions as are necessary to secure the benefit thereof to the party
in whose favor the judgment is entered.
28 USC Rule 63. Inability of a Judge to Proceed
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Inability. If a trial or hearing has been commenced and the
judge is unable to proceed, any other judge may proceed with it upon
certifying familiarity with the record and determining that the
proceedings in the case may be completed without prejudice to the
parties. The successor judge shall at the request of a party recall any
witness whose testimony is material and disputed and who is available to
testify against without undue burden. The successor judge may also
recall any other witness.
(b) Voluntary Disqualification. A judge shall withdraw from a case
when required by 28 U.S.C. 455, and, at any time, may withdraw from a
case if otherwise such judge deems such judge disqualified by bias or
prejudice.
(c) Affidavit of Bias or Prejudice. (1) Whenever a party to any
proceeding makes and files an affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against such
party or in favor of any adverse party, such judge, if such judge
determines that the affidavit is sufficient and timely, shall proceed no
further therein, but another judge shall be assigned to hear such
proceeding. The ruling of the judge shall be by order.
(2) The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed as soon as
practicable after the facts upon which the affidavit is based become
known to the party, but not less than 10 days before a scheduled trial
date, or good cause shall be shown for failure to file it within such
time. A party may file only one such affidavit in any case. It shall
be accompanied by a certificate of counsel of record stating that it is
made in good faith.
28 USC TITLE VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL
PROCEEDINGS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 65. Injunctions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Preliminary Injunction. (1) Notice. No preliminary injunction
shall be issued without notice to the adverse party.
(2) Consolidation of Hearing with Trial on Merits. Before or after
the commencement of the hearing of an application for a preliminary
injunction, the court may order the trial of the action on the merits to
be advanced and consolidated with the hearing of the application. Even
when this consolidation is not ordered, any evidence received upon an
application for a preliminary injunction which would be admissible upon
the trial on the merits becomes part of the record on the trial and need
not be repeated upon the trial.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A
temporary restraining order may be granted without written or oral
notice to the adverse party or such party's attorney only if (1) it
clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party or such
party's attorney can be heard in opposition, and (2) the applicant's
attorney certifies to the court in writing the efforts, if any, which
have been made to give the notice and the reasons supporting the
attorney's claim that notice should not be required. Every temporary
restraining order granted without notice shall be endorsed with the date
and hour of issuance; shall be filed forthwith in the clerk's office
and entered of record; shall define the injury and state why it is
irreparable and why the order was granted without notice; and shall
expire by its terms within such time after entry, not to exceed 10 days,
as the court fixes unless within the time so fixed the order, for good
cause shown, is extended for a like period or unless the party against
whom the order is directed consents that it may be extended for a longer
period. The reasons for the extension shall be entered of record. In
case a temporary restraining order is granted without notice, the motion
for a preliminary injunction shall be set down for hearing at the
earliest possible time and takes precedence of all matters except older
matters of the same character; and when the motion comes on for hearing
the party who obtained the temporary restraining order shall proceed
with the application for a preliminary injunction and, if such party
does not do so, the court shall dissolve the temporary restraining
order. On 2 days' notice to the party who obtained the temporary
restraining order without notice or on such shorter notice to that party
as the court may prescribe, the adverse party may appear and move its
dissolution or modification and in that event the court shall proceed to
hear and determine such motion as expeditiously as the ends of justice
require.
(c) Security. No restraining order or preliminary injunction shall
issue except upon the giving of security by the applicant, in such sum
as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained. No such security shall be required
of the United States, or of an officer or agency thereof.
The provisions of Rule 65.1 apply to a surety upon a bond or
undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order. Every order
granting an injunction and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe
in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained; and is binding only
upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order by
personal service or otherwise.
(e) Employer and Employee. These rules do not modify any statute of
the United States relating to temporary restraining orders and
preliminary injunctions in actions affecting employer and employee.
(f) Procedures. (1) An application for a temporary restraining order
and/or preliminary injunction shall be filed with the clerk along with
the complaint, unless the complaint has been filed previously. The
application shall be accompanied by the proposed order(s), affidavits,
supporting memoranda, and other documents upon which plaintiff intends
to rely. The application shall also be accompanied by a statement of
plaintiff's attorney that the attorney has hand delivered or caused to
be hand delivered 2 copies of each of the foregoing documents to the
office of the attorney in charge of the Commercial Litigation Branch,
Civil Division, Department of Justice, Room 9030, Todd Building, 550
11th Street, N.W., Washington, D.C. 20530.
(2) If plaintiff's attorney knows the name and address of the
apparently successful bidder, plaintiff's attorney shall give the
attorney notice by telephone or telegram of the intended filing of the
application, shall provide the apparently successful bidder with a copy
of its application, served on the same day by hand delivery, facsimile,
or overnight carrier, and shall certify in the application whether or
not the plaintiff's attorney has done so, or state that the apparently
successful bidder is unknown. With respect to notice to interested
parties, see Rule 14(a).
(3) The apparently successful bidder may enter an appearance at any
hearing on the application for temporary restraining order if it advises
the court of its intention to move to intervene pursuant to Rule
24(a)(2) or has moved to intervene before the hearing.
(4) The clerk promptly will inform the parties personally or by
telephone of the judge to whom the case has been assigned and the time
and place for the hearing, if any, on the application for the
restraining order.
(5) Except in an emergency, the court will not consider ex parte
applications for a temporary restraining order.
28 USC Rule 65.1. Security: Proceedings Against Sureties
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Proceedings. Whenever these rules require or permit the giving
of security by a party, and security is given in the form of a bond or
stipulation or other undertaking with one or more sureties, each surety
submits to the jurisdiction of the court and irrevocably appoints the
clerk of the court as the surety's agent upon whom any papers affecting
the surety's liability on the bond or undertaking may be served. The
surety's liability may be enforced on motion without the necessity of an
independent action. The motion and such notice of the motion as the
court prescribes may be served on the clerk of the court, who shall
forthwith mail copies to the sureties if their addresses are known.
(b) Sureties. Acceptable sureties on bonds shall be those bonding
companies holding certificates of authority from the Secretary of the
Treasury. See the latest U.S. Treasury Dept. Circ. 570. When a court
decision provides for the giving of security, the clerk will furnish
counsel with the appropriate bond form.
28 USC Rule 68. Offer of Judgment
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an offer to
allow judgment to be taken against the defending party for the money or
property or to the effect specified in the defending party's offer, with
costs then accrued. If within 10 days after the service of the offer
the adverse party serves written notice that the offer is accepted,
either party may then file the offer and notice of acceptance together
with proof of service thereof, and thereupon the clerk shall enter
judgment. An offer not accepted shall be deemed withdrawn and evidence
thereof is not admissible except in a proceeding to determine costs. If
the judgment finally obtained by the offeree is not more favorable than
the offer, the offeree must pay the costs incurred after the making of
the offer. The fact that an offer is made but not accepted does not
preclude a subsequent offer. When the liability of one party to another
has been determined by order or judgment, but the amount or extent of
the liability remains to be determined by further proceedings, the party
adjudged liable may make an offer of judgment, which shall have the same
effect as an offer made before trial if it is served within a reasonable
time not less than 10 days prior to the commencement of hearings to
determine the amount or extent of liability.
28 USC TITLE IX. APPEALS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 72. Notice of Appeal
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Review of a decision of this court shall be obtained by filing an
original and 4 copies of a notice of appeal with the clerk within the
time and manner prescribed for appeals to United States courts of
appeals from United States district courts as provided for in Rule 4(a)
of the Federal Rules of Appellate Procedure, together with the fee
provided in Rule 77(k)(2) of the Rules of the United States Court of
Federal Claims. All parties participating in the appeal shall be named
in the caption or their names included in an attachment.
(As amended Dec. 4, 1992.)
The Federal Rules of Appellate Procedure, referred to in text, are
set out in this Appendix.
28 USC TITLE X. COURT AND CLERK
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 77. Court and Clerk
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Name. The name of the court, as fixed by 28 U.S.C. 171, is the
United States Court of Federal Claims.
(b) Seal. The seal of the court shall be the American eagle, similar
to that represented in the arms of the United States, engraved on a
circular piece of brass or steel, with these words in the margin:
''United States Court of Federal Claims'' on the upper part and
''Reipublicae Civibusque'' in the other part of the margin. Writs and
process of this court shall be under the seal of the court and signed by
the clerk.
(c) Court Always Open. The court will not hold formal terms, but
shall be deemed always open for the purpose of filing any pleading or
other proper paper, of issuing and returning process, and of making and
directing all interlocutory motions, orders, and rules. The office of
the clerk is open from the hours 8:45 a.m. to 5:15 p.m. on business
days. A night box is provided for filing with the office of the clerk
between the hours of 5:15 p.m. and 12:00 midnight on any business day
for papers due that day. The night box will be locked promptly at
midnight of each business day. The box is attached to the gate at the
garage entrance on H Street. It is suggested that counsel telephone the
clerk's office by 9:30 a.m. of the next day as to receipt, (202)
633-7261.
(d) Citations. Decisions published by the United States Court of
Claims may be cited as statements of substantive law applicable to
actions in this court.
(e) Judicial Power. The judicial power of the United States Court of
Federal Claims with respect to any action, suit, or proceeding, except
congressional reference cases, shall be exercised by a single judge, who
may preside alone and hold a regular or special session of court at the
same time other sessions are held by other judges.
(f) Assignment of Cases. (1) After the complaint has been served on
the United States, or after recusal or disqualification of a judge to
whom a case has been assigned, the case shall be assigned forthwith to a
judge on the basis of random selection by the clerk, except that related
cases shall be assigned to the judge who has been assigned the earliest
case filed. With the consent of the judge to whom a case has been
assigned, the chief judge may reassign any case if the judge deems such
action necessary for the efficient administration of justice.
(2) At the time a complaint is filed, or as soon as known thereafter,
the attorney shall file and serve on all parties who have appeared a
Notice of Related Case(s), stating whether any pending, or previous
action in any court or board of contract appeals and the action being
filed appear:
(A) to arise from the same or substantially identical transactions,
happenings or events; or
(B) to call for determination of the same or substantially identical
questions; or
(C) likely for other reasons to entail substantial duplication of
labor if heard by different judges.
It shall be the continuing duty of the attorney in any case to bring
promptly to the attention of the court, by the filing of a Notice of
Related Case(s), all facts which in the opinion of the attorney appear
relevant to a determination whether such action and one or more pending
actions, under the criteria and procedures set forth in this
subdivision, should be heard by the same judge.
(g) Signing of Orders for Absent Judges. If the judge to whom the
action is assigned is not available and there is an emergency
necessitating an order, the matter shall be presented to the chief
judge, or in the chief judge's absence, to another judge designated by
the chief judge.
(h) Trials and Hearings; Orders in Chambers. All trials upon the
merits shall be conducted in open court and so far as convenient in a
regular courtroom. All other acts or proceedings may be done or
conducted by a judge in chambers, without the attendance of the clerk or
other court officials and at any other place designated by order or with
the consent of all parties affected thereby.
(i) Clerk's Office and Orders by Clerk. The clerk's office with the
clerk or a deputy in attendance shall be open during business hours on
all days except Saturdays, Sundays, and the following holidays: New
Year's Day, Inauguration Day, Martin Luther King's Birthday,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. All
motions and applications in the clerk's office for issuing process,
process to enforce and execute judgments, for entering defaults or
judgments by default, and for other proceedings which do not require
allowance or order of the court are grantable of course by the clerk;
but the clerk's action may be suspended or altered or rescinded by the
court upon cause shown.
(j) Notice of Orders or Judgments. Immediately upon the entry of an
order or judgment, the clerk shall serve a notice of the entry in the
manner provided for in Rule 5 upon each party who is not in default for
failure to appear and shall make a note in the docket of the service.
Any party may in addition serve a notice of such entry in the manner
provided in Rule 5 for the service of papers. Lack of notice of the
entry by the clerk does not affect the time to appeal or relieve or
authorize the court to relieve a party for failure to appeal within the
time allowed, except as permitted in Rule 4(a) of the Federal Rules of
Appellate Procedure.
(k) Fee Schedule. (1) Fees for services rendered by the clerk are
payable in advance; all checks are to be made payable to ''Clerk,
United States Court of Federal Claims.''
(2) Fees are:
Such other fees as authorized by the Judicial Conference of the
United States, except that no fees are to be charged for services
rendered on behalf of the United States.
(l) Scheduling Courtrooms. The clerk shall schedule the use of
courtrooms in Washington, D.C., and shall be responsible for all
arrangements for courtrooms and other facilities required by the court
at locations other than in Washington, D.C.
(m) Officers and Employees of the Court; Practice of Law. No person
serving as a judge or in any other position with this court shall
practice as an attorney or counselor in any court or before any agency
of the United States, or otherwise engage in the practice of law, while
continuing in that position, except when such person represents such
person or some member of such person's immediate family; and neither a
judge nor a secretary, law clerk or other person occupying a position
with that judge, after separating from a position with this court, shall
ever participate, by way of any form of professional consultation or
assistance to anyone other than the court, in any case pending on that
judge's docket during such person's term of service.
(As amended Dec. 4, 1992.)
The Federal Rules of Appellate Procedure, referred to in subd. (j),
are set out in this Appendix.
The United States Claims Court (now United States Court of Federal
Claims) Advisory Council is established to advise the judges on matters
pertaining to the administration of the court and its relationship to
the bar and the public. The council shall operate as follows:
A. Organization
(1) The council shall consist of 17 members who shall serve staggered
three-year terms. The chief judge shall fill any vacancies.
(2) The chief judge may also appoint a senior adviser to the council
who shall serve at the discretion of the chief judge.
(3) The chief judge shall designate one of the judges in active
service as a liaison member between the court and the council.
(4) The council shall meet at such times and places as agreed upon by
the members. All members of the council, including the senior adviser
and the liaison member, may attend these meetings and participate in the
discussions. The chief judge shall provide facilities at the court to
accommodate meetings of the council.
(5) Council members shall elect a chairman and other officers,
designate committees and take all other steps appropriate to the conduct
of the council's business. Each member, except the liaison member and
senior adviser, shall be entitled to vote on matters before the council.
B. Relationship to the court
(1) The council may consider any matters its members deem relevant to
the operation of the court. The council may transmit its
recommendations to the court informally or formally by letter from the
chairman to the chief judge.
(2) The council shall promptly consider and make a recommendation on
any matter referred to it by the court.
(3) The court may consider any recommendation of the council and take
such action as it deems appropriate.
April 5, 1983
BY THE COURT Alex Kozinski Chief Judge
28 USC Rule 77.1. Case Management
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Responsibility. Case management is the responsibility of the
judge to whom the case is assigned, with the assistance of the clerk,
where appropriate. Each judge shall manage assigned cases so as to
provide for the prompt dispatch of business. The judge may determine
motions and cases on the merits without oral argument upon written
statements of reasons in support and opposition. In the absence of the
judge to whom a case is assigned, the chief judge, or, in the chief
judge's absence, a delegate of the chief judge, may act on behalf of the
assigned judge.
(b) Scheduling. (1) All conferences, oral arguments, trials, and
other appearances shall be scheduled by the judge by order filed with
the clerk. In an emergency, the judge may schedule conferences with
counsel for the parties by such informal directions as may be
appropriate.
(2) Each judge may establish regular times and places at intervals
sufficiently frequent for the prompt dispatch of business, at which
motions requiring notice and hearing may be heard and disposed of; but
each judge at any time or place and on such notice, if any, as any judge
considers reasonable may make orders for the advancement, conduct, and
hearing of actions.
28 USC Rule 77.2. Clerk Authorized To Act on Certain Motions
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Motions Enumerated. Any motion for enlargement of time to answer
or respond to the complaint, for substitution of counsel, for the
permanent withdrawal of papers or exhibits theretofore filed by the
parties, or for waiver of duplication requirements, which requires
action by the court, may be acted upon by the clerk of the court if (1)
the motion states that opposing counsel has no objection, (2) no
opposition to the motion has been timely filed, or (3) opposing counsel
files a consent.
(b) Maximum Time Allowable. In acting on motions for enlargement of
time under subdivision (a) of this rule, the total enlargement of time
allowed by the clerk with respect to any matter shall not exceed 30
days.
(c) Denial of Motions for Enlargement. The clerk may deny forthwith
a motion requesting an enlargement of time if it requires action by the
court, and fails to comply with the provisions of Rule 6(b); provided,
that the denial shall state specifically that it is without prejudice to
the filing, within 10 days after service of such denial, of a renewed
motion for enlargement complying with the provisions of Rule 6(b).
(d) Review by the Court. Any action taken under this rule may be
suspended, altered, or rescinded by the court for cause shown or sua
sponte.
28 USC Rule 77.3. Withdrawal of Papers, Exhibits and In Camera
Documents
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Temporary Withdrawal. The attorney of record for either party,
or a party not represented by an attorney, may, except where the court
otherwise directs, temporarily withdraw papers and exhibits on file in
the clerk's office for a period not to exceed 30 days; provided, that
upon notice from the clerk, the attorney or party may be required to
return such papers and exhibits before the expiration of the 30-day
period. The attorney or party withdrawing such papers and exhibits
shall be required to sign and leave with the clerk a proper receipt
describing the papers and exhibits so withdrawn.
(b) Withdrawal for Trial. The reporter engaged to transcribe the
evidence may temporarily withdraw all papers and exhibits for use during
any trial session. Upon the withdrawal of papers and exhibits for
trial, the reporter shall sign a blanket receipt for such papers and
exhibits, and they shall remain in the reporter's custody until returned
to the clerk's office.
(c) Permanent Withdrawal. No papers or exhibits shall be permanently
withdrawn from the clerk's office except on motion for good cause shown
and upon such terms as the court may order.
(d) Physical Exhibits and In Camera Documents. All physical exhibits
and in camera documents will be disposed of by the clerk after notice to
the parties unless withdrawn by a party within 90 days after the final
disposition of the case.
28 USC Rule 77.4. Taxation of Costs
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Filing Bill of Costs. A prevailing party may request the clerk
to tax allowable costs by filing a Bill of Costs as set forth in
Appendix I within 30 days after the date of the entry of judgment.
(b) Objections to Bill of Costs. (1) An adverse party may object to
the Bill of Costs or any item claimed therein by filing objections
within 14 days after the service of the Bill of Costs. Within 7 days
after service of the objections, the prevailing party may file a reply.
Unless a conference is scheduled by the clerk, the taxation of costs or
any disallowance will be made by the clerk on the record.
(2) A party may request the court to review the clerk's action by
filing a motion within 5 days after action by the clerk. The court's
review of the clerk's action will be made on the existing record unless
otherwise ordered.
(c) Costs in Settlements. The clerk will not tax costs on any action
terminated by settlement wherein the judgment is entered pursuant to
Rule 68 or is dismissed pursuant to Rule 41(a). Settlement agreements
must resolve any issue relating to costs. In the absence of special
agreement, parties will bear their own costs.
(d) No Extensions. No extensions of time under this rule will be
permitted and the failure of a prevailing party to timely file a Bill of
Costs shall constitute a waiver of any claim for costs.
28 USC Rule 78. Motions Day
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
A judge may establish by order in any case regular times and places,
at intervals sufficiently frequent for the prompt dispatch of business,
at which motions requiring notice and hearing may be heard and disposed
of.
28 USC Rule 79. Books and Records Kept by the Clerk and Entries Therein
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Docket. The clerk shall keep a book known as ''docket'' of such
form and style as may be prescribed by the Director of the
Administrative Office of the United States Courts with the approval of
the Judicial Conference of the United States, and shall enter therein
each action to which these rules are made applicable. Actions shall be
assigned consecutive file numbers. The file number of each action shall
be noted on the folio of the docket whereon the first entry of the
action is made. All papers filed with the clerk, all process issued and
returns made thereon, except for subpoenas, all appearances, orders, and
judgments shall be entered chronologically in the docket on the folio
assigned to the action and shall be marked with its file number. These
entries shall be brief but shall show the nature of each paper filed or
writ issued and the substance of each order or judgment of the court and
of the returns showing execution of process. The entry of an order or
judgment shall show the date the entry is made.
(b) Judgments and Orders. The clerk shall keep, in such form and
manner as the Director of the Administrative Office of the United States
Courts with the approval of the Judicial Conference of the United States
may prescribe, a correct copy of every final judgment or appealable
order, or order affecting title to or lien upon real or personal
property, and any other order which the court may direct to be kept.
(c) Indices; Calendars. Suitable indices of the docket and of every
judgment and order referred to in subdivision (b) of this rule shall be
kept by the clerk under the direction of the court.
(d) Other Books and Records of the Clerk. The clerk shall also keep
such other books and records as may be required from time to time by the
Director of the Administrative Office of the United States Courts with
the approval of the Judicial Conference of the United States.
28 USC Rule 80. Reporter; Record or Transcript as Evidence
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Reporter. The clerk, as authorized by the Director of the
Administrative Office of the United States Courts, by negotiated
contract, will arrange for reporting services for all trial proceedings,
and any other proceedings that require a verbatim transcript, held by
the court.
(b) Preparation of Transcript and Exhibits. The preparation of the
transcript of trial proceedings, including the exhibits, shall be in
conformity with the Instructions to Reporters and Forms contained in
Appendix A of these rules.
(c) Copies of Transcript. The parties may obtain copies of the
transcript from the reporter at prices fixed in the reporting contract.
(d) Report or Transcript as Evidence. Whenever the testimony of a
witness at a trial or hearing which was reported is admissible in
evidence at a later trial, it may be proved by the transcript thereof as
duly certified and filed.
28 USC TITLE XI. GENERAL PROVISIONS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Rule 81. Attorneys
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Attorneys Eligible To Practice. Only attorneys who are members
of the bar of this court and who comply with these rules may enter an
appearance, file pleadings, and practice in this court. All attorneys
who were members in good standing of the bar of the United States Court
of Claims are eligible to practice herein. As to the requirement for
signing all papers, see Rule 81(d)(2).
(b) Admission to Practice. (1) Qualifications; Oath. Any person of
good moral character who has been admitted to practice in the Supreme
Court of the United States, or the highest court of any state,
territory, possession, or the District of Columbia, or the United States
Court of Appeals for the Federal Circuit and is in good standing
therein, may be admitted to practice in this court upon oral motion or
by verified application, as provided in this rule, and upon taking or
subscribing to the following oath:
I, XXXXX, do solemnly swear (or affirm) that I will support the
Constitution of the United States and that I will demean myself in an
upright manner as an attorney of this court, so help me God.
(2) Upon Oral Motion. (A) In Washington, D.C.: An oral motion for
admission may be made by a member of the bar of this court before any
judge, and the judge or the clerk shall administer the oath; (B)
Outside Washington, D.C.: An oral motion for admission may be made by a
member of the bar of this court before a judge outside Washington, D.C.,
who shall administer the oath. As a preliminary to the motion, the
attorney who moves the admission shall submit to the judge the
appropriate form obtained from the judge and completed by the applicant.
In the absence of an oral motion for admission in conformity with this
subdivision, the applicant may advise the judge of the applicant's
qualifications as set forth in subdivision (b)(1) of this rule. Upon
consideration thereof, and upon representation by the attorney that such
attorney will promptly apply to the clerk for admission by verified
application as provided in subdivision (b)(3) of this rule, the judge
may permit the applicant to participate in the particular proceeding.
(3) By Verified Application. Without need for appearing in person,
admission may be made upon presentation to the clerk of a verified
application form, which may be obtained from the clerk, showing that the
applicant is possessed of the qualifications described in subdivision
(b)(1) of this rule. The application shall be accompanied by: (A) a
certificate of a judge or of the clerk of any of the courts specified in
subdivision (b)(1) of this rule that the applicant is a member of the
bar of such court and is in good standing therein; (B) two letters or
signed statements of members of the bar of this court or of the Supreme
Court of the United States, not related to the applicant, stating that
the applicant is personally known to them, that the applicant possesses
all the qualifications required for admission to the bar of this court,
that they have examined the applicant's application, and that they
affirm that the applicant's personal and professional character and
standing are good; and (C) an oath in the form prescribed in
subdivision (b)(1) of this rule, signed by the applicant and
administered by an officer authorized to administer oaths in the state,
territory, possession, or the District of Columbia, where the oath is
administered, or as permitted by 28 U.S.C. 1746.
(4) Fee for Admission. Unless the applicant is an attorney
representing the United States before this court, an admission fee as
provided for in Rule 77(k)(2) shall be paid in advance in cash or by
check payable to ''Clerk, United States Court of Federal Claims.''
(5) Admission of Foreign Attorneys. An attorney, barrister, or
advocate who is qualified to practice in the highest court of any
foreign state may be specially admitted for purposes limited to a
particular case. Such attorney, barrister or advocate shall not,
however, be authorized to act as attorney of record. In the case of
such applicants, the oath shall not be required and there shall be no
fee. Such admission shall be only on written motion of a member of the
bar of this court, filed with the clerk at least 3 days prior to the
consideration of the motion by the court.
(c) Disbarment. Superseded by Appendix F effective May 7, 1984.
(d) Attorneys of Record. (1) One for Each Party. There shall be but
one attorney of record for a party in any case at any one time, and such
attorney of record shall be an individual (and not a firm) who has been
admitted to practice before this court. Any other attorneys assisting
the attorney of record shall be designated as of counsel.
(2) Authorization To Sign Filings. Any other attorney who is a
member of the bar of this court and who is a member or is an employee of
the law firm listed as of counsel; agency; or department of the
attorney of record may sign any filing in the attorney of record's name.
An attorney who signs the name of the attorney of record shall so
indicate by adding following the name of the attorney of record: ''by
(the signing attorney's own name).'' Authorization to sign filings shall
not relieve the attorney of record from the provisions of Rule 11.
(3) Appearance. For parties other than the United States, the
attorney of record shall include on the initial pleading or paper said
attorney's name, address, and telephone number. For the United States
the attorney who is to appear as the attorney of record shall file with
the clerk and serve on all other parties a notice of appearance setting
forth the identical information. The attorneys of record for all
parties shall promptly file with the clerk and serve on all other
parties a notice of any change in address.
(4) Change by Parties Other than the United States. A party other
than the United States may by leave of court on motion change the
party's attorney at any time. The motion may be signed by said party in
person or by the newly designated attorney accompanied by an affidavit
of appointment executed by such attorney. If the consent of the
previous attorney of record is annexed to or endorsed on the motion,
substitution shall be accomplished by an appropriate entry on the docket
by the clerk. When the motion is not thus shown to have the consent of
the previous attorney, such attorney shall be served with the motion,
and shall have 14 days to show cause why the motion should not be
allowed.
(5) Change by the United States. A new notice of appearance shall be
filed and served on all parties by the United States whenever a case is
reassigned to another attorney.
(6) Withdrawal of Attorney. No attorney of record for a plaintiff or
a third party may withdraw such attorney's appearance except by leave of
the court on motion and after notice is served on such attorney's
client.
(7) Death of Attorney. If the attorney of record dies, a suggestion
of such attorney's death shall be made, and a motion to substitute
another attorney admitted to practice before this court may be made by
the plaintiff.
(8) Pro Se. An individual may represent oneself or a member of one's
immediate family as a party before the court. Any other party, however,
must be represented by an attorney who is admitted to practice in this
court. A corporation may only be represented by counsel. The terms
counsel or attorney in these rules shall include pro se litigants.
(e) Application for Attorneys' Fees and Expenses. (1) Applications.
Applications for fees and expenses shall be filed with the clerk within
30 days after final judgment, as defined in 28 U.S.C. 2412(d)(2)(G)
for the payment of money, or for the dismissal of the complaint, or of a
final order in a renegotiation case determining the amount, if any, of
excessive profits, or of a declaratory judgment pursuant to 28 U.S.C.
1491 or 1507. Any application subject to 28 U.S.C. 2412(d) shall
include the information required by that section and any claim for fees
and expenses incurred in the prosecution of the application, and shall
include the completed form as shown in Appendix E to these rules. The
application and supporting statements shall be under oath. Each item
shall be separately stated and supported.
(2) Response and Reply. The responding party shall have 28 days from
the service of an application pursuant to subdivision (e)(1) of this
rule to file a response, to which plaintiff may reply within 14 days
after service of the response.
(3) Proceedings. After the filing of an application, and response
and reply, if any, the judge will enter an order prescribing the
procedure to be followed, either specially or pursuant to the rules of
the court, or take such other action as may be deemed appropriate.
(As amended Dec. 4, 1992.)
To assure that motions for admission to the bar of the court are
heard on a regular basis, it is ordered as follows:
(1) Motions for admission will be heard every Thursday which is not a
legal holiday as defined by RUSCC 6(a).
(2) Applicants for admission must appear in the clerk's office no
later than 9:30 a.m. to pay the admission fee and fill out the necessary
papers. See RUSCC 81(b).
(3) Motions will be heard promptly at 10:00 a.m. in Courtroom No. 4,
Room 501, National Courts Building, 717 Madison Place, N.W., Washington,
D.C. 20005.
December 20, 1982
By the Court Alex Kozinski Chief Judge
28 USC Rule 82. Form, Size and Duplication of all Papers
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) General. All papers to be filed with the clerk shall be
duplicated and filed in conformity with these rules as to methods of
duplication, form, size, and number of copies. The clerk shall refuse
to file any paper which is not in substantial conformity with this rule
or not in clear type.
(b) Duplication. All requirements of duplication may be satisfied by
the use of any photocopy method capable of producing a clear black image
on white paper, but not including ordinary carbon copy, provided, that
in each instance the duplication shall conform to the requirements of
subdivision (c) of this rule as to paper, size, form, and pagination.
(c) Form and Size. All papers pursuant to the provisions of this
rule shall be duplicated on pages not exceeding 8 1/2 by 11 inches, with
type matter on all papers other than exhibits to be of letter quality
not exceeding 6 1/2 by 8 1/2 inches. Papers duplicated shall be double
spaced, except that quoted and indented material and footnotes may be
single spaced, and, if covering both sides of the sheet, shall be
duplicated on paper of sufficient quality that the duplication process
does not bleed through the sheet; shall be bound or attached on the
left margin and unfolded, in book form; and shall have legible margins
when bound or attached. Such pages need not be justified on the right
margin. The first page of each separate document shall be numbered 1.
Page numbers shall be in large, distinct type and shall appear in the
bottom center margin of the page.
(d) Date. Each paper shall bear the date it is signed on the
signature page.
(e) Telephone Number. The telephone number (including area code) of
the attorney of record must appear beneath the signature line of every
pleading or other paper.
28 USC Rule 83. Number of Copies
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Except as provided in Rule 3(c), the parties shall file an original
and 2 copies of each other paper required by these rules to be filed
with the clerk. In congressional reference cases, an original and 4
copies of each such paper shall be filed. All copies shall be
identical, or otherwise conformed, to the original.
28 USC Rule 83.1. Content of Briefs or Memoranda; Length of Briefs or
Memoranda
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Content of Briefs or Memoranda. (1) Initial Brief or Memorandum.
Except in briefs or memoranda of 10 pages or less or pretrial filings
under Appendix G, the first brief or memorandum due, normally the
plaintiff's brief or memorandum, shall contain, under proper headings
and arranged in the following order:
(A) a table of contents or index, including the specific contents of
any appendix or appendices to the brief or memorandum, listing the
various items in the appendix, including the number and description of
every item and exhibit which is being reproduced, together with the
number of the page at which the item appears. See also subdivision (G)
of Rule 83.1(a)(1);
(B) a table of constitutional provisions, treaties, statutes,
regulations, and cases cited, giving the volume and page in the official
edition where they may be found, and arranging the cases in alphabetical
order. All U.S. Court of Federal Claims orders and opinions published
in the United States Court of Federal Claims Reporter shall be cited to
that reporter;
(C) a succinct statement of the questions involved, setting forth
each question separately;
(D) a concise statement of the case, containing all that is material
to the consideration of the questions presented, with appropriate
reference to specific findings, the stipulation of facts, or other
pertinent portions of the record, and setting out verbatim in the brief
or memorandum or in an appendix thereto the pertinent portions of
constitutional provisions, treaties, statutes, and regulations, as well
as the texts of all administrative decisions directly involved in the
case, unless previously reproduced in or as an exhibit to the complaint;
the appendix or appendices to the brief or memorandum shall be numbered
consecutively within themselves so as to enable the court more easily to
find and read the material in the appendix or appendices;
(E) the argument, exhibiting clearly the points of fact and of law
being presented, and citing the authorities relied upon;
(F) a conclusion, indicating the relief sought; and
(G) if an appendix is used, there shall be, at the beginning of the
brief or memorandum itself, a table of contents or index listing the
various items in the appendix, including the number and description of
every exhibit which is being reproduced, together with the number of the
page of the appendix at which the item begins.
(2) Opposing Brief or Memorandum. An opposing or answering brief or
memorandum, normally the defendant's brief or memorandum, shall conform
to the requirements set out in subdivision (a)(1) of this rule, except
that the items referred to in subdivisions (C) and (D) of that
subdivision need not be included unless the party is dissatisfied with
the presentation by the other side.
(3) Reply Brief or Memorandum. A reply brief or memorandum shall
conform to the requirements of subdivision (a)(2) of this rule.
(4) General. Briefs or memoranda must be compact, concise, logically
arranged, and free from burdensome, irrelevant, immaterial, and
scandalous matter. Briefs or memoranda not complying with this rule may
be disregarded by the court.
(b) Length of Briefs or Memoranda. (1) Except by leave of the court
on motion, principal briefs or memoranda shall not exceed 40 pages by
any process of duplicating or copying, exclusive of (A) pages containing
tables of contents, citations to constitutional provisions, treaties,
statutes, regulations, and cases, and (B) any appendix setting out
verbatim the pertinent portions of constitutional provisions, treaties,
statutes, regulations, agency or board decisions, court decisions,
excerpts from transcripts of testimony, and documentary exhibits.
(2) Except by leave of the court on motion, reply briefs or memoranda
shall not exceed 20 pages by any process of duplication or copying or 30
pages where an opposition to a motion is included.
(3) A brief or memorandum previously filed may not be incorporated by
reference; any such incorporation will be disregarded. A party wishing
to rely upon a previously filed brief or memorandum may do so by
reproducing in an appendix either (A) excerpts thereof now relied upon,
or (B) the entire brief or memorandum. In either event, the party shall
identify the total number of pages considered pertinent in a footnote
which is to appear on the first page of the brief or memorandum. The
pages so identified shall be included in the maximum allowable length
set forth in subdivisions (1) and (2) of this rule.
(4) A motion for leave to exceed the page limitation set forth in
subdivisions (1) or (2) of this rule shall be filed with the clerk prior
to the duplication of the brief or memorandum and at least 10 days in
advance of the date for the filing of the brief or memorandum, and shall
show good cause therefor. A response to such a motion for leave shall
not be permitted.
(As amended Dec. 4, 1992.)
28 USC Rule 83.2. Time for Filing
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Responses and Objections. Unless otherwise provided in these
rules or by order of the court, responses or objections to written
motions shall be filed within 14 days after service of the motion.
(b) Replies. Replies to responses or objections shall be filed
within 7 days after service of the response or objection.
(c) Motions Under Rules 12(b), 12(c) and 56. Responses to these
motions shall be filed within 28 days after service of the motion and
replies thereto within 14 days of the service of the response.
(d) Leave of Court. If the subject filing is pursuant to leave of
court on motion by a party, time for any response runs from date of
filing and not date of service.
(e) Cross-motions. Where the responding party files a cross-motion,
it shall be contained in the same document as the response to the
original motion; the response to the cross-motion shall be contained in
the same document as the reply subject to page limitations in Rule
83.1(b)(2). Where a cross-motion is filed, the parties shall have the
same times to respond and to reply to the cross-motion as to an original
motion.
(f) Reconsideration of Orders. A motion for reconsideration of an
order shall be filed not later than 10 days after the date thereof. No
response may be filed to a motion for rehearing or reconsideration.
However, the court will not rule in favor of such a motion without first
requesting by order a response to it.
28 USC Rule 84. Transfers and Referrals
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(a) Transfers from Other Courts. (1) Filing and Fee. When the
transfer of a case from another court to this court is permitted by law,
the case shall be filed in this court upon the receipt by the clerk of a
certified copy of the record made in the other court, including the
order of that court granting the transfer. The clerk shall serve a
notice of this filing on the parties as provided in Rule 5. Where all
required fees in the other court are shown to have been paid, no filing
fee will be required.
(2) Complaint; Copies. Eight copies of the complaint, containing the
necessary changes in the caption and duplicated in conformity with Rule
82, filed in the other court shall be filed with the clerk within 28
days after the filing required in subdivision (a)(1) of this rule. In
lieu thereof and within the same time period, an original and 7 copies
of an amended complaint may be filed in conformity with the rules of
this court setting forth the claim or claims transferred. Service will
be made on the United States as provided in Rule 4.
(3) Procedure. After the filing and service as provided for in
subdivision (a)(2) of this rule, all further proceedings shall be in
accordance with the rules prescribed for cases filed in this court in
the first instance.
(b) Referral of Cases by the Comptroller General. (1) Service of
Notice; Time for Response. Upon the filing of a case referred to the
court by the Comptroller General, the clerk shall serve a notice, as
provided in Rule 5, on each person whose name and address are shown by
the papers transmitted and who appears to be interested in the subject
matter of the reference, which notice shall set forth the filing of the
reference and state that the person notified appears to have an interest
therein and that such person shall have 90 days after such service
within which to appear and assert such person's claim by filing a
complaint in accordance with Rule 3. At the same time, the clerk shall
forward a copy of each such notice to the Attorney General.
(2) Procedure After Notice. After the service of notice upon the
interested person or persons, all further proceedings for the
disposition of the case shall be in accordance with the rules prescribed
herein for other cases.
(3) Failure of Party To Appear. If no interested plaintiff appears
and files his complaint within the time specified in the notice served
by the clerk, the case shall be submitted to the court upon the papers
filed and upon such evidence, if any, as may be produced by the Attorney
General.
28 USC Rule 85. Title
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
These rules may be known as the Rules of the United States Court of
Federal Claims.
(As amended Dec. 4, 1992.)
28 USC Rule 86. Effective Date
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
These rules as revised are effective on March 15, 1992.
28 USC APPENDIX A
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC INSTRUCTIONS TO REPORTERS; FORMS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Reference is made to Rules 39(b) and 80(b) for reporting
arrangements, including the requirement for the recording of
proceedings, the control of the reporter, and the return of the
transcript and exhibits.
The following instructions and forms are intended to guide reporters
in preparing the transcripts of testimony taken and proceedings had
before the judges of the United States Court of Federal Claims.
1. Caption Page. There shall be stated on the caption page: (a) the
style of the cause in which the testimony is taken; (b) the place and
date of its taking; (c) the identity of the party by whom each witness
is called; (d) the name of the judge; and (e) the appearances of
counsel. See Form A.
2. Testimony. It shall appear in the transcript of the proceedings
and testimony by whom each witness was examined and cross-examined. At
the top of each page shall appear the name of the witness and the nature
of his examination, such as Roe-direct, Roe-cross, Roe-redirect.
3. Preparation of Transcript. The reporter shall transcribe all
testimony on nontransparent white paper, either 8 1/2 inches wide by 11
inches long, or 8 inches wide by 10 1/2 inches long, bound on the left
margin. The pages shall be numbered consecutively, with a minimum of 25
lines per page.
It is not necessary for the witnesses to sign the transcripts of
their testimony.
4. Exhibits. All exhibits offered by either of the parties shall bear
the caption and number of the case, the exhibit numbers, in figures,
whether for plaintiff or defendant unless the court provides for the
offering parties to otherwise designate their exhibits, and the number
of sheets in each exhibit. All exhibits admitted in evidence or
designated to accompany the transcript shall accompany and be filed with
the transcript of the testimony, but shall not be affixed thereto.
5. Certificate of Reporter. The reporter shall append to the
transcript of the testimony a certificate similar to Form B. The
certificate shall be signed by the reporter.
6. Index. At the beginning of each volume of the transcript of
testimony, there shall be an index containing: (a) the names of the
witnesses examined, citing the pages of the transcript where direct,
cross-, redirect, or recross-examination of the respective witnesses
began; and (b) the exhibits in the case, first for the plaintiff and
then for the defendant, with a brief statement of the nature of each of
the exhibits and with references to the pages of the transcript where
said respective exhibits were (1) offered and (2) received in evidence.
In addition, upon the preparation of the final transcript, where the
number of pages exceeds 500, a master index containing the same
information shall be prepared and bound separately.
28 USC FORM A
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC John Doe, Plaintiff
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC The United States, Defendant
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
Chicago, Illinois,
Monday, XXXXXX, 19XX, 10 a.m.
28 USC Testimony for Plaintiff (or Defendant)
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
The parties met, pursuant to notice of the court, at the time above
stated, in Room 1614, United States Courthouse and Federal Building,
Chicago, Illinois.
Present: Hon. A. B. See, Judge; John A. Jones, Esq., counsel for
plaintiff; and William B. Smith, Esq., counsel for defendant.
Testimony on behalf of the plaintiff (or defendant) was taken as
follows:
Richard Roe, a witness produced on behalf of the plaintiff (or
defendant), having first been duly sworn by said court, was examined,
and in answer to interrogatories testified as follows:
Q. State your name, etc.
A. XXXXXXXXXXXXXXXXXXXX.
Q. Have you, etc.?
A. XXXXXXXXXXXXXXXXXXXX.
28 USC FORM B
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Certificate of Reporter
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
I, X. Y. Zee, reporter, hereby certify that at the time and place
aforesaid, I did cause to be taken down and transcribed the proceedings
in this case, including the questions propounded to and the answers
given by said witnesses so called by plaintiff (or defendant), and that
the foregoing record is a correct transcript of the proceedings and
testimony so had therein.
In witness whereof I have hereunto set my hand this day of , 19
(Signed) X. Y. Zee,
Reporter, 200 Equitable Building, Chicago, Ill.
(As amended Dec. 4, 1992.)
28 USC APPENDIX B
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC PROCEDURES FOR PROCESSING COMPLAINTS OF JUDICIAL MISCONDUCT
PURSUANT TO 28 U.S.C. 372(c)
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. Any person alleging that a judge of this court has engaged in
conduct prejudicial to the effective and expeditious administration of
the business of the court or alleging that such a judge is unable to
discharge all the duties of office by reason of mental or physical
disability may file with the clerk a written complaint, original plus 3
copies, containing a brief statement of the facts constituting such
conduct.
2. Upon receipt of a complaint filed under 1, the clerk shall
promptly transmit such complaint to the chief judge of this court, or,
if the conduct complained of is that of the chief judge, to that judge
in regular active service next senior in date of commission, for
purposes of these procedures only, included in the term chief judge.
The clerk shall simultaneously transmit a copy of the complaint to the
judge whose conduct is the subject of the complaint.
3. (a) After expeditiously reviewing a complaint, the chief judge by
written order stating the chief judge's reasons, may:
(1) dismiss the complaint, if the chief judge finds it to be (i) not
in conformity with 1, (ii) directly related to the merits of a decision
or procedural ruling, or (iii) frivolous; or
(2) conclude the proceeding if the chief judge finds that appropriate
corrective action has been taken.
(b) The chief judge shall transmit copies of the chief judge's
written order to the complainant and to the judge whose conduct is the
subject of the complaint.
4. If the chief judge does not enter an order under 3, such judge
shall promptly:
(a) appoint the chief judge and two judges of this court to a special
committee to investigate the facts and allegations contained in the
complaint;
(b) certify the complaint and any other documents pertaining thereto
to each member of such committee; and
(c) provide written notice to the complainant and the judge whose
conduct is the subject of the complaint of the action taken under this
paragraph.
5. Each committee appointed under 4 shall conduct an investigation
as extensive as it considers necessary, and shall expeditiously file a
comprehensive written report thereon with the chief judge for the court.
Such report shall present both the findings of the investigation and
the committee's recommendations for necessary and appropriate action by
the court.
6. Upon receipt of a report filed under 5, the court by majority
vote:
(a) may conduct any additional investigation which it considers to be
necessary;
(b) shall take such action as is appropriate to ensure the effective
and expeditious administration of the business of the court, including,
but not limited to, any of the following actions:
(1) reporting to the United States Court of Appeals for the Federal
Circuit a recommendation for removal pursuant to the procedures and
standards provided by 28 U.S.C. 176;
(2) ordering that, on a temporary basis for a time certain, no
further cases be assigned to any judge whose conduct is the subject of a
complaint;
(3) censuring or reprimanding such judge, by means of private
communication;
(4) censuring or reprimanding such judge, by means of public
announcement; or
(5) ordering such other action as it considers appropriate under the
circumstances; and
(c) shall immediately provide written notice to the complainant and
to such judge of the action taken under this paragraph.
7. In conducting any investigation under this Appendix B, the court,
or a special committee appointed under 4, shall have full subpoena
powers as provided in 28 U.S.C. 332(d).
8. A complainant or judge aggrieved by a final order of the chief
judge under 3 may petition the court for review thereof. A complainant
or judge aggrieved by an action by the court under 6 may petition the
Judicial Conference of the United States for review thereof.
9. (a) Adequate prior notice of any investigation will be given in
writing to the judge whose conduct is the subject of the complaint.
(b) The judge whose conduct is the subject of the complaint will be
afforded an opportunity to appear (in person or by counsel) at
proceedings conducted by the committee or court, to present oral and
documentary evidence, to compel the attendance of witnesses or the
production of documents, to cross-examine witnesses, and to present
argument orally.
(c) These procedures are a matter of public record, and any such rule
promulgated by the court may be modified by the Judicial Conference.
10. No judge whose conduct is the subject of an investigation shall
serve upon a special committee appointed under 4, or as a member of the
court pursuant to 5, until all related proceedings under this paragraph
have been finally terminated.
11. No person shall be granted the right to intervene or to appear as
amicus curiae in any proceeding before the court.
12. All papers, documents, and records or proceedings related to
investigations under this Appendix B shall be confidential and shall not
be disclosed by any person in any proceeding unless:
(a) the court releases any such material; or
(b) authorized in writing by the judge who is the subject of the
complaint or by the chief judge of this court.
13. Each written order to implement any action under 6(b), which is
issued by the court, shall be made available to the public through the
clerk. Unless contrary to the interests of justice, each order issued
under this paragraph shall be accompanied by written reasons therefor.
28 USC APPENDIX C
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC PROCEDURE IN COMMON CARRIER CASES
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. Time for Filing Request.
2. Form and Content of Request:
(A) Duplication.
(B) Copies; Filing; Service.
(C) Signature of Attorney.
(D) Numbered Paragraphs; Material Facts.
(E) Attachments.
(F) Nature of Dispute; Statement of Issues.
(G) Schedule: Claim for Transportation of Property:
(1)
List of Carrier's Bills in Dispute.
(2)
Detail for Each Bill of Lading.
(3)
Computation for Typical Bill of Lading.
(H) Certification and Signature of Carrier: Property.
(I) Schedule: Claim for Transportation of Passengers:
(1)
List of Carrier's Bills in Dispute.
(2)
Detail: Each Transportation Request or Warrant.
(J) Certification and Signature of Carrier: Passengers.
3. Plaintiff's Noncompliance: Consequences.
4. Time for Filing; Order.
5. Copies; Service; Signature.
6. Agreement; Modification; Denial.
7. Defendant's Statement of Issues.
8. Verification of Carrier's Computations.
9. Schedule: Defendant's Basis for Applicable Charges.
10. Failure To Deny or Respond Within Specified Time: Consequences.
11. Qualified Denial of Facts Available to Defendant: Consequences.
12. Relation to Pleadings; Time for Filing Answer or Counterclaim.
13. Plaintiff's Acceptance of Response.
14. Pretrial Conference; Fixing Amount of Recovery.
15. Entry of Judgment.
16. Referral to Interstate Commerce Commission: Defendant's Motion
for.
17. Plaintiff's Response to Defendant's Motion for Referral.
18. Referral to Interstate Commerce Commission: Plaintiff's Motion
for.
19. Defendant's Response to Plaintiff's Motion for Referral.
20. Effect of Filing Referral Motion.
21. Failure To File Referral Motion in Specified Time:
Consequences.
28 USC I. CARRIER'S REQUEST FOR ADMISSION OF FACTS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. Time for Filing Request. In every suit filed by a common carrier
for the recovery of freight and/or passenger transportation charges, the
carrier shall, at the time the complaint is filed or within 30 days
thereafter, file with the clerk a request for admission by the defendant
of the genuineness of any relevant documents described in and exhibited
with the request and of the truth of the material matters of fact relied
on by the carrier for recovery in the action.
2. Form and Content of Request. The request shall conform to the
following requirements:
(A) Duplication. The request, with accompanying schedules and
documents, may be typewritten, or may be printed, or otherwise
mechanically reproduced from a typewritten original, provided that all
copies filed with the clerk shall be clearly legible and that the words
and figures shown therein shall be in large enough type to be read
without difficulty.
(B) Copies; Filing; Service. If the request accompanies the
complaint, copies and service of such request shall be as provided in
Rules 3(c) and 4. If the request is filed subsequent to the filing of
the complaint, copies and service of such request shall be as provided
in Rules 5, and 83, except that 5 copies shall be served on the
defendant in lieu of a copy.
(C) Signature of Attorney. The request shall be signed by the
attorney of record for the plaintiff.
(D) Numbered Paragraphs; Material Facts. The statements contained
therein shall be properly separated and numbered and shall consist of
specific statements of material facts which the plaintiff expects to
prove as opposed to general allegations of the kind used in pleadings.
(E) Attachments. There shall be attached to the request copies of
any contracts, letters, or other documents, excluding tariffs and other
documents referred to in the schedules required by 2(G) and 2(I),
which plaintiff proposes to offer in evidence, in order that the
genuineness of such documents may be admitted by the defendant and the
necessity of calling a witness to identify the same may be avoided.
(F) Nature of Dispute; Statement of Issues. The statement in the
request shall be sufficiently explicit to show the nature of the dispute
and the specific reason or reasons why the plaintiff believes it is
entitled to recover higher rates or charges than those allowed by the
Government. The word ''dispute'' as used in the preceding sentence,
means the shipment or shipments with respect to which the General
Accounting Office or other agency of the Government determined that the
carrier's charges had been overpaid or refused to pay the carrier's
supplemental bills covering such shipments, rather than subsequent
shipments which are not in dispute except for the fact that the
overpayments determined as to the shipments in dispute have been
deducted from the amount of the carrier's bills covering such subsequent
shipments. In order to show the nature of the dispute there shall be
attached to or included in plaintiff's request a statement of the issues
which, with respect to each group of the carrier's bills involving the
same issue, shall consist of a brief narrative statement of such issue
with a reference to (1) court decisions involving the same issue, or (2)
the tariffs or other authority relied upon by plaintiff, and the tariffs
or other authority which plaintiff believes defendant relied upon in
making deductions for claimed overpayments to the carrier or in refusing
to pay the carrier's supplemental bills for claimed undercharges.
(G) Schedule: Claim for Transportation of Property. Where the claim
is for the recovery of charges for the transportation of property for
the Government, there shall be attached to the request a detailed
schedule, prepared by or under the supervision of the general auditor,
comptroller, or other principal accounting officer of the carrier. The
schedule shall contain the following factual information:
(1) List of Carrier's Bills in Dispute. The number of each of the
carrier's bills for the shipments in dispute, as distinguished from the
number of a subsequent bill from which the GSA made a deduction
following its determination of an overpayment on the bill in dispute.
(2) Detail for Each Bill of Lading. For each bill of lading in
dispute, covered by each bill referred to in (1), the following facts:
(a) the number and symbol of each bill of lading;
(b) the date of the shipment;
(c) the origin and the destination of the shipment;
(d) a description of the commodity or commodities shipped, including
a description of the packing where this affects the rate;
(e) car number and initial;
(f) the weight of the shipment, including the minimum carload weight
when greater than the actual weight;
(g) when the shipment in dispute consists of one or more carloads of
mixed commodities, a description of the different commodities, and the
respective weight thereof loaded in each car, including minimum carload
weights where such weights affect the rates;
(h) the rates claimed for each article in the shipment and for any
accessorial services;
(i) the total freight charges on each bill of lading;
(j) amounts refunded by carrier, if any, and the dates thereof;
(k) if the overpayment determined by GSA or other agency has been
deducted from the carrier's subsequent bill or bills, the number of such
subsequent bill or bills, the amount deducted, and the date thereof;
(l) the total amount paid the carrier;
(m) the balance due;
(n) a specific reference to the item or items in designated tariffs
authorizing the charges claimed, including the classification rating if
necessary, and authorization for any accessorial charges claimed; or to
a 22 quotation;
(o) the Government file reference number as obtained from GSA notice
of overcharge, the Certificate of Indebtedness, or other document issued
by the GSA, or, in the event there is no GSA reference number, the name
of the Government paying agency and bureau, the disbursing office
voucher number, and the date of payment;
(p) if the shipment in dispute consists in whole or in part of a
through transit movement, (1) the through assessable charges from the
original point of shipment to the final destination, including a
description of the commodity, the transited weight, the through rate,
the tariff or special authority for the through rate used, and, if local
tonnage is involved, the weight thereof, the points between which local
tonnage moved, and the rates and charges assessed against such tonnage;
(2) details of the net amounts paid to and beyond the transit station,
including references to the ''inbound'' and ''outbound'' shipments by
bill of lading number and symbol; date of shipment, origin and
destination, weight rate, and the net amounts paid to the respective
''inbound'' and ''outbound'' carriers, naming them and identifying the
bill numbers on which such payments were made; and (3) the balance due,
i.e., the difference between the through assessable charges, including
the charges on local tonnage, if any, and the respective net amounts
paid on the inbound and outbound shipments; and
(q) a brief statement as to the basis for the claim or other brief
statement which the carrier deems necessary to explain the peculiarities
of the shipment.
(3) Computation for Typical Bill of Lading. Following the listing of
the information herein required with respect to each group of carrier's
bills involving the same issue or basis of freight charge computation,
the carrier shall either (i) include in the schedule a computation of
the freight charges for that bill of lading, setting forth the basis or
formula used, and referring to the specific items in particular tariffs
or other authority which it relied upon for that purpose, or (ii) attach
a worksheet showing such computation and information with respect to
each typical bill of lading.
(H) Certification and Signature of Carrier: Property. The schedule
shall be certified by the general auditor, comptroller, or principal
accounting officer of the carrier, as follows:
I, XXXXXXXXX, the XXXXXXXXXX
(Name) (Title)
XXXXXXXX, of the XXXXXXXXXXX
(Name of Carrier)
XXXXXXXXXXXXXXXXXXXXXXX,
do hereby certify that the above and foregoing schedule has been
prepared from the books and records of said company for use in a suit in
the United States Court of Federal Claims, entitled XXXXXX v. The
United States, No. XX, and that to the best of my knowledge,
information, and belief the matters contained therein are true and
correct.
To certify which, witness my hand at XXXXXXXXXXX this XXX day of
XXXXXX, 19XX.
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(Signature of auditor,
comptroller, or
principal accounting officer.)
(I) Schedule: Claim for Transportation of Passengers. Where the
claim is for the recovery of charges for the transportation of
passengers for account of the Government, there shall be attached to the
request a schedule, prepared by or under the supervision of the general
auditor, comptroller, or other principal accounting officer of the
carrier. The schedule shall contain the following factual information:
(1) List of Carriers' Bills in Dispute. The number of each of the
carrier's bills in dispute, as distinguished from the number of a
subsequent bill from which the GSA made a deduction following its
determination of an overpayment on the bill in dispute.
(2) Detail: Each Transportation Request or Warrant. For each
transportation request or warrant in dispute, covered by each bill
referred to in (1) the following facts:
(a) the symbol and number of each Government transportation request
or warrant in dispute;
(b) the date of service;
(c) the origin and destination of the travel;
(d) the class or type of service;
(e) whether the travel was one way or round trip;
(f) the number of the special movement, if any;
(g) the route of travel;
(h) the number of persons that traveled;
(i) the gross per capita fare;
(j) the assessable passenger charges;
(k) the amount paid, and by what Government office and where located;
(l) amounts refunded by carrier, if any, and the dates thereof, and
the Government office to which refunded and where located;
(m) where an overpayment was determined by the Government and
deducted from a carrier's subsequent bill, the number of such subsequent
bill, the amount of the deduction, and the date thereof;
(n) the total amount paid, and by what Government office and where
located;
(o) the balance due;
(p) the tariff reference and item or special rate authority;
(q) the Government file reference; and
(r) a brief statement as to the basis for the claim, including, where
appropriate, a brief explanation showing the extent to which the ticket
issued by the carrier was not used, and the value of the unused part of
the ticket.
(J) Certification and Signature of Carrier: Passengers. The schedule
covering the transportation of passengers shall be certified in the same
manner as provided in (2)(H), except that where a request includes
schedules pertaining to claims for both the transportation of passengers
and freight, one certification shall suffice for all schedules.
3. Plaintiff's Noncompliance: Consequences. In the event a plaintiff
in any action within the purview of this Appendix fails or refuses to
comply with the provisions hereof, the judge may (1) refuse to allow it
to support designated claims or prohibit it from introducing in evidence
designated documents or items of testimony, or (2) take other
appropriate action, which may include a dismissal of the complaint or
any part thereof.
28 USC II. DEFENDANT'S RESPONSE
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
4. Time for Filing; Order. Promptly after the filing of the
plaintiff's request, the judge to whom the case is assigned shall, by
order filed with the clerk, fix a reasonable time within which the
defendant shall file its response to the request. A copy of such order
shall be served on the parties as provided in Rule 5.
5. Copies; Service; Signature. The defendant's response shall
consist of an original and two copies to be filed with the clerk and
with service to be made on plaintiff as provided in Rule 5. The
response shall be signed by defendant's attorney of record and shall
comply with the terms of 2(A).
6. Agreement; Modification; Denial. The defendant shall file such
response within the time fixed by the order, agreeing to the separate
items of fact, modifying the same in accordance with the facts known by
the defendant, specifically denying the same, or setting forth in detail
the reasons why it cannot truthfully admit or deny designated portions
of the request.
7. Defendant's Statement of Issues. If defendant does not agree with
plaintiff's statement of the issues, it shall attach to or include in
the response its statement of the issues, which, with respect to each
group of the carrier's bills involving the same issue, shall consist of
a brief narrative statement of the issue, as defendant contends, with
reference to (1) a court decision involving the same issue, or (2) the
tariffs or other authority relied upon by defendant.
8. Verification of Carrier's Computations. If the defendant finds
that the schedule attached to plaintiff's request, or any portion
affecting the amount claimed, is incorrect on the basis of the tariffs,
22 quotations, or other authority relied on by plaintiff in its request,
there shall be attached to the response a schedule prepared by the
defendant, setting forth the facts and figures as to the amount of
freight charges which defendant asserts would be due on each carrier's
bill if the court holds that the tariffs or other authorities relied on
by plaintiff in its request are applicable, and showing how the
defendant arrived at any changes or corrections in the amounts claimed
by plaintiff.
9. Schedule: Defendant's Basis for Applicable Charges. If the
defendant claims that the tariffs, 22 quotations, or other authority
relied on by plaintiff are inapplicable with respect to any of the
carrier's bills listed in plaintiff's request, there shall be attached
to the response a schedule prepared by the defendant, setting forth the
facts and figures in detail as to the amount of freight or passenger
charges defendant claims is due on each disputed carrier's bill and
containing a specific reference to the item or items in designated
tariffs, 22 quotations, or other authority relied on by defendant in
support of its contention. The schedule shall also comply with the
terms of 2(G)(3).
10. Failure To Deny or Respond Within Specified Time: Consequences.
Except where the response details the reasons why the defendant cannot
admit or deny a particular statement in the request, any fact not so
modified or denied in the response shall be deemed admitted, and the
failure of the defendant to file its response within the time specified
by the judge shall be taken as an admission of all of the facts as set
forth in the request.
11. Qualified Denial of Facts Available to Defendant: Consequences.
Where the request sets forth any facts that are within the knowledge of
the General Services Administration or of the department or agency of
the defendant for which the transportation was performed -- and these
specifically include but are not limited to the facts and figures which
plaintiff, by this order, is directed to include in its schedules -- a
response stating that defendant cannot truthfully admit or deny such
facts, or a denial based on a lack of knowledge by defendant's attorney
of record, shall be deemed an admission thereof, provided, that such a
response shall not be deemed an admission if accompanied by the sworn
statement of the official in charge of the records that a search has
been made for the necessary documents or information and that the
documents or information cannot be found.
12. Relation to Pleadings; Time for Filing Answer or Counterclaim.
In all cases to which this procedure applies, the time for filing
defendant's answer and any counterclaim asserted by it may, without
regard to the provisions of RCFC 12 and 13, be contemporaneous with the
date fixed by the judge for filing defendant's response to plaintiff's
request, provided, however, that the period of limitations provided by
49 U.S.C. 16(3)(d) within which the defendant may file a counterclaim
is not extended by any rule set forth in this Appendix or by any order.
At its option, the defendant may include the response in its answer or
counterclaim, which pleadings, nevertheless, shall otherwise comply with
the rules applicable to them.
28 USC III. ACCEPTANCE OF RESPONSE; PRETRIAL; JUDGMENT
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
13. Plaintiff's Acceptance of Response. If a plaintiff is willing to
accept the amount shown to be due it in defendant's response, or, where
a counterclaim has been filed, is willing to accept the net amount shown
to be due plaintiff in the response after deducting the amount of
defendant's counterclaim, plaintiff's attorney of record shall sign and
file with the clerk within 30 days an original typewritten and 2 copies
of a statement entitled Plaintiff's Acceptance of the Amount Defendant
Admits is Due, stating therein that the response shows that a specified
sum is due plaintiff or, where a counterclaim has been filed, that the
response shows that the net amount of the counterclaim is a specified
sum, and that plaintiff consents to the entry of judgment in the amount
specified in favor of plaintiff in full settlement and satisfaction of
all claims asserted in the complaint and request for admission of facts.
14. Pretrial Conference; Fixing Amount of Recovery. When plaintiff
does not file an acceptance of the amount shown to be due in the
response, a pretrial conference shall be held for the purpose of (1)
resolving all issues and recording an agreement for the entry of
judgment or for a dismissal of the complaint or any part thereof, or (2)
segregating the carrier's bills in dispute from those not in controversy
and fixing the amount that either party would be entitled to recover in
the event of a decision in its favor, and/or (3) taking any other action
that may aid in the prompt disposition of the suit.
15. Entry of Judgment. Where all material issues are disposed of
through the filing by plaintiff of its acceptance of the amount shown to
be due in defendant's response, or at a pretrial conference, or by the
defendant's failure to file its response within the time fixed by the
judge, judgment may be entered without further proceedings.
28 USC IV. CASES WITHIN PRIMARY JURISDICTION OF INTERSTATE COMMERCE
COMMISSION
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
16. Referral to Interstate Commerce Commission: Defendant's Motion
for. In any suit subject to the terms of this order, if defendant
contends, whether on the basis of the freight charge computations used
by plaintiff or on the basis of the freight charge computations used by
defendant, that any of the carrier's bills listed in the request raise
issues within the primary jurisdiction of the Interstate Commerce
Commission and intends to move the court to refer such issues to that
agency, defendant shall file the motion with the clerk at the time fixed
for the filing of its response under this order. The motion shall
contain: (1) an identification of the carrier's bills involved unless
all the bills in suit are included in the motion; (2) a description of
the commodities shipped and a statement respecting any other factors
which are pertinent to the issues covered by the motion; (3) a
reference to the applicable tariffs and a copy of the pertinent
provisions thereof; (4) a precise statement of the issue or issues to
be referred; and (5) a statement as to whether the Interstate Commerce
Commission has construed the cited tariffs in prior decisions or has
clarified the facts underlying them, citing the pertinent decisions, if
any.
17. Plaintiff's Response to Defendant's Motion for Referral.
Plaintiff's response to the motion shall be filed within 30 days after
service of the motion, and shall state whether plaintiff concurs in the
motion. If plaintiff contends that the Interstate Commerce Commission
has construed the tariffs referred to in defendant's motion or has
clarified the factors underlying them in previous decisions, the
response shall cite such decision.
18. Referral to Interstate Commerce Commission: Plaintiff's Motion
for. If plaintiff, in any case subject to the terms of this order,
contends that any of the carrier's bills in suit raise issues within the
primary jurisdiction of the Interstate Commerce Commission and intends
to move the court to refer such issues to that agency, plaintiff's
motion shall be filed not later than 30 days from the date defendant's
response is filed and shall conform to the requirements of 16.
19. Defendant's Response to Plaintiff's Motion for Referral.
Defendant's response to plaintiff's motion shall conform to the
requirements of 17.
20. Effect of Filing Referral Motion. The trial of any case subject
to the terms of this order in which a motion for referral is filed shall
be deferred until final action on the motion.
21. Failure To File Referral Motion in Specified Time: Consequences.
The failure of either party to file, within the time prescribed above, a
motion requesting the court to refer a pending case or any part thereof
to the Interstate Commerce Commission may be deemed good cause for
denying any such motion thereafter filed.
(As amended Dec. 4, 1992.)
28 USC APPENDIX D
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC PROCEDURE IN CONGRESSIONAL REFERENCE CASES
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC (28 U.S.C. 1492, 2509)
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. Purpose. The Federal Courts Improvement Act of 1982, amended 28
U.S.C. 1492 and 2509, to authorize either House of Congress to refer
bills to the chief judge of the United States Court of Federal Claims
for investigation and report to the appropriate House. Procedures
promulgated by the chief judge applicable to such congressional
reference cases are specified herein. The RCFC, to the extent feasible,
are to be applied in congressional reference cases.
2. Service of notice. Upon referral of a bill to the chief judge by
either House of the Congress, the clerk shall docket the reference and
serve a notice, as provided in Rule 5, on each person whose name and
address is shown by the papers transmitted and who appears to have an
interest in the subject matter of the reference. The notice shall set
forth the filing of the reference and state that the person notified
appears to have an interest therein and that such person shall have 90
days within which to file a complaint. The clerk shall forward a copy
of each such notice to the Attorney General.
3. Complaint. Any person served with notice who desires to assert a
claim may do so by filing a complaint in accordance with RCFC 3(c), 8
and 9 (or a preliminary complaint under RCFC 27(a)) of the rules of the
court, except that the complaint shall be captioned as provided in 6.
4. Failure of party to appear. If no interested person files a
complaint within the time specified in the notice served by the clerk,
the case may be reported upon the papers filed and upon such evidence,
if any, as may be produced by the Attorney General.
5. Hearing officer; review panel. Upon the filing of a complaint,
the chief judge by order will designate a judge of the court to serve as
hearing officer and a panel of three judges to serve as a reviewing
body. One of the review panel members will be designated by the chief
judge as presiding officer of the panel.
6. Captions. All pleadings, motions, and any other papers of the
parties, and all subpoenas, orders and reports of a hearing officer and
review panel, shall be captioned as follows:
28 USC CONGRESSIONAL REFERENCE
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC To The
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC UNITED STATES COURT OF FEDERAL CLAIMS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC XXXXX
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC Congressional Reference No. XXX
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC XXXXX
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
7. Subpoenas. Each hearing officer and each review panel shall have
authority to do and perform any acts which may be necessary or proper
for the efficient performance of their duties, including the power of
subpoena and the power to administer oaths and affirmations. Subpoenas
requiring travel of more than 100 miles to place of trial must have
attached thereto an order of approval by the hearing officer.
8. Hearing officer report. The hearing officer shall conduct such
proceedings and utilize such rules of the United States Court of Federal
Claims as may be required to determine the facts, including facts
relating to delay or laches, facts bearing upon the question whether the
bar of any statute of limitation should be removed, or facts claimed to
excuse the claimant for not having resorted to any established legal
remedy. The hearing officer shall find the facts specially. The
hearing officer's findings shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the
hearing officer to judge the credibility of witnesses. The hearing
officer shall append to the findings of fact conclusions sufficient to
inform Congress whether the demand is a legal or equitable claim or a
gratuity, and the amount, if any, legally or equitably due from the
United States to the claimant. The report shall be filed with the
clerk, and served by the clerk on the parties.
9. Acceptance or exceptions. Within 30 days after service of the
report, each party shall file either (a) a notice of intention to except
to the report or (b) a notice accepting the report.
10. Review panel consideration and report. The findings and
conclusions of the hearing officer, together with the record of the
case, shall be considered by the review panel. When a party or parties
have filed a notice of intention to except, the presiding officer by
order shall establish a schedule for the parties to file briefs on
exceptions to the hearing officer's findings and conclusions and
requests for oral argument before the panel. The chief judge will
entertain no appeals or requests for review of any rulings or actions by
a hearing officer or a review panel. No case shall be returned to the
hearing officer unless so ordered by the review panel. On the basis of
the entire record, the panel, by majority vote, shall adopt or modify
the findings or the conclusions of the hearing officer and shall file
its report with the clerk, for service on the parties.
11. Rehearing. Within 10 days after service of the report of the
review panel, any party may file a motion for rehearing to alter or
amend the report. The motion shall state with particularity any
contention of law or fact which the movant believes has been overlooked
or misapprehended, and shall contain argument in support thereof. Oral
argument in support of the motion shall not be permitted. No response
to a motion for rehearing is required, but will be considered if filed
within 10 days from the date the motion for rehearing is served. No
time extension shall be allowed for filing such a response. If the
motion for rehearing is granted, the review panel shall take such
further action as in its discretion may be required by the circumstances
of the particular case.
12. Transmittal to Congress. When all proceedings are concluded, the
report of the review panel shall be transmitted by the chief judge to
the appropriate House of Congress.
13. Admission to practice. Any attorney representing a claimant in a
congressional reference case may file and appear as attorney of record
in the proceeding if such attorney is a member of the bar of the United
States Court of Federal Claims or, if not, upon certification to the
clerk that such attorney is a member in good standing of the bar of the
highest court of any state in the Union or the District of Columbia.
Any claimant, except a corporation, in a congressional reference case
may proceed pro se.
14. Filing fees. Filing fees as set by RCFC 77(k) are required in
congressional reference cases.
(As amended Dec. 4, 1992.)
28 USC App. E
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
SAVE PAGE FOR ILLUSTRATION
(As amended Dec. 4, 1992.)
28 USC APPENDIX F
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC UNITED STATES COURT OF FEDERAL CLAIMS RULES OF DISCIPLINARY
ENFORCEMENT
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
The United States Court of Federal Claims, in furtherance of its
inherent power and responsibility to supervise the conduct of attorneys
who are admitted to practice before it, or admitted for the purpose of a
particular proceeding pursuant to RCFC 81(b)(5), promulgates the
following Rules of Disciplinary Enforcement superseding all of its other
rules pertaining to disciplinary enforcement heretofore promulgated.
Rule I. Attorneys Convicted of Crimes
A. Upon the filing with the court of a certified copy of a judgment
of conviction demonstrating that any attorney admitted to practice
before the court has been convicted in any court of the United States,
or the District of Columbia, or of any state, territory, commonwealth or
possession of the United States of a serious crime as hereinafter
defined, the court shall enter an order immediately suspending that
attorney, whether the conviction resulted from a plea of guilty or nolo
contendere or from a verdict after trial or otherwise, and regardless of
the pendency of any appeal, until final disposition of a disciplinary
proceeding to be commenced upon such conviction. A copy of such order
shall immediately be served upon the attorney. Upon good cause shown,
the court may set aside such order when it appears in the interest of
justice so to do.
B. The term serious crime shall include any felony and any lesser
crime a necessary element of which, as determined by the statutory or
common law definition of such crime in the jurisdiction where the
judgment was entered, involves false swearing, misrepresentation, fraud,
willful failure to file income tax returns, deceit, bribery, extortion,
misappropriation, theft, or an attempt or a conspiracy or solicitation
of another to commit a serious crime.
C. A certified copy of a judgment of conviction of an attorney for
any crime shall be conclusive evidence of the commission of that crime
in any disciplinary proceeding instituted against that attorney based
upon the conviction.
D. Upon the filing of a certified copy of a judgment of conviction of
an attorney for a serious crime, the court shall, in addition to
suspending that attorney in accordance with the provisions of this
Appendix, refer the matter to counsel for the institution of a
disciplinary proceeding before the court in which the sole issue to be
determined shall be the extent of the final discipline to be imposed as
a result of the conduct resulting in the conviction, provided that a
disciplinary proceeding so instituted will not be brought to final
hearing until all appeals from the conviction are concluded.
E. Upon the filing of a certified copy of a judgment of conviction of
an attorney for a crime not constituting a serious crime, the court may
refer the matter to counsel for whatever action counsel may deem
warranted, including the institution of a disciplinary proceeding before
the court; provided, however, that the court may in its discretion make
no reference with respect to convictions for minor offenses.
F. An attorney suspended under the provisions of this Appendix will
be reinstated immediately upon the filing of a certificate demonstrating
that the underlying conviction of a serious crime has been reversed, but
the reinstatement will not terminate any disciplinary proceeding then
pending against the attorney, the disposition of which shall be
determined by the court on the basis of all available evidence
pertaining to both guilt and the extent of discipline to be imposed.
Rule II. Discipline Imposed by Other Courts; Disbarment on Consent
or Representation in Other Courts
A. Any attorney admitted to practice before the court shall, upon
being subjected to public discipline by any other court of the United
States or District of Columbia, or by a court of any state, territory,
commonwealth or possession of the United States, promptly inform the
clerk of such action.
B. Any attorney admitted to practice before the court shall, upon
being disbarred on consent or resigning from the bar of any other court
of the United States or the District of Columbia, or from the bar of any
state, territory, commonwealth, or possession of the United States while
an investigation into allegations of misconduct is pending, promptly
inform the clerk of such disbarment on consent or resignation.
C. Upon the filing of a certified copy of a judgment or order
demonstrating that an attorney admitted to practice before the court has
been disciplined by another court or upon accepting disbarment on
consent or resignation, the court shall forthwith issue a notice
directed to the attorney containing:
1. a copy of the judgment or order from the other court or a copy of
the communication indicating disbarment on consent or resignation; and
2. an order to show cause directing that the attorney inform the
court within 30 days after service of that order upon the attorney,
personally or by mail of any claim by the attorney predicated upon the
grounds set forth in E. That the imposition of the identical
discipline by the court would be unwarranted and the reasons therefor.
D. In the event the discipline imposed in the other jurisdiction has
been stayed there, any reciprocal discipline imposed in the court shall
be deferred until such stay expires.
E. Upon the expiration of 30 days from service of the notice issued
pursuant to the provisions of C, the court shall impose the identical
discipline unless the respondent-attorney demonstrates, or the court
finds, that upon the face of the record upon which the discipline in
another jurisdiction is predicated it clearly appears:
1. that the procedure was so lacking in notice or opportunity to be
heard as to constitute a deprivation of due process; or
2. that there was such an infirmity of proof establishing the
misconduct as to give rise to the clear conviction that the court could
not, consistent with its duty, accept as final the conclusion on that
subject; or
3. that the imposition of the same discipline by the court would
result in grave injustice; or
4. that the misconduct established is deemed by the court to warrant
substantially different discipline.
Where the court determines that any of said elements exist, it shall
enter such other order as it deems appropriate.
F. In all other respects, a final adjudication in another court that
an attorney has been guilty of misconduct shall establish conclusively
the misconduct for purposes of a disciplinary proceeding in the court.
G. The court may at any stage appoint counsel to prosecute the
disciplinary proceedings.
Rule III. Standards for Professional Conduct
A. For misconduct defined in this Appendix and after notice and
opportunity to be heard, any attorney admitted to practice before the
court may be disbarred, suspended from practice before the court,
publicly reprimanded, or subjected to such other disciplinary action as
the circumstances may warrant.
B. Acts or omissions by an attorney admitted to practice before the
court, individually or in concert with any other person or persons,
which violate the Code of Professional Responsibility adopted by the
court shall constitute misconduct and shall be grounds for discipline,
whether or not the act or omission occurred in the course of an
attorney-client relationship. The Code of Professional Responsibility
adopted by the court is the American Bar Association Model Rules of
Professional Conduct, as amended from time to time by the Association,
except as otherwise provided by specific rule of the court.
Rule IV. Disciplinary Proceedings
A. When misconduct or allegations of misconduct which, if
substantiated, would warrant discipline on the part of an attorney
admitted to practice before the court shall come to the attention of a
judge of the court, whether by complaint or otherwise, and the
applicable procedure is not otherwise mandated by this Appendix, the
judge shall refer the matter to the chief judge for determination
whether the matter should be referred to counsel for investigation and
the prosecution of a formal disciplinary proceeding or the formulation
of such other recommendation as may be appropriate.
B. Should counsel conclude after investigation and review that a
formal disciplinary proceeding should not be initiated against the
respondent-attorney because sufficient evidence is not present, or
because there is pending another proceeding against the
respondent-attorney the disposition of which in the judgment of the
counsel should be awaited before further action by the court is
considered or for any other valid reason, counsel shall file with the
court a recommendation for disposition of the matter, whether by
dismissal, admonition, deferral, or otherwise setting forth the reasons
therefor.
C. To initiate formal disciplinary proceedings, counsel shall obtain
an order of the court upon a showing of probable cause requiring the
respondent-attorney to show cause within 30 days after service of that
order upon that attorney, personally, or by mail, why the attorney
should not be disciplined.
D. Upon the respondent-attorney's answer to the order to show cause,
if any issue of fact is raised or the respondent-attorney wishes to be
heard in mitigation, the chief judge shall set the matter for prompt
hearing before one or more judges of the court.
Rule V. Disbarment on Consent While Under Disciplinary Investigation
or Prosecution
A. Any attorney admitted to practice before the court who is the
subject of an investigation into or a pending proceeding involving
allegations of misconduct may consent to disbarment, but only by
delivering to the court an affidavit stating that the attorney desires
to consent to disbarment and that:
1. the attorney's consent is freely and voluntarily rendered; the
attorney is not being subjected to coercion or duress; the attorney is
fully aware of the implications of so consenting;
2. the attorney is aware that there is a presently pending
investigation or proceeding involving allegations that there exist
grounds for the attorney's discipline the nature of which the attorney
shall specifically set forth;
3. the attorney acknowledges that the material facts so alleged are
true; and
4. the attorney so consents because the attorney knows that if
charges were predicated upon the matters under investigation, or if the
proceeding were prosecuted, the attorney could not successfully defend
himself.
B. Upon receipt of the required affidavit, the court shall enter an
order disbarring the attorney.
C. The order disbarring the attorney on consent shall be a matter of
public record. However, the affidavit required under the provisions of
this Appendix shall not be publicly disclosed or made available for use
in any other proceeding except upon order of the court.
Rule VI. Reinstatement
A. After Disbarment or Suspension. An attorney suspended for three
months or less shall be automatically reinstated at the end of the
period of suspension upon the filing with the court of an affidavit of
compliance with the provisions of the order. An attorney suspended for
more than three months or disbarred may not resume practice until
reinstated by order of the court, except as provided in Rule I F of the
Appendix.
B. Time of Application Following Disbarment. A person who has been
disbarred after hearing or by consent may not apply for reinstatement
until the expiration of at least one year from the effective day of the
disbarment.
C. Hearing on Application. Petitions for reinstatement by a
disbarred or suspended attorney under this Appendix shall be filed with
the chief judge of the court. Upon receipt of the petition, the chief
judge shall promptly refer the petition to counsel and shall assign the
matter for prompt hearing before one or more judges of the court. The
judge or judges assigned to the matter shall within 30 days after
referral schedule a hearing at which the petitioner shall have the
burden of demonstrating by clear and convincing evidence that the
petitioner has the moral qualifications, competency and learning in the
law required for admission to practice law before the court and that the
petitioner's resumption of the practice of law will not be detrimental
to the integrity and standing of the bar or to the administration of
justice, or subversive of the public interest.
D. Deposit for Costs of Proceeding. Petitions for reinstatement
under this Appendix shall be accompanied by an advance cost deposit in
an amount to be set from time to time by the court to cover anticipated
costs of the reinstatement proceeding.
E. Conditions of Reinstatement. If the petitioner is found unfit to
resume the practice of law, the petition shall be dismissed. If the
petitioner is found fit to resume the practice of law, the judgment
shall reinstate the petitioner, provided that the judgment may make
reinstatement conditional upon the payment of all or part of the costs
of the proceedings, and upon the making of partial or complete
restitution to parties harmed by the petitioner whose conduct led to the
suspension or disbarment. Provided further, that if the petitioner has
been suspended or disbarred for 5 years or more, reinstatement may be
conditioned, in the discretion of the judge or judges before whom the
matter is heard, upon the furnishing of proof of competency and learning
in law, which proof may include certification by the bar examiners of a
state or other jurisdiction of the attorney's successful completion of
an examination for admission to practice subsequent to the date of
suspension or disbarment.
F. Successive Petitions. No petition for reinstatement under this
Appendix shall be filed within one year following an adverse judgment
upon a petition for reinstatement filed by or on behalf of the same
person.
Rule VII. Attorneys Specially Admitted
Whenever an attorney applies to be admitted or is admitted to the
court for purposes of a particular proceeding pursuant to RCFC 81(b)(5),
the attorney shall be deemed thereby to have conferred disciplinary
jurisdiction upon the court for any alleged misconduct of that attorney
arising in the course of or in the preparation for such proceeding.
(As amended Dec. 4, 1992.)
Rule VIII. Service of Papers and Other Notices
A. Service of an order to show cause instituting a formal
disciplinary proceeding shall be made by personal service or by
registered or certified mail addressed to the respondent-attorney at
such attorney's last known address. If service by registered or
certified mail is ineffective, the court shall enter an order as
appropriate to effect service.
B. Service of any other papers or notices required by this Appendix
shall be deemed to have been made if such paper or notice is addressed
to the respondent-attorney at such attorney's last known address or the
respondent-attorney at the address indicated in the most recent pleading
or other document filed in the course of any proceeding.
Rule IX. Appointment of Counsel
The court shall appoint as counsel one or more members of the bar of
the court to investigate allegations of misconduct or to prosecute
disciplinary proceedings under this Appendix, provided, however, that
the respondent-attorney may move to disqualify an attorney so appointed
who is or has been engaged as an adversary of the respondent-attorney in
any matter. Counsel, once appointed, may not resign unless permission
to do so is given by the court.
Rule X. Payment of Fees and Costs
At the conclusion of any disciplinary investigation or prosecution,
if any, under this Appendix, counsel may make application to the court
for an order awarding reasonable fees and reimbursing costs expended in
the course of such disciplinary investigation or prosecution. Any such
order shall be submitted to the clerk who shall pay the amount required
thereunder from the funds collected pursuant to Rule XI E.
Rule XI. Duties of the Clerk
A. Upon being informed that an attorney admitted to practice before
the court has been convicted of any crime, the clerk shall determine
whether the clerk in which such conviction occurred has forwarded a
certificate of such conviction to the court. If a certificate has not
been so forwarded, the clerk shall promptly obtain a certificate and
file it with the court.
B. Upon being informed that an attorney admitted to practice before
the court has been subjected to discipline by another court, the clerk
shall determine whether a certified copy of the disciplinary judgment or
order has been filed with the court, and, if not, the clerk shall
promptly obtain a certified copy of the disciplinary judgment or order
and file it with the court.
C. Whenever it appears that any person disbarred or suspended or
censured or disbarred on consent by the court is admitted to practice
law in any other jurisdiction or before any other court, the clerk
shall, within 10 days of that disbarment, suspension, censure, or
disbarment on consent, transmit to the disciplinary authority in such
other jurisdiction, or for such other court, a certified copy of the
judgment or order of disbarment, suspension, censure, or disbarment on
consent, as well as the last known office and residence address of the
defendant or respondent-attorney.
D. The clerk shall, likewise, notify the National Discipline Data
Bank operated by the American Bar Association of any order imposing
public discipline upon any attorney admitted to practice before the
court.
E. The clerk shall utilize a portion of the fee for admission
required by RCFC 81(b)(4) to defray the payment of fees and costs under
Rule X of this Appendix and any other costs incurred by the
administration of this Appendix.
Rule XII. Jurisdiction
Nothing contained in this Appendix shall be construed to deny to the
court such powers as are necessary for the court to maintain control
over proceedings conducted before it, such as proceedings for contempt,
issuance of public reprimands, or imposition of fines of not more than
$1,000.00.
28 USC APPENDIX G
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC PROCEDURES BEFORE TRIAL
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC I. GENERAL
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. The judge may modify these procedures as appropriate in the
circumstances of the case, or the parties may suggest such modification
of these procedures.
28 USC II. EARLY MEETING OF COUNSEL
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
2. Within 15 days after the date defendant's answer is served or 15
days after a reply to a counterclaim is served, plaintiff's counsel
shall communicate with defense counsel, and the counsel shall confer:
a. To initiate preparation of the joint preliminary status report
pursuant to 3-4, and
b. Unless exempted by 6, to:
(1) identify each party's factual and legal contentions;
(2) discuss each party's discovery needs and discovery schedule,
including providing access to documents that are to be the subject of
discovery, e.g., determine what is needed; the objections, if any, to
supplying it; and where it is available, with follow-up letters to
provide a record. Agreement to informal discovery is encouraged; and
(3) discuss settlement of the action.
Participating counsel shall be counsel of record and such other
attorneys as are necessary so that participating counsel for each party
are knowledgeable about the case and the identity of witnesses and
location of documents.
28 USC III. JOINT PRELIMINARY STATUS REPORT
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
3. No later than 30 days after the early meeting of counsel, the
parties shall file with the clerk a Joint Preliminary Status Report,
signed by both parties, setting forth answers to the following
questions. Separate views may be set forth on any point on which
parties cannot agree.
a. Does the court have jurisdiction over the action?
b. Should the case be consolidated with any other case and the
reasons therefor;
c. Should trial of liability and damages be bifurcated and the
reasons therefor;
d. Should further proceedings in this case be deferred pending
consideration of another case before this court or any other tribunal
and the reasons therefor;
e. In cases other than tax refund actions, will a remand or
suspension be sought and the reasons therefor and the proposed duration;
f. Will additional parties be joined and, if so, a statement
describing such parties, their relationship to the case, and the efforts
to effect joinder and the schedule proposed to effect joinder;
g. Does either party intend to file a motion pursuant to RCFC 12(b),
12(c) or 56 and, if so, a schedule for the intended filing;
h. What are the relevant issues?
i. What is the likelihood of settlement?
j. Do the parties anticipate proceeding to trial. Does any party or
do the parties jointly, request expedited trial scheduling, see 6b,
and, if so, the reasons why the case is appropriate therefor. A request
for expedited trial scheduling is generally appropriate when the parties
anticipate that discovery, if any, can be completed within a 90-day
period, the case may be tried within 3 days, no dispositive motion is
anticipated, and a bench ruling is sought. The requested place of trial
shall be stated. Before such a request is made, the parties shall
confer specifically on this subject;
k. Is there any other information of which the court should be aware
at this time?
4. If discovery is required, the Joint Preliminary Status Report
should set forth a proposed discovery plan, see 6b, including a
proposed deadline.
5. The Joint Preliminary Status Report shall be deferred indefinitely
if on or before the date the Joint Preliminary Status Report is due a
dispositive motion addressing all issues is filed.
6. Scheduling Orders.
a. In Standard Cases. After the Joint Preliminary Status Report is
filed or after a status conference is held after the report is filed,
the judge promptly shall enter the scheduling order called for by RCFC
16(b). If the judge does not accept the parties' proposed discovery
deadline, the judge shall set a deadline or take other appropriate
action to monitor the progress of discovery until a deadline can be set.
Scheduling of the pretrial conference, 9, and submissions due in
11-15 may be scheduled at a later time.
b. In Expedited Trial Cases. If the judge grants a request for
expedited trial scheduling, a scheduling order shall be entered
promptly. The scheduling order shall set a deadline for discovery, the
date for the pretrial conference, and the trial date. A date shall be
set for trial to commence as soon as practicable. Except by agreement
of the parties or leave of court, each party shall be limited to 5
discovery depositions and 30 interrogatories, including subparts.
Within 30 days after issuance of the scheduling order, each party shall
deliver to the other a list of all witnesses and exhibits described in
10a, b. These lists may be supplemented pursuant to RCFC 26(e)(1). The
meeting of counsel called for by 10 shall be held not later than 7 days
before the pretrial conference. The filings required by 12 and 13
shall be filed by the date of the pretrial conference. The requirements
of 9, 11 and 14 shall not apply.
28 USC IV. DISCOVERY
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
7. Form of Interrogatories, Requests for Admission, Responses. A
party shall number interrogatories and requests for admission
sequentially without repeating the numbers it has used in any prior set
of interrogatories or requests for admission. Each interrogatory and
request for admission shall be started at the top of a new page.
Answers or objections must be typed by the opposing party on the page
containing the interrogatory or request for admission. If additional
space is required, the answering party may add pages immediately
succeeding the page on which the interrogatory or request for admission
is written, denominating the pages by the same number but adding a
sequential letter designation, e.g., 10a, 10b, etc. By counsel's
signature to the answers and pursuant to RCFC 11, counsel for the
responding party shall certify that counsel has made diligent effort to
provide answers to all portions of interrogatories or requests for
admission not specifically objected to.
8. Discovery Motions. A motion to compel or protect from discovery
shall contain a statement by the movant that the parties have consulted
in good faith to resolve the matters in dispute.
28 USC V. PRETRIAL CONFERENCE
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
9. Scheduling. Prior to or promptly upon the close of discovery, the
judge shall enter a pretrial scheduling order. The judge shall also set
the dates by which the memoranda called for by 11-15 are due. The
attorneys appearing at the pretrial conference shall be the attorneys
who will try the case, are thoroughly familiar with it, and are
authorized to act for their principals.
10. Meeting of Counsel. No later than 60 days before the pretrial
conference, counsel for the parties shall:
a. Exchange all exhibits to be used at trial, unless previously
exchanged, except those to be used for impeachment. Failure to list an
exhibit or to amend the list to add an exhibit at the earliest possible
practicable time, if the existence or relevance of the exhibit did not
become apparent until after exchange of the exhibit list, shall result,
absent a showing of a compelling reason for the failure, in an exclusion
of the exhibit at trial. Each exhibit shall be identified by an exhibit
number and description.
b. Exchange a final list of names and addresses of witnesses,
including expert witnesses and telephone numbers of third-party
witnesses to be called at trial, except those to be used for
impeachment, unless previously exchanged. Failure of a party to list a
witness, or to amend the list to add a witness at the earliest
practicable time if the existence or relevance of the witness did not
become apparent until after the exchange of the witness list, shall
result, absent agreement of the parties or a showing of a compelling
reason for the failure, in the exclusion of that witness' testimony at
trial. Any witness whose identity has not been previously disclosed
shall be subject to discovery. As to each witness, the party shall
indicate the specific topics to be addressed in the expected testimony.
If expert witnesses are to be called, the parties shall exchange a short
narrative statement of the qualifications of the expert, if this
information has not already been obtained through discovery. If reports
of experts to be called at trial have been prepared, and not yet
exchanged, they shall be exchanged by this date, but shall not take the
place of the narrative statement.
The parties shall also confer in order:
c. To disclose to opposing counsel the intention to file a motion
pursuant to 16 leave to file transcript of deposition for introduction
at trial;
d. To resolve, if possible, any objections to the admission of oral
or documentary evidence;
e. To disclose to opposing counsel all contentions as to applicable
facts and law, unless previously disclosed;
f. To engage in good-faith, diligent efforts to stipulate and agree
to facts about which the parties know, or have reason to know, there can
be no dispute for the purpose of simplifying the issues at trial; and
g. To exhaust all possibilities of settlement.
11. Memorandum of Contentions of Fact and Law. Unless the judge
orders the filing of simultaneous memoranda or requires filing of
proposed findings of fact, see 11a-b, in addition to the other
memoranda called for, no later than 45 days before the pretrial
conference, plaintiff shall file a Memorandum of Contentions of Fact and
Law containing a summary of plaintiff's basic factual contentions
together with any applicable legal authority. The memorandum shall
contain a full but concise exposition of plaintiff's theory of the case
and a statement in narrative form of what plaintiff expects to prove.
The memorandum shall also address all anticipated legal questions,
including evidentiary problems, that plaintiff expects may arise during
the course of trial. If plaintiff believes bifurcation of issues for
trial is appropriate, the memorandum shall contain a request therefor,
together with a statement of reasons. No later than 21 days before the
pretrial conference, defendant shall file its responsive memorandum with
the same form and contents as plaintiff's.
a. Plaintiff's Proposed Findings of Fact. The judge may order
plaintiff to file proposed findings of fact in lieu of the memorandum of
factual contentions. Each proposed finding shall be listed on a
separate page.
b. Defendant's Proposed Findings of Fact. If the judge orders
proposed findings of fact, defendant shall respond to each of
plaintiff's proposed findings on the same page. Defendant may propose
additional findings of fact, on a separate page, to which plaintiff
shall respond on the same page.
12. Witness List. a. Each party shall file, together with the
Memorandum of Contentions of Fact and Law, a separate statement setting
forth a list of witnesses to be called at trial, other than those to be
used exclusively for impeachment. As to each witness, the party shall
indicate the specific topics to be addressed in the expected testimony
and the time needed for direct examination. Absent agreement of the
parties or a showing of a compelling reason for the failure timely to
identify the witness, no witness, expert or otherwise, will be permitted
to testify, other than for impeachment, who has not been identified in
time to allow the witness' deposition to be taken or the substance of
the witness' knowledge ascertained, or, in the case of an expert, to
allow the facts relief upon and opinions held by the expert to be
obtained by RCFC 26(b)(3)(A) or deposition.
b. Any party intending to present substantive evidence by way of
deposition testimony, other than as provided by Federal Rules of
Evidence 801(d), shall serve and file a separate motion for leave to
file the transcript of this testimony. The motion shall show cause why
the deposition testimony should be admitted and identify specifically
the portions of the transcript the party intends to use at trial. If
the motion is granted, only those portions of the transcript may be
filed.
13. Exhibit List. Each party shall file, together with the
Memorandum of Contentions of Fact and Law, a separate statement setting
forth a list of exhibits it expects to offer at trial, other than those
to be used exclusively for impeachment. In addition, any party
intending to introduce more than 50 document exhibits shall provide as
to each document, following its description, a short synopsis of the
relevant portion of its contents and a brief statement of the document's
significance to issues at trial. For multiple-page documents, reference
shall be made to specific page numbers.
14. Stipulations. The judge may direct the parties before or after
the pretrial conference to file a stipulation setting forth all matters
to which the parties stipulate.
15. Issues of Fact and Law. No later than the date for filing the
defendant's Memorandum of Contentions of Fact and Law, the parties shall
also file a joint statement setting forth the issues of fact and the
issues of law to be resolved by the court. Issues should be set forth
in sufficient detail to enable the court to resolve the case in its
entirety by addressing each of the issues listed. The statement of
issues shall control the admissibility of evidence at trial and evidence
will be deemed to be irrelevant unless it pertains to one or more of the
issues.
16. Responses. The parties are expected to cooperate in the
preparation of the documents specified in 11-15. Any responses to
matters raised by the opposing party should therefore be included in
each party's initial submission. However, if anything new or unexpected
is discovered, it may be addressed in a brief response which must be
filed under cover of motion for leave immediately upon learning of it.
28 USC VI. OTHER MATTERS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
17. Post-Trial Briefing. The judge may order the filing of
post-trial briefs. Post-trial briefing is not a matter of right.
(As amended Dec. 4, 1992.)
28 USC APPENDIX H
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC MOTIONS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. Factual Matters. Factual representations, other than those
pertaining to procedural aspects of the case which are personally known
to the signatory attorney, will be disregarded unless supported by:
a. A witness' affidavit or a declaration under penalty of perjury,
pursuant to 28 U.S.C. 1746, attached to the motion or found in the
pleadings or elsewhere in the record;
b. The transcript of a deposition or of trial testimony;
c. The testimony of a witness who appears at the hearing on the
motion;
d. Any of the other submissions referred to in RCFC 56(c); or
e. Any other evidence that would be admissible at trial.
2. Oral Argument. Oral argument ordinarily shall be heard on all
contested motions, other than motions to amend, for enlargement, to
shorten time limits, to file documents out of time or in excess of page
limits, to reschedule oral arguments, to substitute counsel, or to
reconsider matters, as to which one of the parties requests to be heard
by so stating in its initial brief.
(As amended Dec. 4, 1992.)
28 USC APPENDIX I
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC In the United States Court of Federal Claims
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC BILL OF COSTS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
XXXXXXXXXXXXXX No. XXXXXX
vs.
THE UNITED STATES
Judgment with costs having been entered in the above-entitled action
on the XXX day of XXXXXX, 199X, against XXXXXX, the clerk is requested
to tax the following as costs:
*Allowable duplication costs are restricted to briefs on
dispositive matters for a total of 5 copies; additional copies
allowable where third parties are present.
28 USC CERTIFICATION
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
State/District ofXXXXXXXX, ss.
County of XXXXXXXXXXXX,
I certify under penalty of perjury that the foregoing costs are
correct and were necessarily incurred in this action and that the
services for which fees have been charged were actually and necessarily
performed and that a copy hereof was this day mailed to XXXXXXXXXXXXXX
with postage fully prepaid thereon. Executed on XXXXXX
(Date)
(28 U.S.C. 1746)
XXXXXXXXXXXXXXXXXXX
(Signature of Attorney of Record)
XXXXXXXXXXXXXXXXXXX
(Address)
(As amended Dec. 4, 1992.)
28 USC APPENDIX J
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC VACCINE RULES OF THE OFFICE OF SPECIAL MASTERS OF THE UNITED
STATES COURT OF FEDERAL CLAIMS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC TITLE I. SCOPE OF RULES -- COMMENCEMENT OF PROCEEDINGS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
1. Scope of Rules.
These rules govern all proceedings before the United States Court of
Federal Claims Office of Special Masters pursuant to the National
Vaccine Injury Compensation Program established by 42 U.S.C. 300aa-10
(West Supp. 1991) (Vaccine Act). These rules are to be cited as the
Vaccine Rules. In all matters not specifically provided for by the
Vaccine Rules, the special master may regulate the applicable practice,
consistent with these rules and with the purpose of the Vaccine Act, to
decide cases promptly and efficiently. The RCFC apply only to the
extent referenced.
(As amended Dec. 4, 1992.)
2. Commencement of Proceedings.
(a) Petition. A proceeding for compensation under the Vaccine Act
shall be commenced by the filing of a petition, accompanied by the
documents required under 42 U.S.C. 300aa-11(c) and the Vaccine Rules,
in the United States Court of Federal Claims. Petitioner shall forward
an original and 2 copies of the petition, by mail or other delivery, to
Clerk, United States Court of Federal Claims, 717 Madison Place, N.W.,
Washington, D.C. 20005.
(b) Fee. The petition shall be accompanied by a $120.00 filing fee.
(c) Service upon Respondent. (1) Petitioner shall serve one copy of
the petition and accompanying documents upon the Secretary of Health and
Human Services, by first class or certified mail, c/o Director, Bureau
of Health Professionals, 5600 Fishers Lane, Suite 8-05, Rockville,
Maryland 20857. An executed certificate of such service shall accompany
the petition filed with the clerk.
(2) The clerk shall serve one copy of the petition on the Attorney
General.
(d) Content of the Petition. (1) The petition shall set forth a
short and plain statement of the grounds for an award of compensation.
The petition shall set forth to whom, when and where the vaccine in
question was administered and further shall describe specifically the
alleged injury. If an injury within the Vaccine Act's Vaccine Injury
Table, 42 U.S.C. 300aa-14(a), is claimed, the particular injury shall
be set forth. The petition shall also contain a specific demand for
relief to which petitioner asserts entitlement or a statement that such
demand will be deferred pursuant to 42 U.S.C. 300aa-11(e).
(2) Only one petition may be filed with respect to each
administration of a vaccine.
(e) Documents Required with the Petition. (1) As required by 42
U.S.C. 300aa-11(c), every petition shall be accompanied by the
following: (i) medical records and detailed affidavit(s) supporting all
elements of the allegations made in the petition. If petitioner's claim
does not rely on medical records alone, but is based in part on the
observations or testimony of any persons, the substance of each person's
proposed testimony in the form of an affidavit executed by the affiant
must accompany the petition. (ii) All available physician and hospital
records relating to (1) the vaccination itself; (2) the injury or
death, including, if applicable, any autopsy reports or death
certificate; (3) any post-vaccination treatment of the injured person,
including all in-patient and out-patient records, provider notes, test
results and medication records; and, if the person was younger than 5
years old when vaccinated, (4) the mother's pregnancy and delivery and
the infant's lifetime, including physicians' and nurses' notes and test
results and all well baby visit records, as well as, growth charts,
until the date of the vaccination. (iii) If any records required by the
rules are not submitted, an affidavit detailing the efforts made to
obtain such records and the reasons for their unavailability.
(2) If filed on behalf of a deceased person, or if filed by someone
other than the injured person or a parent of an injured minor, the
petition shall also be accompanied by documents establishing the
authority to file the petition in a representative capacity or a
statement explaining when such documentation will be available.
(3) All documents accompanying the petition shall be assembled into
one or more bound volumes or three-ring notebooks. Each bound volume or
notebook must contain the caption of the case and a table of contents,
and all pages of all documents shall be numbered consecutively.
(4) Petitions not accompanied by all the documents required by
statute and the Vaccine Rules, or an affidavit explaining why any
missing required documents are unavailable, will not be filed by the
clerk.
(As amended Dec. 4, 1992.)
28 USC TITLE II. PROCEEDINGS BEFORE THE SPECIAL MASTER
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
3. Role of the Special Master -- Generally.
(a) Assignment. Once a petition has been filed by the clerk, the
case shall be assigned by the chief special master to a special master
to conduct proceedings in accordance with the Vaccine Rules. All
proceedings prior to the issuance of the special master's decision are
to be conducted exclusively by the special master.
(b) Duties. The special master shall be responsible for conducting
all proceedings, including requiring such evidence as may be
appropriate, in order to prepare a decision, including findings of fact
and conclusions of law, determining whether an award of compensation
should be made under the Vaccine Act and the amount of any such award.
The special master shall determine the nature of the proceedings, with
the goal of making the proceedings expeditious, flexible, and less
adversarial, while at the same time affording each party a full and fair
opportunity to present its case and creating a record sufficient to
allow review of the special master's decision.
(c) Absence; Reassignment. In the absence of the special master to
whom a case is assigned, the chief special master may act on behalf of
the assigned special master, or designate another special master to act.
When necessary, the chief special master may reassign a case to another
special master.
4. Respondent's Review and Report.
(a) Respondent's Review of Completeness of the Records. Within 30
days of the filing of a petition, respondent shall review the medical
and other records to determine whether, in respondent's view, all
records necessary to enable respondent to evaluate the merits of the
claim have been supplied with the petition. If respondent considers
that relevant records are missing, petitioner's counsel shall
immediately be notified. If the parties disagree about the completeness
of the records filed or the relevance of requested records, either party
may request that the special master resolve the matter. If the special
master concludes that records called for by Vaccine Rule 2(e) have not
been submitted, the petition may be subject to dismissal, without
prejudice, under Vaccine Rule 21(c).
(b) Respondent's Report. Within 90 days after the filing of the
petition, respondent shall file a report that shall set forth a full and
complete statement of respondent's position as to why an award should or
should not be granted. The report shall contain respondent's medical
analysis of petitioner's claims. It shall also present any legal
arguments that respondent may have in opposition to the petition.
General denials are not sufficient.
5. Informal Review and Tentative Findings and Conclusions.
The special master shall schedule an off-the-record conference to be
held within 30 days of the filing of respondent's report pursuant to
Vaccine Rule 4(b). At this conference, after affording the parties an
opportunity to address each other's positions, the special master will
review the materials submitted, evaluate the respective positions, and
orally present tentative findings and conclusions. If necessary, the
special master shall schedule a subsequent status conference to be held
within 15 days at which petitioner and respondent shall advise whether
either party requests further proceedings, including filing of
dispositive motions or a hearing, or whether the special master should
enter a decision consistent with the tentative findings and conclusions.
6. Status Conferences.
The special master shall conduct conferences from time to time in
order to expedite the processing of the case. The conferences will be
informal in nature and ordinarily will be conducted by telephone
conference call. Either party may request a status conference at any
time. At such conferences, counsel for both parties will have the
opportunity to propose procedures by which to process the case in the
least adversarial, most efficient way possible.
7. Discovery.
There shall be no discovery as a matter of right.
(a) Informal Discovery Preferred. The informal and cooperative
exchange of information is the ordinary and preferred practice.
(b) Formal Discovery. If a party considers that informal discovery
is not sufficient, that party may seek to utilize the discovery
procedures provided in RCFC 26-36 by filing a motion indicating the
discovery sought and stating with particularity the reasons therefor,
including an explanation why informal techniques have not been
sufficient. Such a motion may also be made orally at a status
conference.
(c) Subpoena. When necessary, the special master upon request by a
party may approve the issuance of a subpoena. In so doing, the
procedures of RCFC 45 shall apply. See Appendix L.
(As amended Dec. 4, 1992.)
8. Taking of Evidence and Argument; Decision.
(a) General. The special master in each case, based on the specific
circumstances thereof, shall determine the format for taking evidence
and hearing argument. The particular format for each case will be
ordered after consultation with the parties.
(b) Evidence. In receiving evidence, the special master will not be
bound by common law or statutory rules of evidence. The special master
will consider all relevant, reliable evidence, governed by principles of
fundamental fairness to both parties. Evidence may be taken in the form
of documents, affidavits, oral testimony at a hearing in person or via
telephone; or even, in appropriate circumstances, video tape. Sworn
written testimony may be submitted in lieu of oral testimony.
(c) Argument. Argument may be received by telephone conference call
or at a hearing or in written submissions. The special master may
establish requirements for such filings, e.g., contents or page
limitations, as appropriate.
(d) Decision Without Evidentiary Hearing. The special master may
decide a case on the basis of written filings without an evidentiary
hearing. In addition, the special master may decide a case on summary
judgment, adopting procedures set forth in RCFC 56 modified to the needs
of the case.
(e) Hearing. When necessary, the special master may conduct an
evidentiary hearing. The special master will determine the format for
such a hearing. The special master may permit testimony at such a
hearing via telephone. The special master may permit direct examination
of a witness or may permit or require that the direct testimony be
submitted in written form. The special master may question a witness
and may, on request, permit questioning by opposing counsel. The clerk
or counsel, may issue a subpoena requiring the attendance of a witness
at such hearing. A transcript of the hearing shall be prepared in
conformity with RCFC 59(b) and 80 and Appendix A.
(f) Waiver of Argument. Any fact or argument not raised specifically
in the record before the special master shall be considered waived and
cannot be raised by either party in proceedings on review of a special
master's decision. This rule shall not apply to legal arguments raised
by the party that stands in the role of the appellee on review.
(As amended Dec. 4, 1992.)
9. Suspension of Proceedings.
(a) General. On the motion of a party, for good cause shown, the
special master may suspend proceedings on the petition. The special
master shall grant one such suspension for 30 days on the motion of
either party. Further motions by either party for the suspension may be
granted, totalling not more than 150 additional days, in the special
master's discretion.
(b) Chief Special Master. On motion of a party in a case involving
the administration of a vaccine before October 1, 1988, or on the chief
special master's own motion, the chief special master may, in the
interest of justice, suspend proceedings on any petition for up to 540
days in addition to the period of suspension allowable under Vaccine
Rule 9(a).
(c) Effect. Such periods of suspension shall be excluded for
purposes of the time limitations of 42 U.S.C. 300aa-12(d)(3) and
Vaccine Rules 4(b) and 10.
(d) Transition Rule. All periods of suspension prior to December 20,
1989, shall be excluded pursuant to Vaccine Rule 9(b). However, if such
periods of suspension total more than 90 days in a given case, in
computing the 180-day limit of Vaccine Rule 9(a), only 90 of such days
shall be counted.
10. Special Master's Decision.
(a) General. The special master shall issue a final decision
determining whether or not an award of compensation shall be made, and,
if so, the amount thereof. This decision shall be filed within 240 days
of the date on which the petition was filed, exclusive of periods of
suspension pursuant to Vaccine Rule 9.
(b) Certain Retrospective Cases. In cases in which the vaccination
in question occurred prior to October 1, 1988, and in which the vaccine
recipient is not deceased, the special master shall defer ruling on the
limited issue of the amount of any compensation for lost earnings and
pain and suffering, 42 U.S.C. 300aa-15(a)(3) and (4), and combine that
ruling with the decision under Vaccine Rule 13.
28 USC TITLE III. JUDGMENT AND FURTHER PROCEEDINGS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
11. Judgment.
(a) In Absence of Motion for Review. In the absence of the filing of
a motion for review within 30 days of the filing of the special master's
decision, or if prior to the expiration of such period each party files
a notice stating that it will not seek such review, the clerk shall
forthwith enter judgment in accordance with the special master's
decision.
(b) Stipulation for Judgment. Any stipulation for a money judgment
shall be signed by authorized representatives of the Secretary of Health
and Human Services and the Attorney General.
12. Election.
(a) General. When no motion for review by the Court of Federal
Claims of a decision pursuant to Vaccine Rule 10 is filed by either
party, see RCFC Appendix J, Review of Decision of Special Masters
rendered pursuant to the National Vaccine Injury Compensation Program,
petitioner shall, within 90 days after the entry of judgment, file with
the clerk an election in writing either (1) to accept the judgment or
(2) to file a civil action for damages for the alleged injury or death.
Upon failure to file an election within the time prescribed, petitioner
shall be deemed to have filed an election to accept the judgment.
(b) Declining Award. An election to decline an award of compensation
may be accompanied by a motion for the limited compensation provided by
42 U.S.C. 300aa-15(f)(2). If such a motion has not been filed by the
time the election is filed, petitioner will be deemed to have waived
that limited compensation. Such motion shall be forwarded to the
special master for a decision thereon. The decision of the special
master on the motion shall be considered a separate decision for
purposes of Vaccine Rules 11 and 18.
(As amended Dec. 4, 1992.)
13. Attorneys' Fees and Costs.
Any request for attorneys' fees and costs pursuant to 42 U.S.C.
300aa-15(e) shall be filed no later than 21 days following the filing of
an election pursuant to Vaccine Rule 12. The clerk shall forward the
fee request to the special master to whom the case was assigned for
consideration and decision. The decision of the special master on the
fee request shall be considered a separate decision for purposes of
Vaccine Rules 11 and 18.
28 USC TITLE IV. GENERAL PROVISIONS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
14. Attorneys.
(a) Attorneys Eligible to Practice. Only attorneys who are members
of the bar of the United States Court of Federal Claims and who comply
with the Vaccine Rules may enter an appearance, file pleadings, and
practice before the Office of Special Masters. The clerk's office will
not accept for filing any pleading, motion, or other paper that is not
signed by the attorney of record in the case or by member of this bar
authorized to sign the attorney of record's name on the attorney of
record's behalf. For admission to the bar of the court, RCFC 81(b)
shall apply.
(b) Attorneys of Record. There shall be but one attorney of record
for a party in any case at any one time, and such attorney of record
shall be an individual, and not a firm, who has been admitted to
practice before the Court of Federal Claims. Any other attorneys
assisting the attorney of record shall be designated as of counsel. The
attorney of record shall include on all filings the attorney's name,
address, and telephone number. The attorney of record for each party
shall promptly file with the clerk a notice of any change in address.
(c) Change of Attorneys. RCFC 81(d) shall apply.
(d) Pro Se. An individual may represent himself or herself or a
member of the individual's immediate family as a party before the Office
of Special Masters. Any other party, however, must be represented by an
attorney who is admitted to practice before the Court of Federal Claims.
The terms counsel or attorney in the Vaccine Rules shall include pro se
litigants.
(As amended Dec. 4, 1992.)
15. Third Parties.
No person may intervene in a vaccine injury compensation proceeding.
However, the special master shall afford all interested persons an
opportunity to submit relevant written information. Such information
may be submitted within 60 days of publication of notice of the petition
in the Federal Register, or later with leave of the special master.
16. Caption of All Filings.
The petition and other filings before the Office of Special Masters
shall be captioned with the appropriate title, as follows:
28 USC (TITLE OF FILING)
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
28 USC XXXXXXXX
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
In pleadings and papers other than the petition, the name of the
special master assigned to the case shall appear under the docket
number.
(As amended July 15, 1992; Dec. 4, 1992.)
17. Filing and Service of Papers After the Petition.
(a) Filing with the Clerk Defined. All pleadings and other papers
required to be filed with the clerk by the Vaccine Rules or by order of
the special master shall be forwarded to the clerk of the court at the
address noted in Vaccine Rule 2. A document is filed with the Office of
Special Masters when actually received and marked filed by the clerk,
not when mailed. All matters shall be brought to the attention of the
Office of Special Masters through filings with the clerk rather than by
correspondence.
(b) Service. A copy of every document filed by any party with the
clerk shall be served on the opposing party's attorney or the opposing
party pro se, if no appearance of attorney has been entered. A
certificate of service showing date of service shall be appended to the
original and copies thereof.
(c) Date. Each filing shall bear on the signature page the date on
which it is signed.
(d) Number of Copies. The parties shall file an original and 2
copies of each paper required by the Vaccine Rules to be filed with the
clerk.
18. Availability of Filings.
(a) General. All filings with the clerk pursuant to the Vaccine
Rules are to be made available only to the special master, judge, and
parties, with the exception of certain court-produced documents as set
forth in part (b) of this rule. A transcript prepared pursuant to Rule
8(e) shall be considered a filing for purposes of this rule.
(b) Decisions and Certain Substantive Orders. All decisions of
special masters, and any other substantive orders of a special master
that the special master designates to be of precedential value, will be
made available to the public, unless the document contains (1) trade
secret or commercial or financial information that is privileged and
confidential or (2) medical or similar information, the disclosure of
which would constitute a clearly unwarranted invasion of privacy. When
such a decision or designated substantive order is filed with the clerk,
the petitioner will be afforded 14 days to identify and move to delete
such information prior to disclosure of the document. If, upon review,
the special master agrees that the identified material fits the above
description, such material shall be deleted for the purpose of public
access.
19. Time.
(a) Computation. In computing any period of time, 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 federal
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 clerk's office
inaccessible, in which event the period runs until the end of the next
day which is not a Saturday, a Sunday, or a holiday. When the period of
time prescribed or allowed is less than 11 days, intermediate Saturdays,
Sundays, and holidays shall be excluded in the computation. Service by
mail is complete upon mailing, but filing is not.
(b) Enlargement. Motions for enlargement of time may be granted for
good cause shown. A motion shall set forth the reason or reasons upon
which the motion is based. Such motion must contain a representation
that the moving party has discussed the motion with opposing counsel and
a statement whether an opposition will be filed or, if opposing counsel
cannot be consulted, an explanation of the efforts made to do so.
(c) Additional Time After Service by Mail. Whenever a party has the
right or is required to do some act within a prescribed period after the
service of a paper, and the service is made by mail, 3 calendar days
shall be added to the prescribed period, unless the special master
orders otherwise.
20. Motions.
(a) Motions. A motion to the special master, unless made orally,
shall be made in writing, shall state with particularity the grounds
therefor, shall set forth the relief or order sought, and shall be filed
with the clerk. Any motion, objection, or response may be accompanied
by a memorandum, and, if necessary, by supporting affidavits. Any
motion may be accompanied by a proposed order.
(b) Responses and Replies. Unless otherwise provided by the special
master, any response or objection to a written motion shall be filed
within 14 days after service of the motion, and any reply shall be filed
within 7 days after service of the response or objection.
(c) Oral Argument. Oral argument on a motion may be scheduled by the
special master. A party desiring oral argument on a motion shall so
request in the motion or response.
21. Dismissal of Petitions.
(a) Voluntary Dismissal; Effect Thereof. A petition may be
dismissed by petitioner without order of the special master (1) by
filing a notice of dismissal at any time before service of respondent's
report or (2) by filing a stipulation of dismissal signed by all parties
who have appeared in the proceeding. Unless otherwise stated in the
notice of dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal may, in the discretion of the special
master, be deemed to operate as an adjudication upon the merits when
filed by a petitioner who has previously dismissed the same claim in the
Office of Special Masters of the Court of Federal Claims or in the court
itself.
(b) Failure To Prosecute or Participate. If petitioner fails to
prosecute, the petition may be dismissed pursuant to Vaccine Rule 21(c).
No judgment shall be entered against respondent despite any failure of
participation unless petitioner introduces evidence establishing a right
to compensation.
(c) Involuntary Dismissal. For failure of petitioner to prosecute or
to comply with the Vaccine Rules or any order of the special master, the
special master may dismiss a petition or any claim therein.
(As amended Dec. 4, 1992.)
28 USC TITLE V. REVIEW OF DECISIONS OF SPECIAL MASTERS RENDERED
PURSUANT TO THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
22. General. The following procedures apply to motions filed with the
United States Court of Federal Claims seeking review of decisions from
the Office of Special Masters of the United States Court of Federal
Claims in actions filed pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. 300aa-10 (West Supp. 1991). The RCFC
apply except as provided hereinafter.
(As amended Dec. 4, 1992.)
28 USC TITLE VI. OBTAINING REVIEW OF A DECISION BY A SPECIAL MASTER
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
23. Motion for Review and Objections.
To obtain review of a special master's decision, within 30 days after
the date on which the decision is filed, a party must file with the
clerk a motion for review of the decision. No extensions of time under
this rule will be permitted, and the failure of a party to timely file
such a motion shall constitute a waiver of the right to obtain review.
24. Memorandum of Objections.
The motion for review must be accompanied by a memorandum of numbered
objections to the decision. This memorandum must fully and specifically
state and support each objection to the decision. The memorandum shall
cite specifically to the record created by the special master, e.g., to
specific page numbers of the transcript, exhibits, etc., and should also
fully set forth any legal argument the party desires to present to the
reviewing judge. The memorandum shall be limited to 20 pages and must
conform to the provisions of RCFC 82.
(As amended Dec. 4, 1992.)
25. Response.
a. If a motion for review is filed, the other party may file a
response thereto within 30 days of the filing of the motion. No
extensions of time under this rule will be permitted, and the failure of
a party timely to file such a response shall constitute a waiver of the
right to respond. The response shall be in memorandum form and shall
fully respond to each numbered objection. The memorandum shall cite
specifically to the record created by the special master, e.g., to
specific page numbers of the transcript, exhibits, etc., and should also
fully set forth any legal argument the party desires to present to the
reviewing judge. The memorandum shall be limited to 20 pages and must
conform to the provisions of RCFC 82.
b. If both parties file motions for review, each party may file a
response to the other party's motion.
(As amended Dec. 4, 1992.)
28 USC TITLE VII. JUDGE'S REVIEW
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
26. Assignment.
When a motion for review is filed with the clerk, the case will be
assigned to a Court of Federal Claims judge to conduct the review.
(As amended Dec. 4, 1992.)
27. Review.
The assigned judge shall undertake a review of the objections raised
and may thereafter:
a. uphold the findings of fact and conclusions of law and sustain the
special master's decision;
b. set aside any finding of fact or conclusion of law found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law and issue the judge's own decision; or
c. remand the case to the special master for further action in
accordance with the judge's direction.
28. Time for Review.
The judge shall complete the review within 120 days of the last date
for the filing of a response under 3, excluding any days the case is
before a special master on remand. If the judge remands the case to a
special master, the total period for any remands shall not exceed 90
days.
29. Withdrawal of Petition.
If the judge fails to direct entry of judgment within 420 days after
the date on which a petition was filed, excluding any periods of
suspension pursuant to Vaccine Rule 9 or remands pursuant to 5c, after
the date on which a petition was filed, the petitioner may file a notice
to continue or withdraw the petition. Such a notice shall be filed
within 90 days after the expiration of the 420-day period.
28 USC TITLE VIII. JUDGMENT AND FURTHER PROCEEDINGS
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
30. Judgment.
a. After Review. After review and decision by a judge, the clerk
shall forthwith enter judgment in accordance with the judge's decision.
b. Stipulation for Judgment. Any stipulation for a money judgment
shall be signed by authorized representatives of the Secretary of Health
and Human Services and the Attorney General.
31. Reconsideration.
If a party seeks reconsideration of a judge's decision, RCFC 59 shall
apply.
(As amended Dec. 4, 1992.)
32. Notice of Appeal.
Review of a Court of Federal Claims judgment by the United States
Court of Appeals for the Federal Circuit may be obtained by filing with
the clerk of the Federal Circuit a petition for review within 60 days of
the date of the entry of judgment.
(As amended Dec. 4, 1992.)
33. Election.
a. General. After judgment on the merits is entered pursuant to 8a,
the petitioner shall within 90 days file with the clerk an election in
writing either (1) to accept the judgment or (2) to file a civil action
for damages for the alleged injury or death. Upon failure to file an
election within the time prescribed, the petitioner shall be deemed to
have filed an election to accept judgment.
b. Declining Award. An election to decline an award of compensation
may be accompanied by a motion for the limited compensation provided by
42 U.S.C. 300aa-15(f)(2). If such a motion has not been filed by the
time the election is filed, the petitioner will be deemed to have waived
that limited compensation. Such motion shall be forwarded to the
special master for a decision thereon. The decision of the special
master on the motion shall be considered a separate decision for
purposes of 1, 6, 8a and 13, except that, upon review of such a
decision, the time limitations of 6-7 shall not apply, and memoranda
filed pursuant to 2-3 shall be limited to 20 pages.
c. When Appeal Is Taken. If a petition for review is taken to the
Federal Circuit, the election is to be made within 90 days of the
issuance of the appellate court's mandate or of a subsequent judgment of
the Court of Federal Claims if the appellate court should order a
remand.
(As amended Dec. 4, 1992.)
34. Attorneys' Fees and Costs. Any request for attorneys' fees and
costs pursuant to 42 U.S.C. 300aa-15(e) shall be filed no later than 21
days following the filing of an election pursuant to 11a. The clerk
shall forward the fee request to the special master to whom the case was
assigned for consideration and decision. The decision of the special
master on the fee request shall be considered a separate decision for
purposes of 1, 6, 8a and 13, except that upon review of a fee
decision, the time limitations of 6-7 shall not apply, and memoranda
filed pursuant to 2-3 shall be limited to 15 pages.
35. Availability of Filings.
a. General. All filings with the clerk pursuant to these rules are to
be made available only to the court and parties with the exception of
certain court-produced documents as set forth in b.
b. Decisions and Certain Substantive Orders. All decisions of the
court and any other substantive orders which the court designates to be
of precedential value, will be made available to the public unless the
document contains (1) trade secret or commercial or financial
information that is privileged and confidential or (2) medical or
similar information, the disclosure of which would constitute a clearly
unwarranted invasion of privacy. When such a decision or designated
substantive order is filed with the clerk, the petitioner will be
afforded 14 days to identify and move to delete such information prior
to disclosure of the document. If, upon review, the court agrees that
the identified material fits the above description, such material shall
be deleted from public access.
SAVE PAGE FOR ILLUSTRATION
28 USC App. K. In the U.S. Court of Federal Claims -- Cover Sheet
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
SAVE PAGE FOR ILLUSTRATION
28 USC App. K. Page 2
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
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28 USC App. K. Page 3
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(As amended Dec. 4, 1992.)
SAVE PAGE FOR ILLUSTRATION
28 USC App. L. United States Court of Federal Claims Subpoena
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
SAVE PAGE FOR ILLUSTRATION
28 USC App. L. Page 2
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(As amended Dec. 4, 1992.)
SAVE PAGE FOR ILLUSTRATION
28 USC App. L. Vaccine Subpoena
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
SAVE PAGE FOR ILLUSTRATION
28 USC App. L. Page 2
TITLE 28, APPENDIX -- RULES OF COURT OF FEDERAL CLAIMS
(As amended Dec. 4, 1992.)
28 USC TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
Rule
1. Scope of Rules.
2. One Form of Action.
SUMMONS; SERVICE OF SUMMONS, PLEADINGS, MOTIONS AND
ORDERS
3. Commencement of Action.
(a) Commencement.
(b) Filing Fee.
(c) Information Statement.
(d) Amendment of Summons.
(e) Notice to Interested Parties.
(f) Precedence of Action.
4. Service of Summons and Complaint.
(a) Summons -- Service by the Clerk.
(b) Summons and Complaint -- Service by Plaintiff.
(c) Service.
(d) Summons and Complaint -- Person To Be Served.
(e) Return.
(f) Amendment of Proof of Service.
(g) Alternative Provisions for Service in a Foreign Country.
(h) Summons and Complaint -- Time Limit for Service.
5. Service and Filing of Pleadings and Other Papers.
(a) Service -- When Required.
(b) Service -- How Made.
(c) Service -- Numerous Defendants.
(d) Filing -- When Required.
(e) Filing -- How Made.
(f) Filing of Summons and Complaint by Mail.
(g) Proof of Service.
6. Time.
(a) Computation.
(b) Extension.
(c) Additional Time After Service by Mail.
7. Pleadings Allowed -- Consultation -- Oral Argument -- Response
Time -- Show Cause Order -- Form of Motions.
(a) Pleadings.
(b) Motions -- Consultation.
(c) Oral Argument.
(d) Time to Respond.
(e) Order to Show Cause.
(f) Form of Motions and Other Papers.
(g) Dispositive Motions Defined.
8. General Rules of Pleading.
(a) Claims for Relief.
(b) New Grounds.
(c) Defenses -- Form of Denials.
(d) Affirmative Defenses.
(e) Effect of Failure to Deny.
(f) Pleading To Be Concise and Direct -- Consistency.
(g) Construction of Pleadings.
9. Pleading Special Matters.
(a) Capacity.
(b) Fraud, Mistake, Condition of the Mind.
(c) Conditions Precedent.
(d) Official Document or Act.
(e) Judgment.
(f) Time and Place.
(g) Special Damage.
10. Form of Pleadings.
(a) Caption -- Names of Parties.
(b) Paragraphs -- Separate Statements.
(c) Adoption by Reference -- Exhibits.
11. Signing of Pleadings, Motions or Other Papers -- Sanctions.
12. Defenses and Objections -- When and How Presented -- By Pleading
or Motion -- Motion for Judgment on the Pleadings.
(a) When Presented.
(b) How Presented.
(c) Motion for Judgment on the Pleadings.
(d) Preliminary Hearings.
(e) Motion for More Definite Statement.
(f) Motion To Strike.
(g) Consolidation of Defenses in Motion.
(h) Waiver or Preservation of Certain Defenses.
13. Counterclaim and Cross-Claim.
(a) Counterclaims.
(b) Counterclaim Exceeding Opposing Claim.
(c) Counterclaim Against the United States.
(d) Counterclaim Maturing or Acquired After Pleading.
(e) Omitted Counterclaim.
(f) Cross-Claim Against Co-Party.
(g) Joinder of Additional Parties.
(h) Separate Trials -- Separate Judgments.
14. Third-Party Practice.
(a) When Defendant May Bring in Third Party.
(b) When Plaintiff May Bring in Third Party.
15. Amended and Supplemental Pleadings.
(a) Amendments.
(b) Amendments To Conform to the Evidence.
(c) Relation Back of Amendments.
(d) Supplemental Pleadings.
16. Postassignment Conferences -- Scheduling -- Management.
(a) Postassignment Conferences -- Objectives.
(b) Scheduling and Planning.
(c) Subjects to be Discussed at Postassignment Conferences.
(d) Final Postassignment Conference.
(e) Orders.
(f) Sanctions.
17. Parties Plaintiff and Defendant -- Capacity.
(a) Real Party in Interest.
(b) Capacity To Sue or Be Sued.
(c) Infants or Incompetent Persons.
18. Joinder of Claims and Remedies.
(a) Joinder of Claims.
(b) Joinder of Remedies.
19. Joinder of Persons Needed for Just Adjudication.
(a) Persons To Be Joined if Feasible.
(b) Determination by Court Whenever Joinder Not Feasible.
(c) Pleading Reasons for Nonjoinder.
(d) Exception of Class Actions.
20. Permissive Joinder of Parties.
(a) Permissive Joinder.
(b) Separate Trials.
21. Misjoinder and Nonjoinder of Parties.
22. (Reserved.)
23. Class Actions.
(a) Prerequisites to a Class Action.
(b) Class Actions Maintainable.
(c) Determination by Order Whether Class Action To Be Maintained --
Notice -- Judgment -- Actions Conducted Partially as Class Actions.
(d) Orders in Conduct of Actions.
(e) Dismissal or Compromise.
23.1. Actions Relating to Unincorporated Associations.
24. Intervention.
(a) Intervention of Right.
(b) Permissive Intervention.
(c) Procedure.
25. Substitution of Parties.
(a) Death.
(b) Incompetency.
(c) Transfer of Interest.
(d) Public Officers -- Death or Separation From Office.
26. General Provisions Governing Discovery.
(a) Discovery Methods.
(b) Discovery Scope and Limits.
(c) Protective Orders.
(d) Sequence and Timing of Discovery.
(e) Supplementation of Responses.
(f) Discovery Conference.
(g) Signing of Discovery Requests, Responses, and Objections.
(h) Costs.
27. Depositions Before Action or Pending Appeal.
(a) Before Action.
(b) Pending Appeal.
(c) Perpetuation by Action.
28. Persons Before Whom Depositions May Be Taken -- Commissions and
Letters Rogatory.
(a) Within the United States.
(b) In Foreign Countries.
(c) Commissions and Letters Rogatory -- How Issued -- When Issued --
Interrogatories -- Objections to Interrogatories.
(d) Commissions and Letters Rogatory -- To Whom Issued -- Taking of
Testimony -- Use of Testimony.
(e) Return, Notice, Filing of Deposition.
(f) Disqualification for Interest.
29. Stipulations Regarding Discovery Procedure.
30. Depositions Upon Oral Examination.
(a) When Depositions May Be Taken.
(b) Notice of Examination -- General Requirements -- Special Notice
-- Nonstenographic Recording -- Production of Documents and Things --
Deposition of Organization -- Deposition by Telephone.
(c) Examination and Cross-Examination -- Record of Examination --
Oath -- Objections.
(d) Motion To Terminate or Limit Examination.
(e) Submission to Witness -- Changes -- Signing.
(f) Certification and Filing by Officer -- Exhibits -- Copies --
Notice of Filing.
(g) Failure to Attend or to Serve Subpoena -- Expenses.
31. Deposition Upon Written Questions.
(a) Serving Questions -- Notice.
(b) Officer To Take Responses and Prepare Record.
(c) Notice of Filing.
32. Use of Depositions in Court Proceedings.
(a) Use of Depositions.
(b) Objections to Admissibility.
(c) Effect of Errors and Irregularities in Depositions.
33. Interrogatories to Parties.
(a) Availability -- Procedures for Use.
(b) Scope -- Use at Trial.
(c) Option To Produce Business Records.
34. Production of Documents and Things and Entry Upon Land for
Inspection and Other Purposes.
(a) Scope.
(b) Procedure.
(c) Persons Not Parties.
35. Physical and Mental Examinations of Persons.
(a) Order for Examination.
(b) Report of Examiner.
36. Requests for Admission.
(a) Request for Admission.
(b) Effect of Admission.
37. Failure To Make or Cooperate in Discovery -- Sanctions.
(a) Motion for Order Compelling Discovery.
(b) Failure To Comply With Order.
(c) Expenses on Failure to Admit.
(d) Failure of Party To Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection.
(e) Subpoena of Person in Foreign Country.
(f) Failure to Participate in the Framing of a Discovery Plan.
38. Jury Trial of Right.
(a) Right Preserved.
(b) Demand.
(c) Demand Specification of Issues.
(d) Waiver.
39. Trial by Jury or by the Court.
(a) By Jury.
(b) By the Court.
(c) Advisory Jury and Trial by Consent.
40. Request for Trial.
(a) Request.
(b) Designation.
(c) Premarking Exhibits.
41. Dismissal of Actions.
(a) Voluntary Dismissal -- Effect Thereof.
(b) Involuntary Dismissal -- Effect Thereof.
(c) Insufficiency of Evidence.
(d) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.
(e) Costs of Previously Dismissed Action.
42. Consolidation -- Separate Trials.
(a) Consolidation.
(b) Separate Trials.
43. Taking of Testimony.
(a) Form.
(b) Affirmation in Lieu of Oath.
(c) Evidence on Motions.
(d) Interpreters.
(e) Documents Specially Admissible.
44. Proof of Official Record.
(a) Authentication.
(b) Lack of Record.
(c) Other Proof.
44.1. Determination of Foreign Law.
45. Subpoena.
(a) Form; Issuance.
(b) Service.
(c) Protection of Persons Subject to Subpoenas.
(d) Duties in Responding to Subpoena.
(e) Contempt.
46. Exceptions Unnecessary.
47. Jurors.
(a) Examination of Jurors.
(b) Peremptory Challenges.
(c) Excuse.
48. Number of Jurors -- Participation in Verdict.
49. Special Verdicts and Interrogatories.
(a) Special Verdicts.
(b) General Verdict Accompanied by Answer to Interrogatories.
50. Judgment as a Matter of Law in Actions Tried by Jury;
Alternative Motion for New Trial; Conditional Rulings
(a) Judgment as a Matter of Law.
(b) Renewal of Motion for Judgment After Trial; Alternative Motion
for New Trial.
(c) Same: Conditional Rulings on Grant of Motion for Judgment as a
Matter of Law.
(d) Same: Denial of Motion for Judgment as a Matter of Law.
51. Instructions to Jury -- Objection.
52. Findings by the Court; Judgment on Partial Findings.
(a) Effect.
(b) Amendment.
(c) Judgment on Partial Findings.
53. Masters.
(a) Appointment and Compensation.
(b) Reference.
(c) Powers.
(d) Proceedings.
(e) Report.
54. Judgments.
(a) Definition -- Form.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties.
(c) Demand for Judgment.
55. Default.
(a) Entry.
(b) Judgment.
(c) Setting Aside Default.
(d) Plaintiffs, Counterclaimants, Cross-Claimants.
(e) Judgment Against the United States.
56. Summary Judgment.
(a) For Claimant.
(b) For Defending Party.
(c) When Leave Is Required.
(d) Motion and Proceedings Thereon.
(e) Case Not Fully Adjudicated on Motion.
(f) Form of Affidavits -- Further Testimony -- Defense Required.
(g) When Affidavits Are Unavailable.
(h) Affidavits Made in Bad Faith.
(i) Annexation of Statement.
56.1. Judgment Upon an Agency Record for an Action Other Than That
Described in 28 U.S.C. 1581(c).
(a) Motion for Judgment.
(b) Cross-Motions.
(c) Briefs.
(d) Time to Respond.
(e) Hearing.
(f) Partial Judgment.
56.2 Judgment upon an Agency Record for an Action Described in 28
U.S.C. 1581(c).
(a) Proposed Briefing Schedule and Joint Status Report.
(b) Cross-Motions.
(c) Briefs.
(d) Time to Respond.
(e) Hearing.
(f) Partial Judgment.
(g) Voluntary Dismissal -- Time Limitation.
57. Declaratory Judgments.
58. Entry of Judgments, Decrees or Final Orders.
58.1. Stipulated Judgment on Agreed Statement of Facts -- General
Requirements.
59. New Trials -- Rehearings -- Amendment of Judgments.
(a) Grounds.
(b) Time for Motion.
(c) Time for Serving Affidavits.
(d) On Initiative of Court.
(e) Motion To Alter or Amend a Judgment.
60. Relief From Judgment or Order.
(a) Clerical Mistakes.
(b) Mistakes, Inadvertence, Excusable Neglect -- Newly Discovered
Evidence -- Fraud, Etc.
61. Harmless Error.
62. Stay of Proceedings To Enforce a Judgment.
(a) Automatic Stay -- Exceptions -- Injunctions.
(b) Stay on Motion for New Trial or Rehearing, or for Judgment.
(c) Injunction Pending Appeal.
(d) Stay Upon Appeal.
(e) Stay in Favor of the United States or Agency Thereof.
(f) Stay According to State Law.
(g) Stay of Judgment as to Multiple Claims or Multiple Parties.
63. Contempt.
64. Seizure of Person or Property.
65. Injunctions.
(a) Preliminary Injunction.
(b) Temporary Restraining Order -- Notice -- Hearing -- Duration.
(c) Security.
(d) Form and Scope of Injunction or Restraining Order.
65.1. Security -- Proceedings Against Sureties.
66. Receivers Appointed by Federal Courts.
67. Deposit in Court.
67.1. Deposit in Court Pursuant to Rule 67.
(a) Order for Deposit -- Interest Bearing Account.
(b) Orders Directing Investment of Funds by Clerk.
68. Attorney's Fees and Expenses.
(a) Time for Filing.
(b) Content of Application.
(c) Response and Reply.
69. Execution.
(a) In General.
(b) Against Certain Public Officers.
70. Documents in an Action Described in 28 U.S.C. 1581(a) or (b).
71. Documents in an Action Described in 28 U.S.C. 1581(c) or (f).
(a) Actions Described in 28 U.S.C. 1581(c).
(b) Alternative Procedure in an Action Described in 28 U.S.C.
1581(c).
(c) Confidential or Privileged Information in an Action Described in
28 U.S.C. 1581(c).
(d) Documents in an Action Described in 28 U.S.C. 1581(f).
(e) Documents Filed -- Copies.
(f) Filing of the Record With the Clerk of the Court -- What
Constitutes.
72. Documents in All Other Actions Based Upon the Agency Record.
(a) Documents Furnished in All Other Actions Based Upon the Agency
Record.
(b) Stipulations.
(c) Documents Filed -- Copies.
73. Time for Filing Documents -- Notice of Filing.
(a) Time.
(b) Notice.
74. Admission to Practice.
(a) Qualifications.
(b) Procedure.
(c) Admission of Foreign Attorneys.
(d) Pro Hac Vice Applications.
(e) Disbarment or Other Disciplinary Action.
75. Practice -- Appearance -- Substitution of Attorneys --
Withdrawal of Attorney -- Notification of Changes.
(a) Practice.
(b) Appearances.
(c) Substitution of Attorneys.
(d) Withdrawal of Attorney.
(e) Notification of Changes.
76. Amicus Curiae.
77. Sessions of the Court.
(a) Court Always Open.
(b) Trials and Proceedings -- Orders in Chambers.
(c) Place of Trials or Hearings.
(d) Photography, Tape Recording and Broadcasting.
(e) Assignment and Reassignment of Actions.
(f) Judge and Court -- Defined.
77.1. Judicial Conference.
(a) Purpose.
(b) Composition.
(c) Registration Fee.
78. Motion Part.
(a) Motion Part -- Establishment.
(b) Motion Part -- Referral.
(c) Motion Part -- Emergency Matters.
79. Books and Records Kept by the Clerk and Entries Therein.
(a) Civil Docket.
(b) Judgments and Orders.
(c) Notice of Orders or Judgments.
80. Papers, Exhibits and Other Material.
(a) Custody and Control.
(b) Inspection.
(c) Withdrawal.
(d) Return and Removal.
(e) Reporting of Proceedings.
(f) Transcript of Proceedings.
(g) Fees.
81. Papers Filed -- Conformity -- Form, Size, Copies.
(a) Conformity Required.
(b) Means of Production.
(c) Caption and Signing.
(d) Numbering of Pages.
(e) Designation of Originals.
(f) Pleadings and Other Papers.
(g) Status of Action.
(h) Confidential Information.
(i) Briefs -- Trial and Pretrial Memoranda.
(j) Content -- Moving Party's Brief.
(k) Content -- Respondent's Brief.
(l) Content -- Reply Brief.
(m) General.
82. Clerk's Office and Orders by the Clerk.
(a) Business Hours and Address.
(b) Motions, Orders and Judgments.
(c) Clerk -- Definition.
(d) Filing of Papers.
83. Reserve Calendar.
(a) Reserve Calendar.
(b) Removal.
(c) Dismissal for Lack of Prosecution.
(d) Extension of Time.
84. Suspension Calendar.
(a) Suspension Calendar.
(b) Test Case Defined.
(c) Motion for Test Case Designation.
(d) Suspension Criteria.
(e) Motion for Suspension.
(f) Time.
(g) Effect of Suspension.
(h) Removal From Suspension.
85. Suspension Disposition Calendar.
(a) Suspension Disposition Calendar.
(b) Time -- Notice.
(c) Removal.
(d) Dismissal for Lack of Prosecution.
(e) Extension of Time.
86. (Reserved.)
87. Forms.
88. Title.
89. Effective Date.
(a) Effective Date of Original Rules.
(b) Effective Date of Amendments.
(c) Effective Date of Amendment.
(d) Effective Date of Amendments.
(e) Effective Date of Amendments.
(f) Effective Date of Amendments.
(g) Effective Date of Amendments.
(h) Effective Date of Amendments.
(i) Effective Date of Amendments.
(j) Effective Date of Amendments.
(k) Effective Date of Amendments.
(l) Effective Date of Amendments.
28 USC TITLE I -- SCOPE OF RULES -- ONE FORM OF ACTION
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 1. Scope of Rules
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
These rules govern the procedure in the United States Court of
International Trade. They shall be construed to secure the just,
speedy, and inexpensive determination of every action. When a
procedural question arises which is not covered by these rules, the
court may prescribe the procedure to be followed in any manner not
inconsistent with these rules. The court may refer for guidance to the
rules of other courts. The rules shall not be construed to extend or
limit the jurisdiction of the court.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985.)
28 USC Rule 2. One Form of Action
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
There shall be one form of action to be known as a ''civil action.''
/1/
/1/ Designation of Certain Pre-October 1, 1970 Actions. The
following designations shall apply to actions arising prior to October
1, 1970: (1) Appeal for Reappraisement: An action arising pursuant to
section 501 or 516(a) of the Tariff Act of 1930 (19 U.S.C. 1501 or
1516), as effective prior to October 1, 1970, and forwarded to the court
pursuant to section 501 or 516(c) of said Act, shall be known as an
appeal for reappraisement. (2) Protest: An action arising pursuant to
section 514 or 516(b) of the Tariff Act of 1930 (19 U.S.C. 1514 or
1516), as effective prior to October 1, 1970, and forwarded to the court
pursuant to section 515 or 516(c) of that Act (19 U.S.C. 1515 or 1516)
shall be known as a protest.
28 USC TITLE II -- COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS;
SERVICE OF SUMMONS, PLEADINGS, MOTIONS AND ORDERS
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 3. Commencement of Action
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Commencement. A civil action is commenced by filing concurrently
with the clerk of the court a summons and complaint except that the
following civil actions are commenced by filing a summons only:
(1) An action described in 28 U.S.C. 1581(a) or (b).
(2) An action described in 28 U.S.C. 1581(c) to contest a
determination listed in section 516A(a)(2) or (3) of the Tariff Act of
1930.
(b) Filing Fee. When an action is commenced, a $120 filing fee shall
be paid to the clerk of the court, except that a $25 filing fee shall be
paid when the action is one described in 28 U.S.C. 1581(d)(1).
(c) Information Statement. When an action is commenced, the party
commencing the action shall file the original and one copy of a
completed Information Statement on the form shown in Form 5 in the
Appendix of Forms.
(d) Amendment of Summons. The court may allow a summons to be
amended at any time, in its discretion and upon such terms as it deems
just, unless it clearly appears that material prejudice would result to
the substantial rights of the party against whom the amendment is
allowed.
(e) Notice to Interested Parties. In an action described in 28
U.S.C. 1581(c), the plaintiff, as provided in section 516A(d) of the
Tariff Act of 1930, shall notify every interested party who was a party
to the administrative proceeding of the commencement of the action, by
mailing a copy of the summons at the time the action is commenced, or
promptly thereafter, by certified or registered mail, return receipt
requested, to each such party at the address last known in the
administrative proceeding.
Upon filing of a complaint in an action described in 28 U.S.C.
1581(c), the plaintiff shall promptly serve a copy of the complaint, by
certified or registered mail, return receipt requested, on every
interested party who was a party to the administrative proceeding at the
address last known in that proceeding.
(f) Precedence of Action. Unless the court, upon motion for good
cause or upon its own initiative, determines otherwise in a particular
action, the following actions shall be given precedence, in the
following order, over other actions pending before the court, and
expedited in every way:
(1) An action seeking temporary or preliminary injunctive relief;
(2) An action involving the exclusion of perishable merchandise or
the redelivery of such merchandise;
(3) An action described in 28 U.S.C. 1581(c) to contest a
determination under section 516A of the Tariff Act of 1930;
(4) An action described in 28 U.S.C. 1581(a) to contest the denial
of a protest, in whole or in part, under section 515 of the Tariff Act
of 1930, involving the exclusion or redelivery of merchandise;
(5) An action described in 28 U.S.C. 1581(b) to contest a decision
of the Secretary of the Treasury under section 516 of the Tariff Act of
1930.
(As amended July 21, 1986, eff. Oct. 1, 1986; Dec. 3, 1986, eff.
Mar. 1, 1987; Sept. 25, 1992, eff. Jan. 1, 1993.)
For the appropriate summons form and number of copies to be filed,
refer to Forms 1 to 4 of the Appendix of Forms. Information Statement
forms, as shown in Form 5, are available upon request from the office of
the clerk.
As prescribed by Rule 5(e), a summons or a summons and complaint may
be filed by delivery or by mailing. The filing is completed when
received, except that when the method of mailing prescribed by Rule 5(g)
is used, the summons or summons and complaint are deemed filed as of the
date of mailing.
To provide information to assist a judge in determining whether there
is reason for disqualification upon the grounds of a financial interest,
under 28 U.S.C. 455, a completed ''Disclosure Statement'' form,
available upon request from the office of the clerk, must be filed by
certain corporations, trade associations, and others appearing as
parties, intervenors, or amicus curiae. A copy of the ''Disclosure
Statement'' form is shown in Form 13 of the Appendix of Forms.
Internal inconsistencies exist within the provisions of the Customs
Courts Act of 1980 with respect to the method of commencing two kinds of
actions. The two kinds are described in 28 U.S.C. 1581(d), adjustment
assistance actions, and 28 U.S.C. 1581(g), customhouse broker license
actions. Both of these are included among those actions which are,
pursuant to 28 U.S.C. 2632(a), to be commenced by filing concurrently a
summons and complaint with the clerk of the court as prescribed by the
rules of the court. The rules of the court require the plaintiff to
cause concurrent service of the summons and complaint to be made. (See
Rules 3(a) and 4(b)).
The inconsistency pertaining to adjustment assistance actions appears
in 19 U.S.C. 2395, which requires the clerk of the court, instead of
the plaintiff, to serve a copy of the summons and complaint upon the
Secretary of Labor or Secretary of Commerce as the case may be. The
inconsistency pertaining to customhouse broker license actions appears
in 19 U.S.C. 1641(b), which provides that an action is commenced by
filing ''a written petition'' in the court and further provides that a
copy of the petition is to be ''transmitted by the clerk of the court to
the Secretary of the Treasury. . . .''
Until such time as the matter is resolved, the preferred procedure to
achieve uniformity and consistency and to minimize the ambiguity created
by these inconsistent statutory provisions is to follow the provisions
in Title 28. (In one unreported case, James A. Barnhart v. United
States, Court No. 81-3-00328, the court directed plaintiff to comply
with the requirements of 28 U.S.C. 2632(a) by filing a summons and
complaint notwithstanding the fact that plaintiff had complied with the
requirements of 19 U.S.C. 1641(b) by filing a petition.)
As provided in Section 516A(a)(2) and (3) of the Tariff Act of 1930,
a complaint shall be filed within 30 days after the filing of the
summons. See Georgetown Steel v. United States, 801 F.2d 1308 (Fed.
Cir. 1986).
Nevertheless, counsel are encouraged to commence any action described
in Section 516A(a)(2) or (3) of the Tariff Act of 1930 and 28 U.S.C.
1581(c) by the concurrent filing of a summons and complaint. This will
serve to expedite the prosecution of the action.
When an action is commenced, counsel should contact the Clerk's
Office not more than 24 hours prior to filing to obtain a court number
and shall endorse that court number on the summons and complaint.
Counsel for plaintiff shall be responsible for service of the summons
and complaint as prescribed in Rules 4(b), (c), (d) and (e). Under
these circumstances, the clerk of the court will not make service of the
summons as prescribed in Rule 4(a)(4).
Sections 515, 516, and 516A of the Tariff Act of 1930, referred to in
subds. (a)(2), (e), and (f)(3) to (5), are classified to sections 1515,
1516, 1516a, respectively, of Title 19, Customs Duties.
28 USC Rule 4. Service of Summons and Complaint
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Summons -- Service by the Clerk. In any action required to be
commenced by filing a summons only, service of the summons shall be made
by the clerk of the court as follows:
(1) Upon the United States, by serving the Attorney General of the
United States, by delivering or by mailing a copy of the summons to the
Attorney-in-Charge, International Trade Field Office, Commercial
Litigation Branch, Department of Justice.
(2) When the action is described in 28 U.S.C. 1581(a) or (b), the
clerk shall, in addition to the service prescribed by paragraph (1) of
this subdivision (a), also serve the Secretary of the Treasury by
mailing a copy of the summons to the district director for the customs
district in which the protest was denied or in which the liquidation of
an entry is contested and to the Assistant Chief Counsel for
International Trade Litigation, United States Customs Service.
(3) When the action is described in 28 U.S.C. 1581(b), the clerk
shall, in addition to the service prescribed in paragraphs (1) and (2)
of this subdivision (a), also mail a copy of the summons to the
consignee or agent of the consignee involved in each entry included in
the action.
(4) When the action is described in 28 U.S.C. 1581(c) and contests a
determination listed in section 516A(a)(2) or (3) of the Tariff Act of
1930, the clerk shall, in addition to the service prescribed in
paragraph (1) of this subdivision (a), also mail a copy of the summons:
to the Secretary, United States International Trade Commission, when a
determination of that Commission is contested; and to the General
Counsel, Department of Commerce, when a determination of that Department
is contested.
(5) After making service as prescribed in this subdivision (a), the
clerk shall return a copy of the summons, together with proof of service
and a receipt for payment of the filing fee, to the person who filed the
summons.
(b) Summons and Complaint -- Service by Plaintiff. In any action
required to be commenced by the concurrent filing of a summons and
complaint, the plaintiff shall cause service of the summons and
complaint to be made in accordance with this rule.
(c) Service.
(1)(A) A summons and complaint shall, except as provided in
subparagraphs (B) and (C) of this paragraph, be served by any person who
is not a party and is not less than 18 years of age.
(B) A summons and complaint shall, at the request of the party
seeking service or such party's attorney, be served by a United States
marshal or deputy United States marshal, or by a person specially
appointed by the court for that purpose, only --
(i) on behalf of a party authorized to proceed in forma pauperis
pursuant to 28 U.S.C. 1915,
(ii) on behalf of the United States or an officer or agency of the
United States, or
(iii) pursuant to an order issued by the court stating that a United
States marshal or deputy United States marshal, or a person specially
appointed for that purpose, is required to serve the summons and
complaint in order that service be properly effected in that particular
action.
(C) A summons and complaint may be served upon a defendant of any
class referred to in paragraph (1) or (3) of subdivision (d) of this
rule --
(i) pursuant to the law of the State in which service is made for the
service of summons or other like process upon such defendant in an
action brought in the courts of general jurisdiction of that State, or
(ii) by mailing a copy of the summons and complaint by first-class
mail, postage prepaid, to the person to be served, together with two
copies of a notice and acknowledgment which shall be substantially in
the form set forth in Form 14 of the Appendix of Forms and a return
envelope, postage prepaid, addressed to the sender. If no
acknowledgment of service under this subdivision of this rule is
received by the sender within 20 days after the date of mailing, service
of such summons and complaint shall be made under subparagraph (A) or
(B) of this paragraph in the manner prescribed by subdivision (d)(1) or
(d)(3).
(D) Unless good cause is shown for not doing so the court shall order
the payment of the costs of personal service by the person served if
such person does not complete and return within 20 days after mailing,
the notice and acknowledgment of receipt of summons and complaint.
(E) The notice and acknowledgment of receipt of summons and complaint
shall be executed under oath or affirmation.
(2) The court shall freely make special appointments to serve
summonses and complaints under paragraph (1)(B) of this subdivision of
this rule.
(d) Summons and Complaint -- Person To Be Served. The summons and
complaint shall be served together as follows:
(1) Upon an individual other than an infant or an incompetent person,
by delivering a copy of the summons and 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 the complaint to an agent authorized by appointment or by law to
receive service.
(2) Upon an infant or an incompetent person, by serving the summons
and complaint in the manner prescribed by the law of the state or place
in which the service is made for the service of summons or other like
process upon any such defendant in an action brought in the courts of
general jurisdiction of that state or place.
(3) Upon a domestic or foreign corporation or upon a partnership or
other unincorporated association which is subject to suit under a common
name, by delivering a copy of the summons and the complaint to an
officer, a managing or general agent, or to any other agent authorized
by appointment or by law to receive service, 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.
(4) Upon the United States, by serving the Attorney General of the
United States, by delivering or by mailing by registered or certified
mail, return receipt requested, a copy of the summons and complaint to
the Attorney-in-Charge, International Trade Field Office, Commercial
Litigation Branch, Department of Justice.
(5) Upon an officer or agency of the United States, by serving the
United States, and by delivering or by mailing by registered or
certified mail, return receipt requested, a copy of the summons and
complaint to such officer or agency. If the agency is a corporation the
copy shall be delivered as provided in paragraph (3) of this subdivision
(d).
(6) Upon a state or municipal corporation or other governmental
organization thereof subject to suit, by delivering a copy of the
summons and complaint to the chief executive officer thereof 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.
(e) Return. The person serving the process shall make proof of
service thereof to the clerk of the court promptly and in any event
within the time during which the person served must respond to the
process. If service is made by a person other than a United States
marshal or deputy United States marshal, such person shall make
affidavit thereof. If service is made under subdivision (c)(1)(C)(ii)
of this rule, return shall be made by the sender's filing with the clerk
of the court the acknowledgment received pursuant to such subdivision.
Failure to make proof of service does not affect the validity of the
service.
(f) Amendment of Proof of Service. The court may allow proof of
service of a summons or complaint to be amended at any time, in its
discretion and upon such terms as it deems just, unless it clearly
appears that material prejudice would result to the substantial rights
of the party against whom the amendment is allowed.
(g) Alternative Provisions for Service in a Foreign Country.
(1) Manner. Whenever a statute of the United States or an order of
court thereunder provides for service of a summons and complaint, or of
a notice, or of an order in lieu of a summons and complaint, upon a
party not an inhabitant of or found within the United States, service
may be made under the circumstances and in the manner prescribed by the
statute or order, or, if there is no provision therein prescribing the
manner of service and service is to be effected upon a party in a
foreign country, it is sufficient if service of the summons and
complaint is made: (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, when service in either case
is reasonably calculated to give actual notice; or (C) upon an
individual, by delivery to the individual personally, and upon a
corporation or partnership or association, by delivery to an officer, a
managing or general agent; or (D) by 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 (E) as directed by order of the court.
Service under (C) or (E) above may be made by any person who is not a
party and is not less than 18 years of age or who is designated by order
of this court or by the foreign court.
(2) Return. Proof of service may be made as prescribed by
subdivision (e) of this rule, or by the law of the foreign country, or
by order of this court. When service is made pursuant to paragraph
(1)(D) of this subdivision (g), proof of service shall include a receipt
signed by the addressee or other evidence of delivery to the addressee
satisfactory to this court.
(h) Summons and Complaint -- Time Limit for Service. If a service of
the summons and complaint is not made upon a defendant within 120 days
after the action is commenced and the party on whose behalf such service
was required cannot show good cause why such service was not made within
that period, the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice to such party or
upon motion. This subdivision shall not apply to service in a foreign
country pursuant to subdivision (g) of this rule.
(As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 21,
1986, eff. Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988.)
The clerk is authorized by Rule 4(a) to make service of the summons
only in those actions commenced by a summons, i.e., actions described in
28 U.S.C. 1581(a) or (b), and only those actions described in 28 U.S.C.
1581 (c) which contest a determination listed in section 516A(a)(2) of
the Tariff Act of 1930. In all other actions, including those actions
described in 28 U.S.C. 1581(c) which contest a determination listed in
section 516A(a)(1) of the Tariff Act of 1930, the plaintiff is required
by Rule 4(b) to effect concurrent service of the summons and complaint.
The notice and acknowledgment of service as prescribed by Rule
4(c)(1)(C)(ii) shall be substantially in the form set forth in Form 14
of the Appendix of Forms.
Section 516A of the Tariff Act of 1930, referred to in subd. (a)(4),
is classified to section 1516a of Title 19, Customs Duties.
28 USC Rule 5. Service and Filing of Pleadings and Other Papers
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Service -- When Required. Unless otherwise prescribed by these
rules, or by order of the court, every pleading and other paper shall be
served upon each of the parties.
(b) Service -- 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 the 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 is made by: handing a copy 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) Service -- Numerous Defendants. In any action in which there are
unusually large numbers of defendants, the court, upon motion or its own
initiative, may order that service of the pleadings of the defendants
and replies thereto need not be made 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 pleadings
and service thereof upon the plaintiff constitute due notice of it to
the parties. A copy of every order shall be served upon the parties in
such manner and form as the court directs.
(d) Filing -- When Required. All pleadings and other papers required
to be served upon a party shall be filed with the court immediately
after service, unless otherwise prescribed by these rules, or by order
of the court. Depositions upon oral examinations and interrogatories,
requests for documents, requests for admission, other discovery
documents, and answers and responses thereto shall not be filed unless
by order of the court on motion or on its own initiative, or for use in
the proceeding.
(e) Filing -- How Made. The filing of pleadings and other papers
with the court shall be made by filing them with the clerk of the court,
except that the judge to whom an action is assigned, or a matter is
referred, may permit pleadings and other papers pertaining thereto 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.
Filing with the clerk of the court shall be made by delivery or by
mailing to: The Clerk of the Court, United States Court of
International Trade, One Federal Plaza, New York, New York 10007; or by
delivery to the clerk at places other than New York City when the papers
pertain to an action being tried or heard at that place. Filing is
completed when received, except that a pleading or other paper mailed by
registered or certified mail properly addressed to the clerk of the
court, with the proper postage affixed and return receipt requested,
shall be deemed filed as of the date of mailing.
(f) Filing of Summons and Complaint by Mail. When an action is
commenced by the filing of a summons only, or the concurrent filing of a
summons and complaint, and the filing is made by mail as prescribed by
these rules, the mailing shall be by registered or certified mail,
return receipt requested, properly addressed to the clerk of the court,
with the proper postage affixed.
(g) Proof of Service. Unless otherwise prescribed by these rules, or
by order of the court, papers presented for filing shall contain an
acknowledgment of service by the person served, or proof of service in
the form of a statement of the date and manner of service and of the
name of the person served, certified by the person who made service.
Proof of service may appear on or be affixed to the paper filed. The
clerk may, for good cause shown, permit papers to be filed without
acknowledgment or proof of service but shall require proof to be filed
promptly thereafter.
(As amended Jan. 1, 1982; July 28, 1988, eff. Nov. 1, 1988; Oct.
3, 1990, eff. Jan. 1, 1991.)
When the clerk concludes that exigencies so require, he may permit a
pleading or paper to be filed by facsimile transmission or similar
process. Service by such process may be made with the consent of the
party to be served. Registered or certified mail, return receipt
requested, must be used, as prescribed in Rule 5(f), when an action is
commenced by the filing of a summons only, or the concurrent filing of a
summons and complaint, and the filing is made by mail.
When a party is represented in an action by more than one attorney of
record, the party shall designate only one attorney of record to serve,
file and receive service of pleadings and other papers on behalf of the
party.
When service is to be made upon a party represented by an attorney,
service shall be made upon the attorney of record, unless otherwise
ordered by the court.
When proof of service is made in the form of a statement, as
prescribed in Rule 5(h), and the person served is an attorney, the
statement shall identify the name of the party represented by the
attorney served.
28 USC Rule 6. Time
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Computation. In computing any period of time prescribed or
allowed by these rules, by order of the 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, Sunday, or a legal holiday, /1/ 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 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.
(b) Extension.
(1) When by these rules or by a notice given thereunder or by order
of the court, an act is required or allowed to be done at or within a
specified time, the court may upon motion, for good cause shown, order
the period extended; but it may not extend the time for taking any
action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), and
60(b), except to the extent and under the conditions stated in them.
(2) The motion for extension of time must set forth the specific
number of additional days requested, the date to which the extension is
to run, the extent to which the time for the performance of the
particular act has been previously extended, and the reason or reasons
upon which the motion is based. The motion shall be filed prior to the
expiration of the period allowed for the performance of the act to which
the motion relates (including any previous extension of time); except,
when for good cause shown, the delay in filing was the result of
excusable neglect or circumstances beyond the control of the party.
(3) No disposition shall be made until the court acts upon the motion
for extension of time.
(c) Additional Time After Service by Mail. Whenever a party has the
right or obligation to do some act or take some proceeding within a
prescribed or allowed period after the service of a pleading, motion, or
other paper upon the party, and the service is made by mail, 5 days
shall be added to the prescribed or allowed period.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; June 19, 1985, eff.
Oct. 1, 1985; Apr. 28, 1987, eff. June 1, 1987; July 28, 1988, eff.
Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991.)
/1/ As used in these rules, ''legal holiday'' includes: New Year's
Day, January 1; Martin Luther King's Birthday, third Monday in January;
Washington's Birthday, third Monday in February; Memorial Day, last
Monday in May; Independence Day, July 4; Labor Day, first Monday in
September; Columbus Day, second Monday in October; Veterans Day,
November 11; Thanksgiving Day, fourth Thursday in November; Christmas
Day, December 25; and any other day designated as a holiday by the
President or the Congress of the United States.
28 USC TITLE III -- PLEADINGS AND MOTIONS
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 7. Pleadings Allowed -- Consultation -- Oral Argument --
Response Time -- Show Cause Order -- Form of Motions
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Pleadings. There shall be a complaint and, except for an action
described in 28 U.S.C. 1581(c), an answer; a reply to a counterclaim
denominated as such; an answer to a cross-claim, if the answer contains
a cross-claim; a third-party complaint, if a person who was not an
original party is summoned under the provisions of Rule 14; and a
third-party answer, if a third-party complaint is served. No other
pleading shall be allowed, except that the court may order a reply to an
answer or a third-party answer.
(b) Motions -- Consultation. Before a motion for an extension of
time as prescribed in Rule 6(b), a motion for intervention as prescribed
in Rule 24(a), a motion for a preliminary injunction to enjoin the
liquidation of entries or a motion for a judicial protective order as
prescribed in Rule 56.2(a), a motion for a hearing as prescribed in Rule
56.2(e), a motion for the designation of a test case or suspension as
prescribed in Rule 84, or a motion for an order compelling discovery as
prescribed in Rule 37(a), is made, the moving party shall consult with
all other parties to the action to attempt to reach agreement, in good
faith, on the issues involved in the motion. If the court finds that a
party willfully refused to consult, or, having consulted, willfully
refused to attempt to reach agreement in good faith, the court may
impose such sanctions as it deems proper.
(c) Oral Argument. Upon motion of a party, or upon its own
initiative, the court may direct oral argument on a motion at a time and
place designated as prescribed in Rule 77(c). A motion for oral
argument on a motion shall be filed no later than 20 days after service
of the response to the motion, or 20 days after the expiration of the
period of time allowed for service of a response.
(d) Time To Respond. Unless otherwise prescribed by these rules, or
by order of the court, a response to a motion shall be served within 10
days after service of such motion, except that a response to a
dispositive motion shall be served within 30 days after service of such
motion. The moving party shall have 10 days after service of the
response to a dispositive motion to serve a reply.
(e) Order To Show Cause. No order to show cause to bring on a motion
shall be granted except upon a clear and specific showing by affidavit
of good and specific reasons why procedure other than regular motion is
necessary or why the time to respond should be shortened.
(f) Form of Motions and Other Papers.
(1) An application to the court for an order shall be by motion,
properly designated, which, unless made during a hearing or trial, shall
be in writing and shall state, with particularity, the grounds therefor.
Motions which require consultation between counsel before being made as
prescribed by subdivision (b) of this rule shall describe the reasonable
effort made to reach agreement on the issues involved in the motion
through consultation with opposing counsel, without the intervention of
the court, and shall also recite the date and time of such consultation,
as well as the names of all persons participating. All motions shall
set forth the relief or order sought, and shall be accompanied by a
proposed order.
(2) The rules applicable to the captions, signing, and other matters
of form of pleadings apply to all motions and other papers prescribed by
these rules.
(3) All motions shall be signed in accordance with Rule 11.
(g) Dispositive Motions Defined. Dispositive motions include:
motions for judgment on the pleadings; motions for summary judgment;
motions for judgment upon an agency record; motions to dismiss an
action; and any other motion for a final determination of an action.
(As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; Oct. 3,
1990, eff. Jan. 1, 1991; Sept. 25, 1992, eff. Jan. 1, 1993.)
A schedule, agreed to by the parties, suitable for attachment to a
decision of the court, shall be filed at the time an action is submitted
to the court for final determination upon a dispositive motion or upon
the conclusion of a trial. The schedule should indicate (1) when one
action is involved, the ports of entry, protest and entry numbers, (2)
when consolidated actions are involved, the ports of entry, court
numbers, protest and entry numbers, and (3) when joined actions are
involved, the ports of entry, court numbers, plaintiffs, protest and
entry numbers. Cases should be arranged according to port of entry, in
numerical order.
When a party is seeking a preliminary injunction, counsel shall, at
least 24 hours prior to the filing of motion papers, notify the Case
Management Section of the Clerk's Office at 212-264-2971. When a
preliminary injunction is sought in conjunction with the filing of a new
action, counsel shall, before making service of the pleadings and the
motion, obtain a court number from the Case Management Section and
endorse it on the pleadings and the motion.
28 USC Rule 8. General Rules of Pleading
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, cross-claim, or
third-party claim, shall contain (1) a short and plain statement of the
grounds upon which the court's jurisdiction depends, unless the court
already has jurisdiction and the claim needs no new grounds of
jurisdiction to support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks. Relief in the alternative or
of several different types may be demanded.
(b) New Grounds. A party who wishes the court to consider any new
ground in support of a civil action described in 28 U.S.C. 1581(a)
shall aver the new ground in accordance with this rule and, as provided
in 28 U.S.C. 2638, shall also aver that the new ground: (1) applies to
the same merchandise that was the subject of the protest; and (2) is
related to the same administrative decision that was contested in the
protest.
(c) Defenses -- Form of Denials. A party shall state in short and
plain terms the party's defenses to each claim asserted and shall admit
or deny the averments upon which the adverse party relies. If a party
is without knowledge or information sufficient to form a belief as to
the truth of an averment, the party shall so state and this has the
effect of a denial. Denials shall fairly meet the substance of the
averments denied. When a pleader intends in good faith to deny only a
part or a qualification of an averment, the pleader shall specify so
much of it as is true and material and shall deny only the remainder.
Unless the pleader intends in good faith to controvert all the averments
of the preceding pleading, the pleader may make denials as specific
denials of designated averments or paragraphs, or may generally deny all
the averments except such designated averments or paragraphs as the
pleader expressly admits; but, when the pleader does so intend to
controvert all its averments, including averments of the grounds upon
which the court's jurisdiction depends, the pleader may do so by general
denial subject to the obligations set forth in Rule 11.
(d) Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction, discharge
in bankruptcy, duress, estoppel, fraud, illegality, laches, license,
payment, release, res judicata, statute of frauds, statute of
limitations, waiver, and any other matter constituting an avoidance or
affirmative defense. When a party has mistakenly designated a defense
as a counterclaim or a counterclaim as a defense, the court on terms, if
justice so requires, shall treat the pleading as if there had been a
proper designation.
(e) 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.
(f) 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 alternatively 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 or equitable grounds. All
statements shall be made subject to the obligations set forth in Rule
11.
(g) Construction of Pleadings. All pleadings shall be so construed
as to do substantial justice.
(As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
Jan. 1, 1993.)
For an action described in 28 U.S.C. 1581(c), the complaint shall
contain: (1) a citation to the administrative determination to be
reviewed, (2) a statement of the issues presented by the action and (3)
a demand for judgment.
28 USC Rule 9. Pleading Special Matters
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Capacity. It is not necessary to aver the capacity of a party to
sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, except to the extent
required to show the jurisdiction of the court. When a party desires to
raise an issue as to the legal existence of any party or the capacity of
any party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity, the party desiring to raise the issue
shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly within the pleader's knowledge.
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
(c) Conditions Precedent. In pleading the performance or occurrence
of conditions precedent, it is sufficient to aver generally that all
conditions precedent have been performed or have occurred. A denial of
performance or occurrence shall be made specifically and with
particularity.
(d) Official Document or Act. In pleading an official document or
official act, it is sufficient to aver that the document was issued or
the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.
(f) Time and Place. For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be
considered like all other averments of material matter.
(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 10. Form of Pleadings
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Caption -- Names of Parties. Every pleading shall contain a
caption setting forth the name of this court, the title of the action,
the court number, and a designation as in Rule 7(a). In the caption of
the summons and 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 part thereof for all purposes.
28 USC Rule 11. Signing of Pleadings, Motions or Other Papers --
Sanctions
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
Every pleading, motion, and other paper of a party represented by an
attorney shall be signed by at least one attorney of record in the
attorney's individual name, whose address and telephone number shall be
stated. Every pleading, motion, and other paper of the United States
shall be signed by an attorney authorized to do so on behalf of the
Assistant Attorney General, Civil Division, Department of Justice. A
pleading, motion, or other paper of an agency of the United States,
authorized by statute to represent itself in judicial proceedings, may
be signed by an attorney authorized to do so on behalf of the agency. A
party who is not represented by an attorney shall sign the party's
pleading, motion, or other paper and state the party's address and
telephone number. Except when otherwise specifically prescribed by rule
or statute, pleadings or other papers need not be verified or
accompanied by affidavit. The signature of an attorney or party
constitutes a certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of the signer's
knowledge, information, and belief formed after reasonable inquiry it is
well grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law,
and that it is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the person who
signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of
the reasonable expenses incurred because of the filing of the pleading,
motion, or other paper, including a reasonable attorney's fee.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC Rule 12. Defenses and Objections -- When and How Presented -- By
Pleading or Motion -- Motion for Judgment on the Pleadings
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) When Presented. 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
Attorney-in-Charge, International Trade Field Office, Commercial
Litigation Branch, Department of Justice, of the pleading in which the
claim is asserted; except that, (1) in an action described in 28 U.S.C.
1581(c), no answer shall be served or filed, and (2) in an action
described in 28 U.S.C. 1581(f), involving an application for an order
to make confidential information available under section 777(c)(2) of
the Tariff Act of 1930, the answer shall be served within 10 days after
the service of the summons and complaint. For good cause shown, the
court in any action may order a different period of time.
Any other defendant shall serve an answer within 20 days after the
service of the complaint upon that defendant. A party served with a
pleading stating a cross-claim against that party shall serve an answer
thereto within 20 days after the service upon that party. 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.
The service of a motion permitted under this rule alters these
periods of time as follows, unless a different time is fixed by order of
the court: (1) 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 the notice of the court's action; (2) 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)
insufficiency of process, (4) insufficiency of service of the summons
and complaint, (5) failure to state a claim upon which relief can be
granted, (6) failure to join a party under Rule 19. A motion making any
of these defenses shall be made before pleading if a further pleading is
permitted. No defense or objection is waived by being joined with one
or more other defenses or objections in a responsive pleading or motion.
If a pleading sets forth a claim for relief to which the adverse party
is not required to serve a responsive pleading, the adverse party may
assert at the trial any defense in law or fact to that claim for relief.
If, on a motion asserting the defense numbered (5) to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside of 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 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)-(6) in subdivision (b) of this rule, whether made in a pleading or
by motion, and the motion for judgment mentioned in subdivision (c) of
this rule shall be heard and determined before trial on application of
any party, unless the court orders that the hearing and determination
thereof be deferred until the trial.
(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a party
cannot reasonably be required to frame a responsive pleading, the party
may move for a more definite statement before interposing a responsive
pleading. The motion shall point out the defects complained of and the
details desired. If the motion is granted and the order of the court is
not obeyed within 10 days after notice of the order or within such 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) of this rule
on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, insufficiency
of process, or insufficiency of service of the summons and complaint is
waived (A) if omitted from a motion in the circumstances described in
subdivision (g) of this rule, or (B) if it is neither made by motion
under this rule nor included in a responsive pleading or an amendment
thereof permitted by Rule 15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under Rule
19, and an objection of failure to state a legal defense to a claim may
be made in any pleading permitted or ordered under Rule 7(a), or by
motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.
(As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 28,
1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993.)
Section 777(c)(2) of the Tariff Act of 1930, referred to in subd.
(a), is classified to section 1677f(c)(2) of Title 19, Customs Duties.
28 USC Rule 13. Counterclaim and Cross-Claim
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) 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 (1) the claim involves the imported merchandise
that is the subject matter of the civil action, or (2) the claim is to
recover upon a bond or customs duties relating to such merchandise.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) Cross-Claim Against Co-Party. A pleading may state as a
cross-claim any claim by one party against a co-party, if (1) the claim
involves the imported merchandise that is the subject matter of the
civil action, or (2) the claim is to recover upon a bond or customs
duties relating to such merchandise. 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.
(g) 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.
(h) 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.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 14. Third-Party Practice
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third-party
plaintiff, may cause a summons and complaint to be served upon a person
not a party to the action who is or may be liable to the third-party
plaintiff for all or part of the plaintiff's claim against the
third-party plaintiff. The third-party plaintiff need not obtain leave
to make the service if the third-party plaintiff files the third-party
complaint not later than 10 days after serving the original answer.
Otherwise the third-party plaintiff must obtain leave on motion upon
notice to all parties to the action. The person served with the summons
and third-party complaint, hereinafter called the third-party defendant,
shall make any defenses to the third-party plaintiff's claim as provided
in Rule 12, and any counterclaims against the third-party plaintiff and
cross-claims against other third-party defendants as provided in Rule
13. The third-party defendant may assert against the plaintiff any
defenses which the third-party plaintiff has to the plaintiff's claim.
The third-party defendant may also assert any claim against the
plaintiff, if (1) the claim involves the imported merchandise that is
the subject matter of the civil action, or (2) the claim is to recover
upon a bond or customs duties relating to such merchandise. The
plaintiff may assert any claim against the third-party defendant, if (1)
the claim involves the imported merchandise that is the subject matter
of the civil action, or (2) the claim is to recover upon a bond or
customs duties relating to such merchandise, and the third-party
defendant thereupon shall assert any defenses as provided in Rule 12 and
any counterclaims and cross-claims as provided in Rule 13. Any party
may move to strike the third-party claim, or for its severance or for a
separate trial. A third-party defendant may proceed under this rule
against any person not a party to the action who is or may be liable to
the third-party defendant for all or part of the claim made in the
action against the third-party defendant.
(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.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 15. Amended and Supplemental Pleadings
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(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 noticed for trial, 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
longer, unless the court otherwise orders.
(b) Amendments To Conform to the Evidence. When issues not raised by
the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of these issues. If
evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings to
be amended and shall do so freely when the presentation of the merits of
the action will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would prejudice
the party in maintaining the party's action or defense upon the merits.
The court may grant a continuance to enable the objecting party to meet
such evidence.
(c) Relation Back of Amendments. An amendment of a pleading relates
back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute
of limitations applicable to the action, or
(2) the claim or defense asserted in the amendment 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 for service of the
pleadings commencing the action, the party to be brought in by amendment
(A) has received such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense on the merits, and
(B) knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought against
the party.
The delivery or mailing of the pleadings commencing the action to the
Attorney-in-Charge, International Trade Field Office, Commercial
Litigation Branch, Department of Justice, or an agency or officer who
would have been a proper defendant if named, satisfies the requirement
of subparagraphs (A) and (B) of this paragraph (3) with respect to the
United States or any agency or officer thereof to be brought into the
action as a defendant.
(d) Supplemental Pleadings. Upon motion of a party, the court may,
upon reasonable notice and upon such terms as are just, permit the party
to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading
sought to be supplemented. Permission may be granted even though the
original pleading is defective in its statements of a claim for relief
or defense. If the court deems it advisable that the adverse party
plead to the supplemental pleading, it shall so order, specifying the
time therefor.
(As amended Jan. 1, 1982; July 28, 1988, eff. Nov. 1, 1988; Sept.
25, 1992, eff. Jan. 1, 1993.)
28 USC Rule 16. Postassignment Conferences -- Scheduling -- Management
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Postassignment Conferences -- Objectives. In any action, the
judge to whom the action is assigned may, in the discretion of that
judge, direct the attorneys for the parties and any unrepresented
parties to appear for a conference or conferences for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the action will
not be protracted because of lack of management;
(3) discouraging wasteful activities;
(4) improving the quality of the proceedings for the final
disposition of the action through more thorough preparation; and
(5) facilitating the settlement of the action.
(b) Scheduling and Planning. Except when the judge to whom the
action is assigned finds that a scheduling order will not aid in the
disposition of the action and enters an order to that effect, together
with a statement of reasons and facts upon which the order is based, the
judge shall, after consulting with the attorneys for the parties and any
unrepresented parties, by a scheduling conference, telephone, mail, or
other suitable means, enter a scheduling order that limits the time
(1) to join other parties and to amend the pleadings;
(2) to file and hear motions; and
(3) to complete discovery.
The scheduling order also may include
(4) the date or dates for conferences before submission of the action
for final disposition, a final postassignment conference, and trial or
submission of a dispositive motion; and
(5) any other matters appropriate in the circumstances of the action.
The scheduling order, or the order that a scheduling order will not
aid in the disposition of the action, shall issue as soon as practicable
but in no event more than 90 days after the action is assigned. A
schedule shall not be modified except by leave of the judge upon a
showing of good cause.
(c) Subjects to be Discussed at Postassignment Conferences. The
participants at any conference under this rule may consider and take
action with respect to
(1) the formulation and simplification of the issues, including the
elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof, stipulations regarding the
authenticity of documents, and advance rulings from the court on the
admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence;
(5) the identification of witnesses and documents, the need and
schedule for filing and exchanging briefs, and the date or dates for
further conferences and for submission of the action for final
disposition;
(6) the advisability of referring matters to a master;
(7) the possibility of settlement or the use of extrajudicial
procedures to resolve the dispute;
(8) the form and substance of the scheduling or postassignment
conference order;
(9) the disposition of pending motions;
(10) the need for adopting special procedures for managing
potentially difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual proof
problems;
(11) access to confidential or privileged information contained in an
administrative record, which is the subject of the action; and
(12) such other matters as may aid in the disposition of the action.
At least one of the attorneys for each party participating in any
postassignment conference shall have authority to enter into
stipulations and to make admissions regarding all matters that the
participants may reasonably anticipate may be discussed.
(d) Final Postassignment Conference. Any final postassignment
conference shall be held as close to the time of submission of the
action for final disposition as reasonable under the circumstances. The
participants at any such conference shall formulate a plan for
submission of the action for final disposition. At least one of the
attorneys on behalf of each of the parties and any unrepresented parties
shall participate in the conference.
(e) Orders. After any conference held pursuant to this rule, an
order shall be entered reciting the action taken. This order shall
control the subsequent course of the action unless modified by a
subsequent order. The order following a final postassignment conference
shall be modified only to prevent manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a
scheduling or postassignment conference order, or if no appearance is
made on behalf of a party at a scheduling or postassignment conference,
or if a party or party's attorney is substantially unprepared to
participate in the conference, or if a party or party's attorney fails
to participate in good faith, the judge, upon motion or the judge's own
initiative, may make such orders with regard thereto as are just, and
among others any of the orders provided in Rule 37(b)(2), (3), and (4).
In lieu of or in addition to any other sanction, the judge shall require
the party or the attorney representing the party or both to pay the
reasonable expenses incurred because of any noncompliance with this
rule, including attorney's fees, unless the judge finds that the
noncompliance was substantially justified or that other circumstances
make an award of expenses unjust.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
The attorneys for the parties and any unrepresented parties are
expected to consult prior to a postassignment conference. The
consultations should pertain to such matters as: access to the
confidential portions of the administrative record, if any; the
definition of the issues; whether discovery is necessary or
permissible; and, the establishment of a proposed discovery schedule,
if it is agreed that discovery will be conducted.
28 USC TITLE IV -- PARTIES
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 17. Parties Plaintiff and Defendant -- Capacity
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Real Party in Interest. Every action shall be prosecuted in the
name of the real party in interest. An executor, administrator,
guardian, bailee, trustee of an express trust, a party with whom or in
whose name a contract has been made for the benefit of another, or a
party authorized by statute may sue in that person's own name without
joining the party for whose benefit the action is brought; and when a
statute of the United States so provides, an action for the use or
benefit of another shall be brought in the name of the United States.
No action shall be dismissed on the ground that it is not prosecuted in
the name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action
by, or joinder or substitution of, the real party in interest; and such
ratification, joinder, or substitution shall have the same effect as if
the action had been commenced in the name of the real party in interest.
(b) Capacity To Sue or Be Sued. The capacity of an individual, other
than one acting in a representative capacity, to sue or be sued shall be
determined by the law of the individual's domicile. The capacity of a
corporation to sue or be sued shall be determined by the law under which
it was organized. In all other cases, capacity to sue or be sued shall
be determined by the law of the appropriate state except (1) that a
partnership or other unincorporated association, which has no such
capacity by the law of such state, may sue or be sued in its common name
for the purpose of enforcing for or against it a substantive right
existing under the Constitution or laws of the United States, and (2)
that the capacity of a receiver appointed by a court of the United
States to sue or be sued in a court of the United States is governed by
28 U.S.C. 754 and 959(a).
(c) Infants or Incompetent Persons. Whenever an infant or
incompetent person has a representative, such as a general guardian,
committee, conservator, or other like fiduciary, the representative may
sue or defend on behalf of the infant or incompetent person. An infant
or incompetent person who does not have a duly appointed representative
may sue by a next friend or by a guardian ad litem. The court shall
appoint a guardian ad litem for an infant or incompetent person not
otherwise represented in an action or shall make such other order as it
deems proper for the protection of the infant or incompetent person.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 18. Joinder of Claims and Remedies
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Joinder of Claims. A party asserting a claim to relief as an
original claim, counterclaim, cross-claim, or third-party claim, may
join, either as independent or as alternate claims, as many claims,
legal or equitable, as the party has against an opposing party, except
that in an action described in 28 U.S.C. 1581(a), a party may join
claims only if they involve a common issue.
(b) Joinder of Remedies. Whenever a claim is one heretofore
cognizable only after another claim has been prosecuted to a conclusion,
the two claims may be joined in a single action; but the court shall
grant relief in that action only in accordance with the relative
substantive rights of the parties. In particular, a plaintiff may state
a claim for money and a claim to have set aside a conveyance fraudulent
as to that plaintiff, without first having obtained a judgment
establishing the claim for money.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 19. Joinder of Persons Needed for Just Adjudication
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Persons To Be Joined if Feasible. A person shall be joined as a
party in the action if (1) in the person's absence complete relief
cannot be accorded among those already parties, or (2) the person claims
an interest relating to the subject of the action and is so situated
that the disposition of the action in the person's absence may (A) as a
practical matter impair or impede the person's ability to protect that
interest, or (B) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest. If the
person has not been so joined, the court shall order that the person be
made a party. If the person should join as a plaintiff but refuses to
do so, the person may be made a defendant, or, in a proper case, an
involuntary plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. If a
person as described in subdivision (a)(1)-(2) of this rule cannot be
made a party, the court shall determine whether in equity and good
conscience the action should proceed among the parties before it, or
should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include: (1)
to what extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties; (2) the extent to
which, by protective provisions in the judgment, by the shaping of
relief, or other measures, the prejudice can be lessened or avoided;
(3) whether a judgment rendered in the person's absence will be
adequate; and (4) whether the plaintiff will have an adequate remedy if
the action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (a)(1)-(2) of this rule who are not
joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 20. Permissive Joinder of Parties
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally, or in
the alternative in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences and if any question
of law or fact common to all these persons will arise in the action.
All persons may be joined in one action as defendants if there is
asserted against them jointly, severally, or in the alternative, any
right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences, and if any
question of law or fact common to all defendants will arise in the
action. A plaintiff or defendant need not be interested in obtaining or
defending against all the relief demanded. Judgment may be given for
one or more of the plaintiffs according to their respective rights to
relief, and against one or more defendants according to their respective
liabilities.
(b) Separate Trials. The court may make such orders as will prevent
a party from being embarrassed, delayed, or put to expense by the
inclusion of a party against whom the party asserts no claim and who
asserts no claim against the party, and may order separate trials or
make other orders to prevent delay or prejudice.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 21. Misjoinder and Nonjoinder of Parties
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
Misjoinder of parties is not ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such
terms as are just. Any claim against a party may be severed and
proceeded with separately.
28 USC Rule 22. (Reserved)
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 23. Class Actions
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Prerequisites to a Class Action. One or more members of a class
may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests
of the class.
(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied, and
in addition:
(1) the prosecution of separate actions by or against individual
members of the class would create a risk of (A) inconsistent or varying
adjudications with respect to individual members of the class which
would establish incompatible standards of conduct for the party opposing
the class, or (B) adjudications with respect to individual members of
the class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their interests;
or
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with respect
to the class as a whole; or
(3) the court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy. The matters pertinent to the findings include: (A) the
interest of members of the class in individually controlling the
prosecution or defense of separate actions; (B) the extent and nature
of any litigation concerning the controversy already commenced by or
against members of the class; (C) the desirability or undesirability of
concentrating the litigation of the claims in the particular forum; (D)
the difficulties likely to be encountered in the management of a class
action.
(c) Determination by Order Whether Class Action To Be Maintained --
Notice -- Judgment -- Actions Conducted Partially as Class Actions.
(1) As soon as practicable after the commencement of an action
brought as a class action, the court shall determine by order whether it
is to be so maintained. An order under this subdivision may be
conditional, and may be altered or amended before the decision on the
merits.
(2) In any class action maintained under subdivision (b)(3) of this
rule, the court shall direct to the members of the class the best notice
practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort. The notice
shall advise each member that (A) the court will exclude the member from
the class if the member so requests by a specified date; (B) the
judgment, whether favorable or not, will include all members who do not
request exclusion; and (C) any member who does not request exclusion
may, if the member desires, enter an appearance through counsel.
(3) The judgment in an action maintained as a class action under
subdivision (b)(1) or (b)(2) of this rule, whether or not favorable to
the class, shall include and describe those whom the court finds to be
members of the class. The judgment in an action maintained as a class
action under subdivision (b)(3) of this rule, whether or not favorable
to the class, shall include and specify or describe those to whom the
notice provided in subdivision (c)(2) of this rule was directed, and who
have not requested exclusion, and whom the court finds to be members of
the class.
(4) When appropriate (A) an action may be brought or maintained as a
class action with respect to particular issues, or (B) a class may be
divided into subclasses and each subclass treated as a class, and the
provisions of this rule shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions to which
this rule applies, the court may make appropriate orders: (1)
determining the course of proceedings or prescribing measures to prevent
undue repetition or complication in the presentation of evidence or
argument; (2) requiring, for the protection of the members of the class
or otherwise for the fair conduct of the action, that notice be given in
such manner as the court may direct to some or all of the members of any
step in the action, or of the proposed extent of the judgment, or of the
opportunity of members to signify whether they consider the
representation fair and adequate, to intervene and present claims or
defenses, or otherwise to come into the action; (3) imposing conditions
on the representative parties or on intervenors; (4) requiring that the
pleadings be amended to eliminate therefrom allegations as to
representation of absent persons, and that the action proceed
accordingly; (5) dealing with similar procedural matters. The orders
may be combined with an order under Rule 16, and may be altered or
amended as may be desirable from time to time.
(e) Dismissal or Compromise. A class action shall not be dismissed
or compromised without the approval of the court, and notice of the
proposed dismissal or compromise shall be given to all members of the
class in such manner as the court directs.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC Rule 23.1. Actions Relating to Unincorporated Associations
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
An action brought by or against the members of an unincorporated
association as a class by naming certain members as representative
parties may be maintained only if it appears that the representative
parties will fairly and adequately protect the interests of the
association and its members. In the conduct of the action the court may
make appropriate orders corresponding with those described in Rule
23(d), and the procedure for dismissal or compromise of the action shall
correspond with that provided in Rule 23(e).
28 USC Rule 24. Intervention
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Intervention of Right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of the United
States confers an unconditional right to intervene; or (2) when the
applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede
the applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
In an action described in 28 U.S.C. 1581(c), a timely application
shall be made no later than 30 days after the date of service of the
complaint as provided for in Rule 3(e), unless for good cause shown at
such later time for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect; or (2) under circumstances in which by
due diligence a motion to intervene under this subsection could not have
been made within the 30-day period.
(b) Permissive Intervention. Upon timely application anyone may be
permitted to intervene in an action: (1) when a statute of the United
States confers a conditional right to intervene; or (2) when an
applicant's claim or defense and the main action have a question of law
or fact in common. When a party to an action relies for ground of claim
or defense upon any statute or executive order administered by a federal
governmental officer or agency or upon any regulation, order,
requirement, or agreement issued or made pursuant to the statute or
executive order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its discretion, the
court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
(c) Procedure. Except in an action described in 28 U.S.C. 1581(c),
a person desiring to intervene shall serve a motion to intervene upon
the parties as provided in Rule 5. The motion shall state the grounds
therefor and shall be accompanied by a pleading setting forth the claim
or defense for which intervention is sought. The same procedure shall
be followed when a statute of the United States gives a right to
intervene. When the constitutionality of an act of Congress affecting
the public interest is drawn in question in any action in which the
United States or an officer, agency, or employee thereof is not a party,
the court shall notify the Attorney General of the United States as
provided in Title 28, U.S.C. 2403. A party challenging the
constitutionality of legislation should call the attention of the court
to its consequential duty, but failure to do so is not a waiver of any
constitutional right otherwise timely asserted.
In an action described in 28 U.S.C. 1581(c), an interested party who
was a party to the proceeding in connection with which the matter arose
and who desires to intervene pursuant to subparagraph (a) shall, after
consultation in accordance with Rule 7(b), serve a motion to intervene
upon the parties as provided in Rule 5. The motion shall state (1)
whether the application for intervention has been consented to by the
parties, and (2) the grounds in support of the motion. When the
applicant for intervention seeks to intervene on the side of the
plaintiff, the motion shall state the applicant's standing, and shall
state the administrative determination to be reviewed and the issues
that the intervenor desires to litigate. When the applicant for
intervention seeks to intervene on the side of the defendant, the motion
shall state the applicant's standing. If no objection has been filed
within 10 days after service of the motion, or if the motion has been
consented to by all of the parties, the clerk of the court may order the
requested relief.
(As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
Jan. 1, 1993.)
To provide information to assist a judge in determing whether there
is reason for disqualification upon the grounds of a financial interest,
under 28 U.S.C. 455, a completed ''Disclosure Statement'' form,
available upon request from the office of the clerk, must be filed by
certain corporations, trade associations, and others appearing as
parties, intervenors, or amicus curiae. A copy of the ''Disclosure
Statement'' form is shown in Form 13 of the Appendix of Forms.
Permissive intervention in this court is subject to the statutory
provisions of 28 U.S.C. 2631(j).
28 USC Rule 25. Substitution of Parties
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Death.
(1) If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties. The motion for
substitution may be made by any party or by the successors or
representatives of the deceased party and shall be served on the parties
as provided in Rule 5 and upon the persons not parties in the manner
provided in Rule 4 for the service of a summons. Unless the motion for
substitution is made not later than 90 days after the death is suggested
upon the record by service of a statement of the fact of the death as
provided herein for the service of the motion, the action shall be
dismissed as to the deceased party.
(2) In the event of the death of one or more of the plaintiffs or of
one or more of the defendants in an action in which the right sought to
be enforced survives only to the surviving plaintiffs or only against
the surviving defendants, the action does not abate. The death shall be
suggested upon the record and the action shall proceed in favor of or
against the surviving parties.
(b) Incompetency. If a party becomes incompetent, the court upon
motion served as provided in subdivision (a) of this rule may allow the
action to be continued by or against the party's representative.
(c) Transfer of Interest. In case of any transfer of interest, the
action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party.
Service of the motion shall be made as provided in subdivision (a) of
this rule.
(d) Public Officers -- Death or Separation From Office.
(1) When a public officer is a party to an action in an official
capacity and during its pendency dies, resigns, or otherwise ceases to
hold office, the action does not abate and the officer's successor is
automatically substituted as a party. Proceedings following the
substitution shall be in the name of the substituted party, but any
misnomer not affecting the substantial rights of the parties shall be
disregarded. An order of substitution may be entered at any time, but
the omission to enter such an order shall not affect the substitution.
(2) A public officer who sues or is sued in an official capacity may
be described as a party by the officer's official title rather than by
name; but the court may require the officer's name to be added.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC TITLE V -- DEPOSITIONS AND DISCOVERY
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 26. General Provisions Governing Discovery
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Discovery Methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things
or permission to enter upon land or other property for inspection and
other purposes; physical and mental examinations; and requests for
admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of
the court as prescribed by these rules, the scope of discovery is as
follows:
(1) In General. Parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the
pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party,
including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable
matter. It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in
subdivision (a) shall be limited by the court if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or
is obtainable from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information
sought; or (iii) the discovery is unduly burdensome or expensive,
taking into account the needs of the case, the amount in controversy,
limitations on the parties' resources, and the importance of the issues
at stake in the litigation. The court may act upon its own initiative
after reasonable notice or pursuant to a motion under subdivision (c).
(2) Insurance Agreements. A party may obtain discovery of the
existence and contents of any insurance agreement under which any person
carrying on an insurance business may be liable to satisfy part or all
of a judgment which may be entered in the action or to indemnify or
reimburse for payments made to satisfy the judgment. Information
concerning the insurance agreement is not by reason of disclosure
admissible in evidence at trial. For purposes of this paragraph, an
application for insurance shall not be treated as part of an insurance
agreement.
(3) Trial Preparation -- Materials. Subject to the provisions of
paragraph (4) of this subdivision (b), a party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph (1)
of this subdivision (b) and prepared in anticipation of litigation or
for trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that
party. Upon request, a person not a party may obtain without the
required showing a statement concerning the action or its subject matter
previously made by that person. If the request is refused, the person
may move for a court order. The provisions of Rule 37(a)(3) apply to
the award of expenses incurred in relation to the motion. For purposes
of this paragraph, a statement previously made is (A) a written
statement signed or otherwise adopted or approved by the person making
it, or (B) a stenographic, mechanical, electrical, or other recording,
or a transcription thereof, which is a substantially verbatim recital of
an oral statement by the person making it and contemporaneously
recorded.
(4) Trial preparation -- Experts. Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of
paragraph (1) of this subdivision (b) and acquired or developed in
anticipation of litigation or for trial, may be obtained only as
follows:
(A)(i) A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of the
grounds for each opinion. (ii) Upon motion, the court may order further
discovery by other means, subject to such restrictions as to scope and
such provisions, pursuant to subparagraph (4)(C) of this subdivision
(b), concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in
anticipation of litigation or preparation for trial, and who is not
expected to be called as a witness at trial, only as provided in Rule
35(b), or upon a showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall
require that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subparagraphs (4)(A)(ii)
and (4)(B) of this subdivision (b); and (ii) with respect to discovery
obtained under subparagraph (4)(A)(ii) of this subdivision (b) the court
may require, and with respect to discovery obtained under subparagraph
(4)(B) of this subdivision (b) the court shall require, the party
seeking discovery to pay the other party a fair portion of the fees and
expenses reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(c) Protective Orders. Upon its own initiative, or upon motion by a
party or by the person from whom discovery is sought, and for good cause
shown, the court may make any order which justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden, delay or expense, including one or more of the following: (1)
that the discovery not be had; (2) that the discovery may be had only
on specified terms and conditions, including a designation of the time
or place; (3) that the discovery may be had only by a method of
discovery other than that selected by the party seeking discovery; (4)
that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters; (5) that discovery be
conducted with no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the
court; (7) that a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed
only in a designated way; (8) that the parties simultaneously file
specified documents or information enclosed in sealed envelopes to be
opened as directed by the court.
If the motion for a protective order is denied in whole or in part,
the court may, on such terms and conditions as are just, order that any
party or person provide or permit discovery. The provisions of Rule
37(a)(3) apply to the award of expenses incurred in relation to the
motion.
(d) Sequence and Timing of Discovery. Unless the court upon motion,
for the convenience of parties and witnesses and in the interests of
justice, orders otherwise, methods of discovery may be used in any
sequence and the fact that a party is conducting discovery, whether by
deposition or otherwise, shall not operate to delay any other party's
discovery.
(e) Supplementation of Responses. A party who has responded to a
request for discovery with a response that was complete when made is
under no duty to supplement his response to include information
thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response
with respect to any question directly addressed to (A) the identity and
location of persons having knowledge of discoverable matters, and (B)
the identity of each person expected to be called as an expert witness
at trial, the subject matter on which the person is expected to testify,
and the substance of the person's testimony.
(2) A party is under a duty seasonably to amend a prior response if
the party obtains information upon the basis of which (A) the party
knows that the response was incorrect when made, or (B) the party knows
that the response though correct when made is no longer true and the
circumstances are such that a failure to amend the response is in
substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the
court, agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses.
(f) Discovery Conference. At any time after the filling of a
complaint the court may direct the attorneys for the parties to appear
before it for a conference on the subject of discovery. The court shall
do so upon motion by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion has made
a reasonable effort to reach agreement with opposing attorneys on the
matters set forth in the motion. Each party and each party's attorney
are under a duty to participate in good faith in the framing of a
discovery plan if a plan is proposed by the attorney for any party.
Notice of the motion shall be served on all parties. Objections or
additions to matters set forth in the motion shall be served not later
than 10 days after service of the motion.
Following the discovery conference, the court shall enter an order
tentatively identifying the issues for discovery purposes, establishing
a plan and schedule for discovery, setting limitations on discovery, if
any; and determining such other matters, including the allocation of
expenses, as are necessary for the proper management of discovery in the
action. An order may be altered or amended whenever justice so
requires.
Subject to the right of a party who properly moves for a discovery
conference to prompt convening of the conference, the court may combine
the discovery conference with a postassignment conference authorized by
Rule 16.
(g) Signing of Discovery Requests, Responses, and Objections. Every
request for discovery or response or objection thereto made by a party
represented by an attorney shall be signed by at least one attorney of
record in the attorney's individual name, whose address and telephone
number shall be stated. A party who is not represented by an attorney
shall sign the request, response, or objection and state the party's
address and telephone number. The signature of the attorney or party
constitutes a certification that the signer has read the request,
response, or objection, and that to the best of the signer's knowledge,
information, and belief formed after a reasonable inquiry it is: (1)
consistent with these rules and warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing
law; (2) not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of
litigation; and (3) not unreasonable or unduly burdensome or expensive,
given the needs of the case, the discovery already had in the case, the
amount in controversy, and the importance of the issues at stake in the
litigation. If a request, response, or objection is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response or
objection and a party shall not be obligated to take any action with
respect to it until it is signed.
If a certification is made in violation of the rule, the court, upon
motion or upon its own initiative, shall impose upon the person who made
the certification, the party on whose behalf the request, response, or
objection is made, or both, an appropriate sanction, which may include
an order to pay the amount of the reasonable expenses incurred because
of the violation, including a reasonable attorney's fee.
(h) Costs. All costs, charges, and expenses incident to taking
depositions shall be borne by the party making application for the same
unless otherwise provided for by stipulation or by order of the court.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC Rule 27. Depositions Before Action or Pending Appeal
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Before Action.
(1) Petition. A person who desires to perpetuate testimony regarding
any matter that may be cognizable in this court may file a verified
petition. The petition shall be entitled in the name of the petitioner
and shall show: (A) that the petitioner expects to be a party to an
action cognizable in this court but is presently unable to bring it or
cause it to be brought, (B) the subject matter of the expected action
and the petitioner's interest therein, (C) the facts which the
petitioner desires to establish by the proposed testimony and the
reasons for desiring to perpetuate it, (D) the names or a description of
the persons the petitioner expects will be adverse parties and their
addresses so far as known, and (E) the names and addresses of the
persons to be examined and the substance of the testimony which the
petitioner expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the persons to be
examined named in the petition, for the purpose of perpetuating their
testimony.
(2) Notice and Service. The petitioner shall thereafter serve a
notice upon each person named in the petition as an expected adverse
party, together with a copy of the petition, stating that the petitioner
will apply to the court, at a time and place named therein, for the
order described in the petition. At least 20 days before the date of
hearing, the notice shall be served in the manner provided in Rule 4 for
service of summons; but if such service cannot with due diligence be
made upon any expected adverse party named in the petition, the court
may make such order as is just for service by publication or otherwise,
and shall appoint, for persons not served in the manner prescribed by
Rule 4, an attorney who shall represent them, and, in case they are not
otherwise represented, shall cross-examine the deponent. If any
expected adverse party is a minor or incompetent the provisions of Rule
17(c) apply.
(3) Order and Examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of justice,
it shall make an order designating or describing the persons whose
depositions may be taken and specifying the subject matter of the
examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be
taken in accordance with these rules; and the court may make orders of
the character prescribed by Rules 34 and 35.
(4) Use of Deposition. If a deposition to perpetuate testimony is
taken under these rules, it may be used in any other action involving
the same subject matter subsequently brought, in accordance with the
provisions of Rule 32(a).
(b) Pending Appeal. If an appeal has been taken from a judgment or
before the taking of an appeal if the time therefor has not expired, the
court may allow the taking of depositions of witnesses to perpetuate
their testimony for use in the event of further proceedings in the
court. In such case the party who desires to perpetuate the testimony
may make a motion in the court for leave to take depositions, upon the
same notice and service thereof as if the action was pending. The
motion shall show (1) the names and addresses of persons to be examined
and the substance of the testimony which the party expects to elicit
from each; (2) the reasons for perpetuating their testimony. If the
court finds that the perpetuation of the testimony is proper to avoid a
failure or delay of justice, it may make an order allowing the
depositions to be taken and may make orders of the character prescribed
by Rules 34 and 35, thereupon the depositions may be taken and used in
the same manner and under the same conditions as are prescribed in these
rules for depositions taken in actions pending in court.
(c) Perpetuation by Action. This rule does not limit the power of
this court to entertain an action to perpetuate testimony.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 28. Persons Before Whom Depositions May Be Taken --
Commissions and Letters Rogatory
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Within the United States. At any place within the jurisdiction
of the United States, depositions shall be taken before an officer
authorized to administer oaths by the laws of the United States or of
the place where the examination is held, or before a person appointed by
the court. A person so appointed has power to administer oaths and take
testimony.
(b) In Foreign Countries. In a foreign country, depositions may be
taken (1) on notice before a person authorized to administer oaths in
the place in which the examination is held, either by the law thereof or
by the law of the United States, or (2) before a person commissioned by
the court, and a person so commissioned shall have the power by virtue
of the commission to administer any necessary oath and take testimony,
or (3) pursuant to a letter rogatory.
(c) Commissions and Letters Rogatory -- How Issued -- When Issued --
Interrogatories -- Objections to Interrogatories.
(1) A commission or a letter rogatory shall be issued in the name of
the President of the United States and under the seal of the court to
examine witnesses resident in another country. A commission or a letter
rogatory shall be issued on application and notice and on terms that are
just and appropriate. It is not requisite to the issuance of a
commission or a letter rogatory that the taking of the deposition in any
other manner is impracticable or inconvenient; and both a commission
and a letter rogatory may be issued in proper cases.
(2) Commissions or letters rogatory to take depositions shall be
issued only upon order pursuant to a motion made in writing, after
answer is filed, setting forth the names and addresses of the witnesses
whose testimony is sought.
(3) The proposed interrogatories shall be annexed to the motion for a
commission or a letter rogatory. Unless the court orders otherwise,
cross-interrogatories shall be served within 15 days after the motion is
granted; within 10 days thereafter, redirect interrogatories may be
served; and within 10 days thereafter, recross-interrogatories may be
served.
(4) Objections to all interrogatories may be made at the trial to the
same extent and under the same conditions as provided in Rule 32 with
respect to depositions on oral examination. Any objections to such
interrogatories which are required to be made prior to the issuance of a
commission or a letter rogatory shall be served within the time provided
for the next succeeding interrogatories, or in the case of
recross-interrogatories, within 10 days after service thereof.
(d) Commissions and Letters Rogatory -- To Whom Issued -- Taking of
Testimony -- Use of Testimony.
(1) Commissions may be issued to an American consul, or to a notary
public, or other officer authorized to administer oaths by the laws of
the country where the deposition is taken. Letters rogatory may be
issued to a foreign or international tribunal, officer, or agency and
may be addressed ''To the Appropriate Judicial Authority in (here name
the country).''
(2) Such commissions or letters rogatory, together with all
interrogatories, shall be forwarded by the clerk of the court
immediately after the time for filing objections to the last
interrogatory has expired, or, if objection is made, immediately after
the court's ruling on the last interrogatory becomes final, with
directions to proceed promptly to take the testimony of the witness in
response to all the interrogatories and to prepare, certify, and return
the deposition to the clerk of the court, attaching thereto the
commission or letter rogatory and all interrogatories.
(3) The answers of each witness under oath to all interrogatories
shall be in writing and signed by the official commissioned pursuant to
paragraph (1) of this subdivision. The testimony so taken may be used
in the same manner as prescribed in Rule 32.
(e) Return, Notice, Filing of Deposition. Upon the return of the
deposition the clerk of the court shall open and file it forthwith and
give notice thereof to the parties. Any written motion to suppress such
deposition, or any part thereof, shall be served within 30 days after
the mailing of the notice. Evidence obtained in response to a letter
rogatory need not be excluded merely for the reason that it departs from
the requirements for depositions taken within the United States under
these rules.
(f) Disqualification for Interest. No deposition shall be taken
before a person who is a relative or employee or attorney or counsel of
any of the parties, or is a relative or employee of such attorney or
counsel, or is financially interested in the action.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 29. Stipulations Regarding Discovery Procedure
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
Unless the court orders otherwise, the parties may by written
stipulation (1) provide that depositions may be taken before any person,
at any time or place, upon any notice, and in any manner and when so
taken may be used like other depositions, and (2) modify the procedures
provided by these rules for other methods of discovery, except that
stipulations extending the time provided in Rules 33, 34, and 36 for
responses to discovery may be made only with the approval of the court.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985.)
28 USC Rule 30. Depositions Upon Oral Examination
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) When Depositions May Be Taken. After service of the complaint,
any party may take the testimony of any person, including a party, by
deposition upon oral examination. Leave of court, granted with or
without notice, must be obtained only if the plaintiff seeks to take a
deposition prior to the expiration of 30 days after service of the
complaint upon any defendant, except that leave is not required (1) if a
defendant has served a notice of taking deposition or otherwise sought
discovery, or (2) if special notice is given as provided in subdivision
(b)(7) of this rule. The attendance of witnesses may be compelled by
subpoena as provided in Rule 45. The deposition of a person confined in
prison may be taken only by leave of court on such terms as the court
prescribes.
(b) Notice of Examination -- General Requirements -- Special Notice
-- Nonstenographic Recording -- Production of Documents and Things --
Deposition of Organization -- Deposition by Telephone.
(1) A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party
to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if
known, and, if the name is not known, a general description sufficient
to identify the person or the particular class or group to which the
person belongs. If a subpoena duces tecum is to be served on the person
to be examined, the designation of the materials to be produced as set
forth in the subpoena shall be attached to or included in the notice.
(2) The notice to a party deponent may be accompanied by a request
made in compliance with Rule 34 for the production of documents and
tangible things at the taking of the deposition. The procedure of Rule
34 shall apply to the request.
(3) The court may for cause shown enlarge or shorten the time for
taking the deposition.
(4) A party may in the party's notice and in a subpoena name as the
deponent a public or private corporation or a partnership or association
or governmental agency and describe with reasonable particularity the
matters on which examination is requested. In that event the
organization so named shall designate one or more officers, directors,
or managing agents, or other persons who consent to testify on its
behalf, and may set forth, for each person designated, the matters on
which the person will testify. A subpoena shall advise a nonparty
organization of its duty to make such a designation. The person so
designated shall testify as to matters known or reasonably available to
the organization. This subdivision (b)(4) does not preclude taking a
deposition by any other procedure authorized in these rules.
(5) The parties may stipulate in writing, or the court may upon
motion order, that the testimony at a deposition be recorded by other
than stenographic means. The stipulation or order shall designate the
person before whom the deposition shall be taken, the manner of
recording, preserving, and filing the deposition, and may include other
provisions to assure that the recorded testimony will be accurate and
trustworthy. A party may arrange to have a stenographic transcription
made at the party's own expense. Any objections under subdivision (c)
of this rule, any changes made by the witness, the witness' signature
identifying the deposition as the witness' own or the statement of the
officer that is required if the witness does not sign, as provided in
subdivision (e) of this rule, and the certification of the officer
required by subdivision (f) of this rule shall be set forth in a writing
to accompany a deposition recorded by nonstenographic means.
(6) The parties may stipulate in writing, or the court may order,
that a deposition be taken by telephone. For the purposes of this rule
and Rule 28(a), a deposition taken by telephone is taken at the place
where the deponent is to answer questions propounded to the deponent.
(7) Leave of court is not required for the taking of a deposition by
the plaintiff if the notice (A) states that the person to be examined is
about to go out of the United States, or is bound on a voyage to sea,
and will be unavailable for examination unless the person's deposition
is taken before expiration of the 30-day period prescribed by
subdivision (a) of this rule, and (B) sets forth facts to support the
statement. The plaintiff's attorney shall sign the notice, and the
attorney's signature constitutes a certification by the attorney that to
the best of the attorney's knowledge, information, and belief the
statement and supporting facts are true. The sanctions provided by Rule
11 are applicable to the certification.
If a party shows that when the party was served with notice under
this subdivision (b)(7) the party was unable through the exercise of
diligence to obtain counsel to represent the party at the taking of the
deposition, the deposition may not be used against the party.
(c) Examination and Cross-Examination -- Record of Examination --
Oath -- Objections. Examination and cross-examination of witnesses may
proceed as permitted at the trial under the provisions of the Federal
Rules of Evidence. The officer before whom the deposition is to be
taken shall put the witness on oath and shall personally, or by someone
acting under the officer's direction and in the officer's presence,
record the testimony of the witness. The testimony shall be taken
stenographically or recorded by any other means ordered in accordance
with subdivision (b)(5) of this rule. If requested by one of the
parties, the testimony shall be transcribed.
All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of
taking it, or to the evidence presented, or to the conduct of any party,
and any other objection to the proceedings, shall be noted by the
officer upon the deposition. Evidence objected to shall be taken
subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on
the party taking the deposition; and the party taking the deposition
shall transmit them to the officer, who shall propound them to the
witness and record the answers verbatim.
(d) Motion To Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and
upon a showing that the examination is being conducted in bad faith or
in such manner as unreasonably to annoy, delay, embarrass, or oppress
the deponent or party, the court may order the officer conducting the
examination to cease from taking the deposition, or may limit the scope
and manner of the taking of the deposition as prescribed by Rule 26(c).
If the order terminates the examination, it shall be resumed thereafter
only upon the order of the court. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for the time
necessary to make a motion for an order. The provisions of Rule
37(a)(3) apply to the award of expenses incurred in relation to the
motion.
(e) Submission to Witness -- Changes -- Signing. When the testimony
is fully transcribed, the deposition shall be submitted to the witness
for examination and shall be read to or by the witness, unless such
examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall
be entered upon the deposition by the officer, with a statement of the
reasons given by the witness for making them. The deposition shall then
be signed by the witness, unless the parties by stipulation waive the
signing, or the witness is ill or cannot be found or refuses to sign.
If the deposition is not signed by the witness within 30 days of its
submission to the witness, the officer shall sign it and state on the
record the fact of the waiver, or of the illness or absence of the
witness, or the fact of the refusal to sign, together with the reasons,
if any, given therefor; and the deposition may then be used as fully as
though signed, unless, on a motion to suppress under Rule 32(c)(4), the
court holds that the reasons given for the refusal to sign require
rejection of the deposition in whole or in part.
(f) Certification and Filing by Officer -- Exhibits -- Copies --
Notice of Filing.
(1) The officer shall certify on the deposition that the witness was
duly sworn by the officer and that the deposition is a true record of
the testimony given by the witness. The officer shall then securely
seal the deposition in an envelope indorsed with the title of the action
and marked: ''Deposition of (here insert name of witness)'' and shall
promptly file it with the clerk of the court or send it by registered or
certified mail to the clerk for filing and give prompt notice of its
filing to the party taking the deposition.
Documents and things produced for inspection during the examination
of the witness, shall, upon request of a party, be marked for
identification and annexed to the deposition and may be inspected and
copied by any party, except that if the person producing the materials
desires to retain them the person may (A) offer copies to be marked for
identification and annexed to the deposition and to serve thereafter as
originals if the person affords to all parties fair opportunity to
verify the copies by comparison with the originals, or (B) offer the
originals to be marked for identification after giving to each party an
opportunity to inspect and copy them, in which event the materials may
then be used in the same manner as if annexed to the deposition. Any
party may move for an order that the original be annexed to and returned
with the deposition to the court, pending final disposition of the case.
(2) Upon payment of reasonable charges therefor, the officer shall
furnish a copy of the deposition to any party or to the deponent.
(3) The party taking the deposition shall give prompt notice of its
filing to all other parties.
(g) Failure to Attend or to Serve Subpoena -- Expenses.
(1) If the party giving the notice of the taking of a deposition
fails to attend and proceed therewith and another party attends in
person or by attorney pursuant to the notice, the court may order the
party giving the notice to pay to such other party the reasonable
expenses incurred by that party and that party's attorney in attending,
including reasonable attorney's fees.
(2) If the party giving the notice of the taking of a deposition of a
witness fails to serve a subpoena upon the witness and the witness
because of such failure does not attend, and if another party attends in
person or by attorney because that party expects the deposition of that
witness to be taken, the court may order the party giving the notice to
pay to such other party the reasonable expenses incurred by that party
and that party's attorney in attending, including reasonable attorney's
fees.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
The Federal Rules of Evidence, referred to in subd. (c), are set out
in this Appendix.
28 USC Rule 31. Deposition Upon Written Questions
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Serving Questions -- Notice. After service of the complaint, any
party may take the testimony of any person, including a party, by
deposition upon written questions. The attendance of witnesses may be
compelled by the use of subpoena as provided in Rule 45. The deposition
of a person confined in prison may be taken only by leave of court on
such terms as the court prescribes.
A party desiring to take a deposition upon written questions shall
serve them upon every other party with a notice stating (1) the name and
address of the person who is to answer them, if known, and if the name
is not known, a general description sufficient to identify the person or
the particular class or group to which the person belongs, and (2) the
name or descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions may be
taken of a public or private corporation or a partnership or association
or governmental agency in accordance with the provisions of Rule
30(b)(4).
Within 30 days after the notice and written questions are served, a
party may serve cross-questions upon all other parties. Within 10 days
after being served with cross-questions, a party may serve redirect
questions upon all other parties. Within 10 days after being served
with redirect questions, a party may serve recross-questions upon all
other parties. The court may for cause shown enlarge or shorten the
time.
(b) Officer To Take Responses and Prepare Record. A copy of the
notice and copies of all questions served shall be delivered by the
party taking the deposition to the officer designated in the notice, who
shall proceed promptly, in the manner provided by Rule 30(c), (e) and
(f), to take the testimony of the witness in response to the questions
and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the questions received by the
officer.
(c) Notice of Filing. When the deposition is filed, the party taking
it shall promptly give notice thereof to all other parties.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC Rule 32. Use of Depositions in Court Proceedings /1/
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Use of Depositions. At the trial or upon the hearing of a motion
or an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who was
present or represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the following
provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness, or
for any other purpose permitted by the Federal Rules of Evidence.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated under Rule 30(b)(4) or 31(a) to testify on behalf of a public
or private corporation, partnership or association or governmental
agency which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds: (A) that the witness
is dead; (B) that the witness is out of the United States, unless it
appears that the absence of the witness was procured by the party
offering the deposition; (C) that the witness is unable to attend or
testify because of age, illness, infirmity, or imprisonment; (D) that
the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or (E) upon application and
notice, that such exceptional circumstances exists as to make it
desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the officer to introduce any other part
which ought in fairness to be considered with the part introduced, and
any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect the right
to use depositions previously taken; and, when an action has been
brought in any court of the United States or of any state and another
action involving the same subject matter is afterward brought between
the same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefor. A deposition
previously taken may also be used as permitted by the Federal Rules of
Evidence.
(b) Objections to Admissibility. Subject to the provisions of Rule
28(b) and subdivision (c)(3) of this rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of the evidence if the
witness were then present and testifying.
(c) Effect of Errors and Irregularities in Depositions.
(1) As to notice. All errors and irregularities in the notice for
taking deposition are waived unless written objection is promptly served
upon the party giving the notice.
(2) As to disqualification of officer. Objection to taking a
deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(3) As to taking of deposition.
(A) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the ground of
the objection is one which might have been obviated or removed if
presented at the time.
(B) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection thereto is
made at the taking of the deposition.
(C) Objections to the form of written questions submitted under Rule
31 are waived unless served in writing upon the party propounding them
within the time allowed for serving the succeeding cross or other
questions and within 5 days after service of the last questions
authorized.
(4) As to completion and return of deposition. Errors and
irregularities in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under Rules
30 and 31 are waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after such defect is, or
with due diligence might have been, ascertained.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
The Federal Rules of Evidence, referred to in subd. (a), are set out
in this Appendix.
/1/ As provided in 28 U.S.C. 2641(a), the Federal Rules of Evidence
apply to all actions in this court, except as provided in 28 U.S.C.
2639 and 2641(b), or the rules of the court.
28 USC Rule 33. Interrogatories to Parties
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Availability -- Procedures for Use. Any party may serve upon any
other party written interrogatories to be answered by the party served
or, if the party served is a public or private corporation or a
partnership or association or governmental agency, by any officer or
agent, who shall furnish such information as is available to the party.
Interrogatories may, without leave of court, be served upon the
plaintiff after filing of the complaint and upon any other party with or
after service of the summons and complaint upon that party.
Each interrogatory shall be answered separately and fully in writing
under oath, unless it is objected to, in which event the reasons for
objections shall be stated in lieu of an answer. The answers are to be
signed by the person making them, and the objections signed by the
attorney making them. The party upon whom the interrogatories have been
served shall serve a copy of the answers, and objections if any, within
30 days after the service of the interrogatories, except that a
defendant may serve answers or objections within 45 days after service
of the summons and complaint upon that defendant. The court may allow a
shorter or longer time. The party submitting the interrogatories may
move for an order under Rule 37(a) with respect to any objection to or
other failure to answer an interrogatory.
(b) Scope -- Use at Trial. Interrogatories may relate to any matters
which can be inquired into under Rule 26(b), and the answers may be used
to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not necessarily objectionable
merely because an answer to the interrogatory involves an opinion or
contention that relates to fact or the application of law to fact, but
the court may order that such an interrogatory need not be answered
until after designated discovery has been completed or until a
postassignment conference or other later time.
(c) Option To Produce Business Records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, including a
compilation, abstract or summary thereof, and the burden of deriving or
ascertaining the answer is substantially the same for the party serving
the interrogatory as for the party served it is a sufficient answer to
such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the
interrogatory reasonable opportunity to examine, audit or inspect such
records and to make copies, compilations, abstracts or summaries. A
specification shall be in sufficient detail to permit the interrogating
party to locate and to identify, as readily as can the party served, the
records from which the answer may be ascertained.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985.)
28 USC Rule 34. Production of Documents and Things and Entry Upon Land
for Inspection and Other Purposes
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Scope. Any party may serve on any other party a request (1) to
produce and permit the party making the request, or someone acting on
the requestor's behalf, to inspect and copy, any designated documents
(including writings, drawings, graphs, charts, photographs,
phonorecords, and other data compilations from which information can be
obtained, translated, if necessary, by the respondent through detection
devices into reasonably usable form), or to inspect and copy, test, or
sample any tangible things which constitute or contain matters within
the scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom the request is served; or (2) to permit
entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling
the property or any designated object or operation thereon, within the
scope of Rule 26(b).
(b) Procedure. The request may, without leave of court, be served
upon the plaintiff after filing of the complaint and upon any other
party with or after service of the summons and complaint upon that
party. The request shall set forth the items to be inspected either by
individual item or by category, and describe each item and category with
reasonable particularity. The request shall specify a reasonable time,
place, and manner of making the inspection and performing the related
acts.
The party upon whom the request is served shall serve a written
response within 30 days after the service of the request, except that a
defendant may serve a response within 45 days after service of the
summons and complaint upon that defendant. The court may allow a
shorter or longer time. The response shall state, with respect to each
item or category, that inspection and related activities will be
permitted as requested, unless the request is objected to, in which
event the reasons for objection shall be stated. If objection is made
to part of an item or category, the part shall be specified. The party
submitting the request may move for an order under Rule 37(a) with
respect to any objection to or other failure to respond to the request
or any part thereof, or any failure to permit inspection as requested.
A party who produces documents for inspection shall produce them as
they are kept in the usual course of business or shall organize and
label them to correspond with the categories in the request.
(c) Persons Not Parties. A person not a party to the action may be
compelled to produce documents and things or to submit to an inspection
as provided in Rule 45.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993.)
28 USC Rule 35. Physical and Mental Examinations of Persons
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Order for Examination. When the mental or physical condition
(including the blood group) of a party or of a person in the custody or
under the legal control of a party, is in controversy, the court may
order the party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for examination
the person in the party's custody or legal control. The order may be
made only on motion for good cause shown and upon notice to the person
to be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person or
persons by whom it is to be made.
(b) Report of Examiner.
(1) If requested by the party against whom an order is made under
Rule 35(a) or the person examined, the party causing the examination to
be made shall deliver to the requesting party a copy of the detailed
written report of the examiner setting out the examiner's findings,
including the results of all tests made, diagnoses and conclusions,
together with like reports of all earlier examinations of the same
condition. After delivery the party causing the examination shall be
entitled upon request to receive from the party against whom the order
is made a like report of any examination, previously or thereafter made,
of the same condition, unless, in the case of a report of examination of
a person not a party, the party shows that the party is unable to obtain
it. The court on motion may make an order against a party requiring
delivery of a report on such terms as are just, and if an examiner fails
or refuses to make a report, the court may exclude the examiner's
testimony if offered at trial.
(2) By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party examined
waives any privilege the party may have in that action or any other
involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine the party in respect
of the same mental or physical condition.
(3) This subdivision applies to examinations made by agreement of the
parties, unless the agreement expressly provides otherwise. This
subdivision does not preclude discovery of a report of an examiner or
the taking of a deposition of an examiner in accordance with the
provisions of any other rule.
(As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
Jan. 1, 1993.)
28 USC Rule 36. Requests for Admission
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Request for Admission. A party may serve upon any other party a
written request for the admission, for purposes of the pending action
only, of the truth of any matters within the scope of Rule 26(b) set
forth in the request that relate to statements or opinions of fact or of
the application of law to fact, including the genuineness of any
documents described in the request. Copies of documents shall be served
with the request unless they have been or are otherwise furnished or
made available for inspection and copying. The request may, without
leave of court, be served upon the plaintiff after filing of the
complaint, and upon any other party with or after service of the summons
and complaint upon that party.
Each matter of which an admission is requested shall be separately
set forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the court may
allow, the party to whom the request is directed serves upon the party
requesting the admission a written answer or objection addressed to the
matter, signed by the party or by the party's attorney, but, unless the
court shortens the time, a defendant shall not be required to serve
answers or objections before the expiration of 45 days after service of
the summons and complaint upon that defendant. If objection is made,
the reasons therefor shall be stated. The answer shall specifically
deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter. A denial shall fairly
meet the substance of the requested admission, and when good faith
requires that a party qualify an answer or deny only a part of the
matter of which an admission is requested, the party shall specify so
much of it as is true and qualify or deny the remainder. An answering
party may not give lack of information or knowledge as a reason for
failure to admit or deny unless the party states that the party has made
reasonable inquiry and that the information known or readily obtainable
by the party is insufficient to enable the party to admit or deny. A
party who considers that a matter of which an admission has been
requested presents a genuine issue for trial may not, on that ground
alone, object to the request; the party may, subject to the provisions
of Rule 37(c), deny the matter or set forth reasons why the party cannot
admit or deny it.
The party who has requested the admissions may move to determine the
sufficiency of the answers or objections. Unless the court determines
that an objection is justified, it shall order that an answer be served.
If the court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is
admitted or that an amended answer be served. The court may, in lieu of
these orders determine that final disposition of the request be made at
a postassignment conference or at a designated time prior to trial. The
provisions of Rule 37(a)(3) apply to the award of expenses incurred in
relation to the motion.
(b) Effect of Admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal
or amendment of the admission. Subject to the provisions of Rule 16
governing amendment of a postassignment scheduling or conference order,
the court may permit withdrawal or amendment when the presentation of
the merits of the action will be subserved thereby and the party who
obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice that party in maintaining the action or defense
on the merits. Any admission made by a party under this rule is for the
purpose of the pending action only and is not an admission for any other
purpose nor may it be used against the party in any other proceeding.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC Rule 37. Failure To Make or Cooperate in Discovery -- Sanctions
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Motion for Order Compelling Discovery. A party, upon reasonable
notice to other parties and all persons affected thereby, may apply for
an order compelling discovery as follows:
(1) Motion. If a deponent fails to answer a question propounded or
submitted under Rule 30 or 31, or a corporation or other entity fails to
make a designation under Rule 30(b)(4) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in
response to a request for inspection submitted under Rule 34, fails to
respond that inspection will be permitted as requested or fails to
permit inspection as requested, the discovering party may move for an
order compelling an answer, or designation, or an order compelling
inspection in accordance with the request. When taking a deposition on
oral examination, the proponent of the question may complete or adjourn
the examination before applying for an order.
If the court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion
made pursuant to Rule 26(c).
(2) Evasive or Incomplete Answer. For purposes of this subdivision
an evasive or incomplete answer is to be treated as a failure to answer.
(3) Award of Expenses of Motion. If the motion is granted, the court
shall, after opportunity for hearing, require the party or deponent
whose conduct necessitated the motion or the party or attorney advising
such conduct or both of them to pay to the moving party the reasonable
expenses incurred in obtaining the order, including attorney's fees,
unless the court finds that the opposition to the motion was
substantially justified or that other circumstances make an award of
expenses unjust.
If the motion is denied, the court shall, after opportunity for
hearing, require the moving party or the attorney advising the motion or
both of them to pay to the party or deponent who opposed the motion the
reasonable expenses incurred in opposing the motion, including
attorney's fees, unless the court finds that the making of the motion
was substantially justified or that other circumstances make an award of
expenses unjust.
If the motion is granted in part and denied in part, the court may
apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in a just manner.
(b) Failure To Comply With Order. If a deponent fails to be sworn or
to answer a question after being directed to do so by the court, the
failure may be considered a contempt of court. If a party or an
officer, director, or managing agent of a party or person designated
under Rule 30(b)(4) or 31(a) to testify on behalf of a party fails to
obey an order to provide or permit discovery, including an order made
under subdivision (a) of this rule or Rule 35 or if a party fails to
obey an order entered under Rule 26(f), the court may make such orders
in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order.
(2) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting that party from
introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an
order treating as a contempt of court the failure to obey any orders;
except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Rule 35(a)
requiring that party to produce another for examination, such orders as
are listed in paragraphs (1), (2) and (3) of this subdivision (b),
unless the party failing to comply shows that that party is unable to
produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the attorney
advising that party or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an
award of expenses unjust.
(c) Expenses on Failure to Admit. If a party fails to admit the
genuineness of any document or the truth of any matter as requested
under Rule 36, and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter, the
requesting party may apply to the court for an order requiring the other
party to pay the reasonable expenses incurred in making that proof,
including reasonable attorney's fees. The court shall make the order
unless it finds that (1) the request was held objectionable pursuant to
Rule 36(a), or (2) the admission sought was of no substantial
importance, or (3) the party failing to admit had reasonable ground to
believe that the party might prevail on the matter, or (4) there was
other good reason for the failure to admit.
(d) Failure of Party To Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection. If a party or an
officer, director, or managing agent of a party or a person designated
under Rule 30(b)(4) or 31(a) to testify on behalf of a party fails (1)
to appear before the officer who is to take the deposition, after being
served with a proper notice, or (2) to serve answers or objections to
interrogatories submitted under Rule 33, after proper service of the
interrogatories, or (3) to serve a written response to a request for
inspection submitted under Rule 34, after proper service of the request,
the court on motion may make such orders in regard to the failure as are
just, and among others it may take any action authorized under
subdivisions (b)(1), (b)(2) and (b)(3) of this rule. In lieu of any
order or in addition thereto, the court shall require the party failing
to act or the attorney advising that party or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the
court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
The failure to act described in this subdivision may not be excused
on the ground that the discovery sought is objectionable unless the
party failing to act has applied for a protective order as provided by
Rule 26(c).
(e) Subpoena of Person in Foreign Country. A subpoena may be issued
as provided in 28 U.S.C. 1783, under the circumstances and conditions
therein stated.
(f) Failure to Participate in the Framing of a Discovery Plan. If a
party or a party's attorney fails to participate in good faith in the
framing of a discovery plan by agreement as is required by Rule 26(f),
the court may, after opportunity for hearing, require such party or
attorney to pay to any other party the reasonable expenses, including
attorney's fees, caused by the failure.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC TITLE VI -- TRIALS
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
28 USC Rule 38. Jury Trial of Right
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Right Preserved. The right of trial by jury as declared by the
Seventh Amendment to the Constitution or as given by a statute of the
United States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue
triable of right by a jury by serving upon the other parties a demand
therefor in writing at any time after the commencement of the action and
not later than 10 days after the service of the last pleading directed
to such issue. Such demand may be indorsed upon a pleading of the
party.
(c) Demand -- Specification of Issues. In the demand a party may
specify the issues which the party wishes so tried; otherwise the party
shall be deemed to have demanded trial by jury for all the issues so
triable. If the party has demanded trial by jury for only some of the
issues, any other party within 10 days after service of the demand or
such lesser time as the court may order, may serve a demand for trial by
jury of any other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve a demand as required by
this rule and to file it as required by Rule 5(d) constitutes a waiver
by the party of trial by jury. A demand for trial by jury made as
herein provided may not be withdrawn without the consent of the parties.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
28 USC Rule 39. Trial by Jury or by the Court
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) By Jury. When trial by jury has been demanded as prescribed by
Rule 38, the action shall be so designated. The trial of all issues so
demanded shall be by jury, unless (1) the parties or their attorneys of
record, by written stipulation filed with the court or by an oral
stipulation made in open court and entered in the record, consent to
trial by the court sitting without a jury, or (2) the court upon motion
or on its own initiative finds that a right of trial by jury of some or
all of those issues does not exist under the Constitution or statutes of
the United States.
(b) By the Court. Issues not demanded for trial by jury as
prescribed by Rule 38 shall be tried by the court; but, notwithstanding
the failure of a party to demand a jury in an action in which such a
demand might have been made of right, the court in its discretion upon
motion may order a trial by a jury of any or all issues.
(c) Advisory Jury and Trial by Consent. In all actions not triable
of right by a jury the court upon motion or on its own initiative may
try any issue with an advisory jury or, except in actions against the
United States when a statute of the United States provides for trial
without a jury, the court, with the consent of the parties, may order a
trial with a jury whose verdict has the same effect as if trial by jury
had been a matter of right.
28 USC Rule 40. Request for Trial
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Request. At any time after issue is joined in an action, unless
the court otherwise directs, any party who desires to try an action
shall: (1) confer with the opposing party or parties to attempt to
reach agreement as to the time and place of trial, and (2) serve upon
the opposing party or parties, and file with the court, a request for
trial which shall be substantially in the form set forth in Form 6 in
the Appendix of Forms. The request shall be served and filed at least
30 days prior to the requested date of trial, or upon a showing of good
cause, at a reasonable time prior to the requested date of trial. A
party who opposes the request shall serve and file its opposition within
10 days after service of the request, unless a shorter period is
directed by the court. In all instances where a trial is requested to
be held at a location other than or in addition to the courthouse at One
Federal Plaza, New York, New York, all other parties shall serve and
file a response within 10 days after the service of the request, unless
a shorter period is directed by the court.
(b) Designation. The court shall designate the date and place for
trial, as prescribed in Rule 77(c)(1) or (2), and shall give reasonable
notice thereof to the parties.
(c) Premarking Exhibits. All exhibits and documents which are
intended to be introduced in evidence are to be marked for
identification and exhibited to opposing counsel prior to trial or court
proceeding.
(As amended Oct. 3, 1990, eff. Jan. 1, 1991.)
To implement the authority conferred upon the chief judge by 28
U.S.C. 253(b) and 256(a), and for the convenience of parties, there is
set out in the instructions for Form 6, in the Appendix of Forms, a list
of tentative dockets and the procedures to be followed in connection
with trials or oral arguments of dispositive motions at places other
than New York City.
A schedule, agreed to by the parties, suitable for attachment to a
decision of the court, shall be filed at the time an action is submitted
to the court for final determination upon a dispositive motion or upon
the conclusion of a trial. The schedule should indicate (1) when one
action is involved, the ports of entry, protest and entry numbers, (2)
when consolidated actions are involved, the ports of entry, court
numbers, protest and entry numbers, and (3) when joined actions are
involved, the ports of entry, court numbers, plaintiffs, protest and
entry numbers. Cases should be arranged according to port of entry, in
numerical order.
28 USC Rule 41. Dismissal of Actions
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Voluntary Dismissal -- Effect Thereof.
(1) By Plaintiff -- By Stipulation. Subject to the provisions of
Rule 23(e), of Rule 56.2, of Rule 66, and of any statute of the United
States, an action may be dismissed by the plaintiff without order of
court (A) by filing a notice of dismissal which shall be substantially
in the form set forth in Form 7 of the Appendix of Forms at any time
before service by the adverse party of an answer or motion for summary
judgment, whichever occurs first, or (B) by filing a stipulation of
dismissal, which shall be substantially in the form set forth in Form 8
of the Appendix of Forms, signed by all parties who have appeared in the
action. Unless otherwise stated in the notice of dismissal or
stipulation, the dismissal is without prejudice, except that a notice of
dismissal operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in any court of the United States or of
any state an action based on or including the same claim.
(2) By Order of Court. Except as provided in paragraph (1) of this
subdivision (a), an action shall not be dismissed by the plaintiff
unless upon order of the court, and upon such terms and conditions as
the court deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon the defendant of the plaintiff's
motion to dismiss, the action shall not be dismissed against the
defendant's objection unless the counterclaim can remain pending for
independent adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.
(b) Involuntary Dismissal -- Effect Thereof.
(1) Actions on the Reserve Calendar or the Suspension Disposition
Calendar are subject to dismissal for lack of prosecution at the
expiration of the applicable period of time as prescribed by Rules 83
and 85.
(2) Whenever it appears that an action is not being prosecuted with
due diligence, the court may upon its own initiative after notice, or
upon motion of a defendant, order the action dismissed for lack of
prosecution.
(3) For failure of the plaintiff to comply with these rules or with
any order of the court, a defendant may move that the action be
dismissed.
(4) A dismissal under this subdivision (b) operates as a dismissal
upon the merits, unless the court otherwise directs.
(c) Insufficiency of Evidence. After the plaintiff, in an action
tried by the court without a jury, has completed the presentation of
evidence, the defendant, without waiving the right to offer evidence in
the event the motion is not granted, may move for a dismissal on the
ground that upon the facts and the law the plaintiff has shown no right
to relief. The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence. If the court renders
judgment on the merits against the plaintiff, the judgment shall be
supported by either a statement of findings of fact and conclusions of
law or an opinion stating the reasons and facts upon which the judgment
is based. A dismissal under this subdivision (c) operates as a
dismissal upon the merits, unless the court otherwise directs.
(d) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.
The provisions of this rule apply to the dismissal of any counterclaim,
cross-claim, or third-party claim. A voluntary dismissal by the
claimant alone pursuant to subdivision (a)(1) of this rule shall be made
before a responsive pleading is served or, if there is none, before the
introduction of evidence at the trial or hearing.
(e) Costs of Previously Dismissed Action. If a plaintiff who has
once dismissed an action in any court commences an action based upon or
including the same claim against the same defendant, the court may make
such order for the payment of costs of the action previously dismissed
as it may deem proper and may stay the proceedings in the action until
the plaintiff has complied with the order.
(As amended Jan. 1, 1982; Oct. 3, 1984, eff. Jan. 1, 1985; July 28,
1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993.)
28 USC Rule 42. Consolidation -- Separate Trials
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Consolidation. When actions involving a common question of law
or fact are pending before the court, it may order a joint hearing or
trial of any or all the matters in issue in the actions; it may order
all the actions consolidated under a consolidated complaint; and it may
make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to expedition
and economy, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party claims, or
issues, always preserving inviolate the right of trial by jury as
declared by the Seventh Amendment to the Constitution or as given by a
statute of the United States.
28 USC Rule 43. Taking of Testimony /1/
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Form. In all trials the testimony of witnesses shall be taken
orally in open court, unless otherwise provided by an Act of Congress,
or by these rules, or by the Federal Rules of Evidence.
(b) Affirmation in Lieu of Oath. Whenever under these rules an oath
is required to be taken, a solemn affirmation may be accepted in lieu
thereof.
(c) Evidence on Motions. When a motion is based on facts not
appearing of record the court may hear the matter on affidavits
presented by the respective parties, but the court may direct that the
matter be heard wholly or partly on oral testimony or deposition.
(d) Interpreters. The court may appoint an interpreter of its own
selection and may fix the interpreter's reasonable compensation. The
compensation shall be paid out of funds provided by law or by one or
more of the parties as the court may direct, and may be taxed ultimately
as costs, in the discretion of the court.
(e) Documents Specially Admissible.
(1) Reports -- Depositions -- Affidavits. In addition to other
admissible evidence, when the value of merchandise or any of its
components is in issue, reports or depositions of consuls, customs
officers, and other officers of the United States and depositions and
affidavits of other persons whose attendance cannot reasonably be had,
may be admitted in evidence, as provided in 28 U.S.C. 2639(c), when
served upon the opposing party in accordance with this rule.
(2) Service. A copy of any report, deposition or affidavit described
in paragraph (1) of this subdivision (e), which is intended to be
offered in evidence, shall be served on the opposing party with the
request for trial. A party other than the party serving the request for
trial shall serve a copy of any report, deposition or affidavit which
that party intends to offer in evidence upon the opposing party within
15 days after service of the request for trial. Timely service of
copies of such documents may be waived or the time extended upon
consent, or by order of the court for good cause shown.
(3) Objections. Objections to the admission of such documents in
evidence may be made at the trial.
(4) Pricelists -- Catalogs. When the value of merchandise is in
issue, pricelists and catalogs may be admitted into evidence when duly
authenticated, relevant, and material.
(As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988.)
The Federal Rules of Evidence, referred to in subd. (a), are set out
in this Appendix.
/1/ As provided in 28 U.S.C. 2641(a), the Federal Rules of Evidence
apply to all actions in this court, except as provided in 28 U.S.C.
2639 and 2641(b), or the rules of the court.
28 USC Rule 44. Proof of Official Record
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Authentication.
(1) Domestic. An official record kept within the United States, or
any state, district, commonwealth, or within a territory subject to the
administrative or judicial jurisdiction of the United States, or an
entry therein, when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the officer having
the legal custody of the record, or by the officer's deputy, and
accompanied by a certificate that such officer has the custody. The
certificate may be made by a judge of a court of record of the district
or political subdivision in which the record is kept, authenticated by
the seal of the court, or may be made by any public officer having a
seal of office and having official duties in the district or political
subdivision in which the record is kept, authenticated by the seal of
the officer's office.
(2) Foreign. A foreign official record, or an entry therein, when
admissible for any purpose, may be evidenced by an official publication
thereof; or a copy thereof, attested by a person authorized to make the
attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (i) of the attesting
person, or (ii) of any foreign official whose certificate of genuineness
of signature and official position relates to the attestation or is in a
chain of certificates of genuineness of signature and official position
relating to the attestation. A final certification may be made by a
secretary of embassy or legation, consul general, consul, vice consul,
or consular agent of the United States, or a diplomatic or consular
official of the foreign country assigned or accredited to the United
States. If reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of the documents, the court
may, for good cause shown, (i) admit an attested copy without final
certification or (ii) permit the foreign official record to be evidenced
by an attested summary with or without a final certification. The final
certification is unnecessary if the record and the attestation are
certified as provided in a treaty or convention to which the United
States and the foreign country in which the official record is located
are parties.
(b) Lack of Record. A written statement that after diligent search
no record or entry of a specified tenor is found to exist in the records
designated by the statement, authenticated as provided in subdivision
(a)(1) of this rule in the case of a domestic record, or complying with
the requirements of subdivision (a)(2) of this rule for a summary in the
case of a foreign record, is admissible as evidence that the records
contain no such record or entry.
(c) Other Proof. This rule does not prevent the proof of official
records or of entry or lack of entry therein by any other method
authorized by law.
(As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
Jan. 1, 1993.)
28 USC Rule 44.1. Determination of Foreign Law
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
A party who intends to raise an issue concerning the law of a foreign
country shall give notice by pleadings or other reasonable written
notice. The court, in determining foreign law, 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 determination shall be treated as a ruling on a question of
law.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
The Federal Rules of Evidence, referred to in text, are set out in
this Appendix.
28 USC Rule 45. Subpoena
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court; and
(B) state the title of the action, and its civil action number; and
(C) command each person to whom it is directed to attend and give
testimony or to produce and permit inspection and copying of designated
books, documents or tangible things in the possession, custody or
control of that person, or to permit inspection of premises, at a time
and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this rule.
A command to produce evidence or to permit inspection may be joined
with a command to appear at trial or hearing or at deposition, or may be
issued separately.
(2) A subpoena commanding attendance at a trial or hearing shall
issue from the court. A subpoena for attendance at a deposition shall
issue from the court. If separate from a subpoena commanding the
attendance of a person, a subpoena for production or inspection shall
issue from the court.
(3) The clerk shall issue a subpoena, signed but otherwise in blank,
to a party requesting it, who shall complete it before service. An
attorney admitted to practice before the Court of International Trade as
an officer of the court may also issue and sign a subpoena on behalf of
the court.
(b) Service.
(1) A subpoena may be served by any person who is not a party and is
not less than 18 years of age. Service of a subpoena upon a person
named therein shall be made by delivering a copy thereof to such person
and, if the person's attendance is commanded, by tendering to that
person the fees for one day's attendance and the mileage allowed by law.
When the subpoena is issued on behalf of the United States or an
officer or agency thereof, fees and mileage need not be tendered. Prior
notice of any commanded production of documents and things or inspection
of premises before trial shall be served on each party in the manner
prescribed by Rule 5(b).
(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place within 100
miles of the place of the deposition, hearing, trial, production, or
inspection specified in the subpoena. When a statute of the United
States provides therefor, or when the interest of justice may require,
the court upon proper application and cause shown may authorize the
service of a subpoena at any other place. A subpoena directed to a
witness in a foreign country who is a national or resident of the United
States shall issue under the circumstances and in the manner and be
served as provided in Title 28, U.S.C. 1783.
(3) Proof of service when necessary shall be made by filing with the
clerk of the court a statement of the date and manner of service and of
the names of the persons served, certified by the person who made the
service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue burden
or expense on a person subject to that subpoena. The court shall
enforce this duty and impose upon the party or attorney in breach of
this duty an appropriate sanction, which may include, but is not limited
to, lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and
copying of designated books, papers, documents or tangible things, or
inspection of premises need not appear in person at the place of
production or inspection unless commanded to appear for deposition,
hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to
produce and permit inspection and copying may, within 14 days after
service of the subpoena or before the time specified for compliance if
such time is less than 14 days after service, serve upon the party or
attorney designated in the subpoena written objection to inspection or
copying of any or all of the designated materials or of the premises.
If objection is made, the party serving the subpoena shall not be
entitled to inspect and copy the materials or inspect the premises
except pursuant to an order of the court. If objection has been made,
the party serving the subpoena may, upon notice to the person commanded
to produce, move at any time for an order to compel the production.
Such an order to compel production shall protect any person who is not a
party or an officer of a party from significant expense resulting from
the inspection and copying commanded.
(3)(A) On timely motion, the court shall quash or modify the subpoena
if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to
travel to a place more than 100 miles from the place where that person
resides, is employed or regularly transacts business in person, except
that, subject to the provisions of clause (c)(3)(B)(iii) of this rule,
such a person may in order to attend trial be commanded to travel from
any such place, or
(iii) requires disclosure of privileged or other protected matter and
no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential
research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or
information not describing specific events or occurrences in dispute and
resulting from the expert's study made not at the request of any party,
or
(iii) requires a person who is not a party or an officer of a party
to incur substantial expense to travel more than 100 miles to attend
trial, the court may, to protect a person subject to or affected by the
subpoena, quash or modify the subpoena or, if the party in whose behalf
the subpoena is issued shows a substantial need for the testimony or
material that cannot be otherwise met without undue hardship and assures
that the person to whom the subpoena is addressed will be reasonably
compensated, the court may order appearance or production only upon
specified conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall
produce them as they are kept in the usual course of business or shall
organize and label them to correspond with categories in the demand.
(2) When information subject to a subpoena is withheld on a claim
that it is privileged or subject to protection as trial preparation
materials, the claim shall be made expressly and shall be supported by a
description of the nature of the documents, communications, or things
not produced that is sufficient to enable the demanding party to contest
the claim.
(e) Contempt. Failure by any person without adequate excuse to obey
a subpoena served upon that person may be deemed a contempt of the
court. An adequate cause for failure to obey exists when a subpoena
purports to require a nonparty to attend or produce at a place not
within the limits provided by clause (ii) of subparagraph (c)(3)(A).
(As amended June 19, 1985, eff. Oct. 1, 1985; July 28, 1988, eff.
Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991; Sept. 25, 1992, eff.
Jan. 1, 1993.)
28 USC Rule 46. Exceptions Unnecessary
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
Formal exceptions to rulings or orders of the court are unnecessary;
but for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or order
of the court is made or sought, makes known to the court the action
which the party desires the court to take or the party's objection to
the action of the court and the grounds therefor; and, if a party has
no opportunity to object to a ruling or order at the time it is made,
the absence of an objection does not thereafter prejudice the party.
(As amended July 28, 1988, eff. Nov. 1, 1988.)
28 USC Rule 47. Jurors
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Examination of Jurors. The court may permit the parties or their
attorneys to conduct the examination of prospective jurors or may itself
conduct the examination. In the latter event, the court shall permit
the parties or their attorneys to supplement the examination by such
further inquiry as it deems proper or shall itself submit to the
prospective jurors such additional questions of the parties or their
attorneys as it deems proper.
(b) Peremptory Challenges. The court shall allow the number of
peremptory challenges provided by 28 U.S.C. 1870.
(c) Excuse. The court may for good cause excuse a juror from service
during trial or deliberation.
(As amended July 21, 1986, eff. Oct. 1, 1986; Sept. 25, 1992, eff.
Jan. 1, 1993.)
28 USC Rule 48. Number of Jurors -- Participation in Verdict
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
The court shall seat a jury of not fewer than six and not more than
twelve members and all jurors shall participate in the verdict unless
excused from service by the court pursuant to Rule 47(c). Unless the
parties otherwise stipulate, (1) the verdict shall be unanimous and (2)
no verdict shall be taken from a jury reduced in size to fewer than six
members.
(As amended July 21, 1986, eff. Oct. 1, 1986; Sept. 25, 1992, eff.
Jan. 1, 1993.)
28 USC Rule 49. Special Verdicts and Interrogatories
TITLE 28, APPENDIX -- RULES OF THE COURT OF INTERNATIONAL TRADE
(a) Special Verdicts. The court may require a jury to return only a
special verdict in the form of a special written finding upon each issue
of fact. In that event the court may submit to the jury written
questions susceptible of categorical or other brief answer or may submit
written forms of the several special findings which might properly be
made under the pleadings and evidence; or it may use such other method
of submitting the issues and requiring the written findings thereon as
it deems most appropriate. The court shall give to the jury such
explanation and instruction concerning the matter thus submitted as may
be necessary to enable the jury to make its findings upon each issue.
If in so doing the court omits any issue of fact raised by the pleadings
or by the evidence, each party waives the right to a trial by jury of
the issue so omitted unless before the jury retires the party demands
its submission to the jury. As to an issue omitted without such demand
the court may make a finding; or if it fails to do so, it shall be
deemed to have made a finding in accord with the judgment on the special
verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The
court may submit to the jury, together with appropriate forms for a
general verdict, written interrogatories upon one or more issues of fact
the decision of which is necessary to a verdict. The court shall give
explanation or instruction as may be necessary to enable the jury both
to make answers to the interrogatories and to render a general verdict,
and the court shall direct the jury both to make written answers and to
render a general verdict. When the general verdict and the answers are
harmonious, the appropriate judgment upon the verdict and answers shall
be entered pursuant to Rule 58. When the answers are consistent with
each other but one or more is inconsistent with the general verdict,
judgment may be entered pursuant to Rule 58 in accordance with the
answers, notwithstanding the general verdict, or the court may return
the jury for further consideration of its answers and verdict or may
order a new trial. When the answers are inconsistent with each other
and one or more is likewise inconsistent with the general verdict,
judgment shall not be entered, but the court shall return the jury for
further consideration of its answers and verdict or shall order a new
trial.
(As amended July 28, 1988, eff. Nov. 1, 1988.)