united states code: rules of civil procedure for the united ......united states under authority of...

RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS

As amended to January 1, 1977

AUTHowRTY

The Rules of Civil Procedure hereinafter set outwere promulgated by the Supreme Court of theUnited States under authority of former sections 723b,723c (now § 2072) of this title.

EFFEcTIvE DATE

The original Rules of Civil Procedure for the Dis-trict Courts were transmitted to the Congress by theAttorney General on Jan. 3, 1938 and became effectiveon Sept. 16, 1938.

RULES OF THE SUPREME COURT OF THE UNITED STATES

Procedure in original actions in Supreme Court ofthe United States, Federal Rules of Civil Procedure asguide, see rule 9, this Appendix.

ANALYSIS OF RULES

Title I. Scope of Rules-One Form of Action

Rule 1. Scope of RulesRule 2. One Form of Action

Title II. Commencement of Action; Service of Process,Pleadings, Motions, and Orders

Rule 3. Commencement of ActionRule 4. Process

(a) Summons: issuance.(b) Same: form.(c) By whom served.(d) Summons: personal service.(e) Same; service upon party not inhabi-

tant of or found within State.(f) Territorial limits of effective service.(g) Return.(h) Amendment.(i) Alternative provisions for service in a

foreign country.Rule 5. Service and Filing of Pleadings and

Other Papers(a) Service: when required.(b) Same: how made.(c) Same: numerous defendants.(d) Filing.(e) Filing with the court defined.

Rule 6. Time(a) Computation.(b) Enlargement.(c) Rescinded.(d) For motions-affidavits.(e) Additional time after service by mail.

Title III. Pleadings and Motions

Rule 7. Pleadings Allowed; Form of Motions(a) Pleadings.(b) Motions and other papers.(c) Demurrers, pleas, etc., abolished.

Rule 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.

Rule 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) Admiralty and maritime claims.

Rule 10. Form of Pleadings(a) Caption; names of parties.(b) Paragraphs; separate statements.(c) Adoption by reference; exhibits.

Rule 11. Signing of PleadingsRule 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 plead-

ings.(d) Preliminary hearings.(e) Motion for more definite statement.(f) Motion to strike.(g) Consolidation of defense in motion(h) Waiver or preservation of certain de-

fenses.Rule 13. Counterclaim and Cross-Claim

(a) Compulsory counterclaims.(b) Permissive counterclaims.(c) Counterclaim exceeding opposing

claim.(d) Counterclaim against the United

States.(e) Counterclaim maturing or acquired

after pleading.(f) Omitted counterclaim.

(g) Cross-claim against co-party.(h) Joinder of additional parties.(i) Separate trials; separate judgments.

Rule 14. Third-Party Practice(a) When defendant may bring in third

party.(b) When plaintiff may bring in third

party.(c) Admiralty and maritime claims.

Rule 15. Amended and Supplemental Pleadings(a) Amendments.(b) Amendments to conform to the evi-

dence.(c) Relation back of amendments.(d) Supplemental pleadings.

Rule 16. Pre-Trial Procedure; FormulatingIssues

Title IV. Parties

Rule 17. Parties Plaintiff and Defendant; Capac-ity

(a) Real party in interest.(b) Capacity to sue or be sued.(c) Infants or incompetent persons.

Rule 18. Joinder of Claims and Remedies(a) Joinder of claims.(b) Joinder of remedies; fraudulent con-

veyances.

Page 388

TITLE 28, APPENDIX-RULES OF CIVIL PROCEDURE

Rule 19. Joinder of Persons Needed for Just Ad-judication

(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.

Rule 20. Permissive Joinder of Parties(a) Permissive joinder.(b) Separate trials.

Rule 21. Misjoinder and Non-Joinder of PartiesRule 22. InterpleaderRule 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 conduct-ed partially as class actions.

(d) Orders in conduct of actions.(e) Dismissal or compromise.

Rule 23.1. Derivative Actions by ShareholdersRule 23.2. Actions Relating to Unincorporated

AssociationsRule 24. Intervention

(a) Intervention of right.(b) Permissive intervention.(c) Procedure.

Rule 25. Substitution of Parties(a) Death.(b) Incompetency.(c) Transfer of interest.(d) Public officers; death or separation

from office.

Title V. Depositions and Discovery

Rule 26. General Provisions Governing Discov-ery

(a) Discovery methods.(b) Scope of discovery.

(1) In general.(2) Insurance agreements.(3) Trial preparation: materials.(4) Trials preparation: experts.

(c) Protective orders.(d) Sequence and timing of discovery.(e) Supplementation of responses.

Rule 27. Depositions Before Action or PendingAppeal

(a) Before action.(1) Petition.(2) Notice and service.(3) Order and examination.(4) Use of deposition.

(b) Pending appeal.(c) Perpetuation by action.

Rule 28. Persons Before Whom Depositions MayBe Taken

(a) Within the United States.(b) In foreign countries.(c) Disqualification for interest.

Rule 29. Stipulations Regarding Discovery Pro-cedure

Rule 30. Depositions Upon Oral Examination(a) When depositions may be taken.(b) Notice of examination: general re-

quirements; special notice; nonsten-ographic recording; production ofdocuments and things; depositionof organization.

(c) Examination and cross-examination;record of examination; oath; objec-tions.

(d) Motion to terminate or limit exami-nation.

(e) Submission to witness; changes; sign-ing.

(f) Certification and filing by officer; ex-hibits; copies; notice of filing.

(g) Failure to attend or to serve subpoe-na; expenses.

Rule 31. Depositions Upon Written Questions(a) Serving questions; notice.(b) Officer to take responses and prepare

record.(c) Notice of filing.

Rule 32. Use of Depositions in Court Proceed-ings

(a) Use of depositions.(b) Objections to admissibility.[(c) Abrogated.](d) Effect of errors and irregularities in

depositions(1) As to notice.(2) As to disqualification of offi-

cer.(3) As to taking of deposition.(4) As to completion and return

of deposition.Rule 33. Interrogatories to Parties

(a) Availability; procedures for use.(b) Scope; use at trial.(c) Option to produce business records.

Rule. 34. Production of Documents and Thingsand Entry Upon Land for Inspection andOther Purposes

(a) Scope.(b) Procedure.(c) Persons not parties.

Rule 35. Physical and Mental Examination ofPersons

(a) Order for examination.(b) Report of examining physician.

Rule 36. Requests for Admission of Documents(a) Request for admission.(b) Effect of admission.

Rule. 37. Failure to Make Discovery: Sanctions(a) Motion for order compelling discov-

ery.(1) Appropriate court.(2) Motion.(3) Evasive or incomplete

answer.(4) Award of expenses of

motion.(b) Failure to comply with order.

(1) Sanctions by court in dis-trict where deposition istaken.

(2) Sanctions by court in whichaction is pending.

(c) Expenses on failure to admit.(d) Failure of party to attend at own de-

position or serve answers to inter-rogatories or respond to request forinspection.

(e) Subpoena of person in foreign coun-try.

(f) Expenses against United States.

Title VI. Trials

Rule 38. Jury Trial of Right(a) Right preserved.(b) Demand.(c) Same: specification of issues.(d) Waiver.(e) Admiralty and maritime claims.

Rule 39. Trial by Jury or by the Court(a) By jury.(b) By the court.(c) Advisory jury and trial by consent.

Rule 40. Assignment of Cases for TrialRule 41. Dismissal of Actions

(a) Voluntary dismissal: effect thereof.(1) By plaintiff: by stipulation.(2) By order of court.

71-999 0 - 78 - 27 (Vol. 8)

Page 389


(b) Involuntary dismissal: effect thereof.(c) Dismissal of counterclaim, cross-

claim, or third-party claim.(d) Costs of previously-dismissed action

Rule 42. Consolidation: Separate Trials(a) Consolidation.(b) Separate trials.

Rule 43. Taking of Testimony.(a) Form.

[(b), (c) Abrogated.](d) Affirmation in lieu of oath.(e) Evidence on motions.(f) Interpreters.

Rule 44. Proof of Official Record(a) Authentication.

(1) Domestic.(2) Foreign.

(b) Lack of record.(c) Other proof.

Rule 44.1. Determination of Foreign LawRule 45. Subpoena

(a) For attendance of witnesses; form; is-suance.

(b) For production of documentary evi-dence.

(c) Service.(d) Subpoena for taking depositions;

place of examination.(e) Subpoena for a hearing or trial.(f) Contempt.

Rule 46. Exceptions UnnecessaryRule 47. Jurors

(a) Examination of jurors.(b) Alternate jurors.

Rule 48. Juries of Less than Twelve-MajorityVerdict

Rule 49. Special Verdicts and Interrogatories(a) Special verdicts.(b) General verdict accompanied by

answer to interrogatories.Rule 50. Motion for a Directed Verdict and for

Judgment Notwithstanding the Verdict(a) Motion for directed verdict: when

made; effect.(b) Motion for judgment notwithstand-

ing the verdict.(c) Same: conditional rulings on grant of

motion.(d) Same: denial of motion.

Rule 51. Instructions to Jury: ObjectionRule 52. Findings by the Court

(a) Effect.(b) Amendment.

Rule 53. Masters(a) Appointment and compensation.(b) Reference.(c) Powers.(d) Proceedings.

(1) Meetings.(2) Witnesses.(3) Statements of accounts.

(e) Report.(1) Contents and filing.(2) In non-jury actions.(3) In jury actions.(4) Stipulation as to findings.(5) Draft report.

Title VII. JudgmentRule 54. Judgments; Costs

(a) Definition; Form.(b) Judgment upon multiple claims or in-

volving multiple parties.(c) Demand for judgment.(d) Costs.

Rule 55. Default(a) Entry.(b) Judgment.

(1) By the clerk.(2) By the court.

(c) Setting aside default.(d) Plaintiffs, counterclaimants, cross-

claimants.(e) Judgment against the United States.

Rule 56. Summary Judgment(a) For claimant.(b) For defending party.(c) Motion and proceedings thereon.(d) Case not fully adjudicated on motion.(e) Form of affidavits; further testimo-

ny; defense required.(f) When affidavits are unavailable.(g) Affidavits made in bad faith.

Rule 57. Declaratory JudgmentsRule 58. Entry of JudgmentRule 59. New Trials; 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 judg-

ment.Rule 60. Relief from Judgment or Order

(a) Clerical mistakes.(b) Mistake; inadvertence; excusable ne-

glect; newly discovered evidence;fraud, etc.

Rule 61. Harmless ErrorRule 62. Stay of Proceedings to Enforce a Judg-

ment(a) Automatic stay; exceptions-injunc-

tions, receiverships, and patent ac-countings.

(b) Stay on motion for new trial or forjudgment.

(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) Power of appellate court not limited.(h) Stay of judgment as to multiple

claims or multiple parties.

Rule 63. Disability of a Judge

Title VIII. Provisional and Final Remedies and SpecialProceedings

Rule 64. Seizure of Person or PropertyRule 65. Injunctions

(a) Preliminary injunction.(1) Notice.(2) Consolidation of hearing

with trial on merits.(b) Temporary restraining order; notice;

hearing; duration.(c) Security.(d) Form and scope of injunction or re-

straining order.(e) Employer and employee; inter-

pleader; constitutional cases.Rule 65.1 Security: Proceedings Against SuretiesRule 66. Receivers Appointed by Federal CourtsRule 67. Deposit in CourtRule 68. Offer of JudgmentRule 69. Execution

(a) In general.(b) Against certain public officers.

Rule 70. Judgment for Specific Acts: VestingTitle

Rule 71. Process in Behalf of and Against Per-sons Not Parties

Rule 71A. Condemnation of Property(a) Applicability of other rules.(b) Joinder of properties.(c) Complaint.

(1) Caption.(2) Contents.(3) Filing.

Page 390


(d) Process.(1) Notice; Delivery.(2) Same; Form.(3) Service of Notice.(4) Return; amendment.

(e) Appearance or answer.(f) Amendment of pleadings.(g) Substitution of parties.(h) Trial.(i) Dismissal of action.

(1) As of Right.(2) By Stipulation.(3) By Order of the Court.(4) Effect.

(j) Deposit and its distribution.(k) Condemnation under a State's power

of eminent domain.(1) Costs.

Rules 72 to 76. Abrogated.Title X. District Courts and Clerks

Rule 77. District Courts and Clerks(a) District courts always open.(b) Trials and hearings; orders in cham-

bers.(c) Clerk's office and orders by clerk.(d) Notice of orders or judgments.

Rule 78. Motion DayRule 79. Books and Records Kept by the Clerk

and Entries Therein(a) Civil docket.(b) Civil judgments and orders.(c) Indices; calendars.(d) Other books and records of the clerk.

Rule 80. Stenographer; Stenographic Report orTranscript as Evidence

(a) Abrogated.(b) Abrogated.(c) Stenographic report or transcript as

evidence.

Title XI. General Provisions

Rule 81. Applicability in General(a) To what proceedings applicable.(b) Scire facias and mandamus.(c) Removed actions.(d) Abrogated.(e) Law applicable.(f) References to officer of the United

States.Rule 82. Jurisdiction and Venue UnaffectedRule 83. Rules by District CourtsRule 84. FormsRule 85. TitleRule 86. Effective Date

(a) [Effective date of original rules].(b) Effective date of amendments.(c) Effective date of amendments.(d) Effective date of amendments.(e) Effective date of amendments.

Appendix of Forms

Supplemental Rules for Certain Admiraltyand Maritime Claims

RuleA. Scope of Rules.B. Attachment and Garnishment: Special Provi-

sions.C. Actions in Rem: Special Provisions.D. Possessory, Petitory, and Partition Actions.E. Actions in Rem and Quasi in Rem: General Provi-

sions.F. Limitation of Liability.

The Federal Rules of Civil Procedure supplant theEquity Rules since in general they cover the field nowcovered by the Equity Rules and the Conformity Act(former section 724 of this title).

This table shows the Equity Rules to which refer-ences are made in the notes to the Federal Rules ofCivil Procedure.

Federal RulesEquity Rules of Civil

Procedure

I-

4 ............................5 ............................6 ............................8 ............................

9 ..........................10 ..........................11 .................10

............ 77

............ 77

............ 79

............ 77

............ 77

............ 78

............ 4,70

............ 6,70

............ 7018,54

71............ 3,4,5,12,55............ 4

... 4.......... .. 4, 45

............ 6,55

............ 55... 7,8

............ 1.15.61

............ 12

............ 11,12

......... ... "1

............ 1,39

............ 11. . 8 , 9 , 10 , 19

........... 18, 20, 82

............ 23

............ 15

............ 7, 12, 42, 55

............ 8,13,82

............ 7.8,12,55

............ 15

............ 7,12

............ 15

............ 15

............ 11

............ 17, 19, 20, 24

............ 23

............ 19

............ 20

............ 17

............ 19,20

............ 12.21

............ 12,21

............ 25

............ 43,61

............ 26

............ 43

............ 53

............ 30,80

............ 30.53

............ 45,53

............ 53

............ 26

............ 30

............ 40

............ 40

............ 26, 33, 34, 36

............ 53............ 53............ 53............ 53

..... 53............ 53......... ... 26............ 53............ 53............ 53I............ 53I............ 59............ 17............ 52............ 54............ 60,61............ 65............ 62............ 75............ 75............ 76............ 43

: ... 83............ 86............ 86

36 ......37 ......38.39.40.41.42 ......43 ......44 ......45 ......46 ......47 ......48 ......49.50.51.52.53.54 .......55 .......56 .......57 .......58 .......59 .......60 .......61.61% ....62.63 .......

71 ...........72 ...........73 ...........74 ...........75 ...........76 ...........77

oL. ................................................................

Page 391

TITLE 28, APPENDIX-RULES OF CIVIL PROCEDURE Page 392

STATUTORY REFERENCE TABLEThis table shows the Constitution, its amendments, and the sections of the United States Code to which

references are made in the Federal Rules of Civil Procedure and the notes thereto.[Unless followed by "(T)", to indicate that the reference appears in the text of the Rule, the references appear

in the Note to the Rule.]

Constitution andits amendments

Constitution .........................................................

7th Am endm ent ..................................................

Federal Rulesof Civil

Procedure

17(T), 25(T),39(T)38(T)

Federal RulesU.S. Code of Civil

Procedure

Title 1, § I ..........................................112 ......................................113 ......................................204 ......................................209 ......................................

Title 2. § 118 ......................Title 5, § 301 .....................................

729 ......................................Title 6 ............................................

§ 6 .........................................7 .........................................8 ..........................................9 ..........................................11 ........................................12 ........................................13 ........................................14 ........................................15 ........................................

Title 7, § 210(f) ..................................216 ......................................217 ......................................222 ......................................292 ......................................499g(c) ...............................499k ....................................511n ....................................608c(15)(B) ........................855 ......................................

Title 8, § 9a ........................................164 ......................................

c. 9 ..........................................738 ......................................

Title 9 ............................................Title 10, § 610 ......................................Title 11. § 44(d) ...................................

44(e) ...................................44(f) ....................................44(g) ...................................69 ........................................204 ......................................207(J) ..................................

Title 12, § 91 ........................................632 ......................................

Title 15, § 4 ..........................................5 ..........................................10 ........................................15 ........................................23 ........................................25 ........................................26 ........................................28 ........................................49 ........................................72 ........................................77k ......................................77t(b) .................................77t(c) ..................................77v(a) .................................77v(b) .................................78i(e) ..................................78r ......................................78u(c) .................................78u(e) .................................78u(f) .................................78aa ....................................79r(d) .................................79r(f) ..................................

4344444444

69(T), 697969

62,65,7373

4, 44. 73737373737373735465

4, 62, 6545, 8181(T)

54, 81(T)4,62

4544444181

4, 81(T)81(T)

6944444444454444696965445445

4,6565

40, 6245,81

5454658154455454456581544565


Procedure

Title 15, § 79r(g) .................................79y ......................................1057(b), 1114, 1115 ...........1116, 1117 ..........................1057 ....................................522 ......................................715d(c) ...............................

16, 404c-11 ...............................423k ....................................426d ....................................450aa ..................................517 ......................................714 ......................................797(g) .................................820 ......................................825f .....................................825m (b) ..............................825p ....................................831x ....................................

17 ............................................

§ 101 ......................................19,j 199 ......................................

274 ......................................508 ......................................1333(b) ...............................1333(c) ...............................

20, § 52 ........................................22,§ 268 ......................................

270d ....................................270e ....................................403 ......................................

24,§ 78 ........................................25,9 6 ..........................................

201 ......................................26, 1114 ....................................

1119(b) ...............................3633(a) ...............................3679 ....................................3679(d) ...............................3710(a) ...............................3770(b)(2) ..........................3772(a)(1) ..........................(2), (b) ................................

28, 452 ......................................507 ......................................509 ......................................533 ......................................547 ......................................637 ......................................751 ......................................754 ......................................1252 ....................................1253 ....................................1291 ....................................1292 ....................................1293 ....................................1294 ....................................1331 ....................................1332 ....................................1335 ....................................1341 ....................................1342 ....................................1345 ....................................1354 ....................................1359 ....................................1391 ....................................1392 ....................................1397 ....................................1400 ....................................1402 ....................................1441 ...................................1442 ....................................1443 ....................................1445 ....................................1446 ....................................1447 ....................................1448 ....................................

8154545444

81(T)81(T)

71A71A71A71A71A71A4581458154

71A, 8181(T)

8169548

45814445454540

71a44174545454546954

1377697969

4,7964794

7240, 62, 65,72

7362, 73

73731313

22(T),65(T).6713131313

12, 13, 81194

22(T), 65(T), 674

3, 1181818181818181



Procedure

Title 28, 9 1449 ....................................1450 ....................................1651 ....................................1652 ....................................1653 ....................................1655 ....................................1656 ....................................1691 ....................................1870 ....................................1871 ....................................1873 ....................................1874 ....................................1915 ....................................1919 ....................................1920 ....................................1921 ....................................1923 ....................................1927 ....................................1928 ....................................1961 ....................................2001 ....................................2002 ....................................2003 ....................................2004 ....................................2005 ....................................2006 ....................................2007 ....................................2041 ....................................2042 ....................................2071 ....................................2072 ....................................

2073 ....................................2101 ....................................2107 ....................................2201 ....................................c.153 ...................................2281 ....................................2283 ....................................2284 ....................................

2321 ....................................2322 ....................................2323 ....................................2324 ....................................2325 ....................................2361 ....................................2403 ....................................2405 ....................................2406 ....................................2408 ....................................2409 ....................................2410 ....................................2413 ....................................2463 ....................................

Title 29, § 107 ......................................159 ......................................160(e) .................................160(g) .................................160() ..................................161 ......................................

Title 30, § 32 ........................................Title 31,9 46 ........................................

195 ......................................227 ......................................232 ......................................234 ......................................725v ....................................

Title 33,9 495 ......................................506 ......................................591 ......................................594 ......................................916 ......................................918 ......................................921 ......................................926 ......................................

Title 34, § 365(c) .................................Title 35. § 40d ......................................

54 ........................................55 ........................................56 ........................................67 ........................................69 ........................................

8181

64, 8143, 8112, 15

4. 60(T)69447453855

54.72, 7312. 81

546918

1 14554696969696969

54, 69(T), 6964, 6967(T)67(T)

1, 2, 831. 2. 35, 38, 43.

71a, 811, 2. 43

40. 62. 65. 69. 7262, 73

57(T). 4981

40, 62, 65. 7265

40. 62, 65(T). 65,724

242465

40, 62, 6522(T), 65(T), 67

24 (T), 246413

54, 62, 72. 733.4

44, 69

6473

81(T)81(T)81(T)81(T)

4554446913

41, 5454

67(T)8145

71A71A6969

81(T)5469845454554

8.54


Procedure

Title 35, § 71 ........................................72a ......................................

Title 38.9 llg ......................................54 ........................................133 ......................................393 ......................................438J .....................................445 ......................................618 ......................................

Title 39. § 837 ......................................838 ......................................839 ......................................840 ......................................841 ......................................842 ......................................843 ......................................844 ......................................845 ......................................

Title 40, 9 120 ......................................257 ......................................258 ......................................258a-258e ...........................270b ....................................270c ....................................276a-2(b) ...........................

c. 7 ..........................................

Title 41, § 39 ........................................Title 42,§ 1805(b)(5) ..........................

1811 ....................................1813(b) ...............................

Title 43,§ 57 ........................................58 ........................................

59 ........................................

83 ........................................175 ......................................

Title 45,§ 88 ........................................153p ....................................1573d(h) ............................159 ......................................185 ......................................

Title 46, § 38 ........................................823 ......................................829 ......................................941 ......................................

1124(b) ...............................1227 ....................................

Title 47, § 11 ........................................13 ........................................154(m ) ................................206 ......................................401 ......................................401(a) .................................406 ......................................409(c) .................................409(d) .................................412 ......................................

Title 49, 12(2) ...................................12(3) ...................................14(3) ...................................16(2) ...................................16(13) .................................19a(l) ..................................19a(l) ..................................20(9) ...................................44 ........................................74(g) ...................................97 ........................................

173a ....................................321(c) .................................

Title 50,§ 79 ........................................161-166 ...............................171 ......................................172 ......................................

Title 50App.. § 632 ....................................

Page 393

54444694569

71A4, 22, 45

6964646464646464646481

71A81

71A1744248145

71A71A71A444444446981

54, 8145

81(T)8154445454455481444545481814545444545445444448181

40, 626922454


RULES OF CIVIL PROCEDURE FOR THEUNITED STATES DISTRICT COURTS

TITLE I-SCOPE OF RULES-ONE FORMOF ACTION

Rule 1. Scope of Rules

These rules govern the procedure in theUnited States district courts in all suits of acivil nature whether cognizable as cases at lawor in equity, or in admiralty, with the excep-tions stated in Rule 81. They shall be construedto secure the just, speedy, and inexpensive de-termination of every action.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949;Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY CoMMITTEE ON RULES

1. Rule 81 states certain limitations in the applica-tion of these rules to enumerated special proceedings.

2. The expression "district courts of the UnitedStates" appearing in the statute authorizing the Su-preme Court of the United States to promulgate rulesof civil procedure does not include the district courtsheld in the Territories and insular possessions. SeeMookini et aL v. United States, 303 U. S. 201, 58 S. Ct.543, 82 L. Ed. 748 (1938).

3. These rules are drawn under the authority of theact of June 19, 1934, U.S.C., Title 28, formerly § 723b(now § 2072) (Rules in actions at law; Supreme Courtauthorized to make), and formerly § 723c (now § 2072)(Union of equity and action at law rules; power of Su-preme Court) and also other grants of rule makingpower to the Court. See Clark and Moore, A New Fed-eral Civil Procedure-I. The Background, 44 Yale L.J.387, 391 (1935). Under former § 723b (now § 2072) afterthe rules have taken effect all laws in conflict there-with are of no further force or effect. In accordancewith formerly § 723c (now § 2072) the Court has unitedthe general rules prescribed for cases in equity withthose in actions at law so as to secure one form of civilaction and procedure for both. See Rule 2 (One Formof Action). For the former practice in equity and atlaw see U.S.C., Title 28, formerly §§ 723 and 730 (now§§ 2071-2073) (conferring power on the Supreme Courtto make rules of practice in equity) and the formerEquity Rules promulgated thereunder; U.S.C., Title28, former § 724 (Conformity act): former Equity Rule22 (Action at Law Erroneously Begun as Suit inEquity-Transfer); former Equity Rule 23 (MattersOrdinarily Determinable at Law When Arising in Suitin Equity to be Disposed of Therein); U.S.C., Title 28,former §§ 397 (Amendments to pleadings when casebrought to wrong side of court), and 398 (Equitable de-fenses and equitable relief in actions at law).

4. With the second sentence compare U.S.C., Title28, former §§ 777 (Defects of form; amendments), 767(Amendment of process); former Equity Rule 19(Amendments Generally).

NOTES OF ADVISORY CoMXnrTEE ON 1966 AMENDMxNTTO RULES

This is the fundamental change necessary to effectunification of the civil and admiralty procedure. Justas the 1938 rules abolished the distinction between ac-tions at law and suits in equity, this change wouldabolish the distinction between civil actions and suitsin admiralty. See also Rule 81.

AMENDMENTS

1948-The amendment effective Oct. 20, 1949, substi-tuted the words "United States district courts" for thewords "district courts of the United States".

CRoss REFERmcs

Jurisdiction and venue as unaffected by these rules,see rule 82.

Puerto Rico, district court governed by the rules, seesection 119 of this title.

Virgin Islands, district court governed by the rules,see section 1615 of Title 48, Territories and InsularPossessions.

Rule 2. One Form of Action

There shall be one form of action to beknown as "civil action."

NoTEs OF ADViSORY CommrsrE ON RuLEs1. This rule modifies U.S.C., Title 28, former § 384

(Suits in equity, when not sustainable). U.S.C., Title28, formerly 99 723 and 730 (now §§ 2071-2073) (confer-ring power on the Supreme Court to make rules ofpractice in equity), are unaffected insofar as theyrelate to the rule making power in admiralty. Thesesections, together with former §723b (now §2072)(Rules in actions at law; Supreme Court authorized tomake) are continued insofar as they are not inconsis-tent with former § 723c (now § 2072) (Union of equityand action at law rules; power of Supreme Court). SeeNote 3 to Rule 1. U.S.C., Title 28, former §§ 724 (Con-formity act), 397 (Amendments to pleadings when casebrought to wrong side of court) and 398 (Equitable de-fenses and equitable relief in actions at law) are super-seded.

2. Reference to actions at law or suits in equity in allstatutes should now be treated as referring to the civilaction prescribed in these rules.

3. This rule follows in substance the usual introduc-tory statements to code practices which provide for asingle action and mode of procedure, with abolition offorms of action and procedural distinctions. Represen-tative statutes are N.Y. Code 1848 (Laws 1848, ch. 379)§ 62; N.Y.C.P.A. (1937) § 8; Calif. Code Civ. Proc. (Deer-ing, 1937) § 307; 2 Minn. Stat. (Mason, 1927) § 9164; 2Wash. Rev. Stat. Ann. (Remington, 1932) §§ 153, 255.

CRoss REFERENCEs

Injunctions, see rule 65.Joinder of claims and remedies, see rule 18.Receivers, see rule 66.

TITLE II-COMMENCEMENT OF ACTION;SERVICE OF PROCESS, PLEADINGS, MO-TIONS, AND ORDERS

Rule 3. Commencement of Action

A civil action is commenced by filing a com-plaint with the court.

NOTES OF ADvIsORY CoMmrIrEE ON RuLES1. Rule 5(e) defines what constitutes filing with the

court.2. This rule governs the commencement of all ac-

tions, including those brought by or against theUnited States or an officer or agency thereof, regard-less of whether service is to be made personally pursu-ant to Rule 4(d), or otherwise pursuant to Rule 4(e).

3. With this rule compare former Equity Rule 12(Issue of Subpoena-Time for Answer) and the follow-ing statutes (and other similar statutes) which providea similar method for commencing an action:

U.S.C., Title 28 former:§ 45 (District courts; practice and procedure in cer-

tain cases under interstate commerce laws).§ 762 (Petition in suit against United States).§ 766 (Partition suits where United States is tenant

in common or joint tenant).4. This rule provides that the first step in an action

is the filing of the complaint. Under Rule 4(a) this isto be followed forthwith by issuance of a summonsand its delivery to an officer for service. Other rulesproviding for dismissal for failure to prosecute suggesta method available to attack unreasonable delay inprosecuting an action after it has been commenced.When a Federal or State statute of limitations ispleaded as a defense, a question may arise under this

Rule 1 Page 394


rule whether the mere filing of the complaint stopsthe running of the statute, or whether any furtherstep is required, such as, service of the summons andcomplaint or their delivery to the marshal for service.The answer to this question may depend on whether itis competent for the Supreme Court, exercising thepower to make rules of procedure without affectingsubstantive rights, to vary the operation of statutes oflimitations. The requirement of Rule 4(a) that theclerk shall forthwith issue the summons and deliver itto the marshal for service will reduce the chances ofsuch a question arising.

CRoss REFERENcEsFiling with the court defined, see rule 5.

Rule 4. Process

(a) Summons: issuanceUpon the filing of the complaint the clerk

shall forthwith issue a summons and deliver itfor service to the marshal or to a person spe-cially appointed to serve it. Upon request of theplaintiff separate or additional summons shallissue against any defendants.(b) Same: form

The summons shall be signed by the clerk, beunder the seal of the court, contain the nameof the court and the names of the parties, be di-rected to the defendant, state the name and ad-dress of the plaintiff's attorney, if any, other-wise the plaintiff's address, and the time withinwhich these rules require the defendant toappear and defend, and shall notify him that incase of his failure to do so judgment by defaultwill be rendered against him for the relief de-manded in the complaint. When, under Rule4(e), service is made pursuant to a statute orrule of court of a state, the summons, or notice,or order in lieu of summons shall correspond asnearly as may be to that required by the stat-ute or rule.(e) By whom served

Service of all process shall be made by aUnited States marshal, by his deputy, or bysome person specially appointed by the courtfor that purpose, except that a subpoena maybe served as provided in Rule 45. Special ap-pointments to serve process shall be madefreely when substantial savings in travel feeswill result.(d) Summons: personal service

The summons and complaint shall be servedtogether. The plaintiff shall furnish the personmaking service with such copies as are neces-sary. Service shall be made as follows:

(1) Upon an individual other than an infantor an incompetent person, by delivering a copyof the summons and of the complaint to himpersonally or by leaving copies thereof at hisdwelling house or usual place of abode withsome person of suitable age and discretion thenresiding therein or by delivering a copy of thesummons and of the complaint to an agent au-thorized by appointment or by law to receiveservice of process.

(2) Upon an infant or an incompetent person,by serving the summons and complaint in themanner prescribed by the law of the state inwhich the service is made for the service ofsummons or other like process upon any suchdefendant in an action brought in the courts ofgeneral jurisdiction of that state.

(3) Upon a domestic or foreign corporation orupon a partnership or other unincorporated as-sociation which is subject to suit under acommon name, by delivering a copy of the sum-mons and of the complaint to an officer, a man-aging or general agent, or to any other agentauthorized by appointment or by law to receiveservice of process and, if the agent is one autho-rized by statute to receive service and the stat-ute so requires, by also mailing a copy to thedefendant.

(4) Upon the United States, by delivering acopy of the summons and of the complaint tothe United States attorney for the district inwhich the action is brought or to an assistantUnited States attorney or clerical employee des-ignated by the United States attorney in a writ-ing filed with the clerk of the court and bysending a copy of the summons and of the com-plaint by registered or certified mail to the At-torney General of the United States at Wash-ington, District of Columbia, and in any actionattacking the validity of an order of an officeror agency of the United States not made aparty, by also sending a copy of the summonsand of the complaint by registered or certifiedmail to such officer or agency.

(5) Upon an officer or agency of the UnitedStates, by serving the United States and by de-livering a copy of the summons and of the com-plaint to such officer or agency. If the agency isa corporation the copy shall be delivered as pro-vided in paragraph (3) of this subdivision ofthis rule.

(6) Upon a state or municipal corporation orother governmental organization thereof sub-ject to suit, by delivering a copy of the sum-mons and of the complaint to the chief execu-tive officer thereof or by serving the summonsand complaint in the manner prescribed by thelaw of that state for the service of summons orother like process upon any such defendant.

(7) Upon a defendant of any class referred toin paragraph (1) or (3) of this subdivision ofthis rule, it is also sufficient if the summonsand complaint are served in the manner pre-scribed by any statute of the United States orin the manner prescribed by the law of thestate in which the district court is held for theservice of summons or other like process uponany such defendant in an action brought in thecourts of general jurisdiction of that state.(e) Same: service upon party not inhabitant of or

found within the StateWhenever a statute of the United States or

an order of court thereunder provides for ser-vice of a summons, or of a notice, or of an orderin lieu of summons upon a party not an inhabi-tant of or found within the state in which thedistrict court is held, service may be madeunder the circumstances and in the mannerprescribed by the statute or order, or, if there isno provision therein prescribing the manner ofservice, in a manner stated in this rule. When-ever a statute or rule of court of the state inwhich the district court is held provides (1) forservice of a summons, or of a notice, or of anorder in lieu of summons upon a party not aninhabitant of or found within the state, or (2)for service upon or notice to him to appear andrespond or defend in an action by reason of theattachment or garnishment or similar seizure

Page 395 Rule 4


of his property located within the state, servicemay in either case be made under the circum-stances and in the manner prescribed in thestatute or rule.(f) Territorial limits of effective service

All process other than a subpoena may beserved anywhere within the territorial limits ofthe state in which the district court is held,and, when authorized by a statute of theUnited States or by these rules, beyond the ter-ritorial limits of that state. In addition, personswho are brought in as parties pursuant to Rule14, or as additional parties to a pending actionor a counterclaim or cross-claim therein pursu-ant to Rule 19, may be served in the mannerstated in paragraphs (1)-(6) of subdivision (d)of this rule at all places outside the state butwithin the United States that are not morethan 100 miles from the place in which theaction is commenced, or to which it is assignedor transferred for trial; and persons required torespond to an order of commitment for civilcontempt may be served at the same places. Asubpoena may be served within the territoriallimits provided in Rule 45.(g) Return

The person serving the process shall makeproof of service thereof to the court promptlyand in any event within the time during whichthe person served must respond to the process.If service is made by a person other than aUnited States marshal or his deputy, he shallmake affidavit thereof. Failure to make proofof service does not affect the validity of the ser-vice.(h) Amendment

At any time in its discretion and upon suchterms as it deems just, the court may allow anyprocess or proof of service thereof to be amend-ed, unless it clearly appears that material prej-udice would result to the substantial rights ofthe party against whom the process issued.(i) Alternative provisions for service in a foreign-

country(1) Manner

When the federal or state law referred to insubdivision (e) of this rule authorizes serviceupon a party not an inhabitant of or foundwithin the state in which the district court isheld, and service is to be effected upon theparty in a foreign country, it is also sufficientif service of the summons and complaint ismade: (A) in the manner prescribed by thelaw of the foreign country for service in thatcountry in an action in any of its courts ofgeneral jurisdiction; or (B) as directed by theforeign authority in response to a letter roga-tory, when service in either case is reasonablycalculated to give actual notice; or (C) uponan individual, by delivery to him 'personally,and upon a corporation or partnership or as-sociation, by delivery to an officer, a manag-ing or general agent; or (D) by any form ofmail, requiring a signed receipt, to be ad-dressed and dispatched by the clerk of thecourt to the party to be served; or (E) as di-rected by order of the court. Service under(C) or (E) above may be made by any personwho is not a party and is not less than 18years of age or who is designated by order of

the district court or by the foreign court. Onrequest, the clerk shall deliver the summonsto the plaintiff for transmission to the personor the foreign court or officer who will makethe service.(2) Return

Proof of service may be made as prescribedby subdivision (g) of this rule, or by the lawof the foreign country, or by order of thecourt. When service is made pursuant to sub-paragraph (1)(D) of this subdivision, proof ofservice shall include a receipt signed by theaddressee or other evidence of delivery to theaddressee satisfactory to the court.

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

NoTEs OF ADVISORY CoMmiTTEE ON RULEs

Note to Subdivision (a). With the provision permit-ting additional summons upon request of the plaintiffcompare former Equity Rule 14 (Alias Subpoena) andthe last sentence of former Equity Rule 12 (Issue ofSubpoena-Time for Answer).

Note to Subdivision (b). This rule prescribes a formof summons which follows substantially the require-ments stated in former Equity Rules 12 (Issue of Sub-poena-Time for Answer) and 7 (Process, Mesne andFinal).

U.S.C., Title 28, former § 721 (now § 1691) (Sealingand testing of writs) is substantially continued insofaras it applies to a summons, but its requirements as toteste of process are superseded. U.S.C., Title 28,former § 722 (Teste of process, day of), is superseded.

See Rule 12(a) for a statement of the time withinwhich the defendant is required to appear and defend.

Note to Subdivision (c). This rule does not affectU.S.C., Title 28, former § 503 (now § 547), as amendedJune 15, 1935 (Marshals; duties) and such statutes asthe following insofar as they provide for service ofprocess by a marshal, but modifies them insofar asthey may imply service by a marshal only:

U.S.C., Title 15:§ 5 (Bringing in additional parties) (Sherman Act)§ 10 (Bringing in additional parties)§ 25 (Restraining violations; procedure)

U.S.C., Title 28, former:§ 45 (Practice and procedure in certain cases under

the interstate commerce laws)Compare former Equity Rule 15 (Process, by Whom

Served).Note to Subdivision (d). Under this rule the com-

plaint must always be served with the summons.Paragraph (1). For an example of a statute providing

for service upon an agent of an individual see U.S.C.,Title 28, former § 109 (now §§ 1400, 1694) (Patentcases).

Paragraph (3). This enumerates the officers andagents of a corporation or of a partnership or otherunincorporated association upon whom service of pro-cess may be made, and permits service of process onlyupon the officers, managing or general agents, oragents authorized by appointment or by law, of thecorporation, partnership or unincorporated associ-ation against which the action is brought. See Chris-tian v. International Ass'n of Machinists, 7 F.(2d) 481(D.C.Ky., 1925) and Singleton v. Order of RailwayConductors of America, 9 F.Supp. 417 (D.C.Ill., 1935).Compare Operative Plasterers' and Cement Finishers'International Ass'n of the United States and Canada v.Case, 93 F.(2d) 56 (App.D.C., 1937).

For a statute authorizing service upon a specifiedagent and requiring mailing to the defendant, seeU.S.C., Title 6, § 7 (Surety companies as sureties; ap-pointment of agents; service of process).

Paragraphs (4) and (5) provide a uniform and com-prehensive method of service for all actions againstthe United States or an officer or agency thereof. Forstatutes providing for such service, see U.S.C., Title 7,

Page 396Rule 4


§§ 217 (Proceedings for suspension of orders), 499k (In-junctions; application of injunction laws governingorders of Interstate Commerce Commission),608c(15)(B) (Court review of ruling of Secretary of Ag-riculture), and 855 (making § 608c(15)(B) applicable toorders of the Secretary of Agriculture as to handlersof anti-hog-cholera serum and hog-cholera virus);U.S.C., Title 26, § 3679 (Bill in chancery to clear titleto realty on which the United States has a lien fortaxes); U.S.C., Title 28, former § 45 (District Courts;practice and procedure in certain cases under the in-terstate commerce laws), former § 763 (Petition in suitagainst the United States; service; appearance by dis-trict attorney), former § 766 (now § 2409) (Partitionsuits where United States is tenant in common or jointtenant), former § 902 (now § 2410) (Foreclosure ofmortgages or other liens on property in which theUnited States has an interest). These and similar stat-utes are modified insofar as they prescribe a differentmethod of service or dispense with the service of asummons.

For the former Equity Rule on service, see formerEquity Rule 13 (Manner of Serving Subpoena).

Note to Subdivision (e). The provisions for the ser-vice of a summons or of notice or of an order in lieu ofsummons contained in U.S.C., Title 8, former § 465(now § 1451) (Cancellation of certificates of citizenshipfraudulently or illegally procured) (service by publica-tion in accordance with State law); U.S.C., Title 28,former § 118 (now § 1655) (Absent defendants in suitsto enforce liens); U.S.C., Title 35, former § 72a (Juris-diction of District Court of United States for the Dis-trict of Columbia in certain equity suits where adverseparties reside elsewhere) (service by publicationagainst parties residing in foreign countries); U.S.C.,Title 38, § 445 (Action against the United States on aveteran's contract of insurance) (parties not inhabi-tants of or not found within the District may beserved with an order of the court, personally or bypublication) and similar statutes are continued by thisrule. Title 24, § 378 of the Code of the District of Co-lumbia (Publication against nonresident; those absentfor six months; unknown heirs or devisees; for divorceor in rem; actual service beyond District) is continuedby this rule.

Note to Subdivision (f). This rule enlarges to someextent the present rule as to where service may bemade. It does not, however, enlarge the jurisdiction ofthe district courts.

U.S.C., Title 28, former § 113 (now § 1392) (Suits inStates containing more than one district) (where thereare two or more defendants residing in different dis-tricts), former § 115 (Suits of a local nature), former§ 116 (now § 1392) (Property in different districts insame State), former § 838 (Executions run in all dis-tricts of State); U.S.C., Title 47, § 13 (Action for dam-ages against a railroad or telegraph company whoseofficer or agent in control of a telegraph line refusesor fails to operate such line in a certain manner-"upon any agent of the company found in suchstate"); U.S.C., Title 49, § 321(c) (Requiring designa-tion of a process agent by interstate motor carriersand in case of failure so to do, service may be madeupon any agent in the State) and similar statutes, al-lowing the running of process throughout a State, aresubstantially continued.

U.S.C., Title 15, §§ 5 (Bringing in additional parties)(Sherman Act), 25 (Restraining violations; procedure);U.S.C., Title 28, former § 44 (now § 2321) (Procedure incertain cases under interstate commerce laws; serviceof processes of court), former § 117 (now §§ 754, 1692)(Property in different States in same circuit; jurisdic-tion of receiver), former § 839 (now § 2413) (Execu-tions; run in every State and Territory) and similarstatutes, providing for the running of process beyondthe territorial limits of a State, are expressly contin-ued.

Note to Subdivision (g). With the second sentencecompare former Equity Rule 15 (Process, by WhomServed).

Rule 4

Note to Subdivision (h). This rule substantially con-tinues U.S.C., Title 28, former § 767 (Amendment ofprocess).

NOTES OF ADVISORY COMMITTEE ON 1963 AMEmMErTo RuLEs

Subdivision (b). Under amended subdivision (e) ofthis rule, an action may be commenced against a non-resident of the State in which the district court is heldby complying with State procedures. Frequently theform of the summons or notice required in these casesby State law differs from the Federal form of sum-mons described in present subdivision (b) and exempli-fied in Form 1. To avoid confusion, the amendment ofsubdivision (b) states that a form of summons ornotice, corresponding "as nearly as many be" to theState form, shall be employed. See also a correspond-ing amendment of Rule 12(a) with regard to the timeto answer.

Subdivision (d)(4). This paragraph, governing serviceupon the United States, is amended to allow the use ofcertified mail as an alternative to registered mail forsending copies of the papers to the Attorney Generalor to a United States officer or agency. Cf. N.J. Rule4:5-2. See also the amendment of Rule 30(f)(1).

Subdivision (d)(7). Formerly a question was raisedwhether this paragraph, in the context of the rule as awhole, authorized service in original Federal actionspursuant to State statutes permitting service on aState official as a means of bringing a nonresident mo-torist defendant into court. It was argued in McCoy v.Sier, 205 F.2d 498, 501-2 (3d Cir.) (concurring opin-ion), cert. denied, 346 U.S. 872, 74 S.Ct. 120, 98 L.Ed.380 (1953), that the effective service in those cases oc-curred not when the State official was served butwhen notice was given to the defendant outside theState, and that subdivision (f) (Territorial limits of ef-fective service), as then worded, did not authorize out-of-State service. This contention found little support.A considerable number of cases held the service to begood, either by fixing upon the service on the officialwithin the State as the effective service, thus satisfy-ing the wording of subdivision (f) as it then stood, seeHolbrook v. Cafiero, 18 F.R.D. 218 (D. Md. 1955); Pas-ternack v. Dalo, 17 F.R.D. 420; (W.D. Pa. 1955); cf.Super Prods. Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y.1957), or by reading paragraph (7) as not limited bysubdivision (f). See Griffin v. Ensign, 234 F.2d 307 (3dCir. 1956); 2 Moore's Federal Practice, ff 4.19 (2d ed.1948); 1 Barron & Holtoff, Federal Practice & Proce-dure § 182.1 (Wright ed. 1960); Comment, 27 U. ofChi.L.Rev. 751 (1960). See also Olberding v. IllinoisCentral R.R., 201 F.2d 582 (6th Cir.), rev'd on othergrounds, 346 U.S. 338,'74 S.Ct. 83, 98 L.Ed. 39 (1953);Feinsinger v. Bard, 195 F.2d 45 (7th Cir. 1952).

An important and growing class of State statutesbase personal jurisdiction over nonresidents on thedoing of acts or on other contacts within the State,and permit notice to be given the defendant outsidethe State without any requirement of service on alocal State official. See, e.g., Ill.Ann.Stat. ch. 110, §§ 16,17 (Smith-Hurd 1956); Wis.Stat. § 262.06 (1959). Thisservice, employed in original Federal actions pursuantto paragraph (7), has also been held proper. See Farr& Co. v. Cia. Intercontinental de Nay. de Cuba, 243F.2d 342 (2d Cir. 1957); Kappus v. Western Hills Oil,Inc., 24 F.R.D. 123 (E.D.Wis. 1959); Star v. Rogalny,162 F.Supp. 181 (E.D.Ill. 1957). It has also been heldthat the clause of paragraph (7) which permits service"in the manner prescribed by the law of the state,"etc., is not limited by subdivision (c) requiring that ser-vice of all process be made by certain designated per-sons. See Farr & Co. v. Cia. Intercontinental de Nay.de Cuba, supra. But cf. Sappia v. Lauro Lines, 130F.Supp. 810 (S.D.N.Y. 1955).

The salutary results of these cases are intended tobe preserved. See paragraph (7), with a clarified refer-ence to State law, and amended subdivisions (e) and(f).

Subdivision (e). For the general relation betweensubdivisions (d) and (e), see 2 Moore, supra, 1 4.32.

Page 3974D


The amendment of the first sentence inserting theword "thereunder" supports the original intentionthat the "order of court" must be authorized by a spe-cific United States statute. See 1 Barron & Holtzoff,supra, at 731. The clause added at the end of the firstsentence expressly adopts the view taken by commen-tators that, if no manner of service is prescribed in thestatute or order, the service may be made in a mannerstated in Rule 4. See 2 Moore, supra, f1 4.32, at 1004;Smit, International Aspects of Federal Civil Proce-dure, 61 Colum. L. Rev. 1031, 1036-39 (1961). But seeCommentary, 5 Fed. Rules Serv. 791 (1942).

Examples of the statutes to which the first sentencerelates are 28 U.S.C. § 2361 (Interpleader; process andprocedure); 28 U.S.C. § 1655 (Lien enforcement; absentdefendants).

The second sentence, added by amendment, express-ly allows resort in original Federal actions to the pro-cedures provided by State law for effecting service onnonresident parties (as well as on domiciliaries notfound within the State). See, as illustrative, the dis-cussion under amended subdivision (d)(7) of servicepursuant to State nonresident motorist statutes andother comparable State statutes. Of particular interestis the change brought about by the reference in thissentence to State procedures for commencing actionsagainst nonresidents by attachment and the like, ac-companied by notice. Although an action commencedin a State court by attachment may be removed to theFederal court if ordinary conditions for removal aresatisfied, see 28 U.S.C. § 1450; Rorick v. Devon Syndi-cate, Ltd., 307 U.S. 299, 59 S.Ct. 877, 83 L.Ed. 1303(1939); Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51L.Ed. 138 (1906), there has heretofore been no provi-sion recognized by the courts for commencing an origi-nal Federal civil action by attachment. See Currie, At-tachment and Garnishment in the Federal Courts, 59Mich.L.Rev. 337 (1961), arguing that this result cameabout through historical anomaly. Rule 64,. whichrefers to attachment, garnishment, and similar proce-dures under State law, furnishes only provisional rem-edies in actions otherwise validly commenced. See BigVein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct. 694, 57L.Ed. 1953 (1913); Davis v. Ensign-Bickford Co., 139F.2d 624 (8th Cir. 1944); 7 Moore's Federal Practiceir 64.05 (2d ed. 1954); 3 Barron & Holtzoff, FederalPractice & Procedure § 1423 (Wright ed. 1958); but cf.Note, 13 So.Calif.L.Rev. 361 (1940). The amendmentwill now permit the institution of original Federal ac-tions against nonresidents through the use of familiarState procedures by which property of these defen-dants is brought within the custody of the court andsome appropriate service is made up them.

The necessity of satisfying subject-matter jurisdic-tional requirements and requirements of venue willlimit the practical utilization of these methods of ef-fecting service. Within those limits, however, there ap-pears to be no reason for denying plaintiffs means ofcommencing actions in Federal courts which are gen-erally available in the State courts. See 1 Barron &Holtzoff, supra, at 374-80; Nordbye, Comments onProposed Amendments to Rules of Civil Procedure forthe United States District Courts, 18 F.R.D. 105, 106(1956); Note, 34 Corn. L.Q. 103 (1948); Note, 13 So.Calif. L Rev. 361 (1940).

If the circumstances of a particular case satisfy theapplicable Federal law (first sentence of Rule 4(e), asamended) and the applicable State law (second sen-tence), the party seeking to make the service may pro-ceed under the Federal or the State law, at his option.

See also amended Rule 13(a), and the Advisory Com-mittee's Note thereto.

Subdivision (f). The first sentence is amended toassure the effectiveness of service outside the territori-al limits of the State in all the cases in which any ofthe rules authorize service beyond those boundaries.Besides the preceding provisions of Rule 4, see Rule71A(d)(3). In addition, the new second sentence of thesubdivision permits effective service within a limitedarea outside the State in certain special situations,namely, to bring in additional parties to a counter-

claim or cross-claim (Rule 13(h)), impleaded parties(Rule 14), and indispensable or conditionally necessaryparties to a pending action (Rule 19); and to securecompliance with an order of commitment for civil con-tempt. In those situations effective service can bemade at points not more than 100 miles distant fromthe courthouse in which the action is commenced, orto which it is assigned or transferred for trial.

The bringing in of parties under the 100-mile provi-sion in the limited situations enumerated is designedto promote the objective of enabling the court to de-termine entire controversies. In the light of present-day facilities for communication and travel, the terri-torial range of the service allowed, analogous to thatwhich applies to the service of a subpoena under Rule45(e)(1), can hardly work hardship on the parties sum-moned. The provision will be especially useful in met-ropolitan areas spanning more than one State. Any re-quirements of subject-matter jurisdiction and venuewill still have to be satisfied as to the parties broughtin, although these requirements will be eased in someinstances when the parties can be regarded as "ancil-lary." See Pennsylvania R.R. v. Erie Avenue Ware-house Co., 5 F.R.Serv.2d 14a.62, Case 2 (3d Cir. 1962);Dery v. Wyer, 265 F.2d 804 (2d Cir. 1959); United Art-ists Corp. v. Masterpiece Productions, Inc., 221 F.2d213 (2d Cir. 1955); Lesnik v. Public Industrials Corp.,144 F.2d 968 (2d Cir. 1944); Vaughn v. TerminalTransp. Co., 162 F.Supp. 647 (E.D. Tenn. 1957); andcompare the fifth paragraph of the Advisory Commit-tee's Note to Rule 4(e), as amended. The amendmentis but a moderate extension of the territorial reach ofFederal process and has ample practical justification.See 2 Moore, supra. §4.01[13] (Supp. 1960); 1 Barron& Holtzoff, supra, § 184; Note, 51 Nw.U.L.Rev. 354(1956). But cf. Nordbye, Comments on ProposedAmendments to Rules of Civil Procedure for theUnited States District Courts, 18 F.R.D. 105, 106(1956).

As to the need for enlarging the territorial area inwhich orders of commitment for civil contempt maybe served, see Graber v. Graber, 93 F.Supp. 281 (D.D.C.1950); Teele Soap Mfg. Co. v. Pine Tree Products Co.,Inc., 8 F.Supp. 546 (D.N.H. 1934); Mitchell v. Dexter,244 Fed. 926 (1st Cir. 1917); in re Graves, 29 Fed. 60(N.D. Iowa 1886).

As to the Court's power to amend subdivisions (e)and (f) as here set forth, see Mississippi Pub. Corp. v.Muphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185(1946).

Subdivision (i). The continual increase of civil litiga-tion having international elements makes it advisableto consolidate, amplify, and clarify the provisions gov-erning service upon parties in foreign countries. Seegenerally Jones, International Judicial Assistance:Procedural Chaos and a Program for Reform, 62 YaleL.J. 515 (1953); Longley, Serving Process, Subpoenasand Other Documents in Foreign Territory, Proc.A.B.A., Sec. Int'l & Comp. L. 34 (1959); Smit Interna-tional Aspects of Federal Civil Procedure, 61 Colum. L.Rev. 1031 (1961).

As indicated in the opening lines of new subdivision(i), referring to the provisions of subdivision (e), theauthority for effecting foreign service must be foundin a statute of the United States or a statute or rule ofcourt of the State in which the district court is heldproviding in terms or upon proper interpretation forservice abroad upon persons not inhabitants of orfound within the State. See the Advisory Committee'sNote to amended Rule 4(d)(7) and Rule 4(e). For ex-amples of Federal and State statutes expressly autho-rizing such service, see 8 U.S.C. § 1451(b); 35 U.S.C.§§ 146, 293; Me.Rev.Stat., ch. 22, § 70 (Supp. 1961);Minn.Stat.Ann. § 303.13 (1947); N.Y. Veh. & Tfc. Law§ 253. Several decisions have construed statutes topermit service in foreign countries, although thematter is not expressly mentioned in the statutes. See,e.g., Chapman v. Superior Court, 162 Cal.App.2d 421,328 P.2d 23 (Dist.Ct.App. 1958); Sperry v. Fliegers, 194Misc. 438, 86 N.Y.S.2d 830 (Sup.Ct. 1949); Ewing v.Thompson, 233 N.C. 564, 65 S.E.2d 17 (1951); Rushing

Rule 4 Page 398


v. Bush, 260 S.W.2d 900 (Tex.Ct.Civ.App. 1953). Feder-al and State statutes authorizing service on nonresi-dents in such terms as to warrant the interpretationthat service abroad is permissible include 15 U.S.C.§§ 77v(a), 78aa, 79y; 28 U.S.C. § 1655; 38 U.S.C. § 784(a);IU.Ann.Stat. ch. 110, §§ 16, 17 (Smith-Hurd 1956);Wis.Stat. § 262.06 (1959).

Under subdivisions (e) and (i), when authority tomake foreign service is found in a Federal statute orstatute or rule of court of a State, it is always suffi-cient to carry out the service in the manner indicatedtherein. Subdivision (I) introduces considerable fur-ther flexibility by permitting the foreign service andreturn thereof to be carried out in any of a number ofother alternative ways that are also declared to be suf-ficient. Other aspects of foreign service continue to begoverned by the other provisions of Rule 4. Thus, forexample, subdivision (i) effects no change in the formof the summons, or the issuance of separate or addi-tional summons, or the amendment of service.

Service of process beyond the territorial limits of theUnited States may involve difficulties not encounteredin the case of domestic service. Service abroad may beconsidered by a foreign country to require the perfor-mance of judicial, and therefore "sovereign," actswithin its territory, which that country may conceiveto be offensive to its policy or contrary to Its law. SeeJones, supra, at 537. For example, a person not quali-fied to serve process according to the law of the for-eign country may find himself subject to sanctions ifhe attempts service therein. See Inter-American Juri-dicial Committee, Report on Uniformity of Legislationon International Cooperation in Judicial Procedures20 (1952). The enforcement of a judgment in the for-elgn country in which the service was made may beembarrassed or prevented if the service did not com-port with the law of that country. See ibid.

One of the purposes of subdivision (i) is to allow ac-commodation to the policies and procedures of the for-eign country. It is emphasized, however, that the atti-tudes of foreign countries vary considerably and thatthe question of recognition of United States judg-ments abroad is complex. Accordingly, if enforcementis to be sought in the country of service, the foreignlaw should be examined before a choice is madeamong the methods of service allowed by subdivision(i).

Subdivision (i)(1). Subparagraph (a) of paragraph(1), permitting service by the method prescribed bythe law of the foreign country for service on a personin that country in a civil action in any of its courts ofgeneral jurisdiction, provides an alternative that islikely to create least objection in the place of serviceand also is likely to enhance the possibilities of secur-ing ultimate enforcement of the judgment abroad. SeeReport on Uniformity of Legislation on InternationalCooperation in Judicial Procedures, supra.

In certain foreign countries service in aid of litiga-tion pending in other countries can lawfully be accom-plished only upon request to the foreign court, whichin turn directs the service to be made. In many coun-tries this has long been a customary way of accom-plishing the service. See In re Letters Rogatory out ofFirst Civil Court of City of Mexico, 261 Fed. 652(S.D.N.Y. 1919); Jones, supra, at 543; Comment, 44Colum. L. Rev. 72 (1944); Note, 58 Yale L.J. 1193(1949). Subparagraph (B) of paragraph (1), referringto a letter rogatory, validates this method. A proviso,applicable to this subparagraph and the precedingone, requires, as a safeguard, that the service madeshall be reasonably calculated to give actual notice ofthe proceedings to the party. See Milliken v. Meyer,311 U.S. 457, 61 S. Ct. 339, 85 L. Ed. 278 (1940).

Subparagraph (C) of paragraph (1), permitting for-eign service by personal delivery on individuals andcorporations, partnerships, and associations, providesfor a manner of service that is not only traditionallypreferred, but also is most likely to lead to actualnotice. Explicit provision for this manner of servicewas thought desirable because a number of Federaland State statutes permitting foreign service do not

specifically provide for service by personal deliveryabroad, see e.g., 35 U.S.C. §§ 146, 293; 46 U.S.C. § 1292;Calif. Ins. Code § 1612; N.Y. Veh. & Tfc. Law § 253, andit also may be unavailable under the law of the coun-try in which the service is made.

Subparagraph (D) of paragraph (1), permitting ser-vice by certain types of mail, affords a manner of ser-vice that is inexpensive and expeditious, and requiresa minimum of activity within the foreign country. Sev-eral statutes specifically provide for service in a for-eign country by mail, e.g., Hawaii Rev.Laws §§ 2' 2-31,230-32 (1955); Minn.Stat.Ann. § 303.13 (1947);N.Y.Civ.Prac.Act, § 229-b; N.Y.Veh. &. Tfc.Law § 253,and it has been sanctioned by the courts even in theabsence of statutory provision specifying that form ofservice. Zurini v. United States, 189 F.2d 722 (8th Cir.1951); United States v. Cardillo, 135 F.Supp. 798(W.D.Pa. 1955); Autogiro Co. v. Kay Gyroplanes, Ltd,55 F.Supp. 919 (D.D.C. 1944). Since the reliability ofpostal service may vary from country to country, ser-vice by mail is proper only when it is addressed to theparty to be served and a form of mail requiring asigned receipt is used. An additional safeguard is pro-vided by the requirement that the mailing be attendedto be the clerk of the court. See also the provisions ofparagraph (2) of this subdivision (i) regarding proof ofservice by mail.

Under the applicable law it may be necessary, whenthe defendant is an infant or incompetent person, todeliver the summons and complaint to a guardian,committee, or similar fiduciary. In such a case it wouldbe advisable to make service under subparagraph (A),(B), or (E).

Subparagraph (E) of paragraph (1) adds flexibilityby permitting the court by order to tailor the mannerof service to fit the necessities of a particular case orthe peculiar requirements of the law of the country inwhich the service is to be made. A similar provision ap-pears in a number of statutes, e.g., 35 U.S.C. §§ 146,293; 38 U.S.C. § 784(a); 46 U.S.C. § 1292.

The next-to-last sentence of paragraph (1) permitsservice under (C) and (E) to be made by any personwho is not a party and is not less than 18 years of ageor who is designated by court order or by the foreigncourt. Cf. Rule 45(c); N.Y. Civ. Prac. Act §§ 233, 235.This alternative increases the possibility that theplaintiff will be able to find a process server who canproceed unimpeded in the foreign country; it also mayimprove the chances of enforcing the judgment in thecountry of service. Especially is the alternative valu-able when authority for the foreign service is found ina statute or rule of court that limits the group of eligi-ble process servers to designated officials or special ap-pointees who, because directly connected with another"sovereign," may be particularly offensive to the for-eign country. See generally Smit, supra, at 1040-41.When recourse is had to subparagraph (A) or (B) theidentity of the process server always will be deter-mined by the law of the foreign country in which theservice is made.

The last sentence of paragraph (1) sets forth an al-ternative manner for the issuance and transmission ofthe summons for service. After obtaining the sum-mons from the clerk, the plaintiff must ascertain thebest manner of delivering the summons and complaintto the person, court, or officer who will make the ser-vice. Thus the clerk is not burdened with the task ofdetermining who is permitted to serve process underthe law of a particular country or the appropriate gov-ernmental or nongovernmental channel for forward-ing a letter rogatory. Under (D), however, the papersmust always be posted by the clerk.

Subdivision (i)(2). When service is made in a foreigncountry, paragraph (2) permits methods for proof ofservice in addition to those prescribed by subdivision(g). Proof of service in accordance with the law of theforeign country is permitted because foreign processservers, unaccustomed to the form or the requirementof return of service prevalent in the United States,have on occasion been unwilling to execute the affida-vit required by Rule 4(g). See Jones, supra, at 537;

Rule 4Page 399


Longley, supra, at 35. As a corollary of the alternatemanner of service in subdivision (i)(1)(E), proof of ser-vice as directed by order of the court is permitted. Thespecial provision for proof of service by mail is intend-ed as an additional safeguard when that method isused. On the type of evidence of delivery that may besatisfactory to a court in lieu of a signed receipt, seeAero Associates, Inc. v. La Metropolitana, 183 F.Supp.357 (S.D.N.Y. 1960).

NOTEs OF ADvisORY COMMITTEE ON 1966 AMENDMENTTO RuLEs

The wording of Rule 4(f) is changed to accord withthe amendment of Rule 13(h) referring to Rule 19 asamended.

CRoss REFERENCEsActions on war risk insurance claims, see section

1292 of Title 46, Shipping.Executions in favor of United States, see section

2413 of this title.Motions to dismiss or quash for lack of jurisdiction

over the person, insufficiency of process or service ofprocess, see rule 12.

Process generally, see chapter 113 of this title.Process in bankruptcy proceedings, see Rules of

Bankruptcy Procedure, Appendix to Title 11, Bank-ruptcy.

Process to run outside state-Actions under Security Act of 1933, see section 77v

of Title. 15, Commerce and Trade.Actions under Security Exchange Act of 1934, see

section 78aa of Title 15.Veterans' actions against United States on life in-

surance contracts, see section 784 of Title 38,Veterans' Benefits.

Service of notice of application for leave to perpetuate testimony by taking deposition, see rule 27.

Venue of civil actions, see chapter 87 of this title.

FoRMsMotion to quash the return of service of summons,

see form 19, Appendix of Forms.Summons, see form 1.

Rule 5. Service and Filing of Pleadings and OtherPapers

(a) Service: When requiredExcept as otherwise provided in these rules,

every order required by its terms to be served,every pleading subsequent to the original com-plaint unless the court otherwise orders be-cause of numerous defendants, every paper re-lating to discovery required to be served upon aparty unless the court otherwise orders, everywritten motion other than one which may beheard ex parte, and every written notice, ap-pearance, demand, offer of judgment, designa-tion of record on appeal, and similar papershall be served upon each of the parties. No ser-vice need be made on parties in default for fail-ure to appear except that pleadings assertingnew or additional claims for relief against themshall be served upon them in the manner pro-vided for service of summons in Rule 4.

In an action begun by seizure of property, inwhich no person need be or is named as defen-dant, any service required to be made prior tothe filing of an answer, claim, or appearanceshall be made upon the person having custodyor possession of the property at the time of itsseizure.(b) Same: How made

Whenever under these rules service is re-quired or permitted to be made upon a partyrepresented by an attorney the service shall be

made upon the attorney unless service uponthe party himself is ordered by the court. Ser-vice upon the attorney or upon a party shall bemade by delivering a copy to him or by mailingit to him at his last known address or, if no ad-dress is known, by leaving it with the clerk ofthe court. Delivery of a copy within this rulemeans: handing it to the attorney or to theparty; or leaving it at his office with his clerkor other person in charge thereof; or, if there isno one in charge, leaving it in a conspicuousplace therein; or, if the office is closed or theperson to be served has no office, leaving it athis dwelling house or usual place of abode withsome person of suitable age and discretion thenresiding therein. Service by mail is completeupon mailing.(c) Same: Numerous defendants

In any action in which there are unusuallylarge numbers of defendants, the court, uponmotion or of its own initiative, may order thatservice of the pleadings of the defendants andreplies thereto need not be made as betweenthe defendants and that any cross-claim, coun-terclaim, or matter constituting an avoidance oraffirmative defense contained therein shall bedeemed to be denied or avoided by all otherparties and that the filing of any such pleadingand service thereof upon the plaintiff consti-tutes due notice of it to the parties. A copy ofevery such order shall be served upon the par-ties in such manner and form as the court dir-ects.(d) Filing

All papers after the complaint required to beserved upon a party shall be filed with thecourt either before service or within a reason-able time thereafter.(e) Filing with the court defined

The filing of pleadings and other papers withthe court as required by these rules shall bemade by filing them with the clerk of the court,except that the judge may permit the papers tobe filed with him, in which event he shall notethereon the filing date and forthwith transmitthem to the office of the clerk.

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

NoTEs OF ADvISORY COMMITTEE ON RULEsNote to Subdivisions (a) and (b). Compare 2

Minn.Stat. (Mason, 1927) §§ 9240, 9241, 9242;N.Y.C.P.A. (1937) §§ 163, 164, and N.Y.R.C.P. (1937)Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington, 1932)§§ 244-249.

Note to Subdivision (d). Compare the present prac-tice under former Equity Rule 12 (Issue of Subpoena-Time for Answer).

NOTEs OF ADVISORY COMMITTEE ON 1963 AMENDMENTTO RuLEs

The words "affected thereby," stricken out by theamendment, introduced a problem of interpretation.See 1 Barron & Holtzoff, Federal Practice & Proce-dure 760-61 (Wright ed. 1960). The amendment elimi-nates this difficulty and promotes full exchange of in-formation among the parties by requiring service ofpapers on all the parties to the action, except as other-wise provided in the rules. See also subdivision (c) ofRule 5. So, for example, a third-party defendant is re-quired to serve his answer to the third-party com-plaint not only upon the defendant but also upon the

Rule 5 Page 400


plaintiff. See amended Form 22-A and the AdvisoryCommittee's Note thereto.

As to the method of serving papers upon a partywhose address is unknown, see Rule 5(b).

NOTES OF ADVISORY COMMITTEE ON 1970 AMENDMENTTo RULES

The amendment makes clear that all papers relatingto discovery which are required to be served on anyparty must be served on all parties, unless the courtorders otherwise. The present language expressly in-cludes notices and demands, but it is not explicit as toanswers or responses as provided in Rules 33, 34, and36. Discovery papers may be voluminous or the partiesnumerous, and the court is empowered to vary the re-quirement if in a given case it proves needlessly oner-ous.

In actions begun by seizure of property, service willat times have to be made before the absent owner ofthe property has filed an appearance. For example, aprompt deposition may be needed in a maritime actionin rem. See Rules 30(a) and 30(b)(2) and the relatednotes. A provision is added authorizing service on theperson having custody or possession of the property atthe time of its seizure.

CROSS REFERmcEs

Additional time for service by mail, see rule 6.Jury trial, waiver by failing to file demand, see rule

38.

Rule 6. Time

(a) ComputationIn computing any period of time prescribed or

allowed by these rules, by the local rules of anydistrict court, by order of court, or by any ap-plicable statute, the day of the act, event, or de-fault from which the designated period of timebegins to run shall not be included. The lastday of the period so computed shall be includ-ed, unless it is a Saturday, a Sunday, or a legalholiday, in which event the period runs untilthe end of the next day which is not a Satur-day, a Sunday, or a legal holiday. When theperiod of time prescribed or allowed is less than7 days, intermediate Saturdays, Sundays, andlegal holidays shall be excluded in the compu-tation. As used in this rule and in Rule 77(c),"legal holiday" includes New Year's Day, Wash-ington's Birthday, Memorial Day, Indepen-dence Day, Labor Day, Columbus Day, Veter-ans Day, Thanksgiving Day, Christmas Day,and any other day appointed as a holiday bythe President or the Congress of the UnitedStates, or by the state in which the districtcourt is held.

(b) EnlargementWhen by these rules or by a notice given

thereunder or by order of court an act is re-quired or allowed to be done at or within aspecified time, the court for cause shown mayat any time in its discretion (1) with or withoutmotion or notice order the period enlarged ifrequest therefor is made before the expirationof the period originally prescribed or as ex-tended by a previous order or (2) upon motionmade after the expiration of the specifiedperiod permit the act to be done where the fail-ure to act was the result of excusable neglect;but it may not extend the time for taking anyaction under Rules 50(b), 52(b), 59(b), (d) and(e), and 60(b), except to the extent and underthe conditions stated in them.

[(c) Rescinded. Feb. 28, 1966, eff. July 1, 1966]

(d) For motions-AffidavitsA written motion, other than one which may

be heard ex parte, and notice of the hearingthereof shall be served not later than 5 daysbefore the time specified for the hearing,unless a different period is fixed by these rulesor by order of the court. Such an order may forcause shown be made on ex parte application.When a motion is supported by affidavit, theaffidavit shall be served with the motion; and,except as otherwise provided in Rule 59(c), op-posing affidavits may be served not later than 1day before the hearing, unless the court per-mits them to be served at some other time.

(e) Additional time after service by mailWhenever a party has the right or is required

to do some act or take some proceedings withina prescribed period after the service of a noticeor other paper upon him and the notice orpaper is served upon him by mail, 3 days shallbe added to the prescribed period.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948;Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966,eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968;Mar. 1, 1971, eff. July 1, 1971.)

NOTES OF ADVISORY CommITmEE ON RULES

Note to Subdivisions (a) and (b). These are amplifi-cations along lines common in state practices, offormer Equity Rule 80 (Computation of Time-Sun-days and Holidays) and of the provisions for enlarge-ment of time found in former Equity Rules 8 (Enforce-ment of Final Decrees) and 16 (Defendant to Answer-Default-Decree Pro Confesso). See also Rule XIII,Rules and Forms in Criminal Cases, 292 U.S. 661, 666(1934). Compare Ala.Code Ann. (Michie, 1928) § 13 andformer Law Rule 8 of the Rules of the Supreme Courtof the District of Columbia (1924), superseded in 1929by Law Rule 8, Rules of the District Court of theUnited States for the District of Columbia (1937).

Note to Subdivision (c). This eliminates the difficul-ties caused by the expiration of terms of court. Suchstatutes as U.S.C. Title 28, former § 12 (Trials not dis-continued by new term) are not affected. CompareRules of the United States District Court of Minneso-ta, Rule 25 (Minn.Stat. (Mason, Supp. 1936), p. 1089).

Note to Subdivision (d). Compare 2 Minn.Stat.(Mason, 1927) § 9246; N.Y.R.C.P. (1937) Rules 60 and64.

NOTES OF ADVISORY COMMITTEE