-CITE-
    28 USC APPENDIX TITLE 28 - APPENDIX                         01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
  

-MISC1-
    Item                                                                Page
    Judicial Personnel Financial Disclosure Requirements (Repealed)     579
    Development of Mechanisms for Resolving Minor Disputes (Omitted)    580                                        
    Federal Rules of Appellate Procedure                                693                                            
    Federal Rules of Civil Procedure                                    707
    Federal Rules of Evidence                                           727
    Rules of the Supreme Court of the United States                     729    
    Rules of the United States Court of Federal Claims                  749    
    Rules of the United States Court of International Trade             854


-End-


-CITE-
    28 USC APPENDIX JUDICIAL PERSONNEL FINANCIAL
      DISCLOSURE REQUIREMENTS                              01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS

-HEAD-
           JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS       

-MISC1-
                                                                
      [Title III (Secs. 301-309) of Pub. L. 95-521, Oct. 26, 1978, 92
    Stat. 1851-1861, as amended by Pub. L. 96-19, Secs. 2(a)(3),
    (c)(3), 3(a)(3), (b), 4(c), 6, 7(a)-(c), (d)(2), (e), (f), 8(c),
    9(c)(3), (d), (j), (p)-(r), June 13, 1979, 93 Stat. 37-43; Pub. L.
    96-417, title VI, Sec. 601(9), Oct. 10, 1980, 94 Stat. 1744; Pub.
    L. 96-579, Sec. 12(c), Dec. 23, 1980, 94 Stat. 3369; Pub. L.
    97-164, title I, Sec. 163(a)(6), Apr. 2, 1982, 96 Stat. 49; Pub. L.
    98-150, Sec. 10, Nov. 11, 1983, 97 Stat. 962; Pub. L. 99-514, Sec.
    2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-573, Sec. 6, Oct. 28,
    1986, 100 Stat. 3231; Pub. L. 101-237, title VI, Sec. 602(a)(1),
    Dec. 18, 1989, 103 Stat. 2094, which related to judicial personnel
    financial disclosure requirements, was repealed by Pub. L. 101-194,
    title II, Sec. 201, Nov. 30, 1989, 103 Stat. 1724. See title I of
    the Ethics in Government Act of 1978, Pub. L. 95-521, as amended,
    relating to financial disclosure requirements of Federal personnel,
    set out in the Appendix to Title 5, Government Organization and
    Employees.]

                         EFFECTIVE DATE OF REPEAL                     
      Repeal effective Jan. 1, 1991, see section 204 of Pub. L.
    101-194, set out as an Effective Date of 1989 Amendment note under
    section 101 of Pub. L. 95-521 in the Appendix to Title 5,
    Government Organization and Employees.
      Provisions of title III of Pub. L. 95-521, as in effect prior to
    Nov. 30, 1989, effective until Jan. 1, 1991, as if Pub. L. 101-194
    had not been enacted, and nothing in title II of Pub. L. 101-194 to
    be construed to prevent prosecution of civil actions against
    individuals for violations of title III of Pub. L. 95-521 before
    Jan. 1, 1991, see section 3(10)(C), (D) of Pub. L. 101-280, set out
    as an Effective Date of 1989 Amendment note under section 101 of
    Pub. L. 95-521 in the Appendix to Title 5.

-End-


-CITE-
    28 USC APPENDIX DEVELOPMENT OF MECHANISMS FOR
      RESOLVING MINOR DISPUTES                             01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES

-HEAD-
          DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES      


-MISC1-
                                                                

-COD-
                               CODIFICATION                           
      Pub. L. 96-190, Feb. 12, 1980, 94 Stat. 17, known as the Dispute
    Resolution Act, provided for the establishment and maintenance of
    mechanisms for resolving minor disputes, established the Dispute
    Resolution Resource Center and Dispute Resolution Advisory Board,
    prescribed duties for the Center and Board, authorized
    appropriations for the Center and Board of $1,000,000 for each of
    the fiscal years 1980, 1981, 1982, 1983, and 1984, directed that
    financial assistance to eligible applicants be in the form of
    grants, prescribed conditions for such grants, authorized
    appropriations for such grants of $10,000,000 for each of the
    fiscal years 1981, 1982, 1983, and 1984, and required an annual
    report by the Attorney General to the President and Congress
    relating to the administration of Pub. L. 96-190.

-End-


-CITE-
    28 USC APPENDIX FEDERAL RULES OF APPELLATE
      PROCEDURE                                            01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE

-HEAD-
                   FEDERAL RULES OF APPELLATE PROCEDURE               


-MISC1-
                     (AS AMENDED TO JANUARY 19, 2004)                 

                                                                

                              HISTORICAL NOTE                          
      The Federal Rules of Appellate Procedure were adopted by order of
    the Supreme Court on Dec. 4, 1967, transmitted to Congress by the
    Chief Justice on Jan. 15, 1968, and became effective on July 1,
    1968.
      The Rules have been amended Mar. 30, 1970, eff. July 1, 1970;
    Mar. 1, 1971, eff. July 1, 1971; Apr. 24, 1972, eff. Oct. 1, 1972;
    Apr. 30, 1979, eff. Aug. 1, 1979; Oct. 12, 1984, Pub. L. 98-473,
    title II, Sec. 210, 98 Stat 1987; Mar. 10, 1986, eff. July 1, 1986;
    Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7111, 102 Stat.
    4419; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1,
    1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1,
    1994; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 23, 1996, eff. Dec. 1,
    1996; Apr. 24, 1996, Pub. L. 104-132, title I, Sec. 103, 110 Stat.
    1218; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1,
    2002; Mar. 27, 2003, eff. Dec. 1, 2003.

                      TITLE I. APPLICABILITY OF RULES                  
    Rule                                                     
    1.          Scope of Rules; Title.                                
    2.          Suspension of Rules.                                  

       TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT   
    3.          Appeal as of Right - How Taken.                       
    [3.1.       Abrogated.]                                           
    4.          Appeal as of Right - When Taken.                      
    5.          Appeal by Permission.                                 
    [5.1.       Abrogated.]                                           
    6.          Appeal in a Bankruptcy Case from a Final Judgment,
                 Order, or Decree of a District Court or Bankruptcy
                 Appellate Panel.                                     
    7.          Bond for Costs on Appeal in a Civil Case.             
    8.          Stay or Injunction Pending Appeal.                    
    9.          Release in a Criminal Case.                           
    10.         The Record on Appeal.                                 
    11.         Forwarding the Record.                                
    12.         Docketing the Appeal; Filing a Representation
                 Statement; Filing the Record.                        

      TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT  
    13.         Review of a Decision of the Tax Court.                
    14.         Applicability of Other Rules to the Review of a Tax
                 Court Decision.                                      

     TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
                   AGENCY, BOARD, COMMISSION, OR OFFICER
    15.         Review or Enforcement of an Agency Order - How
                 Obtained; Intervention.                              
    15.1.       Briefs and Oral Argument in a National Labor Relations
                 Board Proceeding.                                    
    16.         The Record on Review or Enforcement.                  
    17.         Filing the Record.                                    
    18.         Stay Pending Review.                                  
    19.         Settlement of a Judgment Enforcing an Agency Order in
                 Part.                                                
    20.         Applicability of Rules to the Review or Enforcement of
                 an Agency Order.                                     

                       TITLE V. EXTRAORDINARY WRITS                   
    21.         Writs of Mandamus and Prohibition, and Other
                 Extraordinary Writs.                                 

          TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS      
    22.         Habeas Corpus and Section 2255 Proceedings.           
    23.         Custody or Release of a Prisoner in a Habeas Corpus
                 Proceeding.                                          
    24.         Proceeding in Forma Pauperis.                         

                       TITLE VII. GENERAL PROVISIONS                   
    25.         Filing and Service.                                   
    26.         Computing and Extending Time.                         
    26.1.       Corporate Disclosure Statement.                       
    27.         Motions.                                              
    28.         Briefs.                                               
    29.         Brief of an Amicus Curiae.                            
    30.         Appendix to the Briefs.                               
    31.         Serving and Filing Briefs.                            
    32.         Form of Briefs, Appendices, and Other Papers.         
    33.         Appeal Conferences.                                   
    34.         Oral Argument.                                        
    35.         En Banc Determination.                                
    36.         Entry of Judgment; Notice.                            
    37.         Interest on Judgment.                                 
    38.         Frivolous Appeal - Damages and Costs.                 
    39.         Costs.                                                
    40.         Petition for Panel Rehearing.                         
    41.         Mandate: Contents; Issuance and Effective Date; Stay. 
    42.         Voluntary Dismissal.                                  
    43.         Substitution of Parties.                              
    44.         Case Involving a Constitutional Question When the
                 United States or the Relevant State is Not a Party.  
    45.         Clerk's Duties.                                       
    46.         Attorneys.                                            
    47.         Local Rules by Courts of Appeals.                     
    48.         Masters.                                              

                             APPENDIX OF FORMS                         
    Form                                                     
    1.          Notice of Appeal to a Court of Appeals From a Judgment
                 or Order of a District Court.                        
    2.          Notice of Appeal to a Court of Appeals From a Decision
                 of the United States Tax Court.                      
    3.          Petition for Review of Order of an Agency, Board,
                 Commission or Officer.                               
    4.          Affidavit to Accompany Motion for Leave to Appeal in
                 Forma Pauperis.                                      
    5.          Notice of Appeal to a Court of Appeals from a Judgment
                 or Order of a District Court or a Bankruptcy
                 Appellate Panel.                                     
    6.          Certificate of Compliance With Rule 32(a).            

                  EFFECTIVE DATE AND APPLICATION OF RULES              
      Section 2 of the Order of the Supreme Court, dated Dec. 4, 1967,
    provided: "That the foregoing rules shall take effect on July 1,
    1968, and shall govern all proceedings in appeals and petitions for
    review or enforcement of orders thereafter brought in and in all
    such proceedings then pending, except to the extent that in the
    opinion of the court of appeals their application in a particular
    proceeding then pending would not be feasible or would work
    injustice, in which case the former procedure may be followed."

        EFFECTIVE DATE OF 1970 AMENDMENT; TRANSMISSION TO CONGRESS    
      Sections 2 and 3 of the Order of the Supreme Court, dated Mar.
    30, 1970, provided:
      "2. That the foregoing amendments to the Federal Rules of
    Appellate Procedure shall take effect on July 1, 1970, 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 to existing
    rules, in accordance with the provisions of Title 18, U.S.C. Sec.
    3372, and Title 28, U.S.C. Secs. 2072 and 2075."

-End-


-CITE-
    28 USC APPENDIX TITLE I. APPLICABILITY OF RULES             01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE I. APPLICABILITY OF RULES

-HEAD-
                      TITLE I. APPLICABILITY OF RULES                  

-End-



-CITE-
    28 USC APPENDIX Rule 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE I. APPLICABILITY OF RULES

-HEAD-
    Rule 1. Scope of Rules; Title

-STATUTE-
      (a) Scope of Rules.
        (1) These rules govern procedure in the United States courts of
      appeals.
        (2) When these rules provide for filing a motion or other
      document in the district court, the procedure must comply with
      the practice of the district court.

      (b) [Abrogated.]
      (c) Title. These rules are to be known as the Federal Rules of
    Appellate Procedure.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
    Dec. 1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      These rules are drawn under the authority of 28 U.S.C. Sec. 2072,
    as amended by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S.
    Code Cong. & Ad. News, p. 1546 (1966)) (Rules of Civil Procedure);
    28 U.S.C. Sec. 2075 (Bankruptcy Rules); and 18 U.S.C. Secs. 3771
    (Procedure to and including verdict) and 3772 (Procedure after
    verdict). Those statutes combine to give to the Supreme Court power
    to make rules of practice and procedure for all cases within the
    jurisdiction of the courts of appeals. By the terms of the
    statutes, after the rules have taken effect all laws in conflict
    with them are of no further force or effect. Practice and procedure
    in the eleven courts of appeals are now regulated by rules
    promulgated by each court under the authority of 28 U.S.C. Sec.
    2071. Rule 47 expressly authorizes the courts of appeals to make
    rules of practice not inconsistent with these rules.
      As indicated by the titles under which they are found, the
    following rules are of special application: Rules 3 through 12
    apply to appeals from judgments and orders of the district courts;
    Rules 13 and 14 apply to appeals from decisions of the Tax Court
    (Rule 13 establishes an appeal as the mode of review of decisions
    of the Tax Court in place of the present petition for review);
    Rules 15 through 20 apply to proceedings for review or enforcement
    of orders of administrative agencies, boards, commissions and
    officers. Rules 22 through 24 regulate habeas corpus proceedings
    and appeals in forma pauperis. All other rules apply to all
    proceedings in the courts of appeals.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The Federal Rules of Appellate Procedure were designed as an
    integrated set of rules to be followed in appeals to the courts of
    appeals, covering all steps in the appellate process, whether they
    take place in the district court or in the court of appeals, and
    with their adoption Rules 72-76 of the F.R.C.P. were abrogated. In
    some instances, however, the F.R.A.P. provide that a motion or
    application for relief may, or must, be made in the district court.
    See Rules 4(a), 10(b), and 24. The proposed amendment would make it
    clear that when this is so the motion or application is to be made
    in the form and manner prescribed by the F.R.C.P. or F.R.Cr.P. and
    local rules relating to the form and presentation of motions and is
    not governed by Rule 27 of the F.R.A.P. See Rule 7(b) of the
    F.R.C.P. and Rule 47 of the F.R.Cr.P.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (c). A new subdivision is added to the rule. The text
    of new subdivision (c) has been moved from Rule 48 to Rule 1 to
    allow the addition of new rules at the end of the existing set of
    appellate rules without burying the title provision among other
    rules. In a similar fashion the Bankruptcy Rules combine the
    provisions governing the scope of the rules and the title in the
    first rule.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only. The
    Advisory Committee recommends deleting the language in subdivision
    (a) that describes the different types of proceedings that may be
    brought in a court of appeals. The Advisory Committee believes that
    the language is unnecessary and that its omission does not work any
    substantive change.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (b). Two recent enactments make it likely that, in
    the future, one or more of the Federal Rules of Appellate Procedure
    ("FRAP") will extend or limit the jurisdiction of the courts of
    appeals. In 1990, Congress amended the Rules Enabling Act to give
    the Supreme Court authority to use the federal rules of practice
    and procedure to define when a ruling of a district court is final
    for purposes of 28 U.S.C. Sec. 1291. See 28 U.S.C. Sec. 2072(c). In
    1992, Congress amended 28 U.S.C. Sec. 1292 to give the Supreme
    Court authority to use the federal rules of practice and procedure
    to provide for appeals of interlocutory decisions that are not
    already authorized by 28 U.S.C. Sec. 1292. See 28 U.S.C. Sec.
    1292(e). Both Sec. 1291 and Sec. 1292 are unquestionably
    jurisdictional statutes, and thus, as soon as FRAP is amended to
    define finality for purposes of the former or to authorize
    interlocutory appeals not provided for by the latter, FRAP will
    "extend or limit the jurisdiction of the courts of appeals," and
    subdivision (b) will become obsolete. For that reason, subdivision
    (b) has been abrogated.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE I. APPLICABILITY OF RULES

-HEAD-
    Rule 2. Suspension of Rules

-STATUTE-
      On its own or a party's motion, a court of appeals may - to
    expedite its decision or for other good cause - suspend any
    provision of these rules in a particular case and order proceedings
    as it directs, except as otherwise provided in Rule 26(b).

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The primary purpose of this rule is to make clear the power of
    the courts of appeals to expedite the determination of cases of
    pressing concern to the public or to the litigants by prescribing a
    time schedule other than that provided by the rules. The rule also
    contains a general authorization to the courts to relieve litigants
    of the consequences of default where manifest injustice would
    otherwise result. Rule 26(b) prohibits a court of appeals from
    extending the time for taking appeal or seeking review.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-


-CITE-
    28 USC APPENDIX TITLE II. APPEAL FROM A JUDGMENT
      OR ORDER OF A DISTRICT COURT                         01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
       TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT   

-End-



-CITE-
    28 USC APPENDIX Rule 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 3. Appeal as of Right - How Taken

-STATUTE-
      (a) Filing the Notice of Appeal.
        (1) An appeal permitted by law as of right from a district
      court to a court of appeals may be taken only by filing a notice
      of appeal with the district clerk within the time allowed by Rule
      4. At the time of filing, the appellant must furnish the clerk
      with enough copies of the notice to enable the clerk to comply
      with Rule 3(d).
        (2) An appellant's failure to take any step other than the
      timely filing of a notice of appeal does not affect the validity
      of the appeal, but is ground only for the court of appeals to act
      as it considers appropriate, including dismissing the appeal.
        (3) An appeal from a judgment by a magistrate judge in a civil
      case is taken in the same way as an appeal from any other
      district court judgment.
        (4) An appeal by permission under 28 U.S.C. Sec. 1292(b) or an
      appeal in a bankruptcy case may be taken only in the manner
      prescribed by Rules 5 and 6, respectively.

      (b) Joint or Consolidated Appeals.
        (1) When two or more parties are entitled to appeal from a
      district-court judgment or order, and their interests make
      joinder practicable, they may file a joint notice of appeal. They
      may then proceed on appeal as a single appellant.
        (2) When the parties have filed separate timely notices of
      appeal, the appeals may be joined or consolidated by the court of
      appeals.

      (c) Contents of the Notice of Appeal.
        (1) The notice of appeal must:
          (A) specify the party or parties taking the appeal by naming
        each one in the caption or body of the notice, but an attorney
        representing more than one party may describe those parties
        with such terms as "all plaintiffs," "the defendants," "the
        plaintiffs A, B, et al.," or "all defendants except X";
          (B) designate the judgment, order, or part thereof being
        appealed; and
          (C) name the court to which the appeal is taken.

        (2) A pro se notice of appeal is considered filed on behalf of
      the signer and the signer's spouse and minor children (if they
      are parties), unless the notice clearly indicates otherwise.
        (3) In a class action, whether or not the class has been
      certified, the notice of appeal is sufficient if it names one
      person qualified to bring the appeal as representative of the
      class.
        (4) An appeal must not be dismissed for informality of form or
      title of the notice of appeal, or for failure to name a party
      whose intent to appeal is otherwise clear from the notice.
        (5) Form 1 in the Appendix of Forms is a suggested form of a
      notice of appeal.

      (d) Serving the Notice of Appeal.
        (1) The district clerk must serve notice of the filing of a
      notice of appeal by mailing a copy to each party's counsel of
      record - excluding the appellant's - or, if a party is proceeding
      pro se, to the party's last known address. When a defendant in a
      criminal case appeals, the clerk must also serve a copy of the
      notice of appeal on the defendant, either by personal service or
      by mail addressed to the defendant. The clerk must promptly send
      a copy of the notice of appeal and of the docket entries - and
      any later docket entries - to the clerk of the court of appeals
      named in the notice. The district clerk must note, on each copy,
      the date when the notice of appeal was filed.
        (2) If an inmate confined in an institution files a notice of
      appeal in the manner provided by Rule 4(c), the district clerk
      must also note the date when the clerk docketed the notice.
        (3) The district clerk's failure to serve notice does not
      affect the validity of the appeal. The clerk must note on the
      docket the names of the parties to whom the clerk mails copies,
      with the date of mailing. Service is sufficient despite the death
      of a party or the party's counsel.

      (e) Payment of Fees. Upon filing a notice of appeal, the
    appellant must pay the district clerk all required fees. The
    district clerk receives the appellate docket fee on behalf of the
    court of appeals.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      General Note. Rule 3 and Rule 4 combine to require that a notice
    of appeal be filed with the clerk of the district court within the
    time prescribed for taking an appeal. Because the timely filing of
    a notice of appeal is "mandatory and jurisdictional," United States
    v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960),
    compliance with the provisions of those rules is of the utmost
    importance. But the proposed rules merely restate, in modified
    form, provisions now found in the civil and criminal rules (FRCP
    5(e), 73; FRCrP 37), and decisions under the present rules which
    dispense with literal compliance in cases in which it cannot fairly
    be exacted should control interpretation of these rules.
    Illustrative decisions are: Fallen v. United States, 378 U.S. 139,
    84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) (notice of appeal by a
    prisoner, in the form of a letter delivered, well within the time
    fixed for appeal, to prison authorities for mailing to the clerk of
    the district court held timely filed notwithstanding that it was
    received by the clerk after expiration of the time for appeal; the
    appellant "did all he could" to effect timely filing); Richey v.
    Wilkins, 335 F.2d 1 (2d Cir. 1964) (notice filed in the court of
    appeals by a prisoner without assistance of counsel held
    sufficient); Halfen v. United States, 324 F.2d 52 (10th Cir. 1963)
    (notice mailed to district judge in time to have been received by
    him in normal course held sufficient); Riffle v. United States, 299
    F.2d 802 (5th Cir. 1962) (letter of prisoner to judge of court of
    appeals held sufficient). Earlier cases evidencing "a liberal view
    of papers filed by indigent and incarcerated defendants" are listed
    in Coppedge v. United States, 369 U.S. 438, 442, n. 5, 82 S.Ct.
    917, 8 L.Ed.2d 21 (1962).
      Subdivision (a). The substance of this subdivision is derived
    from FRCP 73(a) and FRCrP 37(a)(1). The proposed rule follows those
    rules in requiring nothing other than the filing of a notice of
    appeal in the district court for the perfection of the appeal. The
    petition for allowance (except for appeals governed by Rules 5 and
    6), citations, assignments of error, summons and severance - all
    specifically abolished by earlier modern rules - are assumed to be
    sufficiently obsolete as no longer to require pointed abolition.
      Subdivision (b). The first sentence is derived from FRCP 74. The
    second sentence is added to encourage consolidation of appeals
    whenever feasible.
      Subdivision (c). This subdivision is identical with corresponding
    provisions in FRCP 73(b) and FRCrP 37(a)(1).
      Subdivision (d). This subdivision is derived from FRCP 73(b) and
    FRCrP 37(a)(1). The duty of the clerk to forward a copy of the
    notice of appeal and of the docket entries to the court of appeals
    in a criminal case extended to habeas corpus and 28 U.S.C. Sec.
    2255 proceedings.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Subdivision (c). The proposed amendment would add the last
    sentence. Because of the fact that the timely filing of the notice
    of appeal has been characterized as jurisdictional (See, e.g.,
    Brainerd v. Beal (C.A. 7th, 1974) 498 F.2d 901, in which the filing
    of a notice of appeal one day late was fatal), it is important that
    the right to appeal not be lost by mistakes of mere form. In a
    number of decided cases it has been held that so long as the
    function of notice is met by the filing of a paper indicating an
    intention to appeal, the substance of the rule has been complied
    with. See, e.g., Cobb v. Lewis (C.A. 5th, 1974) 488 F.2d 41; Holley
    v. Capps (C.A. 5th, 1972) 468 F.2d 1366. The proposed amendment
    would give recognition to this practice.
      When a notice of appeal is filed, the clerk should ascertain
    whether any judgment designated therein has been entered in
    compliance with Rules 58 and 79(a) of the F.R.C.P. See Note to Rule
    4(a)(6), infra.
      Subdivision (d). The proposed amendment would extend to civil
    cases the present provision applicable to criminal cases, habeas
    corpus cases, and proceedings under 28 U.S.C. Sec. 2255, requiring
    the clerk of the district court to transmit to the clerk of the
    court of appeals a copy of the notice of appeal and of the docket
    entries, which should include reference to compliance with the
    requirements for payment of fees. See Note to (e), infra.
      This requirement is the initial step in proposed changes in the
    rules to place in the court of appeals an increased practical
    control over the early steps in the appeal.
      Subdivision (e). Proposed new Rule 3(e) represents the second
    step in shifting to the court of appeals the control of the early
    stages of an appeal. See Note to Rule 3(d) above. Under the present
    rules the payment of the fee prescribed by 28 U.S.C. 1917 is not
    covered. Under the statute, however, this fee is paid to the clerk
    of the district court at the time the notice of appeal is filed.
    Under present Rule 12, the "docket fee" fixed by the Judicial
    Conference of the United States under 28 U.S.C. Sec. 1913 must be
    paid to the clerk of the court of appeals within the time fixed for
    transmission of the record, ". . . and the clerk shall thereupon
    enter the appeal upon the docket."
      Under the proposed new Rule 3(e) both fees would be paid to the
    clerk of the district court at the time the notice of appeal is
    filed, the clerk of the district court receiving the docket fee on
    behalf of the court of appeals.
      In view of the provision in Rule 3(a) that "[f]ailure of an
    appellant to take any step other than the timely filing of a notice
    of appeal does not affect the validity of the appeal, but is ground
    only for such action as the court of appeals deems appropriate,
    which may include dismissal of the appeal," the case law indicates
    that the failure to prepay the statutory filing fee does not
    constitute a jurisdictional defect. See Parissi v. Telechron, 349
    U.S. 46 (1955); Gould v. Members of N. J. Division of Water Policy
    & Supply, 555 F.2d 340 (3d Cir. 1977). Similarly, under present
    Rule 12, failure to pay the docket fee within the time prescribed
    may be excused by the court of appeals. See, e. g., Walker v.
    Mathews, 546 F.2d 814 (9th Cir. 1976). Proposed new Rule 3(e)
    adopts the view of these cases, requiring that both fees be paid at
    the time the notice of appeal is filed, but subject to the
    provisions of Rule 26(b) preserving the authority of the court of
    appeals to permit late payment.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rule 3(d) are technical. No substantive change
    is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Note to subdivision (c). The amendment is intended to reduce the
    amount of satellite litigation spawned by the Supreme Court's
    decision in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988).
    In Torres the Supreme Court held that the language in Rule 3(c)
    requiring a notice of appeal to "specify the party or parties
    taking the appeal" is a jurisdictional requirement and that naming
    the first named party and adding "et al.," without any further
    specificity is insufficient to identify the appellants. Since the
    Torres decision, there has been a great deal of litigation
    regarding whether a notice of appeal that contains some indication
    of the appellants' identities but does not name the appellants is
    sufficiently specific.
      The amendment states a general rule that specifying the parties
    should be done by naming them. Naming an appellant in an otherwise
    timely and proper notice of appeal ensures that the appellant has
    perfected an appeal. However, in order to prevent the loss of a
    right to appeal through inadvertent omission of a party's name or
    continued use of such terms as "et al.," which are sufficient in
    all district court filings after the complaint, the amendment
    allows an attorney representing more than one party the flexibility
    to indicate which parties are appealing without naming them
    individually. The test established by the rule for determining
    whether such designations are sufficient is whether it is
    objectively clear that a party intended to appeal. A notice of
    appeal filed by a party proceeding pro se is filed on behalf of the
    party signing the notice and the signer's spouse and minor
    children, if they are parties, unless the notice clearly indicates
    a contrary intent.
      In class actions, naming each member of a class as an appellant
    may be extraordinarily burdensome or even impossible. In class
    actions if class certification has been denied, named plaintiffs
    may appeal the order denying the class certification on their own
    behalf and on behalf of putative class members, United States
    Parole Comm'n v. Geraghty, 445 U.S. 388 (1980); or if the named
    plaintiffs choose not to appeal the order denying the class
    certification, putative class members may appeal, United Airlines,
    Inc. v. McDonald, 432 U.S. 385 (1977). If no class has been
    certified, naming each of the putative class members as an
    appellant would often be impossible. Therefore the amendment
    provides that in class actions, whether or not the class has been
    certified, it is sufficient for the notice to name one person
    qualified to bring the appeal as a representative of the class.
      Finally, the rule makes it clear that dismissal of an appeal
    should not occur when it is otherwise clear from the notice that
    the party intended to appeal. If a court determines it is
    objectively clear that a party intended to appeal, there are
    neither administrative concerns nor fairness concerns that should
    prevent the appeal from going forward.
      Note to subdivision (d). The amendment requires the district
    court clerk to send to the clerk of the court of appeals a copy of
    every docket entry in a case after the filing of a notice of
    appeal. This amendment accompanies the amendment to Rule 4(a)(4),
    which provides that when one of the posttrial motions enumerated in
    Rule 4(a)(4) is filed, a notice of appeal filed before the
    disposition of the motion becomes effective upon disposition of the
    motion. The court of appeals needs to be advised that the filing of
    a posttrial motion has suspended a notice of appeal. The court of
    appeals also needs to know when the district court has ruled on the
    motion. Sending copies of all docket entries after the filing of a
    notice of appeal should provide the courts of appeals with the
    necessary information.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). The amendment requires a party filing a notice
    of appeal to provide the court with sufficient copies of the notice
    for service on all other parties.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are generally intended to be stylistic only;
    in this rule, however, substantive changes are made in subdivisions
    (a), (b), and (d).
      Subdivision (a). The provision in paragraph (a)(3) is transferred
    from former Rule 3.1(b). The Federal Courts Improvement Act of
    1996, Pub. L. No. 104-317, repealed paragraphs (4) and (5) of 28
    U.S.C. Sec. 636(c). That statutory change made the continued
    separate existence of Rule 3.1 unnecessary. New paragraph (a)(3) of
    this rule simply makes it clear that an appeal from a judgment by a
    magistrate judge is taken in identical fashion to any other appeal
    from a district-court judgment.
      Subdivision (b). A joint appeal is authorized only when two or
    more persons may appeal from a single judgment or order. A joint
    appeal is treated as a single appeal and the joint appellants file
    a single brief. Under existing Rule 3(b) parties decide whether to
    join their appeals. They may do so by filing a joint notice of
    appeal or by joining their appeals after filing separate notices of
    appeal.
      In consolidated appeals the separate appeals do not merge into
    one. The parties do not proceed as a single appellant. Under
    existing Rule 3(b) it is unclear whether appeals may be
    consolidated without court order if the parties stipulate to
    consolidation. The language resolves that ambiguity by requiring
    court action.
      The language also requires court action to join appeals after
    separate notices of appeal have been filed.
      Subdivision (d). Paragraph (d)(2) has been amended to require
    that when an inmate files a notice of appeal by depositing the
    notice in the institution's internal mail system, the clerk must
    note the docketing date - rather than the receipt date - on the
    notice of appeal before serving copies of it. This change conforms
    to a change in Rule 4(c). Rule 4(c) is amended to provide that when
    an inmate files the first notice of appeal in a civil case by
    depositing the notice in an institution's internal mail system, the
    time for filing a cross-appeal runs from the date the district
    court dockets the inmate's notice of appeal. Existing Rule 4(c)
    says that in such a case the time for filing a cross-appeal runs
    from the date the district court receives the inmate's notice of
    appeal. A court may "receive" a paper when its mail is delivered to
    it even if the mail is not processed for a day or two, making the
    date of receipt uncertain. "Docketing" is an easily identified
    event. The change is made to eliminate the uncertainty.

-End-



-CITE-
    28 USC APPENDIX Rule 3.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    [Rule 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil
      Case] (Abrogated Apr. 24, 1998, eff. Dec. 1, 1998)


-STATUTE-

-MISC1-
                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The Federal Courts Improvement Act of 1996, Pub. L. No. 104-317,
    repealed paragraphs (4) and (5) of 28 U.S.C. Sec. 636(c). That
    statutory change means that when parties consent to trial before a
    magistrate judge, appeal lies directly, and as a matter of right,
    to the court of appeals under Sec. 636(c)(3). The parties may not
    choose to appeal first to a district judge and thereafter seek
    discretionary review in the court of appeals.
      As a result of the statutory amendments, subdivision (a) of Rule
    3.1 is no longer necessary. Since Rule 3.1 existed primarily
    because of the provisions in subdivision (a), subdivision (b) has
    been moved to Rule 3(a)(3) and Rule 3.1 has been abrogated.

-End-



-CITE-
    28 USC APPENDIX Rule 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 4. Appeal as of Right - When Taken

-STATUTE-
      (a) Appeal in a Civil Case.
        (1) Time for Filing a Notice of Appeal.
          (A) In a civil case, except as provided in Rules 4(a)(1)(B),
        4(a)(4), and 4(c), the notice of appeal required by Rule 3 must
        be filed with the district clerk within 30 days after the
        judgment or order appealed from is entered.
          (B) When the United States or its officer or agency is a
        party, the notice of appeal may be filed by any party within 60
        days after the judgment or order appealed from is entered.
          (C) An appeal from an order granting or denying an
        application for a writ of error coram nobis is an appeal in a
        civil case for purposes of Rule 4(a).

        (2) Filing Before Entry of Judgment. A notice of appeal filed
      after the court announces a decision or order - but before the
      entry of the judgment or order - is treated as filed on the date
      of and after the entry.
        (3) Multiple Appeals. If one party timely files a notice of
      appeal, any other party may file a notice of appeal within 14
      days after the date when the first notice was filed, or within
      the time otherwise prescribed by this Rule 4(a), whichever period
      ends later.
        (4) Effect of a Motion on a Notice of Appeal.
          (A) If a party timely files in the district court any of the
        following motions under the Federal Rules of Civil Procedure,
        the time to file an appeal runs for all parties from the entry
        of the order disposing of the last such remaining motion:
            (i) for judgment under Rule 50(b);
            (ii) to amend or make additional factual findings under
          Rule 52(b), whether or not granting the motion would alter
          the judgment;
            (iii) for attorney's fees under Rule 54 if the district
          court extends the time to appeal under Rule 58;
            (iv) to alter or amend the judgment under Rule 59;
            (v) for a new trial under Rule 59; or
            (vi) for relief under Rule 60 if the motion is filed no
          later than 10 days after the judgment is entered.

          (B)(i) If a party files a notice of appeal after the court
        announces or enters a judgment - but before it disposes of any
        motion listed in Rule 4(a)(4)(A) - the notice becomes effective
        to appeal a judgment or order, in whole or in part, when the
        order disposing of the last such remaining motion is entered.
          (ii) A party intending to challenge an order disposing of any
        motion listed in Rule 4(a)(4)(A), or a judgment altered or
        amended upon such a motion, must file a notice of appeal, or an
        amended notice of appeal - in compliance with Rule 3(c) -
        within the time prescribed by this Rule measured from the entry
        of the order disposing of the last such remaining motion. - 
          (iii) No additional fee is required to file an amended
        notice.

        (5) Motion for Extension of Time.
          (A) The district court may extend the time to file a notice
        of appeal if:
            (i) a party so moves no later than 30 days after the time
          prescribed by this Rule 4(a) expires; and
            (ii) regardless of whether its motion is filed before or
          during the 30 days after the time prescribed by this Rule
          4(a) expires, that party shows excusable neglect or good
          cause.

          (B) A motion filed before the expiration of the time
        prescribed in Rule 4(a)(1) or (3) may be ex parte unless the
        court requires otherwise. If the motion is filed after the
        expiration of the prescribed time, notice must be given to the
        other parties in accordance with local rules.
          (C) No extension under this Rule 4(a)(5) may exceed 30 days
        after the prescribed time or 10 days after the date when the
        order granting the motion is entered, whichever is later.

        (6) Reopening the Time to File an Appeal. The district court
      may reopen the time to file an appeal for a period of 14 days
      after the date when its order to reopen is entered, but only if
      all the following conditions are satisfied:
          (A) the motion is filed within 180 days after the judgment or
        order is entered or within 7 days after the moving party
        receives notice of the entry, whichever is earlier;
          (B) the court finds that the moving party was entitled to
        notice of the entry of the judgment or order sought to be
        appealed but did not receive the notice from the district court
        or any party within 21 days after entry; and
          (C) the court finds that no party would be prejudiced.

        (7) Entry Defined.
          (A) A judgment or order is entered for purposes of this Rule
        4(a):
            (i) if Federal Rule of Civil Procedure 58(a)(1) does not
          require a separate document, when the judgment or order is
          entered in the civil docket under Federal Rule of Civil
          Procedure 79(a); or
            (ii) if Federal Rule of Civil Procedure 58(a)(1) requires a
          separate document, when the judgment or order is entered in
          the civil docket under Federal Rule of Civil Procedure 79(a)
          and when the earlier of these events occurs:
              -- the judgment or order is set forth on a separate
            document, or
              -- 150 days have run from entry of the judgment or order
            in the civil docket under Federal Rule of Civil Procedure
            79(a).

          (B) A failure to set forth a judgment or order on a separate
        document when required by Federal Rule of Civil Procedure
        58(a)(1) does not affect the validity of an appeal from that
        judgment or order.

      (b) Appeal in a Criminal Case.
        (1) Time for Filing a Notice of Appeal.
          (A) In a criminal case, a defendant's notice of appeal must
        be filed in the district court within 10 days after the later
        of:
            (i) the entry of either the judgment or the order being
          appealed; or
            (ii) the filing of the government's notice of appeal.

          (B) When the government is entitled to appeal, its notice of
        appeal must be filed in the district court within 30 days after
        the later of:
            (i) the entry of the judgment or order being appealed; or
            (ii) the filing of a notice of appeal by any defendant.

        (2) Filing Before Entry of Judgment. A notice of appeal filed
      after the court announces a decision, sentence, or order - but
      before the entry of the judgment or order - is treated as filed
      on the date of and after the entry.
        (3) Effect of a Motion on a Notice of Appeal.
          (A) If a defendant timely makes any of the following motions
        under the Federal Rules of Criminal Procedure, the notice of
        appeal from a judgment of conviction must be filed within 10
        days after the entry of the order disposing of the last such
        remaining motion, or within 10 days after the entry of the
        judgment of conviction, whichever period ends later. This
        provision applies to a timely motion:
            (i) for judgment of acquittal under Rule 29;
            (ii) for a new trial under Rule 33, but if based on newly
          discovered evidence, only if the motion is made no later than
          10 days after the entry of the judgment; or
            (iii) for arrest of judgment under Rule 34.

          (B) A notice of appeal filed after the court announces a
        decision, sentence, or order - but before it disposes of any of
        the motions referred to in Rule 4(b)(3)(A) - becomes effective
        upon the later of the following:
            (i) the entry of the order disposing of the last such
          remaining motion; or
            (ii) the entry of the judgment of conviction.

          (C) A valid notice of appeal is effective - without amendment
        - to appeal from an order disposing of any of the motions
        referred to in Rule 4(b)(3)(A).

        (4) Motion for Extension of Time. Upon a finding of excusable
      neglect or good cause, the district court may - before or after
      the time has expired, with or without motion and notice - extend
      the time to file a notice of appeal for a period not to exceed 30
      days from the expiration of the time otherwise prescribed by this
      Rule 4(b).
        (5) Jurisdiction. The filing of a notice of appeal under this
      Rule 4(b) does not divest a district court of jurisdiction to
      correct a sentence under Federal Rule of Criminal Procedure
      35(a), nor does the filing of a motion under 35(a) affect the
      validity of a notice of appeal filed before entry of the order
      disposing of the motion. The filing of a motion under Federal
      Rule of Criminal Procedure 35(a) does not suspend the time for
      filing a notice of appeal from a judgment of conviction.
        (6) Entry Defined. A judgment or order is entered for purposes
      of this Rule 4(b) when it is entered on the criminal docket.

      (c) Appeal by an Inmate Confined in an Institution.
        (1) If an inmate confined in an institution files a notice of
      appeal in either a civil or a criminal case, the notice is timely
      if it is deposited in the institution's internal mail system on
      or before the last day for filing. If an institution has a system
      designed for legal mail, the inmate must use that system to
      receive the benefit of this rule. Timely filing may be shown by a
      declaration in compliance with 28 U.S.C. Sec. 1746 or by a
      notarized statement, either of which must set forth the date of
      deposit and state that first-class postage has been prepaid.
        (2) If an inmate files the first notice of appeal in a civil
      case under this Rule 4(c), the 14-day period provided in Rule
      4(a)(3) for another party to file a notice of appeal runs from
      the date when the district court dockets the first notice.
        (3) When a defendant in a criminal case files a notice of
      appeal under this Rule 4(c), the 30-day period for the government
      to file its notice of appeal runs from the entry of the judgment
      or order appealed from or from the district court's docketing of
      the defendant's notice of appeal, whichever is later.

      (d) Mistaken Filing in the Court of Appeals. If a notice of
    appeal in either a civil or a criminal case is mistakenly filed in
    the court of appeals, the clerk of that court must note on the
    notice the date when it was received and send it to the district
    clerk. The notice is then considered filed in the district court on
    the date so noted.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Nov. 18, 1988, Pub.
    L. 100-690, title VII, Sec. 7111, 102 Stat. 4419; Apr. 30, 1991,
    eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995,
    eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002,
    eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). This subdivision is derived from FRCP 73(a)
    without any change of substance. The requirement that a request for
    an extension of time for filing the notice of appeal made after
    expiration of the time be made by motion and on notice codifies the
    result reached under the present provisions of FRCP 73(a) and 6(b).
    North Umberland Mining Co. v. Standard Accident Ins. Co., 193 F.2d
    951 (9th Cir., 1952); Cohen v. Plateau Natural Gas Co., 303 F.2d
    273 (10th Cir., 1962); Plant Economy, Inc. v. Mirror Insulation
    Co., 308 F.2d 275 (3d Cir., 1962).
      Since this subdivision governs appeals in all civil cases, it
    supersedes the provisions of section 25 of the Bankruptcy Act (11
    U.S.C. Sec. 48). Except in cases to which the United States or an
    officer or agency thereof is a party, the change is a minor one,
    since a successful litigant in a bankruptcy proceeding may, under
    section 25, oblige an aggrieved party to appeal within 30 days
    after entry of judgment - the time fixed by this subdivision in
    cases involving private parties only - by serving him with notice
    of entry on the day thereof, and by the terms of section 25 an
    aggrieved party must in any event appeal within 40 days after entry
    of judgment. No reason appears why the time for appeal in
    bankruptcy should not be the same as that in civil cases generally.
    Furthermore, section 25 is a potential trap for the uninitiated.
    The time for appeal which it provides is not applicable to all
    appeals which may fairly be termed appeals in bankruptcy. Section
    25 governs only those cases referred to in section 24 as
    "proceedings in bankruptcy" and "controversies arising in
    proceedings in bankruptcy." Lowenstein v. Reikes, 54 F.2d 481 (2d
    Cir., 1931), cert. den., 285 U.S. 539, 52 S.Ct. 311, 76 L.Ed. 932
    (1932). The distinction between such cases and other cases which
    arise out of bankruptcy is often difficult to determine. See 2
    Moore's Collier on Bankruptcy &#182; 24.12 through &#182; 24.36
    (1962). As a result it is not always clear whether an appeal is
    governed by section 25 or by FRCP 73(a), which is applicable to
    such appeals in bankruptcy as are not governed by section 25.
      In view of the unification of the civil and admiralty procedure
    accomplished by the amendments of the Federal Rules of Civil
    Procedure effective July 1, 1966, this subdivision governs appeals
    in those civil actions which involve admiralty or maritime claims
    and which prior to that date were known as suits in admiralty.
      The only other change possibly effected by this subdivision is in
    the time for appeal from a decision of a district court on a
    petition for impeachment of an award of a board of arbitration
    under the Act of May 20, 1926, c. 347, Sec. 9 (44 Stat. 585), 45
    U.S.C. Sec. 159. The act provides that a notice of appeal from such
    a decision shall be filed within 10 days of the decision. This
    singular provision was apparently repealed by the enactment in 1948
    of 28 U.S.C. Sec. 2107, which fixed 30 days from the date of entry
    of judgment as the time for appeal in all actions of a civil nature
    except actions in admiralty or bankruptcy matters or those in which
    the United States is a party. But it was not expressly repealed,
    and its status is in doubt. See 7 Moore's Federal Practice &#182;
    73.09[2] (1966). The doubt should be resolved, and no reason
    appears why appeals in such cases should not be taken within the
    time provided for civil cases generally.
      Subdivision (b). This subdivision is derived from FRCrP 37(a)(2)
    without change of substance.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Subdivision (a)(1). The words "(including a civil action which
    involves an admiralty or maritime claim and a proceeding in
    bankruptcy or a controversy arising therein)," which appear in the
    present rule are struck out as unnecessary and perhaps misleading
    in suggesting that there may be other categories that are not
    either civil or criminal within the meaning of Rule 4(a) and (b).
      The phrases "within 30 days of such entry" and "within 60 days of
    such entry" have been changed to read "after" instead of "or." The
    change is for clarity only, since the word "of" in the present rule
    appears to be used to mean "after." Since the proposed amended rule
    deals directly with the premature filing of a notice of appeal, it
    was thought useful to emphasize the fact that except as provided,
    the period during which a notice of appeal may be filed is the 30
    days, or 60 days as the case may be, following the entry of the
    judgment or order appealed from. See Notes to Rule 4(a)(2) and (4),
    below.
      Subdivision (a)(2). The proposed amendment to Rule 4(a)(2) would
    extend to civil cases the provisions of Rule 4(b), dealing with
    criminal cases, designed to avoid the loss of the right to appeal
    by filing the notice of appeal prematurely. Despite the absence of
    such a provision in Rule 4(a) the courts of appeals quite generally
    have held premature appeals effective. See, e. g., Matter of Grand
    Jury Empanelled Jan. 21, 1975, 541 F.2d 373 (3d Cir. 1976); Hodge
    v. Hodge, 507 F.2d 87 (3d Cir. 1976); Song Jook Suh v. Rosenberg,
    437 F.2d 1098 (9th Cir. 1971); Ruby v. Secretary of the Navy, 365
    F.2d 385 (9th Cir. 1966); Firchau v. Diamond Nat'l Corp., 345 F.2d
    469 (9th Cir. 1965).
      The proposed amended rule would recognize this practice but make
    an exception in cases in which a post trial motion has destroyed
    the finality of the judgment. See Note to Rule 4(a)(4) below.
      Subdivision (a)(4). The proposed amendment would make it clear
    that after the filing of the specified post trial motions, a notice
    of appeal should await disposition of the motion. Since the
    proposed amendments to Rules 3, 10, and 12 contemplate that
    immediately upon the filing of the notice of appeal the fees will
    be paid and the case docketed in the court of appeals, and the
    steps toward its disposition set in motion, it would be undesirable
    to proceed with the appeal while the district court has before it a
    motion the granting of which would vacate or alter the judgment
    appealed from. See, e. g., Kieth v. Newcourt, 530 F.2d 826 (8th
    Cir. 1976). Under the present rule, since docketing may not take
    place until the record is transmitted, premature filing is much
    less likely to involve waste effort. See, e. g., Stokes v. Peyton's
    Inc., 508 F.2d 1287 (5th Cir. 1975). Further, since a notice of
    appeal filed before the disposition of a post trial motion, even if
    it were treated as valid for purposes of jurisdiction, would not
    embrace objections to the denial of the motion, it is obviously
    preferable to postpone the notice of appeal until after the motion
    is disposed of.
      The present rule, since it provides for the "termination" of the
    "running" of the appeal time, is ambiguous in its application to a
    notice of appeal filed prior to a post trial motion filed within
    the 10 day limit. The amendment would make it clear that in such
    circumstances the appellant should not proceed with the appeal
    during pendency of the motion but should file a new notice of
    appeal after the motion is disposed of.
      Subdivision (a)(5). Under the present rule it is provided that
    upon a showing of excusable neglect the district court at any time
    may extend the time for the filing of a notice of appeal for a
    period not to exceed 30 days from the expiration of the time
    otherwise prescribed by the rule, but that if the application is
    made after the original time has run, the order may be made only on
    motion with such notice as the court deems appropriate.
      A literal reading of this provision would require that the
    extension be ordered and the notice of appeal filed within the 30
    day period, but despite the surface clarity of the rule, it has
    produced considerable confusion. See the discussion by Judge
    Friendly in In re Orbitek, 520 F.2d 358 (2d Cir. 1975). The
    proposed amendment would make it clear that a motion to extend the
    time must be filed no later than 30 days after the expiration of
    the original appeal time, and that if the motion is timely filed
    the district court may act upon the motion at a later date, and may
    extend the time not in excess of 10 days measured from the date on
    which the order granting the motion is entered.
      Under the present rule there is a possible implication that prior
    to the time the initial appeal time has run, the district court may
    extend the time on the basis of an informal application. The
    amendment would require that the application must be made by
    motion, though the motion may be made ex parte. After the
    expiration of the initial time a motion for the extension of the
    time must be made in compliance with the F.R.C.P. and local rules
    of the district court. See Note to proposed amended Rule 1, supra.
    And see Rules 6(d), 7(b) of the F.R.C.P.
      The proposed amended rule expands to some extent the standard for
    the grant of an extension of time. The present rule requires a
    "showing of excusable neglect." While this was an appropriate
    standard in cases in which the motion is made after the time for
    filing the notice of appeal has run, and remains so, it has never
    fit exactly the situation in which the appellant seeks an extension
    before the expiration of the initial time. In such a case "good
    cause," which is the standard that is applied in the granting of
    other extensions of time under Rule 26(b) seems to be more
    appropriate.
      Subdivision (a)(6). The proposed amendment would call attention
    to the requirement of Rule 58 of the F.R.C.P. that the judgment
    constitute a separate document. See United States v. Indrelunas,
    411 U.S. 216 (1973). When a notice of appeal is filed, the clerk
    should ascertain whether any judgment designated therein has been
    entered in compliance with Rules 58 and 79(a) and if not, so advise
    all parties and the district judge. While the requirement of Rule
    48 is not jurisdictional (see Bankers Trust Co. v. Mallis, 431 U.S.
    928 (1977)), compliance is important since the time for the filing
    of a notice of appeal by other parties is measured by the time at
    which the judgment is properly entered.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The amendment provides a limited opportunity for relief in
    circumstances where the notice of entry of a judgment or order,
    required to be mailed by the clerk of the district court pursuant
    to Rule 77(d) of the Federal Rules of Civil Procedure, is either
    not received by a party or is received so late as to impair the
    opportunity to file a timely notice of appeal. The amendment adds a
    new subdivision (6) allowing a district court to reopen for a brief
    period the time for appeal upon a finding that notice of entry of a
    judgment or order was not received from the clerk or a party within
    21 days of its entry and that no party would be prejudiced. By
    "prejudice" the Committee means some adverse consequence other than
    the cost of having to oppose the appeal and encounter the risk of
    reversal, consequences that are present in every appeal. Prejudice
    might arise, for example, if the appellee had taken some action in
    reliance on the expiration of the normal time period for filing a
    notice of appeal.
      Reopening may be ordered only upon a motion filed within 180 days
    of the entry of a judgment or order or within 7 days of receipt of
    notice of such entry, whichever is earlier. This provision
    establishes an outer time limit of 180 days for a party who fails
    to receive timely notice of entry of a judgment to seek additional
    time to appeal and enables any winning party to shorten the 180-day
    period by sending (and establishing proof of receipt of) its own
    notice of entry of a judgment, as authorized by Fed. R. Civ. P.
    77(d). Winning parties are encouraged to send their own notice in
    order to lessen the chance that a judge will accept a claim of
    non-receipt in the face of evidence that notices were sent by both
    the clerk and the winning party. Receipt of a winning party's
    notice will shorten only the time for reopening the time for appeal
    under this subdivision, leaving the normal time periods for appeal
    unaffected.
      If the motion is granted, the district court may reopen the time
    for filing a notice of appeal only for a period of 14 days from the
    date of entry of the order reopening the time for appeal.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Note to Paragraph (a)(1). The amendment is intended to alert
    readers to the fact that paragraph (a)(4) extends the time for
    filing an appeal when certain posttrial motions are filed. The
    Committee hopes that awareness of the provisions of paragraph
    (a)(4) will prevent the filing of a notice of appeal when a
    posttrial tolling motion is pending.
      Note to Paragraph (a)(2). The amendment treats a notice of appeal
    filed after the announcement of a decision or order, but before its
    formal entry, as if the notice had been filed after entry. The
    amendment deletes the language that made paragraph (a)(2)
    inapplicable to a notice of appeal filed after announcement of the
    disposition of a posttrial motion enumerated in paragraph (a)(4)
    but before the entry of the order, see Acosta v. Louisiana Dep't of
    Health & Human Resources, 478 U.S. 251 (1986) (per curiam); Alerte
    v. McGinnis, 898 F.2d 69 (7th Cir. 1990). Because the amendment of
    paragraph (a)(4) recognizes all notices of appeal filed after
    announcement or entry of judgment - even those that are filed while
    the posttrial motions enumerated in paragraph (a)(4) are pending -
    the amendment of this paragraph is consistent with the amendment of
    paragraph (a)(4).
      Note to Paragraph (a)(3). The amendment is technical in nature;
    no substantive change is intended.
      Note to Paragraph (a)(4). The 1979 amendment of this paragraph
    created a trap for an unsuspecting litigant who files a notice of
    appeal before a posttrial motion, or while a posttrial motion is
    pending. The 1979 amendment requires a party to file a new notice
    of appeal after the motion's disposition. Unless a new notice is
    filed, the court of appeals lacks jurisdiction to hear the appeal.
    Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Many
    litigants, especially pro se litigants, fail to file the second
    notice of appeal, and several courts have expressed dissatisfaction
    with the rule. See, e.g., Averhart v. Arrendondo, 773 F.2d 919 (7th
    Cir. 1985); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d
    278 (5th Cir. 1984), cert. denied, 479 U.S. 930 (1986).
      The amendment provides that a notice of appeal filed before the
    disposition of a specified posttrial motion will become effective
    upon disposition of the motion. A notice filed before the filing of
    one of the specified motions or after the filing of a motion but
    before disposition of the motion is, in effect, suspended until the
    motion is disposed of, whereupon, the previously filed notice
    effectively places jurisdiction in the court of appeals.
      Because a notice of appeal will ripen into an effective appeal
    upon disposition of a posttrial motion, in some instances there
    will be an appeal from a judgment that has been altered
    substantially because the motion was granted in whole or in part.
    Many such appeals will be dismissed for want of prosecution when
    the appellant fails to meet the briefing schedule. But, the
    appellee may also move to strike the appeal. When responding to
    such a motion, the appellant would have an opportunity to state
    that, even though some relief sought in a posttrial motion was
    granted, the appellant still plans to pursue the appeal. Because
    the appellant's response would provide the appellee with sufficient
    notice of the appellant's intentions, the Committee does not
    believe that an additional notice of appeal is needed.
      The amendment provides that a notice of appeal filed before the
    disposition of a posttrial tolling motion is sufficient to bring
    the underlying case, as well as any orders specified in the
    original notice, to the court of appeals. If the judgment is
    altered upon disposition of a posttrial motion, however, and if a
    party wishes to appeal from the disposition of the motion, the
    party must amend the notice to so indicate. When a party files an
    amended notice, no additional fees are required because the notice
    is an amendment of the original and not a new notice of appeal.
      Paragraph (a)(4) is also amended to include, among motions that
    extend the time for filing a notice of appeal, a Rule 60 motion
    that is served within 10 days after entry of judgment. This
    eliminates the difficulty of determining whether a posttrial motion
    made within 10 days after entry of a judgment is a Rule 59(e)
    motion, which tolls the time for filing an appeal, or a Rule 60
    motion, which historically has not tolled the time. The amendment
    comports with the practice in several circuits of treating all
    motions to alter or amend judgments that are made within 10 days
    after entry of judgment as Rule 59(e) motions for purposes of Rule
    4(a)(4). See, e.g., Finch v. City of Vernon, 845 F.2d 256 (11th
    Cir. 1988); Rados v. Celotex Corp., 809 F.2d 170 (2d Cir. 1986);
    Skagerberg v. Oklahoma, 797 F.2d 881 (10th Cir. 1986). To conform
    to a recent Supreme Court decision, however - Budinich v. Becton
    Dickinson and Co., 486 U.S. 196 (1988) - the amendment excludes
    motions for attorney's fees from the class of motions that extend
    the filing time unless a district court, acting under Rule 58,
    enters an order extending the time for appeal. This amendment is to
    be read in conjunction with the amendment of Fed. R. Civ. P. 58.
      Note to subdivision (b). The amendment grammatically restructures
    the portion of this subdivision that lists the types of motions
    that toll the time for filing an appeal. This restructuring is
    intended to make the rule easier to read. No substantive change is
    intended other than to add a motion for judgment of acquittal under
    Criminal Rule 29 to the list of tolling motions. Such a motion is
    the equivalent of a Fed. R. Civ. P. 50(b) motion for judgment
    notwithstanding the verdict, which tolls the running of time for an
    appeal in a civil case.
      The proposed amendment also eliminates an ambiguity from the
    third sentence of this subdivision. Prior to this amendment, the
    third sentence provided that if one of the specified motions was
    filed, the time for filing an appeal would run from the entry of an
    order denying the motion. That sentence, like the parallel
    provision in Rule 4(a)(4), was intended to toll the running of time
    for appeal if one of the posttrial motions is timely filed. In a
    criminal case, however, the time for filing the motions runs not
    from entry of judgment (as it does in civil cases), but from the
    verdict or finding of guilt. Thus, in a criminal case, a posttrial
    motion may be disposed of more than 10 days before sentence is
    imposed, i.e. before the entry of judgment. United States v.
    Hashagen, 816 F.2d 899, 902 n.5 (3d Cir. 1987). To make it clear
    that a notice of appeal need not be filed before entry of judgment,
    the amendment states that an appeal may be taken within 10 days
    after the entry of an order disposing of the motion, or within 10
    days after the entry of judgment, whichever is later. The amendment
    also changes the language in the third sentence providing that an
    appeal may be taken within 10 days after the entry of an order
    denying the motion; the amendment says instead that an appeal may
    be taken within 10 days after the entry of an order disposing of
    the last such motion outstanding. (Emphasis added) The change
    recognizes that there may be multiple posttrial motions filed and
    that, although one or more motions may be granted in whole or in
    part, a defendant may still wish to pursue an appeal.
      The amendment also states that a notice of appeal filed before
    the disposition of any of the posttrial tolling motions becomes
    effective upon disposition of the motions. In most circuits this
    language simply restates the current practice. See United States v.
    Cortes, 895 F.2d 1245 (9th Cir.), cert. denied, 495 U.S. 939
    (1990). Two circuits, however, have questioned that practice in
    light of the language of the rule, see United States v. Gargano,
    826 F.2d 610 (7th Cir. 1987), and United States v. Jones, 669 F.2d
    559 (8th Cir. 1982), and the Committee wishes to clarify the rule.
    The amendment is consistent with the proposed amendment of Rule
    4(a)(4).
      Subdivision (b) is further amended in light of new Fed. R. Crim.
    P. 35(c), which authorizes a sentencing court to correct any
    arithmetical, technical, or other clear errors in sentencing within
    7 days after imposing the sentence. The Committee believes that a
    sentencing court should be able to act under Criminal Rule 35(c)
    even if a notice of appeal has already been filed; and that a
    notice of appeal should not be affected by the filing of a Rule
    35(c) motion or by correction of a sentence under Rule 35(c).
      Note to subdivision (c). In Houston v. Lack, 487 U.S. 266 (1988),
    the Supreme Court held that a pro se prisoner's notice of appeal is
    "filed" at the moment of delivery to prison authorities for
    forwarding to the district court. The amendment reflects that
    decision. The language of the amendment is similar to that in
    Supreme Court Rule 29.2.
      Permitting an inmate to file a notice of appeal by depositing it
    in an institutional mail system requires adjustment of the rules
    governing the filing of cross-appeals. In a civil case, the time
    for filing a cross-appeal ordinarily runs from the date when the
    first notice of appeal is filed. If an inmate's notice of appeal is
    filed by depositing it in an institution's mail system, it is
    possible that the notice of appeal will not arrive in the district
    court until several days after the "filing" date and perhaps even
    after the time for filing a cross-appeal has expired. To avoid that
    problem, subdivision (c) provides that in a civil case when an
    institutionalized person files a notice of appeal by depositing it
    in the institution's mail system, the time for filing a
    cross-appeal runs from the district court's receipt of the notice.
    The amendment makes a parallel change regarding the time for the
    government to appeal in a criminal case.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      Subdivision (a). Fed. R. Civ. P. 50, 52, and 59 were previously
    inconsistent with respect to whether certain postjudgment motions
    had to be filed or merely served no later than 10 days after entry
    of judgment. As a consequence Rule 4(a)(4) spoke of making or
    serving such motions rather than filing them. Civil Rules 50, 52,
    and 59, are being revised to require filing before the end of the
    10-day period. As a consequence, this rule is being amended to
    provide that "filing" must occur within the 10 day period in order
    to affect the finality of the judgment and extend the period for
    filing a notice of appeal.
      The Civil Rules require the filing of postjudgment motions "no
    later than 10 days after entry of judgment" - rather than "within"
    10 days - to include postjudgment motions that are filed before
    actual entry of the judgment by the clerk. This rule is amended,
    therefore, to use the same terminology.
      The rule is further amended to clarify the fact that a party who
    wants to obtain review of an alteration or amendment of a judgment
    must file a notice of appeal or amend a previously filed notice to
    indicate intent to appeal from the altered judgment.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; in this
    rule, however, substantive changes are made in paragraphs (a)(6)
    and (b)(4), and in subdivision (c).
      Subdivision (a), paragraph (1). Although the Advisory Committee
    does not intend to make any substantive changes in this paragraph,
    cross-references to Rules 4(a)(1)(B) and 4(c) have been added to
    subparagraph (a)(1)(A).
      Subdivision (a), paragraph (4). Item (vi) in subparagraph (A) of
    Rule 4(a)(4) provides that filing a motion for relief under Fed. R.
    Civ. P. 60 will extend the time for filing a notice of appeal if
    the Rule 60 motion is filed no later than 10 days after judgment is
    entered. Again, the Advisory Committee does not intend to make any
    substantive change in this paragraph. But because Fed. R. Civ. P.
    6(a) and Fed. R. App. P. 26(a) have different methods for computing
    time, one might be uncertain whether the 10-day period referred to
    in Rule 4(a)(4) is computed using Civil Rule 6(a) or Appellate Rule
    26(a). Because the Rule 60 motion is filed in the district court,
    and because Fed. R. App. P. 1(a)(2) says that when the appellate
    rules provide for filing a motion in the district court, "the
    procedure must comply with the practice of the district court," the
    rule provides that the 10-day period is computed using Fed. R. Civ.
    P. 6(a).
      Subdivision (a), paragraph (6). Paragraph (6) permits a district
    court to reopen the time for appeal if a party has not received
    notice of the entry of judgment and no party would be prejudiced by
    the reopening. Before reopening the time for appeal, the existing
    rule requires the district court to find that the moving party was
    entitled to notice of the entry of judgment and did not receive it
    "from the clerk or any party within 21 days of its entry." The
    Advisory Committee makes a substantive change. The finding must be
    that the movant did not receive notice "from the district court or
    any party within 21 days after entry." This change broadens the
    type of notice that can preclude reopening the time for appeal. The
    existing rule provides that only notice from a party or from the
    clerk bars reopening. The new language precludes reopening if the
    movant has received notice from "the court."
      Subdivision (b). Two substantive changes are made in what will be
    paragraph (b)(4). The current rule permits an extension of time to
    file a notice of appeal if there is a "showing of excusable
    neglect." First, the rule is amended to permit a court to extend
    the time for "good cause" as well as for excusable neglect. Rule
    4(a) permits extensions for both reasons in civil cases and the
    Advisory Committee believes that "good cause" should be sufficient
    in criminal cases as well. The amendment does not limit extensions
    for good cause to instances in which the motion for extension of
    time is filed before the original time has expired. The rule gives
    the district court discretion to grant extensions for good cause
    whenever the court believes it appropriate to do so provided that
    the extended period does not exceed 30 days after the expiration of
    the time otherwise prescribed by Rule 4(b). Second, paragraph
    (b)(4) is amended to require only a "finding" of excusable neglect
    or good cause and not a "showing" of them. Because the rule
    authorizes the court to provide an extension without a motion, a
    "showing" is obviously not required; a "finding" is sufficient.
      Subdivision (c). Substantive amendments are made in this
    subdivision. The current rule provides that if an inmate confined
    in an institution files a notice of appeal by depositing it in the
    institution's internal mail system, the notice is timely filed if
    deposited on or before the last day for filing. Some institutions
    have special internal mail systems for handling legal mail; such
    systems often record the date of deposit of mail by an inmate, the
    date of delivery of mail to an inmate, etc. The Advisory Committee
    amends the rule to require an inmate to use the system designed for
    legal mail, if there is one, in order to receive the benefit of
    this subdivision.
      When an inmate uses the filing method authorized by subdivision
    (c), the current rule provides that the time for other parties to
    appeal begins to run from the date the district court "receives"
    the inmate's notice of appeal. The rule is amended so that the time
    for other parties begins to run when the district court "dockets"
    the inmate's appeal. A court may "receive" a paper when its mail is
    delivered to it even if the mail is not processed for a day or two,
    making the date of receipt uncertain. "Docketing" is an easily
    identified event. The change eliminates uncertainty. Paragraph
    (c)(3) is further amended to make it clear that the time for the
    government to file its appeal runs from the later of the entry of
    the judgment or order appealed from or the district court's
    docketing of a defendant's notice filed under this paragraph (c).

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (a)(1)(C). The federal courts of appeals have reached
    conflicting conclusions about whether an appeal from an order
    granting or denying an application for a writ of error coram nobis
    is governed by the time limitations of Rule 4(a) (which apply in
    civil cases) or by the time limitations of Rule 4(b) (which apply
    in criminal cases). Compare United States v. Craig, 907 F.2d 653,
    655-57, amended 919 F.2d 57 (7th Cir. 1990); United States v.
    Cooper, 876 F.2d 1192, 1193-94 (5th Cir. 1989); and United States
    v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968) (applying the time
    limitations of Rule 4(a)); with Yasui v. United States, 772 F.2d
    1496, 1498-99 (9th Cir. 1985); and United States v. Mills, 430 F.2d
    526, 527-28 (8th Cir. 1970) (applying the time limitations of Rule
    4(b)). A new part (C) has been added to Rule 4(a)(1) to resolve
    this conflict by providing that the time limitations of Rule 4(a)
    will apply.
      Subsequent to the enactment of Fed. R. Civ. P. 60(b) and 28
    U.S.C. Sec. 2255, the Supreme Court has recognized the continued
    availability of a writ of error coram nobis in at least one narrow
    circumstance. In 1954, the Court permitted a litigant who had been
    convicted of a crime, served his full sentence, and been released
    from prison, but who was continuing to suffer a legal disability on
    account of the conviction, to seek a writ of error coram nobis to
    set aside the conviction. United States v. Morgan, 346 U.S. 502
    (1954). As the Court recognized, in the Morgan situation an
    application for a writ of error coram nobis "is of the same general
    character as [a motion] under 28 U.S.C. Sec. 2255." Id. at 506 n.4.
    Thus, it seems appropriate that the time limitations of Rule 4(a),
    which apply when a district court grants or denies relief under 28
    U.S.C. Sec. 2255, should also apply when a district court grants or
    denies a writ of error coram nobis. In addition, the strong public
    interest in the speedy resolution of criminal appeals that is
    reflected in the shortened deadlines of Rule 4(b) is not present in
    the Morgan situation, as the party seeking the writ of error coram
    nobis has already served his or her full sentence.
      Notwithstanding Morgan, it is not clear whether the Supreme Court
    continues to believe that the writ of error coram nobis is
    available in federal court. In civil cases, the writ has been
    expressly abolished by Fed. R. Civ. P. 60(b). In criminal cases,
    the Supreme Court has recently stated that it has become "
    'difficult to conceive of a situation' " in which the writ " 'would
    be necessary or appropriate.' " Carlisle v. United States, 517 U.S.
    416, 429 (1996) (quoting United States v. Smith, 331 U.S. 469, 475
    n.4 (1947)). The amendment to Rule 4(a)(1) is not intended to
    express any view on this issue; rather, it is merely meant to
    specify time limitations for appeals.
      Rule 4(a)(1)(C) applies only to motions that are in substance,
    and not merely in form, applications for writs of error coram
    nobis. Litigants may bring and label as applications for a writ of
    error coram nobis what are in reality motions for a new trial under
    Fed. R. Crim. P. 33 or motions for correction or reduction of a
    sentence under Fed. R. Crim. P. 35. In such cases, the time
    limitations of Rule 4(b), and not those of Rule 4(a), should be
    enforced.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.
      Subdivision (a)(4)(A)(vi). Rule 4(a)(4)(A)(vi) has been amended
    to remove a parenthetical that directed that the 10-day deadline be
    "computed using Federal Rule of Civil Procedure 6(a)." That
    parenthetical has become superfluous because Rule 26(a)(2) has been
    amended to require that all deadlines under 11 days be calculated
    as they are under Fed. R. Civ. P. 6(a).
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.
      Subdivision (a)(5)(A)(ii). Rule 4(a)(5)(A) permits the district
    court to extend the time to file a notice of appeal if two
    conditions are met. First, the party seeking the extension must
    file its motion no later than 30 days after the expiration of the
    time originally prescribed by Rule 4(a). Second, the party seeking
    the extension must show either excusable neglect or good cause. The
    text of Rule 4(a)(5)(A) does not distinguish between motions filed
    prior to the expiration of the original deadline and those filed
    after the expiration of the original deadline. Regardless of
    whether the motion is filed before or during the 30 days after the
    original deadline expires, the district court may grant an
    extension if a party shows either excusable neglect or good cause.
      Despite the text of Rule 4(a)(5)(A), most of the courts of
    appeals have held that the good cause standard applies only to
    motions brought prior to the expiration of the original deadline
    and that the excusable neglect standard applies only to motions
    brought during the 30 days following the expiration of the original
    deadline. See Pontarelli v. Stone, 930 F.2d 104, 109-10 (1st Cir.
    1991) (collecting cases from the Second, Fifth, Sixth, Seventh,
    Eighth, Ninth, and Eleventh Circuits). These courts have relied
    heavily upon the Advisory Committee Note to the 1979 amendment to
    Rule 4(a)(5). But the Advisory Committee Note refers to a draft of
    the 1979 amendment that was ultimately rejected. The rejected draft
    directed that the good cause standard apply only to motions filed
    prior to the expiration of the original deadline. Rule 4(a)(5), as
    actually amended, did not. See 16A Charles Alan Wright, et al.,
    Federal Practice and Procedure Sec. 3950.3, at 148-49 (2d ed.
    1996).
      The failure of the courts of appeals to apply Rule 4(a)(5)(A) as
    written has also created tension between that rule and Rule
    4(b)(4). As amended in 1998, Rule 4(b)(4) permits the district
    court to extend the time for filing a notice of appeal in a
    criminal case for an additional 30 days upon a finding of excusable
    neglect or good cause. Both Rule 4(b)(4) and the Advisory Committee
    Note to the 1998 amendment make it clear that an extension can be
    granted for either excusable neglect or good cause, regardless of
    whether a motion for an extension is filed before or during the 30
    days following the expiration of the original deadline.
      Rule 4(a)(5)(A)(ii) has been amended to correct this
    misunderstanding and to bring the rule in harmony in this respect
    with Rule 4(b)(4). A motion for an extension filed prior to the
    expiration of the original deadline may be granted if the movant
    shows either excusable neglect or good cause. Likewise, a motion
    for an extension filed during the 30 days following the expiration
    of the original deadline may be granted if the movant shows either
    excusable neglect or good cause.
      The good cause and excusable neglect standards have "different
    domains." Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232
    (7th Cir. 1990). They are not interchangeable, and one is not
    inclusive of the other. The excusable neglect standard applies in
    situations in which there is fault; in such situations, the need
    for an extension is usually occasioned by something within the
    control of the movant. The good cause standard applies in
    situations in which there is no fault - excusable or otherwise. In
    such situations, the need for an extension is usually occasioned by
    something that is not within the control of the movant.
      Thus, the good cause standard can apply to motions brought during
    the 30 days following the expiration of the original deadline. If,
    for example, the Postal Service fails to deliver a notice of
    appeal, a movant might have good cause to seek a post-expiration
    extension. It may be unfair to make such a movant prove that its
    "neglect" was excusable, given that the movant may not have been
    neglectful at all. Similarly, the excusable neglect standard can
    apply to motions brought prior to the expiration of the original
    deadline. For example, a movant may bring a pre-expiration motion
    for an extension of time when an error committed by the movant
    makes it unlikely that the movant will be able to meet the original
    deadline.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment. The stylistic changes to the
    Committee Note suggested by Judge Newman were adopted. In addition,
    two paragraphs were added at the end of the Committee Note to
    clarify the difference between the good cause and excusable neglect
    standards.
      Subdivision (a)(7). Several circuit splits have arisen out of
    uncertainties about how Rule 4(a)(7)'s definition of when a
    judgment or order is "entered" interacts with the requirement in
    Fed. R. Civ. P. 58 that, to be "effective," a judgment must be set
    forth on a separate document. Rule 4(a)(7) and Fed. R. Civ. P. 58
    have been amended to resolve those splits.
       1. The first circuit split addressed by the amendments to Rule
    4(a)(7) and Fed. R. Civ. P. 58 concerns the extent to which orders
    that dispose of post-judgment motions must be set forth on separate
    documents. Under Rule 4(a)(4)(A), the filing of certain
    post-judgment motions tolls the time to appeal the underlying
    judgment until the "entry" of the order disposing of the last such
    remaining motion. Courts have disagreed about whether such an order
    must be set forth on a separate document before it is treated as
    "entered." This disagreement reflects a broader dispute among
    courts about whether Rule 4(a)(7) independently imposes a separate
    document requirement (a requirement that is distinct from the
    separate document requirement that is imposed by the Federal Rules
    of Civil Procedure ("FRCP")) or whether Rule 4(a)(7) instead
    incorporates the separate document requirement as it exists in the
    FRCP. Further complicating the matter, courts in the former "camp"
    disagree among themselves about the scope of the separate document
    requirement that they interpret Rule 4(a)(7) as imposing, and
    courts in the latter "camp" disagree among themselves about the
    scope of the separate document requirement imposed by the FRCP.
      Rule 4(a)(7) has been amended to make clear that it simply
    incorporates the separate document requirement as it exists in Fed.
    R. Civ. P. 58. If Fed. R. Civ. P. 58 does not require that a
    judgment or order be set forth on a separate document, then neither
    does Rule 4(a)(7); the judgment or order will be deemed entered for
    purposes of Rule 4(a) when it is entered in the civil docket. If
    Fed. R. Civ. P. 58 requires that a judgment or order be set forth
    on a separate document, then so does Rule 4(a)(7); the judgment or
    order will not be deemed entered for purposes of Rule 4(a) until it
    is so set forth and entered in the civil docket (with one important
    exception, described below).
      In conjunction with the amendment to Rule 4(a)(7), Fed. R. Civ.
    P. 58 has been amended to provide that orders disposing of the
    post-judgment motions listed in new Fed. R. Civ. P. 58(a)(1) (which
    post-judgment motions include, but are not limited to, the
    post-judgment motions that can toll the time to appeal under Rule
    4(a)(4)(A)) do not have to be set forth on separate documents. See
    Fed. R. Civ. P. 58(a)(1). Thus, such orders are entered for
    purposes of Rule 4(a) when they are entered in the civil docket
    pursuant to Fed. R. Civ. P. 79(a). See Rule 4(a)(7)(A)(1).
       2. The second circuit split addressed by the amendments to Rule
    4(a)(7) and Fed. R. Civ. P. 58 concerns the following question:
    When a judgment or order is required to be set forth on a separate
    document under Fed. R. Civ. P. 58 but is not, does the time to
    appeal the judgment or order - or the time to bring post-judgment
    motions, such as a motion for a new trial under Fed. R. Civ. P. 59
    - ever begin to run? According to every circuit except the First
    Circuit, the answer is "no." The First Circuit alone holds that
    parties will be deemed to have waived their right to have a
    judgment or order entered on a separate document three months after
    the judgment or order is entered in the civil docket. See Fiore v.
    Washington County Community Mental Health Ctr., 960 F.2d 229, 236
    (1st Cir. 1992) (en banc). Other circuits have rejected this cap as
    contrary to the relevant rules. See, e.g., United States v. Haynes,
    158 F.3d 1327, 1331 (D.C. Cir. 1998); Hammack v. Baroid Corp., 142
    F.3d 266, 269-70 (5th Cir. 1998); Rubin v. Schottenstein, Zox &
    Dunn, 110 F.3d 1247, 1253 n.4 (6th Cir. 1997), vacated on other
    grounds, 143 F.3d 263 (6th Cir. 1998) (en banc). However, no court
    has questioned the wisdom of imposing such a cap as a matter of
    policy.
      Both Rule 4(a)(7)(A) and Fed. R. Civ. P. 58 have been amended to
    impose such a cap. Under the amendments, a judgment or order is
    generally treated as entered when it is entered in the civil docket
    pursuant to Fed. R. Civ. P. 79(a). There is one exception: When
    Fed. R. Civ. P. 58(a)(1) requires the judgment or order to be set
    forth on a separate document, that judgment or order is not treated
    as entered until it is set forth on a separate document (in
    addition to being entered in the civil docket) or until the
    expiration of 150 days after its entry in the civil docket,
    whichever occurs first. This cap will ensure that parties will not
    be given forever to appeal (or to bring a post-judgment motion)
    when a court fails to set forth a judgment or order on a separate
    document in violation of Fed. R. Civ. P. 58(a)(1).
       3. The third circuit split - this split addressed only by the
    amendment to Rule 4(a)(7) - concerns whether the appellant may
    waive the separate document requirement over the objection of the
    appellee. In Bankers Trust Co. v. Mallis, 435 U.S. 381, 387 (1978)
    (per curiam), the Supreme Court held that the "parties to an appeal
    may waive the separate-judgment requirement of Rule 58."
    Specifically, the Supreme Court held that when a district court
    enters an order and "clearly evidence[s] its intent that the . . .
    order . . . represent[s] the final decision in the case," the order
    is a "final decision" for purposes of 28 U.S.C. Sec. 1291, even if
    the order has not been set forth on a separate document for
    purposes of Fed. R. Civ. P. 58. Id. Thus, the parties can choose to
    appeal without waiting for the order to be set forth on a separate
    document.
      Courts have disagreed about whether the consent of all parties is
    necessary to waive the separate document requirement. Some circuits
    permit appellees to object to attempted Mallis waivers and to force
    appellants to return to the trial court, request that judgment be
    set forth on a separate document, and appeal a second time. See,
    e.g., Selletti v. Carey, 173 F.3d 104, 109-10 (2d Cir. 1999);
    Williams v. Borg, 139 F.3d 737, 739-40 (9th Cir. 1998); Silver Star
    Enters., Inc. v. M/V Saramacca, 19 F.3d 1008, 1013 (5th Cir. 1994).
    Other courts disagree and permit Mallis waivers even if the
    appellee objects. See, e.g., Haynes, 158 F.3d at 1331; Miller v.
    Artistic Cleaners, 153 F.3d 781, 783-84 (7th Cir. 1998);
    Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1006 n.8 (3d
    Cir. 1994).
      New Rule 4(a)(7)(B) is intended both to codify the Supreme
    Court's holding in Mallis and to make clear that the decision
    whether to waive the requirement that the judgment or order be set
    forth on a separate document is the appellant's alone. It is, after
    all, the appellant who needs a clear signal as to when the time to
    file a notice of appeal has begun to run. If the appellant chooses
    to bring an appeal without waiting for the judgment or order to be
    set forth on a separate document, then there is no reason why the
    appellee should be able to object. All that would result from
    honoring the appellee's objection would be delay.
       4. The final circuit split addressed by the amendment to Rule
    4(a)(7) concerns the question whether an appellant who chooses to
    waive the separate document requirement must appeal within 30 days
    (60 days if the government is a party) from the entry in the civil
    docket of the judgment or order that should have been set forth on
    a separate document but was not. In Townsend v. Lucas, 745 F.2d 933
    (5th Cir. 1984), the district court dismissed a 28 U.S.C. Sec. 2254
    action on May 6, 1983, but failed to set forth the judgment on a
    separate document. The plaintiff appealed on January 10, 1984. The
    Fifth Circuit dismissed the appeal, reasoning that, if the
    plaintiff waived the separate document requirement, then his appeal
    would be from the May 6 order, and if his appeal was from the May 6
    order, then it was untimely under Rule 4(a)(1). The Fifth Circuit
    stressed that the plaintiff could return to the district court,
    move that the judgment be set forth on a separate document, and
    appeal from that judgment within 30 days. Id. at 934. Several other
    cases have embraced the Townsend approach. See, e.g., Armstrong v.
    Ahitow, 36 F.3d 574, 575 (7th Cir. 1994) (per curiam); Hughes v.
    Halifax County Sch. Bd., 823 F.2d 832, 835-36 (4th Cir. 1987);
    Harris v. McCarthy, 790 F.2d 753, 756 n.1 (9th Cir. 1986).
      Those cases are in the distinct minority. There are numerous
    cases in which courts have heard appeals that were not filed within
    30 days (60 days if the government was a party) from the judgment
    or order that should have been set forth on a separate document but
    was not. See, e.g., Haynes, 158 F.3d at 1330-31; Clough v. Rush,
    959 F.2d 182, 186 (10th Cir. 1992); McCalden v. California Library
    Ass'n, 955 F.2d 1214, 1218-19 (9th Cir. 1990). In the view of these
    courts, the remand in Townsend was "precisely the purposeless
    spinning of wheels abjured by the Court in the [Mallis] case." 15B
    Charles Alan Wright et al., Federal Practice and Procedure Sec.
    3915, at 259 n.8 (3d ed. 1992).
      The Committee agrees with the majority of courts that have
    rejected the Townsend approach. In drafting new Rule 4(a)(7)(B),
    the Committee has been careful to avoid phrases such as "otherwise
    timely appeal" that might imply an endorsement of Townsend.
      Changes Made After Publication and Comments. No changes were made
    to the text of proposed Rule 4(a)(7)(B) or to the third or fourth
    numbered sections of the Committee Note, except that, in several
    places, references to a judgment being "entered" on a separate
    document were changed to references to a judgment being "set forth"
    on a separate document. This was to maintain stylistic consistency.
    The appellate rules and the civil rules consistently refer to
    "entering" judgments on the civil docket and to "setting forth"
    judgments on separate documents.
      Two major changes were made to the text of proposed Rule
    4(a)(7)(A) - one substantive and one stylistic. The substantive
    change was to increase the "cap" from 60 days to 150 days. The
    Appellate Rules Committee and the Civil Rules Committee had to
    balance two concerns that are implicated whenever a court fails to
    enter its final decision on a separate document. On the one hand,
    potential appellants need a clear signal that the time to appeal
    has begun to run, so that they do not unknowingly forfeit their
    rights. On the other hand, the time to appeal cannot be allowed to
    run forever. A party who receives no notice whatsoever of a
    judgment has only 180 days to move to reopen the time to appeal
    from that judgment. See Rule 4(a)(6)(A). It hardly seems fair to
    give a party who does receive notice of a judgment an unlimited
    amount of time to appeal, merely because that judgment was not set
    forth on a separate piece of paper. Potential appellees and the
    judicial system need some limit on the time within which appeals
    can be brought.
      The 150-day cap properly balances these two concerns. When an
    order is not set forth on a separate document, what signals
    litigants that the order is final and appealable is a lack of
    further activity from the court. A 60-day period of inactivity is
    not sufficiently rare to signal to litigants that the court has
    entered its last order. By contrast, 150 days of inactivity is much
    less common and thus more clearly signals to litigants that the
    court is done with their case.
      The major stylistic change to Rule 4(a)(7) requires some
    explanation. In the published draft, proposed Rule 4(a)(7)(A)
    provided that "[a] judgment or order is entered for purposes of
    this Rule 4(a) when it is entered for purposes of Rule 58(b) of the
    Federal Rules of Civil Procedure." In other words, Rule 4(a)(7)(A)
    told readers to look to FRCP 58(b) to ascertain when a judgment is
    entered for purposes of starting the running of time to appeal.
    Sending appellate lawyers to the civil rules to discover when time
    began to run for purposes of the appellate rules was itself
    somewhat awkward, but it was made more confusing by the fact that,
    when readers went to proposed FRCP 58(b), they found this
    introductory clause: "Judgment is entered for purposes of Rules 50,
    52, 54(d)(2)(B), 59, 60, and 62 when . . ."
      This introductory clause was confusing for both appellate lawyers
    and trial lawyers. It was confusing for appellate lawyers because
    Rule 4(a)(7) informed them that FRCP 58(b) would tell them when the
    time begins to run for purposes of the appellate rules, but when
    they got to FRCP 58(b) they found a rule that, by its terms,
    dictated only when the time begins to run for purposes of certain
    civil rules. The introductory clause was confusing for trial
    lawyers because FRCP 58(b) described when judgment is entered for
    some purposes under the civil rules, but then was completely silent
    about when judgment is entered for other purposes.
      To avoid this confusion, the Civil Rules Committee, on the
    recommendation of the Appellate Rules Committee, changed the
    introductory clause in FRCP 58(b) to read simply: "Judgment is
    entered for purposes of these Rules when . . . ." In addition, Rule
    4(a)(7)(A) was redrafted [A redraft of Rule 4(a)(7) was faxed to
    members of the Appellate Rules Committee two weeks after our
    meeting in New Orleans. The Committee consented to the redraft
    without objection.] so that the triggering events for the running
    of the time to appeal (entry in the civil docket, and being set
    forth on a separate document or passage of 150 days) were
    incorporated directly into Rule 4(a)(7), rather than indirectly
    through a reference to FRCP 58(b). This eliminates the need for
    appellate lawyers to examine Rule 58(b) and any chance that Rule
    58(b)'s introductory clause (even as modified) might confuse them.
      We do not believe that republication of Rule 4(a)(7) or FRCP 58
    is necessary. In substance, rewritten Rule 4(a)(7)(A) and FRCP
    58(b) operate identically to the published versions, except that
    the 60-day cap has been replaced with a 150-day cap - a change that
    was suggested by some of the commentators and that makes the cap
    more forgiving.
      Subdivision (b)(5). Federal Rule of Criminal Procedure 35(a)
    permits a district court, acting within 7 days after the imposition
    of sentence, to correct an erroneous sentence in a criminal case.
    Some courts have held that the filing of a motion for correction of
    a sentence suspends the time for filing a notice of appeal from the
    judgment of conviction. See, e.g., United States v. Carmouche, 138
    F.3d 1014, 1016 (5th Cir. 1998) (per curiam); United States v.
    Morillo, 8 F.3d 864, 869 (1st Cir. 1993). Those courts establish
    conflicting timetables for appealing a judgment of conviction after
    the filing of a motion to correct a sentence. In the First Circuit,
    the time to appeal is suspended only for the period provided by
    Fed. R. Crim. P. 35(a) for the district court to correct a
    sentence; the time to appeal begins to run again once 7 days have
    passed after sentencing, even if the motion is still pending. By
    contrast, in the Fifth Circuit, the time to appeal does not begin
    to run again until the district court actually issues an order
    disposing of the motion.
      Rule 4(b)(5) has been amended to eliminate the inconsistency
    concerning the effect of a motion to correct a sentence on the time
    for filing a notice of appeal. The amended rule makes clear that
    the time to appeal continues to run, even if a motion to correct a
    sentence is filed. The amendment is consistent with Rule
    4(b)(3)(A), which lists the motions that toll the time to appeal,
    and notably omits any mention of a Fed. R. Crim. P. 35(a) motion.
    The amendment also should promote certainty and minimize the
    likelihood of confusion concerning the time to appeal a judgment of
    conviction.
      If a district court corrects a sentence pursuant to Fed. R. Crim.
    P. 35(a), the time for filing a notice of appeal of the corrected
    sentence under Rule 4(b)(1) would begin to run when the court
    enters a new judgment reflecting the corrected sentence.
      Changes Made After Publication and Comments. The reference to
    Federal Rule of Criminal Procedure 35(c) was changed to Rule 35(a)
    to reflect the pending amendment of Rule 35. The proposed amendment
    to Criminal Rule 35, if approved, will take effect at the same time
    that the proposed amendment to Appellate Rule 4 will take effect,
    if approved.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Civil Procedure, referred to in subd.
    (a)(4), (7), are set out in this Appendix.
      The Federal Rules of Criminal Procedure, referred to in subd.
    (b)(3), (5), are set out in the Appendix to Title 18, Crimes and
    Criminal Procedure.


-MISC2-
                          AMENDMENT BY PUBLIC LAW                      
      1988 - Subd. (b). Pub. L. 100-690 inserted "(i)" and "or (ii) a
    notice of appeal by the Government" in first sentence, and "(i)"
    and "or (ii) a notice of appeal by any defendant" in fifth
    sentence.

-End-



-CITE-
    28 USC APPENDIX Rule 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 5. Appeal by Permission

-STATUTE-
      (a) Petition for Permission to Appeal.
        (1) To request permission to appeal when an appeal is within
      the court of appeals' discretion, a party must file a petition
      for permission to appeal. The petition must be filed with the
      circuit clerk with proof of service on all other parties to the
      district-court action.
        (2) The petition must be filed within the time specified by the
      statute or rule authorizing the appeal or, if no such time is
      specified, within the time provided by Rule 4(a) for filing a
      notice of appeal.
        (3) If a party cannot petition for appeal unless the district
      court first enters an order granting permission to do so or
      stating that the necessary conditions are met, the district court
      may amend its order, either on its own or in response to a
      party's motion, to include the required permission or statement.
      In that event, the time to petition runs from entry of the
      amended order.

      (b) Contents of the Petition; Answer or Cross-Petition; Oral
    Argument.
        (1) The petition must include the following:
          (A) the facts necessary to understand the question presented;
          (B) the question itself;
          (C) the relief sought;
          (D) the reasons why the appeal should be allowed and is
        authorized by a statute or rule; and
          (E) an attached copy of:
            (i) the order, decree, or judgment complained of and any
          related opinion or memorandum, and
            (ii) any order stating the district court's permission to
          appeal or finding that the necessary conditions are met.

        (2) A party may file an answer in opposition or a
      cross-petition within 7 days after the petition is served.
        (3) The petition and answer will be submitted without oral
      argument unless the court of appeals orders otherwise.

      (c) Form of Papers; Number of Copies. All papers must conform to
    Rule 32(c)(2). Except by the court's permission, a paper must not
    exceed 20 pages, exclusive of the disclosure statement, the proof
    of service, and the accompanying documents required by Rule
    5(b)(1)(E). An original and 3 copies must be filed unless the court
    requires a different number by local rule or by order in a
    particular case.
      (d) Grant of Permission; Fees; Cost Bond; Filing the Record.
        (1) Within 10 days after the entry of the order granting
      permission to appeal, the appellant must:
          (A) pay the district clerk all required fees; and
          (B) file a cost bond if required under Rule 7.

        (2) A notice of appeal need not be filed. The date when the
      order granting permission to appeal is entered serves as the date
      of the notice of appeal for calculating time under these rules.
        (3) The district clerk must notify the circuit clerk once the
      petitioner has paid the fees. Upon receiving this notice, the
      circuit clerk must enter the appeal on the docket. The record
      must be forwarded and filed in accordance with Rules 11 and
      12(c).

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule is derived in the main from Third Circuit Rule 11(2),
    which is similar to the rule governing appeals under 28 U.S.C. Sec.
    1292(b) in a majority of the circuits. The second sentence of
    subdivision (a) resolves a conflict over the question of whether
    the district court can amend an order by supplying the statement
    required by Sec. 1292(b) at any time after entry of the order, with
    the result that the time fixed by the statute commences to run on
    the date of entry of the order as amended. Compare Milbert v. Bison
    Laboratories, 260 F.2d 431 (3d Cir., 1958) with Sperry Rand
    Corporation v. Bell Telephone Laboratories, 272 F.2d (2d Cir.,
    1959), Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir.,
    1961), and Houston Fearless Corporation v. Teter, 313 F.2d 91 (10th
    Cir., 1962). The view taken by the Second, Fifth and Tenth Circuits
    seems theoretically and practically sound, and the rule adopts it.
    Although a majority of the circuits now require the filing of a
    notice of appeal following the grant of permission to appeal,
    filing of the notice serves no function other than to provide a
    time from which the time for transmitting the record and docketing
    the appeal begins to run.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment adapts to the practice in appeals from
    interlocutory orders under 28 U.S.C. Sec. 1292(b) the provisions of
    proposed Rule 3(e) above, requiring payment of all fees in the
    district court upon the filing of the notice of appeal. See Note to
    proposed amended Rule 3(e), supra.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (c). The amendment makes it clear that a court may
    require a different number of copies either by rule or by order in
    an individual case. The number of copies of any document that a
    court of appeals needs varies depending upon the way in which the
    court conducts business. The internal operation of the courts of
    appeals necessarily varies from circuit to circuit because of
    differences in the number of judges, the geographic area included
    within the circuit, and other such factors. Uniformity could be
    achieved only by setting the number of copies artificially high so
    that parties in all circuits file enough copies to satisfy the
    needs of the court requiring the greatest number. Rather than do
    that, the Committee decided to make it clear that local rules may
    require a greater or lesser number of copies and that, if the
    circumstances of a particular case indicate the need for a
    different number of copies in that case, the court may so order.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      In 1992 Congress added subsection (e) to 28 U.S.C. Sec. 1292.
    Subsection (e) says that the Supreme Court has power to prescribe
    rules that "provide for an appeal of an interlocutory decision to
    the courts of appeals that is not otherwise provided for" in
    section 1292. The amendment of Rule 5 was prompted by the
    possibility of new rules authorizing additional interlocutory
    appeals. Rather than add a separate rule governing each such
    appeal, the Committee believes it is preferable to amend Rule 5 so
    that is will govern all such appeals.
      In addition the Federal Courts Improvement Act of 1996, Pub. L.
    104-317, abolished appeals by permission under 28 U.S.C. Sec.
    636(c)(5), making Rule 5.1 obsolete.
      This new Rule 5 is intended to govern all discretionary appeals
    from district-court orders, judgments, or decrees. At this time
    that includes interlocutory appeals under 28 U.S.C. Sec. 1292(b),
    (c)(1), and (d)(1) & (2). If additional interlocutory appeals are
    authorized under Sec. 1292(e), the new Rule is intended to govern
    them if the appeals are discretionary.
      Subdivision (a). Paragraph (a)(1) says that when granting an
    appeal is within a court of appeals' discretion, a party may file a
    petition for permission to appeal. The time for filing provision
    states only that the petition must be filed within the time
    provided in the statute or rule authorizing the appeal or, if no
    such time is specified, within the time provided by Rule 4(a) for
    filing a notice of appeal.
      Section 1292(b), (c), and (d) provide that the petition must be
    filed within 10 days after entry of the order containing the
    statement prescribed in the statute. Existing Rule 5(a) provides
    that if a district court amends an order to contain the prescribed
    statement, the petition must be filed within 10 days after entry of
    the amended order. The new rule similarly says that if a party
    cannot petition without the district court's permission or
    statement that necessary circumstances are present, the district
    court may amend its order to include such a statement and the time
    to petition runs from the entry of the amended order.
      The provision that the Rule 4(a) time for filing a notice of
    appeal should apply if the statute or rule is silent about the
    filing time was drawn from existing Rule 5.1.
      Subdivision (b). The changes made in the provisions in paragraph
    (b)(1) are intended only to broaden them sufficiently to make them
    appropriate for all discretionary appeals.
      In paragraph (b)(2) a uniform time - 7 days - is established for
    filing an answer in opposition or cross-petition. Seven days is the
    time for responding under existing Rule 5 and is an appropriate
    length of time when dealing with an interlocutory appeal. Although
    existing Rule 5.1 provides 14 days for responding, the Committee
    does not believe that the longer response time is necessary.
      Subdivision (c). Subdivision (c) is substantively unchanged.
      Subdivision (d). Paragraph (d)(2) is amended to state that "the
    date when the order granting permission to appeal is entered serves
    as the date of the notice of appeal" for purposes of calculating
    time under the rules. That language simply clarifies existing
    practice.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (c). A petition for permission to appeal, a
    cross-petition for permission to appeal, and an answer to a
    petition or cross-petition for permission to appeal are all "other
    papers" for purposes of Rule 32(c)(2), and all of the requirements
    of Rule 32(a) apply to those papers, except as provided in Rule
    32(c)(2). During the 1998 restyling of the Federal Rules of
    Appellate Procedure, Rule 5(c) was inadvertently changed to suggest
    that only the requirements of Rule 32(a)(1) apply to such papers.
    Rule 5(c) has been amended to correct that error.
      Rule 5(c) has been further amended to limit the length of papers
    filed under Rule 5.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 5.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    [Rule 5.1. Appeal by Leave under 28 U.S.C. Sec. 636(c)(5)]
      (Abrogated Apr. 24, 1998, eff. Dec. 1, 1998)


-STATUTE-

-MISC1-
                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The Federal Courts Improvement Act of 1996, Pub. L. No. 104-317,
    abolished appeals by permission under 28 U.S.C. Sec. 636(c)(5),
    making Rule 5.1 obsolete. Rule 5.1 is, therefore, abrogated.

-End-



-CITE-
    28 USC APPENDIX Rule 6                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 6. Appeal in a Bankruptcy Case from a Final Judgment, Order,
      or Decree of a District Court or Bankruptcy Appellate Panel

-STATUTE-
      (a) Appeal From a Judgment, Order, or Decree of a District Court
    Exercising Original Jurisdiction in a Bankruptcy Case. An appeal to
    a court of appeals from a final judgment, order, or decree of a
    district court exercising jurisdiction under 28 U.S.C. Sec. 1334 is
    taken as any other civil appeal under these rules.
      (b) Appeal From a Judgment, Order, or Decree of a District Court
    or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in
    a Bankruptcy Case.
        (1) Applicability of Other Rules. These rules apply to an
      appeal to a court of appeals under 28 U.S.C. Sec. 158(d) from a
      final judgment, order, or decree of a district court or
      bankruptcy appellate panel exercising appellate jurisdiction
      under 28 U.S.C. Sec. 158(a) or (b). But there are 3 exceptions:
          (A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13-20, 22-23, and
        24(b) do not apply;
          (B) the reference in Rule 3(c) to "Form 1 in the Appendix of
        Forms" must be read as a reference to Form 5; and
          (C) when the appeal is from a bankruptcy appellate panel, the
        term "district court," as used in any applicable rule, means
        "appellate panel."

        (2) Additional Rules. In addition to the rules made applicable
      by Rule 6(b)(1), the following rules apply:
          (A) Motion for rehearing.
            (i) If a timely motion for rehearing under Bankruptcy Rule
          8015 is filed, the time to appeal for all parties runs from
          the entry of the order disposing of the motion. A notice of
          appeal filed after the district court or bankruptcy appellate
          panel announces or enters a judgment, order, or decree - but
          before disposition of the motion for rehearing - becomes
          effective when the order disposing of the motion for
          rehearing is entered.
            (ii) Appellate review of the order disposing of the motion
          requires the party, in compliance with Rules 3(c) and
          6(b)(1)(B), to amend a previously filed notice of appeal. A
          party intending to challenge an altered or amended judgment,
          order, or decree must file a notice of appeal or amended
          notice of appeal within the time prescribed by Rule 4 -
          excluding Rules 4(a)(4) and 4(b) - measured from the entry of
          the order disposing of the motion.
            (iii) No additional fee is required to file an amended
          notice.

          (B) The record on appeal.
            (i) Within 10 days after filing the notice of appeal, the
          appellant must file with the clerk possessing the record
          assembled in accordance with Bankruptcy Rule 8006 - and serve
          on the appellee - a statement of the issues to be presented
          on appeal and a designation of the record to be certified and
          sent to the circuit clerk.
            (ii) An appellee who believes that other parts of the
          record are necessary must, within 10 days after being served
          with the appellant's designation, file with the clerk and
          serve on the appellant a designation of additional parts to
          be included.
            (iii) The record on appeal consists of:
              -- the redesignated record as provided above;
              -- the proceedings in the district court or bankruptcy
            appellate panel; and
              -- a certified copy of the docket entries prepared by the
            clerk under Rule 3(d).

          (C) Forwarding the record.
            (i) When the record is complete, the district clerk or
          bankruptcy appellate panel clerk must number the documents
          constituting the record and send them promptly to the circuit
          clerk together with a list of the documents correspondingly
          numbered and reasonably identified. Unless directed to do so
          by a party or the circuit clerk, the clerk will not send to
          the court of appeals documents of unusual bulk or weight,
          physical exhibits other than documents, or other parts of the
          record designated for omission by local rule of the court of
          appeals. If the exhibits are unusually bulky or heavy, a
          party must arrange with the clerks in advance for their
          transportation and receipt.
            (ii) All parties must do whatever else is necessary to
          enable the clerk to assemble and forward the record. The
          court of appeals may provide by rule or order that a
          certified copy of the docket entries be sent in place of the
          redesignated record, but any party may request at any time
          during the pendency of the appeal that the redesignated
          record be sent.

          (D) Filing the record. Upon receiving the record - or a
        certified copy of the docket entries sent in place of the
        redesignated record - the circuit clerk must file it and
        immediately notify all parties of the filing date.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
    Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule is substantially a restatement of present procedure.
    See D.C. Cir. Rule 34; 6th Cir. Rule 11; 7th Cir. Rule 10(d); 10th
    Cir. Rule 13.
      Present circuit rules commonly provide that the petition for
    allowance of an appeal shall be filed within the time allowed by
    Section 25 of the Bankruptcy Act for taking appeals of right. For
    the reasons explained in the Note accompanying Rule 4, that rule
    makes the time for appeal in bankruptcy cases the same as that
    which obtains in other civil cases and thus supersedes Section 25.
    Thus the present rule simply continues the former practice of
    making the time for filing the petition in appeals by allowance the
    same as that provided for filing the notice of appeal in appeals of
    right.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment adapts to the practice in appeals by
    allowance in bankruptcy proceedings the provisions of proposed Rule
    3(e) above, requiring payment of all fees in the district court at
    the time of the filing of the notice of appeal. See Note to Rule
    3(e), supra.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT       
      A new Rule 6 is proposed. The Bankruptcy Reform Act of 1978, Pub.
    L. No. 95-598, 92 Stat. 2549, the Supreme Court decision in
    Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458
    U.S. 50 (1982), and the Bankruptcy Amendments and Federal Judgeship
    Act of 1984, Pub. L. No. 98-353, 98 Stat. 333, have made the
    existing Rule 6 obsolete.
      Subdivision (a). Subdivision (a) provides that when a district
    court exercises original jurisdiction in a bankruptcy matter,
    rather than referring it to a bankruptcy judge for a final
    determination, the appeal should be taken in identical fashion as
    appeals from district court decisions in other civil actions. A
    district court exercises original jurisdiction and this subdivision
    applies when the district court enters a final order or judgment
    upon consideration of a bankruptcy judge's proposed findings of
    fact and conclusions of law in a non-core proceeding pursuant to 28
    U.S.C. Sec. 157(c)(1) or when a district court withdraws a
    proceeding pursuant to 28 U.S.C. Sec. 157(d). This subdivision is
    included to avoid uncertainty arising from the question of whether
    a bankruptcy case is a civil case. The rules refer at various
    points to the procedure "in a civil case", see, e.g. Rule 4(a)(1).
    Subdivision (a) makes it clear that such rules apply to an appeal
    from a district court bankruptcy decision.
      Subdivision (b). Subdivision (b) governs appeals that follow
    intermediate review of a bankruptcy judge's decision by a district
    court or a bankruptcy appellate panel.
      Subdivision (b)(1). Subdivision (b)(1) provides for the general
    applicability of the Federal Rules of Appellate Procedure, with
    specified exceptions, to appeals covered by subdivision (b) and
    makes necessary word adjustments.
      Subdivision (b)(2). Paragraph (i) provides that the time for
    filing a notice of appeal shall begin to run anew from the entry of
    an order denying a rehearing or from the entry of a subsequent
    judgment. The Committee deliberately omitted from the rule any
    provision governing the validity of a notice of appeal filed prior
    to the entry of an order denying a rehearing; the Committee
    intended to leave undisturbed the current state of the law on that
    issue. Paragraph (ii) calls for a redesignation of the appellate
    record assembled in the bankruptcy court pursuant to Rule 8006 of
    the Rules of Bankruptcy Procedure. After an intermediate appeal, a
    party may well narrow the focus of its efforts on the second appeal
    and a redesignation of the record may eliminate unnecessary
    material. The proceedings during the first appeal are included to
    cover the possibility that independent error in the intermediate
    appeal, for example failure to follow appropriate procedures, may
    be assigned in the court of appeals. Paragraph (iii) provides for
    the transmission of the record and tracks the appropriate
    subsections of Rule 11. Paragraph (iv) provides for the filing of
    the record and notices to the parties. Paragraph (ii) and Paragraph
    (iv) both refer to "a certified copy of the docket entries". The
    "docket entries" referred to are the docket entries in the district
    court or the bankruptcy appellate panel, not the entire docket in
    the bankruptcy court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Note to Subparagraph (b)(2)(i). The amendment accompanies
    concurrent changes to Rule 4(a)(4). Although Rule 6 never included
    language such as that being changed in Rule 4(a)(4), language that
    made a notice of appeal void if it was filed before, or during the
    pendency of, certain posttrial motions, courts have found that a
    notice of appeal is premature if it is filed before the court
    disposes of a motion for rehearing. See, e.g., In re X-Cel, Inc.,
    823 F.2d 192 (7th Cir. 1987); In re Shah, 859 F.2d 1463 (10th Cir.
    1988). The Committee wants to achieve the same result here as in
    Rule 4, the elimination of a procedural trap.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.
      Subdivision (b). Language is added to Rule 6(b)(2)(A)(ii) to
    conform with the corresponding provision in Rule 4(a)(4). The new
    language is clarifying rather than substantive. The existing rule
    states that a party intending to challenge an alteration or
    amendment of a judgment must file an amended notice of appeal. Of
    course if a party has not previously filed a notice of appeal, the
    party would simply file a notice of appeal not an amended one. The
    new language states that the party must file "a notice of appeal or
    amended notice of appeal."

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Bankruptcy Rules, referred to in subd. (b)(2)(A)(i), (B)(i),
    are set out in the Appendix to Title 11, Bankruptcy.

-End-



-CITE-
    28 USC APPENDIX Rule 7                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 7. Bond for Costs on Appeal in a Civil Case

-STATUTE-
      In a civil case, the district court may require an appellant to
    file a bond or provide other security in any form and amount
    necessary to ensure payment of costs on appeal. Rule 8(b) applies
    to a surety on a bond given under this rule.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule is derived from FRCP 73(c) without change in substance.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The amendment would eliminate the provision of the present rule
    that requires the appellant to file a $250 bond for costs on appeal
    at the time of filing his notice of appeal. The $250 provision was
    carried forward in the F.R.App.P. from former Rule 73(c) of the
    F.R.Civ.P., and the $250 figure has remained unchanged since the
    adoption of that rule in 1937. Today it bears no relationship to
    actual costs. The amended rule would leave the question of the need
    for a bond for costs and its amount in the discretion of the court.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 8                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 8. Stay or Injunction Pending Appeal

-STATUTE-
      (a) Motion for Stay.
        (1) Initial Motion in the District Court. A party must
      ordinarily move first in the district court for the following
      relief:
          (A) a stay of the judgment or order of a district court
        pending appeal;
          (B) approval of a supersedeas bond; or
          (C) an order suspending, modifying, restoring, or granting an
        injunction while an appeal is pending.

        (2) Motion in the Court of Appeals; Conditions on Relief. A
      motion for the relief mentioned in Rule 8(a)(1) may be made to
      the court of appeals or to one of its judges.
          (A) The motion must:
            (i) show that moving first in the district court would be
          impracticable; or
            (ii) state that, a motion having been made, the district
          court denied the motion or failed to afford the relief
          requested and state any reasons given by the district court
          for its action.

          (B) The motion must also include:
            (i) the reasons for granting the relief requested and the
          facts relied on;
            (ii) originals or copies of affidavits or other sworn
          statements supporting facts subject to dispute; and
            (iii) relevant parts of the record.

          (C) The moving party must give reasonable notice of the
        motion to all parties.
          (D) A motion under this Rule 8(a)(2) must be filed with the
        circuit clerk and normally will be considered by a panel of the
        court. But in an exceptional case in which time requirements
        make that procedure impracticable, the motion may be made to
        and considered by a single judge.
          (E) The court may condition relief on a party's filing a bond
        or other appropriate security in the district court.

      (b) Proceeding Against a Surety. If a party gives security in the
    form of a bond or stipulation or other undertaking with one or more
    sureties, each surety submits to the jurisdiction of the district
    court and irrevocably appoints the district clerk as the surety's
    agent on whom any papers affecting the surety's liability on the
    bond or undertaking may be served. On motion, a surety's liability
    may be enforced in the district court without the necessity of an
    independent action. The motion and any notice that the district
    court prescribes may be served on the district clerk, who must
    promptly mail a copy to each surety whose address is known.
      (c) Stay in a Criminal Case. Rule 38 of the Federal Rules of
    Criminal Procedure governs a stay in a criminal case.

-SOURCE-
    (As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 27, 1995, eff.
    Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). While the power of a court of appeals to stay
    proceedings in the district court during the pendency of an appeal
    is not explicitly conferred by statute, it exists by virtue of the
    all writs statute, 28 U.S.C. Sec. 1651. Eastern Greyhound Lines v.
    Fusco, 310 F.2d 632 (6th Cir., 1962); United States v. Lynd, 301
    F.2d 818 (5th Cir., 1962); Public Utilities Commission of Dist. of
    Col. v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242
    (1954). And the Supreme Court has termed the power "inherent" (In
    re McKenzie, 180 U.S. 536, 551, 21 S.Ct. 468, 45 L.Ed. 657 (1901))
    and "part of its (the court of appeals) traditional equipment for
    the administration of justice." (Scripps-Howard Radio v. F.C.C.,
    316 U.S. 4, 9-10, 62 S.Ct. 875, 86 L.Ed. 1229 (1942)). The power of
    a single judge of the court of appeals to grant a stay pending
    appeal was recognized in In re McKenzie, supra. Alexander v. United
    States, 173 F.2d 865 (9th Cir., 1949) held that a single judge
    could not stay the judgment of a district court, but it noted the
    absence of a rule of court authorizing the practice. FRCP 62(g)
    adverts to the grant of a stay by a single judge of the appellate
    court. The requirement that application be first made to the
    district court is the case law rule. Cumberland Tel. & Tel. Co. v.
    Louisiana Public Service Commission, 260 U.S. 212, 219, 43 S.Ct.
    75, 67 L.Ed. 217 (1922); United States v. El-O-Pathic Pharmacy, 192
    F.2d 62 (9th Cir., 1951); United States v. Hansell, 109 F.2d 613
    (2d Cir., 1940). The requirement is explicitly stated in FRCrP
    38(c) and in the rules of the First, Third, Fourth and Tenth
    Circuits. See also Supreme Court Rules 18 and 27.
      The statement of the requirement in the proposed rule would work
    a minor change in present practice. FRCP 73(e) requires that if a
    bond for costs on appeal or a supersedeas bond is offered after the
    appeal is docketed, leave to file the bond must be obtained from
    the court of appeals. There appears to be no reason why matters
    relating to supersedeas and cost bonds should not be initially
    presented to the district court whenever they arise prior to the
    disposition of the appeal. The requirement of FRCP 73(e) appears to
    be a concession to the view that once an appeal is perfected, the
    district court loses all power over its judgment. See In re Federal
    Facilities Trust, 227 F.2d 651 (7th Cir., 1955) and cases - cited
    at 654-655. No reason appears why all questions related to
    supersedeas or the bond for costs on appeal should not be presented
    in the first instance to the district court in the ordinary case.
      Subdivision (b). The provisions respecting a surety upon a bond
    or other undertaking are based upon FRCP 65.1.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rule 8(b) are technical. No substantive change
    is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      Subdivision (c). The amendment conforms subdivision (c) to
    previous amendments to Fed. R. Crim. P. 38. This amendment strikes
    the reference to subdivision (a) of Fed. R. Crim. P. 38 so that
    Fed. R. App. P. 8(c) refers instead to all of Criminal Rule 38.
    When Rule 8(c) was adopted Fed. R. Crim. P. 38(a) included the
    procedures for obtaining a stay of execution when the sentence in
    question was death, imprisonment, a fine, or probation. Criminal
    Rule 38 was later amended and now addresses those topics in
    separate subdivisions. Subdivision 38(a) now addresses only stays
    of death sentences. The proper cross reference is to all of
    Criminal Rule 38.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Rule 38 of the Federal Rules of Criminal Procedure, referred to
    in subd. (c), are set out in the Appendix to Title 18, Crimes and
    Criminal Procedure.

-End-



-CITE-
    28 USC APPENDIX Rule 9                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 9. Release in a Criminal Case

-STATUTE-
      (a) Release Before Judgment of Conviction.
        (1) The district court must state in writing, or orally on the
      record, the reasons for an order regarding the release or
      detention of a defendant in a criminal case. A party appealing
      from the order must file with the court of appeals a copy of the
      district court's order and the court's statement of reasons as
      soon as practicable after filing the notice of appeal. An
      appellant who questions the factual basis for the district
      court's order must file a transcript of the release proceedings
      or an explanation of why a transcript was not obtained.
        (2) After reasonable notice to the appellee, the court of
      appeals must promptly determine the appeal on the basis of the
      papers, affidavits, and parts of the record that the parties
      present or the court requires. Unless the court so orders, briefs
      need not be filed.
        (3) The court of appeals or one of its judges may order the
      defendant's release pending the disposition of the appeal.

      (b) Release After Judgment of Conviction. A party entitled to do
    so may obtain review of a district-court order regarding release
    after a judgment of conviction by filing a notice of appeal from
    that order in the district court, or by filing a motion in the
    court of appeals if the party has already filed a notice of appeal
    from the judgment of conviction. Both the order and the review are
    subject to Rule 9(a). The papers filed by the party seeking review
    must include a copy of the judgment of conviction.
      (c) Criteria for Release. The court must make its decision
    regarding release in accordance with the applicable provisions of
    18 U.S.C. Secs. 3142, 3143, and 3145(c).

-SOURCE-
    (As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98-473, title
    II, Sec. 210, Oct. 12, 1984, 98 Stat. 1987; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). The appealability of release orders entered
    prior to a judgment of conviction is determined by the provisions
    of 18 U.S.C. Sec. 3147, as qualified by 18 U.S.C. Sec. 3148, and by
    the rule announced in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96
    L.Ed. 3 (1951), holding certain orders respecting release
    appealable as final orders under 28 U.S.C. Sec. 1291. The language
    of the rule, "(an)n appeal authorized by law from an order refusing
    or imposing conditions of release," is intentionally broader than
    that used in 18 U.S.C. Sec. 3147 in describing orders made
    appealable by that section. The summary procedure ordained by the
    rule is intended to apply to all appeals from orders respecting
    release, and it would appear that at least some orders not made
    appealable by 18 U.S.C. Sec. 3147 are nevertheless appealable under
    the Stack v. Boyle rationale. See, for example, United States v.
    Foster, 278 F.2d 567 (2d Cir., 1960), holding appealable an order
    refusing to extend bail limits. Note also the provisions of 18
    U.S.C. Sec. 3148, which after withdrawing from persons charged with
    an offense punishable by death and from those who have been
    convicted of an offense the right of appeal granted by 18 U.S.C.
    Sec. 3147, expressly preserves "other rights to judicial review of
    conditions of release or orders of detention."
      The purpose of the subdivision is to insure the expeditious
    determination of appeals respecting release orders, an expedition
    commanded by 18 U.S.C. Sec. 3147 and by the Court in Stack v.
    Boyle, supra. It permits such appeals to be heard on an informal
    record without the necessity of briefs and on reasonable notice.
    Equally important to the just and speedy disposition of these
    appeals is the requirement that the district court state the
    reasons for its decision. See Jones v. United States, 358 F.2d 543
    (D.C. Cir., 1966); Rhodes v. United States, 275 F.2d 78 (4th Cir.,
    1960); United States v. Williams, 253 F.2d 144 (7th Cir., 1958).
      Subdivision (b). This subdivision regulates procedure for review
    of an order respecting release at a time when the jurisdiction of
    the court of appeals has already attached by virtue of an appeal
    from the judgment of conviction. Notwithstanding the fact that
    jurisdiction has passed to the court of appeals, both 18 U.S.C.
    Sec. 3148 and FRCrP 38(c) contemplate that the initial
    determination of whether a convicted defendant is to be released
    pending the appeal is to be made by the district court. But at this
    point there is obviously no need for a separate appeal from the
    order of the district court respecting release. The court of
    appeals or a judge thereof has power to effect release on motion as
    an incident to the pending appeal. See FRCrP 38(c) and 46(a)(2).
    But the motion is functionally identical with the appeal regulated
    by subdivision (a) and requires the same speedy determination if
    relief is to be effective. Hence the similarity of the procedure
    outlined in the two subdivisions.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT       
      Subdivision (c) is intended to bring the rule into conformity
    with 18 U.S.C. Sec. 3148 and to allocate to the defendant the
    burden of establishing that he will not flee and that he poses no
    danger to any other person or to the community. The burden is
    placed upon the defendant in the view that the fact of his
    conviction justifies retention in custody in situations where doubt
    exists as to whether he can be safely released pending disposition
    of his appeal. Release pending appeal may also be denied if "it
    appears that an appeal is frivolous or taken for delay." 18 U.S.C.
    Sec. 3148. The burden of establishing the existence of these
    criteria remains with the government.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Rule 9 has been entirely rewritten. The basic structure of the
    rule has been retained. Subdivision (a) governs appeals from bail
    decisions made before the judgment of conviction is entered at the
    time of sentencing. Subdivision (b) governs review of bail
    decisions made after sentencing and pending appeal.
      Subdivision (a). The subdivision applies to appeals from "an
    order regarding release or detention" of a criminal defendant
    before judgment of conviction, i.e., before sentencing. See
    Fed.R.Crim.P. 32. The old rule applied only to a defendant's appeal
    from an order "refusing or imposing conditions of release." The new
    broader language is needed because the government is now permitted
    to appeal bail decisions in certain circumstances. 18 U.S.C. Secs.
    3145 and 3731. For the same reason, the rule now requires a
    district court to state reasons for its decision in all instances,
    not only when it refuses release or imposes conditions on release.
      The rule requires a party appealing from a district court's
    decision to supply the court of appeals with a copy of the district
    court's order and its statement of reasons. In addition, an
    appellant who questions the factual basis for the district court's
    decision must file a transcript of the release proceedings, if
    possible. The rule also permits a court to require additional
    papers. A court must act promptly to decide these appeals; lack of
    pertinent information can cause delays. The old rule left the
    determination of what should be filed entirely within the party's
    discretion; it stated that the court of appeals would hear the
    appeal "upon such papers, affidavits, and portions of the record as
    the parties shall present."
      Subdivision (b). This subdivision applies to review of a district
    court's decision regarding release made after judgment of
    conviction. As in subdivision (a), the language has been changed to
    accommodate the government's ability to seek review.
      The word "review" is used in this subdivision, rather than
    "appeal" because review may be obtained, in some instances, upon
    motion. Review may be obtained by motion if the party has already
    filed a notice of appeal from the judgment of conviction. If the
    party desiring review of the release decision has not filed such a
    notice of appeal, review may be obtained only by filing a notice of
    appeal from the order regarding release.
      The requirements of subdivision (a) apply to both the order and
    the review. That is, the district court must state its reasons for
    the order. The party seeking review must supply the court of
    appeals with the same information required by subdivision (a). In
    addition, the party seeking review must also supply the court with
    information about the conviction and the sentence.
      Subdivision (c). This subdivision has been amended to include
    references to the correct statutory provisions.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

                          AMENDMENT BY PUBLIC LAW                      
      1984 - Subd. (c). Pub. L. 98-473 substituted "3143" for "3148"
    and inserted "and that the appeal is not for purpose of delay and
    raises a substantial question of law or fact likely to result in
    reversal or in an order for a new trial" after "community".

-End-



-CITE-
    28 USC APPENDIX Rule 10                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 10. The Record on Appeal

-STATUTE-
      (a) Composition of the Record on Appeal. The following items
    constitute the record on appeal:
        (1) the original papers and exhibits filed in the district
      court;
        (2) the transcript of proceedings, if any; and
        (3) a certified copy of the docket entries prepared by the
      district clerk.

      (b) The Transcript of Proceedings.
        (1) Appellant's Duty to Order. Within 10 days after filing the
      notice of appeal or entry of an order disposing of the last
      timely remaining motion of a type specified in Rule 4(a)(4)(A),
      whichever is later, the appellant must do either of the
      following:
          (A) order from the reporter a transcript of such parts of the
        proceedings not already on file as the appellant considers
        necessary, subject to a local rule of the court of appeals and
        with the following qualifications:
            (i) the order must be in writing;
            (ii) if the cost of the transcript is to be paid by the
          United States under the Criminal Justice Act, the order must
          so state; and
            (iii) the appellant must, within the same period, file a
          copy of the order with the district clerk; or

          (B) file a certificate stating that no transcript will be
        ordered.

        (2) Unsupported Finding or Conclusion. If the appellant intends
      to urge on appeal that a finding or conclusion is unsupported by
      the evidence or is contrary to the evidence, the appellant must
      include in the record a transcript of all evidence relevant to
      that finding or conclusion.
        (3) Partial Transcript. Unless the entire transcript is
      ordered:
          (A) the appellant must - within the 10 days provided in Rule
        10(b)(1) - file a statement of the issues that the appellant
        intends to present on the appeal and must serve on the appellee
        a copy of both the order or certificate and the statement;
          (B) if the appellee considers it necessary to have a
        transcript of other parts of the proceedings, the appellee
        must, within 10 days after the service of the order or
        certificate and the statement of the issues, file and serve on
        the appellant a designation of additional parts to be ordered;
        and
          (C) unless within 10 days after service of that designation
        the appellant has ordered all such parts, and has so notified
        the appellee, the appellee may within the following 10 days
        either order the parts or move in the district court for an
        order requiring the appellant to do so.

        (4) Payment. At the time of ordering, a party must make
      satisfactory arrangements with the reporter for paying the cost
      of the transcript.

      (c) Statement of the Evidence When the Proceedings Were Not
    Recorded or When a Transcript Is Unavailable. If the transcript of
    a hearing or trial is unavailable, the appellant may prepare a
    statement of the evidence or proceedings from the best available
    means, including the appellant's recollection. The statement must
    be served on the appellee, who may serve objections or proposed
    amendments within 10 days after being served. The statement and any
    objections or proposed amendments must then be submitted to the
    district court for settlement and approval. As settled and
    approved, the statement must be included by the district clerk in
    the record on appeal.
      (d) Agreed Statement as the Record on Appeal. In place of the
    record on appeal as defined in Rule 10(a), the parties may prepare,
    sign, and submit to the district court a statement of the case
    showing how the issues presented by the appeal arose and were
    decided in the district court. The statement must set forth only
    those facts averred and proved or sought to be proved that are
    essential to the courts resolution of the issues. If the statement
    is truthful, it - together with any additions that the district
    court may consider necessary to a full presentation of the issues
    on appeal - must be approved by the district court and must then be
    certified to the court of appeals as the record on appeal. The
    district clerk must then send it to the circuit clerk within the
    time provided by Rule 11. A copy of the agreed statement may be
    filed in place of the appendix required by Rule 30.
      (e) Correction or Modification of the Record.
        (1) If any difference arises about whether the record truly
      discloses what occurred in the district court, the difference
      must be submitted to and settled by that court and the record
      conformed accordingly.
        (2) If anything material to either party is omitted from or
      misstated in the record by error or accident, the omission or
      misstatement may be corrected and a supplemental record may be
      certified and forwarded:
          (A) on stipulation of the parties;
          (B) by the district court before or after the record has been
        forwarded; or
          (C) by the court of appeals.

        (3) All other questions as to the form and content of the
      record must be presented to the court of appeals.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule is derived from FRCP 75(a), (b), (c) and (d) and FRCP
    76, without change in substance.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendments to Rule 10(b) would require the appellant
    to place with the reporter a written order for the transcript of
    proceedings and file a copy with the clerk, and to indicate on the
    order if the transcript is to be provided under the Criminal
    Justice Act. If the appellant does not plan to order a transcript
    of any of the proceedings, he must file a certificate to that
    effect. These requirements make the appellant's steps in readying
    the appeal a matter of record and give the district court notice of
    requests for transcripts at the expense of the United States under
    the Criminal Justice Act. They are also the third step in giving
    the court of appeals some control over the production and
    transmission of the record. See Note to Rules 3(d)(e) above and
    Rule 11 below.
      In the event the appellant orders no transcript, or orders a
    transcript of less than all the proceedings, the procedure under
    the proposed amended rule remains substantially as before. The
    appellant must serve on the appellee a copy of his order or in the
    event no order is placed, of the certificate to that effect, and a
    statement of the issues he intends to present on appeal, and the
    appellee may thereupon designate additional parts of the transcript
    to be included, and upon appellant's refusal to order the
    additional parts, may either order them himself or seek an order
    requiring the appellant to order them. The only change proposed in
    this procedure is to place a 10 day time limit on motions to
    require the appellant to order the additional portions.
      Rule 10(b) is made subject to local rules of the courts of
    appeals in recognition of the practice in some circuits in some
    classes of cases, e. g., appeals by indigents in criminal cases
    after a short trial, of ordering immediate preparation of a
    complete transcript, thus making compliance with the rule
    unnecessary.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 10(b) and (c) are technical. No
    substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      The amendment is technical and no substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      Subdivision (b)(1). The amendment conforms this rule to
    amendments made in Rule 4(a)(4) in 1993. The amendments to Rule
    4(a)(4) provide that certain postjudgment motions have the effect
    of suspending a filed notice of appeal until the disposition of the
    last of such motions. The purpose of this amendment is to suspend
    the 10-day period for ordering a transcript if a timely
    postjudgment motion is made and a notice of appeal is suspended
    under Rule 4(a)(4). The 10-day period set forth in the first
    sentence of this rule begins to run when the order disposing of the
    last of such postjudgment motions outstanding is entered.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Criminal Justice Act, referred to in subd. (b)(1)(A)(ii),
    probably means the Criminal Justice Act of 1964, 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.

-End-



-CITE-
    28 USC APPENDIX Rule 11                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 11. Forwarding the Record

-STATUTE-
      (a) Appellant's Duty. An appellant filing a notice of appeal must
    comply with Rule 10(b) and must do whatever else is necessary to
    enable the clerk to assemble and forward the record. If there are
    multiple appeals from a judgment or order, the clerk must forward a
    single record.
      (b) Duties of Reporter and District Clerk.
        (1) Reporter's Duty to Prepare and File a Transcript. The
      reporter must prepare and file a transcript as follows:
          (A) Upon receiving an order for a transcript, the reporter
        must enter at the foot of the order the date of its receipt and
        the expected completion date and send a copy, so endorsed, to
        the circuit clerk.
          (B) If the transcript cannot be completed within 30 days of
        the reporters receipt of the order, the reporter may request
        the circuit clerk to grant additional time to complete it. The
        clerk must note on the docket the action taken and notify the
        parties.
          (C) When a transcript is complete, the reporter must file it
        with the district clerk and notify the circuit clerk of the
        filing.
          (D) If the reporter fails to file the transcript on time, the
        circuit clerk must notify the district judge and do whatever
        else the court of appeals directs.

        (2) District Clerk's Duty to Forward. When the record is
      complete, the district clerk must number the documents
      constituting the record and send them promptly to the circuit
      clerk together with a list of the documents correspondingly
      numbered and reasonably identified. Unless directed to do so by a
      party or the circuit clerk, the district clerk will not send to
      the court of appeals documents of unusual bulk or weight,
      physical exhibits other than documents, or other parts of the
      record designated for omission by local rule of the court of
      appeals. If the exhibits are unusually bulky or heavy, a party
      must arrange with the clerks in advance for their transportation
      and receipt.

      (c) Retaining the Record Temporarily in the District Court for
    Use in Preparing the Appeal. The parties may stipulate, or the
    district court on motion may order, that the district clerk retain
    the record temporarily for the parties to use in preparing the
    papers on appeal. In that event the district clerk must certify to
    the circuit clerk that the record on appeal is complete. Upon
    receipt of the appellee's brief, or earlier if the court orders or
    the parties agree, the appellant must request the district clerk to
    forward the record.
      (d) [Abrogated.]
      (e) Retaining the Record by Court Order.
        (1) The court of appeals may, by order or local rule, provide
      that a certified copy of the docket entries be forwarded instead
      of the entire record. But a party may at any time during the
      appeal request that designated parts of the record be forwarded.
        (2) The district court may order the record or some part of it
      retained if the court needs it while the appeal is pending,
      subject, however, to call by the court of appeals.
        (3) If part or all of the record is ordered retained, the
      district clerk must send to the court of appeals a copy of the
      order and the docket entries together with the parts of the
      original record allowed by the district court and copies of any
      parts of the record designated by the parties.

      (f) Retaining Parts of the Record in the District Court by
    Stipulation of the Parties. The parties may agree by written
    stipulation filed in the district court that designated parts of
    the record be retained in the district court subject to call by the
    court of appeals or request by a party. The parts of the record so
    designated remain a part of the record on appeal.
      (g) Record for a Preliminary Motion in the Court of Appeals. If,
    before the record is forwarded, a party makes any of the following
    motions in the court of appeals:
        -- for dismissal;
        -- for release;
        -- for a stay pending appeal;
        -- for additional security on the bond on appeal or on a
      supersedeas bond; or
        -- for any other intermediate order - 

    the district clerk must send the court of appeals any parts of the
    record designated by any party.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivisions (a) and (b). These subdivisions are derived from
    FRCP 73(g) and FRCP 75(e). FRCP 75(e) presently directs the clerk
    of the district court to transmit the record within the time
    allowed or fixed for its filing, which, under the provisions of
    FRCP 73(g) is within 40 days from the date of filing the notice of
    appeal, unless an extension is obtained from the district court.
    The precise time at which the record must be transmitted thus
    depends upon the time required for delivery of the record from the
    district court to the court of appeals, since, to permit its timely
    filing, it must reach the court of appeals before expiration of the
    40-day period of an extension thereof. Subdivision (a) of this rule
    provides that the record is to be transmitted within the 40-day
    period, or any extension thereof; subdivision (b) provides that
    transmission is effected when the clerk of the district court mails
    or otherwise forwards the record to the clerk of the court of
    appeals; Rule 12(b) directs the clerk of the court of appeals to
    file the record upon its receipt following timely docketing and
    transmittal. It can thus be determined with certainty precisely
    when the clerk of the district court must forward the record to the
    clerk of the court of appeals in order to effect timely filing: the
    final day of the 40-day period or of any extension thereof.
      Subdivision (c). This subdivision is derived from FRCP 75(e)
    without change of substance.
      Subdivision (d). This subdivision is derived from FRCP 73(g) and
    FRCrP 39(c). Under present rules the district court is empowered to
    extend the time for filing the record and docketing the appeal.
    Since under the proposed rule timely transmission now insures
    timely filing (see note to subdivisions (a) and (b) above) the
    power of the district court is expressed in terms of its power to
    extend the time for transmitting the record. Restriction of that
    power to a period of 90 days after the filing of the notice of
    appeal represents a change in the rule with respect to appeals in
    criminal cases. FRCrP 39(c) now permits the district court to
    extend the time for filing and docketing without restriction. No
    good reason appears for a difference between the civil and criminal
    rule in this regard, and subdivision (d) limits the power of the
    district court to extend the time for transmitting the record in
    all cases to 90 days from the date of filing the notice of appeal,
    just as its power is now limited with respect to docketing and
    filing in civil cases. Subdivision (d) makes explicit the power of
    the court of appeals to permit the record to be filed at any time.
    See Pyramid Motor Freight Corporation v. Ispass, 330, U.S. 695, 67
    S.Ct. 954, 91 L.Ed. 1184 (1947).
      Subdivisions (e), (f) and (g). These subdivisions are derived
    from FRCP 75(f), (a) and (g), respectively, without change of
    substance.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Under present Rule 11(a) it is provided that the record shall be
    transmitted to the court of appeals within 40 days after the filing
    of the notice of appeal. Under present Rule 11(d) the district
    court, on request made during the initial time or any extension
    thereof, and cause shown, may extend the time for the transmission
    of the record to a point not more than 90 days after the filing of
    the first notice of appeal. If the district court is without
    authority to grant a request to extend the time, or denies a
    request for extension, the appellant may make a motion for
    extension of time in the court of appeals. Thus the duty to see
    that the record is transmitted is placed on the appellant. Aside
    from ordering the transcript within the time prescribed the
    appellant has no control over the time at which the record is
    transmitted, since all steps beyond this point are in the hands of
    the reporter and the clerk. The proposed amendments recognize this
    fact and place the duty directly on the reporter and the clerk.
    After receiving the written order for the transcript (See Note to
    Rule 10(b) above), the reporter must acknowledge its receipt,
    indicate when he expects to have it completed, and mail the order
    so endorsed to the clerk of the court of appeals. Requests for
    extensions of time must be made by the reporter to the clerk of the
    court of appeals and action on such requests is entered on the
    docket. Thus from the point at which the transcript is ordered the
    clerk of the court of appeals is made aware of any delays. If the
    transcript is not filed on time, the clerk of the court of appeals
    will notify the district judge.
      Present Rule 11(b) provides that the record shall be transmitted
    when it is "complete for the purposes of the appeal." The proposed
    amended rule continues this requirement. The record is complete for
    the purposes of the appeal when it contains the original papers on
    file in the clerk's office, all necessary exhibits, and the
    transcript, if one is to be included. Cf. present Rule 11(c). The
    original papers will be in the custody of the clerk of the district
    court at the time the notice of appeal is filed. See Rule 5(e) of
    the F.R.C.P. The custody of exhibits is often the subject of local
    rules. Some of them require that documentary exhibits must be
    deposited with the clerk. See Local Rule 13 of the Eastern District
    of Virginia. Others leave exhibits with counsel, subject to order
    of the court. See Local Rule 33 of the Northern District of
    Illinois. If under local rules the custody of exhibits is left with
    counsel, the district court should make adequate provision for
    their preservation during the time during which an appeal may be
    taken, the prompt deposit with the clerk of such as under Rule
    11(b) are to be transmitted to the court of appeals, and the
    availability of others in the event that the court of appeals
    should require their transmission. Cf. Local Rule 11 of the Second
    Circuit.
      Usually the record will be complete with the filing of the
    transcript. While the proposed amendment requires transmission
    "forthwith" when the record is complete, it was not designed to
    preclude a local requirement by the court of appeals that the
    original papers and exhibits be transmitted when complete without
    awaiting the filing of the transcript.
      The proposed amendments continue the provision in the present
    rule that documents of unusual bulk or weight and physical exhibits
    other than documents shall not be transmitted without direction by
    the parties or by the court of appeals, and the requirement that
    the parties make special arrangements for transmission and receipt
    of exhibits of unusual bulk or weight. In addition, they give
    recognition to local rules that make transmission of other record
    items subject to order of the court of appeals. See Local Rule 4 of
    the Seventh Circuit.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rule 11(b) are technical. No substantive change
    is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 12                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-
    Rule 12. Docketing the Appeal; Filing a Representation Statement;
      Filing the Record

-STATUTE-
      (a) Docketing the Appeal. Upon receiving the copy of the notice
    of appeal and the docket entries from the district clerk under Rule
    3(d), the circuit clerk must docket the appeal under the title of
    the district-court action and must identify the appellant, adding
    the appellant's name if necessary.
      (b) Filing a Representation Statement. Unless the court of
    appeals designates another time, the attorney who filed the notice
    of appeal must, within 10 days after filing the notice, file a
    statement with the circuit clerk naming the parties that the
    attorney represents on appeal.
      (c) Filing the Record, Partial Record, or Certificate. Upon
    receiving the record, partial record, or district clerk's
    certificate as provided in Rule 11, the circuit clerk must file it
    and immediately notify all parties of the filing date.

-SOURCE-
    (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). All that is involved in the docketing of an
    appeal is the payment of the docket fee. In practice, after the
    clerk of the court of appeals receives the record from the clerk of
    the district court he notifies the appellant of its receipt and
    requests payment of the fee. Upon receipt of the fee, the clerk
    enters the appeal upon the docket and files the record. The
    appellant is allowed to pay the fee at any time within the time
    allowed or fixed for transmission of the record and thereby to
    discharge his responsibility for docketing. The final sentence is
    added in the interest of facilitating future reference and citation
    and location of cases in indexes. Compare 3d Cir. Rule 10(2); 4th
    Cir. Rule 9(8); 6th Cir. Rule 14(1).
      Subdivision (c). The rules of the circuits generally permit the
    appellee to move for dismissal in the event the appellant fails to
    effect timely filing of the record. See 1st Cir. Rule 21(3); 3d
    Cir. Rule 21(4); 5th Cir. Rule 16(1); 8th Cir. Rule 7(d).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Subdivision (a). Under present Rule 12(a) the appellant must pay
    the docket fee within the time fixed for the transmission of the
    record, and upon timely payment of the fee, the appeal is docketed.
    The proposed amendment takes the docketing out of the hands of the
    appellant. The fee is paid at the time the notice of appeal is
    filed and the appeal is entered on the docket upon receipt of a
    copy of the notice of appeal and of the docket entries, which are
    sent to the court of appeals under the provisions of Rule 3(d).
    This is designed to give the court of appeals control of its docket
    at the earliest possible time so that within the limits of its
    facilities and personnel it can screen cases for appropriately
    different treatment, expedite the proceedings through prehearing
    conferences or otherwise, and in general plan more effectively for
    the prompt disposition of cases.
      Subdivision (b). The proposed amendment conforms the provision to
    the changes in Rule 11.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendment to Rule 12(a) is technical. No substantive change
    is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Note to new subdivision (b). This amendment is a companion to the
    amendment of Rule 3(c). The Rule 3(c) amendment allows an attorney
    who represents more than one party on appeal to "specify" the
    appellants by general description rather than by naming them
    individually. The requirement added here is that whenever an
    attorney files a notice of appeal, the attorney must soon
    thereafter file a statement indicating all parties represented on
    the appeal by that attorney. Although the notice of appeal is the
    jurisdictional document and it must clearly indicate who is
    bringing the appeal, the representation statement will be helpful
    especially to the court of appeals in identifying the individual
    appellants.
      The rule allows a court of appeals to require the filing of the
    representation statement at some time other than specified in the
    rule so that if a court of appeals requires a docketing statement
    or appearance form the representation statement may be combined
    with it.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-


-CITE-
    28 USC APPENDIX TITLE III. REVIEW OF A DECISION
      OF THE UNITED STATES TAX COURT                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-HEAD-
      TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT  

-End-



-CITE-
    28 USC APPENDIX Rule 13                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-HEAD-
    Rule 13. Review of a Decision of the Tax Court

-STATUTE-
      (a) How Obtained; Time for Filing Notice of Appeal.
        (1) Review of a decision of the United States Tax Court is
      commenced by filing a notice of appeal with the Tax Court clerk
      within 90 days after the entry of the Tax Court's decision. At
      the time of filing, the appellant must furnish the clerk with
      enough copies of the notice to enable the clerk to comply with
      Rule 3(d). If one party files a timely notice of appeal, any
      other party may file a notice of appeal within 120 days after the
      Tax Court's decision is entered.
        (2) If, under Tax Court rules, a party makes a timely motion to
      vacate or revise the Tax Court's decision, the time to file a
      notice of appeal runs from the entry of the order disposing of
      the motion or from the entry of a new decision, whichever is
      later.

      (b) Notice of Appeal; How Filed. The notice of appeal may be
    filed either at the Tax Court clerk's office in the District of
    Columbia or by mail addressed to the clerk. If sent by mail the
    notice is considered filed on the postmark date, subject to Sec.
    7502 of the Internal Revenue Code, as amended, and the applicable
    regulations.
      (c) Contents of the Notice of Appeal; Service; Effect of Filing
    and Service. Rule 3 prescribes the contents of a notice of appeal,
    the manner of service, and the effect of its filing and service.
    Form 2 in the Appendix of Forms is a suggested form of a notice of
    appeal.
      (d) The Record on Appeal; Forwarding; Filing.
        (1) An appeal from the Tax Court is governed by the parts of
      Rules 10, 11, and 12 regarding the record on appeal from a
      district court, the time and manner of forwarding and filing, and
      the docketing in the court of appeals. References in those rules
      and in Rule 3 to the district court and district clerk are to be
      read as referring to the Tax Court and its clerk.
        (2) If an appeal from a Tax Court decision is taken to more
      than one court of appeals, the original record must be sent to
      the court named in the first notice of appeal filed. In an appeal
      to any other court of appeals, the appellant must apply to that
      other court to make provision for the record.

-SOURCE-
    (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). This subdivision effects two changes in practice
    respecting review of Tax Court decisions: (1) Section 7483 of the
    Internal Revenue Code, 68A Stat. 891, 26 U.S.C. Sec. 7483, provides
    that review of a Tax Court decision may be obtained by filing a
    petition for review. The subdivision provides for review by the
    filing of the simple and familiar notice of appeal used to obtain
    review of district court judgments; (2) Section 7483, supra,
    requires that a petition for review be filed within 3 months after
    a decision is rendered, and provides that if a petition is so filed
    by one party, any other party may file a petition for review within
    4 months after the decision is rendered. In the interest of fixing
    the time for review with precision, the proposed rule substitutes
    "90 days" and "120 days" for the statutory "3 months" and "4
    months", respectively. The power of the Court to regulate these
    details of practice is clear. Title 28 U.S.C. Sec. 2072, as amended
    by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S. Code Cong. &
    Ad. News, p. 1546 (1966)), authorizes the Court to regulate ". . .
    practice and procedure in proceedings for the review by the courts
    of appeals of decisions of the Tax Court of the United States. . .
    ."
      The second paragraph states the settled teaching of the case law.
    See Robert Louis Stevenson Apartments, Inc. v. C.I.R., 337 F.2d
    681, 10 A.L.R.3d 112 (8th Cir., 1964); Denholm & McKay Co. v.
    C.I.R., 132 F.2d 243 (1st Cir., 1942); Helvering v. Continental Oil
    Co., 63 App.D.C. 5, 68 F.2d 750 (1934); Burnet v. Lexington Ice &
    Coal Co., 62 F.2d 906 (4th Cir., 1933); Griffiths v. C.I.R., 50
    F.2d 782 (7th Cir., 1931).
      Subdivision (b). The subdivision incorporates the statutory
    provision (Title 26, U.S.C. Sec. 7502) that timely mailing is to be
    treated as timely filing. The statute contains special provisions
    respecting other than ordinary mailing. If the notice of appeal is
    sent by registered mail, registration is deemed prima facie
    evidence that the notice was delivered to the clerk of the Tax
    Court, and the date of registration is deemed the postmark date. If
    the notice of appeal is sent by certified mail, the effect of
    certification with respect to prima facie evidence of delivery and
    the postmark date depends upon regulations of the Secretary of the
    Treasury. The effect of a postmark made other than by the United
    States Post Office likewise depends upon regulations of the
    Secretary. Current regulations are found in 26 CFR Sec. 301.7502-1.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment reflects the change in the title of the
    Tax Court to "United States Tax Court." See 26 U.S.C. Sec. 7441.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). The amendment requires a party filing a notice
    of appeal to provide the court with sufficient copies of the notice
    for service on all other parties.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 7502 of the Internal Revenue Code, referred to in subd.
    (b), is classified to section 112 of Title 26, Internal Revenue
    Code.

-End-



-CITE-
    28 USC APPENDIX Rule 14                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-HEAD-
    Rule 14. Applicability of Other Rules to the Review of a Tax Court
      Decision

-STATUTE-
      All provisions of these rules, except Rules 4-9, 15-20, and
    22-23, apply to the review of a Tax Court decision.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The proposed rule continues the present uniform practice of the
    circuits of regulating review of decisions of the Tax Court by the
    general rules applicable to appeals from judgments of the district
    courts.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-


-CITE-
    28 USC APPENDIX TITLE IV. REVIEW OR ENFORCEMENT
      OF AN ORDER OF AN ADMINISTRATIVE AGENCY,
      BOARD, COMMISSION, OR OFFICER                        01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
     TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
                   AGENCY, BOARD, COMMISSION, OR OFFICER

-End-



-CITE-
    28 USC APPENDIX Rule 15                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 15. Review or Enforcement of an Agency Order - How Obtained;
      Intervention

-STATUTE-
      (a) Petition for Review; Joint Petition.
        (1) Review of an agency order is commenced by filing, within
      the time prescribed by law, a petition for review with the clerk
      of a court of appeals authorized to review the agency order. If
      their interests make joinder practicable, two or more persons may
      join in a petition to the same court to review the same order.
        (2) The petition must:
          (A) name each party seeking review either in the caption or
        the body of the petition - using such terms as "et al.,"
        "petitioners," or "respondents" does not effectively name the
        parties;
          (B) name the agency as a respondent (even though not named in
        the petition, the United States is a respondent if required by
        statute); and
          (C) specify the order or part thereof to be reviewed.

        (3) Form 3 in the Appendix of Forms is a suggested form of a
      petition for review.
        (4) In this rule "agency" includes an agency, board,
      commission, or officer; "petition for review" includes a petition
      to enjoin, suspend, modify, or otherwise review, or a notice of
      appeal, whichever form is indicated by the applicable statute.

      (b) Application or Cross-Application to Enforce an Order; Answer;
    Default.
        (1) An application to enforce an agency order must be filed
      with the clerk of a court of appeals authorized to enforce the
      order. If a petition is filed to review an agency order that the
      court may enforce, a party opposing the petition may file a
      cross-application for enforcement.
        (2) Within 20 days after the application for enforcement is
      filed, the respondent must serve on the applicant an answer to
      the application and file it with the clerk. If the respondent
      fails to answer in time, the court will enter judgment for the
      relief requested.
        (3) The application must contain a concise statement of the
      proceedings in which the order was entered, the facts upon which
      venue is based, and the relief requested.

      (c) Service of the Petition or Application. The circuit clerk
    must serve a copy of the petition for review, or an application or
    cross-application to enforce an agency order, on each respondent as
    prescribed by Rule 3(d), unless a different manner of service is
    prescribed by statute. At the time of filing, the petitioner must:
        (1) serve, or have served, a copy on each party admitted to
      participate in the agency proceedings, except for the
      respondents;
        (2) file with the clerk a list of those so served; and
        (3) give the clerk enough copies of the petition or application
      to serve each respondent.

      (d) Intervention. Unless a statute provides another method, a
    person who wants to intervene in a proceeding under this rule must
    file a motion for leave to intervene with the circuit clerk and
    serve a copy on all parties. The motion - or other notice of
    intervention authorized by statute - must be filed within 30 days
    after the petition for review is filed and must contain a concise
    statement of the interest of the moving party and the grounds for
    intervention.
      (e) Payment of Fees. When filing any separate or joint petition
    for review in a court of appeals, the petitioner must pay the
    circuit clerk all required fees.

-SOURCE-
    (As amended Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      General Note. The power of the Supreme Court to prescribe rules
    of practice and procedure for the judicial review or enforcement of
    orders of administrative agencies, boards, commissions, and
    officers is conferred by 28 U.S.C. Sec. 2072, as amended by the Act
    of November 6, 1966, Sec. 1, 80 Stat. 1323 (1 U.S. Code Cong. & Ad.
    News, p. 1546 (1966)). Section 11 of the Hobbs Administrative
    Orders Review Act of 1950, 64 Stat. 1132, reenacted as 28 U.S.C.
    Sec. 2352 (28 U.S.C.A. Sec. 2352 (Suppl. 1966)), repealed by the
    Act of November 6, 1966, Sec. 4, supra, directed the courts of
    appeals to adopt and promulgate, subject to approval by the
    Judicial Conference rules governing practice and procedure in
    proceedings to review the orders of boards, commissions and
    officers whose orders were made reviewable in the courts of appeals
    by the Act. Thereafter, the Judicial Conference approved a uniform
    rule, and that rule, with minor variations, is now in effect in all
    circuits. Third Circuit Rule 18 is a typical circuit rule, and for
    convenience it is referred to as the uniform rule in the notes
    which accompany rules under this Title.
      Subdivision (a). The uniform rule (see General Note above)
    requires that the petition for review contain "a concise statement,
    in barest outline, of the nature of the proceedings as to which
    relief is sought, the facts upon which venue is based, the grounds
    upon which relief is sought, and the relief prayed." That language
    is derived from Section 4 of the Hobbs Administrative Orders Review
    Act of 1950, 64 Stat. 1130, reenacted as 28 U.S.C. Sec. 2344 (28
    U.S.C.A. Sec. 2344 (Suppl. 1966)). A few other statutes also
    prescribe the content of the petition, but the great majority are
    silent on the point. The proposed rule supersedes 28 U.S.C. Sec.
    2344 and other statutory provisions prescribing the form of the
    petition for review and permits review to be initiated by the
    filing of a simple petition similar in form to the notice of appeal
    used in appeals from judgments of district courts. The more
    elaborate form of petition for review now required is rarely useful
    either to the litigants or to the courts. There is no effective,
    reasonable way of obliging petitioners to come to the real issues
    before those issues are formulated in the briefs. Other provisions
    of this subdivision are derived from sections 1 and 2 of the
    uniform rule.
      Subdivision (b). This subdivision is derived from sections 3, 4
    and 5 of the uniform rule.
      Subdivision (c). This subdivision is derived from section 1 of
    the uniform rule.
      Subdivision (d). This subdivision is based upon section 6 of the
    uniform rule. Statutes occasionally permit intervention by the
    filing of a notice of intention to intervene. The uniform rule does
    not fix a time limit for intervention, and the only time limits
    fixed by statute are the 30-day periods found in the Communications
    Act Amendments, 1952, Sec. 402(e), 66 Stat. 719, 47 U.S.C. Sec.
    402(e), and the Sugar Act of 1948, Sec. 205(d), 61 Stat. 927, 7
    U.S.C. Sec. 1115(d).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a). The amendment is a companion to the amendment of
    Rule 3(c). Both Rule 3(c) and Rule 15(a) state that a notice of
    appeal or petition for review must name the parties seeking
    appellate review. Rule 3(c), however, provides an attorney who
    represents more than one party on appeal the flexibility to
    describe the parties in general terms rather than naming them
    individually. Rule 15(a) does not allow that flexibility; each
    petitioner must be named. A petition for review of an agency
    decision is the first filing in any court and, therefore, is
    analogous to a complaint in which all parties must be named.
      Subdivision (e). The amendment adds subdivision (e). Subdivision
    (e) parallels Rule 3(e) that requires the payment of fees when
    filing a notice of appeal. The omission of such a requirement from
    Rule 15 is an apparent oversight. Five circuits have local rules
    requiring the payment of such fees, see, e.g., Fifth Cir. Loc. R.
    15.1, and Fed. Cir. Loc. R. 15(a)(2).

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 15.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 15.1. Briefs and Oral Argument in a National Labor Relations
      Board Proceeding

-STATUTE-
      In either an enforcement or a review proceeding, a party adverse
    to the National Labor Relations Board proceeds first on briefing
    and at oral argument, unless the court orders otherwise.

-SOURCE-
    (As added Mar. 10, 1986, eff. July 1, 1986; amended Apr. 24, 1998,
    eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1986            
      This rule simply confirms the existing practice in most circuits.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 16                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 16. The Record on Review or Enforcement

-STATUTE-
      (a) Composition of the Record. The record on review or
    enforcement of an agency order consists of:
        (1) the order involved;
        (2) any findings or report on which it is based; and
        (3) the pleadings, evidence, and other parts of the proceedings
      before the agency.

      (b) Omissions From or Misstatements in the Record. The parties
    may at any time, by stipulation, supply any omission from the
    record or correct a misstatement, or the court may so direct. If
    necessary, the court may direct that a supplemental record be
    prepared and filed.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a) is based upon 28 U.S.C. Sec. 2112(b). There is no
    distinction between the record compiled in the agency proceeding
    and the record on review; they are one and the same. The record in
    agency cases is thus the same as that in appeals from the district
    court - the original papers, transcripts and exhibits in the
    proceeding below. Subdivision (b) is based upon section 8 of the
    uniform rule (see General Note following Rule 15).

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 17                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 17. Filing the Record

-STATUTE-
      (a) Agency to File; Time for Filing; Notice of Filing. The agency
    must file the record with the circuit clerk within 40 days after
    being served with a petition for review, unless the statute
    authorizing review provides otherwise, or within 40 days after it
    files an application for enforcement unless the respondent fails to
    answer or the court orders otherwise. The court may shorten or
    extend the time to file the record. The clerk must notify all
    parties of the date when the record is filed.
      (b) Filing - What Constitutes.
        (1) The agency must file:
          (A) the original or a certified copy of the entire record or
        parts designated by the parties; or
          (B) a certified list adequately describing all documents,
        transcripts of testimony, exhibits, and other material
        constituting the record, or describing those parts designated
        by the parties.

        (2) The parties may stipulate in writing that no record or
      certified list be filed. The date when the stipulation is filed
      with the circuit clerk is treated as the date when the record is
      filed.
        (3) The agency must retain any portion of the record not filed
      with the clerk. All parts of the record retained by the agency
      are a part of the record on review for all purposes and, if the
      court or a party so requests, must be sent to the court
      regardless of any prior stipulation.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). This subdivision is based upon section 7 of the
    uniform rule (see General Note following Rule 15). That rule does
    not prescribe a time for filing the record in enforcement cases.
    Forty days are allowed in order to avoid useless preparation of the
    record or certified list in cases where the application for
    enforcement is not contested.
      Subdivision (b). This subdivision is based upon 28 U.S.C. Sec.
    2112 and section 7 of the uniform rule. It permits the agency to
    file either the record itself or a certified list of its contents.
    It also permits the parties to stipulate against transmission of
    designated parts of the record without the fear that an inadvertent
    stipulation may "diminish" the record. Finally, the parties may, in
    cases where consultation of the record is unnecessary, stipulate
    that neither the record nor a certified list of its contents be
    filed.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; a
    substantive change is made, however, in subdivision (b).
      Subdivision (b). The current rule provides that when a court of
    appeals is asked to review or enforce an agency order, the agency
    must file either "the entire record or such parts thereof as the
    parties may designate by stipulation filed with the agency" or a
    certified list describing the documents, transcripts, exhibits, and
    other material constituting the record. If the agency is not filing
    a certified list, the current rule requires the agency to file the
    entire record unless the parties file a "stipulation" designating
    only parts of the record. Such a "stipulation" presumably requires
    agreement of the parties as to the parts to be filed. The amended
    language in subparagraph (b)(1)(A) permits the agency to file the
    entire record or "parts designated by the parties." The new
    language permits the filing of less than the entire record even
    when the parties do not agree as to which parts should be filed.
    Each party can designate the parts that it wants filed; the agency
    can then forward the parts designated by each party. In contrast,
    paragraph (b)(2) continues to require stipulation, that is
    agreement of the parties, that the agency need not file either the
    record or a certified list.

-End-



-CITE-
    28 USC APPENDIX Rule 18                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 18. Stay Pending Review

-STATUTE-
      (a) Motion for a Stay.
        (1) Initial Motion Before the Agency. A petitioner must
      ordinarily move first before the agency for a stay pending review
      of its decision or order.
        (2) Motion in the Court of Appeals. A motion for a stay may be
      made to the court of appeals or one of its judges.
          (A) The motion must:
            (i) show that moving first before the agency would be
          impracticable; or
            (ii) state that, a motion having been made, the agency
          denied the motion or failed to afford the relief requested
          and state any reasons given by the agency for its action.

          (B) The motion must also include:
            (i) the reasons for granting the relief requested and the
          facts relied on;
            (ii) originals or copies of affidavits or other sworn
          statements supporting facts subject to dispute; and
            (iii) relevant parts of the record.

          (C) The moving party must give reasonable notice of the
        motion to all parties.
          (D) The motion must be filed with the circuit clerk and
        normally will be considered by a panel of the court. But in an
        exceptional case in which time requirements make that procedure
        impracticable, the motion may be made to and considered by a
        single judge.

      (b) Bond. The court may condition relief on the filing of a bond
    or other appropriate security.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      While this rule has no counterpart in present rules regulating
    review of agency proceedings, it merely assimilates the procedure
    for obtaining stays in agency proceedings with that for obtaining
    stays in appeals from the district courts. The same considerations
    which justify the requirement of an initial application to the
    district court for a stay pending appeal support the requirement of
    an initial application to the agency pending review. See Note
    accompanying Rule 8. Title 5, U.S.C. Sec. 705 (5 U.S.C.A. Sec. 705
    (1966 Pamphlet)) confers general authority on both agencies and
    reviewing courts to stay agency action pending review. Many of the
    statutes authorizing review of agency action by the courts of
    appeals deal with the question of stays, and at least one, the Act
    of June 15, 1936, 49 Stat. 1499 (7 U.S.C. Sec. 10a), prohibits a
    stay pending review. The proposed rule in nowise affects such
    statutory provisions respecting stays. By its terms, it simply
    indicates the procedure to be followed when a stay is sought.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 19                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part

-STATUTE-
      When the court files an opinion directing entry of judgment
    enforcing the agency's order in part, the agency must within 14
    days file with the clerk and serve on each other party a proposed
    judgment conforming to the opinion. A party who disagrees with the
    agency's proposed judgment must within 7 days file with the clerk
    and serve the agency with a proposed judgment that the party
    believes conforms to the opinion. The court will settle the
    judgment and direct entry without further hearing or argument.

-SOURCE-
    (As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This is section 12 of the uniform rule (see General Note
    following Rule 15) with changes in phraseology.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The deletion of the words "in whole or" is designed to eliminate
    delay in the issuance of a judgment when the court of appeals has
    either enforced completely the order of an agency or denied
    completely such enforcement. In such a clear-cut situation, it
    serves no useful purpose to delay the issuance of the judgment
    until a proposed judgment is submitted by the agency and reviewed
    by the respondent. This change conforms the Rule to the existing
    practice in most circuits. Other amendments are technical and no
    substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 20                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
      AGENCY, BOARD, COMMISSION, OR OFFICER                   

-HEAD-
    Rule 20. Applicability of Rules to the Review or Enforcement of an
      Agency Order

-STATUTE-
      All provisions of these rules, except Rules 3-14 and 22-23, apply
    to the review or enforcement of an agency order. In these rules,
    "appellant" includes a petitioner or applicant, and "appellee"
    includes a respondent.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The proposed rule continues the present uniform practice of the
    circuits of regulating agency review or enforcement proceedings by
    the general rules applicable to appeals from judgments of the
    district courts.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-


-CITE-
    28 USC APPENDIX TITLE V. EXTRAORDINARY WRITS                01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE V. EXTRAORDINARY WRITS

-HEAD-
                       TITLE V. EXTRAORDINARY WRITS                   

-End-



-CITE-
    28 USC APPENDIX Rule 21                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE V. EXTRAORDINARY WRITS

-HEAD-
    Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary
      Writs

-STATUTE-
      (a) Mandamus or Prohibition to a Court: Petition, Filing,
    Service, and Docketing.
        (1) A party petitioning for a writ of mandamus or prohibition
      directed to a court must file a petition with the circuit clerk
      with proof of service on all parties to the proceeding in the
      trial court. The party must also provide a copy to the
      trial-court judge. All parties to the proceeding in the trial
      court other than the petitioner are respondents for all purposes.
        (2)(A) The petition must be titled "In re [name of
      petitioner]."
        (B) The petition must state:
          (i) the relief sought;
          (ii) the issues presented;
          (iii) the facts necessary to understand the issue presented
        by the petition; and
          (iv) the reasons why the writ should issue.

        (C) The petition must include a copy of any order or opinion or
      parts of the record that may be essential to understand the
      matters set forth in the petition.
        (3) Upon receiving the prescribed docket fee, the clerk must
      docket the petition and submit it to the court.

      (b) Denial; Order Directing Answer; Briefs; Precedence.
        (1) The court may deny the petition without an answer.
      Otherwise, it must order the respondent, if any, to answer within
      a fixed time.
        (2) The clerk must serve the order to respond on all persons
      directed to respond.
        (3) Two or more respondents may answer jointly.
        (4) The court of appeals may invite or order the trial-court
      judge to address the petition or may invite an amicus curiae to
      do so. The trial-court judge may request permission to address
      the petition but may not do so unless invited or ordered to do so
      by the court of appeals.
        (5) If briefing or oral argument is required, the clerk must
      advise the parties, and when appropriate, the trial-court judge
      or amicus curiae.
        (6) The proceeding must be given preference over ordinary civil
      cases.
        (7) The circuit clerk must send a copy of the final disposition
      to the trial-court judge.

      (c) Other Extraordinary Writs. An application for an
    extraordinary writ other than one provided for in Rule 21(a) must
    be made by filing a petition with the circuit clerk with proof of
    service on the respondents. Proceedings on the application must
    conform, so far as is practicable, to the procedures prescribed in
    Rule 21(a) and (b).
      (d) Form of Papers; Number of Copies. All papers must conform to
    Rule 32(c)(2). Except by the court's permission, a paper must not
    exceed 30 pages, exclusive of the disclosure statement, the proof
    of service, and the accompanying documents required by Rule
    21(a)(2)(C). An original and 3 copies must be filed unless the
    court requires the filing of a different number by local rule or by
    order in a particular case.

-SOURCE-
    (As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff.
    Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The authority of courts of appeals to issue extraordinary writs
    is derived from 28 U.S.C. Sec. 1651. Subdivisions (a) and (b)
    regulate in detail the procedure surrounding the writs most
    commonly sought - mandamus or prohibition directed to a judge or
    judges. Those subdivisions are based upon Supreme Court Rule 31,
    with certain changes which reflect the uniform practice among the
    circuits (Seventh Circuit Rule 19 is a typical circuit rule).
    Subdivision (c) sets out a very general procedure to be followed in
    applications for the variety of other writs which may be issued
    under the authority of 28 U.S.C. Sec. 1651.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (d). The amendment makes it clear that a court may
    require a different number of copies either by rule or by order in
    an individual case. The number of copies of any document that a
    court of appeals needs varies depending upon the way in which the
    court conducts business. The internal operation of the courts of
    appeals necessarily varies from circuit to circuit because of
    differences in the number of judges, the geographic area included
    within the circuit, and other such factors. Uniformity could be
    achieved only by setting the number of copies artificially high so
    that parties in all circuits file enough copies to satisfy the
    needs of the court requiring the greatest number. Rather than do
    that, the Committee decided to make it clear that local rules may
    require a greater or lesser number of copies and that, if the
    circumstances of a particular case indicate the need for a
    different number of copies in that case, the court may so order.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT       
      In most instances, a writ of mandamus or prohibition is not
    actually directed to a judge in any more personal way than is an
    order reversing a court's judgment. Most often a petition for a
    writ of mandamus seeks review of the intrinsic merits of a judge's
    action and is in reality an adversary proceeding between the
    parties. See, e.g., Walker v. Columbia Broadcasting System, Inc.,
    443 F.2d 33 (7th Cir. 1971). In order to change the tone of the
    rule and of mandamus proceedings generally, the rule is amended so
    that the judge is not treated as a respondent. The caption and
    subdivision (a) are amended by deleting the reference to the writs
    as being "directed to a judge or judges."
      Subdivision (a). Subdivision (a) applies to writs of mandamus or
    prohibition directed to a court, but it is amended so that a
    petition for a writ of mandamus or prohibition does not bear the
    name of the judge. The amendments to subdivision (a) speak,
    however, about mandamus or prohibition "directed to a court." This
    language is inserted to distinguish subdivision (a) from
    subdivision (c). Subdivision (c) governs all other extraordinary
    writs, including a writ of mandamus or prohibition directed to an
    administrative agency rather than to a court and a writ of habeas
    corpus.
      The amendments require the petitioner to provide a copy of the
    petition to the trial court judge. This will alert the judge to the
    filing of the petition. This is necessary because the trial court
    judge is not treated as a respondent and, as a result, is not
    served. A companion amendment is made in subdivision (b). It
    requires the circuit clerk to send a copy of the disposition of the
    petition to the trial court judge.
      Subdivision (b). The amendment provides that even if relief is
    requested of a particular judge, although the judge may request
    permission to respond, the judge may not do so unless the court
    invites or orders a response.
      The court of appeals ordinarily will be adequately informed not
    only by the opinions or statements made by the trial court judge
    contemporaneously with the entry of the challenged order but also
    by the arguments made on behalf of the party opposing the relief.
    The latter does not create an attorney-client relationship between
    the party's attorney and the judge whose action is challenged, nor
    does it give rise to any right to compensation from the judge.
      If the court of appeals desires to hear from the trial court
    judge, however, the court may invite or order the judge to respond.
    In some instances, especially those involving court administration
    or the failure of a judge to act, it may be that no one other than
    the judge can provide a thorough explanation of the matters at
    issue. Because it is ordinarily undesirable to place the trial
    court judge, even temporarily, in an adversarial posture with a
    litigant, the rule permits a court of appeals to invite an amicus
    curiae to provide a response to the petition. In those instances in
    which the respondent does not oppose issuance of the writ or does
    not have sufficient perspective on the issue to provide an adequate
    response, participation of an amicus may avoid the need for the
    trial judge to participate.
      Subdivision (c). The changes are stylistic only. No substantive
    changes are intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (d). A petition for a writ of mandamus or
    prohibition, an application for another extraordinary writ, and an
    answer to such a petition or application are all "other papers" for
    purposes of Rule 32(c)(2), and all of the requirements of Rule
    32(a) apply to those papers, except as provided in Rule 32(c)(2).
    During the 1998 restyling of the Federal Rules of Appellate
    Procedure, Rule 21(d) was inadvertently changed to suggest that
    only the requirements of Rule 32(a)(1) apply to such papers. Rule
    21(d) has been amended to correct that error.
      Rule 21(d) has been further amended to limit the length of papers
    filed under Rule 21.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note,
    except that the page limit was increased from 20 pages to 30 pages.
    The Committee was persuaded by some commentators that petitions for
    extraordinary writs closely resemble principal briefs on the merits
    and should be allotted more than 20 pages.

-End-


-CITE-
    28 USC APPENDIX TITLE VI. HABEAS CORPUS;
      PROCEEDINGS IN FORMA PAUPERIS                        01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-
          TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS      

-End-



-CITE-
    28 USC APPENDIX Rule 22                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-
    Rule 22. Habeas Corpus and Section 2255 Proceedings

-STATUTE-
      (a) Application for the Original Writ. An application for a writ
    of habeas corpus must be made to the appropriate district court. If
    made to a circuit judge, the application must be transferred to the
    appropriate district court. If a district court denies an
    application made or transferred to it, renewal of the application
    before a circuit judge is not permitted. The applicant may, under
    28 U.S.C. Sec. 2253, appeal to the court of appeals from the
    district court's order denying the application.
      (b) Certificate of Appealability.
        (1) In a habeas corpus proceeding in which the detention
      complained of arises from process issued by a state court, or in
      a 28 U.S.C. Sec. 2255 proceeding, the applicant cannot take an
      appeal unless a circuit justice or a circuit or district judge
      issues a certificate of appealability under 28 U.S.C. Sec.
      2253(c). If an applicant files a notice of appeal, the district
      judge who rendered the judgment must either issue a certificate
      of appealability or state why a certificate should not issue. The
      district clerk must send the certificate or statement to the
      court of appeals with the notice of appeal and the file of the
      district-court proceedings. If the district judge has denied the
      certificate, the applicant may request a circuit judge to issue
      the certificate.
        (2) A request addressed to the court of appeals may be
      considered by a circuit judge or judges, as the court prescribes.
      If no express request for a certificate is filed, the notice of
      appeal constitutes a request addressed to the judges of the court
      of appeals.
        (3) A certificate of appealability is not required when a state
      or its representative or the United States or its representative
      appeals.

-SOURCE-
    (As amended Pub. L. 104-132, title I, Sec. 103, Apr. 24, 1996, 110
    Stat. 1218; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). Title 28 U.S.C. Sec. 2241(a) authorizes circuit
    judges to issue the writ of habeas corpus. Section 2241(b),
    however, authorizes a circuit judge to decline to entertain an
    application and to transfer it to the appropriate district court,
    and this is the usual practice. The first two sentences merely make
    present practice explicit. Title 28 U.S.C. Sec. 2253 seems clearly
    to contemplate that once an application is presented to a district
    judge and is denied by him, the remedy is an appeal from the order
    of denial. But the language of 28 U.S.C. Sec. 2241 seems to
    authorize a second original application to a circuit judge
    following a denial by a district judge. In re Gersing, 79
    U.S.App.D.C. 245, 145 F.2d 481 (D.C. Cir., 1944) and Chapman v.
    Teets, 241 F.2d 186 (9th Cir., 1957) acknowledge the availability
    of such a procedure. But the procedure is ordinarily a waste of
    time for all involved, and the final sentence attempts to
    discourage it.
      A court of appeals has no jurisdiction as a court to grant an
    original writ of habeas corpus, and courts of appeals have
    dismissed applications addressed to them. Loum v. Alvis, 263 F.2d
    836 (6th Cir., 1959); In re Berry, 221 F.2d 798 (9th Cir., 1955);
    Posey v. Dowd, 134 F.2d 613 (7th Cir., 1943). The fairer and more
    expeditious practice is for the court of appeals to regard an
    application addressed to it as being addressed to one of its
    members, and to transfer the application to the appropriate
    district court in accordance with the provisions of this rule.
    Perhaps such a disposition is required by the rationale of In re
    Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956).
      Subdivision (b). Title 28 U.S.C. Sec. 2253 provides that an
    appeal may not be taken in a habeas corpus proceeding where
    confinement is under a judgment of a state court unless the judge
    who rendered the order in the habeas corpus proceeding, or a
    circuit justice or judge, issues a certificate of probable cause.
    In the interest of insuring that the matter of the certificate will
    not be overlooked and that, if the certificate is denied, the
    reasons for denial in the first instance will be available on any
    subsequent application, the proposed rule requires the district
    judge to issue the certificate or to state reasons for its denial.
      While 28 U.S.C. Sec. 2253 does not authorize the court of appeals
    as a court to grant a certificate of probable cause, In re Burwell,
    350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956) makes it clear
    that a court of appeals may not decline to consider a request for
    the certificate addressed to it as a court but must regard the
    request as made to the judges thereof. The fourth sentence
    incorporates the Burwell rule.
      Although 28 U.S.C. Sec. 2253 appears to require a certificate of
    probable cause even when an appeal is taken by a state or its
    representative, the legislative history strongly suggests that the
    intention of Congress was to require a certificate only in the case
    in which an appeal is taken by an applicant for the writ. See
    United States ex rel. Tillery v. Cavell, 294 F.2d 12 (3d Cir.,
    1960). Four of the five circuits which have ruled on the point have
    so interpreted section 2253. United States ex rel. Tillery v.
    Cavell, supra; Buder v. Bell, 306 F.2d 71 (6th Cir., 1962); United
    States ex rel. Calhoun v. Pate, 341 F.2d 885 (7th Cir., 1965);
    State of Texas v. Graves, 352 F.2d 514 (5th Cir., 1965). Cf. United
    States ex rel. Carrol v. LaVallee, 342 F.2d 641 (2d Cir., 1965).
    The final sentence makes it clear that a certificate of probable
    cause is not required of a state or its representative.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; in this
    rule, however, substantive changes are made in paragraphs (b)(1)
    and (b)(3).
      Subdivision (b), paragraph (1). Two substantive changes are made
    in this paragraph. First, the paragraph is made applicable to 28
    U.S.C. Sec. 2255 proceedings. This brings the rule into conformity
    with 28 U.S.C. Sec. 2253 as amended by the Anti-Terrorism and
    Effective Death Penalty Act of 1996, Pub. L. No. 104-132. Second,
    the rule states that a certificate of appealability may be issued
    by "a circuit justice or a circuit or district judge." That
    language adds a reference to the circuit justice which also brings
    the rule into conformity with section 2253. The language continues
    to state that in addition to the circuit justice, both a circuit
    and a district judge may issue a certificate of appealability. The
    language of section 2253 is ambiguous; it states that a certificate
    of appealability may be issued by "a circuit justice or judge."
    Since the enactment of the Anti-Terrorism and Effective Death
    Penalty Act, three circuits have held that both district and
    circuit judges, as well as the circuit justice, may issue a
    certificate of appealability. Else v. Johnson, 104 F.3d 82 (5th
    Cir. 1997); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063
    (6th Cir. 1997); and Hunter v. United States, 101 F.3d 1565 (11th
    Cir. 1996). The approach taken by the rule is consistent with those
    decisions.
      Subdivision (b), paragraph (3). The Anti-Terrorism and Effective
    Death Penalty Act of 1996, Pub. L. No. 104-132, amended 28 U.S.C.
    Sec. 2253 to make it applicable to Sec. 2255 proceedings.
    Accordingly, paragraph (3) is amended to provide that when the
    United States or its representative appeals, a certificate of
    appealability is not required.

                          AMENDMENT BY PUBLIC LAW                      
      1996 - Pub. L. 104-132 inserted "and section 2255" after "corpus"
    in catchline and amended text generally. Prior to amendment, text
    read as follows:
      "(a) Application for the original writ. - An application for a
    writ of habeas corpus shall be made to the appropriate district
    court. If application is made to a circuit judge, the application
    will ordinarily be transferred to the appropriate district court.
    If an application is made to or transferred to the district court
    and denied, renewal of the application before a circuit judge is
    not favored; the proper remedy is by appeal to the court of appeals
    from the order of the district court denying the writ.
      "(b) Necessity of certificate of probable cause for appeal. - In
    a habeas corpus proceeding in which the detention complained of
    arises out of process issued by a state court, an appeal by the
    applicant for the writ may not proceed unless a district or a
    circuit judge issues a certificate of probable cause. If an appeal
    is taken by the applicant, the district judge who rendered the
    judgment shall either issue a certificate of probable cause or
    state the reasons why such a certificate should not issue. The
    certificate or the statement shall be forwarded to the court of
    appeals with the notice of appeal and the file of the proceedings
    in the district court. If the district judge has denied the
    certificate, the applicant for the writ may then request issuance
    of the certificate by a circuit judge. If such a request is
    addressed to the court of appeals, it shall be deemed addressed to
    the judges thereof and shall be considered by a circuit judge or
    judges as the court deems appropriate. If no express request for a
    certificate is filed, the notice of appeal shall be deemed to
    constitute a request addressed to the judges of the court of
    appeals. If an appeal is taken by a state or its representative, a
    certificate of probable cause is not required."

-End-



-CITE-
    28 USC APPENDIX Rule 23                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-
    Rule 23. Custody or Release of a Prisoner in a Habeas Corpus
      Proceeding

-STATUTE-
      (a) Transfer of Custody Pending Review. Pending review of a
    decision in a habeas corpus proceeding commenced before a court,
    justice, or judge of the United States for the release of a
    prisoner, the person having custody of the prisoner must not
    transfer custody to another unless a transfer is directed in
    accordance with this rule. When, upon application, a custodian
    shows the need for a transfer, the court, justice, or judge
    rendering the decision under review may authorize the transfer and
    substitute the successor custodian as a party.
      (b) Detention or Release Pending Review of Decision Not to
    Release. While a decision not to release a prisoner is under
    review, the court or judge rendering the decision, or the court of
    appeals, or the Supreme Court, or a judge or justice of either
    court, may order that the prisoner be:
        (1) detained in the custody from which release is sought;
        (2) detained in other appropriate custody; or
        (3) released on personal recognizance, with or without surety.

      (c) Release Pending Review of Decision Ordering Release. While a
    decision ordering the release of a prisoner is under review, the
    prisoner must - unless the court or judge rendering the decision,
    or the court of appeals, or the Supreme Court, or a judge or
    justice of either court orders otherwise - be released on personal
    recognizance, with or without surety.
      (d) Modification of the Initial Order on Custody. An initial
    order governing the prisoner's custody or release, including any
    recognizance or surety, continues in effect pending review unless
    for special reasons shown to the court of appeals or the Supreme
    Court, or to a judge or justice of either court, the order is
    modified or an independent order regarding custody, release, or
    surety is issued.

-SOURCE-
    (As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The rule is the same as Supreme Court Rule 49, as amended on June
    12, 1967, effective October 2, 1967.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 23(b) and (c) are technical. No
    substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.
      Subdivison (d). The current rule states that the initial order
    governing custody or release "shall govern review" in the court of
    appeals. The amended language says that the initial order generally
    "continues in effect" pending review.
      When Rule 23 was adopted it used the same language as Supreme
    Court Rule 49, which then governed custody of prisoners in habeas
    corpus proceedings. The "shall govern review" language was drawn
    from the Supreme Court Rule. The Supreme Court has since amended
    its rule, now Rule 36, to say that the initial order "shall
    continue in effect" unless for reasons shown it is modified or a
    new order is entered. Rule 23 is amended to similarly state that
    the initial order "continues in effect." The new language is
    clearer. It removes the possible implication that the initial order
    created law of the case, a strange notion to attach to an order
    regarding custody or release.

-End-



-CITE-
    28 USC APPENDIX Rule 24                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-
    Rule 24. Proceeding in Forma Pauperis

-STATUTE-
      (a) Leave to Proceed in Forma Pauperis.
        (1) Motion in the District Court. Except as stated in Rule
      24(a)(3), a party to a district-court action who desires to
      appeal in forma pauperis must file a motion in the district
      court. The party must attach an affidavit that:
          (A) shows in the detail prescribed by Form 4 of the Appendix
        of Forms the party's inability to pay or to give security for
        fees and costs;
          (B) claims an entitlement to redress; and
          (C) states the issues that the party intends to present on
        appeal.

        (2) Action on the Motion. If the district court grants the
      motion, the party may proceed on appeal without prepaying or
      giving security for fees and costs, unless a statute provides
      otherwise. If the district court denies the motion, it must state
      its reasons in writing.
        (3) Prior Approval. A party who was permitted to proceed in
      forma pauperis in the district-court action, or who was
      determined to be financially unable to obtain an adequate defense
      in a criminal case, may proceed on appeal in forma pauperis
      without further authorization, unless:
          (A) the district court - before or after the notice of appeal
        is filed - certifies that the appeal is not taken in good faith
        or finds that the party is not otherwise entitled to proceed in
        forma pauperis and states in writing its reasons for the
        certification or finding; or
          (B) a statute provides otherwise.
        (4) Notice of District Court's Denial. The district clerk must
      immediately notify the parties and the court of appeals when the
      district court does any of the following:
          (A) denies a motion to proceed on appeal in forma pauperis;
          (B) certifies that the appeal is not taken in good faith; or
          (C) finds that the party is not otherwise entitled to proceed
        in forma pauperis.

        (5) Motion in the Court of Appeals. A party may file a motion
      to proceed on appeal in forma pauperis in the court of appeals
      within 30 days after service of the notice prescribed in Rule
      24(a)(4). The motion must include a copy of the affidavit filed
      in the district court and the district court's statement of
      reasons for its action. If no affidavit was filed in the district
      court, the party must include the affidavit prescribed by Rule
      24(a)(1).

      (b) Leave to Proceed in Forma Pauperis on Appeal or Review of an
    Administrative-Agency Proceeding. When an appeal or review of a
    proceeding before an administrative agency, board, commission, or
    officer (including for the purpose of this rule the United States
    Tax Court) proceeds directly in a court of appeals, a party may
    file in the court of appeals a motion for leave to proceed on
    appeal in forma pauperis with an affidavit prescribed by Rule
    24(a)(1).
      (c) Leave to Use Original Record. A party allowed to proceed on
    appeal in forma pauperis may request that the appeal be heard on
    the original record without reproducing any part.

-SOURCE-
    (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). Authority to allow prosecution of an appeal in
    forma pauperis is vested in "[a]ny court of the United States" by
    28 U.S.C. Sec. 1915(a). The second paragraph of section 1915(a)
    seems to contemplate initial application to the district court for
    permission to proceed in forma pauperis, and although the circuit
    rules are generally silent on the question, the case law requires
    initial application to the district court. Hayes v. United States,
    258 F.2d 400 (5th Cir., 1958), cert. den. 358 U.S. 856, 79 S.Ct.
    87, 3 L.Ed.2d 89 (1958); Elkins v. United States, 250 F.2d 145 (9th
    Cir., 1957) see 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960);
    United States v. Farley, 238 F.2d 575 (2d Cir., 1956) see 354 U.S.
    521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). D.C. Cir. Rule 41(a)
    requires initial application to the district court. The content of
    the affidavit follows the language of the statute; the requirement
    of a statement of the issues comprehends the statutory requirement
    of a statement of "the nature of the . . . appeal. . . ." The
    second sentence is in accord with the decision in McGann v. United
    States, 362 U.S. 309, 80 S.Ct. 725, 4 L.Ed.2d 734 (1960). The
    requirement contained in the third sentence has no counterpart in
    present circuit rules, but it has been imposed by decision in at
    least two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962);
    United States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir.,
    1959).
      The second paragraph permits one whose indigency has been
    previously determined by the district court to proceed on appeal in
    forma pauperis without the necessity of a redetermination of
    indigency, while reserving to the district court its statutory
    authority to certify that the appeal is not taken in good faith, 28
    U.S.C. Sec. 1915(a), and permitting an inquiry into whether the
    circumstances of the party who was originally entitled to proceed
    in forma pauperis have changed during the course of the litigation.
    Cf. Sixth Circuit Rule 26.
      The final paragraph establishes a subsequent motion in the court
    of appeals, rather than an appeal from the order of denial or from
    the certification of lack of good faith, as the proper procedure
    for calling in question the correctness of the action of the
    district court. The simple and expeditious motion procedure seems
    clearly preferable to an appeal. This paragraph applies only to
    applications for leave to appeal in forma pauperis. The order of a
    district court refusing leave to initiate an action in the district
    court in forma pauperis is reviewable on appeal. See Roberts v.
    United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed.
    1326 (1950).
      Subdivision (b). Authority to allow prosecution in forma pauperis
    is vested only in a "court of the United States" (see Note to
    subdivision (a), above). Thus in proceedings brought directly in a
    court of appeals to review decisions of agencies or of the Tax
    Court, authority to proceed in forma pauperis should be sought in
    the court of appeals. If initial review of agency action is had in
    a district court, an application to appeal to a court of appeals in
    forma pauperis from the judgment of the district court is governed
    by the provisions of subdivision (a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment reflects the change in the title of the
    Tax Court to "United States Tax Court." See 26 U.S.C. Sec. 7441.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rule 24(a) are technical. No substantive change
    is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only. The
    Advisory Committee deletes the language in subdivision (c)
    authorizing a party proceeding in forma pauperis to file papers in
    typewritten form because the authorization is unnecessary. The
    rules permit all parties to file typewritten documents.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (a)(2). Section 804 of the Prison Litigation Reform
    Act of 1995 ("PLRA") amended 28 U.S.C. Sec. 1915 to require that
    prisoners who bring civil actions or appeals from civil actions
    must "pay the full amount of a filing fee." 28 U.S.C. Sec.
    1915(b)(1). Prisoners who are unable to pay the full amount of the
    filing fee at the time that their actions or appeals are filed are
    generally required to pay part of the fee and then to pay the
    remainder of the fee in installments. 28 U.S.C. Sec. 1915(b). By
    contrast, Rule 24(a)(2) has provided that, after the district court
    grants a litigant's motion to proceed on appeal in forma pauperis,
    the litigant may proceed "without prepaying or giving security for
    fees and costs." Thus, the PLRA and Rule 24(a)(2) appear to be in
    conflict.
      Rule 24(a)(2) has been amended to resolve this conflict.
    Recognizing that future legislation regarding prisoner litigation
    is likely, the Committee has not attempted to incorporate into Rule
    24 all of the requirements of the current version of 28 U.S.C. Sec.
    1915. Rather, the Committee has amended Rule 24(a)(2) to clarify
    that the rule is not meant to conflict with anything required by
    the PLRA or any other statute.
      Subdivision (a)(3). Rule 24(a)(3) has also been amended to
    eliminate an apparent conflict with the PLRA. Rule 24(a)(3) has
    provided that a party who was permitted to proceed in forma
    pauperis in the district court may continue to proceed in forma
    pauperis in the court of appeals without further authorization,
    subject to certain conditions. The PLRA, by contrast, provides that
    a prisoner who was permitted to proceed in forma pauperis in the
    district court and who wishes to continue to proceed in forma
    pauperis on appeal may not do so "automatically," but must seek
    permission. See, e.g., Morgan v. Haro, 112 F.3d 788, 789 (5th Cir.
    1997) ("A prisoner who seeks to proceed IFP on appeal must obtain
    leave to so proceed despite proceeding IFP in the district
    court.").
      Rule 24(a)(3) has been amended to resolve this conflict. Again,
    recognizing that future legislation regarding prisoner litigation
    is likely, the Committee has not attempted to incorporate into Rule
    24 all of the requirements of the current version of 28 U.S.C. Sec.
    1915. Rather, the Committee has amended Rule 24(a)(3) to clarify
    that the rule is not meant to conflict with anything required by
    the PLRA or any other statute.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note,
    except that "a statute provides otherwise" was substituted in place
    of "the law requires otherwise" in the text of the rule and
    conforming changes (as well as a couple of minor stylistic changes)
    were made to the Committee Note.

-End-


-CITE-
    28 USC APPENDIX TITLE VII. GENERAL PROVISIONS               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
                       TITLE VII. GENERAL PROVISIONS                   

-End-



-CITE-
    28 USC APPENDIX Rule 25                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 25. Filing and Service

-STATUTE-
      (a) Filing.
        (1) Filing with the Clerk. A paper required or permitted to be
      filed in a court of appeals must be filed with the clerk.
        (2) Filing: Method and Timeliness.
          (A) In general. Filing may be accomplished by mail addressed
        to the clerk, but filing is not timely unless the clerk
        receives the papers within the time fixed for filing.
          (B) A brief or appendix. A brief or appendix is timely filed,
        however, if on or before the last day for filing, it is:
            (i) mailed to the clerk by First-Class Mail, or other class
          of mail that is at least as expeditious, postage prepaid; or
            (ii) dispatched to a third-party commercial carrier for
          delivery to the clerk within 3 calendar days.

          (C) Inmate filing. A paper filed by an inmate confined in an
        institution is timely if deposited in the institution's
        internal mailing system on or before the last day for filing.
        If an institution has a system designed for legal mail, the
        inmate must use that system to receive the benefit of this
        rule. Timely filing may be shown by a declaration in compliance
        with 28 U.S.C. Sec. 1746 or by a notarized statement, either of
        which must set forth the date of deposit and state that
        first-class postage has been prepaid.
          (D) Electronic filing. A court of appeals may by local rule
        permit papers to be filed, signed, or verified by electronic
        means that are consistent with technical standards, if any,
        that the Judicial Conference of the United States establishes.
        A paper filed by electronic means in compliance with a local
        rule constitutes a written paper for the purpose of applying
        these rules.

        (3) Filing a Motion with a Judge. If a motion requests relief
      that may be granted by a single judge, the judge may permit the
      motion to be filed with the judge; the judge must note the filing
      date on the motion and give it to the clerk.
        (4) Clerk's Refusal of Documents. The clerk must not refuse to
      accept for filing any paper presented for that purpose solely
      because it is not presented in proper form as required by these
      rules or by any local rule or practice.

      (b) Service of All Papers Required. Unless a rule requires
    service by the clerk, a party must, at or before the time of filing
    a paper, serve a copy on the other parties to the appeal or review.
    Service on a party represented by counsel must be made on the
    party's counsel.
      (c) Manner of Service.
        (1) Service may be any of the following:
          (A) personal, including delivery to a responsible person at
        the office of counsel;
          (B) by mail;
          (C) by third-party commercial carrier for delivery within 3
        calendar days; or
          (D) by electronic means, if the party being served consents
        in writing.

        (2) If authorized by local rule, a party may use the court's
      transmission equipment to make electronic service under Rule
      25(c)(1)(D).
        (3) When reasonable considering such factors as the immediacy
      of the relief sought, distance, and cost, service on a party must
      be by a manner at least as expeditious as the manner used to file
      the paper with the court.
        (4) Service by mail or by commercial carrier is complete on
      mailing or delivery to the carrier. Service by electronic means
      is complete on transmission, unless the party making service is
      notified that the paper was not received by the party served.

      (d) Proof of Service.
        (1) A paper presented for filing must contain either of the
      following:
          (A) an acknowledgment of service by the person served; or
          (B) proof of service consisting of a statement by the person
        who made service certifying:
            (i) the date and manner of service;
            (ii) the names of the persons served; and
            (iii) their mail or electronic addresses, facsimile
          numbers, or the addresses of the places of delivery, as
          appropriate for the manner of service.

        (2) When a brief or appendix is filed by mailing or dispatch in
      accordance with Rule 25(a)(2)(B), the proof of service must also
      state the date and manner by which the document was mailed or
      dispatched to the clerk.
        (3) Proof of service may appear on or be affixed to the papers
      filed.

      (e) Number of Copies. When these rules require the filing or
    furnishing of a number of copies, a court may require a different
    number by local rule or by order in a particular case.

-SOURCE-
    (As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff.
    Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff.
    Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The rule that filing is not timely unless the papers filed are
    received within the time allowed is the familiar one. Ward v.
    Atlantic Coast Line R.R. Co., 265 F.2d 75 (5th Cir., 1959), rev'd
    on other grounds 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960);
    Kahler-Ellis Co. v. Ohio Turnpike Commission, 225 F.2d 922 (6th
    Cir., 1955). An exception is made in the case of briefs and
    appendices in order to afford the parties the maximum time for
    their preparation. By the terms of the exception, air mail delivery
    must be used whenever it is the most expeditious manner of
    delivery.
      A majority of the circuits now require service of all papers
    filed with the clerk. The usual provision in present rules is for
    service on "adverse" parties. In view of the extreme simplicity of
    service by mail, there seems to be no reason why a party who files
    a paper should not be required to serve all parties to the
    proceeding in the court of appeals, whether or not they may be
    deemed adverse. The common requirement of proof of service is
    retained, but the rule permits it to be made by simple
    certification, which may be endorsed on the copy which is filed.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 25(a) and (b) are technical. No
    substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Subdivision (a). The amendment permits, but does not require,
    courts of appeals to adopt local rules that allow filing of papers
    by electronic means. However, courts of appeals cannot adopt such
    local rules until the Judicial Conference of the United States
    authorizes filing by facsimile or other electronic means.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      The amendment accompanies new subdivision (c) of Rule 4 and
    extends the holding in Houston v. Lack, 487 U.S. 266 (1988), to all
    papers filed in the courts of appeals by persons confined in
    institutions.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). Several circuits have local rules that authorize
    the office of the clerk to refuse to accept for filing papers that
    are not in the form required by these rules or by local rules. This
    is not a suitable role for the office of the clerk and the practice
    exposes litigants to the hazards of time bars; for these reasons,
    such rules are proscribed by this rule. This provision is similar
    to Fed.R.Civ.P. 5(e) and Fed.R.Bankr.P. 5005.
      The Committee wishes to make it clear that the provision
    prohibiting a clerk from refusing a document does not mean that a
    clerk's office may no longer screen documents to determine whether
    they comply with the rules. A court may delegate to the clerk
    authority to inform a party about any noncompliance with the rules
    and, if the party is willing to correct the document, to determine
    a date by which the corrected document must be resubmitted. If a
    party refuses to take the steps recommended by the clerk or if in
    the clerk's judgment the party fails to correct the noncompliance,
    the clerk must refer the matter to the court for a ruling.
      Subdivision (d). Two changes have been made in this subdivision.
    Subdivision (d) provides that a paper presented for filing must
    contain proof of service.
      The last sentence of subdivision (d) has been deleted as
    unnecessary. That sentence stated that a clerk could permit papers
    to be filed without acknowledgment or proof of service but must
    require that it be filed promptly thereafter. In light of the
    change made in subdivision (a) which states that a clerk may not
    refuse to accept for filing a document because it is not in the
    proper form, there is no further need for a provision stating that
    a clerk may accept a paper lacking a proof of service. The clerk
    must accept such a paper. That portion of the deleted sentence
    stating that the clerk must require that proof of service be filed
    promptly after the filing of the document if the proof is not filed
    concurrently with the document is also unnecessary.
      The second amendment requires that the certificate of service
    must state the addresses to which the papers were mailed or at
    which they were delivered. The Federal Circuit has a similar local
    rule, Fed.Cir.R. 25.
      Subdivision (e). Subdivision (e) is a new subdivision. It makes
    it clear that whenever these rules require a party to file or
    furnish a number of copies a court may require a different number
    of copies either by rule or by order in an individual case. The
    number of copies of any document that a court of appeals needs
    varies depending upon the way in which the court conducts business.
    The internal operation of the courts of appeals necessarily varies
    from circuit to circuit because of differences in the number of
    judges, the geographic area included within the circuit, and other
    such factors. Uniformity could be achieved only by setting the
    number of copies artificially high so that parties in all circuits
    file enough copies to satisfy the needs of the court requiring the
    greatest number. Rather than do that, the Committee decided to make
    it clear that local rules may require a greater or lesser number of
    copies and that, if the circumstances of a particular case indicate
    the need for a different number of copies in that case, the court
    may so order.
      A party must consult local rules to determine whether the court
    requires a different number than that specified in these national
    rules. The Committee believes it would be helpful if each circuit
    either: 1) included a chart at the beginning of its local rules
    showing the number of copies of each document required to be filed
    with the court along with citation to the controlling rule; or 2)
    made available such a chart to each party upon commencement of an
    appeal; or both. If a party fails to file the required number of
    copies, the failure does not create a jurisdictional defect. Rule
    3(a) states: "Failure of an appellant to take any step other than
    the timely filing of a notice of appeal does not affect the
    validity of the appeal, but is ground only for such action as the
    court of appeals deems appropriate. . . ."

           NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT       
      Subdivision (a). The amendment deletes the language requiring a
    party to use "the most expeditious form of delivery by mail, except
    special delivery" in order to file a brief using the mailbox rule.
    That language was adopted before the Postal Service offered Express
    Mail and other expedited delivery services. The amendment makes it
    clear that it is sufficient to use First-Class Mail. Other equally
    or more expeditious classes of mail service, such as Express Mail,
    also may be used. In addition, the amendment permits the use of
    commercial carriers. The use of private, overnight courier services
    has become commonplace in law practice. Expedited services offered
    by commercial carriers often provide faster delivery than
    First-Class Mail; therefore, there should be no objection to the
    use of commercial carriers as long as they are reliable. In order
    to make use of the mailbox rule when using a commercial carrier,
    the amendment requires that the filer employ a carrier who
    undertakes to deliver the document in no more than three calendar
    days. The three-calendar-day period coordinates with the three-day
    extension provided by Rule 26(c).
      Subdivision (c). The amendment permits service by commercial
    carrier if the carrier is to deliver the paper to the party being
    served within three days of the carrier's receipt of the paper. The
    amendment also expresses a desire that when reasonable, service on
    a party be accomplished by a manner as expeditious as the manner
    used to file the paper with the court. When a brief or motion is
    filed with the court by hand delivering the paper to the clerk's
    office, or by overnight courier, the copies should be served on the
    other parties by an equally expeditious manner - meaning either by
    personal service, if distance permits, or by overnight courier, if
    mail delivery to the party is not ordinarily accomplished
    overnight. The reasonableness standard is included so that if a
    paper is hand delivered to the clerk's office for filing but the
    other parties must be served in a different city, state, or region,
    personal service on them ordinarily will not be expected. If use of
    an equally expeditious manner of service is not reasonable, use of
    the next most expeditious manner may be. For example, if the paper
    is filed by hand delivery to the clerk's office but the other
    parties reside in distant cities, service on them need not be
    personal but in most instances should be by overnight courier. Even
    that may not be required, however, if the number of parties that
    must be served would make the use of overnight service too costly.
    A factor that bears upon the reasonableness of serving parties
    expeditiously is the immediacy of the relief requested.
      Subdivision (d). The amendment adds a requirement that when a
    brief or appendix is filed by mail or commercial carrier, the
    certificate of service state the date and manner by which the
    document was mailed or dispatched to the clerk. Including that
    information in the certificate of service avoids the necessity for
    a separate certificate concerning the date and manner of filing.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; a
    substantive amendment is made, however, in subdivision (a).
      Subdivision (a). The substantive amendment in this subdivision is
    in subparagraph (a)(2)(C) and is a companion to an amendment in
    Rule 4(c). Currently Rule 25(a)(2)(C) provides that if an inmate
    confined in an institution files a document by depositing it in the
    institution's internal mail system, the document is timely filed if
    deposited on or before the last day for filing. Some institutions
    have special internal mail systems for handling legal mail; such
    systems often record the date of deposit of mail by an inmate, the
    date of delivery of mail to an inmate, etc. The Advisory Committee
    amends the rule to require an inmate to use the system designed for
    legal mail, if there is one, in order to receive the benefit of
    this subparagraph.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Rule 25(a)(2)(D) presently authorizes the courts of appeals to
    permit papers to be filed by electronic means. Rule 25 has been
    amended in several respects to permit papers also to be served
    electronically. In addition, Rule 25(c) has been reorganized and
    subdivided to make it easier to understand.
      Subdivision (c)(1)(D). New subdivision (c)(1)(D) has been added
    to permit service to be made electronically, such as by e-mail or
    fax. No party may be served electronically, either by the clerk or
    by another party, unless the party has consented in writing to such
    service.
      A court of appeals may not, by local rule, forbid the use of
    electronic service on a party that has consented to its use. At the
    same time, courts have considerable discretion to use local rules
    to regulate electronic service. Difficult and presently
    unforeseeable questions are likely to arise as electronic service
    becomes more common. Courts have the flexibility to use their local
    rules to address those questions. For example, courts may use local
    rules to set forth specific procedures that a party must follow
    before the party will be deemed to have given written consent to
    electronic service.
      Parties also have the flexibility to define the terms of their
    consent; a party's consent to electronic service does not have to
    be "all-or-nothing." For example, a party may consent to service by
    facsimile transmission, but not by electronic mail; or a party may
    consent to electronic service only if "courtesy" copies of all
    transmissions are mailed within 24 hours; or a party may consent to
    electronic service of only documents that were created with Corel
    WordPerfect.
      Subdivision (c)(2). The courts of appeals are authorized under
    Rule 25(a)(2)(D) to permit papers to be filed electronically.
    Technological advances may someday make it possible for a court to
    forward an electronically filed paper to all parties automatically
    or semi-automatically. When such court-facilitated service becomes
    possible, courts may decide to permit parties to use the courts'
    transmission facilities to serve electronically filed papers on
    other parties who have consented to such service. Court personnel
    would use the court's computer system to forward the papers, but
    the papers would be considered served by the filing parties, just
    as papers that are carried from one address to another by the
    United States Postal Service are considered served by the sending
    parties. New subdivision (c)(2) has been added so that the courts
    of appeals may use local rules to authorize such use of their
    transmission facilities, as well as to address the many questions
    that court-facilitated electronic service is likely to raise.
      Subdivision (c)(4). The second sentence of new subdivision (c)(4)
    has been added to provide that electronic service is complete upon
    transmission. Transmission occurs when the sender performs the last
    act that he or she must perform to transmit a paper electronically;
    typically, it occurs when the sender hits the "send" or "transmit"
    button on an electronic mail program. There is one exception to the
    rule that electronic service is complete upon transmission: If the
    sender is notified - by the sender's e-mail program or otherwise -
    that the paper was not received, service is not complete, and the
    sender must take additional steps to effect service. A paper has
    been "received" by the party on which it has been served as long as
    the party has the ability to retrieve it. A party cannot defeat
    service by choosing not to access electronic mail on its server.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment. A paragraph was added to the
    Committee Note to clarify that consent to electronic service is not
    an "all-or-nothing" matter.
      Subdivision (d)(1)(B)(iii). Subdivision (d)(1)(B)(iii) has been
    amended to require that, when a paper is served electronically, the
    proof of service of that paper must include the electronic address
    or facsimile number to which the paper was transmitted.
      Changes Made After Publication and Comments. The text of the
    proposed amendment was changed to refer to "electronic" addresses
    (instead of to "e-mail" addresses), to include "facsimile numbers,"
    and to add the concluding phrase "as appropriate for the manner of
    service." Conforming changes were made to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 26                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 26. Computing and Extending Time

-STATUTE-
      (a) Computing Time. The following rules apply in computing any
    period of time specified in these rules or in any local rule, court
    order, or applicable statute:
        (1) Exclude the day of the act, event, or default that begins
      the period.
        (2) Exclude intermediate Saturdays, Sundays, and legal holidays
      when the period is less than 11 days, unless stated in calendar
      days.
        (3) Include the last day of the period unless it is a Saturday,
      Sunday, legal holiday, or - if the act to be done is filing a
      paper in court - a day on which the weather or other conditions
      make the clerk's office inaccessible.
        (4) As used in this rule, "legal holiday" means New Year's Day,
      Martin Luther King, Jr.'s Birthday, Presidents' Day, Memorial
      Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
      Thanksgiving Day, Christmas Day, and any other day declared a
      holiday by the President, Congress, or the state in which is
      located either the district court that rendered the challenged
      judgment or order, or the circuit clerk's principal office.

      (b) Extending Time. For good cause, the court may extend the time
    prescribed by these rules or by its order to perform any act, or
    may permit an act to be done after that time expires. But the court
    may not extend the time to file:
        (1) a notice of appeal (except as authorized in Rule 4) or a
      petition for permission to appeal; or
        (2) a notice of appeal from or a petition to enjoin, set aside,
      suspend, modify, enforce, or otherwise review an order of an
      administrative agency, board, commission, or officer of the
      United States, unless specifically authorized by law.

      (c) Additional Time after Service. When a party is required or
    permitted to act within a prescribed period after a paper is served
    on that party, 3 calendar days are added to the prescribed period
    unless the paper is delivered on the date of service stated in the
    proof of service. For purposes of this Rule 26(c), a paper that is
    served electronically is not treated as delivered on the date of
    service stated in the proof of service.

-SOURCE-
    (As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff.
    Dec. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff.
    Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The provisions of this rule are based upon FRCP 6(a), (b) and
    (e). See also Supreme Court Rule 34 and FRCrP 45. Unlike FRCP 6(b),
    this rule, read with Rule 27, requires that every request for
    enlargement of time be made by motion, with proof of service on all
    parties. This is the simplest, most convenient way of keeping all
    parties advised of developments. By the terms of Rule 27(b) a
    motion for enlargement of time under Rule 26(b) may be entertained
    and acted upon immediately, subject to the right of any party to
    seek reconsideration. Thus the requirement of motion and notice
    will not delay the granting of relief of a kind which a court is
    inclined to grant as of course. Specifically, if a court is of the
    view that an extension of time sought before expiration of the
    period originally prescribed or as extended by a previous order
    ought to be granted in effect ex parte, as FRCP 6(b) permits, it
    may grant motions seeking such relief without delay.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      The amendment adds Columbus Day to the list of legal holidays to
    conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,
    which constituted Columbus Day a legal holiday effective after
    January 1, 1971.
      The Act, which amended Title 5, U.S.C. Sec. 6103(a), changes the
    day on which certain holidays are to be observed. Washington's
    Birthday, Memorial Day and Veterans Day are to be observed on the
    third Monday in February, the last Monday in May and the fourth
    Monday in October, respectively, rather than, as heretofore, on
    February 22, May 30, and November 11, respectively. Columbus Day is
    to be observed on the second Monday in October. New Year's Day,
    Independence Day, Thanksgiving Day and Christmas continue to be
    observed on the traditional days.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The Birthday of Martin Luther King, Jr., is added to the list of
    national holidays in Rule 26(a). The amendment to Rule 26(c) is
    technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT       
      The proposed amendment brings Rule 26(a) into conformity with the
    provisions of Rule 6(a) of the Rules of Civil Procedure, Rule 45(a)
    of the Rules of Criminal Procedure, and Rule 9006(a) of the Rules
    of Bankruptcy Procedure which allow additional time for filing
    whenever a clerk's office is inaccessible on the last day for
    filing due to weather or other conditions.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT       
      The amendment is a companion to the proposed amendments to Rule
    25 that permit service on a party by commercial carrier. The
    amendments to subdivision (c) of this rule make the three-day
    extension applicable not only when service is accomplished by mail,
    but whenever delivery to the party being served occurs later than
    the date of service stated in the proof of service. When service is
    by mail or commercial carrier, the proof of service recites the
    date of mailing or delivery to the commercial carrier. If the party
    being served receives the paper on a later date, the three-day
    extension applies. If the party being served receives the paper on
    the same date as the date of service recited in the proof of
    service, the three-day extension is not available.
      The amendment also states that the three-day extension is three
    calendar days. Rule 26(a) states that when a period prescribed or
    allowed by the rules is less than seven days, intermediate
    Saturdays, Sundays, and legal holidays do not count. Whether the
    three-day extension in Rule 26(c) is such a period, meaning that
    three-days could actually be five or even six days, is unclear. The
    D.C. Circuit recently held that the parallel three-day extension
    provided in the Civil Rules is not such a period and that weekends
    and legal holidays do count. CNPq v. Inter-Trade, 50 F.3d 56 (D.C.
    Cir. 1995). The Committee believes that is the right result and
    that the issue should be resolved. Providing that the extension is
    three calendar days means that if a period would otherwise end on
    Thursday but the three-day extension applies, the paper must be
    filed on Monday. Friday, Saturday, and Sunday are the extension
    days. Because the last day of the period as extended is Sunday, the
    paper must be filed the next day, Monday.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; two
    substantive changes are made, however, in subdivision (a).
      Subdivision (a). First, the amendments make the computation
    method prescribed in this rule applicable to any time period
    imposed by a local rule. This means that if a local rule
    establishing a time limit is permitted, the national rule will
    govern the computation of that period.
      Second, paragraph (a)(2) includes language clarifying that
    whenever the rules establish a time period in "calendar days,"
    weekends and legal holidays are counted.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (a)(2). The Federal Rules of Civil Procedure and the
    Federal Rules of Criminal Procedure compute time differently than
    the Federal Rules of Appellate Procedure. Fed. R. Civ. P. 6(a) and
    Fed. R. Crim. P. 45(a) provide that, in computing any period of
    time, "[w]hen the period of time prescribed or allowed is less than
    11 days, intermediate Saturdays, Sundays, and legal holidays shall
    be excluded in the computation." By contrast, Rule 26(a)(2)
    provides that, in computing any period of time, a litigant should
    "[e]xclude intermediate Saturdays, Sundays, and legal holidays when
    the period is less than 7 days, unless stated in calendar days."
    Thus, deadlines of 7, 8, 9, and 10 days are calculated differently
    under the rules of civil and criminal procedure than they are under
    the rules of appellate procedure. This creates a trap for unwary
    litigants. No good reason for this discrepancy is apparent, and
    thus Rule 26(a)(2) has been amended so that, under all three sets
    of rules, intermediate Saturdays, Sundays, and legal holidays will
    be excluded when computing deadlines under 11 days but will be
    counted when computing deadlines of 11 days and over.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.
      Subdivision (c). Rule 26(c) has been amended to provide that when
    a paper is served on a party by electronic means, and that party is
    required or permitted to respond to that paper within a prescribed
    period, 3 calendar days are added to the prescribed period.
    Electronic service is usually instantaneous, but sometimes it is
    not, because of technical problems. Also, if a paper is
    electronically transmitted to a party on a Friday evening, the
    party may not realize that he or she has been served until two or
    three days later. Finally, extending the "3-day rule" to electronic
    service will encourage parties to consent to such service under
    Rule 25(c).
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 26.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 26.1. Corporate Disclosure Statement

-STATUTE-
      (a) Who Must File. Any nongovernmental corporate party to a
    proceeding in a court of appeals must file a statement that
    identifies any parent corporation and any publicly held corporation
    that owns 10% or more of its stock or states that there is no such
    corporation.
      (b) Time for Filing; Supplemental Filing. A party must file the
    Rule 26.1(a) statement with the principal brief or upon filing a
    motion, response, petition, or answer in the court of appeals,
    whichever occurs first, unless a local rule requires earlier
    filing. Even if the statement has already been filed, the party's
    principal brief must include the statement before the table of
    contents. A party must supplement its statement whenever the
    information that must be disclosed under Rule 26.1(a) changes.
      (c) Number of Copies. If the Rule 26.1(a) statement is filed
    before the principal brief, or if a supplemental statement is
    filed, the party must file an original and 3 copies unless the
    court requires a different number by local rule or by order in a
    particular case.

-SOURCE-
    (As added Apr. 25, 1989, eff. Dec. 1, 1989; and amended Apr. 30,
    1991, eff. Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24,
    1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1989            
      The purpose of this rule is to assist judges in making a
    determination of whether they have any interests in any of a
    party's related corporate entities that would disqualify the judges
    from hearing the appeal. The committee believes that this rule
    represents minimum disclosure requirements. If a Court of Appeals
    wishes to require additional information, a court is free to do so
    by local rule. However, the committee requests the courts to
    consider the desirability of uniformity and the burden that varying
    circuit rules creates on attorneys who practice in many circuits.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      The amendment requires a party to file three copies of the
    disclosure statement whenever the statement is filed before the
    party's principal brief. Because the statement is included in each
    copy of the party's brief, there is no need to require the filing
    of additional copies at that time. A court of appeals may require
    the filing of a different number of copies by local rule or by
    order in a particular case.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; a
    substantive change is made, however, in subdivision (a).
      Subdivison [sic] (a). The amendment deletes the requirement that
    a corporate party identify subsidiaries and affiliates that have
    issued shares to the public. Although several circuit rules require
    identification of such entities, the Committee believes that such
    disclosure is unnecessary.
      A disclosure statement assists a judge in ascertaining whether or
    not the judge has an interest that should cause the judge to recuse
    himself or herself from the case. Given that purpose, disclosure of
    entities that would not be adversely affected by a decision in the
    case is unnecessary.
      Disclosure of a party's parent corporation is necessary because a
    judgment against a subsidiary can negatively impact the parent. A
    judge who owns stock in the parent corporation, therefore, has an
    interest in litigation involving the subsidiary. The rule requires
    disclosure of all of a party's parent corporations meaning
    grandparent and great grandparent corporations as well. For
    example, if a party is a closely held corporation, the majority
    shareholder of which is a corporation formed by a publicly traded
    corporation for the purpose of acquiring and holding the shares of
    the party, the publicly traded grandparent corporation should be
    disclosed. Conversely, disclosure of a party's subsidiaries or
    affiliated corporations is ordinarily unnecessary. For example, if
    a party is a part owner of a corporation in which a judge owns
    stock, the possibility is quite remote that the judge might be
    biased by the fact that the judge and the litigant are co-owners of
    a corporation.
      The amendment, however, adds a requirement that the party lists
    all its stockholders that are publicly held companies owning 10% or
    more of the stock of the party. A judgment against a corporate
    party can adversely affect the value of the company's stock and,
    therefore, persons owning stock in the party have an interest in
    the outcome of the litigation. A judge owning stock in a corporate
    party ordinarily recuses himself or herself. The new requirement
    takes the analysis one step further and assumes that if a judge
    owns stock in a publicly held corporation which in turn owns 10% or
    more of the stock in the party, the judge may have sufficient
    interest in the litigation to require recusal. The 10% threshold
    ensures that the corporation in which the judge may own stock is
    itself sufficiently invested in the party that a judgment adverse
    to the party could have an adverse impact upon the investing
    corporation in which the judge may own stock. This requirement is
    modeled on the Seventh Circuit's disclosure requirement.
      Subdivision (b). The language requiring inclusion of the
    disclosure statement in a party's principal brief is moved to this
    subdivision because it deals with the time for filing the
    statement.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
       a. Alternative One [At its June 7-8, 2001, meeting, the
    Committee on Rules of Practice and Procedure voted to reject
    Alternative One.]
      Subdivision (a). Rule 26.1(a) presently requires nongovernmental
    corporate parties to file a "corporate disclosure statement." In
    that statement, a nongovernmental corporate party is required to
    identify all of its parent corporations and all publicly held
    corporations that own 10% or more of its stock. The corporate
    disclosure statement is intended to assist judges in determining
    whether they must recuse themselves by reason of "a financial
    interest in the subject matter in controversy." Code of Judicial
    Conduct, Canon 3C(1)(c) (1972).
      Rule 26.1(a) has been amended to require that nongovernmental
    corporate parties who currently do not have to file a corporate
    disclosure statement - that is, nongovernmental corporate parties
    who do not have any parent corporations and at least 10% of whose
    stock is not owned by any publicly held corporation - inform the
    court of that fact. At present, when a corporate disclosure
    statement is not filed, courts do not know whether it has not been
    filed because there was nothing to report or because of ignorance
    of Rule 26.1(a).
      Rule 26.1(a) does not require the disclosure of all information
    that could conceivably be relevant to a judge who is trying to
    decide whether he or she has a "financial interest" in a case.
    Experience with divergent disclosure practices and improving
    technology may provide the foundation for more comprehensive
    disclosure requirements. The Judicial Conference, supported by the
    committees that work regularly with the Code of Judicial Conduct
    and by the Administrative Office of the United States Courts, is in
    the best position to develop any additional requirements and to
    adjust those requirements as technology and other developments
    warrant. Thus, Rule 26.1(a) has been amended to authorize the
    Judicial Conference to promulgate more detailed financial
    disclosure requirements - requirements that might apply beyond
    nongovernmental corporate parties.
      As has been true in the past, Rule 26.1(a) does not forbid the
    promulgation of local rules that require disclosures in addition to
    those required by Rule 26.1(a) itself. However, along with the
    authority provided to the Judicial Conference to require additional
    disclosures is the authority to preempt any local rulemaking on the
    topic of financial disclosure.
      Subdivision (b). Rule 26.1(b) has been amended to require parties
    to file supplemental disclosure statements whenever there is a
    change in the information that Rule 26.1(a) requires the parties to
    disclose. For example, if a publicly held corporation acquires 10%
    or more of a party's stock after the party has filed its disclosure
    statement, the party should file a supplemental statement
    identifying that publicly held corporation.
      Subdivision (c). Rule 26.1(c) has been amended to provide that a
    party who is required to file a supplemental disclosure statement
    must file an original and 3 copies, unless a local rule or an order
    entered in a particular case provides otherwise.
       b. Alternative Two [At its June 7-8, 2001, meeting, the
    Committee on Rules of Practice and Procedure voted to approve
    Alternative Two.]
      Subdivision (a). Rule 26.1(a) requires nongovernmental corporate
    parties to file a "corporate disclosure statement." In that
    statement, a nongovernmental corporate party is required to
    identify all of its parent corporations and all publicly held
    corporations that own 10% or more of its stock. The corporate
    disclosure statement is intended to assist judges in determining
    whether they must recuse themselves by reason of "a financial
    interest in the subject matter in controversy." Code of Judicial
    Conduct, Canon 3C(1)(c) (1972).
      Rule 26.1(a) has been amended to require that nongovernmental
    corporate parties who have not been required to file a corporate
    disclosure statement - that is, nongovernmental corporate parties
    who do not have any parent corporations and at least 10% of whose
    stock is not owned by any publicly held corporation - inform the
    court of that fact. At present, when a corporate disclosure
    statement is not filed, courts do not know whether it has not been
    filed because there was nothing to report or because of ignorance
    of Rule 26.1.
      Subdivision (b). Rule 26.1(b) has been amended to require parties
    to file supplemental disclosure statements whenever there is a
    change in the information that Rule 26.1(a) requires the parties to
    disclose. For example, if a publicly held corporation acquires 10%
    or more of a party's stock after the party has filed its disclosure
    statement, the party should file a supplemental statement
    identifying that publicly held corporation.
      Subdivision (c). Rule 26.1(c) has been amended to provide that a
    party who is required to file a supplemental disclosure statement
    must file an original and 3 copies, unless a local rule or an order
    entered in a particular case provides otherwise.
      Changes Made After Publication and Comments. The Committee is
    submitting two versions of proposed Rule 26.1 for the consideration
    of the Standing Committee.
      The first version - "Alternative One" - is the same as the
    version that was published, except that the rule has been amended
    to refer to "any information that may be publicly designated by the
    Judicial Conference" instead of to "any information that may be
    required by the Judicial Conference." At its April meeting, the
    Committee gave unconditional approval to all of "Alternative One,"
    except the Judicial Conference provisions. The Committee
    conditioned its approval of the Judicial Conference provisions on
    the Standing Committee's assuring itself that lawyers would have
    ready access to any standards promulgated by the Judicial
    Conference and that the Judicial Conference provisions were
    consistent with the Rules Enabling Act.
      The second version - "Alternative Two" - is the same as the
    version that was published, except that the Judicial Conference
    provisions have been eliminated. The Civil Rules Committee met
    several days after the Appellate Rules Committee and joined the
    Bankruptcy Rules Committee in disapproving the Judicial Conference
    provisions. Given the decreasing likelihood that the Judicial
    Conference provisions will be approved by the Standing Committee, I
    asked Prof. Schiltz to draft, and the Appellate Rules Committee to
    approve, a version of Rule 26.1 that omitted those provisions.
    "Alternative Two" was circulated to and approved by the Committee
    in late April.
      I should note that, at its April meeting, the Appellate Rules
    Committee discussed the financial disclosure provision that was
    approved by the Bankruptcy Rules Committee. That provision defines
    the scope of the financial disclosure obligation much differently
    than the provisions approved by the Appellate, Civil, and Criminal
    Rules Committees, which are based on existing Rule 26.1. For
    example, the bankruptcy provision requires disclosure when a party
    "directly or indirectly" owns 10 percent or more of "any class" of
    a publicly or privately held corporation's "equity interests."
    Members of the Appellate Rules Committee expressed several concerns
    about the provision approved by the Bankruptcy Rules Committee,
    objecting both to its substance and to its ambiguity.

-End-



-CITE-
    28 USC APPENDIX Rule 27                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 27. Motions

-STATUTE-
      (a) In General.
        (1) Application for Relief. An application for an order or
      other relief is made by motion unless these rules prescribe
      another form. A motion must be in writing unless the court
      permits otherwise.
        (2) Contents of a Motion.
          (A) Grounds and relief sought. A motion must state with
        particularity the grounds for the motion, the relief sought,
        and the legal argument necessary to support it.
          (B) Accompanying documents.
            (i) Any affidavit or other paper necessary to support a
          motion must be served and filed with the motion.
            (ii) An affidavit must contain only factual information,
          not legal argument.
            (iii) A motion seeking substantive relief must include a
          copy of the trial court's opinion or agency's decision as a
          separate exhibit.

          (C) Documents barred or not required.
            (i) A separate brief supporting or responding to a motion
          must not be filed.
            (ii) A notice of motion is not required.
            (iii) A proposed order is not required.

        (3) Response.
          (A) Time to file. Any party may file a response to a motion;
        Rule 27(a)(2) governs its contents. The response must be filed
        within 8 days after service of the motion unless the court
        shortens or extends the time. A motion authorized by Rules 8,
        9, 18, or 41 may be granted before the 8-day period runs only
        if the court gives reasonable notice to the parties that it
        intends to act sooner.
          (B) Request for affirmative relief. A response may include a
        motion for affirmative relief. The time to respond to the new
        motion, and to reply to that response, are governed by Rule
        27(a)(3)(A) and (a)(4). The title of the response must alert
        the court to the request for relief.

        (4) Reply to Response. Any reply to a response must be filed
      within 5 days after service of the response. A reply must not
      present matters that do not relate to the response.

      (b) Disposition of a Motion for a Procedural Order. The court may
    act on a motion for a procedural order - including a motion under
    Rule 26(b) - at any time without awaiting a response, and may, by
    rule or by order in a particular case, authorize its clerk to act
    on specified types of procedural motions. A party adversely
    affected by the court's, or the clerk's, action may file a motion
    to reconsider, vacate, or modify that action. Timely opposition
    filed after the motion is granted in whole or in part does not
    constitute a request to reconsider, vacate, or modify the
    disposition; a motion requesting that relief must be filed.
      (c) Power of a Single Judge to Entertain a Motion. A circuit
    judge may act alone on any motion, but may not dismiss or otherwise
    determine an appeal or other proceeding. A court of appeals may
    provide by rule or by order in a particular case that only the
    court may act on any motion or class of motions. The court may
    review the action of a single judge.
      (d) Form of Papers; Page Limits; and Number of Copies.
        (1) Format.
          (A) Reproduction. A motion, response, or reply may be
        reproduced by any process that yields a clear black image on
        light paper. The paper must be opaque and unglazed. Only one
        side of the paper may be used.
          (B) Cover. A cover is not required, but there must be a
        caption that includes the case number, the name of the court,
        the title of the case, and a brief descriptive title indicating
        the purpose of the motion and identifying the party or parties
        for whom it is filed. If a cover is used, it must be white.
          (C) Binding. The document must be bound in any manner that is
        secure, does not obscure the text, and permits the document to
        lie reasonably flat when open.
          (D) Paper size, line spacing, and margins. The document must
        be on 8 1/2  by 11 inch paper. The text must be double-spaced,
        but quotations more than two lines long may be indented and
        single-spaced. Headings and footnotes may be single-spaced.
        Margins must be at least one inch on all four sides. Page
        numbers may be placed in the margins, but no text may appear
        there.

        (2) Page Limits. A motion or a response to a motion must not
      exceed 20 pages, exclusive of the corporate disclosure statement
      and accompanying documents authorized by Rule 27(a)(2)(B), unless
      the court permits or directs otherwise. A reply to a response
      must not exceed 10 pages.
        (3) Number of Copies. An original and 3 copies must be filed
      unless the court requires a different number by local rule or by
      order in a particular case.

      (e) Oral Argument. A motion will be decided without oral argument
    unless the court orders otherwise.

-SOURCE-
    (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
    Dec. 1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivisions (a) and (b). Many motions seek relief of a sort
    which is ordinarily unopposed or which is granted as of course. The
    provision of subdivision (a) which permits any party to file a
    response in opposition to a motion within 7 days after its service
    upon him assumes that the motion is one of substance which ought
    not be acted upon without affording affected parties an opportunity
    to reply. A motion to dismiss or otherwise determine an appeal is
    clearly such a motion. Motions authorized by Rules 8, 9, 18 and 41
    are likewise motions of substance; but in the nature of the relief
    sought, to afford an adversary an automatic delay of at least 7
    days is undesirable, thus such motions may be acted upon after
    notice which is reasonable under the circumstances.
      The term "motions for procedural orders" is used in subdivision
    (b) to describe motions which do not substantially affect the
    rights of the parties or the ultimate disposition of the appeal. To
    prevent delay in the disposition of such motions, subdivision (b)
    provides that they may be acted upon immediately without awaiting a
    response, subject to the right of any party who is adversely
    affected by the action to seek reconsideration.
      Subdivision (c). Within the general consideration of procedure on
    motions is the problem of the power of a single circuit judge.
    Certain powers are granted to a single judge of a court of appeals
    by statute. Thus, under 28 U.S.C. Sec. 2101(f) a single judge may
    stay execution and enforcement of a judgment to enable a party
    aggrieved to obtain certiorari; under 28 U.S.C. Sec. 2251 a judge
    before whom a habeas corpus proceeding involving a person detained
    by state authority is pending may stay any proceeding against the
    person; under 28 U.S.C. Sec. 2253 a single judge may issue a
    certificate of probable cause. In addition, certain of these rules
    expressly grant power to a single judge. See Rules 8, 9 and 18.
      This subdivision empowers a single circuit judge to act upon
    virtually all requests for intermediate relief which may be made
    during the course of an appeal or other proceeding. By its terms he
    may entertain and act upon any motion other than a motion to
    dismiss or otherwise determine an appeal or other proceeding. But
    the relief sought must be "relief which under these rules may
    properly be sought by motion."
      Examples of the power conferred on a single judge by this
    subdivision are: to extend the time for transmitting the record or
    docketing the appeal (Rules 11 and 12); to permit intervention in
    agency cases (Rule 15), or substitution in any case (Rule 43); to
    permit an appeal in forma pauperis (Rule 24); to enlarge any time
    period fixed by the rules other than that for initiating a
    proceeding in the court of appeals (Rule 26(b)); to permit the
    filing of a brief by amicus curiae (Rule 29); to authorize the
    filing of a deferred appendix (Rule 30(c)), or dispense with the
    requirement of an appendix in a specific case (Rule 30(f)), or
    permit carbon copies of briefs or appendices to be used (Rule
    32(a)); to permit the filing of additional briefs (Rule 28(c)), or
    the filing of briefs of extraordinary length (Rule 28(g)); to
    postpone oral argument (Rule 34(a)), or grant additional time
    therefor (Rule 34(b)).
      Certain rules require that application for the relief or orders
    which they authorize be made by petition. Since relief under those
    rules may not properly be sought by motion, a single judge may not
    entertain requests for such relief. Thus a single judge may not act
    upon requests for permission to appeal (see Rules 5 and 6); or for
    mandamus or other extraordinary writs (see Rule 21), other than for
    stays or injunctions pendente lite, authority to grant which is
    "expressly conferred by these rules" on a single judge under
    certain circumstances (see Rules 8 and 18); or upon petitions for
    rehearing (see Rule 40).
      A court of appeals may by order or rule abridge the power of a
    single judge if it is of the view that a motion or a class of
    motions should be disposed of by a panel. Exercise of any power
    granted a single judge is discretionary with the judge. The final
    sentence in this subdivision makes the disposition of any matter by
    a single judge subject to review by the court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment would give sanction to local rules in a
    number of circuits permitting the clerk to dispose of specified
    types of procedural motions.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (d). The amendment makes it clear that a court may
    require a different number of copies either by rule or by order in
    an individual case. The number of copies of any document that a
    court of appeals needs varies depending upon the way in which the
    court conducts business. The internal operation of the courts of
    appeals necessarily varies from circuit to circuit because of
    differences in the number of judges, the geographic area included
    within the circuit, and other such factors. Uniformity could be
    achieved only by setting the number of copies artificially high so
    that parties in all circuits file enough copies to satisfy the
    needs of the court requiring the greatest number. Rather than do
    that, the Committee decided to make it clear that local rules may
    require a greater or lesser number of copies and that, if the
    circumstances of a particular case indicate the need for a
    different number of copies in that case, the court may so order.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      In addition to amending Rule 27 to conform to uniform drafting
    standards, several substantive amendments are made. The Advisory
    Committee had been working on substantive amendments to Rule 27
    just prior to completion of this larger project.
      Subdivision (a). Paragraph (1) retains the language of the
    existing rule indicating that an application for an order or other
    relief is made by filing a motion unless another form is required
    by some other provision in the rules.
      Paragraph (1) also states that a motion must be in writing unless
    the court permits otherwise. The writing requirement has been
    implicit in the rule; the Advisory Committee decided to make it
    explicit. There are, however, instances in which a court may permit
    oral motions. Perhaps the most common such instance would be a
    motion made during oral argument in the presence of opposing
    counsel; for example, a request for permission to submit a
    supplemental brief on an issue raised by the court for the first
    time at oral argument. Rather than limit oral motions to those made
    during oral argument or, conversely, assume the propriety of making
    even extremely complex motions orally during argument, the Advisory
    Committee decided that it is better to leave the determination of
    the propriety of an oral motion to the court's discretion. The
    provision does not disturb the practice in those circuits that
    permit certain procedural motions, such as a motion for extension
    of time for filing a brief, to be made by telephone and ruled upon
    by the clerk.
      Paragraph (2) outlines the contents of a motion. It begins with
    the general requirement from the current rule that a motion must
    state with particularity the grounds supporting it and the relief
    requested. It adds a requirement that all legal arguments should be
    presented in the body of the motion; a separate brief or memorandum
    supporting or responding to a motion must not be filed. The Supreme
    Court uses this single document approach. Sup. Ct. R. 21.1. In
    furtherance of the requirement that all legal argument must be
    contained in the body of the motion, paragraph (2) also states that
    an affidavit that is attached to a motion should contain only
    factual information and not legal argument.
      Paragraph (2) further states that whenever a motion requests
    substantive relief, a copy of the trial court's opinion or agency's
    decision must be attached.
      Although it is common to present a district court with a proposed
    order along with the motion requesting relief, that is not the
    practice in the courts of appeals. A proposed order is not required
    and is not expected or desired. Nor is a notice of motion required.
      Paragraph (3) retains the provisions of the current rule
    concerning the filing of a response to a motion except that the
    time for responding has been expanded to 10 days rather than 7
    days. Because the time periods in the rule apply to a substantive
    motion as well as a procedural motion, the longer time period may
    help reduce the number of motions for extension of time, or at
    least provide a more realistic time frame within which to make and
    dispose of such a motion.
      A party filing a response in opposition to a motion may also
    request affirmative relief. It is the Advisory Committee's judgment
    that it is permissible to combine the response and the new motion
    in the same document. Indeed, because there may be substantial
    overlap of arguments in the response and in the request for
    affirmative relief, a combined document may be preferable. If a
    request for relief is combined with a response, the caption of the
    document must alert the court to the request for relief. The time
    for a response to such a new request and for reply to that response
    are governed by the general rules regulating responses and replies.
      Paragraph (4) is new. Two circuits currently have rules
    authorizing a reply. As a general matter, a reply should not
    reargue propositions presented in the motion or present matters
    that do not relate to the response. Sometimes matters relevant to
    the motion arise after the motion is filed; treatment of such
    matters in the reply is appropriate even though strictly speaking
    it may not relate to the response.
      Subdivision (b). The material in this subdivision remains
    substantively unchanged except to clarify that one may file a
    motion for reconsideration, etc., of a disposition by either the
    court or the clerk. A new sentence is added indicating that if a
    motion is granted in whole or in part before the filing of timely
    opposition to the motion, the filing of the opposition is not
    treated as a request for reconsideration, etc. A party wishing to
    have the court reconsider, vacate, or modify the disposition must
    file a new motion that addresses the order granting the motion.
      Although the rule does not require a court to do so, it would be
    helpful if, whenever a motion is disposed of before receipt of any
    response from the opposing party, the ruling indicates that it was
    issued without awaiting a response. Such a statement will aid the
    opposing party in deciding whether to request reconsideration. The
    opposing party may have mailed a response about the time of the
    ruling and be uncertain whether the court has considered it.
      Subdivision (c). The changes in this subdivision are stylistic
    only. No substantive changes are intended.
      Subdivision (d). This subdivision has been substantially revised.
      The format requirements have been moved from Rule 32(b) to
    paragraph (1) of this subdivision. No cover is required, but a
    caption is needed as well as a descriptive title indicating the
    purpose of the motion and identifying the party or parties for whom
    it is filed. Spiral binding or secure stapling at the upper
    left-hand corner satisfies the binding requirement. But they are
    not intended to be the exclusive methods of binding.
      Paragraph (2) establishes page limits; twenty pages for a motion
    or a response, and ten pages for a reply. Three circuits have
    established page limits by local rule. This rule does not establish
    special page limits for those instances in which a party combines a
    response to a motion with a new request for affirmative relief.
    Because a combined document most often will be used when there is
    substantial overlap in the argument in opposition to the motion and
    in the argument for the affirmative relief, twenty pages may be
    sufficient in most instances. If it is not, the party may request
    additional pages. If ten pages is insufficient for the original
    movant to both reply to the response, and respond to the new
    request for affirmative relief, two separate documents may be used
    or a request for additional pages may be made.
      The changes in paragraph (4) ae stylistic only. No substantive
    changes are intended.
      Subdivision (e). This new provision makes it clear that there is
    no right to oral argument on a motion. Seven circuits have local
    rules stating that oral argument of motions will not be held unless
    the court orders it.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (a)(3)(A). Subdivision (a)(3)(A) presently requires
    that a response to a motion be filed within 10 days after service
    of the motion. Intermediate Saturdays, Sundays, and legal holidays
    are counted in computing that 10-day deadline, which means that,
    except when the 10-day deadline ends on a weekend or legal holiday,
    parties generally must respond to motions within 10 actual days.
      Fed. R. App. P. 26(a)(2) has been amended to provide that, in
    computing any period of time, a litigant should "[e]xclude
    intermediate Saturdays, Sundays, and legal holidays when the period
    is less than 11 days, unless stated in calendar days." This change
    in the method of computing deadlines means that 10-day deadlines
    (such as that in subdivision (a)(3)(A)) have been lengthened as a
    practical matter. Under the new computation method, parties would
    never have less than 14 actual days to respond to motions, and
    legal holidays could extend that period to as much as 18 days.
      Permitting parties to take two weeks or more to respond to
    motions would introduce significant and unwarranted delay into
    appellate proceedings. For that reason, the 10-day deadline in
    subdivision (a)(3)(A) has been reduced to 8 days. This change will,
    as a practical matter, ensure that every party will have at least
    10 actual days - but, in the absence of a legal holiday, no more
    than 12 actual days - to respond to motions. The court continues to
    have discretion to shorten or extend that time in appropriate
    cases.
      Changes Made After Publication and Comments. In response to the
    objections of commentators, the time to respond to a motion was
    increased from the proposed 7 days to 8 days. No other changes were
    made to the text of the proposed amendment or to the Committee
    Note.
      Subdivision (a)(4). Subdivision (a)(4) presently requires that a
    reply to a response to a motion be filed within 7 days after
    service of the response. Intermediate Saturdays, Sundays, and legal
    holidays are counted in computing that 7-day deadline, which means
    that, except when the 7-day deadline ends on a weekend or legal
    holiday, parties generally must reply to responses to motions
    within one week.
      Fed. R. App. P. 26(a)(2) has been amended to provide that, in
    computing any period of time, a litigant should "[e]xclude
    intermediate Saturdays, Sundays, and legal holidays when the period
    is less than 11 days, unless stated in calendar days." This change
    in the method of computing deadlines means that 7-day deadlines
    (such as that in subdivision (a)(4)) have been lengthened as a
    practical matter. Under the new computation method, parties would
    never have less than 9 actual days to reply to responses to
    motions, and legal holidays could extend that period to as much as
    13 days.
      Permitting parties to take 9 or more days to reply to a response
    to a motion would introduce significant and unwarranted delay into
    appellate proceedings. For that reason, the 7-day deadline in
    subdivision (a)(4) has been reduced to 5 days. This change will, as
    a practical matter, ensure that every party will have 7 actual days
    to file replies to responses to motions (in the absence of a legal
    holiday).
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.
      Subdivision (d)(1)(B). A cover is not required on motions,
    responses to motions, or replies to responses to motions. However,
    Rule 27(d)(1)(B) has been amended to provide that if a cover is
    nevertheless used on such a paper, the cover must be white. The
    amendment is intended to promote uniformity in federal appellate
    practice.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 28                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 28. Briefs

-STATUTE-
      (a) Appellant's Brief. The appellant's brief must contain, under
    appropriate headings and in the order indicated:
        (1) a corporate disclosure statement if required by Rule 26.1;
        (2) a table of contents, with page references;
        (3) a table of authorities - cases (alphabetically arranged),
      statutes, and other authorities - with references to the pages of
      the brief where they are cited;
        (4) a jurisdictional statement, including:
          (A) the basis for the district court's or agency's
        subject-matter jurisdiction, with citations to applicable
        statutory provisions and stating relevant facts establishing
        jurisdiction;
          (B) the basis for the court of appeals' jurisdiction, with
        citations to applicable statutory provisions and stating
        relevant facts establishing jurisdiction;
          (C) the filing dates establishing the timeliness of the
        appeal or petition for review; and
          (D) an assertion that the appeal is from a final order or
        judgment that disposes of all parties' claims, or information
        establishing the court of appeals' jurisdiction on some other
        basis;

        (5) a statement of the issues presented for review;
        (6) a statement of the case briefly indicating the nature of
      the case, the course of proceedings, and the disposition below;
        (7) a statement of facts relevant to the issues submitted for
      review with appropriate references to the record (see Rule
      28(e));
        (8) a summary of the argument, which must contain a succinct,
      clear, and accurate statement of the arguments made in the body
      of the brief, and which must not merely repeat the argument
      headings;
        (9) the argument, which must contain:
          (A) appellant's contentions and the reasons for them, with
        citations to the authorities and parts of the record on which
        the appellant relies; and
          (B) for each issue, a concise statement of the applicable
        standard of review (which may appear in the discussion of the
        issue or under a separate heading placed before the discussion
        of the issues);

        (10) a short conclusion stating the precise relief sought; and
        (11) the certificate of compliance, if required by Rule
      32(a)(7).

      (b) Appellee's Brief. The appellee's brief must conform to the
    requirements of Rule 28(a)(1)-(9) and (11), except that none of the
    following need appear unless the appellee is dissatisfied with the
    appellant's statement:
        (1) the jurisdictional statement;
        (2) the statement of the issues;
        (3) the statement of the case;
        (4) the statement of the facts; and
        (5) the statement of the standard of review.

      (c) Reply Brief. The appellant may file a brief in reply to the
    appellee's brief. An appellee who has cross-appealed may file a
    brief in reply to the appellant's response to the issues presented
    by the cross-appeal. Unless the court permits, no further briefs
    may be filed. A reply brief must contain a table of contents, with
    page references, and a table of authorities - cases (alphabetically
    arranged), statutes, and other authorities - with references to the
    pages of the reply brief where they are cited.
      (d) References to Parties. In briefs and at oral argument,
    counsel should minimize use of the terms "appellant" and
    "appellee." To make briefs clear, counsel should use the parties'
    actual names or the designations used in the lower court or agency
    proceeding, or such descriptive terms as "the employee," "the
    injured person," "the taxpayer," "the ship," "the stevedore."
      (e) References to the Record. References to the parts of the
    record contained in the appendix filed with the appellant's brief
    must be to the pages of the appendix. If the appendix is prepared
    after the briefs are filed, a party referring to the record must
    follow one of the methods detailed in Rule 30(c). If the original
    record is used under Rule 30(f) and is not consecutively paginated,
    or if the brief refers to an unreproduced part of the record, any
    reference must be to the page of the original document. For
    example:
        -- Answer p. 7;
        -- Motion for Judgment p. 2;
        -- Transcript p. 231.

    Only clear abbreviations may be used. A party referring to evidence
    whose admissibility is in controversy must cite the pages of the
    appendix or of the transcript at which the evidence was identified,
    offered, and received or rejected.
      (f) Reproduction of Statutes, Rules, Regulations, etc. If the
    court's determination of the issues presented requires the study of
    statutes, rules, regulations, etc., the relevant parts must be set
    out in the brief or in an addendum at the end, or may be supplied
    to the court in pamphlet form.
      (g) [Reserved]
      (h) Briefs in a Case Involving a Cross-Appeal. If a cross-appeal
    is filed, the party who files a notice of appeal first is the
    appellant for the purposes of this rule and Rules 30, 31, and 34.
    If notices are filed on the same day, the plaintiff in the
    proceeding below is the appellant. These designations may be
    modified by agreement of the parties or by court order. With
    respect to appellee's cross-appeal and response to appellant's
    brief, appellee's brief must conform to the requirements of Rule
    28(a)(1)-(11). But an appellee who is satisfied with appellant's
    statement need not include a statement of the case or of the facts.
      (i) Briefs in a Case Involving Multiple Appellants or Appellees.
    In a case involving more than one appellant or appellee, including
    consolidated cases, any number of appellants or appellees may join
    in a brief, and any party may adopt by reference a part of
    another's brief. Parties may also join in reply briefs.
      (j) Citation of Supplemental Authorities. If pertinent and
    significant authorities come to a party's attention after the
    party's brief has been filed - or after oral argument but before
    decision - a party may promptly advise the circuit clerk by letter,
    with a copy to all other parties, setting forth the citations. The
    letter must state the reasons for the supplemental citations,
    referring either to the page of the brief or to a point argued
    orally. The body of the letter must not exceed 350 words. Any
    response must be made promptly and must be similarly limited.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff.
    Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule is based upon Supreme Court Rule 40. For variations in
    present circuit rules on briefs see 2d Cir. Rule 17, 3d Cir. Rule
    24, 5th Cir. Rule 24, and 7th Cir. Rule 17. All circuits now limit
    the number of pages of briefs, a majority limiting the brief to 50
    pages of standard typographic printing. Fifty pages of standard
    typographic printing is the approximate equivalent of 70 pages of
    typewritten text, given the page sizes required by Rule 32 and the
    requirement set out there that text produced by a method other than
    standard typographic must be double spaced.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment eliminates the distinction appearing in
    the present rule between the permissible length in pages of printed
    and typewritten briefs, investigation of the matter having
    disclosed that the number of words on the printed page is little if
    any larger than the number on a page typed in standard elite type.
      The provision is made subject to local rule to permit the court
    of appeals to require that typewritten briefs be typed in larger
    type and permit a correspondingly larger number of pages.
      Subdivision (j). Proposed new Rule 28(j) makes provision for
    calling the court's attention to authorities that come to the
    party's attention after the brief has been filed. It is patterned
    after the practice under local rule in some of the circuits.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      While Rule 28(g) can be read as requiring that tables of
    authorities be included in a reply brief, such tables are often not
    included. Their absence impedes efficient use of the reply brief to
    ascertain the appellant's response to a particular argument of the
    appellee or to the appellee's use of a particular authority. The
    amendment to Rule 28(c) is intended to make it clear that such
    tables are required in reply briefs.
      The amendment to Rule 28(j) is technical. No substantive change
    is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT       
      The amendment provides that the corporate disclosure statement
    required by new rule 26.1 shall be treated similarly to tables of
    contents and tables of citations and shall not be counted for
    purposes of the number of pages allowed in a brief.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Subdivision (a). The amendment adds a new subparagraph (2) that
    requires an appellant to include a specific jurisdictional
    statement in the appellant's brief to aid the court of appeals in
    determining whether it has both federal subject matter and
    appellate jurisdiction.
      Subdivision (b). The amendment requires the appellee to include a
    jurisdictional statement in the appellee's brief except that the
    appellee need not include the statement if the appellee is
    satisfied with the appellant's jurisdictional statement.
      Subdivision (h). The amendment provides that when more than one
    party appeals from a judgment or order, the party filing the first
    appeal is normally treated as the appellant for purposes of this
    rule and Rules 30 and 31. The party who first files an appeal
    usually is the principal appellant and should be treated as such.
    Parties who file a notice of appeal after the first notice often
    bring protective appeals and they should be treated as cross
    appellants. Local rules in the Fourth and Federal Circuits now take
    that approach. If notices of appeal are filed on the same day, the
    rule follows the old approach of treating the plaintiff below as
    the appellant. For purposes of this rule, in criminal cases "the
    plaintiff" means the United States. In those instances where the
    designations provided by the rule are inappropriate, they may be
    altered by agreement of the parties or by an order of the court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Note to paragraph (a)(5). The amendment requires an appellant's
    brief to state the standard of review applicable to each issue on
    appeal. Five circuits currently require these statements.
    Experience in those circuits indicates that requiring a statement
    of the standard of review generally results in arguments that are
    properly shaped in light of the standard.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). The amendment adds a requirement that an
    appellant's brief contain a summary of the argument. A number of
    circuits have local rules requiring a summary and the courts report
    that they find the summary useful. See, D.C. Cir. R. 11(a)(5); 5th
    Cir. R. 28.2.2; 8th Cir. R. 28A(i)(6); 11th Cir. R. 28-2(i); and
    Fed. Cir. R. 28.
      Subdivision (b). The amendment adds a requirement that an
    appellee's brief contain a summary of the argument.
      Subdivision (g). The amendment adds proof of service to the list
    of items in a brief that do not count for purposes of the page
    limitation. The concurrent amendment to Rule 25(d) requires a
    certificate of service to list the addresses to which a paper was
    mailed or at which it was delivered. When a number of parties must
    be served, the listing of addresses may run to several pages and
    those pages should not count for purposes of the page limitation.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In additional to changes made to
    improve the understanding, the Advisory Committee has changed
    language to make style and terminology consistent throughout the
    appellate rules. These changes are intended to be stylistic only.
      Several substantive changes are made in this rule, however. Most
    of them are necessary to conform Rule 28 with changes recommended
    in Rule 32.
      Subdivision (a). The current rule requires a brief to include a
    statement of the case which includes a description of the nature of
    the case, the course of proceedings, the disposition of the case -
    all of which might be described as the procedural history - as well
    as a statement of the facts. The amendments separate this into two
    statements: one procedural, called the statement of the case; and
    one factual, called the statement of the facts. The Advisory
    Committee believes that the separation will be helpful to the
    judges. The table of contents and table of authorities have also
    been separated into two distinct items.
      An additional amendment of subdivision (a) is made to conform it
    with an amendment being made to Rule 32. Rule 32(a)(7) generally
    requires a brief to include a certificate of compliance with
    type-volume limitations contained in that rule. (No certificate is
    required if a brief does not exceed 30 pages, or 15 pages for a
    reply brief.) Rule 28(a) is amended to include that certificate in
    the list of items that must be included in a brief whenever it is
    required by Rule 32.
      Subdivision (g). The amendments delete subdivision (g) that
    limited a principal brief to 50 pages and a reply brief to 25
    pages. The length limitations have been moved to Rule 32. Rule 32
    deals generally with the format for a brief or appendix.
      Subdivision (h). The amendment requires an appellee's brief to
    comply with Rule 28(a)(1) through (11) with regard to a
    cross-appeal. The addition of separate paragraphs requiring a
    corporate disclosure statement, table of authorities, statement of
    facts, and certificate of compliance increased the relevant
    paragraphs of subdivision (a) from (7) to (11). The other changes
    are stylistic; no substantive changes are intended.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (j). In the past, Rule 28(j) has required parties to
    describe supplemental authorities "without argument." Enforcement
    of this restriction has been lax, in part because of the difficulty
    of distinguishing "state[ment] . . . [of] the reasons for the
    supplemental citations," which is required, from "argument" about
    the supplemental citations, which is forbidden.
      As amended, Rule 28(j) continues to require parties to state the
    reasons for supplemental citations, with reference to the part of a
    brief or oral argument to which the supplemental citations pertain.
    But Rule 28(j) no longer forbids "argument." Rather, Rule 28(j)
    permits parties to decide for themselves what they wish to say
    about supplemental authorities. The only restriction upon parties
    is that the body of a Rule 28(j) letter - that is, the part of the
    letter that begins with the first word after the salutation and
    ends with the last word before the complimentary close - cannot
    exceed 350 words. All words found in footnotes will count toward
    the 350-word limit.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note,
    except that the word limit was increased from 250 to 350 in
    response to the complaint of some commentators that parties would
    have difficulty bringing multiple supplemental authorities to the
    attention of the court in one 250-word letter.

-End-



-CITE-
    28 USC APPENDIX Rule 29                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 29. Brief of an Amicus Curiae

-STATUTE-
      (a) When Permitted. The United States or its officer or agency,
    or a State, Territory, Commonwealth, or the District of Columbia
    may file an amicus-curiae brief without the consent of the parties
    or leave of court. Any other amicus curiae may file a brief only by
    leave of court or if the brief states that all parties have
    consented to its filing.
      (b) Motion for Leave to File. The motion must be accompanied by
    the proposed brief and state:
        (1) the movant's interest; and
        (2) the reason why an amicus brief is desirable and why the
      matters asserted are relevant to the disposition of the case.

      (c) Contents and Form. An amicus brief must comply with Rule 32.
    In addition to the requirements of Rule 32, the cover must identify
    the party or parties supported and indicate whether the brief
    supports affirmance or reversal. If an amicus curiae is a
    corporation, the brief must include a disclosure statement like
    that required of parties by Rule 26.1. An amicus brief need not
    comply with Rule 28, but must include the following:
        (1) a table of contents, with page references;
        (2) a table of authorities - cases (alphabetically arranged),
      statutes and other authorities - with references to the pages of
      the brief where they are cited;
        (3) a concise statement of the identity of the amicus curiae,
      its interest in the case, and the source of its authority to
      file;
        (4) an argument, which may be preceded by a summary and which
      need not include a statement of the applicable standard of
      review; and
        (5) a certificate of compliance, if required by Rule 32(a)(7).

      (d) Length. Except by the court's permission, an amicus brief may
    be no more than one-half the maximum length authorized by these
    rules for a party's principal brief. If the court grants a party
    permission to file a longer brief, that extension does not affect
    the length of an amicus brief.
      (e) Time for Filing. An amicus curiae must file its brief,
    accompanied by a motion for filing when necessary, no later than 7
    days after the principal brief of the party being supported is
    filed. An amicus curiae that does not support either party must
    file its brief no later than 7 days after the appellant's or
    petitioner's principal brief is filed. A court may grant leave for
    later filing, specifying the time within which an opposing party
    may answer.
      (f) Reply Brief. Except by the court's permission, an amicus
    curiae may not file a reply brief.
      (g) Oral Argument. An amicus curiae may participate in oral
    argument only with the court's permission.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Only five circuits presently regulate the filing of the brief of
    an amicus curiae. See D.C. Cir. Rule 18(j); 1st Cir. Rule 23(10);
    6th Cir. Rule 17(4); 9th Cir. Rule 18(9); 10th Cir. Rule 20. This
    rule follows the practice of a majority of circuits in requiring
    leave of court to file an amicus brief except under the
    circumstances stated therein. Compare Supreme Court Rule 42.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.
      Several substantive changes are made in this rule, however.
      Subdivision (a). The major change in this subpart is that when a
    brief is filed with the consent of all parties, it is no longer
    necessary to obtain the parties' written consent and to file the
    consents with the brief. It is sufficient to obtain the parties'
    oral consent and to state in the brief that all parties have
    consented. It is sometimes difficult to obtain all the written
    consents by the filing deadline and it is not unusual for counsel
    to represent that parties have consented; for example, in a motion
    for extension of time to file a brief it is not unusual for the
    movant to state that the other parties have been consulted and they
    do not object to the extension. If a party's consent has been
    misrepresented, the party will be able to take action before the
    court considers the amicus brief.
      The District of Columbia is added to the list of entities allowed
    to file an amicus brief without consent of all parties. The other
    changes in this material are stylistic.
      Subdivision (b). The provision in the former rule, granting
    permission to conditionally file the brief with the motion, is
    changed to one requiring that the brief accompany the motion. Sup.
    Ct. R. 37.4 requires that the proposed brief be presented with the
    motion.
      The former rule only required the motion to identify the
    applicant's interest and to generally state the reasons why an
    amicus brief is desirable. The amended rule additionally requires
    that the motion state the relevance of the matters asserted to the
    disposition of the case. As Sup. Ct. R. 37.1 states:
      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 curiae brief which does not serve this purpose simply
      burdens the staff and facilities of the Court and its filing is
      not favored.
    Because the relevance of the matters asserted by an amicus is
    ordinarily the most compelling reason for granting leave to file,
    the Committee believes that it is helpful to explicitly require
    such a showing.
      Subdivision (c). The provisions in this subdivision are entirely
    new. Previously there was confusion as to whether an amicus brief
    must include all of the items listed in Rule 28. Out of caution
    practitioners in some circuits included all those items. Ordinarily
    that is unnecessary.
      The requirement that the cover identify the party supported and
    indicate whether the amicus supports affirmance or reversal is an
    administrative aid.
      Paragraph (c)(3) requires an amicus to state the source of its
    authority to file. The amicus simply must identify which of the
    provisions in Rule 29(a) provides the basis for the amicus to file
    its brief.
      Subdivision (d). This new provision imposes a shorter page limit
    for an amicus brief than for a party's brief. This is appropriate
    for two reasons. First, an amicus may omit certain items that must
    be included in a party's brief. Second, an amicus brief is
    supplemental. It need not address all issues or all facets of a
    case. It should treat only matter not adequately addressed by a
    party.
      Subdivision (e). The time limit for filing is changed. An amicus
    brief must be filed no later than 7 days after the principal brief
    of the party being supported is filed. Occasionally, an amicus
    supports neither party; in such instances, the amendment provides
    that the amicus brief must be filed no later than 7 days after the
    appellant's or petitioner's principal brief is filed. Note that in
    both instances the 7-day period runs from when a brief is filed.
    The passive voice - "is filed" - is used deliberately. A party or
    amicus can send its brief to a court for filing and, under Rule 25,
    the brief is timely if mailed within the filing period. Although
    the brief is timely if mailed within the filing period, it is not
    "filed" until the court receives it and file stamps it. "Filing" is
    done by the court, not by the party. It may be necessary for an
    amicus to contact the court to ascertain the filing date.
      The 7-day stagger was adopted because it is long enough to permit
    an amicus to review the completed brief of the party being
    supported and avoid repetitious argument. A 7-day period also is
    short enough that no adjustment need be made in the opposing
    party's briefing schedule. The opposing party will have sufficient
    time to review arguments made by the amicus and address them in the
    party's responsive pleading. The timetable for filing the parties'
    briefs is unaffected by this change.
      A court may grant permission to file an amicus brief in a context
    in which the party does not file a "principal brief"; for example,
    an amicus may be permitted to file in support of a party's petition
    for rehearing. In such instances the court will establish the
    filing time for the amicus.
      The former rule's statement that a court may, for cause shown,
    grant leave for later filing is unnecessary. Rule 26(b) grants
    general authority to enlarge the time prescribed in these rules for
    good cause shown. This new rule, however, states that when a court
    grants permission for later filing, the court must specify the
    period within which an opposing party may answer the arguments of
    the amicus.
      Subdivision (f). This subdivision generally prohibits the filing
    a a reply brief by an amicus curiae. Sup. Ct. R. 37 and local rules
    of the D.C., Ninth, and Federal Circuits state that an amicus may
    not file a reply brief. The role of an amicus should not require
    the use of a reply brief.
      Subdivision (g). The language of this subdivision stating that an
    amicus will be granted permission to participate in oral argument
    "only for extraordinary reasons" has been deleted. The change is
    made to reflect more accurately the current practice in which it is
    not unusual for a court to permit an amicus to argue when a party
    is willing to share its argument time with the amicus. The
    Committee does not intend, however, to suggest that in other
    instances an amicus will be permitted to argue absent extraordinary
    circumstances.

-End-



-CITE-
    28 USC APPENDIX Rule 30                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 30. Appendix to the Briefs

-STATUTE-
      (a) Appellant's Responsibility.
        (1) Contents of the Appendix. The appellant must prepare and
      file an appendix to the briefs containing:
          (A) the relevant docket entries in the proceeding below;
          (B) the relevant portions of the pleadings, charge, findings,
        or opinion;
          (C) the judgment, order, or decision in question; and
          (D) other parts of the record to which the parties wish to
        direct the court's attention.

        (2) Excluded Material. Memoranda of law in the district court
      should not be included in the appendix unless they have
      independent relevance. Parts of the record may be relied on by
      the court or the parties even though not included in the
      appendix.
        (3) Time to File; Number of Copies. Unless filing is deferred
      under Rule 30(c), the appellant must file 10 copies of the
      appendix with the brief and must serve one copy on counsel for
      each party separately represented. An unrepresented party
      proceeding in forma pauperis must file 4 legible copies with the
      clerk, and one copy must be served on counsel for each separately
      represented party. The court may by local rule or by order in a
      particular case require the filing or service of a different
      number.

      (b) All Parties' Responsibilities.
        (1) Determining the Contents of the Appendix. The parties are
      encouraged to agree on the contents of the appendix. In the
      absence of an agreement, the appellant must, within 10 days after
      the record is filed, serve on the appellee a designation of the
      parts of the record the appellant intends to include in the
      appendix and a statement of the issues the appellant intends to
      present for review. The appellee may, within 10 days after
      receiving the designation, serve on the appellant a designation
      of additional parts to which it wishes to direct the court's
      attention. The appellant must include the designated parts in the
      appendix. The parties must not engage in unnecessary designation
      of parts of the record, because the entire record is available to
      the court. This paragraph applies also to a cross-appellant and a
      cross-appellee.
        (2) Costs of Appendix. Unless the parties agree otherwise, the
      appellant must pay the cost of the appendix. If the appellant
      considers parts of the record designated by the appellee to be
      unnecessary, the appellant may advise the appellee, who must then
      advance the cost of including those parts. The cost of the
      appendix is a taxable cost. But if any party causes unnecessary
      parts of the record to be included in the appendix, the court may
      impose the cost of those parts on that party. Each circuit must,
      by local rule, provide for sanctions against attorneys who
      unreasonably and vexatiously increase litigation costs by
      including unnecessary material in the appendix.

      (c) Deferred Appendix.
        (1) Deferral Until After Briefs Are Filed. The court may
      provide by rule for classes of cases or by order in a particular
      case that preparation of the appendix may be deferred until after
      the briefs have been filed and that the appendix may be filed 21
      days after the appellee's brief is served. Even though the filing
      of the appendix may be deferred, Rule 30(b) applies; except that
      a party must designate the parts of the record it wants included
      in the appendix when it serves its brief, and need not include a
      statement of the issues presented.
        (2) References to the Record.
          (A) If the deferred appendix is used, the parties may cite in
        their briefs the pertinent pages of the record. When the
        appendix is prepared, the record pages cited in the briefs must
        be indicated by inserting record page numbers, in brackets, at
        places in the appendix where those pages of the record appear.
          (B) A party who wants to refer directly to pages of the
        appendix may serve and file copies of the brief within the time
        required by Rule 31(a), containing appropriate references to
        pertinent pages of the record. In that event, within 14 days
        after the appendix is filed, the party must serve and file
        copies of the brief, containing references to the pages of the
        appendix in place of or in addition to the references to the
        pertinent pages of the record. Except for the correction of
        typographical errors, no other changes may be made to the
        brief.

      (d) Format of the Appendix. The appendix must begin with a table
    of contents identifying the page at which each part begins. The
    relevant docket entries must follow the table of contents. Other
    parts of the record must follow chronologically. When pages from
    the transcript of proceedings are placed in the appendix, the
    transcript page numbers must be shown in brackets immediately
    before the included pages. Omissions in the text of papers or of
    the transcript must be indicated by asterisks. Immaterial formal
    matters (captions, subscriptions, acknowledgments, etc.) should be
    omitted.
      (e) Reproduction of Exhibits. Exhibits designated for inclusion
    in the appendix may be reproduced in a separate volume, or volumes,
    suitably indexed. Four copies must be filed with the appendix, and
    one copy must be served on counsel for each separately represented
    party. If a transcript of a proceeding before an administrative
    agency, board, commission, or officer was used in a district-court
    action and has been designated for inclusion in the appendix, the
    transcript must be placed in the appendix as an exhibit.
      (f) Appeal on the Original Record Without an Appendix. The court
    may, either by rule for all cases or classes of cases or by order
    in a particular case, dispense with the appendix and permit an
    appeal to proceed on the original record with any copies of the
    record, or relevant parts, that the court may order the parties to
    file.

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). Only two circuits presently require a printed
    record (5th Cir. Rule 23(a); 8th Cir. Rule 10 (in civil appeals
    only)), and the rules and practice in those circuits combine to
    make the difference between a printed record and the appendix,
    which is now used in eight circuits and in the Supreme Court in
    lieu of the printed record, largely nominal. The essential
    characteristics of the appendix method are: (1) the entire record
    may not be reproduced; (2) instead, the parties are to set out in
    an appendix to the briefs those parts of the record which in their
    judgment the judges must consult in order to determine the issues
    presented by the appeal; (3) the appendix is not the record but
    merely a selection therefrom for the convenience of the judges of
    the court of appeals; the record is the actual trial court record,
    and the record itself is always available to supply inadvertent
    omissions from the appendix. These essentials are incorporated,
    either by rule or by practice, in the circuits that continue to
    require the printed record rather than the appendix. See 5th Cir.
    Rule 23(a)(9) and 8th Cir. Rule 10(a)-(d).
      Subdivision (b). Under the practice in six of the eight circuits
    which now use the appendix method, unless the parties agree to use
    a single appendix, the appellant files with his brief an appendix
    containing the parts of the record which he deems it essential that
    the court read in order to determine the questions presented. If
    the appellee deems additional parts of the record necessary he must
    include such parts as an appendix to his brief. The proposed rules
    differ from that practice. By the new rule a single appendix is to
    be filed. It is to be prepared by the appellant, who must include
    therein those parts which he deems essential and those which the
    appellee designates as essential.
      Under the practice by which each party files his own appendix the
    resulting reproduction of essential parts of the record is often
    fragmentary; it is not infrequently necessary to piece several
    appendices together to arrive at a usable reproduction. Too, there
    seems to be a tendency on the part of some appellants to reproduce
    less than what is necessary for a determination of the issues
    presented (see Moran Towing Corp. v. M. A. Gammino Construction
    Co., 363 F.2d 108 (1st Cir. 1966); Walters v. Shari Music
    Publishing Corp., 298 F.2d 206 (2d Cir. 1962) and cases cited
    therein; Morrison v. Texas Co., 289 F.2d 382 (7th Cir. 1961) and
    cases cited therein), a tendency which is doubtless encouraged by
    the requirement in present rules that the appellee reproduce in his
    separately prepared appendix such necessary parts of the record as
    are not included by the appellant.
      Under the proposed rule responsibility for the preparation of the
    appendix is placed on the appellant. If the appellee feels that the
    appellant has omitted essential portions of the record, he may
    require the appellant to include such portions in the appendix. The
    appellant is protected against a demand that he reproduce parts
    which he considers unnecessary by the provisions entitling him to
    require the appellee to advance the costs of reproducing such parts
    and authorizing denial of costs for matter unnecessarily
    reproduced.
      Subdivision (c). This subdivision permits the appellant to elect
    to defer the production of the appendix to the briefs until the
    briefs of both sides are written, and authorizes a court of appeals
    to require such deferred filing by rule or order. The advantage of
    this method of preparing the appendix is that it permits the
    parties to determine what parts of the record need to be reproduced
    in the light of the issues actually presented by the briefs. Often
    neither side is in a position to say precisely what is needed until
    the briefs are completed. Once the argument on both sides is known,
    it should be possible to confine the matter reproduced in the
    appendix to that which is essential to a determination of the
    appeal or review. This method of preparing the appendix is
    presently in use in the Tenth Circuit (Rule 17) and in other
    circuits in review of agency proceedings, and it has proven its
    value in reducing the volume required to be reproduced. When the
    record is long, use of this method is likely to result in
    substantial economy to the parties.
      Subdivision (e). The purpose of this subdivision is to reduce the
    cost of reproducing exhibits. While subdivision (a) requires that
    10 copies of the appendix be filed, unless the court requires a
    lesser number, subdivision (e) permits exhibits necessary for the
    determination of an appeal to be bound separately, and requires
    only 4 copies of such a separate volume or volumes to be filed and
    a single copy to be served on counsel.
      Subdivision (f). This subdivision authorizes a court of appeals
    to dispense with the appendix method of reproducing parts of the
    record and to hear appeals on the original record and such copies
    of it as the court may require.
      Since 1962 the Ninth Circuit has permitted all appeals to be
    heard on the original record and a very limited number of copies.
    Under the practice as adopted in 1962, any party to an appeal could
    elect to have the appeal heard on the original record and two
    copies thereof rather than on the printed record theretofore
    required. The resulting substantial saving of printing costs led to
    the election of the new practice in virtually all cases, and by
    1967 the use of printed records had ceased. By a recent amendment,
    the Ninth Circuit has abolished the printed record altogether. Its
    rules now provide that all appeals are to be heard on the original
    record, and it has reduced the number of copies required to two
    sets of copies of the transmitted original papers (excluding copies
    of exhibits, which need not be filed unless specifically ordered).
    See 9 Cir. Rule 10, as amended June 2, 1967, effective September 1,
    1967. The Eighth Circuit permits appeals in criminal cases and in
    habeas corpus and 28 U.S.C. Sec. 2255 proceedings to be heard on
    the original record and two copies thereof. See 8 Cir. Rule 8
    (i)-(j). The Tenth Circuit permits appeals in all cases to be heard
    on the original record and four copies thereof whenever the record
    consists of two hundred pages or less. See 10 Cir. Rule 17(a). This
    subdivision expressly authorizes the continuation of the practices
    in the Eighth, Ninth and Tenth Circuits.
      The judges of the Court of Appeals for the Ninth Circuit have
    expressed complete satisfaction with the practice there in use and
    have suggested that attention be called to the advantages which it
    offers in terms of reducing cost.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      Subdivision (a). The amendment of subdivision (a) is related to
    the amendment of Rule 31(a), which authorizes a court of appeals to
    shorten the time for filing briefs. By virtue of this amendment, if
    the time for filing the brief of the appellant is shortened the
    time for filing the appendix is likewise shortened.
      Subdivision (c). As originally written, subdivision (c) permitted
    the appellant to elect to defer filing of the appendix until 21
    days after service of the brief of the appellee. As amended,
    subdivision (c) requires that an order of court be obtained before
    filing of the appendix can be deferred, unless a court permits
    deferred filing by local rule. The amendment should not cause use
    of the deferred appendix to be viewed with disfavor. In cases
    involving lengthy records, permission to defer filing of the
    appendix should be freely granted as an inducement to the parties
    to include in the appendix only matter that the briefs show to be
    necessary for consideration by the judges. But the Committee is
    advised that appellants have elected to defer filing of the
    appendix in cases involving brief records merely to obtain the 21
    day delay. The subdivision is amended to prevent that practice.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      Subdivision (a). During its study of the separate appendix [see
    Report on the Advisory Committee on the Federal Appellate Rules on
    the Operation of Rule 30,  -  FRD  -  (1985)], the Advisory
    Committee found that this document was frequently encumbered with
    memoranda submitted to the trial court. United States v. Noall, 587
    F.2d 123, 125 n. 1 (2nd Cir. 1978). See generally Drewett v. Aetna
    Cas. & Sur. Co., 539 F.2d 496, 500 (5th Cir. 1976); Volkswagenwerk
    Aktiengesellschaft v. Church, 413 F.2d 1126, 1128 (9th Cir. 1969).
    Inclusion of such material makes the appendix more bulky and
    therefore less useful to the appellate panel. It also can increase
    significantly the costs of litigation.
      There are occasions when such trial court memoranda have
    independent relevance in the appellate litigation. For instance,
    there may be a dispute as to whether a particular point was raised
    or whether a concession was made in the district court. In such
    circumstances, it is appropriate to include pertinent sections of
    such memoranda in the appendix.
      Subdivision (b). The amendment to subdivision (b) is designed to
    require the circuits, by local rule, to establish a procedural
    mechanism for the imposition of sanctions against those attorneys
    who conduct appellate litigation in bad faith. Both 28 U.S.C. Sec.
    1927 and the inherent power of the court authorized such sanctions.
    See Brennan v. Local 357, International Brotherhood of Teamsters,
    709 F.2d 611 (9th Cir. 1983). See generally Roadway Express, Inc.
    v. Piper, 447 U.S. 752 (1980). While considerations of uniformity
    are important and doubtless will be taken into account by the
    judges of the respective circuits, the Advisory Committee believes
    that, at this time, the circuits need the flexibility to tailor
    their approach to the conditions of local practice. The local rule
    shall provide for notice and opportunity to respond before the
    imposition of any sanction.
      Technical amendments also are made to subdivisions (a), (b) and
    (c) which are not intended to be substantive changes.

    TAXATION OF FEES IN APPEALS IN WHICH THE REQUIREMENT OF AN APPENDIX
                             IS DISPENSED WITH
      The Judicial Conference of the United States at its session on
    October 28th and 29th approved the following resolution relating to
    fees to be taxed in the courts of appeals as submitted by the
    Judicial Council of the Ninth Circuit with the proviso that its
    application to any court of appeals shall be at the election of
    each such court:
      For some time it has been the practice in the Ninth Circuit Court
    of Appeals to dispense with an appendix in an appellate record and
    to hear the appeal on the original record, with a number of copies
    thereof being supplied (Rule 30f, Federal Rules of Appellate
    Procedure). It has been the practice of the Court to tax a fee of
    $5 in small records and $10 in large records for the time of the
    clerk involved in preparing such appeals and by way of
    reimbursement for postage expense. Judicial Conference approval
    heretofore has not been secured and the Judicial Council of the
    Ninth Circuit now seeks to fix a flat fee of $15 to be charged as
    fees for costs to be charged by any court of appeals "in any appeal
    in which the requirement of an appendix is dispensed with pursuant
    to Rule 30f, Federal Rules of Appellate Procedure."

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Subdivision (b). The amendment requires a cross appellant to
    serve the appellant with a statement of the issues that the cross
    appellant intends to pursue on appeal. No later than ten days after
    the record is filed, the appellant and cross appellant must serve
    each other with a statement of the issues each intends to present
    for review and with a designation of the parts of the record that
    each wants included in the appendix. Within the next ten days, both
    the appellee and the cross appellee may designate additional
    materials for inclusion in the appendix. The appellant must then
    include in the appendix the parts thus designated for both the
    appeal and any cross appeals. The Committee expects that
    simultaneous compliance with this subdivision by an appellant and a
    cross appellant will be feasible in most cases. If a cross
    appellant cannot fairly be expected to comply until receipt of the
    appellant's statement of issues, relief may be sought by motion in
    the court of appeals.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). The only substantive change is to allow a court
    to require the filing of a greater number of copies of an appendix
    as well as a lesser number.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.
      Subdivision (a). Paragraph (a)(3) is amended so that it is
    consistent with Rule 31(b). An unrepresented party proceeding in
    forma pauperis is only required to file 4 copies of the appendix
    rather than 10.
      Subdivision (c). When a deferred appendix is used, a brief must
    make reference to the original record rather than to the appendix
    because it does not exist when the briefs are prepared. Unless a
    party later files an amended brief with direct references to the
    pages of the appendix (as provided in subparagraph (c)(2)(B)), the
    material in the appendix must indicate the pages of the original
    record from which it was drawn so that a reader of the brief can
    make meaningful use of the appendix. The instructions in the
    current rule for cross-referencing the appendix materials to the
    original record are unclear. The language in paragraph (c)(2) has
    been amended to try to clarify the procedure.
      Subdivision (d). In recognition of the fact that use of a typeset
    appendix is exceedingly rare in the courts of appeals, the last
    sentence - permitting a question and answer (as from a transcript)
    to be in a single paragraph - has been omitted.

-End-



-CITE-
    28 USC APPENDIX Rule 31                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 31. Serving and Filing Briefs

-STATUTE-
      (a) Time to Serve and File a Brief.
        (1) The appellant must serve and file a brief within 40 days
      after the record is filed. The appellee must serve and file a
      brief within 30 days after the appellant's brief is served. The
      appellant may serve and file a reply brief within 14 days after
      service of the appellee's brief but a reply brief must be filed
      at least 3 days before argument, unless the court, for good
      cause, allows a later filing.
        (2) A court of appeals that routinely considers cases on the
      merits promptly after the briefs are filed may shorten the time
      to serve and file briefs, either by local rule or by order in a
      particular case.

      (b) Number of Copies. Twenty-five copies of each brief must be
    filed with the clerk and 2 copies must be served on each
    unrepresented party and on counsel for each separately represented
    party. An unrepresented party proceeding in forma pauperis must
    file 4 legible copies with the clerk, and one copy must be served
    on each unrepresented party and on counsel for each separately
    represented party. The court may by local rule or by order in a
    particular case require the filing or service of a different
    number.
      (c) Consequence of Failure to File. If an appellant fails to file
    a brief within the time provided by this rule, or within an
    extended time, an appellee may move to dismiss the appeal. An
    appellee who fails to file a brief will not be heard at oral
    argument unless the court grants permission.

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      A majority of the circuits now require the brief of the appellant
    to be filed within 30 days from the date on which the record is
    filed. But in those circuits an exchange of designations is
    unnecessary in the preparation of the appendix. The appellant files
    with his brief an appendix containing the parts of the record which
    he deems essential. If the appellee considers other parts
    essential, he includes those parts in his own appendix. Since the
    proposed rule requires the appellant to file with his brief an
    appendix containing necessary parts of the record as designated by
    both parties, the rule allows the appellant 40 days in order to
    provide time for the exchange of designations respecting the
    content of the appendix (see Rule 30(b)).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      The time prescribed by Rule 31(a) for preparing briefs - 40 days
    to the appellant, 30 days to the appellee - is well within the time
    that must ordinarily elapse in most circuits before an appeal can
    be reached for consideration. In those circuits, the time
    prescribed by the Rule should not be disturbed. But if a court of
    appeals maintains a current calendar, that is, if an appeal can be
    heard as soon as the briefs have been filed, or if the practice of
    the court permits the submission of appeals for preliminary
    consideration as soon as the briefs have been filed, the court
    should be free to prescribe shorter periods in the interest of
    expediting decision.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 31(a) and (c) are technical. No
    substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (b). The amendment allows a court of appeals to
    require the filing of a greater, as well as a lesser, number of
    copies of briefs. The amendment also allows the required number to
    be prescribed by local rule as well as by order in a particular
    case.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only; a
    substantive change is made, however, in subdivision (b).
      Subdivision (a). Paragraph (a)(2) explicitly authorizes a court
    of appeals to shorten a briefing schedule if the court routinely
    considers cases on the merits promptly after the briefs are filed.
    Extensions of the briefing schedule, by order, are permitted under
    the general provisions of Rule 26(b).
      Subdivision (b). The current rule says that a party who is
    permitted to file "typewritten ribbon and carbon copies of the
    brief" need only file an original and three copies of the brief.
    The quoted language, in conjunction with current rule 24(c), means
    that a party allowed to proceed in forma pauperis need not file 25
    copies of the brief. Two changes are made in this subdivision.
    First, it is anachronistic to refer to a party who is allowed to
    file a typewritten brief as if that would distinguish the party
    from all other parties; any party is permitted to file a
    typewritten brief. The amended rule states directly that it applies
    to a party permitted to proceed in forma pauperis. Second, the
    amended rule does not generally permit parties who are represented
    by counsel to file the lesser number of briefs. Inexpensive methods
    of copying are generally available. Unless it would impose
    hardship, in which case a motion to file a lesser number should be
    filed, a represented party must file the usual number of briefs.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (b). In requiring that two copies of each brief "must
    be served on counsel for each separately represented party," Rule
    31(b) may be read to imply that copies of briefs need not be served
    on unrepresented parties. The Rule has been amended to clarify that
    briefs must be served on all parties, including those who are not
    represented by counsel.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 32                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 32. Form of Briefs, Appendices, and Other Papers

-STATUTE-
      (a) Form of a Brief.
        (1) Reproduction.
          (A) A brief may be reproduced by any process that yields a
        clear black image on light paper. The paper must be opaque and
        unglazed. Only one side of the paper may be used.
          (B) Text must be reproduced with a clarity that equals or
        exceeds the output of a laser printer.
          (C) Photographs, illustrations, and tables may be reproduced
        by any method that results in a good copy of the original; a
        glossy finish is acceptable if the original is glossy.

        (2) Cover. Except for filings by unrepresented parties, the
      cover of the appellant's brief must be blue; the appellee's, red;
      an intervenor's or amicus curiae's, green; any reply brief, gray;
      and any supplemental brief, tan. The front cover of a brief must
      contain:
          (A) the number of the case centered at the top;
          (B) the name of the court;
          (C) the title of the case (see Rule 12(a));
          (D) the nature of the proceeding (e.g., Appeal, Petition for
        Review) and the name of the court, agency, or board below;
          (E) the title of the brief, identifying the party or parties
        for whom the brief is filed; and
          (F) the name, office address, and telephone number of counsel
        representing the party for whom the brief is filed.

        (3) Binding. The brief must be bound in any manner that is
      secure, does not obscure the text, and permits the brief to lie
      reasonably flat when open.
        (4) Paper Size, Line Spacing, and Margins. The brief must be on
      8 1/2  by 11 inch paper. The text must be double-spaced, but
      quotations more than two lines long may be indented and
      single-spaced. Headings and footnotes may be single-spaced.
      Margins must be at least one inch on all four sides. Page numbers
      may be placed in the margins, but no text may appear there.
        (5) Typeface. Either a proportionally spaced or a monospaced
      face may be used.
          (A) A proportionally spaced face must include serifs, but
        sans-serif type may be used in headings and captions. A
        proportionally spaced face must be 14-point or larger.
          (B) A monospaced face may not contain more than 10 1/2 
        characters per inch.

        (6) Type Styles. A brief must be set in a plain, roman style,
      although italics or boldface may be used for emphasis. Case names
      must be italicized or underlined.
        (7) Length.
          (A) Page limitation. A principal brief may not exceed 30
        pages, or a reply brief 15 pages, unless it complies with Rule
        32(a)(7)(B) and (C).
          (B) Type-volume limitation.
            (i) A principal brief is acceptable if:
              -- it contains no more than 14,000 words; or
              -- it uses a monospaced face and contains no more than
            1,300 lines of text.

            (ii) A reply brief is acceptable if it contains no more
          than half of the type volume specified in Rule
          32(a)(7)(B)(i).
            (iii) Headings, footnotes, and quotations count toward the
          word and line limitations. The corporate disclosure
          statement, table of contents, table of citations, statement
          with respect to oral argument, any addendum containing
          statutes, rules or regulations, and any certificates of
          counsel do not count toward the limitation.

          (C) Certificate of compliance.
            (i) A brief submitted under Rule 32(a)(7)(B) must include a
          certificate by the attorney, or an unrepresented party, that
          the brief complies with the type-volume limitation. The
          person preparing the certificate may rely on the word or line
          count of the word-processing system used to prepare the
          brief. The certificate must state either:
              -- the number of words in the brief; or
              -- the number of lines of monospaced type in the brief.

            (ii) Form 6 in the Appendix of Forms is a suggested form of
          a certificate of compliance. Use of Form 6 must be regarded
          as sufficient to meet the requirements of Rule
          32(a)(7)(C)(i).

      (b) Form of an Appendix. An appendix must comply with Rule
    32(a)(1), (2), (3), and (4), with the following exceptions:
        (1) The cover of a separately bound appendix must be white.
        (2) An appendix may include a legible photocopy of any document
      found in the record or of a printed judicial or agency decision.
        (3) When necessary to facilitate inclusion of odd-sized
      documents such as technical drawings, an appendix may be a size
      other than 8 1/2  by 11 inches, and need not lie reasonably flat
      when opened.

      (c) Form of Other Papers.
        (1) Motion. The form of a motion is governed by Rule 27(d).
        (2) Other Papers. Any other paper, including a petition for
      panel rehearing and a petition for hearing or rehearing en banc,
      and any response to such a petition, must be reproduced in the
      manner prescribed by Rule 32(a), with the following exceptions:
          (A) A cover is not necessary if the caption and signature
        page of the paper together contain the information required by
        Rule 32(a)(2). If a cover is used, it must be white.
          (B) Rule 32(a)(7) does not apply.

      (d) Signature. Every brief, motion, or other paper filed with the
    court must be signed by the party filing the paper or, if the party
    is represented, by one of the party's attorneys.
      (e) Local Variation. Every court of appeals must accept documents
    that comply with the form requirements of this rule. By local rule
    or order in a particular case a court of appeals may accept
    documents that do not meet all of the form requirements of this
    rule.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Only two methods of printing are now generally recognized by the
    circuits - standard typographic printing and the offset duplicating
    process (multilith). A third, mimeographing, is permitted in the
    Fifth Circuit. The District of Columbia, Ninth, and Tenth Circuits
    permit records to be reproduced by copying processes. The Committee
    feels that recent and impending advances in the arts of duplicating
    and copying warrant experimentation with less costly forms of
    reproduction than those now generally authorized. The proposed rule
    permits, in effect, the use of any process other than the carbon
    copy process which produces a clean, readable page. What
    constitutes such is left in first instance to the parties and
    ultimately to the court to determine. The final sentence of the
    first paragraph of subdivision (a) is added to allow the use of
    multilith, mimeograph, or other forms of copies of the reporter's
    original transcript whenever such are available.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      In addition to amending Rule 32 to conform to uniform drafting
    standards, several substantive amendments are made. The Advisory
    Committee had been working on substantive amendments to Rule 32 for
    some time prior to completion of this larger project.
      Subdivison (a). Form of a Brief.
      Paragraph (a)(1). Reproduction.
      The rule permits the use of "light" paper, not just "white"
    paper. Cream and buff colored paper, including recycled paper, are
    acceptable. The rule permits printing on only one side of the
    paper. Although some argue that paper could be saved by allowing
    double-sided printing, others argue that in order to preserve
    legibility a heavier weight paper would be needed, resulting in
    little, if any, paper saving. In addition, the blank sides of a
    brief are commonly used by judges and their clerks for making notes
    about the case.
      Because photocopying is inexpensive and widely available and
    because use of carbon paper is now very rare, all references to the
    use of carbon copies have been deleted.
      The rule requires that the text be reproduced with a clarity that
    equals or exceeds the output of a laser printer. That means that
    the method used must have a print resolution of 300 dots per inch
    (dpi) or more. This will ensure the legibility of the brief. A
    brief produced by a typewriter or a daisy wheel printer, as well as
    one produced by a laser printer, has a print resolution of 300 dpi
    or more. But a brief produced by a dot-matrix printer, fax machine,
    or portable printer that uses heat or dye transfer methods does
    not. Some ink jet printers are 300 dpi or more, but some are 216
    dpi and would not be sufficient.
      Photographs, illustrations, and tables may be reproduced by any
    method that results in a good copy.
      Paragraph (a)(2). Cover.
      The rule requires that the number of the case be centered at the
    top of the front cover of a brief. This will aid in identification
    of the brief. The idea was drawn from a local rule. The rule also
    requires that the title of the brief identify the party or parties
    on whose behalf the brief is filed. When there are multiple
    appellants or appellees, the information is necessary to the court.
    If, however, the brief is filed on behalf of all appellants or
    appellees, it may so indicate. Further, it may be possible to
    identify the class of parties on whose behalf the brief is filed.
    Otherwise, it may be necessary to name each party. The rule also
    requires that attorney's telephone numbers appear on the front
    cover of a brief or appendix.
      Paragraph (a)(3). Binding.
      The rule requires a brief to be bound in any manner that is
    secure, does not obscure the text, and that permits the brief to
    lie reasonably flat when open. Many judges and most court employees
    do much of their work at computer keyboards and a brief that lies
    flat when open is significantly more convenient. One circuit
    already has such a requirement and another states a preference for
    it. While a spiral binding would comply with this requirement, it
    is not intended to be the exclusive method of binding. Stapling a
    brief at the upper left-hand corner also satisfies this requirement
    as long as it is sufficiently secure.
      Paragraph (a)(4). Paper Size, Line Spacing, and Margins.
      The provisions for pamphlet-size briefs are deleted because their
    use is so rare. If a circuit wishes to authorize their use, it has
    authority to do so under subdivision (d) of this rule.
      Paragraph (a)(5). Typeface.
      This paragraph and the next one, governing type style, are new.
    The existing rule simply states that a brief produced by the
    standard typographic process must be printed in at least 11 point
    type, or if produced in any other manner, the lines of text must be
    double spaced. Today few briefs are produced by commercial printers
    or by typewriters; most are produced on and printed by computer.
    The availability of computer fonts in a variety of sizes and styles
    has given rise to local rules limiting type styles. The Advisory
    Committee believes that some standards are needed both to ensure
    that all litigants have an equal opportunity to present their
    material and to ensure that the briefs are easily legible.
      With regard to typeface there are two options:
    proportionally-spaced typeface or monospaced typeface.
      A proportionally-spaced typeface gives a different amount of
    horizontal space to characters depending upon the width of the
    character. A capital "M" is given more horizontal space than a
    lower case "i." The rule requires that a proportionally-spaced
    typeface have serifs. Serifs are small horizontal or vertical
    strokes at the ends of the lines that make up the letters and
    numbers. Studies have shown that long passages of serif type are
    easier to read and comprehend than long passages of sans-serif
    type. The rule accordingly limits the principal sections of
    submissions to serif type, although sans-serif type may be used in
    headings and captions. This is the same approach magazines,
    newspapers, and commercial printers take. Look at a professionally
    printed brief; you will find sans-serif type confined to captions,
    if it is used at all. The next line shows two characters enlarged
    for detail. The first has serifs, the second does not.

-HEAD-
    Y    -----    Y
    So that the type is easily legible, the rule requires a minimum
    type size of 14 points for proportionally-spaced typeface.
      A monospaced typeface is one in which all characters have the
    same advance width. That means that each character is given the
    same horizontal space on the line. A wide letter such as a capital
    "M" and a narrow letter such as a lower case "i" are given the same
    space. Most typewriters produce mono-spaced type, and most
    computers also can do so using fonts with names such as "Courier."

      This sentence is in a proportionally spaced font; as you can see,
      the m and i have different widths.

      This sentence is in a monospaced font; as you can see, the m and
      i have the same width.

    The rule requires use of a monospaced typeface that produces no
    more than 10 1/2  characters per inch. A standard typewriter with
    pica type produces a monospaced typeface with 10 characters per
    inch (cpi). That is the ideal monospaced typeface. The rule permits
    up to 10 1/2  cpi because some computer software programs contain
    monospaced fonts that purport to produce 10 cpi but that in fact
    produce slightly more than 10 cpi. In order to avoid the need to
    reprint a brief produced in good faith reliance upon such a
    program, the rule permits a bit of leeway. A monospace typeface
    with no more than 10 cpi is preferred.
      Paragraph (a)(6). Type Styles.
      The rule requires use of plain roman, that is not italic or
    script, type. Italics and boldface may be used for emphasis.
    Italicizing case names is preferred but underlining may be used.
      Paragraph (a)(7). Type-Volume Limitation.
      Subparagraph (a)(7)(A) contains a safe-harbor provision. A
    principal brief that does not exceed 30 pages complies with the
    type-volume limitation without further question or certification. A
    reply brief that does not exceed 15 pages is similarly treated. The
    current limit is 50 pages but that limit was established when most
    briefs were produced on typewriters. The widespread use of personal
    computers has made a multitude of printing options available to
    practitioners. Use of a proportional typeface alone can greatly
    increase the amount of material per page as compared with use of a
    monospace typeface. Even though the rule requires use of 14-point
    proportional type, there is great variation in the x-height of
    different 14-point typefaces. Selection of a typeface with a small
    x-height increases the amount of text per page. Computers also make
    possible fine gradations in spacing between lines and tight
    tracking between letters and words. All of this, and more, have
    made the 50-page limit virtually meaningless. Establishing a
    safe-harbor of 50 pages would permit a person who makes use of the
    multitude of printing "tricks" available with most personal
    computers to file a brief far longer than the "old" 50-page brief.
    Therefore, as to those briefs not subject to any other volume
    control than a page limit, a 30-page limit is imposed.
      The limits in subparagraph (B) approximate the current 50-page
    limit and compliance with them is easy even for a person without a
    personal computer. The aim of these provisions is to create a level
    playing field. The rule gives every party an equal opportunity to
    make arguments, without permitting those with the best in-house
    typesetting an opportunity to expand their submissions.
      The length can be determined either by counting words or lines.
    That is, the length of a brief is determined not by the number of
    pages but by the number of words or lines in the brief. This gives
    every party the same opportunity to present an argument without
    regard to the typeface used and eliminates any incentive to use
    footnotes or typographical "tricks" to squeeze more material onto a
    page.
      The word counting method can be used with any typeface.
      A monospaced brief can meet the volume limitation by using the
    word or a line count. If the line counting method is used, the
    number of lines may not exceed 1,300 - 26 lines per page in a
    50-page brief. The number of lines is easily counted manually. Line
    counting is not sufficient if a proportionally spaced typeface is
    used, because the amount of material per line can vary widely.
      A brief using the type-volume limitations in subparagraph (B)
    must include a certificate by the attorney, or party proceeding pro
    se, that the brief complies with the limitation. The rule permits
    the person preparing the certification to rely upon the word or
    line count of the word-processing system used to prepare the brief.
      Currently, Rule 28(g) governs the length of a brief. Rule 28(g)
    begins with the words "[e]xcept by permission of the court,"
    signaling that a party may file a motion to exceed the limits
    established in the rule. The absence of similar language in Rule 32
    does not mean that the Advisory Committee intends to prohibit
    motions to deviate from the requirements of the rule. The Advisory
    Committee does not believe that any such language is needed to
    authorize such a motion.
      Subdivision (b). Form of an Appendix.
      The provisions governing the form of a brief generally apply to
    an appendix. The rule recognizes, however, that an appendix is
    usually produced by photocopying existing documents. The rule
    requires that the photocopies be legible.
      The rule permits inclusion not only of documents from the record
    but also copies of a printed judicial or agency decision. If a
    decision that is part of the record in the case has been published,
    it is helpful to provide a copy of the published decision in place
    of a copy of the decision from the record.
      Subdivision (c). Form of Other Papers.
      The old rule required a petition for rehearing to be produced in
    the same manner as a brief or appendix. The new rule also requires
    that a petition for rehearing en banc and a response to either a
    petition for panel rehearing or a petition for rehearing en banc be
    prepared in the same manner. But the length limitations of
    paragraph (a)(7) do not apply to those documents and a cover is not
    required if all the information needed by the court to properly
    identify the document and the parties is included in the caption or
    signature page.
      Existing subdivision (b) states that other papers may be produced
    in like manner, or "they may be typewritten upon opaque, unglazed
    paper 8 1/2  by 11 inches in size." The quoted language is deleted
    but that method of preparing documents is not eliminated because
    (a)(5)(B) permits use of standard pica type. The only change is
    that the new rule now specifies margins for typewritten documents.
      Subdivision (d). Local Variation.
      A brief that complies with the national rule should be acceptable
    in every court. Local rules may move in one direction only; they
    may authorize noncompliance with certain of the national norms. For
    example, a court that wishes to do so may authorize printing of
    briefs on both sides of the paper, or the use of smaller type size
    or sans-serif proportional type. A local rule may not, however,
    impose requirements that are not in the national rule.


-MISC2-
                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (a)(2). On occasion, a court may permit or order the
    parties to file supplemental briefs addressing an issue that was
    not addressed - or adequately addressed - in the principal briefs.
    Rule 32(a)(2) has been amended to require that tan covers be used
    on such supplemental briefs. The amendment is intended to promote
    uniformity in federal appellate practice. At present, the local
    rules of the circuit courts conflict. See, e.g., D.C. Cir. R. 28(g)
    (requiring yellow covers on supplemental briefs); 11th Cir. R. 32,
    I.O.P. 1 (requiring white covers on supplemental briefs).
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.
      Subdivision (a)(7)(C). If the principal brief of a party exceeds
    30 pages, or if the reply brief of a party exceeds 15 pages, Rule
    32(a)(7)(C) provides that the party or the party's attorney must
    certify that the brief complies with the type-volume limitation of
    Rule 32(a)(7)(B). Rule 32(a)(7)(C) has been amended to refer to
    Form 6 (which has been added to the Appendix of Forms) and to
    provide that a party or attorney who uses Form 6 has complied with
    Rule 32(a)(7)(C). No court may provide to the contrary, in its
    local rules or otherwise.
      Form 6 requests not only the information mandated by Rule
    32(a)(7)(C), but also information that will assist courts in
    enforcing the typeface requirements of Rule 32(a)(5) and the type
    style requirements of Rule 32(a)(6). Parties and attorneys are not
    required to use Form 6, but they are encouraged to do so.
      Subdivision (c)(2)(A). Under Rule 32(c)(2)(A), a cover is not
    required on a petition for panel rehearing, petition for hearing or
    rehearing en banc, answer to a petition for panel rehearing,
    response to a petition for hearing or rehearing en banc, or any
    other paper. Rule 32(d) makes it clear that no court can require
    that a cover be used on any of these papers. However, nothing
    prohibits a court from providing in its local rules that if a cover
    on one of these papers is "voluntarily" used, it must be a
    particular color. Several circuits have adopted such local rules.
    See, e.g., Fed. Cir. R. 35(c) (requiring yellow covers on petitions
    for hearing or rehearing en banc and brown covers on responses to
    such petitions); Fed. Cir. R. 40(a) (requiring yellow covers on
    petitions for panel rehearing and brown covers on answers to such
    petitions); 7th Cir. R. 28 (requiring blue covers on petitions for
    rehearing filed by appellants or answers to such petitions, and
    requiring red covers on petitions for rehearing filed by appellees
    or answers to such petitions); 9th Cir. R. 40-1 (requiring blue
    covers on petitions for panel rehearing filed by appellants and red
    covers on answers to such petitions, and requiring red covers on
    petitions for panel rehearing filed by appellees and blue covers on
    answers to such petitions); 11th Cir. R. 35-6 (requiring white
    covers on petitions for hearing or rehearing en banc).
      These conflicting local rules create a hardship for counsel who
    practice in more than one circuit. For that reason, Rule
    32(c)(2)(A) has been amended to provide that if a party chooses to
    use a cover on a paper that is not required to have one, that cover
    must be white. The amendment is intended to preempt all local
    rulemaking on the subject of cover colors and thereby promote
    uniformity in federal appellate practice.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.
      Subdivisions (d) and (e). Former subdivision (d) has been
    redesignated as subdivision (e), and a new subdivision (d) has been
    added. The new subdivision (d) requires that every brief, motion,
    or other paper filed with the court be signed by the attorney or
    unrepresented party who files it, much as Fed. R. Civ. P. 11(a)
    imposes a signature requirement on papers filed in district court.
    Only the original copy of every paper must be signed. An appendix
    filed with the court does not have to be signed at all.
      By requiring a signature, subdivision (d) ensures that a readily
    identifiable attorney or party takes responsibility for every
    paper. The courts of appeals already have authority to sanction
    attorneys and parties who file papers that contain misleading or
    frivolous assertions, see, e.g., 28 U.S.C. Sec. 1912, Fed. R. App.
    P. 38 & 46(b)(1)(B), and thus subdivision (d) has not been amended
    to incorporate provisions similar to those found in Fed. R. Civ. P.
    11(b) and 11(c).
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment. A line was added to the
    Committee Note to clarify that only the original copy of a paper
    needs to be signed.

-End-



-CITE-
    28 USC APPENDIX Rule 33                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 33. Appeal Conferences

-STATUTE-
      The court may direct the attorneys - and, when appropriate, the
    parties - to participate in one or more conferences to address any
    matter that may aid in disposing of the proceedings, including
    simplifying the issues and discussing settlement. A judge or other
    person designated by the court may preside over the conference,
    which may be conducted in person or by telephone. Before a
    settlement conference, the attorneys must consult with their
    clients and obtain as much authority as feasible to settle the
    case. The court may, as a result of the conference, enter an order
    controlling the course of the proceedings or implementing any
    settlement agreement.

-SOURCE-
    (As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The uniform rule for review or enforcement of orders of
    administrative agencies, boards, commissions or officers (see the
    general note following Rule 15) authorizes a prehearing conference
    in agency review proceedings. The same considerations which make a
    prehearing conference desirable in such proceedings may be present
    in certain cases on appeal from the district courts. The proposed
    rule is based upon subdivision 11 of the present uniform rule for
    review of agency orders.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Rule 33 has been entirely rewritten. The new rule makes several
    changes.
      The caption of the rule has been changed from "Prehearing
    Conference" to "Appeal Conferences" to reflect the fact that
    occasionally a conference is held after oral argument.
      The rule permits the court to require the parties to attend the
    conference in appropriate cases. The Committee does not contemplate
    that attendance of the parties will become routine, but in certain
    instances the parties' presence can be useful. The language of the
    rule is broad enough to allow a court to determine that an
    executive or employee (other than the general counsel) of a
    corporation or government agency with authority regarding the
    matter at issue, constitutes "the party."
      The rule includes the possibility of settlement among the
    possible conference topics.
      The rule recognizes that conferences are often held by telephone.
      The rule allows a judge or other person designated by the court
    to preside over a conference. A number of local rules permit
    persons other than judges to preside over conferences. 1st Cir. R.
    47.5; 6th Cir. R. 18; 8th Cir. R. 33A; 9th Cir. R. 33-1; and 10th
    Cir. R. 33.
      The rule requires an attorney to consult with his or her client
    before a settlement conference and obtain as much authority as
    feasible to settle the case. An attorney can never settle a case
    without his or her client's consent. Certain entities, especially
    government entities, have particular difficulty obtaining authority
    to settle a case. The rule requires counsel to obtain only as much
    authority "as feasible."

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 34                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 34. Oral Argument

-STATUTE-
      (a) In General.
        (1) Party's Statement. Any party may file, or a court may
      require by local rule, a statement explaining why oral argument
      should, or need not, be permitted.
        (2) Standards. Oral argument must be allowed in every case
      unless a panel of three judges who have examined the briefs and
      record unanimously agrees that oral argument is unnecessary for
      any of the following reasons:
          (A) the appeal is frivolous;
          (B) the dispositive issue or issues have been authoritatively
        decided; or
          (C) the facts and legal arguments are adequately presented in
        the briefs and record, and the decisional process would not be
        significantly aided by oral argument.

      (b) Notice of Argument; Postponement. The clerk must advise all
    parties whether oral argument will be scheduled, and, if so, the
    date, time, and place for it, and the time allowed for each side. A
    motion to postpone the argument or to allow longer argument must be
    filed reasonably in advance of the hearing date.
      (c) Order and Contents of Argument. The appellant opens and
    concludes the argument. Counsel must not read at length from
    briefs, records, or authorities.
      (d) Cross-Appeals and Separate Appeals. If there is a
    cross-appeal, Rule 28(h) determines which party is the appellant
    and which is the appellee for purposes of oral argument. Unless the
    court directs otherwise, a cross-appeal or separate appeal must be
    argued when the initial appeal is argued. Separate parties should
    avoid duplicative argument.
      (e) Nonappearance of a Party. If the appellee fails to appear for
    argument, the court must hear appellant's argument. If the
    appellant fails to appear for argument, the court may hear the
    appellee's argument. If neither party appears, the case will be
    decided on the briefs, unless the court orders otherwise.
      (f) Submission on Briefs. The parties may agree to submit a case
    for decision on the briefs, but the court may direct that the case
    be argued.
      (g) Use of Physical Exhibits at Argument; Removal. Counsel
    intending to use physical exhibits other than documents at the
    argument must arrange to place them in the courtroom on the day of
    the argument before the court convenes. After the argument, counsel
    must remove the exhibits from the courtroom, unless the court
    directs otherwise. The clerk may destroy or dispose of the exhibits
    if counsel does not reclaim them within a reasonable time after the
    clerk gives notice to remove them.

-SOURCE-
    (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      A majority of circuits now limit oral argument to thirty minutes
    for each side, with the provision that additional time may be made
    available upon request. The Committee is of the view that thirty
    minutes to each side is sufficient in most cases, but that where
    additional time is necessary it should be freely granted on a
    proper showing of cause therefor. It further feels that the matter
    of time should be left ultimately to each court of appeals, subject
    to the spirit of the rule that a reasonable time should be allowed
    for argument. The term "side" is used to indicate that the time
    allowed by the rule is afforded to opposing interests rather than
    to individual parties. Thus if multiple appellants or appellees
    have a common interest, they constitute only a single side. If
    counsel for multiple parties who constitute a single side feel that
    additional time is necessary, they may request it. In other
    particulars this rule follows the usual practice among the
    circuits. See 3d Cir. Rule 31; 6th Cir. Rule 20; 10th Cir. Rule 23.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      The proposed amendment, patterned after the recommendations in
    the Report of the Commission on Revision of the Federal Court
    Appellate System, Structure and Internal Procedures:
    Recommendations for Change, 1975, created by Public Law 489 of the
    92nd Cong. 2nd Sess., 86 Stat. 807, sets forth general principles
    and minimum standards to be observed in formulating any local rule.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 34(a) and (e) are technical. No
    substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Subdivision (d). The amendment of subdivision (d) conforms this
    rule with the amendment of Rule 28(h).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (c). The amendment deletes the requirement that the
    opening argument must include a fair statement of the case. The
    Committee proposed the change because in some circuits the court
    does not want appellants to give such statements. In those
    circuits, the rule is not followed and is misleading. Nevertheless,
    the Committee does not want the deletion of the requirement to
    indicate disapproval of the practice. Those circuits that desire a
    statement of the case may continue the practice.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only. Substantive
    changes are made in subdivision (a).
      Subdivision (a). Currently subdivision (a) says that oral
    argument must be permitted unless, applying a local rule, a panel
    of three judges unanimously agrees that oral argument is not
    necessary. Rule 34 then outlines the criteria to be used to
    determine whether oral argument is needed and requires any local
    rule to "conform substantially" to the "minimum standard[s]"
    established in the national rule. The amendments omit the local
    rule requirement and make the criteria applicable by force of the
    national rule. The local rule is an unnecessary instrument.
      Paragraph (a)(2) states that one reason for deciding that oral
    argument is unnecessary is that the dispositive issue has been
    authoritatively decided. The amended language no longer states that
    the issue must have been "recently" decided. The Advisory Committee
    does not intend any substantive change, but thinks that the use of
    "recently" may be misleading.
      Subdivision (d). A cross-reference to Rule 28(h) has been
    substituted for a reiteration of the provisions of Rule 28(h).

-End-



-CITE-
    28 USC APPENDIX Rule 35                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 35. En Banc Determination

-STATUTE-
      (a) When Hearing or Rehearing En Banc May Be Ordered. A majority
    of the circuit judges who are in regular active service may order
    that an appeal or other proceeding be heard or reheard by the court
    of appeals en banc. An en banc hearing or rehearing is not favored
    and ordinarily will not be ordered unless:
        (1) en banc consideration is necessary to secure or maintain
      uniformity of the court's decisions; or
        (2) the proceeding involves a question of exceptional
      importance.

      (b) Petition for Hearing or Rehearing En Banc. A party may
    petition for a hearing or rehearing en banc.
        (1) The petition must begin with a statement that either:
          (A) the panel decision conflicts with a decision of the
        United States Supreme Court or of the court to which the
        petition is addressed (with citation to the conflicting case or
        cases) and consideration by the full court is therefore
        necessary to secure and maintain uniformity of the court's
        decisions; or
          (B) the proceeding involves one or more questions of
        exceptional importance, each of which must be concisely stated;
        for example, a petition may assert that a proceeding presents a
        question of exceptional importance if it involves an issue on
        which the panel decision conflicts with the authoritative
        decisions of other United States Courts of Appeals that have
        addressed the issue.

        (2) Except by the court's permission, a petition for an en banc
      hearing or rehearing must not exceed 15 pages, excluding material
      not counted under Rule 32.
        (3) For purposes of the page limit in Rule 35(b)(2), if a party
      files both a petition for panel rehearing and a petition for
      rehearing en banc, they are considered a single document even if
      they are filed separately, unless separate filing is required by
      local rule.

      (c) Time for Petition for Hearing or Rehearing En Banc. A
    petition that an appeal be heard initially en banc must be filed by
    the date when the appellee's brief is due. A petition for a
    rehearing en banc must be filed within the time prescribed by Rule
    40 for filing a petition for rehearing.
      (d) Number of Copies. The number of copies to be filed must be
    prescribed by local rule and may be altered by order in a
    particular case.
      (e) Response. No response may be filed to a petition for an en
    banc consideration unless the court orders a response.
      (f) Call for a Vote. A vote need not be taken to determine
    whether the case will be heard or reheard en banc unless a judge
    calls for a vote.

-SOURCE-
    (As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Statutory authority for in banc hearings is found in 28 U.S.C.
    Sec. 46(c). The proposed rule is responsive to the Supreme Court's
    view in Western Pacific Ry. Corp. v. Western Pacific Ry. Co., 345
    U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), that litigants should
    be free to suggest that a particular case is appropriate for
    consideration by all the judges of a court of appeals. The rule is
    addressed to the procedure whereby a party may suggest the
    appropriateness of convening the court in banc. It does not affect
    the power of a court of appeals to initiate in banc hearings sua
    sponte.
      The provision that a vote will not be taken as a result of the
    suggestion of the party unless requested by a judge of the court in
    regular active service or by a judge who was a member of the panel
    that rendered a decision sought to be reheard is intended to make
    it clear that a suggestion of a party as such does not require any
    action by the court. See Western Pacific Ry. Corp. v. Western
    Pacific Ry. Co., supra, 345 U.S. at 262, 73 S.Ct. 656. The rule
    merely authorizes a suggestion, imposes a time limit on suggestions
    for rehearings in banc, and provides that suggestions will be
    directed to the judges of the court in regular active service.
      In practice, the suggestion of a party that a case be reheard in
    banc is frequently contained in a petition for rehearing, commonly
    styled "petition for rehearing in banc." Such a petition is in fact
    merely a petition for a rehearing, with a suggestion that the case
    be reheard in banc. Since no response to the suggestion, as
    distinguished from the petition for rehearing, is required, the
    panel which heard the case may quite properly dispose of the
    petition without reference to the suggestion. In such a case the
    fact that no response has been made to the suggestion does not
    affect the finality of the judgment or the issuance of the mandate,
    and the final sentence of the rule expressly so provides.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Under the present rule there is no specific provision for a
    response to a suggestion that an appeal be heard in banc. This has
    led to some uncertainty as to whether such a response may be filed.
    The proposed amendment would resolve this uncertainty.
      While the present rule provides a time limit for suggestions for
    rehearing in banc, it does not deal with the timing of a request
    that the appeal be heard in banc initially. The proposed amendment
    fills this gap as well, providing that the suggestion must be made
    by the date of which the appellee's brief is filed.
      Provision is made for circulating the suggestions to members of
    the panel despite the fact that senior judges on the panel would
    not be entitled to vote on whether a suggestion will be granted.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (d). Subdivision (d) is added; it authorizes the
    courts of appeals to prescribe the number of copies of suggestions
    for hearing or rehearing in banc that must be filed. Because the
    number of copies needed depends directly upon the number of judges
    in the circuit, local rules are the best vehicle for setting the
    required number of copies.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.
      Several substantive changes are made in this rule, however.
      One of the purposes of the substantive amendments is to treat a
    request for a rehearing en banc like a petition for panel rehearing
    so that a request for a rehearing en banc will suspend the finality
    of the court of appeals' judgment and delay the running of the
    period for filing a petition for writ of certiorari. Companion
    amendments are made to Rule 41.
      Subdivision (a). The title of this subdivision is changed from
    "when hearing or rehearing in banc will be ordered" to "When
    Hearing or Rehearing En Banc May Be Ordered." The change emphasizes
    the discretion a court has with regard to granting en banc review.
      Subdivision (b). The term "petition" for rehearing en banc is
    substituted for the term "suggestion" for rehearing en banc. The
    terminology change reflects the Committee's intent to treat
    similarly a petition for panel rehearing and a request for a
    rehearing en banc. The terminology change also delays the running
    of the time for filing a petition for a writ of certiorari because
    Sup. Ct. R. 13.3 says:
      if a petition for rehearing is timely filed in the lower court by
      any party, the time to file the petition for a writ of certiorari
      for all parties . . . runs from the date of the denial of the
      petition for rehearing or, if the petition for rehearing is
      granted, the subsequent entry of judgment.
      The amendments also require each petition for en banc
    consideration to begin with a statement concisely demonstrating
    that the case meets the usual criteria for en banc consideration.
    It is the Committee's hope that requiring such a statement will
    cause the drafter of a petition to focus on the narrow grounds that
    support en banc consideration and to realize that a petition should
    not be filed unless the case meets those rigid standards.
      Intercircuit conflict is cited as one reason for asserting that a
    proceeding involves a question of "exceptional importance."
    Intercircuit conflicts create problems. When the circuits construe
    the same federal law differently, parties' rights and duties depend
    upon where a case is litigated. Given the increase in the number of
    cases decided by the federal courts and the limitation on the
    number of cases the Supreme Court can hear, conflicts between the
    circuits may remain unresolved by the Supreme Court for an extended
    period of time. The existence of an intercircuit conflict often
    generates additional litigation in the other circuits as well as in
    the circuits that are already in conflict. Although an en banc
    proceeding will not necessarily prevent intercircuit conflicts, an
    en banc proceeding provides a safeguard against unnecessary
    intercircuit conflicts.
      Some circuits have had rules or internal operating procedures
    that recognize a conflict with another circuit as a legitimate
    basis for granting a rehearing en banc. An intercircuit conflict
    may present a question of "exceptional importance" because of the
    costs that intercircuit conflicts impose on the system as a whole,
    in addition to the significance of the issues involved. It is not,
    however, the Committee's intent to make the granting of a hearing
    or rehearing en banc mandatory whenever there is an intercircuit
    conflict.
      The amendment states that "a petition may assert that a
    proceeding presents a question of exceptional importance if it
    involves an issue on which the panel decision conflicts with the
    authoritative decisions of every other United States Court of
    Appeals that has addressed the issue." [The Supreme Court revised
    the proposed amendment to Rule 35(b)(1)(B) by deleting "every"
    before "other United States Court of Appeals".] That language
    contemplates two situations in which a rehearing en banc may be
    appropriate. The first is when a panel decision creates a conflict.
    A panel decision creates a conflict when it conflicts with the
    decisions of all other circuits that have considered the issue. If
    a panel decision simply joins one side of an already existing
    conflict, a rehearing en banc may not be as important because it
    cannot avoid the conflict. The second situation that may be a
    strong candidate for a rehearing en banc is one in which the
    circuit persists in a conflict created by a pre-existing decision
    of the same circuit and no other circuits have joined on that side
    of the conflict. The amendment states that the conflict must be
    with an "authoritative" decision of another circuit.
    "Authoritative" is used rather than "published" because in some
    circuits unpublished opinions may be treated as authoritative.
      Counsel are reminded that their duty is fully discharged without
    filing a petition for rehearing en banc unless the case meets the
    rigid standards of subdivision (a) of this rule and even then the
    granting of a petition is entirely within the court's discretion.
      Paragraph (2) of this subdivision establishes a maximum length
    for a petition. Fifteen pages is the length currently used in
    several circuits. Each request for en banc consideration must be
    studied by every active judge of the court and is a serious call on
    limited judicial resources. The extraordinary nature of the issue
    or the threat to uniformity of the court's decision can be
    established in most cases in less than fifteen pages. A court may
    shorten the maximum length on a case by case basis but the rule
    does not permit a circuit to shorten the length by local rule. The
    Committee has retained page limits rather than using word or line
    counts similar to those in amended Rule 32 because there has not
    been a serious enough problem to justify importing the word and
    line-count and typeface requirements that are applicable to briefs
    into other contexts.
      Paragraph (3), although similar to (2), is separate because it
    deals with those instances in which a party files both a petition
    for rehearing en banc under this rule and a petition for panel
    rehearing under Rule 40.
      To improve the clarity of the rule, the material dealing with
    filing a response to a petition and with voting on a petition have
    been moved to new subdivisions (e) and (f).
      Subdivision (c). Two changes are made in this subdivision. First,
    the sentence stating that a request for a rehearing en banc does
    not affect the finality of the judgment or stay the issuance of the
    mandate is deleted. Second, the language permitting a party to
    include a request for rehearing en banc in a petition for panel
    rehearing is deleted. The Committee believes that those circuits
    that want to require two separate documents should have the option
    to do so.
      Subdivision (e). This is a new subdivision. The substance of the
    subdivision, however, was drawn from former subdivision (b). The
    only changes are stylistic; no substantive changes are intended.
      Subdivision (f). This is a new subdivision. The substance of the
    subdivision, however, was drawn from former subdivision (b).
      Because of the discretionary nature of the en banc procedure, the
    filing of a suggestion for rehearing en banc has not required a
    vote; a vote is taken only when requested by a judge. It is not the
    Committee's intent to change the discretionary nature of the
    procedure or to require a vote on a petition for rehearing en banc.
    The rule continues, therefore, to provide that a court is not
    obligated to vote on such petitions. It is necessary, however, that
    each court develop a procedure for disposing of such petitions
    because they will suspend the finality of the court's judgment and
    toll the time for filing a petition for certiorari.
      Former subdivision (b) contained language directing the clerk to
    distribute a "suggestion" to certain judges and indicating which
    judges may call for a vote. New subdivision (f) does not address
    those issues because they deal with internal court procedures.

-End-



-CITE-
    28 USC APPENDIX Rule 36                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 36. Entry of Judgment; Notice

-STATUTE-
      (a) Entry. A judgment is entered when it is noted on the docket.
    The clerk must prepare, sign, and enter the judgment:
        (1) after receiving the court's opinion - but if settlement of
      the judgment's form is required, after final settlement; or
        (2) if a judgment is rendered without an opinion, as the court
      instructs.

      (b) Notice. On the date when judgment is entered, the clerk must
    serve on all parties a copy of the opinion - or the judgment, if no
    opinion was written - and a notice of the date when the judgment
    was entered.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This is the typical rule. See 1st Cir. Rule 29; 3rd Cir. Rule 32;
    6th Cir. Rule 21. At present, uncertainty exists as to the date of
    entry of judgment when the opinion directs subsequent settlement of
    the precise terms of the judgment, a common practice in cases
    involving enforcement of agency orders. See Stern and Gressman,
    Supreme Court Practice, p. 203 (3d Ed., 1962). The principle of
    finality suggests that in such cases entry of judgment should be
    delayed until approval of the judgment in final form.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (b). Subdivision (b) has been amended so that the
    clerk may use electronic means to serve a copy of the opinion or
    judgment or to serve notice of the date when judgment was entered
    upon parties who have consented to such service.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 37                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 37. Interest on Judgment

-STATUTE-
      (a) When the Court Affirms. Unless the law provides otherwise, if
    a money judgment in a civil case is affirmed, whatever interest is
    allowed by law is payable from the date when the district court's
    judgment was entered.
      (b) When the Court Reverses. If the court modifies or reverses a
    judgment with a direction that a money judgment be entered in the
    district court, the mandate must contain instructions about the
    allowance of interest.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The first sentence makes it clear that if a money judgment is
    affirmed in the court of appeals, the interest which attaches to
    money judgments by force of law (see 28 U.S.C. Sec. 1961 and Sec.
    2411) upon their initial entry is payable as if no appeal had been
    taken, whether or not the mandate makes mention of interest. There
    has been some confusion on this point. See Blair v. Durham, 139
    F.2d 260 (6th Cir., 1943) and cases cited therein.
      In reversing or modifying the judgment of the district court, the
    court of appeals may direct the entry of a money judgment, as, for
    example, when the court of appeals reverses a judgment
    notwithstanding the verdict and directs entry of judgment on the
    verdict. In such a case the question may arise as to whether
    interest is to run from the date of entry of the judgment directed
    by the court of appeals or from the date on which the judgment
    would have been entered in the district court except for the
    erroneous ruling corrected on appeal. In Briggs v. Pennsylvania R.
    Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948), the Court
    held that where the mandate of the court of appeals directed entry
    of judgment upon a verdict but made no mention of interest from the
    date of the verdict to the date of the entry of the judgment
    directed by the mandate, the district court was powerless to add
    such interest. The second sentence of the proposed rule is a
    reminder to the court, the clerk and counsel of the Briggs rule.
    Since the rule directs that the matter of interest be disposed of
    by the mandate, in cases where interest is simply overlooked, a
    party who conceives himself entitled to interest from a date other
    than the date of entry of judgment in accordance with the mandate
    should be entitled to seek recall of the mandate for determination
    of the question.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 38                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 38. Frivolous Appeal - Damages and Costs

-STATUTE-
      If a court of appeals determines that an appeal is frivolous, it
    may, after a separately filed motion or notice from the court and
    reasonable opportunity to respond, award just damages and single or
    double costs to the appellee.

-SOURCE-
    (As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Compare 28 U.S.C. Sec. 1912. While both the statute and the usual
    rule on the subject by courts of appeals (Fourth Circuit Rule 20 is
    a typical rule) speak of "damages for delay," the courts of appeals
    quite properly allow damages, attorney's fees and other expenses
    incurred by an appellee if the appeal is frivolous without
    requiring a showing that the appeal resulted in delay. See
    Dunscombe v. Sayle, 340 F.2d 311 (5th Cir., 1965), cert. den., 382
    U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965); Lowe v. Willacy, 239
    F.2d 179 (9th Cir., 1956); Griffith Wellpoint Corp. v.
    Munro-Langstroth, Inc., 269 F.2d 64 (1st Cir., 1959); Ginsburg v.
    Stern, 295 F.2d 698 (3d Cir., 1961). The subjects of interest and
    damages are separately regulated, contrary to the present practice
    of combining the two (see Fourth Circuit Rule 20) to make it clear
    that the awards are distinct and independent. Interest is provided
    for by law; damages are awarded by the court in its discretion in
    the case of a frivolous appeal as a matter of justice to the
    appellee and as a penalty against the appellant.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      The amendment requires that before a court of appeals may impose
    sanctions, the person to be sanctioned must have notice and an
    opportunity to respond. The amendment reflects the basic principle
    enunciated in the Supreme Court's opinion in Roadway Express, Inc.
    v. Piper, 447 U.S. 752, 767 (1980), that notice and opportunity to
    respond must precede the imposition of sanctions. A separately
    filed motion requesting sanctions constitutes notice. A statement
    inserted in a party's brief that the party moves for sanctions is
    not sufficient notice. Requests in briefs for sanctions have become
    so commonplace that it is unrealistic to expect careful responses
    to such requests without any indication that the court is actually
    contemplating such measures. Only a motion, the purpose of which is
    to request sanctions, is sufficient. If there is no such motion
    filed, notice must come from the court. The form of notice from the
    court and of the opportunity for comment purposely are left to the
    court's discretion.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      Only the caption of this rule has been amended. The changes are
    intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 39                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 39. Costs

-STATUTE-
      (a) Against Whom Assessed. The following rules apply unless the
    law provides or the court orders otherwise:
        (1) if an appeal is dismissed, costs are taxed against the
      appellant, unless the parties agree otherwise;
        (2) if a judgment is affirmed, costs are taxed against the
      appellant;
        (3) if a judgment is reversed, costs are taxed against the
      appellee;
        (4) if a judgment is affirmed in part, reversed in part,
      modified, or vacated, costs are taxed only as the court orders.

      (b) Costs For and Against the United States. Costs for or against
    the United States, its agency, or officer will be assessed under
    Rule 39(a) only if authorized by law.
      (c) Costs of Copies. Each court of appeals must, by local rule,
    fix the maximum rate for taxing the cost of producing necessary
    copies of a brief or appendix, or copies of records authorized by
    Rule 30(f). The rate must not exceed that generally charged for
    such work in the area where the clerk's office is located and
    should encourage economical methods of copying.
      (d) Bill of Costs: Objections; Insertion in Mandate.
        (1) A party who wants costs taxed must - within 14 days after
      entry of judgment - file with the circuit clerk, with proof of
      service, an itemized and verified bill of costs.
        (2) Objections must be filed within 10 days after service of
      the bill of costs, unless the court extends the time.
        (3) The clerk must prepare and certify an itemized statement of
      costs for insertion in the mandate, but issuance of the mandate
      must not be delayed for taxing costs. If the mandate issues
      before costs are finally determined, the district clerk must -
      upon the circuit clerk's request - add the statement of costs, or
      any amendment of it, to the mandate.

      (e) Costs on Appeal Taxable in the District Court. The following
    costs on appeal are taxable in the district court for the benefit
    of the party entitled to costs under this rule:
        (1) the preparation and transmission of the record;
        (2) the reporter's transcript, if needed to determine the
      appeal;
        (3) premiums paid for a supersedeas bond or other bond to
      preserve rights pending appeal; and
        (4) the fee for filing the notice of appeal.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES ON ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). Statutory authorization for taxation of costs is
    found in 28 U.S.C. Sec. 1920. The provisions of this subdivision
    follow the usual practice in the circuits. A few statutes contain
    specific provisions in derogation of these general provisions. (See
    28 U.S.C. Sec. 1928, which forbids the award of costs to a
    successful plaintiff in a patent infringement action under the
    circumstances described by the statute). These statutes are
    controlling in cases to which they apply.
      Subdivision (b). The rules of the courts of appeals at present
    commonly deny costs to the United States except as allowance may be
    directed by statute. Those rules were promulgated at a time when
    the United States was generally invulnerable to an award of costs
    against it, and they appear to be based on the view that if the
    United States is not subject to costs if it loses, it ought not be
    entitled to recover costs if it wins.
      The number of cases affected by such rules has been greatly
    reduced by the Act of July 18, 1966, 80 Stat. 308 (1 U.S. Code
    Cong. & Ad. News, p. 349 (1966), 89th Cong., 2d Sess., which
    amended 28 U.S.C. Sec. 2412, the former general bar to the award of
    costs against the United States. Section 2412 as amended generally
    places the United States on the same footing as private parties
    with respect to the award of costs in civil cases. But the United
    States continues to enjoy immunity from costs in certain cases. By
    its terms amended section 2412 authorizes an award of costs against
    the United States only in civil actions, and it excepts from its
    general authorization of an award of costs against the United
    States cases which are "otherwise specifically provided (for) by
    statute." Furthermore, the Act of July 18, 1966, supra, provides
    that the amendments of section 2412 which it effects shall apply
    only to actions filed subsequent to the date of its enactment. The
    second clause continues in effect, for these and all other cases in
    which the United States enjoys immunity from costs, the presently
    prevailing rule that the United States may recover costs as the
    prevailing party only if it would have suffered them as the losing
    party.
      Subdivision (c). While only five circuits (D.C. Cir. Rule 20(d);
    1st Cir. Rule 31(4); 3d Cir. Rule 35(4); 4th Cir. Rule 21(4); 9th
    Cir. Rule 25, as amended June 2, 1967) presently tax the cost of
    printing briefs, the proposed rule makes the cost taxable in
    keeping with the principle of this rule that all cost items
    expended in the prosecution of a proceeding should be borne by the
    unsuccessful party.
      Subdivision (e). The costs described in this subdivision are
    costs of the appeal and, as such, are within the undertaking of the
    appeal bond. They are made taxable in the district court for
    general convenience. Taxation of the cost of the reporter's
    transcript is specifically authorized by 28 U.S.C. Sec. 1920, but
    in the absence of a rule some district courts have held themselves
    without authority to tax the cost (Perlman v. Feldmann, 116 F.Supp.
    102 (D.Conn., 1953); Firtag v. Gendleman, 152 F.Supp. 226 (D.D.C.,
    1957); Todd Atlantic Shipyards Corps. v. The Southport, 100 F.Supp.
    763 (E.D.S.C., 1951). Provision for taxation of the cost of
    premiums paid for supersedeas bonds is common in the local rules of
    district courts and the practice is established in the Second,
    Seventh, and Ninth Circuits. Berner v. British Commonwealth Pacific
    Air Lines, Ltd., 362 F.2d 799 (2d Cir. 1966); Land Oberoesterreich
    v. Gude, 93 F.2d 292 (2d Cir., 1937); In re Northern Ind. Oil Co.,
    192 F.2d 139 (7th Cir., 1951); Lunn v. F. W. Woolworth, 210 F.2d
    159 (9th Cir., 1954).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Subdivision (c). The proposed amendment would permit variations
    among the circuits in regulating the maximum rates taxable as costs
    for printing or otherwise reproducing briefs, appendices, and
    copies of records authorized by Rule 30(f). The present rule has
    had a different effect in different circuits depending upon the
    size of the circuit, the location of the clerk's office, and the
    location of other cities. As a consequence there was a growing
    sense that strict adherence to the rule produces some unfairness in
    some of the circuits and the matter should be made subject to local
    rule.
      Subdivision (d). The present rule makes no provision for
    objections to a bill of costs. The proposed amendment would allow
    10 days for such objections. Cf. Rule 54(d) of the F.R.C.P. It
    provides further that the mandate shall not be delayed for taxation
    of costs.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendment to subdivision (c) is intended to increase the
    degree of control exercised by the courts of appeals over rates for
    printing and copying recoverable as costs. It further requires the
    courts of appeals to encourage cost-consciousness by requiring
    that, in fixing the rate, the court consider the most economical
    methods of printing and copying.
      The amendment to subdivision (d) is technical. No substantive
    change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only. All
    references to the cost of "printing" have been deleted from
    subdivision (c) because commercial printing is so rarely used for
    preparation of documents filed with a court of appeals.

-End-



-CITE-
    28 USC APPENDIX Rule 40                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 40. Petition for Panel Rehearing

-STATUTE-
      (a) Time to File; Contents; Answer; Action by the Court if
    Granted.
        (1) Time. Unless the time is shortened or extended by order or
      local rule, a petition for panel rehearing may be filed within 14
      days after entry of judgment. But in a civil case, if the United
      States or its officer or agency is a party, the time within which
      any party may seek rehearing is 45 days after entry of judgment,
      unless an order shortens or extends the time.
        (2) Contents. The petition must state with particularity each
      point of law or fact that the petitioner believes the court has
      overlooked or misapprehended and must argue in support of the
      petition. Oral argument is not permitted.
        (3) Answer. Unless the court requests, no answer to a petition
      for panel rehearing is permitted. But ordinarily rehearing will
      not be granted in the absence of such a request.
        (4) Action by the Court. If a petition for panel rehearing is
      granted, the court may do any of the following:
          (A) make a final disposition of the case without reargument;
          (B) restore the case to the calendar for reargument or
        resubmission; or
          (C) issue any other appropriate order.

      (b) Form of Petition; Length. The petition must comply in form
    with Rule 32. Copies must be served and filed as Rule 31
    prescribes. Unless the court permits or a local rule provides
    otherwise, a petition for panel rehearing must not exceed 15 pages.

-SOURCE-
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff.
    Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This is the usual rule among the circuits, except that the
    express prohibition against filing a reply to the petition is found
    only in the rules of the Fourth, Sixth and Eighth Circuits (it is
    also contained in Supreme Court Rule 58(3)). It is included to save
    time and expense to the party victorious on appeal. In the very
    rare instances in which a reply is useful, the court will ask for
    it.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      Subdivision (a). The Standing Committee added to the first
    sentence of Rule 40(a) the words "or by local rule," to conform to
    current practice in the circuits. The Standing Committee believes
    the change noncontroversial.
      Subdivision (b). The proposed amendment would eliminate the
    distinction drawn in the present rule between printed briefs and
    those duplicated from typewritten pages in fixing their maximum
    length. See Note to Rule 28. Since petitions for rehearing must be
    prepared in a short time, making typographic printing less likely,
    the maximum number of pages is fixed at 15, the figure used in the
    present rule for petitions duplicated by means other than
    typographic printing.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). The amendment lengthens the time for filing a
    petition for rehearing from 14 to 45 days in civil cases involving
    the United States or its agencies or officers. It has no effect
    upon the time for filing in criminal cases. The amendment makes
    nation-wide the current practice in the District of Columbia and
    the Tenth Circuits, see D.C. Cir. R. 15(a), 10th Cir. R. 40.3. This
    amendment, analogous to the provision in Rule 4(a) extending the
    time for filing a notice of appeal in cases involving the United
    States, recognizes that the Solicitor General needs time to conduct
    a thorough review of the merits of a case before requesting a
    rehearing. In a case in which a court of appeals believes it
    necessary to restrict the time for filing a rehearing petition, the
    amendment provides that the court may do so by order. Although the
    first sentence of Rule 40 permits a court of appeals to shorten or
    lengthen the usual 14 day filing period by order or by local rule,
    the sentence governing appeals in civil cases involving the United
    States purposely limits a court's power to alter the 45 day period
    to orders in specific cases. If a court of appeals could adopt a
    local rule shortening the time for filing a petition for rehearing
    in all cases involving the United States, the purpose of the
    amendment would be defeated.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 41                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

-STATUTE-
      (a) Contents. Unless the court directs that a formal mandate
    issue, the mandate consists of a certified copy of the judgment, a
    copy of the court's opinion, if any, and any direction about costs.
      (b) When Issued. The court's mandate must issue 7 calendar days
    after the time to file a petition for rehearing expires, or 7
    calendar days after entry of an order denying a timely petition for
    panel rehearing, petition for rehearing en banc, or motion for stay
    of mandate, whichever is later. The court may shorten or extend the
    time.
      (c) Effective Date. The mandate is effective when issued.
      (d) Staying the Mandate.
        (1) On Petition for Rehearing or Motion. The timely filing of a
      petition for panel rehearing, petition for rehearing en banc, or
      motion for stay of mandate, stays the mandate until disposition
      of the petition or motion, unless the court orders otherwise.
        (2) Pending Petition for Certiorari.
          (A) A party may move to stay the mandate pending the filing
        of a petition for a writ of certiorari in the Supreme Court.
        The motion must be served on all parties and must show that the
        certiorari petition would present a substantial question and
        that there is good cause for a stay.
          (B) The stay must not exceed 90 days, unless the period is
        extended for good cause or unless the party who obtained the
        stay files a petition for the writ and so notifies the circuit
        clerk in writing within the period of the stay. In that case,
        the stay continues until the Supreme Court's final disposition.
          (C) The court may require a bond or other security as a
        condition to granting or continuing a stay of the mandate.
          (D) The court of appeals must issue the mandate immediately
        when a copy of a Supreme Court order denying the petition for
        writ of certiorari is filed.

-SOURCE-
    (As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The proposed rule follows the rule or practice in a majority of
    circuits by which copies of the opinion and the judgment serve in
    lieu of a formal mandate in the ordinary case. Compare Supreme
    Court Rule 59. Although 28 U.S.C. Sec. 2101(c) permits a writ of
    certiorari to be filed within 90 days after entry of judgment,
    seven of the eight circuits which now regulate the matter of stays
    pending application for certiorari limit the initial stay of the
    mandate to the 30-day period provided in the proposed rule. Compare
    D.C. Cir. Rule 27(e).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Subdivision (a). The amendment conforms Rule 41(a) to the
    amendment made to Rule 40(a). The amendment keys the time for
    issuance of the mandate to the expiration of the time for filing a
    petition for rehearing, unless such a petition is filed in which
    case the mandate issues 7 days after the entry of the order denying
    the petition. Because the amendment to Rule 40(a) lengthens the
    time for filing a petition for rehearing in civil cases involving
    the United States from 14 to 45 days, the rule requiring the
    mandate to issue 21 days after the entry of judgment would cause
    the mandate to issue while the government is still considering
    requesting a rehearing. Therefore, the amendment generally requires
    the mandate to issue 7 days after the expiration of the time for
    filing a petition for rehearing.
      Subdivision (b). The amendment requires a party who files a
    motion requesting a stay of mandate to file, at the same time,
    proof of service on all other parties. The old rule required the
    party to give notice to the other parties; the amendment merely
    requires the party to provide the court with evidence of having
    done so.
      The amendment also states that the motion must show that a
    petition for certiorari would present a substantial question and
    that there is good cause for a stay. The amendment is intended to
    alert the parties to the fact that a stay of mandate is not granted
    automatically and to the type of showing that needs to be made. The
    Supreme Court has established conditions that must be met before it
    will stay a mandate. See Robert L. Stern et al., Supreme Court
    Practice Sec. 17.19 (6th ed. 1986).

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.
      Several substantive changes are made in this rule, however.
      Subdivision (b). The existing rule provides that the mandate
    issues 7 days after the time to file a petition for panel rehearing
    expires unless such a petition is timely filed. If the petition is
    denied, the mandate issues 7 days after entry of the order denying
    the petition. Those provisions are retained but the amendments
    further provide that if a timely petition for rehearing en banc or
    motion for stay of mandate is filed, the mandate does not issue
    until 7 days after entry of an order denying the last of all such
    requests. If a petition for rehearing or a petition for rehearing
    en banc is granted, the court enters a new judgment after the
    rehearing and the mandate issues within the normal time after entry
    of that judgment.
      Subdivision (c). Subdivision (c) is new. It provides that the
    mandate is effective when the court issues it. A court of appeals'
    judgment or order is not final until issuance of the mandate; at
    that time the parties' obligations become fixed. This amendment is
    intended to make it clear that the mandate is effective upon
    issuance and that its effectiveness is not delayed until receipt of
    the mandate by the trial court or agency, or until the trial court
    or agency acts upon it. This amendment is consistent with the
    current understanding. Unless the court orders that the mandate
    issue earlier than provided in the rule, the parties can easily
    calculate the anticipated date of issuance and verify issuance with
    the clerk's office. In those instances in which the court orders
    earlier issuance of the mandate, the entry of the order on the
    docket alerts the parties to that fact.
      Subdivision (d). Amended paragraph (1) provides that the filing
    of a petition for panel rehearing, a petition for rehearing en banc
    or a motion for a stay of mandate pending petition to the Supreme
    Court for a writ of certiorari stays the issuance of the mandate
    until the court disposes of the petition or motion. The provision
    that a petition for rehearing en banc stays the mandate is a
    companion to the amendment of Rule 35 that deletes the language
    stating that a request for a rehearing en banc does not affect the
    finality of the judgment or stay the issuance of the mandate. The
    Committee's objective is to treat a request for a rehearing en banc
    like a petition for panel rehearing so that a request for a
    rehearing en banc will suspend the finality of the court of
    appeals' judgment and delay the running of the period for filing a
    petition for writ of certiorari. Because the filing of a petition
    for rehearing en banc will stay the mandate, a court of appeals
    will need to take final action on the petition but the procedure
    for doing so is left to local practice.
      Paragraph (1) also provides that the filing of a motion for a
    stay of mandate pending petition to the Supreme Court for a writ of
    certiorari stays the mandate until the court disposes of the
    motion. If the court denies the motion, the court must issue the
    mandate 7 days after entering the order denying the motion. If the
    court grants the motion, the mandate is stayed according to the
    terms of the order granting the stay. Delaying issuance of the
    mandate eliminates the need to recall the mandate if the motion for
    a stay is granted. If, however, the court believes that it would be
    inappropriate to delay issuance of the mandate until disposition of
    the motion for a stay, the court may order that the mandate issue
    immediately.
      Paragraph (2). The amendment changes the maximum period for a
    stay of mandate, absent the court of appeals granting an extension
    for cause, to 90 days. The presumptive 30-day period was adopted
    when a party had to file a petition for a writ of certiorari in
    criminal cases within 30 days after entry of judgment. Supreme
    Court Rule 13.1 now provides that a party has 90 days after entry
    of judgment by a court of appeals to file a petition for a writ of
    certiorari whether the case is civil or criminal.
      The amendment does not require a court of appeals to grant a stay
    of mandate that is coextensive with the period granted for filing a
    petition for a writ of certiorari. The granting of a stay and the
    length of the stay remain within the discretion of the court of
    appeals. The amendment means only that a 90-day stay may be granted
    without a need to show cause for a stay longer than 30 days.
      Subparagraph (C) is not new; it has been moved from the end of
    the rule to this position.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (b). Subdivision (b) directs that the mandate of a
    court must issue 7 days after the time to file a petition for
    rehearing expires or 7 days after the court denies a timely
    petition for panel rehearing, petition for rehearing en banc, or
    motion for stay of mandate, whichever is later. Intermediate
    Saturdays, Sundays, and legal holidays are counted in computing
    that 7-day deadline, which means that, except when the 7-day
    deadline ends on a weekend or legal holiday, the mandate issues
    exactly one week after the triggering event.
      Fed. R. App. P. 26(a)(2) has been amended to provide that, in
    computing any period of time, one should "[e]xclude intermediate
    Saturdays, Sundays, and legal holidays when the period is less than
    11 days, unless stated in calendar days." This change in the method
    of computing deadlines means that 7-day deadlines (such as that in
    subdivision (b)) have been lengthened as a practical matter. Under
    the new computation method, a mandate would never issue sooner than
    9 actual days after a triggering event, and legal holidays could
    extend that period to as much as 13 days.
      Delaying mandates for 9 or more days would introduce significant
    and unwarranted delay into appellate proceedings. For that reason,
    subdivision (b) has been amended to require that mandates issue 7
    calendar days after a triggering event.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 42                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 42. Voluntary Dismissal

-STATUTE-
      (a) Dismissal in the District Court. Before an appeal has been
    docketed by the circuit clerk, the district court may dismiss the
    appeal on the filing of a stipulation signed by all parties or on
    the appellant's motion with notice to all parties.
      (b) Dismissal in the Court of Appeals. The circuit clerk may
    dismiss a docketed appeal if the parties file a signed dismissal
    agreement specifying how costs are to be paid and pay any fees that
    are due. But no mandate or other process may issue without a court
    order. An appeal may be dismissed on the appellant's motion on
    terms agreed to by the parties or fixed by the court.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). This subdivision is derived from FRCP 73(a)
    without change of substance.
      Subdivision (b). The first sentence is a common provision in
    present circuit rules. The second sentence is added. Compare
    Supreme Court Rule 60.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 43                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 43. Substitution of Parties

-STATUTE-
      (a) Death of a Party.
        (1) After Notice of Appeal Is Filed. If a party dies after a
      notice of appeal has been filed or while a proceeding is pending
      in the court of appeals, the decedent's personal representative
      may be substituted as a party on motion filed with the circuit
      clerk by the representative or by any party. A party's motion
      must be served on the representative in accordance with Rule 25.
      If the decedent has no representative, any party may suggest the
      death on the record, and the court of appeals may then direct
      appropriate proceedings.
        (2) Before Notice of Appeal Is Filed - Potential Appellant. If
      a party entitled to appeal dies before filing a notice of appeal,
      the decedent's personal representative - or, if there is no
      personal representative, the decedent's attorney of record - may
      file a notice of appeal within the time prescribed by these
      rules. After the notice of appeal is filed, substitution must be
      in accordance with Rule 43(a)(1).
        (3) Before Notice of Appeal Is Filed - Potential Appellee. If a
      party against whom an appeal may be taken dies after entry of a
      judgment or order in the district court, but before a notice of
      appeal is filed, an appellant may proceed as if the death had not
      occurred. After the notice of appeal is filed, substitution must
      be in accordance with Rule 43(a)(1).

      (b) Substitution for a Reason Other Than Death. If a party needs
    to be substituted for any reason other than death, the procedure
    prescribed in Rule 43(a) applies.
      (c) Public Officer: Identification; Substitution.
        (1) Identification of Party. A public officer who is a party to
      an appeal or other proceeding in an official capacity may be
      described as a party by the public officer's official title
      rather than by name. But the court may require the public
      officer's name to be added.
        (2) Automatic Substitution of Officeholder. When a public
      officer who is a party to an appeal or other proceeding in an
      official capacity dies, resigns, or otherwise ceases to hold
      office, the action does not abate. The public officer's successor
      is automatically substituted as a party. Proceedings following
      the substitution are to be in the name of the substituted party,
      but any misnomer that does not affect the substantial rights of
      the parties may be disregarded. An order of substitution may be
      entered at any time, but failure to enter an order does not
      affect the substitution.

-SOURCE-
    (As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). The first three sentences described a procedure
    similar to the rule on substitution in civil actions in the
    district court. See FRCP 25(a). The fourth sentence expressly
    authorizes an appeal to be taken against one who has died after the
    entry of judgment. Compare FRCP 73(b), which impliedly authorizes
    such an appeal.
      The sixth sentence authorizes an attorney of record for the
    deceased to take an appeal on behalf of successors in interest if
    the deceased has no representative. At present, if a party entitled
    to appeal dies before the notice of appeal is filed, the appeal can
    presumably be taken only by his legal representative and must be
    taken within the time ordinarily prescribed. 13 Cyclopedia of
    Federal Procedure (3d Ed.) Sec. 63.21. The states commonly make
    special provisions for the event of the death of a party entitled
    to appeal, usually by extending the time otherwise prescribed.
    Rules of Civil Procedure for Superior Courts of Arizona, Rule
    73(t), 16 A.R.S.; New Jersey Rev. Rules 1:3-3; New York Civil
    Practice Law and Rules, Sec. 1022; Wisconsin Statutes Ann.
    274.01(2). The provision in the proposed rule is derived from
    California Code of Civil Procedure, Sec. 941.
      Subdivision (c). This subdivision is derived from FRCP 25(d) and
    Supreme Court Rule 48, with appropriate changes.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 43(a) and (c) are technical. No
    substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 44                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 44. Case Involving a Constitutional Question When the United
      States or the Relevant State is Not a Party

-STATUTE-
      (a) Constitutional Challenge to Federal Statute. If a party
    questions the constitutionality of an Act of Congress in a
    proceeding in which the United States or its agency, officer, or
    employee is not a party in an official capacity, the questioning
    party must give written notice to the circuit clerk immediately
    upon the filing of the record or as soon as the question is raised
    in the court of appeals. The clerk must then certify that fact to
    the Attorney General.
      (b) Constitutional Challenge to State Statute. If a party
    questions the constitutionality of a statute of a State in a
    proceeding in which that State or its agency, officer, or employee
    is not a party in an official capacity, the questioning party must
    give written notice to the circuit clerk immediately upon the
    filing of the record or as soon as the question is raised in the
    court of appeals. The clerk must then certify that fact to the
    attorney general of the State.

-SOURCE-
    (As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule is now found in the rules of a majority of the
    circuits. It is in response to the Act of August 24, 1937 (28
    U.S.C. Sec. 2403), which requires all courts of the United States
    to advise the Attorney General of the existence of an action or
    proceeding of the kind described in the rule.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Rule 44 requires that a party who "questions the
    constitutionality of an Act of Congress" in a proceeding in which
    the United States is not a party must provide written notice of
    that challenge to the clerk. Rule 44 is designed to implement 28
    U.S.C. Sec. 2403(a), which states that: "In any action, suit or
    proceeding in a court of the United States to which the United
    States or any agency, officer or employee thereof is not a party,
    wherein the constitutionality of any Act of Congress affecting the
    public interest is drawn in question, the court shall certify such
    fact to the Attorney General, and shall permit the United States to
    intervene . . . for argument on the question of constitutionality."
      The subsequent section of the statute - Sec. 2403(b) - contains
    virtually identical language imposing upon the courts the duty to
    notify the attorney general of a state of a constitutional
    challenge to any statute of that state. But Sec. 2403(b), unlike
    Sec. 2403(a), was not implemented in Rule 44.
      Rule 44 has been amended to correct this omission. The text of
    former Rule 44 regarding constitutional challenges to federal
    statutes now appears as Rule 44(a), while new language regarding
    constitutional challenges to state statutes now appears as Rule
    44(b).
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 45                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 45. Clerk's Duties

-STATUTE-
      (a) General Provisions.
        (1) Qualifications. The circuit clerk must take the oath and
      post any bond required by law. Neither the clerk nor any deputy
      clerk may practice as an attorney or counselor in any court while
      in office.
        (2) When Court Is Open. The court of appeals is always open for
      filing any paper, issuing and returning process, making a motion,
      and entering an order. The clerk's office with the clerk or a
      deputy in attendance must be open during business hours on all
      days except Saturdays, Sundays, and legal holidays. A court may
      provide by local rule or by order that the clerk's office be open
      for specified hours on Saturdays or on legal holidays other than
      New Year's Day, Martin Luther King, Jr.'s Birthday, Presidents'
      Day, Memorial Day, Independence Day, Labor Day, Columbus Day,
      Veterans' Day, Thanksgiving Day, and Christmas Day.

      (b) Records.
        (1) The Docket. The circuit clerk must maintain a docket and an
      index of all docketed cases in the manner prescribed by the
      Director of the Administrative Office of the United States
      Courts. The clerk must record all papers filed with the clerk and
      all process, orders, and judgments.
        (2) Calendar. Under the court's direction, the clerk must
      prepare a calendar of cases awaiting argument. In placing cases
      on the calendar for argument, the clerk must give preference to
      appeals in criminal cases and to other proceedings and appeals
      entitled to preference by law.
        (3) Other Records. The clerk must keep other books and records
      required by the Director of the Administrative Office of the
      United States Courts, with the approval of the Judicial
      Conference of the United States, or by the court.

      (c) Notice of an Order or Judgment. Upon the entry of an order or
    judgment, the circuit clerk must immediately serve a notice of
    entry on each party, with a copy of any opinion, and must note the
    date of service on the docket. Service on a party represented by
    counsel must be made on counsel.
      (d) Custody of Records and Papers. The circuit clerk has custody
    of the court's records and papers. Unless the court orders or
    instructs otherwise, the clerk must not permit an original record
    or paper to be taken from the clerk's office. Upon disposition of
    the case, original papers constituting the record on appeal or
    review must be returned to the court or agency from which they were
    received. The clerk must preserve a copy of any brief, appendix, or
    other paper that has been filed.

-SOURCE-
    (As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
    July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The duties imposed upon clerks of the courts of appeals by this
    rule are those imposed by rule or practice in a majority of the
    circuits. The second sentence of subdivision (a) authorizing the
    closing of the clerk's office on Saturday and non-national legal
    holidays follows a similar provision respecting the district court
    clerk's office found in FRCP 77(c) and in FRCrP 56.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      The amendment adds Columbus Day to the list of legal holidays.
    See the Note accompanying the amendment of Rule 26(a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendment to Rule 45(b) permits the courts of appeals to
    maintain computerized dockets. The Committee believes that the
    Administrative Office of the United States Courts ought to have
    maximum flexibility in prescribing the format of this docket in
    order to ensure a smooth transition from manual to automated
    systems and subsequent adaptation to technological improvements.
      The amendments to Rules 45(a) and (d) are technical. No
    substantive change is intended. The Birthday of Martin Luther King,
    Jr. has been added to the list of national holidays.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (c). Subdivision (c) has been amended so that the
    clerk may use electronic means to serve notice of entry of an order
    or judgment upon parties who have consented to such service.
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 46                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 46. Attorneys

-STATUTE-
      (a) Admission to the Bar.
        (1) Eligibility. An attorney is eligible for admission to the
      bar of a court of appeals if that attorney is of good moral and
      professional character and is admitted to practice before the
      Supreme Court of the United States, the highest court of a state,
      another United States court of appeals, or a United States
      district court (including the district courts for Guam, the
      Northern Mariana Islands, and the Virgin Islands).
        (2) Application. An applicant must file an application for
      admission, on a form approved by the court that contains the
      applicant's personal statement showing eligibility for
      membership. The applicant must subscribe to the following oath or
      affirmation:
        "I, ____________, do solemnly swear [or affirm] that I will
        conduct myself as an attorney and counselor of this court,
        uprightly and according to law; and that I will support the
        Constitution of the United States."

        (3) Admission Procedures. On written or oral motion of a member
      of the court's bar, the court will act on the application. An
      applicant may be admitted by oral motion in open court. But,
      unless the court orders otherwise, an applicant need not appear
      before the court to be admitted. Upon admission, an applicant
      must pay the clerk the fee prescribed by local rule or court
      order.

      (b) Suspension or Disbarment.
        (1) Standard. A member of the court's bar is subject to
      suspension or disbarment by the court if the member:
          (A) has been suspended or disbarred from practice in any
        other court; or
          (B) is guilty of conduct unbecoming a member of the court's
        bar.

        (2) Procedure. The member must be given an opportunity to show
      good cause, within the time prescribed by the court, why the
      member should not be suspended or disbarred.
        (3) Order. The court must enter an appropriate order after the
      member responds and a hearing is held, if requested, or after the
      time prescribed for a response expires, if no response is made.

      (c) Discipline. A court of appeals may discipline an attorney who
    practices before it for conduct unbecoming a member of the bar or
    for failure to comply with any court rule. First, however, the
    court must afford the attorney reasonable notice, an opportunity to
    show cause to the contrary, and, if requested, a hearing.

-SOURCE-
    (As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      Subdivision (a). The basic requirement of membership in the bar
    of the Supreme Court, or of the highest court of a state, or in
    another court of appeals or a district court is found, with minor
    variations, in the rules of ten circuits. The only other
    requirement in those circuits is that the applicant be of good
    moral and professional character. In the District of Columbia
    Circuit applicants other than members of the District of Columbia
    District bar or the Supreme Court bar must claim membership in the
    bar of the highest court of a state, territory or possession for
    three years prior to application for admission (D.C. Cir. Rule 7).
    Members of the District of Columbia District bar and the Supreme
    Court bar again excepted, applicants for admission to the District
    of Columbia Circuit bar must meet precisely defined prelaw and law
    school study requirements (D.C. Cir. Rule 7 1/2 ).
      A few circuits now require that application for admission be made
    by oral motion by a sponsor member in open court. The proposed rule
    permits both the application and the motion by the sponsor member
    to be in writing, and permits action on the motion without the
    appearance of the applicant or the sponsor, unless the court
    otherwise orders.
      Subdivision (b). The provision respecting suspension or
    disbarment is uniform. Third Circuit Rule 8(3) is typical.
      Subdivision (c). At present only Fourth Circuit Rule 36 contains
    an equivalent provision. The purpose of this provision is to make
    explicit the power of a court of appeals to impose sanctions less
    serious than suspension or disbarment for the breach of rules. It
    also affords some measure of control over attorneys who are not
    members of the bar of the court. Several circuits permit a
    non-member attorney to file briefs and motions, membership being
    required only at the time of oral argument. And several circuits
    permit argument pro hac vice by non-member attorneys.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT       
      The amendments to Rules 46(a) and (b) are technical. No
    substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 47                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 47. Local Rules by Courts of Appeals

-STATUTE-
      (a) Local Rules.
        (1) Each court of appeals acting by a majority of its judges in
      regular active service may, after giving appropriate public
      notice and opportunity for comment, make and amend rules
      governing its practice. A generally applicable direction to
      parties or lawyers regarding practice before a court must be in a
      local rule rather than an internal operating procedure or
      standing order. A local rule must be consistent with - but not
      duplicative of - Acts of Congress and rules adopted under 28
      U.S.C. Sec. 2072 and must conform to any uniform numbering system
      prescribed by the Judicial Conference of the United States. Each
      circuit clerk must send the Administrative Office of the United
      States Courts a copy of each local rule and internal operating
      procedure when it is promulgated or amended.
        (2) A local rule imposing a requirement of form must not be
      enforced in a manner that causes a party to lose rights because
      of a nonwillful failure to comply with the requirement.

      (b) Procedure When There Is No Controlling Law. A court of
    appeals may regulate practice in a particular case in any manner
    consistent with federal law, these rules, and local rules of the
    circuit. No sanction or other disadvantage may be imposed for
    noncompliance with any requirement not in federal law, federal
    rules, or the local circuit rules unless the alleged violator has
    been furnished in the particular case with actual notice of the
    requirement.

-SOURCE-
    (As amended Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      This rule continues the authority now vested in individual courts
    of appeals by 28 U.S.C. Sec. 2071 to make rules consistent with
    rules of practice and procedure promulgated by the Supreme Court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      Subdivision (a). This rule is amended to require that a generally
    applicable direction regarding practice before a court of appeals
    must be in a local rule rather than an internal operating procedure
    or some other general directive. It is the intent of this rule that
    a local rule may not bar any practice that these rules explicitly
    or implicitly permit. Subdivision (b) allows a court of appeals to
    regulate practice in an individual case by entry of an order in the
    case. The amendment also reflects the requirement that local rules
    be consistent not only with the national rules but also with Acts
    of Congress. The amendment also states that local rules should not
    repeat national rules and Acts of Congress.
      The amendment also requires that the numbering of local rules
    conform with any uniform numbering system that may be prescribed by
    the Judicial Conference. Lack of uniform numbering might create
    unnecessary traps for counsel and litigants. A uniform numbering
    system would make it easier for an increasingly national bar and
    for litigants to locate a local rule that applies to a particular
    procedural issue.
      Paragraph (2) is new. Its aim is to protect against loss of
    rights in the enforcement of local rules relating to matters of
    form. The proscription of paragraph (2) is narrowly drawn -
    covering only violations that are not willful and only those
    involving local rules directed to matters of form. It does not
    limit the court's power to impose substantive penalties upon a
    party if it or its attorney stubbornly or repeatedly violates a
    local rule, even one involving merely a matter of form. Nor does it
    affect the court's power to enforce local rules that involve more
    than mere matters of form.
      Subdivision (b). This rule provides flexibility to the court in
    regulating practice in a particular case when there is no
    controlling law. Specifically, it permits the court to regulate
    practice in any manner consistent with Acts of Congress, with rules
    adopted under 28 U.S.C. Sec. 2072, and with the circuit's local
    rules.
      The amendment to this rule disapproves imposing any sanction or
    other disadvantage on a person for noncompliance with such a
    directive, unless the alleged violator has been furnished in a
    particular case with actual notice of the requirement. There should
    be no adverse consequence to a party or attorney for violating
    special requirements relating to practice before a particular court
    unless the party or attorney has actual notice of those
    requirements.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language of the rule is amended to make the rule more easily
    understood. In addition to changes made to improve the
    understanding, the Advisory Committee has changed language to make
    style and terminology consistent throughout the appellate rules.
    These changes are intended to be stylistic only.

-End-



-CITE-
    28 USC APPENDIX Rule 48                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    TITLE VII. GENERAL PROVISIONS

-HEAD-
    Rule 48. Masters

-STATUTE-
      (a) Appointment; Powers. A court of appeals may appoint a special
    master to hold hearings, if necessary, and to recommend factual
    findings and disposition in matters ancillary to proceedings in the
    court. Unless the order referring a matter to a master specifies or
    limits the master's powers, those powers include, but are not
    limited to, the following:
        (1) regulating all aspects of a hearing;
        (2) taking all appropriate action for the efficient performance
      of the master's duties under the order;
        (3) requiring the production of evidence on all matters
      embraced in the reference; and
        (4) administering oaths and examining witnesses and parties.

      (b) Compensation. If the master is not a judge or court employee,
    the court must determine the master's compensation and whether the
    cost is to be charged to any party.

-SOURCE-
    (As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.
    Dec. 1, 1998.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      The text of the existing Rule 48 concerning the title was moved
    to Rule 1.
      This new Rule 48 authorizes a court of appeals to appoint a
    special master to make recommendations concerning ancillary
    matters. The courts of appeals have long used masters in contempt
    proceedings where the issue is compliance with an enforcement
    order. See Polish National Alliance v. NLRB, 159 F.2d 38 (7th Cir.
    1946), NLRB v. Arcade-Sunshine Co., 132 F.2d 8 (D.C. Cir. 1942);
    NLRB v. Remington Rand, Inc., 130 F.2d 919 (2d Cir. 1942). There
    are other instances when the question before a court of appeals
    requires a factual determination. An application for fees or
    eligibility for Criminal Justice Act status on appeal are examples.
      Ordinarily when a factual issue is unresolved, a court of appeals
    remands the case to the district court or agency that originally
    heard the case. It is not the Committee's intent to alter that
    practice. However, when factual issues arise in the first instance
    in the court of appeals, such as fees for representation on appeal,
    it would be useful to have authority to refer such determinations
    to a master for a recommendation.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The language and organization of the rule are amended to make the
    rule more easily understood. In addition to changes made to improve
    the understanding, the Advisory Committee has changed language to
    make style and terminology consistent throughout the appellate
    rules. These changes are intended to be stylistic only.

-End-


-CITE-
    28 USC APPENDIX APPENDIX OF FORMS                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    APPENDIX OF FORMS

-HEAD-
                             APPENDIX OF FORMS                         

-End-



-CITE-
    28 USC APPENDIX Form 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 1. Notice of Appeal to a Court of Appeals From a Judgment or
      Order of a District Court

-STATUTE-

-HEAD-
       UNITED STATES DISTRICT COURT FOR THE ____ DISTRICT OF ______   
                             FILE NUMBER ____                         
          A.B., Plaintiff
          v.
                                ] Notice of Appeal
          C. D., Defendant

      Notice is hereby given that ___(here name all parties taking the
    appeal)___, (plaintiffs) (defendants) in the above named case,*
    hereby appeal to the United States Court of Appeals for the ___
    Circuit (from the final judgment) (from an order (describing it))
    entered in this action on the ___ day of _________, 20_.
      (s)____________
      Attorney for ______
      Address: ________

      * See Rule 3(c) for permissible ways of identifying appellants.

-SOURCE-
    (As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff.
    Dec. 1, 2003.)


-End-



-CITE-
    28 USC APPENDIX Form 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 2. Notice of Appeal to a Court of Appeals From a Decision of
      the United States Tax Court

-STATUTE-

-HEAD-
                          UNITED STATES TAX COURT                      
                             WASHINGTON, D.C.                         
          A.B., Petitioner
          v.
          Commissioner of
                                ] Docket No.____
          Internal Revenue,
          Respondent
    Notice of Appeal
      Notice is hereby given that ___(here name all parties taking the
    appeal) *___ hereby appeal to the United States Court of Appeals
    for the ___ Circuit from (that part of) the decision of this court
    entered in the above captioned proceeding on the ____ day of
    ___________, 20_ (relating to __________).
      (s)____________
      Counsel for ______
      Address: ________

      * See Rule 3(c) for permissible ways of identifying appellants.

-SOURCE-
    (As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff.
    Dec. 1, 2003.)


-End-



-CITE-
    28 USC APPENDIX Form 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 3. Petition for Review of Order of an Agency, Board,
      Commission or Officer

-STATUTE-
                      UNITED STATES COURT OF APPEALS                  
                           FOR THE ____ CIRCUIT                       

          A.B., Petitioner

           v.

          XYZ Commission,

                                ] Petition for Review

          Respondent

      ___(here name all parties bringing the petition) *___ hereby
    petition the court for review of the Order of the XYZ Commission
    (describe the order) entered on _____, 20_.
      (s)_____________,
      Attorney for Petitioners
      Address:_________

      * See Rule 15.

-SOURCE-
    (As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff.
    Dec. 1, 2003.)

-End-



-CITE-
    28 USC APPENDIX Form 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma
      Pauperis


-STATUTE-
<p><img src="http://uscode.house.gov/images/current/Apf4p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/Apf4p2.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/Apf4p3.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/Apf4p4.gif" width=576 height=579 alt="Image of item"><p>

              (AS AMENDED APR. 24, 1998, EFF. DEC. 1, 1998.)          

-End-



-CITE-
    28 USC APPENDIX Form 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF APPELLATE PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 5. Notice of Appeal to a Court of Appeals from a Judgment or
      Order of a District Court or a Bankruptcy Appellate Panel

-STATUTE-
                 UNITED STATES DISTRICT COURT FOR THE ____             
                            DISTRICT OF ______                        

<p><img src="http://uscode.house.gov/images/current/28AApF5.gif" width=576 height=579 alt="Image of item"><p>


-HEAD-
    Notice of Appeal to United States Court of Appeals for the ______
      Circuit
      ________, the plaintiff [or defendant or other party] appeals to
    the United States Court of Appeals for the ______ Circuit from the
    final judgment [or order or decree] of the district court for the
    district of ______ [or bankruptcy appellate panel of the ______
    circuit], entered in this case on ______, 20__ [here describe the
    judgment, order, or decree] __________
      The parties to the judgment [or order or decree] appealed from
    and the names and addresses of their respective attorneys are as
    follows:
      Dated ____________
      Signed ____________
      Attorney for Appellant
      Address: ___________
      ______________

-SOURCE-
    (As added Apr. 25, 1989, eff. Dec. 1, 1989; amended Mar. 27, 2003,
    eff. Dec. 1, 2003.)

-HEAD-
    Form 6


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28AAPF6.gif" width=576 height=579 alt="Image of item"><p>


-SOURCE-
    (As added Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Changes Made After Publication and Comments. No changes were made
    to the text of the proposed amendment or to the Committee Note.

-End-


-CITE-
    28 USC APPENDIX FEDERAL RULES OF CIVIL PROCEDURE            01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE

-HEAD-
                     FEDERAL RULES OF CIVIL PROCEDURE                 


-MISC1-
                     (AS AMENDED TO JANUARY 19, 2004)                 

                                                                

                              HISTORICAL NOTE                          
      The original Rules of Civil Procedure for the District Courts
    were adopted by order of the Supreme Court on Dec. 20, 1937,
    transmitted to Congress by the Attorney General on Jan. 3, 1938,
    and became effective on Sept. 16, 1938.
      The Rules have been 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; Apr. 17, 1961, eff. July
    19, 1961; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
    July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff.
    July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, and
    Dec. 18, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980;
    Oct. 21, 1980, Pub. L. 96-481, title II, Sec. 205(a), (b), 94 Stat.
    2330; Jan. 12, 1983, Pub. L. 97-462, Secs. 2-4, 96 Stat. 2527-2530,
    eff. Feb. 26, 1983; Apr. 28, 1983, eff. Aug. 1, 1983; 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,
    Secs. 7047(b), 7049, 7050, 102 Stat. 4401; Apr. 30, 1991, eff. Dec.
    1, 1991; Dec. 9, 1991, Pub. L. 102-198, Sec. 11, 105 Stat. 1626;
    Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995;
    Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 11, 1997, eff. Dec. 1, 1997;
    Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 1999, eff. Dec. 1, 1999;
    Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001;
    Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 27, 2003, eff. Dec. 1, 2003.

-CROSS-
              RULES OF THE SUPREME COURT OF THE UNITED STATES          
      Procedure in original actions in Supreme Court of the United
    States, Federal Rules of Civil Procedure as guide, see rule 17,
    this Appendix.


-MISC2-
                  I. SCOPE OF RULES - ONE FORM OF ACTION              
    Rule                                                     
    1.          Scope and Purpose of Rules.                           
    2.          One Form of Action.                                   

    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
                                AND ORDERS
    3.          Commencement of Action.                               
    4.          Summons.                                              
                  (a)  Form.                                          
                  (b)  Issuance.                                      
                  (c)  Service with Complaint; by Whom Made.          
                  (d)  Waiver of Service; Duty to Save Costs of
                        Service; Request to Waive.                    
                  (e)  Service Upon Individuals Within a Judicial
                        District of the United States.                
                  (f)  Service Upon Individuals in a Foreign Country. 
                  (g)  Service Upon Infants and Incompetent Persons.  
                  (h)  Service Upon Corporations and Associations.    
                  (i)  Serving the United States, Its Agencies,
                        Corporations, Officers, or Employees.         
                  (j)  Service Upon Foreign, State, or Local
                        Governments.                                  
                  (k)  Territorial Limits of Effective Service.       
                  (l)  Proof of Service.                              
                  (m)  Time Limit for Service.                        
                  (n)  Seizure of Property; Service of Summons Not
                        Feasible.                                     
    4.1.        Service of Other Process.                             
                  (a)  Generally.                                     
                  (b)  Enforcement of Orders: Commitment for Civil
                        Contempt.                                     
    5.          Serving and Filing Pleadings and Other Papers.        
                  (a)  Service: When Required.                        
                  (b)  Making Service.                                
                  (c)  Same: Numerous Defendants.                     
                  (d)  Filing; Certificate of Service.                
                  (e)  Filing With the Court Defined.                 
    6.          Time.                                                 
                  (a)  Computation.                                   
                  (b)  Enlargement.                                   
                  [(c) Rescinded.]                                    
                  (d)  For Motions - Affidavits.                      
                  (e)  Additional Time After Service Under Rule
                        5(b)(2)(B), (C), or (D).                      

                        III. PLEADINGS AND MOTIONS                    
    7.          Pleadings Allowed; Form of Motions.                   
                  (a)  Pleadings.                                     
                  (b)  Motions and Other Papers.                      
                  (c)  Demurrers, Pleas, etc., Abolished.             
    7.1.        Disclosure Statement.                                 
                  (a)  Who Must File: Nongovernmental Corporate Party.
                  (b)  Time for Filing; Supplemental Filing.          
    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)  Admiralty and Maritime Claims.                 
    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;
                 Representations to Court; Sanctions.                 
                  (a)  Signature.                                     
                  (b)  Representations to Court.                      
                  (c)  Sanctions.                                     
                   (1)  How Initiated.                              
                     (A)  By Motion.                              
                     (B)  On Court's Initiative.                  
                   (2)  Nature of Sanction; Limitations.            
                   (3)  Order.                                      
                  (d)  Inapplicability to Discovery.                  
    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)  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.           
    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.                 
    15.         Amended and Supplemental Pleadings.                   
                  (a)  Amendments.                                    
                  (b)  Amendments To Conform to the Evidence.         
                  (c)  Relation Back of Amendments.                   
                  (d)  Supplemental Pleadings.                        
    16.         Pretrial Conferences; Scheduling; Management.         
                  (a)  Pretrial Conferences; Objectives.              
                  (b)  Scheduling and Planning.                       
                  (c)  Subjects for Consideration at Pretrial
                        Conferences.                                  
                  (d)  Final Pretrial Conference.                     
                  (e)  Pretrial Orders.                               
                  (f)  Sanctions.                                     

                                IV. PARTIES                            
    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; Fraudulent Conveyances.   
    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.                
    22.         Interpleader.                                         
    23.         Class Actions.                                        
                  (a)  Prerequisites to a Class Action.               
                  (b)  Class Actions Maintainable.                    
                  (c)  Determining by Order Whether to Certify a Class
                        Action; Appointing Class Counsel; Notice and
                        Membership in Class; Judgment; Multiple
                        Classes and Subclasses.                       
                  (d)  Orders in Conduct of Actions.                  
                  (e)  Settlement, Voluntary Dismissal, or Compromise.
                  (f)  Appeals.                                       
                  (g)  Class Counsel.                                 
                   (1)  Appointing Class Counsel.                   
                   (2)  Appointment Procedure.                      
                  (h)  Attorney Fees Award.                           
                   (1)  Motion for Award of Attorney Fees.          
                   (2)  Objections to Motion.                       
                   (3)  Hearing and Findings.                       
                   (4)  Reference to Special Master or Magistrate
                              Judge.                                     
    23.1.       Derivative Actions by Shareholders.                   
    23.2.       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.                                       

                       V. DEPOSITIONS AND DISCOVERY                   
    26.         General Provisions Governing Discovery; Duty of
                 Disclosure.                                          
                  (a)  Required Disclosures; Methods to Discover
                        Additional Matter.                            
                   (1)  Initial Disclosures.                        
                   (2)  Disclosure of Expert Testimony.             
                   (3)  Pretrial Disclosures.                       
                   (4)  Form of Disclosures.                        
                   (5)  Methods to Discover Additional Matter.      
                  (b)  Discovery Scope and Limits.                    
                   (1)  In General.                                 
                   (2)  Limitations.                                
                   (3)  Trial Preparation: Materials.               
                   (4)  Trial Preparation: Experts.                 
                   (5)  Claims of Privilege or Protection of Trial
                              Preparation Materials.                     
                  (c)  Protective Orders.                             
                  (d)  Timing and Sequence of Discovery.              
                  (e)  Supplementation of Disclosures and Responses.  
                  (f)  Conference of Parties; Planning for Discovery. 
                  (g)  Signing of Disclosures, Discovery Requests,
                        Responses, and Objections.                    
    27.         Depositions Before Action or Pending Appeal.          
                  (a)  Before Action.                                 
                   (1)  Petition.                                   
                   (2)  Notice and Service.                         
                   (3)  Order and Examination.                      
                   (4)  Use of Deposition.                          
                  (b)  Pending Appeal.                                
                  (c)  Perpetuation by Action.                        
    28.         Persons Before Whom Depositions May Be Taken.         
                  (a)  Within the United States.                      
                  (b)  In Foreign Countries.                          
                  (c)  Disqualification for Interest.                 
    29.         Stipulations Regarding Discovery Procedure.           
    30.         Depositions Upon Oral Examination.                    
                  (a)  When Depositions May Be Taken; When Leave
                        Required.                                     
                  (b)  Notice of Examination: General Requirements;
                        Method of Recording; Production of Documents
                        and Things; Deposition of Organization;
                        Deposition by Telephone.                      
                  (c)  Examination and Cross-Examination; Record of
                        Examination; Oath; Objections.                
                  (d)  Schedule and Duration; Motion to Terminate or
                        Limit Examination.                            
                  (e)  Review by Witness; Changes; Signing.           
                  (f)  Certification and Delivery by Officer;
                        Exhibits; Copies.                             
                  (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 Filing.                              
    32.         Use of Depositions in Court Proceedings.              
                  (a)  Use of Depositions.                            
                  (b)  Objections to Admissibility.                   
                  (c)  Form of Presentation.                          
                  (d)  Effect of Errors and Irregularities in
                        Depositions.                                  
                   (1)  As to Notice.                               
                   (2)  As to Disqualification of Officer.          
                   (3)  As to Taking of Deposition.                 
                   (4)  As to Completion and Return of Deposition.  
    33.         Interrogatories to Parties.                           
                  (a)  Availability.                                  
                  (b)  Answers and Objections.                        
                  (c)  Scope; Use at Trial.                           
                  (d)  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 Disclosure or Cooperate in Discovery;
                 Sanctions.                                           
                  (a)  Motion for Order Compelling Disclosure or
                        Discovery.                                    
                   (1)  Appropriate Court.                          
                   (2)  Motion.                                     
                   (3)  Evasive or Incomplete Disclosure, Answer, or
                              Response.                                  
                   (4)  Expenses and Sanctions.                     
                  (b)  Failure To Comply With Order.                  
                   (1)  Sanctions by Court in District Where
                              Deposition Is Taken.                       
                   (2)  Sanctions by Court in Which Action Is
                              Pending.                                   
                  (c)  Failure to Disclose; False or Misleading
                        Disclosure; Refusal to Admit.                 
                  (d)  Failure of Party to Attend at Own Deposition or
                        Serve Answers to Interrogatories or Respond to
                        Request for Inspection.                       
                  [(e) Abrogated.]                                    
                  [(f) Repealed.]                                     
                  (g)  Failure to Participate in the Framing of a
                        Discovery Plan.                               

                                VI. TRIALS                            
    38.         Jury Trial of Right.                                  
                  (a)  Right Preserved.                               
                  (b)  Demand.                                        
                  (c)  Same: Specification of Issues.                 
                  (d)  Waiver.                                        
                  (e)  Admiralty and Maritime Claims.                 
    39.         Trial by Jury or by the Court.                        
                  (a)  By Jury.                                       
                  (b)  By the Court.                                  
                  (c)  Advisory Jury and Trial by Consent.            
    40.         Assignment of Cases for Trial.                        
    41.         Dismissal of Actions.                                 
                  (a)  Voluntary Dismissal: Effect Thereof.           
                   (1)  By Plaintiff; by Stipulation.               
                   (2)  By Order of Court.                          
                  (b)  Involuntary Dismissal: Effect Thereof.         
                  (c)  Dismissal of Counterclaim, Cross-Claim, or
                        Third-Party Claim.                            
                  (d)  Costs of Previously-Dismissed Action.          
    42.         Consolidation; Separate Trials.                       
                  (a)  Consolidation.                                 
                  (b)  Separate Trials.                               
    43.         Taking of Testimony.                                  
                  (a)  Form.                                          
                  [(b),(c) Abrogated.]                                
                  (d)  Affirmation in Lieu of Oath.                   
                  (e)  Evidence on Motions.                           
                  (f)  Interpreters.                                  
    44.         Proof of Official Record.                             
                  (a)  Authentication.                                
                   (1)  Domestic.                                   
                   (2)  Foreign.                                    
                  (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.         Selection of 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 Jury Trials;
                 Alternative Motion for New Trial; Conditional
                 Rulings.                                             
                  (a)  Judgment as a Matter of Law.                   
                  (b)  Renewing Motion for Judgment After Trial;
                        Alternative Motion for New Trial.             
                  (c)  Granting Renewed Motion for Judgment as a
                        Matter of Law; Conditional Rulings; New Trial
                        Motion.                                       
                  (d)  Same: Denial of Motion for Judgment as a Matter
                        of Law.                                       
    51.         Instructions to Jury; Objections; Preserving a Claim
                 of Error.                                            
                  (a)  Requests.                                      
                  (b)  Instructions.                                  
                  (c)  Objections.                                    
                  (d)  Assigning Error; Plain Error.                  
    52.         Findings by the Court; Judgment on Partial Findings.  
                  (a)  Effect.                                        
                  (b)  Amendment.                                     
                  (c)  Judgment on Partial Findings.                  
    53.         Masters.                                              
                  (a)  Appointment.                                   
                  (b)  Order Appointing Master.                       
                   (1)  Notice.                                     
                   (2)  Contents.                                   
                   (3)  Entry of Order.                             
                   (4)  Amendment.                                  
                  (c)  Master's Authority.                            
                  (d)  Evidentiary Hearings.                          
                  (e)  Master's Orders.                               
                  (f)  Master's Reports.                              
                  (g)  Action on Master's Order, Report, or
                        Recommendations.                              
                   (1)  Action.                                     
                   (2)  Time To Object or Move.                     
                   (3)  Fact Findings.                              
                   (4)  Legal Conclusions.                          
                   (5)  Procedural Matters.                         
                  (h)  Compensation.                                  
                   (1)  Fixing Compensation.                        
                   (2)  Payment.                                    
                   (3)  Allocation.                                 
                  (i)  Appointment of Magistrate Judge.               

                               VII. JUDGMENT                           
    54.         Judgments; Costs.                                     
                  (a)  Definition; Form.                              
                  (b)  Judgment Upon Multiple Claims or Involving
                        Multiple Parties.                             
                  (c)  Demand for Judgment.                           
                  (d)  Costs; Attorneys' Fees.                        
                   (1)  Costs Other than Attorneys' Fees.           
                   (2)  Attorneys' Fees.                            
    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.            
    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 Testimony; Defense
                        Required.                                     
                  (f)  When Affidavits Are Unavailable.               
                  (g)  Affidavits Made in Bad Faith.                  
    57.         Declaratory Judgments.                                
    58.         Entry of Judgment.                                    
                  (a)  Separate Document.                             
                  (b)  Time of Entry.                                 
                  (c)  Cost or Fee Awards.                            
                  (d)  Request for Entry.                             
    59.         New Trials; Amendment of Judgments.                   
                  (a)  Grounds.                                       
                  (b)  Time for Motion.                               
                  (c)  Time for Serving Affidavits.                   
                  (d)  On Court's Initiative; Notice; Specifying
                        Grounds.                                      
                  (e)  Motion to Alter or Amend 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,
                        Receiverships, 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)  Stay According to State Law.                   
                  (g)  Power of Appellate Court Not Limited.          
                  (h)  Stay of Judgment as to Multiple Claims or
                        Multiple Parties.                             
    63.         Inability of a Judge to Proceed.                      

                   VIII. PROVISIONAL AND FINAL REMEDIES               
    64.         Seizure of Person or Property.                        
    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 Restraining
                        Order.                                        
                  (e)  Employer and Employee; Interpleader;
                        Constitutional Cases.                         
                  (f)  Copyright Impoundment.                         
    65.1        Security: Proceedings Against Sureties.               
    66.         Receivers Appointed by Federal Courts.                
    67.         Deposit in Court.                                     
    68.         Offer of Judgment.                                    
    69.         Execution.                                            
                  (a)  In General.                                    
                  (b)  Against Certain Public Officers.               
    70.         Judgment for Specific Acts; Vesting Title.            
    71.         Process in Behalf of and Against Persons Not Parties. 

                          IX. SPECIAL PROCEEDINGS                      
    71A.        Condemnation of Property.                             
                  (a)  Applicability of Other Rules.                  
                  (b)  Joinder of Properties.                         
                  (c)  Complaint.                                     
                   (1)  Caption.                                    
                   (2)  Contents.                                   
                   (3)  Filing.                                     
                  (d)  Process.                                       
                   (1)  Notice; Delivery.                           
                   (2)  Same; Form.                                 
                   (3)  Service of Notice.                          
                     (A)  Personal Service.                       
                     (B)  Service by Publication.                 
                   (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.                                       
                  (l)  Costs.                                         
    72.         Magistrate Judges; Pretrial Orders.                   
                  (a)  Nondispositive Matters.                        
                  (b)  Dispositive Motions and Prisoner Petitions.    
    73.         Magistrate Judges; Trial by Consent and Appeal.       
                  (a)  Powers; Procedure.                             
                  (b)  Consent.                                       
                  (c)  Appeal.                                        
                  [(d) Abrogated.]                                    
    [74 to 76.  Abrogated.]                                           

                       X. DISTRICT COURTS AND CLERKS                   
    77.         District Courts and Clerks.                           
                  (a)  District Courts Always Open.                   
                  (b)  Trials and Hearings; Orders in Chambers.       
                  (c)  Clerk's Office and Orders by Clerk.            
                  (d)  Notice of Orders or Judgments.                 
    78.         Motion Day.                                           
    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.          
    80.         Stenographer; Stenographic Report or Transcript as
                 Evidence.                                            
                  [(a),(b) Abrogated.]                                
                  (c)  Stenographic Report or Transcript as Evidence. 

                          XI. GENERAL PROVISIONS                      
    81.         Applicability in General.                             
                  (a)  Proceedings to Which the Rules Apply.          
                  (b)  Scire Facias and Mandamus.                     
                  (c)  Removed Actions.                               
                  [(d) Abrogated.]                                    
                  (e)  Law Applicable.                                
                  (f)  References to Officer of the United States.    
    82.         Jurisdiction and Venue Unaffected.                    
    83.         Rules by District Courts; Judge's Directives.         
                  (a)  Local Rules.                                   
                  (b)  Procedures When There is No Controlling Law.   
    84.         Forms.                                                
    85.         Title.                                                
    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                         
    Form                                                     
     1.         Summons.                                              
    1A.         Notice of Lawsuit and Request for Waiver of Service of
                 Summons.                                             
    1B.         Waiver of Service of Summons.                         
     2.         Allegation of Jurisdiction.                           
     3.         Complaint on a Promissory Note.                       
     4.         Complaint on an Account.                              
     5.         Complaint for Goods Sold and Delivered.               
     6.         Complaint for Money Lent.                             
     7.         Complaint for Money Paid by Mistake.                  
     8.         Complaint for Money Had and Received.                 
     9.         Complaint for Negligence.                             
    10.         Complaint for Negligence Where Plaintiff Is Unable To
                 Determine Definitely Whether the Person Responsible
                 Is C.D. or E.F. or Whether Both Are Responsible and
                 Where His Evidence May Justify a Finding of
                 Wilfulness or of Recklessness or of Negligence.      
    11.         Complaint for Conversion.                             
    12.         Complaint for Specific Performance of Contract To
                 Convey Land.                                         
    13.         Complaint on Claim for Debt and To Set Aside
                 Fraudulent Conveyance Under Rule 18(b).              
    14.         Complaint for Negligence Under Federal Employer's
                 Liability Act.                                       
    15.         Complaint for Damages Under Merchant Marine Act.      
    16.         Complaint for Infringement of Patent.                 
    17.         Complaint for Infringement of Copyright and Unfair
                 Competition.                                         
    18.         Complaint for Interpleader and Declaratory Relief.    
    [18-A.      Abrogated.]                                           
    19.         Motion To Dismiss, Presenting Defenses of Failure To
                 State a Claim, of Lack of Service of Process, of
                 Improper Venue, and of Lack of Jurisdiction Under
                 Rule 12(b).                                          
    20.         Answer Presenting Defenses Under Rule 12(b).          
    21.         Answer to Complaint Set Forth in Form 8, With
                 Counterclaim for Interpleader.                       
    [22.        Eliminated.]                                          
    22-A.       Summons and Complaint Against Third-Party Defendant.  
    22-B.       Motion To Bring in Third-Party Defendant.             
    23.         Motion To Intervene as a Defendant under Rule 24.     
    24.         Request for Production of Documents, etc., Under Rule
                 34.                                                  
    25.         Request for Admission Under Rule 36.                  
    26.         Allegation of Reason for Omitting Party.              
    [27.        Abrogated.]                                           
    28.         Notice: Condemnation.                                 
    29.         Complaint: Condemnation.                              
    30.         Suggestion of Death Upon the Record Under Rule
                 25(a)(1).                                            
    31.         Judgment on Jury Verdict.                             
    32.         Judgment on Decision by the Court.                    
    33.         Notice of Availability of a Magistrate Judge to
                 Exercise Jurisdiction.                               
    34.         Consent to Exercise of Jurisdiction by a United States
                 Magistrate Judge.                                    
    34A.        Order of Reference.                                   
    35.         Report of Parties' Planning Meeting.                  

       SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS   
    Rule                                                     
     A.         Scope of Rules.                                       
     B.         In Personam Actions: Attachment and Garnishment.      
                  (1)  When Available; Complaint, Affidavit, Judicial
                        Authorization, and Process.                   
                  (2)  Notice to Defendant.                           
                  (3)  Answer.                                        
                   (a)  By Garnishee.                               
                   (b)  By Defendant.                               
     C.         In Rem Actions: Special Provisions.                   
                  (1)  When Available.                                
                  (2)  Complaint.                                     
                  (3)  Judicial Authorization and Process.            
                   (a)  Arrest Warrant.                             
                   (b)  Service.                                    
                   (c)  Deposit in Court.                           
                   (d)  Supplemental Process.                       
                  (4)  Notice.                                        
                  (5)  Ancillary Process.                             
                  (6)  Responsive Pleading; Interrogatories.          
                   (a)  Civil Forfeiture.                           
                   (b)  Maritime Arrests and Other Proceedings.     
                   (c)  Interrogatories.                            
     D.         Possessory, Petitory, and Partition Actions.          
     E.         Actions in Rem and Quasi in Rem: General Provisions.  
                  (1)  Applicability.                                 
                  (2)  Complaint; Security.                           
                   (a)  Complaint.                                  
                   (b)  Security for Costs.                         
                  (3)  Process.                                       
                  (4)  Execution of Process; Marshal's Return; Custody
                        of Property; Procedures for Release.          
                   (a)  In General.                                 
                   (b)  Tangible Property.                          
                   (c)  Intangible Property.                        
                   (d)  Directions with Respect to Property in
                              Custody.                                   
                   (e)  Expenses of Seizing and Keeping Property;
                              Deposit.                                   
                   (f)  Procedure for Release from Arrest or
                              Attachment.                                
                  (5)  Release of Property.                           
                   (a)  Special Bond.                               
                   (b)  General Bond.                               
                   (c)  Release by Consent, or Stipulation; Order of
                              Court or Clerk; Costs.                     
                   (d)  Possessory, Petitory, and Partition Actions.
                  (6)  Reduction or Impairment of Security.           
                  (7)  Security on Counterclaim.                      
                  (8)  Restricted Appearance.                         
                  (9)  Disposition of Property; Sales.                
                   (a)  Actions for Forfeitures.                    
                   (b)  Interlocutory Sales; Delivery.              
                   (c)  Sales; Proceeds.                            
                  (10) Preservation of Property.                      
     F.         Limitation of Liability.                              
                  (1)  Time for Filing Complaint; Security.           
                  (2)  Complaint.                                     
                  (3)  Claims Against Owner; Injunction.              
                  (4)  Notice to Claimants.                           
                  (5)  Claims and Answer.                             
                  (6)  Information To Be Given Claimants.             
                  (7)  Insufficiency of Fund or Security.             
                  (8)  Objections to Claims: Distribution of Fund.    
                  (9)  Venue; Transfer.                               

      The Federal Rules of Civil Procedure supplant the Equity Rules
    since in general they cover the field now covered by the Equity
    Rules and the Conformity Act (former section 724 of this title).
      This table shows the Equity Rules to which references are made in
    the notes to the Federal Rules of Civil Procedure.


                       Equity Rules                       Federal Rules 
                                                             of Civil   
                                                            Procedure   
    --------------------------------------------------------------------
    1                                                                 77
    2                                                                 77
    3                                                                 79
    4                                                                 77
    5                                                                 77
    6                                                                 78
    7                                                              4, 70
    8                                                              6, 70
    9                                                                 70
    10                                                            18, 54
    11                                                                71
    12                                                   3, 4, 5, 12, 55
    13                                                                 4
    14                                                                 4
    15                                                             4, 45
    16                                                             6, 55
    17                                                                55
    18                                                              7, 8
    19                                                         1, 15, 61
    20                                                                12
    21                                                            11, 12
    22                                                                 1
    23                                                             1, 39
    24                                                                11
    25                                                      8, 9, 10, 19
    26                                                        18, 20, 82
    27                                                                23
    28                                                                15
    29                                                     7, 12, 42, 55
    30                                                         8, 13, 82
    31                                                      7, 8, 12, 55
    32                                                                15
    33                                                             7, 12
    34                                                                15
    35                                                                15
    36                                                                11
    37                                                    17, 19, 20, 24
    38                                                                23
    39                                                                19
    40                                                                20
    41                                                                17
    42                                                            19, 20
    43                                                            12, 21
    44                                                            12, 21
    45                                                                25
    46                                                            43, 61
    47                                                                26
    48                                                                43
    49                                                                53
    50                                                            30, 80
    51                                                            30, 53
    52                                                            45, 53
    53                                                                53
    54                                                                26
    55                                                                30
    56                                                                40
    57                                                                40
    58                                                    26, 33, 34, 36
    59                                                                53
    60                                                                53
    61                                                                53
    61 1/2                                                            53
    62                                                                53
    63                                                                53
    64                                                                26
    65                                                                53
    66                                                                53
    67                                                                53
    68                                                                53
    69                                                                59
    70                                                                17
    70 1/2                                                            52
    71                                                                54
    72                                                            60, 61
    73                                                                65
    74                                                                62
    75                                                                75
    76                                                                75
    77                                                                76
    78                                                                43
    79                                                                83
    80                                                                 6
    81                                                                86
    --------------------------------------------------------------------


-HEAD-
    RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS

-End-


-CITE-
    28 USC APPENDIX I. SCOPE OF RULES - ONE FORM OF
           ACTION                                          01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
                  I. SCOPE OF RULES - ONE FORM OF ACTION              

-End-



-CITE-
    28 USC APPENDIX Rule 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
    Rule 1. Scope and Purpose of Rules

-STATUTE-
      These rules govern the procedure in the United States district
    courts in all suits of a civil nature whether cognizable as cases
    at law or in equity or in admiralty, with the exceptions stated in
    Rule 81. They shall be construed and administered to secure the
    just, speedy, and inexpensive determination of every action.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff.
    July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      1. Rule 81 states certain limitations in the application of these
    rules to enumerated special proceedings.
      2. The expression "district courts of the United States"
    appearing in the statute authorizing the Supreme Court of the
    United States to promulgate rules of civil procedure does not
    include the district courts held in the Territories and insular
    possessions. See Mookini et al. v. United States, 303 U.S. 201, 58
    S.Ct. 543, 82 L.Ed. 748 (1938).
      3. These rules are drawn under the authority of the act of June
    19, 1934, U.S.C., Title 28, Sec. 723b [see 2072] (Rules in actions
    at law; Supreme Court authorized to make), and Sec. 723c [see 2072]
    (Union of equity and action at law rules; power of Supreme Court)
    and also other grants of rule making power to the Court. See Clark
    and Moore, A New Federal Civil Procedure - I. The Background, 44
    Yale L.J. 387, 391 (1935). Under Sec. 723b after the rules have
    taken effect all laws in conflict therewith are of no further force
    or effect. In accordance with Sec. 723c the Court has united the
    general rules prescribed for cases in equity with those in actions
    at law so as to secure one form of civil action and procedure for
    both. See Rule 2 (One Form of Action). For the former practice in
    equity and at law see U.S.C., Title 28, Secs. 723 and 730 [see 2071
    et seq.] (conferring power on the Supreme Court to make rules of
    practice in equity) and the [former] Equity Rules promulgated
    thereunder; U.S.C., Title 28, [former] Sec. 724 (Conformity act):
    [former] Equity Rule 22 (Action at Law Erroneously Begun as Suit in
    Equity - Transfer); [former] Equity Rule 23 (Matters Ordinarily
    Determinable at Law When Arising in Suit in Equity to be Disposed
    of Therein); U.S.C., Title 28, [former] Secs. 397 (Amendments to
    pleadings when case brought to wrong side of court), and 398
    (Equitable defenses and equitable relief in actions at law).
      4. With the second sentence compare U.S.C., Title 28, [former]
    Secs. 777 (Defects of form; amendments), 767 (Amendment of
    process); [former] Equity Rule 19 (Amendments Generally).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The change in nomenclature conforms to the official designation
    of district courts in Title 28, U.S.C., Sec. 132(a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      This is the fundamental change necessary to effect unification of
    the civil and admiralty procedure. Just as the 1938 rules abolished
    the distinction between actions at law and suits in equity, this
    change would abolish the distinction between civil actions and
    suits in admiralty. See also Rule 81.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      The purpose of this revision, adding the words "and administered"
    to the second sentence, is to recognize the affirmative duty of the
    court to exercise the authority conferred by these rules to ensure
    that civil litigation is resolved not only fairly, but also without
    undue cost or delay. As officers of the court, attorneys share this
    responsibility with the judge to whom the case is assigned.

-End-



-CITE-
    28 USC APPENDIX Rule 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
    Rule 2. One Form of Action

-STATUTE-
      There shall be one form of action to be known as "civil action."


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      1. This rule modifies U.S.C., Title 28, [former] Sec. 384 (Suits
    in equity, when not sustainable). U.S.C., Title 28, Secs. 723 and
    730 [see 2071 et seq.] (conferring power on the Supreme Court to
    make rules of practice in equity), are unaffected insofar as they
    relate to the rule making power in admiralty. These sections,
    together with Sec. 723b [see 2072] (Rules in actions at law;
    Supreme Court authorized to make) are continued insofar as they are
    not inconsistent with Sec. 723c [see 2072] (Union of equity and
    action at law rules; power of Supreme Court). See Note 3 to Rule 1.
    U.S.C., Title 28, [former] Secs. 724 (Conformity act), 397
    (Amendments to pleadings when case brought to wrong side of court)
    and 398 (Equitable defenses and equitable relief in actions at law)
    are superseded.
      2. Reference to actions at law or suits in equity in all statutes
    should now be treated as referring to the civil action prescribed
    in these rules.
      3. This rule follows in substance the usual introductory
    statements to code practices which provide for a single action and
    mode of procedure, with abolition of forms of action and procedural
    distinctions. Representative statutes are N.Y. Code 1848 (Laws
    1848, ch. 379) Sec. 62; N.Y.C.P.A. (1937) Sec. 8; Calif.Code
    Civ.Proc. (Deering, 1937) Sec. 307; 2 Minn.Stat. (Mason, 1927) Sec.
    9164; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Secs. 153, 255.

-End-


-CITE-
    28 USC APPENDIX II. COMMENCEMENT OF ACTION;
      SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
                                AND ORDERS

-End-



-CITE-
    28 USC APPENDIX Rule 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 3. Commencement of Action

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      1. Rule 5(e) defines what constitutes filing with the court.
      2. This rule governs the commencement of all actions, including
    those brought by or against the United States or an officer or
    agency thereof, regardless of whether service is to be made
    personally pursuant to Rule 4(d), or otherwise pursuant to Rule
    4(e).
      3. With this rule compare [former] Equity Rule 12 (Issue of
    Subpoena - Time for Answer) and the following statutes (and other
    similar statutes) which provide a similar method for commencing an
    action:

    U.S.C., Title 28:

     Sec. 45 [former] (District courts; practice and procedure in
          certain cases under interstate commerce laws).
     Sec. 762 [see 1402] (Petition in suit against United States).
     Sec. 766 [see 2409] (Partition suits where United States is tenant
          in common or joint tenant).

      4. This rule provides that the first step in an action is the
    filing of the complaint. Under Rule 4(a) this is to be followed
    forthwith by issuance of a summons and its delivery to an officer
    for service. Other rules providing for dismissal for failure to
    prosecute suggest a method available to attack unreasonable delay
    in prosecuting an action after it has been commenced. When a
    Federal or State statute of limitations is pleaded as a defense, a
    question may arise under this rule whether the mere filing of the
    complaint stops the running of the statute, or whether any further
    step is required, such as, service of the summons and complaint or
    their delivery to the marshal for service. The answer to this
    question may depend on whether it is competent for the Supreme
    Court, exercising the power to make rules of procedure without
    affecting substantive rights, to vary the operation of statutes of
    limitations. The requirement of Rule 4(a) that the clerk shall
    forthwith issue the summons and deliver it to the marshal for
    service will reduce the chances of such a question arising.

-End-



-CITE-
    28 USC APPENDIX Rule 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 4. Summons

-STATUTE-
      (a) Form. The summons shall be signed by the clerk, bear the seal
    of the court, identify the court and the parties, be directed to
    the defendant, and state the name and address of the plaintiff's
    attorney or, if unrepresented, of the plaintiff. It shall also
    state the time within which the defendant must appear and defend,
    and notify the defendant that failure to do so will result in a
    judgment by default against the defendant for the relief demanded
    in the complaint. The court may allow a summons to be amended.
      (b) Issuance. Upon or after filing the complaint, the plaintiff
    may present a summons to the clerk for signature and seal. If the
    summons is in proper form, the clerk shall sign, seal, and issue it
    to the plaintiff for service on the defendant. A summons, or a copy
    of the summons if addressed to multiple defendants, shall be issued
    for each defendant to be served.
      (c) Service with Complaint; by Whom Made.
        (1) A summons shall be served together with a copy of the
      complaint. The plaintiff is responsible for service of a summons
      and complaint within the time allowed under subdivision (m) and
      shall furnish the person effecting service with the necessary
      copies of the summons and complaint.
        (2) Service may be effected by any person who is not a party
      and who is at least 18 years of age. At the request of the
      plaintiff, however, the court may direct that service be effected
      by a United States marshal, deputy United States marshal, or
      other person or officer specially appointed by the court for that
      purpose. Such an appointment must be made when the plaintiff is
      authorized to proceed in forma pauperis pursuant to 28 U.S.C.
      Sec. 1915 or is authorized to proceed as a seaman under 28 U.S.C.
      Sec. 1916.

      (d) Waiver of Service; Duty to Save Costs of Service; Request to
    Waive.
        (1) A defendant who waives service of a summons does not
      thereby waive any objection to the venue or to the jurisdiction
      of the court over the person of the defendant.
        (2) An individual, corporation, or association that is subject
      to service under subdivision (e), (f), or (h) and that receives
      notice of an action in the manner provided in this paragraph has
      a duty to avoid unnecessary costs of serving the summons. To
      avoid costs, the plaintiff may notify such a defendant of the
      commencement of the action and request that the defendant waive
      service of a summons. The notice and request
          (A) shall be in writing and shall be addressed directly to
        the defendant, if an individual, or else to an officer or
        managing or general agent (or other agent authorized by
        appointment or law to receive service of process) of a
        defendant subject to service under subdivision (h);
          (B) shall be dispatched through first-class mail or other
        reliable means;
          (C) shall be accompanied by a copy of the complaint and shall
        identify the court in which it has been filed;
          (D) shall inform the defendant, by means of a text prescribed
        in an official form promulgated pursuant to Rule 84, of the
        consequences of compliance and of a failure to comply with the
        request;
          (E) shall set forth the date on which the request is sent;
          (F) shall allow the defendant a reasonable time to return the
        waiver, which shall be at least 30 days from the date on which
        the request is sent, or 60 days from that date if the defendant
        is addressed outside any judicial district of the United
        States; and
          (G) shall provide the defendant with an extra copy of the
        notice and request, as well as a prepaid means of compliance in
        writing.

      If a defendant located within the United States fails to comply
      with a request for waiver made by a plaintiff located within the
      United States, the court shall impose the costs subsequently
      incurred in effecting service on the defendant unless good cause
      for the failure be shown.
        (3) A defendant that, before being served with process, timely
      returns a waiver so requested is not required to serve an answer
      to the complaint until 60 days after the date on which the
      request for waiver of service was sent, or 90 days after that
      date if the defendant was addressed outside any judicial district
      of the United States.
        (4) When the plaintiff files a waiver of service with the
      court, the action shall proceed, except as provided in paragraph
      (3), as if a summons and complaint had been served at the time of
      filing the waiver, and no proof of service shall be required.
        (5) The costs to be imposed on a defendant under paragraph (2)
      for failure to comply with a request to waive service of a
      summons shall include the costs subsequently incurred in
      effecting service under subdivision (e), (f), or (h), together
      with the costs, including a reasonable attorney's fee, of any
      motion required to collect the costs of service.

      (e) Service Upon Individuals Within a Judicial District of the
    United States. Unless otherwise provided by federal law, service
    upon an individual from whom a waiver has not been obtained and
    filed, other than an infant or an incompetent person, may be
    effected in any judicial district of the United States:
        (1) pursuant to the law of the state in which the district
      court is located, or in which service is effected, for the
      service of a summons upon the defendant in an action brought in
      the courts of general jurisdiction of the State; or
        (2) by delivering a copy of the summons and of the complaint to
      the individual personally or by leaving copies thereof at the
      individual's dwelling house or usual place of abode with some
      person of suitable age and discretion then residing therein or by
      delivering a copy of the summons and of the complaint to an agent
      authorized by appointment or by law to receive service of
      process.

      (f) Service Upon Individuals in a Foreign Country. Unless
    otherwise provided by federal law, service upon an individual from
    whom a waiver has not been obtained and filed, other than an infant
    or an incompetent person, may be effected in a place not within any
    judicial district of the United States:
        (1) by any internationally agreed means reasonably calculated
      to give notice, such as those means authorized by the Hague
      Convention on the Service Abroad of Judicial and Extrajudicial
      Documents; or
        (2) if there is no internationally agreed means of service or
      the applicable international agreement allows other means of
      service, provided that service is reasonably calculated to give
      notice:
          (A) in the manner prescribed by the law of the foreign
        country for service in that country in an action in any of its
        courts of general jurisdiction; or
          (B) as directed by the foreign authority in response to a
        letter rogatory or letter of request; or
          (C) unless prohibited by the law of the foreign country, by
            (i) delivery to the individual personally of a copy of the
          summons and the complaint; or
            (ii) any form of mail requiring a signed receipt, to be
          addressed and dispatched by the clerk of the court to the
          party to be served; or

        (3) by other means not prohibited by international agreement as
      may be directed by the court.

      (g) Service Upon Infants and Incompetent Persons. Service upon an
    infant or an incompetent person in a judicial district of the
    United States shall be effected in the manner prescribed by the law
    of the state in which the service is made for the service of
    summons or other like process upon any such defendant in an action
    brought in the courts of general jurisdiction of that state.
    Service upon an infant or an incompetent person in a place not
    within any judicial district of the United States shall be effected
    in the manner prescribed by paragraph (2)(A) or (2)(B) of
    subdivision (f) or by such means as the court may direct.
      (h) Service Upon Corporations and Associations. Unless otherwise
    provided by federal law, service upon a domestic or foreign
    corporation or upon a partnership or other unincorporated
    association that is subject to suit under a common name, and from
    which a waiver of service has not been obtained and filed, shall be
    effected:
        (1) in a judicial district of the United States in the manner
      prescribed for individuals by subdivision (e)(1), or by
      delivering a copy of the summons and of the complaint to an
      officer, a managing or general agent, or to any other agent
      authorized by appointment or by law to receive service of process
      and, if the agent is one authorized by statute to receive service
      and the statute so requires, by also mailing a copy to the
      defendant, or
        (2) in a place not within any judicial district of the United
      States in any manner prescribed for individuals by subdivision
      (f) except personal delivery as provided in paragraph (2)(C)(i)
      thereof.

      (i) Serving the United States, Its Agencies, Corporations,
    Officers, or Employees.
        (1) Service upon the United States shall be effected
          (A) by delivering a copy of the summons and of the complaint
        to the United States attorney for the district in which the
        action is brought or to an assistant United States attorney or
        clerical employee designated by the United States attorney in a
        writing filed with the clerk of the court or by sending a copy
        of the summons and of the complaint by registered or certified
        mail addressed to the civil process clerk at the office of the
        United States attorney and
          (B) by also sending a copy of the summons and of the
        complaint by registered or certified mail to the Attorney
        General of the United States at Washington, District of
        Columbia, and
          (C) in any action attacking the validity of an order of an
        officer or agency of the United States not made a party, by
        also sending a copy of the summons and of the complaint by
        registered or certified mail to the officer or agency.

        (2)(A) Service on an agency or corporation of the United
      States, or an officer or employee of the United States sued only
      in an official capacity, is effected by serving the United States
      in the manner prescribed by Rule 4(i)(1) and by also sending a
      copy of the summons and complaint by registered or certified mail
      to the officer, employee, agency, or corporation.
        (B) Service on an officer or employee of the United States sued
      in an individual capacity for acts or omissions occurring in
      connection with the performance of duties on behalf of the United
      States - whether or not the officer or employee is sued also in
      an official capacity - is effected by serving the United States
      in the manner prescribed by Rule 4(i)(1) and by serving the
      officer or employee in the manner prescribed by Rule 4(e), (f),
      or (g).
        (3) The court shall allow a reasonable time to serve process
      under Rule 4(i) for the purpose of curing the failure to serve:
          (A) all persons required to be served in an action governed
        by Rule 4(i)(2)(A), if the plaintiff has served either the
        United States attorney or the Attorney General of the United
        States, or
          (B) the United States in an action governed by Rule
        4(i)(2)(B), if the plaintiff has served an officer or employee
        of the United States sued in an individual capacity.

      (j) Service Upon Foreign, State, or Local Governments.
        (1) Service upon a foreign state or a political subdivision,
      agency, or instrumentality thereof shall be effected pursuant to
      28 U.S.C. Sec. 1608.
        (2) Service upon a state, municipal corporation, or other
      governmental organization subject to suit shall be effected by
      delivering a copy of the summons and of the complaint to its
      chief executive officer or by serving the summons and complaint
      in the manner prescribed by the law of that state for the service
      of summons or other like process upon any such defendant.

      (k) Territorial Limits of Effective Service.
        (1) Service of a summons or filing a waiver of service is
      effective to establish jurisdiction over the person of a
      defendant
          (A) who could be subjected to the jurisdiction of a court of
        general jurisdiction in the state in which the district court
        is located, or
          (B) who is a party joined under Rule 14 or Rule 19 and is
        served at a place within a judicial district of the United
        States and not more than 100 miles from the place from which
        the summons issues, or
          (C) who is subject to the federal interpleader jurisdiction
        under 28 U.S.C. Sec. 1335, or
          (D) when authorized by a statute of the United States.

        (2) If the exercise of jurisdiction is consistent with the
      Constitution and laws of the United States, serving a summons or
      filing a waiver of service is also effective, with respect to
      claims arising under federal law, to establish personal
      jurisdiction over the person of any defendant who is not subject
      to the jurisdiction of the courts of general jurisdiction of any
      state.

      (l) Proof of Service. If service is not waived, the person
    effecting service shall make proof thereof to the court. If service
    is made by a person other than a United States marshal or deputy
    United States marshal, the person shall make affidavit thereof.
    Proof of service in a place not within any judicial district of the
    United States shall, if effected under paragraph (1) of subdivision
    (f), be made pursuant to the applicable treaty or convention, and
    shall, if effected under paragraph (2) or (3) thereof, include a
    receipt signed by the addressee or other evidence of delivery to
    the addressee satisfactory to the court. Failure to make proof of
    service does not affect the validity of the service. The court may
    allow proof of service to be amended.
      (m) Time Limit for Service. If service of the summons and
    complaint is not made upon a defendant within 120 days after the
    filing of the complaint, the court, upon motion or on its own
    initiative after notice to the plaintiff, shall dismiss the action
    without prejudice as to that defendant or direct that service be
    effected within a specified time; provided that if the plaintiff
    shows good cause for the failure, the court shall extend the time
    for service for an appropriate period. This subdivision does not
    apply to service in a foreign country pursuant to subdivision (f)
    or (j)(1).
      (n) Seizure of Property; Service of Summons Not Feasible.
        (1) If a statute of the United States so provides, the court
      may assert jurisdiction over property. Notice to claimants of the
      property shall then be sent in the manner provided by the statute
      or by service of a summons under this rule.
        (2) Upon a showing that personal jurisdiction over a defendant
      cannot, in the district where the action is brought, be obtained
      with reasonable efforts by service of summons in any manner
      authorized by this rule, the court may assert jurisdiction over
      any of the defendant's assets found within the district by
      seizing the assets under the circumstances and in the manner
      provided by the law of the state in which the district court is
      located.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
    July 1, 1966; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 97-462,
    Sec. 2, Jan. 12, 1983, 96 Stat. 2527; Mar. 2, 1987, eff. Aug. 1,
    1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1,
    2000.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). With the provision permitting additional
    summons upon request of the plaintiff compare [former] Equity Rule
    14 (Alias Subpoena) and the last sentence of [former] Equity Rule
    12 (Issue of Subpoena - Time for Answer).
      Note to Subdivision (b). This rule prescribes a form of summons
    which follows substantially the requirements stated in [former]
    Equity Rules 12 (Issue of Subpoena - Time for Answer) and 7
    (Process, Mesne and Final).
      U.S.C., Title 28, Sec. 721 [now 1691] (Sealing and testing of
    writs) is substantially continued insofar as it applies to a
    summons, but its requirements as to teste of process are
    superseded. U.S.C., Title 28, [former] Sec. 722 (Teste of process,
    day of), is superseded.
      See Rule 12(a) for a statement of the time within which the
    defendant is required to appear and defend.
      Note to Subdivision (c). This rule does not affect U.S.C., Title
    28, Sec. 503 [see 566], as amended June 15, 1935 (Marshals; duties)
    and such statutes as the following insofar as they provide for
    service of process by a marshal, but modifies them insofar as they
    may imply service by a marshal only:

    U.S.C., Title 15:

     Sec. 5 (Bringing in additional parties) (Sherman Act)
     Sec. 10 (Bringing in additional parties)
     Sec. 25 (Restraining violations; procedure)

    U.S.C., Title 28:

     Sec. 45 [former] (Practice and procedure in certain cases under
          the interstate commerce laws)

      Compare [former] Equity Rule 15 (Process, by Whom Served).
      Note to Subdivision (d). Under this rule the complaint must
    always be served with the summons.
      Paragraph (1). For an example of a statute providing for service
    upon an agent of an individual see U.S.C., Title 28, Sec. 109 [now
    1400, 1694] (Patent cases).
      Paragraph (3). This enumerates the officers and agents of a
    corporation or of a partnership or other unincorporated association
    upon whom service of process may be made, and permits service of
    process only upon the officers, managing or general agents, or
    agents authorized by appointment or by law, of the corporation,
    partnership or unincorporated association against which the action
    is brought. See Christian v. International Ass'n of Machinists, 7
    F.(2d) 481 (D.C.Ky., 1925) and Singleton v. Order of Railway
    Conductors of America, 9 F.Supp. 417 (D.C.Ill., 1935). Compare
    Operative Plasterers' and Cement Finishers' International Ass'n of
    the United States and Canada v. Case, 93 F.(2d) 56 (App.D.C.,
    1937).
      For a statute authorizing service upon a specified agent and
    requiring mailing to the defendant, see U.S.C., Title 6, Sec. 7
    [now Title 31, Sec. 9306] (Surety companies as sureties;
    appointment of agents; service of process).
      Paragraphs (4) and (5) provide a uniform and comprehensive method
    of service for all actions against the United States or an officer
    or agency thereof. For statutes providing for such service, see
    U.S.C., Title 7, Secs. 217 (Proceedings for suspension of orders),
    499k (Injunctions; application of injunction laws governing orders
    of Interstate Commerce Commission), 608c(15)(B) (Court review of
    ruling of Secretary of Agriculture), and 855 (making Sec.
    608c(15)(B) applicable to orders of the Secretary of Agriculture as
    to handlers of anti-hog-cholera serum and hog-cholera virus);
    U.S.C., Title 26, [former] Sec. 1569 (Bill in chancery to clear
    title to realty on which the United States has a lien for taxes);
    U.S.C., Title 28, [former] Secs. 45 (District Courts; practice and
    procedure in certain cases under the interstate commerce laws),
    [former] 763 (Petition in suit against the United States; service;
    appearance by district attorney), 766 [now 2409] (Partition suits
    where United States is tenant in common or joint tenant), 902 [now
    2410] (Foreclosure of mortgages or other liens on property in which
    the United States has an interest). These and similar statutes are
    modified insofar as they prescribe a different method of service or
    dispense with the service of a summons.
      For the [former] Equity Rule on service, see [former] Equity Rule
    13 (Manner of Serving Subpoena).
      Note to Subdivision (e). The provisions for the service of a
    summons or of notice or of an order in lieu of summons contained in
    U.S.C., Title 8, Sec. 405 [see 1451] (Cancellation of certificates
    of citizenship fraudulently or illegally procured) (service by
    publication in accordance with State law); U.S.C., Title 28, Sec.
    118 [now 1655] (Absent defendants in suits to enforce liens);
    U.S.C., Title 35, Sec. 72a [now 146, 291] (Jurisdiction of District
    Court of United States for the District of Columbia in certain
    equity suits where adverse parties reside elsewhere) (service by
    publication against parties residing in foreign countries); U.S.C.,
    Title 38, Sec. 445 [now 1984] (Action against the United States on
    a veteran's contract of insurance) (parties not inhabitants of or
    not found within the District may be served with an order of the
    court, personally or by publication) and similar statutes are
    continued by this rule. Title 24, Sec. 378 [now Title 13, Sec. 336]
    of the Code of the District of Columbia (Publication against
    nonresident; those absent for six months; unknown heirs or
    devisees; for divorce or in rem; actual service beyond District) is
    continued by this rule.
      Note to Subdivision (f). This rule enlarges to some extent the
    present rule as to where service may be made. It does not, however,
    enlarge the jurisdiction of the district courts.
      U.S.C., Title 28, Secs. 113 [now 1392] (Suits in States
    containing more than one district) (where there are two or more
    defendants residing in different districts), [former] 115 (Suits of
    a local nature), 116 [now 1392] (Property in different districts in
    same State), [former] 838 (Executions run in all districts of
    State); U.S.C., Title 47, Sec. 13 (Action for damages against a
    railroad or telegraph company whose officer or agent in control of
    a telegraph line refuses or fails to operate such line in a certain
    manner - "upon any agent of the company found in such state");
    U.S.C., Title 49, Sec. 321(c) [see 13304(a)] (Requiring designation
    of a process agent by interstate motor carriers and in case of
    failure so to do, service may be made upon any agent in the State)
    and similar statutes, allowing the running of process throughout a
    State, are substantially continued.
      U.S.C., Title 15, Secs. 5 (Bringing in additional parties)
    (Sherman Act), 25 (Restraining violations; procedure); U.S.C.,
    Title 28, Secs. 44 [now 2321] (Procedure in certain cases under
    interstate commerce laws; service of processes of court), 117 [now
    754, 1692] (Property in different States in same circuit;
    jurisdiction of receiver), 839 [now 2413] (Executions; run in every
    State and Territory) and similar statutes, providing for the
    running of process beyond the territorial limits of a State, are
    expressly continued.
      Note to Subdivision (g). With the second sentence compare
    [former] Equity Rule 15 (Process, by Whom Served).
      Note to Subdivision (h). This rule substantially continues
    U.S.C., Title 28, [former] Sec. 767 (Amendment of process).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      Subdivision (b). Under amended subdivision (e) of this rule, an
    action may be commenced against a nonresident of the State in which
    the district court is held by complying with State procedures.
    Frequently the form of the summons or notice required in these
    cases by State law differs from the Federal form of summons
    described in present subdivision (b) and exemplified in Form 1. To
    avoid confusion, the amendment of subdivision (b) states that a
    form of summons or notice, corresponding "as nearly as may be" to
    the State form, shall be employed. See also a corresponding
    amendment of Rule 12(a) with regard to the time to answer.
      Subdivision (d)(4). This paragraph, governing service upon the
    United States, is amended to allow the use of certified mail as an
    alternative to registered mail for sending copies of the papers to
    the Attorney General or to a United States officer or agency. Cf.
    N.J. Rule 4:5-2. See also the amendment of Rule 30(f)(1).
      Subdivision (d)(7). Formerly a question was raised whether this
    paragraph, in the context of the rule as a whole, authorized
    service in original Federal actions pursuant to State statutes
    permitting service on a State official as a means of bringing a
    nonresident motorist defendant into court. It was argued in McCoy
    v. Siler, 205 F.2d 498, 501-2 (3d Cir.) (concurring opinion), cert.
    denied, 346 U.S. 872, 74 S.Ct. 120, 98 L.Ed. 380 (1953), that the
    effective service in those cases occurred not when the State
    official was served but when notice was given to the defendant
    outside the State, and that subdivision (f) (Territorial limits of
    effective service), as then worded, did not authorize out-of-State
    service. This contention found little support. A considerable
    number of cases held the service to be good, either by fixing upon
    the service on the official within the State as the effective
    service, thus satisfying the wording of subdivision (f) as it then
    stood, see Holbrook v. Cafiero, 18 F.R.D. 218 (D.Md. 1955);
    Pasternack v. Dalo, 17 F.R.D. 420; (W.D.Pa. 1955); cf. Super Prods.
    Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y. 1957), or by reading
    paragraph (7) as not limited by subdivision (f). See Griffin v.
    Ensign, 234 F.2d 307 (3d Cir. 1956); 2 Moore's Federal Practice,
    &#182; 4.19 (2d ed. 1948); 1 Barron & Holtzoff, Federal Practice &
    Procedure Sec. 182.1 (Wright ed. 1960); Comment, 27 U. of
    Chi.L.Rev. 751 (1960). See also Olberding v. Illinois Central R.R.,
    201 F.2d 582 (6th Cir.), rev'd on other grounds, 346 U.S. 338, 74
    S.Ct. 83, 98 L.Ed. 39 (1953); Feinsinger v. Bard, 195 F.2d 45 (7th
    Cir. 1952).
      An important and growing class of State statutes base personal
    jurisdiction over nonresidents on the doing of acts or on other
    contacts within the State, and permit notice to be given the
    defendant outside the State without any requirement of service on a
    local State official. See, e.g., Ill.Ann.Stat. ch. 110, Secs. 16,
    17 (Smith-Hurd 1956); Wis.Stat. Sec. 262.06 (1959). This service,
    employed in original Federal actions pursuant to paragraph (7), has
    also been held proper. See Farr & Co. v. Cia. Intercontinental de
    Nav. de Cuba, 243 F.2d 342 (2d Cir. 1957); Kappus v. Western Hills
    Oil, Inc., 24 F.R.D. 123 (E.D.Wis. 1959); Star v. Rogalny, 162
    F.Supp. 181 (E.D.Ill. 1957). It has also been held that the clause
    of paragraph (7) which permits service "in the manner prescribed by
    the law of the state," etc., is not limited by subdivision (c)
    requiring that service of all process be made by certain designated
    persons. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba,
    supra. But cf. Sappia v. Lauro Lines, 130 F.Supp. 810 (S.D.N.Y.
    1955).
      The salutary results of these cases are intended to be preserved.
    See paragraph (7), with a clarified reference to State law, and
    amended subdivisions (e) and (f).
      Subdivision (e). For the general relation between subdivisions
    (d) and (e), see 2 Moore, supra, &#182; 4.32.
      The amendment of the first sentence inserting the word
    "thereunder" supports the original intention that the "order of
    court" must be authorized by a specific United States statute. See
    1 Barron & Holtzoff, supra, at 731. The clause added at the end of
    the first sentence expressly adopts the view taken by commentators
    that, if no manner of service is prescribed in the statute or
    order, the service may be made in a manner stated in Rule 4. See 2
    Moore, supra, &#182; 4.32, at 1004; Smit, International Aspects of
    Federal Civil Procedure, 61 Colum.L.Rev. 1031, 1036-39 (1961). But
    see Commentary, 5 Fed. Rules Serv. 791 (1942).
      Examples of the statutes to which the first sentence relates are
    28 U.S.C. Sec. 2361 (Interpleader; process and procedure); 28
    U.S.C. Sec. 1655 (Lien enforcement; absent defendants).
      The second sentence, added by amendment, expressly allows resort
    in original Federal actions to the procedures provided by State law
    for effecting service on nonresident parties (as well as on
    domiciliaries not found within the State). See, as illustrative,
    the discussion under amended subdivision (d)(7) of service pursuant
    to State nonresident motorist statutes and other comparable State
    statutes. Of particular interest is the change brought about by the
    reference in this sentence to State procedures for commencing
    actions against nonresidents by attachment and the like,
    accompanied by notice. Although an action commenced in a State
    court by attachment may be removed to the Federal court if ordinary
    conditions for removal are satisfied, see 28 U.S.C. Sec. 1450;
    Rorick v. Devon Syndicate, Ltd., 307 U.S. 299, 59 S.Ct. 877, 83
    L.Ed. 1303 (1939); Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51
    L.Ed. 138 (1906), there has heretofore been no provision recognized
    by the courts for commencing an original Federal civil action by
    attachment. See Currie, Attachment and Garnishment in the Federal
    Courts, 59 Mich.L.Rev. 337 (1961), arguing that this result came
    about through historical anomaly. Rule 64, which refers to
    attachment, garnishment, and similar procedures under State law,
    furnishes only provisional remedies in actions otherwise validly
    commenced. See Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct.
    694, 57 L.Ed. 1953 (1913); Davis v. Ensign-Bickford Co., 139 F.2d
    624 (8th Cir. 1944); 7 Moore's Federal Practice &#182; 64.05 (2d
    ed. 1954); 3 Barron & Holtzoff, Federal Practice & Procedure Sec.
    1423 (Wright ed. 1958); but cf. Note, 13 So.Calif.L.Rev. 361
    (1940). The amendment will now permit the institution of original
    Federal actions against nonresidents through the use of familiar
    State procedures by which property of these defendants is brought
    within the custody of the court and some appropriate service is
    made up them.
      The necessity of satisfying subject-matter jurisdictional
    requirements and requirements of venue will limit the practical
    utilization of these methods of effecting service. Within those
    limits, however, there appears to be no reason for denying
    plaintiffs means of commencing actions in Federal courts which are
    generally available in the State courts. See 1 Barron & Holtzoff,
    supra, at 374-80; Nordbye, Comments on Proposed Amendments to Rules
    of Civil Procedure for the United States District Courts, 18 F.R.D.
    105, 106 (1956); Note, 34 Corn.L.Q. 103 (1948); Note, 13
    So.Calif.L.Rev. 361 (1940).
      If the circumstances of a particular case satisfy the applicable
    Federal law (first sentence of Rule 4(e), as amended) and the
    applicable State law (second sentence), the party seeking to make
    the service may proceed under the Federal or the State law, at his
    option.
      See also amended Rule 13(a), and the Advisory Committee's Note
    thereto.
      Subdivision (f). The first sentence is amended to assure the
    effectiveness of service outside the territorial limits of the
    State in all the cases in which any of the rules authorize service
    beyond those boundaries. Besides the preceding provisions of Rule
    4, see Rule 71A(d)(3). In addition, the new second sentence of the
    subdivision permits effective service within a limited area outside
    the State in certain special situations, namely, to bring in
    additional parties to a counterclaim or cross-claim (Rule 13(h)),
    impleaded parties (Rule 14), and indispensable or conditionally
    necessary parties to a pending action (Rule 19); and to secure
    compliance with an order of commitment for civil contempt. In those
    situations effective service can be made at points not more than
    100 miles distant from the courthouse in which the action is
    commenced, or to which it is assigned or transferred for trial.
      The bringing in of parties under the 100-mile provision in the
    limited situations enumerated is designed to promote the objective
    of enabling the court to determine entire controversies. In the
    light of present-day facilities for communication and travel, the
    territorial range of the service allowed, analogous to that which
    applies to the service of a subpoena under Rule 45(e)(1), can
    hardly work hardship on the parties summoned. The provision will be
    especially useful in metropolitan areas spanning more than one
    State. Any requirements of subject-matter jurisdiction and venue
    will still have to be satisfied as to the parties brought in,
    although these requirements will be eased in some instances when
    the parties can be regarded as "ancillary." See Pennsylvania R.R.
    v. Erie Avenue Warehouse Co., 5 F.R.Serv.2d 14a.62, Case 2 (3d Cir.
    1962); Dery v. Wyer, 265 F.2d 804 (2d Cir. 1959); United Artists
    Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 (2d Cir.
    1955); Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir.
    1944); Vaughn v. Terminal Transp. Co., 162 F.Supp. 647 (E.D.Tenn.
    1957); and compare the fifth paragraph of the Advisory Committee's
    Note to Rule 4(e), as amended. The amendment is but a moderate
    extension of the territorial reach of Federal process and has ample
    practical justification. See 2 Moore, supra. Sec. 4.01[13] (Supp.
    1960); 1 Barron & Holtzoff, supra, Sec. 184; Note, 51 Nw.U.L.Rev.
    354 (1956). But cf. Nordbye, Comments on Proposed Amendments to
    Rules of Civil Procedure for the United States District Courts, 18
    F.R.D. 105, 106 (1956).
      As to the need for enlarging the territorial area in which orders
    of commitment for civil contempt may be served, see Graber v.
    Graber, 93 F.Supp. 281 (D.D.C. 1950); Teele Soap Mfg. Co. v. Pine
    Tree Products Co., Inc., 8 F.Supp. 546 (D.N.H. 1934); Mitchell v.
    Dexter, 244 Fed. 926 (1st Cir. 1917); in re Graves, 29 Fed. 60
    (N.D. Iowa 1886).
      As to the Court's power to amend subdivisions (e) and (f) as here
    set forth, see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66
    S.Ct. 242, 90 L.Ed. 185 (1946).
      Subdivision (i). The continual increase of civil litigation
    having international elements makes it advisable to consolidate,
    amplify, and clarify the provisions governing service upon parties
    in foreign countries. See generally Jones, International Judicial
    Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J.
    515 (1953); Longley, Serving Process, Subpoenas and Other Documents
    in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 34
    (1959); Smit, International Aspects of Federal Civil Procedure, 61
    Colum.L.Rev. 1031 (1961).
      As indicated in the opening lines of new subdivision (i),
    referring to the provisions of subdivision (e), the authority for
    effecting foreign service must be found in a statute of the United
    States or a statute or rule of court of the State in which the
    district court is held providing in terms or upon proper
    interpretation for service abroad upon persons not inhabitants of
    or found within the State. See the Advisory Committee's Note to
    amended Rule 4(d)(7) and Rule 4(e). For examples of Federal and
    State statutes expressly authorizing such service, see 8 U.S.C.
    Sec. 1451(b); 35 U.S.C. Secs. 146, 293; Me.Rev.Stat., ch. 22, Sec.
    70 (Supp. 1961); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Veh. &
    Tfc.Law Sec. 253. Several decisions have construed statutes to
    permit service in foreign countries, although the matter is not
    expressly mentioned in the statutes. See, e.g., Chapman v. Superior
    Court, 162 Cal.App.2d 421, 328 P.2d 23 (Dist.Ct.App. 1958); Sperry
    v. Fliegers, 194 Misc. 438, 86 N.Y.S.2d 830 (Sup.Ct. 1949); Ewing
    v. Thompson, 233 N.C. 564, 65 S.E.2d 17 (1951); Rushing v. Bush,
    260 S.W.2d 900 (Tex.Ct.Civ.App. 1953). Federal and State statutes
    authorizing service on nonresidents in such terms as to warrant the
    interpretation that service abroad is permissible include 15 U.S.C.
    Secs. 77v(a), 78aa, 79y; 28 U.S.C. Sec. 1655; 38 U.S.C. Sec.
    784(a); Ill.Ann.Stat. ch. 110, Secs. 16, 17 (Smith-Hurd 1956);
    Wis.Stat. Sec. 262.06 (1959).
      Under subdivisions (e) and (i), when authority to make foreign
    service is found in a Federal statute or statute or rule of court
    of a State, it is always sufficient to carry out the service in the
    manner indicated therein. Subdivision (i) introduces considerable
    further flexibility by permitting the foreign service and return
    thereof to be carried out in any of a number of other alternative
    ways that are also declared to be sufficient. Other aspects of
    foreign service continue to be governed by the other provisions of
    Rule 4. Thus, for example, subdivision (i) effects no change in the
    form of the summons, or the issuance of separate or additional
    summons, or the amendment of service.
      Service of process beyond the territorial limits of the United
    States may involve difficulties not encountered in the case of
    domestic service. Service abroad may be considered by a foreign
    country to require the performance of judicial, and therefore
    "sovereign," acts within its territory, which that country may
    conceive to be offensive to its policy or contrary to its law. See
    Jones, supra, at 537. For example, a person not qualified to serve
    process according to the law of the foreign country may find
    himself subject to sanctions if he attempts service therein. See
    Inter-American Judicial Committee, Report on Uniformity of
    Legislation on International Cooperation in Judicial Procedures 20
    (1952). The enforcement of a judgment in the foreign country in
    which the service was made may be embarrassed or prevented if the
    service did not comport with the law of that country. See ibid.
      One of the purposes of subdivision (i) is to allow accommodation
    to the policies and procedures of the foreign country. It is
    emphasized, however, that the attitudes of foreign countries vary
    considerably and that the question of recognition of United States
    judgments abroad is complex. Accordingly, if enforcement is to be
    sought in the country of service, the foreign law should be
    examined before a choice is made among the methods of service
    allowed by subdivision (i).
      Subdivision (i)(1). Subparagraph (a) of paragraph (1), permitting
    service by the method prescribed by the law of the foreign country
    for service on a person in that country in a civil action in any of
    its courts of general jurisdiction, provides an alternative that is
    likely to create least objection in the place of service and also
    is likely to enhance the possibilities of securing ultimate
    enforcement of the judgment abroad. See Report on Uniformity of
    Legislation on International Cooperation in Judicial Procedures,
    supra.
      In certain foreign countries service in aid of litigation pending
    in other countries can lawfully be accomplished only upon request
    to the foreign court, which in turn directs the service to be made.
    In many countries this has long been a customary way of
    accomplishing the service. See In re Letters Rogatory out of First
    Civil Court of City of Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Jones,
    supra, at 543; Comment, 44 Colum.L.Rev. 72 (1944); Note, 58 Yale
    L.J. 1193 (1949). Subparagraph (B) of paragraph (1), referring to a
    letter rogatory, validates this method. A proviso, applicable to
    this subparagraph and the preceding one, requires, as a safeguard,
    that the service made shall be reasonably calculated to give actual
    notice of the proceedings to the party. See Milliken v. Meyer, 311
    U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940).
      Subparagraph (C) of paragraph (1), permitting foreign service by
    personal delivery on individuals and corporations, partnerships,
    and associations, provides for a manner of service that is not only
    traditionally preferred, but also is most likely to lead to actual
    notice. Explicit provision for this manner of service was thought
    desirable because a number of Federal and State statutes permitting
    foreign service do not specifically provide for service by personal
    delivery abroad, see e.g., 35 U.S.C. Secs. 146, 293; 46 [App.]
    U.S.C. Sec. 1292; Calif.Ins.Code Sec. 1612; N.Y.Veh. & Tfc.Law Sec.
    253, and it also may be unavailable under the law of the country in
    which the service is made.
      Subparagraph (D) of paragraph (1), permitting service by certain
    types of mail, affords a manner of service that is inexpensive and
    expeditious, and requires a minimum of activity within the foreign
    country. Several statutes specifically provide for service in a
    foreign country by mail, e.g., Hawaii Rev.Laws Secs. 230-31, 230-32
    (1955); Minn.Stat.Ann. Sec. 303.13 (1947); N.Y.Civ.Prac.Act, Sec.
    229-b; N.Y.Veh. & Tfc.Law Sec. 253, and it has been sanctioned by
    the courts even in the absence of statutory provision specifying
    that form of service. Zurini v. United States, 189 F.2d 722 (8th
    Cir. 1951); United States v. Cardillo, 135 F.Supp. 798 (W.D.Pa.
    1955); Autogiro Co. v. Kay Gyroplanes, Ltd., 55 F.Supp. 919 (D.D.C.
    1944). Since the reliability of postal service may vary from
    country to country, service by mail is proper only when it is
    addressed to the party to be served and a form of mail requiring a
    signed receipt is used. An additional safeguard is provided by the
    requirement that the mailing be attended to be the clerk of the
    court. See also the provisions of paragraph (2) of this subdivision
    (i) regarding proof of service by mail.
      Under the applicable law it may be necessary, when the defendant
    is an infant or incompetent person, to deliver the summons and
    complaint to a guardian, committee, or similar fiduciary. In such a
    case it would be advisable to make service under subparagraph (A),
    (B), or (E).
      Subparagraph (E) of paragraph (1) adds flexibility by permitting
    the court by order to tailor the manner of service to fit the
    necessities of a particular case or the peculiar requirements of
    the law of the country in which the service is to be made. A
    similar provision appears in a number of statutes, e.g., 35 U.S.C.
    Secs. 146, 293; 38 U.S.C. Sec. 784(a); 46 [App.] U.S.C. Sec. 1292.
      The next-to-last sentence of paragraph (1) permits service under
    (C) and (E) to be made by any person who is not a party and is not
    less than 18 years of age or who is designated by court order or by
    the foreign court. Cf. Rule 45(c); N.Y.Civ.Prac.Act Secs. 233, 235.
    This alternative increases the possibility that the plaintiff will
    be able to find a process server who can proceed unimpeded in the
    foreign country; it also may improve the chances of enforcing the
    judgment in the country of service. Especially is the alternative
    valuable when authority for the foreign service is found in a
    statute or rule of court that limits the group of eligible process
    servers to designated officials or special appointees who, because
    directly connected with another "sovereign," may be particularly
    offensive to the foreign country. See generally Smit, supra, at
    1040-41. When recourse is had to subparagraph (A) or (B) the
    identity of the process server always will be determined by the law
    of the foreign country in which the service is made.
      The last sentence of paragraph (1) sets forth an alternative
    manner for the issuance and transmission of the summons for
    service. After obtaining the summons from the clerk, the plaintiff
    must ascertain the best manner of delivering the summons and
    complaint to the person, court, or officer who will make the
    service. Thus the clerk is not burdened with the task of
    determining who is permitted to serve process under the law of a
    particular country or the appropriate governmental or
    nongovernmental channel for forwarding a letter rogatory. Under
    (D), however, the papers must always be posted by the clerk.
      Subdivision (i)(2). When service is made in a foreign country,
    paragraph (2) permits methods for proof of service in addition to
    those prescribed by subdivision (g). Proof of service in accordance
    with the law of the foreign country is permitted because foreign
    process servers, unaccustomed to the form or the requirement of
    return of service prevalent in the United States, have on occasion
    been unwilling to execute the affidavit required by Rule 4(g). See
    Jones, supra, at 537; Longley, supra, at 35. As a corollary of the
    alternate manner of service in subdivision (i)(1)(E), proof of
    service as directed by order of the court is permitted. The special
    provision for proof of service by mail is intended as an additional
    safeguard when that method is used. On the type of evidence of
    delivery that may be satisfactory to a court in lieu of a signed
    receipt, see Aero Associates, Inc. v. La Metropolitana, 183 F.Supp.
    357 (S.D.N.Y. 1960).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      The wording of Rule 4(f) is changed to accord with the amendment
    of Rule 13(h) referring to Rule 19 as amended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      Subdivision (a). This is a technical amendment to conform this
    subdivision with the amendment of subdivision (c).
      Subdivision (c). The purpose of this amendment is to authorize
    service of process to be made by any person who is authorized to
    make service in actions in the courts of general jurisdiction of
    the state in which the district court is held or in which service
    is made.
      There is a troublesome ambiguity in Rule 4. Rule 4(c) directs
    that all process is to be served by the marshal, by his deputy, or
    by a person specially appointed by the court. But Rule 4(d)(7)
    authorizes service in certain cases "in the manner prescribed by
    the law of the state in which the district court is held. . . ."
    And Rule 4(e), which authorizes service beyond the state and
    service in quasi in rem cases when state law permits such service,
    directs that "service may be made . . . under the circumstances and
    in the manner prescribed in the [state] statute or rule." State
    statutes and rules of the kind referred to in Rule 4(d)(7) and Rule
    4(e) commonly designate the persons who are to make the service
    provided for, e.g., a sheriff or a plaintiff. When that is so, may
    the persons so designated by state law make service, or is service
    in all cases to be made by a marshal or by one specially appointed
    under present Rule 4(c)? The commentators have noted the ambiguity
    and have suggested the desirability of an amendment. See 2 Moore's
    Federal Practice &#182; 4.08 (1974); Wright & Miller, Federal
    Practice and Procedure: Civil Sec. 1092 (1969). And the ambiguity
    has given rise to unfortunate results. See United States for the
    use of Tanos v. St. Paul Mercury Ins. Co., 361 F. 2d 838 (5th Cir.
    1966); Veeck v. Commodity Enterprises, Inc., 487 F. 2d 423 (9th
    Cir. 1973).
      The ambiguity can be resolved by specific amendments to Rules
    4(d)(7) and 4(e), but the Committee is of the view that there is no
    reason why Rule 4(c) should not generally authorize service of
    process in all cases by anyone authorized to make service in the
    courts of general jurisdiction of the state in which the district
    court is held or in which service is made. The marshal continues to
    be the obvious, always effective officer for service of process.

                  LEGISLATIVE STATEMENT - 1983 AMENDMENT              

               128 CONGRESSIONAL RECORD H9848, DEC. 15, 1982           
      Mr. EDWARDS of California. Mr. Speaker, in July Mr. McClory and I
    brought before the House a bill to delay the effective date of
    proposed changes in rule 4 of the Federal Rules of Civil Procedure,
    dealing with service of process. The Congress enacted that
    legislation and delayed the effective date so that we could cure
    certain problems in the proposed amendments to rule 4.
      Since that time, Mr. McClory and I introduced a bill, H.R. 7154,
    that cures those problems. It was drafted in consultation with
    representatives of the Department of Justice, the Judicial
    Conference of the United States, and others.
      The Department of Justice and the Judicial Conference have
    endorsed the bill and have urged its prompt enactment. Indeed, the
    Department of Justice has indicated that the changes occasioned by
    the bill will facilitate its collection of debts owned to the
    Government.
      I have a letter from the Office of Legislative Affairs of the
    Department of Justice supporting the bill that I will submit for
    the Record. Also, I am submitting for the Record a
    section-by-section analysis of the bill.
      H.R. 7154 makes much needed changes in rule 4 of the Federal
    Rules of Civil Procedure and is supported by all interested
    parties. I urge my colleagues to support it.

                                         U.S. Department of Justice.    
                                        Office of Legislative Affairs,  
                                    Washington, D.C., December 10, 1982.
    Hon. Peter W. Rodino, Jr.,
    Chairman, Committee on the Judiciary, House of Representatives,
      Washington, D.C.
      Dear Mr. Chairman: This is to proffer the views of the Department
    of Justice on H.R. 7154, the proposed Federal Rules of Civil
    Procedure Amendments Act of 1982. While the agenda is extremely
    tight and we appreciate that fact, we do reiterate that this
    Department strongly endorses the enactment of H.R. 7154. We would
    greatly appreciate your watching for any possible way to enact this
    legislation expeditiously.
      H.R. 7154 would amend Rule 4 of the Federal Rules of Civil
    Procedure to relieve effectively the United States Marshals Service
    of the duty of routinely serving summonses and complaints for
    private parties in civil actions and would thus achieve a goal this
    Department has long sought. Experience has shown that the Marshals
    Service's increasing workload and limited budget require such major
    relief from the burdens imposed by its role as process-server in
    all civil actions.
      The bill would also amend Rule 4 to permit certain classes of
    defendants to be served by first class mail with a notice and
    acknowledgment of receipt form enclosed. We have previously
    expressed a preference for the service-by-mail provisions of the
    proposed amendments to Rule 4 which the Supreme Court transmitted
    to Congress on April 28, 1982.
      The amendments proposed by the Supreme Court would permit service
    by registered or certified mail, return receipt requested. We had
    regarded the Supreme Court proposal as the more efficient because
    it would not require and affirmative act of signing and mailing on
    the part of a defendant. Moreover, the Supreme Court proposal would
    permit the entry of a default judgment if the record contained a
    returned receipt showing acceptance by the defendant or a returned
    envelope showing refusal of the process by the defendant and
    subsequent service and notice by first class mail. However, critics
    of that system of mail service have argued that certified mail is
    not an effective method of providing actual notice to defendants of
    claims against them because signatures may be illegible or may not
    match the name of the defendant, or because it may be difficult to
    determine whether mail has been "unclaimed" or "refused," the
    latter providing the sole basis for a default judgment.
      As you know, in light of these criticisms the Congress enacted
    Public Law 97-227 (H.R. 6663) postponing the effective date of the
    proposed amendments to Rule 4 until October 1, 1983, so as to
    facilitate further review of the problem. This Department opposed
    the delay in the effective date, primarily because the Supreme
    Court's proposed amendments also contained urgently needed
    provisions designed to relieve the United States Marshals of the
    burden of serving summonses and complaints in private civil
    actions. In our view, these necessary relief provisions are readily
    separable from the issues of service by certified mail and the
    propriety of default judgment after service by certified mail which
    the Congress felt warranted additional review.
      During the floor consideration of H.R. 6663 Congressman Edwards
    and other proponents of the delayed effective date pledged to
    expedite the review of the proposed amendments to Rule 4, given the
    need to provide prompt relief for the Marshals Service in the
    service of process area. In this spirit Judiciary Committee staff
    consulted with representatives of this Department, the Judicial
    Conference, and others who had voiced concern about the proposed
    amendments.
      H.R. 7154 is the product of those consultations and accommodated
    the concerns of the Department in a very workable and acceptable
    manner.
      Accordingly, we are satisfied that the provisions of H.R. 7154
    merit the support of all three branches of the Federal Government
    and everyone else who has a stake in the fair and efficient service
    of process in civil actions. We urge prompt consideration of H.R.
    7154 by the Committee.(!1)
      The Office of Management and Budget has advised that there is no
    objection to the submission of this report from the standpoint of
    the Administration's program.
            Sincerely,
                                                  Robert A. McConnell,  
                                             Assistant Attorney General.
    _______

      (!1) In addition to amending Rule 4, we have previously
    recommended: (a) amendments to 28 U.S.C. Sec. 569(b) redefining the
    Marshals traditional role by eliminating the statutory requirement
    that they serve subpoenas, as well as summonses and complaints,
    and; (b) amendments to 28 U.S.C. Sec. 1921 changing the manner and
    level in which marshal fees are charged for serving private civil
    process. These legislative changes are embodied in Section 10 of S.
    2567 and the Department's proposed fiscal year 1983 Appropriations
    Authorization bill. If, in the Committee's judgment, efforts to
    incorporate these suggested amendments in H.R. 7154 would in any
    way impede consideration of the bill during the few remaining
    legislative days in the 97th Congress, we would urge that they be
    separately considered early in the 98th Congress.

    H.R. 7154 - FEDERAL RULES OF CIVIL PROCEDURE AMENDMENTS ACT OF 1982

                                BACKGROUND                            
      The Federal Rules of Civil Procedure set forth the procedures to
    be followed in civil actions and proceedings in United States
    district courts. These rules are usually amended by a process
    established by 28 U.S.C. 2072, often referred to as the "Rules
    Enabling Act". The Rules Enabling Act provides that the Supreme
    Court can propose new rules of "practice and procedure" and
    amendments to existing rules by transmitting them to Congress after
    the start of a regular session but not later than May 1. The rules
    and amendments so proposed take effect 90 days after transmittal
    unless legislation to the contrary is enacted.(!1)
      On April 28, 1982, the Supreme Court transmitted to Congress
    several proposed amendments to the Federal Rules of Civil
    Procedure, the Federal Rules of Criminal Procedure (which govern
    criminal cases and proceedings in Federal courts), and the Rules
    and Forms Governing Proceedings in the United States District
    Courts under sections 2254 and 2255 of Title 28, United States Code
    (which govern habeas corpus proceedings). These amendments were to
    have taken effect on August 1, 1982.
      The amendments to Rule 4 of the Federal Rules of Civil Procedure
    were intended primarily to relieve United States marshals of the
    burden of serving summonses and complaints in private civil
    actions. Appendix II, at 7 (Report of the Committee on Rules of
    Practice and Procedure), 16 (Advisory Committee Note). The
    Committee received numerous complaints that the changes not only
    failed to achieve that goal, but that in the process the changes
    saddled litigators with flawed mail service, deprived litigants of
    the use of effective local procedures for service, and created a
    time limit for service replete with ambiguities that could only be
    resolved by costly litigation. See House Report No. 97-662, at 2-4
    (1982).
      In order to consider these criticisms, Congress enacted Public
    Law 97-227, postponing the effective date of the proposed
    amendments to Rule 4 until October 1, 1983.(!2) Accordingly, in
    order to help shape the policy behind, and the form of, the
    proposed amendments, Congress must enact legislation before October
    1, 1983.(!3)
      With that deadline and purpose in mind, consultations were held
    with representatives of the Judicial Conference, the Department of
    Justice, and others who had voiced concern about the proposed
    amendments. H.R. 7154 is the product of those consultations. The
    bill seeks to effectuate the policy of relieving the Marshals
    Service of the duty of routinely serving summonses and complaints.
    It provides a system of service by mail modeled upon a system found
    to be effective in California, and finally, it makes appropriate
    stylistic, grammatical, and other changes in Rule 4.

                         NEED FOR THE LEGISLATION                     

                             1. CURRENT RULE 4                         
      Rule 4 of the Federal Rules of Civil Procedure relates to the
    issuance and service of process. Subsection (c) authorizes service
    of process by personnel of the Marshals Service, by a person
    specially appointed by the Court, or "by a person authorized to
    serve process in an action brought in the courts of general
    jurisdiction of the state in which the district court is held or in
    which service is made." Subsection (d) describes how a summons and
    complaint must be served and designates those persons who must be
    served in cases involving specified categories of defendants. Mail
    service is not directly authorized. Subsection (d)(7), however,
    authorizes service under the law of the state in which the district
    court sits upon defendants described in subsections (d)(1) (certain
    individuals) and (d)(3) (organizations). Thus, if state law
    authorizes service by mail of a summons and complaint upon an
    individual or organization described in subsections (d)(1) or (3),
    then subsection (d)(7) authorizes service by mail for United States
    district courts in that state.(!4)

                     2. REDUCING THE ROLE OF MARSHALS                 
      The Supreme Court's proposed modifications of Rule 4 were
    designed to alleviate the burden on the Marshals Service of serving
    summonses and complaints in private civil actions. Appendix II, at
    7 (Report of the Committee on Rules of Practice and Procedure), 16
    (Advisory Committee Note). While the Committee received no
    complaints about the goal of reducing the role of the Marshals
    Service, the Court's proposals simply failed to achieve that goal.
    See House Report No. 97-662, at 2-3 (1982).
      The Court's proposed Rule 4(c)(2)(B) required the Marshals
    Service to serve summonses and complaints "pursuant to any
    statutory provision expressly providing for service by a United
    States Marshal or his deputy." (!5) One such statutory provision is
    28 U.S.C. 569(b), which compels marshals to "execute all lawful
    writs, process and orders issued under authority of the United
    States, including those of the courts * * *." (emphasis added).
    Thus, any party could have invoked 28 U.S.C. 569(b) to utilize a
    marshal for service of a summons and complaint, thereby thwarting
    the intent of the new subsection to limit the use of marshals. The
    Justice Department acknowledges that the proposed subsection did
    not accomplish its objectives.(!6)
      Had 28 U.S.C. 569(b) been inconsistent with proposed Rule
    4(c)(2)(B), the latter would have nullified the former under 28
    U.S.C. 2072, which provides that "All laws in conflict with such
    rules shall be of no further force or effect after such rules have
    taken effect." Since proposed Rule 4(c)(2)(B) specifically referred
    to statutes such as 28 U.S.C. 569(b), however, the new subsection
    did not conflict with 28 U.S.C. 569(b) and did not, therefore,
    supersede it.
      H.R. 7154 cures this problem and achieves the desired reduction
    in the role of the Marshals Service by authorizing marshals to
    serve summonses and complaints "on behalf of the United States". By
    so doing, H.R. 7154 eliminates the loophole in the Court's proposed
    language and still provides for service by marshals on behalf of
    the Government.(!7)

                              3. MAIL SERVICE                          
      The Supreme Court's proposed subsection (d)(7) and (8)
    authorized, as an alternative to personal service, mail service of
    summonses and complaints on individuals and organizations described
    in subsection (d)(1) and (3), but only through registered or
    certified mail, restricted delivery. Critics of that system of mail
    service argued that registered and certified mail were not
    necessarily effective methods of providing actual notice to
    defendants of claims against them. This was so, they argued,
    because signatures may be illegible or may not match the name of
    the defendant, or because it may be difficult to determine whether
    mail has been "unclaimed" or "refused", the latter apparently
    providing the sole basis for a default judgment.(!8)
      H.R. 7154 provides for a system of service by mail similar to the
    system now used in California. See Cal. Civ. Pro. Sec. 415.30 (West
    1973). Service would be by ordinary mail with a notice and
    acknowledgment of receipt form enclosed. If the defendant returns
    the acknowledgment form to the sender within 20 days of mailing,
    the sender files the return and service is complete. If the
    acknowledgment is not returned within 20 days of mailing, then
    service must be effected through some other means provided for in
    the Rules.
      This system of mail service avoids the notice problems created by
    the registered and certified mail procedures proposed by the
    Supreme Court. If the proper person receives the notice and returns
    the acknowledgment, service is complete. If the proper person does
    not receive the mailed form, or if the proper person receives the
    notice but fails to return the acknowledgment form, another method
    of service authorized by law is required.(!9) In either instance,
    however, the defendant will receive actual notice of the claim. In
    order to encourage defendants to return the acknowledgment form,
    the court can order a defendant who does not return it to pay the
    costs of service unless the defendant can show good cause for the
    failure to return it.

                            4. THE LOCAL OPTION                        
      The Court's proposed amendments to Rule 4 deleted the provision
    in current subsection (d)(7) that authorizes service of a summons
    and complaint upon individuals and organizations "in the manner
    prescribed by the law of the state in which the district court is
    held for the service of summons or other like process upon any such
    defendant in an action brought in the courts of general
    jurisdiction of that state." The Committee received a variety of
    complaints about the deletion of this provision. Those in favor of
    preserving the local option saw no reason to forego systems of
    service that had been successful in achieving effective
    notice.(!10)
      H.R. 7154 carries forward the policy of the current rule and
    permits a party to serve a summons and complaint upon individuals
    and organizations described in Rule 4(d)(1) and (3) in accordance
    with the law of the state in which the district court sits. Thus,
    the bill authorizes four methods of serving a summons and complaint
    on such defendants: (1) service by a nonparty adult (Rule
    4(c)(2)(A)); (2) service by personnel of the Marshals Service, if
    the party qualifies, such as because the party is proceeding in
    forma pauperis (Rule 4(c)(2)(B)); (3) service in any manner
    authorized by the law of the state in which the district court is
    held (Rule 4(c)(2)(C)(i)); or (4) service by regular mail with a
    notice and acknowledgment of receipt form enclosed (Rule
    4(c)(2)(C)(ii)).(!11)

                              5. TIME LIMITS                          
      Rule 4 does not currently provide a time limit within which
    service must be completed. Primarily because United States marshals
    currently effect service of process, no time restriction has been
    deemed necessary. Appendix II, at 18 (Advisory Committee Note).
    Along with the proposed changes to subdivisions (c) and (d) to
    reduce the role of the Marshals Service, however, came new
    subdivision (j), requiring that service of a summons and complaint
    be made within 120 days of the filing of the complaint. If service
    were not accomplished within that time, proposed subdivision (j)
    required that the action "be dismissed as to that defendant without
    prejudice upon motion or upon the court's own initiative". Service
    by mail was deemed made for purposes of subdivision (j) "as of the
    date on which the process was accepted, refused, or returned as
    unclaimed".(!12)
      H.R. 7154 adopts a policy of limiting the time to effect service.
    It provides that if a summons and complaint have not been served
    within 120 days of the filing of the complaint and the plaintiff
    fails to show "good cause" for not completing service within that
    time, then the court must dismiss the action as to the unserved
    defendant. H.R. 7154 ensures that a plaintiff will be notified of
    an attempt to dismiss the action. If dismissal for failure to serve
    is raised by the court upon its own motion, the legislation
    requires that the court provide notice to the plaintiff. If
    dismissal is sought by someone else, Rule 5(a) of the Federal Rules
    of Civil Procedure requires that the motion be served upon the
    plaintiff.
      Like proposed subsection (j), H.R. 7154 provides that a dismissal
    for failure to serve within 120 days shall be "without prejudice".
    Proposed subsection (j) was criticized by some for ambiguity
    because, it was argued, neither the text of subsection (j) nor the
    Advisory Committee Note indicated whether a dismissal without
    prejudice would toll a statute of limitation. See House Report
    97-662, at 3-4 (1982). The problem would arise when a plaintiff
    files the complaint within the applicable statute of limitation
    period but does not effect service within 120 days. If the statute
    of limitation period expires during that period, and if the
    plaintiff's action is dismissed "without prejudice", can the
    plaintiff refile the complaint and maintain the action? The answer
    depends upon how the statute of limitation is tolled.(!13)
      If the law provides that the statute of limitation is tolled by
    filing and service of the complaint, then a dismissal under H.R.
    7154 for failure to serve within the 120 days would, by the terms
    of the law controlling the tolling, bar the plaintiff from later
    maintaining the cause of action.(!14) If the law provides that the
    statute of limitation is tolled by filing alone, then the status of
    the plaintiff's cause of action turns upon the plaintiff's
    diligence. If the plaintiff has not been diligent, the court will
    dismiss the complaint for failure to serve within 120 days, and the
    plaintiff will be barred from later maintaining the cause of action
    because the statute of limitation has run. A dismissal without
    prejudice does not confer upon the plaintiff any rights that the
    plaintiff does not otherwise possess and leaves a plaintiff whose
    action has been dismissed in the same position as if the action had
    never been filed.(!15) If, on the other hand, the plaintiff has
    made reasonable efforts to effect service, then the plaintiff can
    move under Rule 6(b) to enlarge the time within which to serve or
    can oppose dismissal for failure to serve. A court would
    undoubtedly permit such a plaintiff additional time within which to
    effect service. Thus, a diligent plaintiff can preserve the cause
    of action. This result is consistent with the policy behind the
    time limit for service and with statutes of limitation, both of
    which are designed to encourage prompt movement of civil actions in
    the federal courts.

          6. CONFORMING AND CLARIFYING SUBSECTIONS (D)(4) AND (5)      
      Current subsections (d)(4) and (5) prescribe which persons must
    be served in cases where an action is brought against the United
    States or an officer or agency of the United States. Under
    subsection (d)(4), where the United States is the named defendant,
    service must be made as follows: (1) personal service upon the
    United States attorney, an assistant United States attorney, or a
    designated clerical employee of the United States attorney in the
    district in which the action is brought; (2) registered or
    certified mail service to the Attorney General of the United States
    in Washington, D.C.; and (3) registered or certified mail service
    to the appropriate officer or agency if the action attacks an order
    of that officer or agency but does not name the officer or agency
    as a defendant. Under subsection (d)(5), where an officer or agency
    of the United States is named as a defendant, service must be made
    as in subsection (d)(4), except that personal service upon the
    officer or agency involved is required.(!16)
      The time limit for effecting service in H.R. 7154 would present
    significant difficulty to a plaintiff who has to arrange for
    personal service upon an officer or agency that may be thousands of
    miles away. There is little reason to require different types of
    service when the officer or agency is named as a party, and H.R.
    7154 therefore conforms the manner of service under subsection
    (d)(5) to the manner of service under subsection (d)(4).

                        SECTION-BY-SECTION ANALYSIS                    

                                 SECTION 1                             
      Section 1 provides that the short title of the bill is the
    "Federal Rules of Civil Procedure Amendments Act of 1982".

                                 SECTION 2                             
      Section 2 of the bill consists of 7 numbered paragraphs, each
    amending a different part of Rule 4 of the Federal Rules of Civil
    Procedure.
      Paragraph (1) deletes the requirement in present Rule 4(a) that a
    summons be delivered for service to the marshal or other person
    authorized to serve it. As amended by the legislation, Rule 4(a)
    provides that the summons be delivered to "the plaintiff or the
    plaintiff's attorney, who shall be responsible for prompt service
    of the summons and complaint". This change effectuates the policy
    proposed by the Supreme Court. See Appendix II, at  -  (Advisory
    Committee Note).
      Paragraph (2) amends current Rule 4(c), which deals with the
    service of process. New Rule 4(c)(1) requires that all process,
    other than a subpoena or a summons and complaint, be served by the
    Marshals Service or by a person especially appointed for that
    purpose. Thus, the Marshals Service or persons specially appointed
    will continue to serve all process other than subpoenas and
    summonses and complaints, a policy identical to that proposed by
    the Supreme Court. See Appendix II, at 8 (Report of the Judicial
    Conference Committee on Rules of Practice and Procedure). The
    service of subpoenas is governed by Rule 45,(!17) and the service
    of summonses and complaints is governed by new Rule 4(c)(2).
      New Rule 4(c)(2)(A) sets forth the general rule that summonses
    and complaints shall be served by someone who is at least 18 years
    old and not a party to the action or proceeding. This is consistent
    with the Court's proposal. Appendix II, at 16 (Advisory Committee
    Note). Subparagraphs (B) and (C) of new Rule 4(c)(2) set forth
    exceptions to this general rule.
      Subparagraph (B) sets forth 3 exceptions to the general rule.
    First, subparagraph (B)(i) requires the Marshals Service (or
    someone specially appointed by the court) to serve summonses and
    complaints on behalf of a party proceeding in forma pauperis or a
    seaman authorized to proceed under 28 U.S.C. 1916. This is
    identical to the Supreme Court's proposal. See Appendix II, at 3
    (text of proposed rule), 16 (Advisory Committee Note). Second,
    subparagraph (B)(ii) requires the Marshals Service (or someone
    specially appointed by the court) to serve a summons and complaint
    when the court orders the marshals to do so in order properly to
    effect service in that particular action.(!18) This, except for
    nonsubstantive changes in phrasing, is identical to the Supreme
    Court's proposal. See Appendix II, at 3 (text of proposed rule), 16
    (Advisory Committee Note).
      Subparagraph (C) of new Rule 4(c)(2) provides 2 exceptions to the
    general rule of service by a nonparty adult. These exceptions apply
    only when the summons and complaint is to be served upon persons
    described in Rule 4(d)(1) (certain individuals) or Rule 4(d)(3)
    (organizations).(!19) First, subparagraph (C)(i) permits service of
    a summons and complaint in a manner authorized by the law of the
    state in which the court sits. This restates the option to follow
    local law currently found in Rule 4(d)(7) and would authorize
    service by mail if the state law so allowed. The method of mail
    service in that instance would, of course, be the method permitted
    by state law.
      Second, subparagraph (C)(ii) permits service of a summons and
    complaint by regular mail. The sender must send to the defendant,
    by first-class mail, postage prepaid, a copy of the summons and
    complaint, together with 2 copies of a notice and acknowledgment of
    receipt of summons and complaint form and a postage prepaid return
    envelope addressed to the sender. If a copy of the notice and
    acknowledgment form is not received by the sender within 20 days
    after the date of mailing, then service must be made under Rule
    4(c)(2)(A) or (B) (i.e., by a nonparty adult or, if the person
    qualifies,(!20) by personnel of the Marshals Service or a person
    specially appointed by the court) in the manner prescribed by Rule
    4(d)(1) or (3) (i.e., personal or substituted service).
      New Rule 4(c)(2)(D) permits a court to penalize a person who
    avoids service by mail. It authorizes the court to order a person
    who does not return the notice and acknowledgment form within 20
    days after mailing to pay the costs of service, unless that person
    can show good cause for failing to return the form. The purpose of
    this provision is to encourage the prompt return of the form so
    that the action can move forward without unnecessary delay.
    Fairness requires that a person who causes another additional and
    unnecessary expense in effecting service ought to reimburse the
    party who was forced to bear the additional expense.
      Subparagraph (E) of rule 4(c)(2) requires that the notice and
    acknowledgment form described in new Rule 4(c)(2)(C)(ii) be
    executed under oath or affirmation. This provision tracks the
    language of 28 U.S.C. 1746, which permits the use of unsworn
    declarations under penalty of perjury whenever an oath or
    affirmation is required. Statements made under penalty of perjury
    are subject to 18 U.S,C. 1621(2), which provides felony penalties
    for someone who "willfully subscribes as true any material matter
    which he does not believe to be true". The requirement that the
    form be executed under oath or affirmation is intended to encourage
    truthful submissions to the court, as the information contained in
    the form is important to the parties.(!21)
      New Rule 4(c)(3) authorizes the court freely to make special
    appointments to serve summonses and complaints under Rule
    4(c)(2)(B) and all other process under Rule 4(c)(1). This carries
    forward the policy of present Rule 4(c).
      Paragraph (3) of section 2 of the bill makes a non-substantive
    change in the caption of Rule 4(d) in order to reflect more
    accurately the provisions of Rule 4(d). Paragraph (3) also deletes
    a provision on service of a summons and complaint pursuant to state
    law. This provision is redundant in view of new Rule 4(c)(2)(C)(i).
      Paragraph (4) of section 2 of the bill conforms Rule 4(d)(5) to
    present Rule 4(d)(4). Rule 4(d)(5) is amended to provide that
    service upon a named defendant agency or officer of the United
    States shall be made by "sending" a copy of the summons and
    complaint "by registered or certified mail" to the defendant.(!22)
    Rule 4(d)(5) currently provides for service by "delivering" the
    copies to the defendant, but 28 U.S.C. 1391(e) authorizes delivery
    upon a defendant agency or officer outside of the district in which
    the action is brought by means of certified mail. Hence, the change
    is not a marked departure from current practice.
      Paragraph (5) of section 2 of the bill amends the caption of Rule
    4(e) in order to describe subdivision (e) more accurately.
      Paragraph (6) of section 2 of the bill amends Rule 4(g), which
    deals with return of service. Present rule 4(g) is not changed
    except to provide that, if service is made pursuant to the new
    system of mail service (Rule 4(c)(2)(C)(ii)), the plaintiff or the
    plaintiff's attorney must file with the court the signed
    acknowledgment form returned by the person served.
      Paragraph (7) of section 2 of the bill adds new subsection (j) to
    provide a time limitation for the service of a summons and
    complaint. New Rule 4(j) retains the Supreme Court's requirement
    that a summons and complaint be served within 120 days of the
    filing of the complaint. See Appendix II, at 18 (Advisory Committee
    Note).(!23) The plaintiff must be notified of an effort or
    intention to dismiss the action. This notification is mandated by
    subsection (j) if the dismissal is being raised on the court's own
    initiative and will be provided pursuant to Rule 5 (which requires
    service of motions upon the adverse party) if the dismissal is
    sought by someone else.(!24) The plaintiff may move under Rule 6(b)
    to enlarge the time period. See Appendix II, at 1d. (Advisory
    Committee Note). If service is not made within the time period or
    enlarged time period, however, and if the plaintiff fails to show
    "good cause" for not completing service, then the court must
    dismiss the action as to the unserved defendant. The dismissal is
    "without prejudice". The term "without prejudice" means that the
    dismissal does not constitute an adjudication of the merits of the
    complaint. A dismissal "without prejudice" leaves a plaintiff whose
    action has been dismissed in the position in which that person
    would have been if the action had never been filed.

                                 SECTION 3                             
      Section 3 of the bill amends the Appendix of Forms at the end of
    the Federal Rules of Civil Procedure by adding a new form 18A,
    "Notice and Acknowledgment for Service by Mail". This new form is
    required by new Rule 4(c)(2)(C)(ii), which requires that the notice
    and acknowledgment form used with service by regular mail conform
    substantially to Form 18A.
      Form 18A as set forth in section 3 of the bill is modeled upon a
    form used in California.(!25) It contains 2 parts. The first part
    is a notice to the person being served that tells that person that
    the enclosed summons and complaint is being served pursuant to Rule
    4(c)(2)(C)(ii); advises that person to sign and date the
    acknowledgment form and indicate the authority to receive service
    if the person served is not the party to the action (e.g., the
    person served is an officer of the organization being served); and
    warns that failure to return the form to the sender within 20 days
    may result in the court ordering the party being served to pay the
    expenses involved in effecting service. The notice also warns that
    if the complaint is not responded to within 20 days, a default
    judgment can be entered against the party being served. The notice
    is dated under penalty of perjury by the plaintiff or the
    plaintiff's attorney.(!26)
      The second part of the form contains the acknowledgment of
    receipt of the summons and complaint. The person served must
    declare on this part of the form, under penalty of perjury, the
    date and place of service and the person's authority to receive
    service.

                                 SECTION 4                             
      Section 4 of the bill provides that the changes in Rule 4 made by
    H.R. 7154 will take effect 45 days after enactment, thereby giving
    the bench and bar, as well as other interested persons and
    organizations (such as the Marshals Service), an opportunity to
    prepare to implement the changes made by the legislation. The
    delayed effective date means that service of process issued before
    the effective date will be made in accordance with current Rule 4.
    Accordingly, all process in the hands of the Marshals Service prior
    to the effective date will be served by the Marshals Service under
    the present rule.

                                 SECTION 5                             
      Section 5 of the bill provides that the amendments to Rule 4
    proposed by the Supreme Court (whose effective date was postponed
    by Public Law 97-227) shall not take effect. This is necessary
    because under Public Law 97-227 the proposed amendments will take
    effect on October 1, 1983.

    _______

      (!1) The drafting of the rules and amendments is actually done by
    a committee of the Judicial Conference of the United States. In the
    case of the Federal Rules of Civil Procedure, the initial draft is
    prepared by the Advisory Committee on Civil Rules. The Advisory
    Committee's draft is then reviewed by the Committee on Rules of
    Practice and Procedure, which must give its approval to the draft.
    Any draft approved by that committee is forwarded to the Judicial
    Conference. If the Judicial Conference approves the draft, it
    forwards the draft to the Supreme Court. The Judicial Conference's
    role in the rule-making process is defined by 28 U.S.C. 331.
      For background information about how the Judicial Conference
    committees operate, see Wright, "Procedural Reform: Its Limitation
    and Its Future," 1 Ga.L.Rev. 563, 565-66 (1967) (civil rules);
    statement of United States District Judge Roszel C. Thomsen,
    Hearings on Proposed Amendments to the Federal Rules of Criminal
    Procedure Before the Subcommittee on Criminal Justice of the House
    Committee on the Judiciary, 93d Cong., 2d Sess. at 25 (1974)
    (criminal rules); statement of United States Circuit Judge J.
    Edward Lumbard, id. at 203 (criminal rules); J. Weinstein, Reform
    of Federal Court Rulemaking Procedure (1977); Weinstein, "Reform of
    Federal Rulemaking Procedures," 76 Colum.L.Rev. 905 (1976).
      (!2) All of the other amendments, including all of the proposed
    amendments to the Federal Rules of Criminal Procedure and the Rules
    and Forms Governing Proceedings in the United States District
    Courts under sections 2254 and 2255 of Title 28, United States
    Code, took effect on August 1, 1982, as scheduled.
      (!3) The President has urged Congress to act promptly. See
    President's Statement on Signing H.R. 6663 into Law, 18 Weekly
    Comp. of Pres. Doc. 982 (August 2, 1982).
      (!4) Where service of a summons is to be made upon a party who is
    neither an inhabitant of, nor found within, the state where the
    district court sits, subsection (e) authorizes service under a
    state statute or rule of court that provides for service upon such
    a party. This would authorize mail service if the state statute or
    rule of court provided for service by mail.
      (!5) The Court's proposal authorized service by the Marshals
    Service in other situations. This authority, however, was not seen
    as thwarting the underlying policy of limiting the use of marshals.
    See Appendix II, at 16, 17 (Advisory Committee Note).
      (!6) Appendix I, at 2 (letter of Assistant Attorney General
    Robert A. McConnell).
      (!7) The provisions of H.R. 7154 conflict with 28 U.S.C. 569(b)
    because the latter is a broader command to marshals to serve all
    federal court process. As a later statutory enactment, however,
    H.R. 7154 supersedes 28 U.S.C. 569(b), thereby achieving the goal
    of reducing the role of marshals.
      (!8) Proposed Rule 4(d)(8) provided that "Service . . . shall not
    be the basis for the entry of a default or a judgment by default
    unless the record contains a return receipt showing acceptance by
    the defendant or a returned envelope showing refusal of the process
    by the defendant." This provision reflects a desire to preclude
    default judgments on unclaimed mail. See Appendix II, at 7 (Report
    of the Committee on Rules of Practice and Procedure).
      The interpretation of Rule 4(d)(8) to require a refusal of
    delivery in order to have a basis for a default judgment, while
    undoubtedly the interpretation intended and the interpretation that
    reaches the fairest result, may not be the only possible
    interpretation. Since a default judgment can be entered for
    defendant's failure to respond to the complaint once defendant has
    been served and the time to answer the complaint has run, it can be
    argued that a default judgment can be obtained where the mail was
    unclaimed because proposed subsection (j), which authorized
    dismissal of a complaint not served within 120 days, provided that
    mail service would be deemed made "on the date on which the process
    was accepted, refused, or returned as unclaimed" (emphasis added).
      (!9) See p. 15 infra.
      (!10) Proponents of the California system of mail service, in
    particular, saw no reason to supplant California's proven method of
    mail service with a certified mail service that they believed
    likely to result in default judgments without actual notice to
    defendants. See House Report No. 97-662, at 3 (1982).
      (!11) The parties may, of course, stipulate to service, as is
    frequently done now.
      (!12) While return of the letter as unclaimed was deemed service
    for the purpose of determining whether the plaintiff's action could
    be dismissed, return of the letter as unclaimed was not service for
    the purpose of entry of a default judgment against the defendant.
    See note 8 supra.
      (!13) The law governing the tolling of a statute of limitation
    depends upon the type of civil action involved. In adversity
    action, state law governs tolling. Walker v. Armco Steel Corp., 446
    U.S. 740 (1980). In Walker, plaintiff had filed his complaint and
    thereby commenced the action under Rule 3 of the Federal Rules of
    Civil Procedure within the statutory period. He did not, however,
    serve the summons and complaint until after the statutory period
    had run. The Court held that state law (which required both filing
    and service within the statutory period) governed, barring
    plaintiff's action.
      In the federal question action, the courts of appeals have
    generally held that Rule 3 governs, so that the filing of the
    complaint tolls a statute of limitation. United States v. Wahl, 538
    F.2d 285 (6th Cir. 1978); Windbrooke Dev. Co. v. Environmental
    Enterprises Inc. of Fla., 524 F.2d 461 (5th Cir. 1975);
    Metropolitan Paving Co. v. International Union of Operating
    Engineers, 439 F.2d 300 (10th Cir. 1971); Moore Co. v. Sid
    Richardson Carbon & Gasoline Co., 347 F.2d 921 (8th Cir.), cert.
    denied, 383 U.S. 925, reh. denied, 384 U.S. 914 (1965); Hoffman v.
    Halden, 268 F.2d 280 (9th Cir. 1959). The continued validity of
    this line of cases, however, must be questioned in light of the
    Walker case, even though the Court in that case expressly reserved
    judgment about federal question actions, see Walker v. Armco Steel
    Corp., 446 U.S. 741, 751 n.11 (1980).
      (!14) The same result obtains even if service occurs within the
    120 day period, if the service occurs after the statute of
    limitation has run.
      (!15) See p. 19 infra.
      (!16) See p. 17 infra.
      (!17) Rule 45(c) provides that "A subpoena may be served by the
    marshal, by his deputy, or by any other person who is not a party
    and is not less than 18 years of age."
      (!18) Some litigators have voiced concern that there may be
    situations in which personal service by someone other than a member
    of the Marshals Service may present a risk of injury to the person
    attempting to make the service. For example, a hostile defendant
    may have a history of injuring persons attempting to serve process.
    Federal judges undoubtedly will consider the risk of harm to
    private persons who would be making personal service when deciding
    whether to order the Marshals Service to make service under Rule
    4(c)(2)(B)(iii).
      (!19) The methods of service authorized by Rule 4(c)(2)(C) may be
    invoked by any person seeking to effect service. Thus, a nonparty
    adult who receives the summons and complaint for service under Rule
    4(c)(1) may serve them personally or by mail in the manner
    authorized by Rule 4(c)(2)(C)(ii). Similarly, the Marshals Service
    may utilize the mail service authorized by Rule 4(c)(2)(C)(ii) when
    serving a summons and complaint under Rule 4(c)(2)(B)(i)(iii). When
    serving a summons and complaint under Rule 4(c)(2)(B)(ii), however,
    the Marshals Service must serve in the manner set forth in the
    court's order. If no particular manner of service is specified,
    then the Marshals Service may utilize Rule 4(c)(2)(C)(ii). It would
    not seem to be appropriate, however, for the Marshals Service to
    utilize Rule 4(c)(2)(C)(ii) in a situation where a previous attempt
    to serve by mail failed. Thus, it would not seem to be appropriate
    for the Marshals Service to attempt service by regular mail when
    serving a summons and complaint on behalf of a plaintiff who is
    proceeding in forma pauperis if that plaintiff previously attempted
    unsuccessfully to serve the defendant by mail.
      (!20) To obtain service by personnel of the Marshals Service or
    someone specially appointed by the court, a plaintiff who has
    unsuccessfully attempted mail service under Rule 4(c)(2)(C)(ii)
    must meet the conditions of Rule 4(c)(2)(B) - for example, the
    plaintiff must be proceeding in forma pauperis.
      (!21) For example, the sender must state the date of mailing on
    the form. If the form is not returned to the sender within 20 days
    of that date, then the plaintiff must serve the defendant in
    another manner and the defendant may be liable for the costs of
    such service. Thus, a defendant would suffer the consequences of a
    misstatement about the date of mailing.
      (!22) See p. 12 supra.
      (!23) The 120 day period begins to run upon the filing of each
    complaint. Thus, where a defendant files a cross-claim against the
    plaintiff, the 120 day period begins to run upon the filing of the
    cross-complaint, not upon the filing of the plaintiff's complaint
    initiating the action.
      (!24) The person who may move to dismiss can be the putative
    defendant (i.e., the person named as defendant in the complaint
    filed with the court) or, in multi-party actions, another party to
    the action. (If the putative defendant moves to dismiss and the
    failure to effect service is due to that person's evasion of
    service, a court should not dismiss because the plaintiff has "good
    cause" for not completing service.)
      (!25) See Cal. Civ. Pro. Sec. 415.30 (West 1973).
      (!26) See p. 16 supra.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Purposes of Revision. The general purpose of this revision is to
    facilitate the service of the summons and complaint. The revised
    rule explicitly authorizes a means for service of the summons and
    complaint on any defendant. While the methods of service so
    authorized always provide appropriate notice to persons against
    whom claims are made, effective service under this rule does not
    assure that personal jurisdiction has been established over the
    defendant served.
      First, the revised rule authorizes the use of any means of
    service provided by the law not only of the forum state, but also
    of the state in which a defendant is served, unless the defendant
    is a minor or incompetent.
      Second, the revised rule clarifies and enhances the cost-saving
    practice of securing the assent of the defendant to dispense with
    actual service of the summons and complaint. This practice was
    introduced to the rule in 1983 by an act of Congress authorizing
    "service-by-mail," a procedure that effects economic service with
    cooperation of the defendant. Defendants that magnify costs of
    service by requiring expensive service not necessary to achieve
    full notice of an action brought against them are required to bear
    the wasteful costs. This provision is made available in actions
    against defendants who cannot be served in the districts in which
    the actions are brought.
      Third, the revision reduces the hazard of commencing an action
    against the United States or its officers, agencies, and
    corporations. A party failing to effect service on all the offices
    of the United States as required by the rule is assured adequate
    time to cure defects in service.
      Fourth, the revision calls attention to the important effect of
    the Hague Convention and other treaties bearing on service of
    documents in foreign countries and favors the use of
    internationally agreed means of service. In some respects, these
    treaties have facilitated service in foreign countries but are not
    fully known to the bar.
      Finally, the revised rule extends the reach of federal courts to
    impose jurisdiction over the person of all defendants against whom
    federal law claims are made and who can be constitutionally
    subjected to the jurisdiction of the courts of the United States.
    The present territorial limits on the effectiveness of service to
    subject a defendant to the jurisdiction of the court over the
    defendant's person are retained for all actions in which there is a
    state in which personal jurisdiction can be asserted consistently
    with state law and the Fourteenth Amendment. A new provision
    enables district courts to exercise jurisdiction, if permissible
    under the Constitution and not precluded by statute, when a federal
    claim is made against a defendant not subject to the jurisdiction
    of any single state.
      The revised rule is reorganized to make its provisions more
    accessible to those not familiar with all of them. Additional
    subdivisions in this rule allow for more captions; several overlaps
    among subdivisions are eliminated; and several disconnected
    provisions are removed, to be relocated in a new Rule 4.1.
      The Caption of the Rule. Prior to this revision, Rule 4 was
    entitled "Process" and applied to the service of not only the
    summons but also other process as well, although these are not
    covered by the revised rule. Service of process in eminent domain
    proceedings is governed by Rule 71A. Service of a subpoena is
    governed by Rule 45, and service of papers such as orders, motions,
    notices, pleadings, and other documents is governed by Rule 5.
      The revised rule is entitled "Summons" and applies only to that
    form of legal process. Unless service of the summons is waived, a
    summons must be served whenever a person is joined as a party
    against whom a claim is made. Those few provisions of the former
    rule which relate specifically to service of process other than a
    summons are relocated in Rule 4.1 in order to simplify the text of
    this rule.
      Subdivision (a). Revised subdivision (a) contains most of the
    language of the former subdivision (b). The second sentence of the
    former subdivision (b) has been stricken, so that the federal court
    summons will be the same in all cases. Few states now employ
    distinctive requirements of form for a summons and the
    applicability of such a requirement in federal court can only serve
    as a trap for an unwary party or attorney. A sentence is added to
    this subdivision authorizing an amendment of a summons. This
    sentence replaces the rarely used former subdivision 4(h). See 4A
    Wright & Miller, Federal Practice and Procedure Sec. 1131 (2d ed.
    1987).
      Subdivision (b). Revised subdivision (b) replaces the former
    subdivision (a). The revised text makes clear that the
    responsibility for filling in the summons falls on the plaintiff,
    not the clerk of the court. If there are multiple defendants, the
    plaintiff may secure issuance of a summons for each defendant, or
    may serve copies of a single original bearing the names of multiple
    defendants if the addressee of the summons is effectively
    identified.
      Subdivision (c). Paragraph (1) of revised subdivision (c) retains
    language from the former subdivision (d)(1). Paragraph (2) retains
    language from the former subdivision (a), and adds an appropriate
    caution regarding the time limit for service set forth in
    subdivision (m).
      The 1983 revision of Rule 4 relieved the marshals' offices of
    much of the burden of serving the summons. Subdivision (c)
    eliminates the requirement for service by the marshal's office in
    actions in which the party seeking service is the United States.
    The United States, like other civil litigants, is now permitted to
    designate any person who is 18 years of age and not a party to
    serve its summons.
      The court remains obligated to appoint a marshal, a deputy, or
    some other person to effect service of a summons in two classes of
    cases specified by statute: actions brought in forma pauperis or by
    a seaman. 28 U.S.C. Secs. 1915, 1916. The court also retains
    discretion to appoint a process server on motion of a party. If a
    law enforcement presence appears to be necessary or advisable to
    keep the peace, the court should appoint a marshal or deputy or
    other official person to make the service. The Department of
    Justice may also call upon the Marshals Service to perform services
    in actions brought by the United States. 28 U.S.C. Sec. 651.
      Subdivision (d). This text is new, but is substantially derived
    from the former subdivisions (c)(2)(C) and (D), added to the rule
    by Congress in 1983. The aims of the provision are to eliminate the
    costs of service of a summons on many parties and to foster
    cooperation among adversaries and counsel. The rule operates to
    impose upon the defendant those costs that could have been avoided
    if the defendant had cooperated reasonably in the manner
    prescribed. This device is useful in dealing with defendants who
    are furtive, who reside in places not easily reached by process
    servers, or who are outside the United States and can be served
    only at substantial and unnecessary expense. Illustratively, there
    is no useful purpose achieved by requiring a plaintiff to comply
    with all the formalities of service in a foreign country, including
    costs of translation, when suing a defendant manufacturer, fluent
    in English, whose products are widely distributed in the United
    States. See Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.
    1989).
      The former text described this process as service-by-mail. This
    language misled some plaintiffs into thinking that service could be
    effected by mail without the affirmative cooperation of the
    defendant. E.g., Gulley v. Mayo Foundation, 886 F.2d 161 (8th Cir.
    1989). It is more accurate to describe the communication sent to
    the defendant as a request for a waiver of formal service.
      The request for waiver of service may be sent only to defendants
    subject to service under subdivision (e), (f), or (h). The United
    States is not expected to waive service for the reason that its
    mail receiving facilities are inadequate to assure that the notice
    is actually received by the correct person in the Department of
    Justice. The same principle is applied to agencies, corporations,
    and officers of the United States and to other governments and
    entities subject to service under subdivision (j). Moreover, there
    are policy reasons why governmental entities should not be
    confronted with the potential for bearing costs of service in cases
    in which they ultimately prevail. Infants or incompetent persons
    likewise are not called upon to waive service because, due to their
    presumed inability to understand the request and its consequences,
    they must generally be served through fiduciaries.
      It was unclear whether the former rule authorized mailing of a
    request for "acknowledgement of service" to defendants outside the
    forum state. See 1 R. Casad, Jurisdiction in Civil Actions (2d Ed.)
    5-29, 30 (1991) and cases cited. But, as Professor Casad observed,
    there was no reason not to employ this device in an effort to
    obtain service outside the state, and there are many instances in
    which it was in fact so used, with respect both to defendants
    within the United States and to defendants in other countries.
      The opportunity for waiver has distinct advantages to a foreign
    defendant. By waiving service, the defendant can reduce the costs
    that may ultimately be taxed against it if unsuccessful in the
    lawsuit, including the sometimes substantial expense of translation
    that may be wholly unnecessary for defendants fluent in English.
    Moreover, a foreign defendant that waives service is afforded
    substantially more time to defend against the action than if it had
    been formally served: under Rule 12, a defendant ordinarily has
    only 20 days after service in which to file its answer or raise
    objections by motion, but by signing a waiver it is allowed 90 days
    after the date the request for waiver was mailed in which to submit
    its defenses. Because of the additional time needed for mailing and
    the unreliability of some foreign mail services, a period of 60
    days (rather than the 30 days required for domestic transmissions)
    is provided for a return of a waiver sent to a foreign country.
      It is hoped that, since transmission of the notice and waiver
    forms is a private nonjudicial act, does not purport to effect
    service, and is not accompanied by any summons or directive from a
    court, use of the procedure will not offend foreign sovereignties,
    even those that have withheld their assent to formal service by
    mail or have objected to the "service-by-mail" provisions of the
    former rule. Unless the addressee consents, receipt of the request
    under the revised rule does not give rise to any obligation to
    answer the lawsuit, does not provide a basis for default judgment,
    and does not suspend the statute of limitations in those states
    where the period continues to run until service. Nor are there any
    adverse consequences to a foreign defendant, since the provisions
    for shifting the expense of service to a defendant that declines to
    waive service apply only if the plaintiff and defendant are both
    located in the United States.
      With respect to a defendant located in a foreign country like the
    United Kingdom, which accepts documents in English, whose Central
    Authority acts promptly in effecting service, and whose policies
    discourage its residents from waiving formal service, there will be
    little reason for a plaintiff to send the notice and request under
    subdivision (d) rather than use convention methods. On the other
    hand, the procedure offers significant potential benefits to a
    plaintiff when suing a defendant that, though fluent in English, is
    located in a country where, as a condition to formal service under
    a convention, documents must be translated into another language or
    where formal service will be otherwise costly or time-consuming.
      Paragraph (1) is explicit that a timely waiver of service of a
    summons does not prejudice the right of a defendant to object by
    means of a motion authorized by Rule 12(b)(2) to the absence of
    jurisdiction over the defendant's person, or to assert other
    defenses that may be available. The only issues eliminated are
    those involving the sufficiency of the summons or the sufficiency
    of the method by which it is served.
      Paragraph (2) states what the present rule implies: the defendant
    has a duty to avoid costs associated with the service of a summons
    not needed to inform the defendant regarding the commencement of an
    action. The text of the rule also sets forth the requirements for a
    Notice and Request for Waiver sufficient to put the cost-shifting
    provision in place. These requirements are illustrated in Forms 1A
    and 1B, which replace the former Form 18-A.
      Paragraph (2)(A) is explicit that a request for waiver of service
    by a corporate defendant must be addressed to a person qualified to
    receive service. The general mail rooms of large organizations
    cannot be required to identify the appropriate individual recipient
    for an institutional summons.
      Paragraph (2)(B) permits the use of alternatives to the United
    States mails in sending the Notice and Request. While private
    messenger services or electronic communications may be more
    expensive than the mail, they may be equally reliable and on
    occasion more convenient to the parties. Especially with respect to
    transmissions to foreign countries, alternative means may be
    desirable, for in some countries facsimile transmission is the most
    efficient and economical means of communication. If electronic
    means such as facsimile transmission are employed, the sender
    should maintain a record of the transmission to assure proof of
    transmission if receipt is denied, but a party receiving such a
    transmission has a duty to cooperate and cannot avoid liability for
    the resulting cost of formal service if the transmission is
    prevented at the point of receipt.
      A defendant failing to comply with a request for waiver shall be
    given an opportunity to show good cause for the failure, but
    sufficient cause should be rare. It is not a good cause for failure
    to waive service that the claim is unjust or that the court lacks
    jurisdiction. Sufficient cause not to shift the cost of service
    would exist, however, if the defendant did not receive the request
    or was insufficiently literate in English to understand it. It
    should be noted that the provisions for shifting the cost of
    service apply only if the plaintiff and the defendant are both
    located in the United States, and accordingly a foreign defendant
    need not show "good cause" for its failure to waive service.
      Paragraph (3) extends the time for answer if, before being served
    with process, the defendant waives formal service. The extension is
    intended to serve as an inducement to waive service and to assure
    that a defendant will not gain any delay by declining to waive
    service and thereby causing the additional time needed to effect
    service. By waiving service, a defendant is not called upon to
    respond to the complaint until 60 days from the date the notice was
    sent to it - 90 days if the notice was sent to a foreign country -
    rather than within the 20 day period from date of service specified
    in Rule 12.
      Paragraph (4) clarifies the effective date of service when
    service is waived; the provision is needed to resolve an issue
    arising when applicable law requires service of process to toll the
    statute of limitations. E.g., Morse v. Elmira Country Club, 752
    F.2d 35 (2d Cir. 1984). Cf. Walker v. Armco Steel Corp., 446 U.S.
    740 (1980).
      The provisions in former subdivision (c)(2)(C)(ii) of this rule
    may have been misleading to some parties. Some plaintiffs, not
    reading the rule carefully, supposed that receipt by the defendant
    of the mailed complaint had the effect both of establishing the
    jurisdiction of the court over the defendant's person and of
    tolling the statute of limitations in actions in which service of
    the summons is required to toll the limitations period. The revised
    rule is clear that, if the waiver is not returned and filed, the
    limitations period under such a law is not tolled and the action
    will not otherwise proceed until formal service of process is
    effected.
      Some state limitations laws may toll an otherwise applicable
    statute at the time when the defendant receives notice of the
    action. Nevertheless, the device of requested waiver of service is
    not suitable if a limitations period which is about to expire is
    not tolled by filing the action. Unless there is ample time, the
    plaintiff should proceed directly to the formal methods for service
    identified in subdivisions (e), (f), or (h).
      The procedure of requesting waiver of service should also not be
    used if the time for service under subdivision (m) will expire
    before the date on which the waiver must be returned. While a
    plaintiff has been allowed additional time for service in that
    situation, e.g., Prather v. Raymond Constr. Co., 570 F. Supp. 278
    (N.D. Ga. 1983), the court could refuse a request for additional
    time unless the defendant appears to have evaded service pursuant
    to subdivision (e) or (h). It may be noted that the presumptive
    time limit for service under subdivision (m) does not apply to
    service in a foreign country.
      Paragraph (5) is a cost-shifting provision retained from the
    former rule. The costs that may be imposed on the defendant could
    include, for example, the cost of the time of a process server
    required to make contact with a defendant residing in a guarded
    apartment house or residential development. The paragraph is
    explicit that the costs of enforcing the cost-shifting provision
    are themselves recoverable from a defendant who fails to return the
    waiver. In the absence of such a provision, the purpose of the rule
    would be frustrated by the cost of its enforcement, which is likely
    to be high in relation to the small benefit secured by the
    plaintiff.
      Some plaintiffs may send a notice and request for waiver and,
    without waiting for return of the waiver, also proceed with efforts
    to effect formal service on the defendant. To discourage this
    practice, the cost-shifting provisions in paragraphs (2) and (5)
    are limited to costs of effecting service incurred after the time
    expires for the defendant to return the waiver. Moreover, by
    returning the waiver within the time allowed and before being
    served with process, a defendant receives the benefit of the longer
    period for responding to the complaint afforded for waivers under
    paragraph (3).
      Subdivision (e). This subdivision replaces former subdivisions
    (c)(2)(C)(i) and (d)(1). It provides a means for service of summons
    on individuals within a judicial district of the United States.
    Together with subdivision (f), it provides for service on persons
    anywhere, subject to constitutional and statutory constraints.
      Service of the summons under this subdivision does not
    conclusively establish the jurisdiction of the court over the
    person of the defendant. A defendant may assert the territorial
    limits of the court's reach set forth in subdivision (k), including
    the constitutional limitations that may be imposed by the Due
    Process Clause of the Fifth Amendment.
      Paragraph (1) authorizes service in any judicial district in
    conformity with state law. This paragraph sets forth the language
    of former subdivision (c)(2)(C)(i), which authorized the use of the
    law of the state in which the district court sits, but adds as an
    alternative the use of the law of the state in which the service is
    effected.
      Paragraph (2) retains the text of the former subdivision (d)(1)
    and authorizes the use of the familiar methods of personal or abode
    service or service on an authorized agent in any judicial district.
      To conform to these provisions, the former subdivision (e)
    bearing on proceedings against parties not found within the state
    is stricken. Likewise stricken is the first sentence of the former
    subdivision (f), which had restricted the authority of the federal
    process server to the state in which the district court sits.
      Subdivision (f). This subdivision provides for service on
    individuals who are in a foreign country, replacing the former
    subdivision (i) that was added to Rule 4 in 1963. Reflecting the
    pattern of Rule 4 in incorporating state law limitations on the
    exercise of jurisdiction over persons, the former subdivision (i)
    limited service outside the United States to cases in which
    extraterritorial service was authorized by state or federal law.
    The new rule eliminates the requirement of explicit authorization.
    On occasion, service in a foreign country was held to be improper
    for lack of statutory authority. E.g., Martens v. Winder, 341 F.2d
    197 (9th Cir.), cert. denied, 382 U.S. 937 (1965). This authority,
    however, was found to exist by implication. E.g., SEC v. VTR, Inc.,
    39 F.R.D. 19 (S.D.N.Y. 1966). Given the substantial increase in the
    number of international transactions and events that are the
    subject of litigation in federal courts, it is appropriate to infer
    a general legislative authority to effect service on defendants in
    a foreign country.
      A secondary effect of this provision for foreign service of a
    federal summons is to facilitate the use of federal long-arm law in
    actions brought to enforce the federal law against defendants who
    cannot be served under any state law but who can be
    constitutionally subjected to the jurisdiction of the federal
    court. Such a provision is set forth in paragraph (2) of
    subdivision (k) of this rule, applicable only to persons not
    subject to the territorial jurisdiction of any particular state.
      Paragraph (1) gives effect to the Hague Convention on the Service
    Abroad of Judicial and Extrajudicial Documents, which entered into
    force for the United States on February 10, 1969. See 28 U.S.C.A.,
    Fed.R.Civ.P. 4 (Supp. 1986). This Convention is an important means
    of dealing with problems of service in a foreign country. See
    generally 1 B. Ristau, International Judicial Assistance Secs.
    4-1-1 to 4-5-2 (1990). Use of the Convention procedures, when
    available, is mandatory if documents must be transmitted abroad to
    effect service. See Volkswagenwerk Aktiengesellschaft v. Schlunk,
    486 U.S. 694 (1988) (noting that voluntary use of these procedures
    may be desirable even when service could constitutionally be
    effected in another manner); J. Weis, The Federal Rules and the
    Hague Conventions: Concerns of Conformity and Comity, 50 U. Pitt.
    L. Rev. 903 (1989). Therefore, this paragraph provides that, when
    service is to be effected outside a judicial district of the United
    States, the methods of service appropriate under an applicable
    treaty shall be employed if available and if the treaty so
    requires.
      The Hague Convention furnishes safeguards against the abridgment
    of rights of parties through inadequate notice. Article 15 provides
    for verification of actual notice or a demonstration that process
    was served by a method prescribed by the internal laws of the
    foreign state before a default judgment may be entered. Article 16
    of the Convention also enables the judge to extend the time for
    appeal after judgment if the defendant shows a lack of adequate
    notice either to defend or to appeal the judgment, or has disclosed
    a prima facie case on the merits.
      The Hague Convention does not specify a time within which a
    foreign country's Central Authority must effect service, but
    Article 15 does provide that alternate methods may be used if a
    Central Authority does not respond within six months. Generally, a
    Central Authority can be expected to respond much more quickly than
    that limit might permit, but there have been occasions when the
    signatory state was dilatory or refused to cooperate for
    substantive reasons. In such cases, resort may be had to the
    provision set forth in subdivision (f)(3).
      Two minor changes in the text reflect the Hague Convention.
    First, the term "letter of request" has been added. Although these
    words are synonymous with "letter rogatory," "letter of request" is
    preferred in modern usage. The provision should not be interpreted
    to authorize use of a letter of request when there is in fact no
    treaty obligation on the receiving country to honor such a request
    from this country or when the United States does not extend
    diplomatic recognition to the foreign nation. Second, the passage
    formerly found in subdivision (i)(1)(B), "when service in either
    case is reasonably calculated to give actual notice," has been
    relocated.
      Paragraph (2) provides alternative methods for use when
    internationally agreed methods are not intended to be exclusive, or
    where there is no international agreement applicable. It contains
    most of the language formerly set forth in subdivision (i) of the
    rule. Service by methods that would violate foreign law is not
    generally authorized. Subparagraphs (A) and (B) prescribe the more
    appropriate methods for conforming to local practice or using a
    local authority. Subparagraph (C) prescribes other methods
    authorized by the former rule.
      Paragraph (3) authorizes the court to approve other methods of
    service not prohibited by international agreements. The Hague
    Convention, for example, authorizes special forms of service in
    cases of urgency if convention methods will not permit service
    within the time required by the circumstances. Other circumstances
    that might justify the use of additional methods include the
    failure of the foreign country's Central Authority to effect
    service within the six-month period provided by the Convention, or
    the refusal of the Central Authority to serve a complaint seeking
    punitive damages or to enforce the antitrust laws of the United
    States. In such cases, the court may direct a special method of
    service not explicitly authorized by international agreement if not
    prohibited by the agreement. Inasmuch as our Constitution requires
    that reasonable notice be given, an earnest effort should be made
    to devise a method of communication that is consistent with due
    process and minimizes offense to foreign law. A court may in some
    instances specially authorize use of ordinary mail. Cf. Levin v.
    Ruby Trading Corp., 248 F. Supp. 537 (S.D.N.Y. 1965).
      Subdivision (g). This subdivision retains the text of former
    subdivision (d)(2). Provision is made for service upon an infant or
    incompetent person in a foreign country.
      Subdivision (h). This subdivision retains the text of former
    subdivision (d)(3), with changes reflecting those made in
    subdivision (e). It also contains the provisions for service on a
    corporation or association in a foreign country, as formerly found
    in subdivision (i).
      Frequent use should be made of the Notice and Request procedure
    set forth in subdivision (d) in actions against corporations. Care
    must be taken, however, to address the request to an individual
    officer or authorized agent of the corporation. It is not effective
    use of the Notice and Request procedure if the mail is sent
    undirected to the mail room of the organization.
      Subdivision (i). This subdivision retains much of the text of
    former subdivisions (d)(4) and (d)(5). Paragraph (1) provides for
    service of a summons on the United States; it amends former
    subdivision (d)(4) to permit the United States attorney to be
    served by registered or certified mail. The rule does not authorize
    the use of the Notice and Request procedure of revised subdivision
    (d) when the United States is the defendant. To assure proper
    handling of mail in the United States attorney's office, the
    authorized mail service must be specifically addressed to the civil
    process clerk of the office of the United States attorney.
      Paragraph (2) replaces former subdivision (d)(5). Paragraph (3)
    saves the plaintiff from the hazard of losing a substantive right
    because of failure to comply with the complex requirements of
    multiple service under this subdivision. That risk has proved to be
    more than nominal. E.g., Whale v. United States, 792 F.2d 951 (9th
    Cir. 1986). This provision should be read in connection with the
    provisions of subdivision (c) of Rule 15 to preclude the loss of
    substantive rights against the United States or its agencies,
    corporations, or officers resulting from a plaintiff's failure to
    correctly identify and serve all the persons who should be named or
    served.
      Subdivision (j). This subdivision retains the text of former
    subdivision (d)(6) without material change. The waiver-of-service
    provision is also inapplicable to actions against governments
    subject to service pursuant to this subdivision.
      The revision adds a new paragraph (1) referring to the statute
    governing service of a summons on a foreign state and its political
    subdivisions, agencies, and instrumentalities, the Foreign
    Sovereign Immunities Act of 1976, 28 U.S.C. Sec. 1608. The caption
    of the subdivision reflects that change.
      Subdivision (k). This subdivision replaces the former subdivision
    (f), with no change in the title. Paragraph (1) retains the
    substance of the former rule in explicitly authorizing the exercise
    of personal jurisdiction over persons who can be reached under
    state long-arm law, the "100-mile bulge" provision added in 1963,
    or the federal interpleader act. Paragraph (1)(D) is new, but
    merely calls attention to federal legislation that may provide for
    nationwide or even world-wide service of process in cases arising
    under particular federal laws. Congress has provided for nationwide
    service of process and full exercise of territorial jurisdiction by
    all district courts with respect to specified federal actions. See
    1 R. Casad, Jurisdiction in Civil Actions (2d Ed.) chap. 5 (1991).
      Paragraph (2) is new. It authorizes the exercise of territorial
    jurisdiction over the person of any defendant against whom is made
    a claim arising under any federal law if that person is subject to
    personal jurisdiction in no state. This addition is a companion to
    the amendments made in revised subdivisions (e) and (f).
      This paragraph corrects a gap in the enforcement of federal law.
    Under the former rule, a problem was presented when the defendant
    was a non-resident of the United States having contacts with the
    United States sufficient to justify the application of United
    States law and to satisfy federal standards of forum selection, but
    having insufficient contact with any single state to support
    jurisdiction under state long-arm legislation or meet the
    requirements of the Fourteenth Amendment limitation on state court
    territorial jurisdiction. In such cases, the defendant was shielded
    from the enforcement of federal law by the fortuity of a favorable
    limitation on the power of state courts, which was incorporated
    into the federal practice by the former rule. In this respect, the
    revision responds to the suggestion of the Supreme Court made in
    Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 111
    (1987).
      There remain constitutional limitations on the exercise of
    territorial jurisdiction by federal courts over persons outside the
    United States. These restrictions arise from the Fifth Amendment
    rather than from the Fourteenth Amendment, which limits state-court
    reach and which was incorporated into federal practice by the
    reference to state law in the text of the former subdivision (e)
    that is deleted by this revision. The Fifth Amendment requires that
    any defendant have affiliating contacts with the United States
    sufficient to justify the exercise of personal jurisdiction over
    that party. Cf. Wells Fargo & Co. v. Wells Fargo Express Co., 556
    F.2d 406, 418 (9th Cir. 1977). There also may be a further Fifth
    Amendment constraint in that a plaintiff's forum selection might be
    so inconvenient to a defendant that it would be a denial of "fair
    play and substantial justice" required by the due process clause,
    even though the defendant had significant affiliating contacts with
    the United States. See DeJames v. Magnificent Carriers, 654 F.2d
    280, 286 n.3 (3rd Cir.), cert. denied, 454 U.S. 1085 (1981).
    Compare World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
    293-294 (1980); Insurance Corp. of Ireland v. Compagnie des
    Bauxites de Guinee, 456 U.S. 694, 702-03 (1982); Burger King Corp.
    v. Rudzewicz, 471 U.S. 462, 476-78 (1985); Asahi Metal Indus. v.
    Superior Court of Cal., Solano County, 480 U.S. 102, 108-13 (1987).
    See generally R. Lusardi, Nationwide Service of Process: Due
    Process Limitations on the Power of the Sovereign, 33 Vill. L. Rev.
    1 (1988).
      This provision does not affect the operation of federal venue
    legislation. See generally 28 U.S.C. Sec. 1391. Nor does it affect
    the operation of federal law providing for the change of venue. 28
    U.S.C. Secs. 1404, 1406. The availability of transfer for fairness
    and convenience under Sec. 1404 should preclude most conflicts
    between the full exercise of territorial jurisdiction permitted by
    this rule and the Fifth Amendment requirement of "fair play and
    substantial justice."
      The district court should be especially scrupulous to protect
    aliens who reside in a foreign country from forum selections so
    onerous that injustice could result. "[G]reat care and reserve
    should be exercised when extending our notions of personal
    jurisdiction into the international field." Asahi Metal Indus. v.
    Superior Court of Cal., Solano County, 480 U.S. 102, 115 (1987),
    quoting United States v. First Nat'l City Bank, 379 U.S. 378, 404
    (1965) (Harlan, J., dissenting).
      This narrow extension of the federal reach applies only if a
    claim is made against the defendant under federal law. It does not
    establish personal jurisdiction if the only claims are those
    arising under state law or the law of another country, even though
    there might be diversity or alienage subject matter jurisdiction as
    to such claims. If, however, personal jurisdiction is established
    under this paragraph with respect to a federal claim, then 28
    U.S.C. Sec. 1367(a) provides supplemental jurisdiction over related
    claims against that defendant, subject to the court's discretion to
    decline exercise of that jurisdiction under 28 U.S.C. Sec. 1367(c).
      Subdivision (l). This subdivision assembles in one place all the
    provisions of the present rule bearing on proof of service. No
    material change in the rule is effected. The provision that proof
    of service can be amended by leave of court is retained from the
    former subdivision (h). See generally 4A Wright & Miller, Federal
    Practice and Procedure Sec. 1132 (2d ed. 1987).
      Subdivision (m). This subdivision retains much of the language of
    the present subdivision (j).
      The new subdivision explicitly provides that the court shall
    allow additional time if there is good cause for the plaintiff's
    failure to effect service in the prescribed 120 days, and
    authorizes the court to relieve a plaintiff of the consequences of
    an application of this subdivision even if there is no good cause
    shown. Such relief formerly was afforded in some cases, partly in
    reliance on Rule 6(b). Relief may be justified, for example, if the
    applicable statute of limitations would bar the refiled action, or
    if the defendant is evading service or conceals a defect in
    attempted service. E.g., Ditkof v. Owens-Illinois, Inc., 114 F.R.D.
    104 (E.D. Mich. 1987). A specific instance of good cause is set
    forth in paragraph (3) of this rule, which provides for extensions
    if necessary to correct oversights in compliance with the
    requirements of multiple service in actions against the United
    States or its officers, agencies, and corporations. The district
    court should also take care to protect pro se plaintiffs from
    consequences of confusion or delay attending the resolution of an
    in forma pauperis petition. Robinson v. America's Best Contacts &
    Eyeglasses, 876 F.2d 596 (7th Cir. 1989).
      The 1983 revision of this subdivision referred to the "party on
    whose behalf such service was required," rather than to the
    "plaintiff," a term used generically elsewhere in this rule to
    refer to any party initiating a claim against a person who is not a
    party to the action. To simplify the text, the revision returns to
    the usual practice in the rule of referring simply to the plaintiff
    even though its principles apply with equal force to defendants who
    may assert claims against non-parties under Rules 13(h), 14, 19,
    20, or 21.
      Subdivision (n). This subdivision provides for in rem and
    quasi-in-rem jurisdiction. Paragraph (1) incorporates any
    requirements of 28 U.S.C. Sec. 1655 or similar provisions bearing
    on seizures or liens.
      Paragraph (2) provides for other uses of quasi-in-rem
    jurisdiction but limits its use to exigent circumstances.
    Provisional remedies may be employed as a means to secure
    jurisdiction over the property of a defendant whose person is not
    within reach of the court, but occasions for the use of this
    provision should be rare, as where the defendant is a fugitive or
    assets are in imminent danger of disappearing. Until 1963, it was
    not possible under Rule 4 to assert jurisdiction in a federal court
    over the property of a defendant not personally served. The 1963
    amendment to subdivision (e) authorized the use of state law
    procedures authorizing seizures of assets as a basis for
    jurisdiction. Given the liberal availability of long-arm
    jurisdiction, the exercise of power quasi-in-rem has become almost
    an anachronism. Circumstances too spare to affiliate the defendant
    to the forum state sufficiently to support long-arm jurisdiction
    over the defendant's person are also inadequate to support seizure
    of the defendant's assets fortuitously found within the state.
    Shaffer v. Heitner, 433 U.S. 186 (1977).

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Paragraph (2)(B) is added to Rule 4(i) to require service on the
    United States when a United States officer or employee is sued in
    an individual capacity for acts or omissions occurring in
    connection with duties performed on behalf of the United States.
    Decided cases provide uncertain guidance on the question whether
    the United States must be served in such actions. See Vaccaro v.
    Dobre, 81 F.3d 854, 856-857 (9th Cir. 1996); Armstrong v. Sears, 33
    F.3d 182, 185-187 (2d Cir. 1994); Ecclesiastical Order of the Ism
    of Am v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988); Light v. Wolf,
    816 F.2d 746 (D.C. Cir. 1987); see also Simpkins v. District of
    Columbia, 108 F.3d 366, 368-369 (D.C. Cir. 1997). Service on the
    United States will help to protect the interest of the individual
    defendant in securing representation by the United States, and will
    expedite the process of determining whether the United States will
    provide representation. It has been understood that the individual
    defendant must be served as an individual defendant, a requirement
    that is made explicit. Invocation of the individual service
    provisions of subdivisions (e), (f), and (g) invokes also the
    waiver-of-service provisions of subdivision (d).
      Paragraph 2(B) reaches service when an officer or employee of the
    United States is sued in an individual capacity "for acts or
    omissions occurring in connection with the performance of duties on
    behalf of the United States." This phrase has been chosen as a
    functional phrase that can be applied without the occasionally
    distracting associations of such phrases as "scope of employment,"
    "color of office," or "arising out of the employment." Many actions
    are brought against individual federal officers or employees of the
    United States for acts or omissions that have no connection
    whatever to their governmental roles. There is no reason to require
    service on the United States in these actions. The connection to
    federal employment that requires service on the United States must
    be determined as a practical matter, considering whether the
    individual defendant has reasonable grounds to look to the United
    States for assistance and whether the United States has reasonable
    grounds for demanding formal notice of the action.
      An action against a former officer or employee of the United
    States is covered by paragraph (2)(B) in the same way as an action
    against a present officer or employee. Termination of the
    relationship between the individual defendant and the United States
    does not reduce the need to serve the United States.
      Paragraph (3) is amended to ensure that failure to serve the
    United States in an action governed by paragraph 2(B) does not
    defeat an action. This protection is adopted because there will be
    cases in which the plaintiff reasonably fails to appreciate the
    need to serve the United States. There is no requirement, however,
    that the plaintiff show that the failure to serve the United States
    was reasonable. A reasonable time to effect service on the United
    States must be allowed after the failure is pointed out. An
    additional change ensures that if the United States or United
    States attorney is served in an action governed by paragraph 2(A),
    additional time is to be allowed even though no officer, employee,
    agency, or corporation of the United States was served.
      GAP Report. The most important changes were made to ensure that
    no one would read the seemingly independent provisions of
    paragraphs 2(A) and 2(B) to mean that service must be made twice
    both on the United States and on the United States employee when
    the employee is sued in both official and individual capacities.
    The word "only" was added in subparagraph (A) and the new phrase
    "whether or not the officer or employee is sued also in an
    individual capacity" was inserted in subparagraph (B).
      Minor changes were made to include "Employees" in the catchline
    for subdivision (i), and to add "or employee" in paragraph 2(A).
    Although it may seem awkward to think of suit against an employee
    in an official capacity, there is no clear definition that
    separates "officers" from "employees" for this purpose. The
    published proposal to amend Rule 12(a)(3) referred to actions
    against an employee sued in an official capacity, and it seemed
    better to make the rules parallel by adding "employee" to Rule
    4(i)(2)(A) than by deleting it from Rule 12(a)(3)(A).

                          AMENDMENT BY PUBLIC LAW                      
      1983 - Subd. (a). Pub. L. 97-462, Sec. 2(1), substituted "deliver
    the summons to the plaintiff or the plaintiff's attorney, who shall
    be responsible for prompt service of the summons and a copy of the
    complaint" for "deliver it for service to the marshal or to any
    other person authorized by Rule 4(c) to serve it".
      Subd. (c). Pub. L. 97-462, Sec. 2(2), substituted provision with
    subd. heading "Service" for provision with subd. heading "By Whom
    Served" which read: "Service of process shall be made by a United
    States marshal, by his deputy, or by some person specially
    appointed by the court for that purpose, except that a subpoena may
    be served as provided in Rule 45. Special appointments to serve
    process shall be made freely. Service of process may also be made
    by a person authorized to serve process in an action brought in the
    courts of general jurisdiction of the state in which the district
    court is held or in which service is made."
      Subd. (d). Pub. L. 97-462, Sec. 2(3), (4), substituted "Summons
    and Complaint: Person to be Served" for "Summons: Personal Service"
    in subd. heading.
      Subd. (d)(5). Pub. L. 97-462, Sec. 2(4), substituted "sending a
    copy of the summons and of the complaint by registered or certified
    mail" for "delivering a copy of the summons and of the complaint".
      Subd. (d)(7). Pub. L. 97-462, Sec. 2(3)(B), struck out par. (7)
    which read: "Upon a defendant of any class referred to in paragraph
    (1) or (3) of this subdivision of this rule, it is also sufficient
    if the summons and complaint are served in the manner prescribed by
    any statute of the United States or in the manner prescribed by the
    law of the state in which the district court is held for the
    service of summons or other like process upon any such defendant in
    an action brought in the courts of general jurisdiction of that
    state.". See subd. (c)(2)(C) of this rule.
      Subd. (e). Pub. L. 97-462, Sec. 2(5), substituted "Summons" for
    "Same" as subd. heading.
      Subd. (g). Pub. L. 97-462, Sec. 2(6), substituted in second
    sentence "deputy United States marshal" and "such person" for "his
    deputy" and "he" and inserted third sentence "If service is made
    under subdivision (c)(2)(C)(ii) of this rule, return shall be made
    by the sender's filing with the court the acknowledgment received
    pursuant to such subdivision.".
      Subd. (j). Pub. L. 97-462, Sec. 2(7), added subd. (j).

                     EFFECTIVE DATE OF 1983 AMENDMENT                 
      Amendment by Pub. L. 97-462 effective 45 days after Jan. 12,
    1983, see section 4 of Pub. L. 97-462, set out as a note under
    section 2071 of this title.

-End-



-CITE-
    28 USC APPENDIX Rule 4.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 4.1. Service of Other Process

-STATUTE-
      (a) Generally. Process other than a summons as provided in Rule 4
    or subpoena as provided in Rule 45 shall be served by a United
    States marshal, a deputy United States marshal, or a person
    specially appointed for that purpose, who shall make proof of
    service as provided in Rule 4(l). The process may be served
    anywhere within the territorial limits of the state in which the
    district court is located, and, when authorized by a statute of the
    United States, beyond the territorial limits of that state.
      (b) Enforcement of Orders: Commitment for Civil Contempt. An
    order of civil commitment of a person held to be in contempt of a
    decree or injunction issued to enforce the laws of the United
    States may be served and enforced in any district. Other orders in
    civil contempt proceedings shall be served in the state in which
    the court issuing the order to be enforced is located or elsewhere
    within the United States if not more than 100 miles from the place
    at which the order to be enforced was issued.

-SOURCE-
    (As added Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1993            
      This is a new rule. Its purpose is to separate those few
    provisions of the former Rule 4 bearing on matters other than
    service of a summons to allow greater textual clarity in Rule 4.
    Subdivision (a) contains no new language.
      Subdivision (b) replaces the final clause of the penultimate
    sentence of the former subdivision 4(f), a clause added to the rule
    in 1963. The new rule provides for nationwide service of orders of
    civil commitment enforcing decrees of injunctions issued to compel
    compliance with federal law. The rule makes no change in the
    practice with respect to the enforcement of injunctions or decrees
    not involving the enforcement of federally-created rights.
      Service of process is not required to notify a party of a decree
    or injunction, or of an order that the party show cause why that
    party should not be held in contempt of such an order. With respect
    to a party who has once been served with a summons, the service of
    the decree or injunction itself or of an order to show cause can be
    made pursuant to Rule 5. Thus, for example, an injunction may be
    served on a party through that person's attorney. Chagas v. United
    States, 369 F.2d 643 (5th Cir. 1966). The same is true for service
    of an order to show cause. Waffenschmidt v. Mackay, 763 F.2d 711
    (5th Cir. 1985).
      The new rule does not affect the reach of the court to impose
    criminal contempt sanctions. Nationwide enforcement of federal
    decrees and injunctions is already available with respect to
    criminal contempt: a federal court may effect the arrest of a
    criminal contemnor anywhere in the United States, 28 U.S.C. Sec.
    3041, and a contemnor when arrested may be subject to removal to
    the district in which punishment may be imposed. Fed. R. Crim. P.
    40. Thus, the present law permits criminal contempt enforcement
    against a contemnor wherever that person may be found.
      The effect of the revision is to provide a choice of civil or
    criminal contempt sanctions in those situations to which it
    applies. Contempt proceedings, whether civil or criminal, must be
    brought in the court that was allegedly defied by a contumacious
    act. Ex parte Bradley, 74 U.S. 366 (1869). This is so even if the
    offensive conduct or inaction occurred outside the district of the
    court in which the enforcement proceeding must be conducted. E.g.,
    McCourtney v. United States, 291 Fed. 497 (8th Cir.), cert. denied,
    263 U.S. 714 (1923). For this purpose, the rule as before does not
    distinguish between parties and other persons subject to contempt
    sanctions by reason of their relation or connection to parties.

-End-



-CITE-
    28 USC APPENDIX Rule 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 5. Serving and Filing Pleadings and Other Papers

-STATUTE-
      (a) Service: When Required. Except as otherwise provided in these
    rules, every order required by its terms to be served, every
    pleading subsequent to the original complaint unless the court
    otherwise orders because of numerous defendants, every paper
    relating to discovery required to be served upon a party unless the
    court otherwise orders, every written motion other than one which
    may be heard ex parte, and every written notice, appearance,
    demand, offer of judgment, designation of record on appeal, and
    similar paper shall be served upon each of the parties. No service
    need be made on parties in default for failure to appear except
    that pleadings asserting new or additional claims for relief
    against them shall be served upon them in the manner provided for
    service of summons in Rule 4.
      In an action begun by seizure of property, in which no person
    need be or is named as defendant, any service required to be made
    prior to the filing of an answer, claim, or appearance shall be
    made upon the person having custody or possession of the property
    at the time of its seizure.
      (b) Making Service.
        (1) Service under Rules 5(a) and 77(d) on a party represented
      by an attorney is made on the attorney unless the court orders
      service on the party.
        (2) Service under Rule 5(a) is made by:
          (A) Delivering a copy to the person served by:
            (i) handing it to the person;
            (ii) leaving it at the person's office with a clerk or
          other person in charge, or if no one is in charge leaving it
          in a conspicuous place in the office; or
            (iii) if the person has no office or the office is closed,
          leaving it at the person's dwelling house or usual place of
          abode with someone of suitable age and discretion residing
          there.

          (B) Mailing a copy to the last known address of the person
        served. Service by mail is complete on mailing.
          (C) If the person served has no known address, leaving a copy
        with the clerk of the court.
          (D) Delivering a copy by any other means, including
        electronic means, consented to in writing by the person served.
        Service by electronic means is complete on transmission;
        service by other consented means is complete when the person
        making service delivers the copy to the agency designated to
        make delivery. If authorized by local rule, a party may make
        service under this subparagraph (D) through the court's
        transmission facilities.

        (3) Service by electronic means under Rule 5(b)(2)(D) is not
      effective if the party making service learns that the attempted
      service did not reach the person to be served.

      (c) Same: Numerous Defendants. In any action in which there are
    unusually large numbers of defendants, the court, upon motion or of
    its own initiative, may order that service of the pleadings of the
    defendants and replies thereto need not be made as between the
    defendants and that any cross-claim, counterclaim, or matter
    constituting an avoidance or affirmative defense contained therein
    shall be deemed to be denied or avoided by all other parties and
    that the filing of any such pleading and service thereof upon the
    plaintiff constitutes due notice of it to the parties. A copy of
    every such order shall be served upon the parties in such manner
    and form as the court directs.
      (d) Filing; Certificate of Service. All papers after the
    complaint required to be served upon a party, together with a
    certificate of service, must be filed with the court within a
    reasonable time after service, but disclosures under Rule 26(a)(1)
    or (2) and the following discovery requests and responses must not
    be filed until they are used in the proceeding or the court orders
    filing: (i) depositions, (ii) interrogatories, (iii) requests for
    documents or to permit entry upon land, and (iv) requests for
    admission.
      (e) Filing with the Court Defined. The filing of papers with the
    court as required by these rules shall be made by filing them with
    the clerk of court, except that the judge may permit the papers to
    be filed with the judge, in which event the judge shall note
    thereon the filing date and forthwith transmit them to the office
    of the clerk. A court may by local rule permit papers to be filed,
    signed, or verified by electronic means that are consistent with
    technical standards, if any, that the Judicial Conference of the
    United States establishes. A paper filed by electronic means in
    compliance with a local rule constitutes a written paper for the
    purpose of applying these rules. The clerk shall not refuse to
    accept for filing any paper presented for that purpose solely
    because it is not presented in proper form as required by these
    rules or any local rules or practices.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff.
    July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 17, 2000, eff.
    Dec. 1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivisions (a) and (b). Compare 2 Minn.Stat. (Mason,
    1927) Secs. 9240, 9241, 9242; N.Y.C.P.A. (1937) Secs. 163, 164, and
    N.Y.R.C.P. (1937) Rules 20, 21; 2 Wash.Rev.Stat.Ann. (Remington,
    1932) Secs. 244-249.
      Note to Subdivision (d). Compare the present practice under
    [former] Equity Rule 12 (Issue of Subpoena - Time for Answer).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      The words "affected thereby," stricken out by the amendment,
    introduced a problem of interpretation. See 1 Barron & Holtzoff,
    Federal Practice & Procedure 760-61 (Wright ed. 1960). The
    amendment eliminates this difficulty and promotes full exchange of
    information among the parties by requiring service of papers on all
    the parties to the action, except as otherwise provided in the
    rules. See also subdivision (c) of Rule 5. So, for example, a
    third-party defendant is required to serve his answer to the
    third-party complaint not only upon the defendant but also upon the
    plaintiff. See amended Form 22-A and the Advisory Committee's Note
    thereto.
      As to the method of serving papers upon a party whose address is
    unknown, see Rule 5(b).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      The amendment makes clear that all papers relating to discovery
    which are required to be served on any party must be served on all
    parties, unless the court orders otherwise. The present language
    expressly includes notices and demands, but it is not explicit as
    to answers or responses as provided in Rules 33, 34, and 36.
    Discovery papers may be voluminous or the parties numerous, and the
    court is empowered to vary the requirement if in a given case it
    proves needlessly onerous.
      In actions begun by seizure of property, service will at times
    have to be made before the absent owner of the property has filed
    an appearance. For example, a prompt deposition may be needed in a
    maritime action in rem. See Rules 30(a) and 30(b)(2) and the
    related notes. A provision is added authorizing service on the
    person having custody or possession of the property at the time of
    its seizure.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      Subdivision (d). By the terms of this rule and Rule 30(f)(1)
    discovery materials must be promptly filed, although it often
    happens that no use is made of the materials after they are filed.
    Because the copies required for filing are an added expense and the
    large volume of discovery filings presents serious problems of
    storage in some districts, the Committee in 1978 first proposed
    that discovery materials not be filed unless on order of the court
    or for use in the proceedings. But such materials are sometimes of
    interest to those who may have no access to them except by a
    requirement of filing, such as members of a class, litigants
    similarly situated, or the public generally. Accordingly, this
    amendment and a change in Rule 30(f)(1) continue the requirement of
    filing but make it subject to an order of the court that discovery
    materials not be filed unless filing is requested by the court or
    is effected by parties who wish to use the materials in the
    proceeding.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Subdivision (d). This subdivision is amended to require that the
    person making service under the rule certify that service has been
    effected. Such a requirement has generally been imposed by local
    rule.
      Having such information on file may be useful for many purposes,
    including proof of service if an issue arises concerning the
    effectiveness of the service. The certificate will generally
    specify the date as well as the manner of service, but parties
    employing private delivery services may sometimes be unable to
    specify the date of delivery. In the latter circumstance, a
    specification of the date of transmission of the paper to the
    delivery service may be sufficient for the purposes of this rule.
      Subdivision (e). The words "pleading and other" are stricken as
    unnecessary. Pleadings are papers within the meaning of the rule.
    The revision also accommodates the development of the use of
    facsimile transmission for filing.
      Several local district rules have directed the office of the
    clerk to refuse to accept for filing papers not conforming to
    certain requirements of form imposed by local rules or practice.
    This is not a suitable role for the office of the clerk, and the
    practice exposes litigants to the hazards of time bars; for these
    reasons, such rules are proscribed by this revision. The
    enforcement of these rules and of the local rules is a role for a
    judicial officer. A clerk may of course advise a party or counsel
    that a particular instrument is not in proper form, and may be
    directed to so inform the court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This is a technical amendment, using the broader language of Rule
    25 of the Federal Rules of Appellate Procedure. The district court
    - and the bankruptcy court by virtue of a cross-reference in
    Bankruptcy Rule 7005 - can, by local rule, permit filing not only
    by facsimile transmissions but also by other electronic means,
    subject to standards approved by the Judicial Conference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT       
      The present Rule 5(e) has authorized filing by facsimile or other
    electronic means on two conditions. The filing must be authorized
    by local rule. Use of this means of filing must be authorized by
    the Judicial Conference of the United States and must be consistent
    with standards established by the Judicial Conference. Attempts to
    develop Judicial Conference standards have demonstrated the value
    of several adjustments in the rule.
      The most significant change discards the requirement that the
    Judicial Conference authorize local electronic filing rules. As
    before, each district may decide for itself whether it has the
    equipment and personnel required to establish electronic filing,
    but a district that wishes to establish electronic filing need no
    longer await Judicial Conference action.
      The role of the Judicial Conference standards is clarified by
    specifying that the standards are to govern technical matters.
    Technical standards can provide nationwide uniformity, enabling
    ready use of electronic filing without pausing to adjust for the
    otherwise inevitable variations among local rules. Judicial
    Conference adoption of technical standards should prove superior to
    specification in these rules. Electronic technology has advanced
    with great speed. The process of adopting Judicial Conference
    standards should prove speedier and more flexible in determining
    the time for the first uniform standards, in adjusting standards at
    appropriate intervals, and in sparing the Supreme Court and
    Congress the need to consider technological details. Until Judicial
    Conference standards are adopted, however, uniformity will occur
    only to the extent that local rules deliberately seek to copy other
    local rules.
      It is anticipated that Judicial Conference standards will govern
    such technical specifications as data formatting, speed of
    transmission, means to transmit copies of supporting documents, and
    security of communication. Perhaps more important, standards must
    be established to assure proper maintenance and integrity of the
    record and to provide appropriate access and retrieval mechanisms.
    Local rules must address these issues until Judicial Conference
    standards are adopted.
      The amended rule also makes clear the equality of filing by
    electronic means with written filings. An electronic filing that
    complies with the local rule satisfies all requirements for filing
    on paper, signature, or verification. An electronic filing that
    otherwise satisfies the requirements of 28 U.S.C. Sec. 1746 need
    not be separately made in writing. Public access to electronic
    filings is governed by the same rules as govern written filings.
      The separate reference to filing by facsimile transmission is
    deleted. Facsimile transmission continues to be included as an
    electronic means.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Subdivision (d). Rule 5(d) is amended to provide that disclosures
    under Rule 26(a)(1) and (2), and discovery requests and responses
    under Rules 30, 31, 33, 34, and 36 must not be filed until they are
    used in the action. "Discovery requests" includes deposition
    notices and "discovery responses" includes objections. The rule
    supersedes and invalidates local rules that forbid, permit, or
    require filing of these materials before they are used in the
    action. The former Rule 26(a)(4) requirement that disclosures under
    Rule 26(a)(1) and (2) be filed has been removed. Disclosures under
    Rule 26(a)(3), however, must be promptly filed as provided in Rule
    26(a)(3). Filings in connection with Rule 35 examinations, which
    involve a motion proceeding when the parties do not agree, are
    unaffected by these amendments.
      Recognizing the costs imposed on parties and courts by required
    filing of discovery materials that are never used in an action,
    Rule 5(d) was amended in 1980 to authorize court orders that excuse
    filing. Since then, many districts have adopted local rules that
    excuse or forbid filing. In 1989 the Judicial Conference Local
    Rules Project concluded that these local rules were inconsistent
    with Rule 5(d), but urged the Advisory Committee to consider
    amending the rule. Local Rules Project at 92 (1989). The Judicial
    Conference of the Ninth Circuit gave the Committee similar advice
    in 1997. The reality of nonfiling reflected in these local rules
    has even been assumed in drafting the national rules. In 1993, Rule
    30(f)(1) was amended to direct that the officer presiding at a
    deposition file it with the court or send it to the attorney who
    arranged for the transcript or recording. The Committee Note
    explained that this alternative to filing was designed for "courts
    which direct that depositions not be automatically filed." Rule
    30(f)(1) has been amended to conform to this change in Rule 5(d).
      Although this amendment is based on widespread experience with
    local rules, and confirms the results directed by these local
    rules, it is designed to supersede and invalidate local rules.
    There is no apparent reason to have different filing rules in
    different districts. Even if districts vary in present capacities
    to store filed materials that are not used in an action, there is
    little reason to continue expending court resources for this
    purpose. These costs and burdens would likely change as parties
    make increased use of audio- and videotaped depositions. Equipment
    to facilitate review and reproduction of such discovery materials
    may prove costly to acquire, maintain, and operate.
      The amended rule provides that discovery materials and
    disclosures under Rule 26(a)(1) and (a)(2) must not be filed until
    they are "used in the proceeding." This phrase is meant to refer to
    proceedings in court. This filing requirement is not triggered by
    "use" of discovery materials in other discovery activities, such as
    depositions. In connection with proceedings in court, however, the
    rule is to be interpreted broadly; any use of discovery materials
    in court in connection with a motion, a pretrial conference under
    Rule 16, or otherwise, should be interpreted as use in the
    proceeding.
      Once discovery or disclosure materials are used in the
    proceeding, the filing requirements of Rule 5(d) should apply to
    them. But because the filing requirement applies only with regard
    to materials that are used, only those parts of voluminous
    materials that are actually used need be filed. Any party would be
    free to file other pertinent portions of materials that are so
    used. See Fed. R. Evid. 106; cf. Rule 32(a)(4). If the parties are
    unduly sparing in their submissions, the court may order further
    filings. By local rule, a court could provide appropriate direction
    regarding the filing of discovery materials, such as depositions,
    that are used in proceedings.
      "Shall" is replaced by "must" under the program to conform
    amended rules to current style conventions when there is no
    ambiguity.
      GAP Report. The Advisory Committee recommends no changes to
    either the amendments to Rule 5(d) or the Committee Note as
    published.

                 COMMITTEE NOTES ON RULES - 2001 AMENDMENT             
      Rule 5(b) is restyled.
      Rule 5(b)(1) makes it clear that the provision for service on a
    party's attorney applies only to service made under Rules 5(a) and
    77(d). Service under Rules 4, 4.1, 45(b), and 71A(d)(3) - as well
    as rules that invoke those rules - must be made as provided in
    those rules.
      Subparagraphs (A), (B), and (C) of Rule 5(b)(2) carry forward the
    method-of-service provisions of former Rule 5(b).
      Subparagraph (D) of Rule 5(b)(2) is new. It authorizes service by
    electronic means or any other means, but only if consent is
    obtained from the person served. The consent must be express, and
    cannot be implied from conduct. Early experience with electronic
    filing as authorized by Rule 5(d) is positive, supporting service
    by electronic means as well. Consent is required, however, because
    it is not yet possible to assume universal entry into the world of
    electronic communication. Subparagraph (D) also authorizes service
    by nonelectronic means. The Rule 5(b)(2)(B) provision making mail
    service complete on mailing is extended in subparagraph (D) to make
    service by electronic means complete on transmission; transmission
    is effected when the sender does the last act that must be
    performed by the sender. Service by other agencies is complete on
    delivery to the designated agency.
      Finally, subparagraph (D) authorizes adoption of local rules
    providing for service through the court. Electronic case filing
    systems will come to include the capacity to make service by using
    the court's facilities to transmit all documents filed in the case.
    It may prove most efficient to establish an environment in which a
    party can file with the court, making use of the court's
    transmission facilities to serve the filed paper on all other
    parties. Transmission might be by such means as direct transmission
    of the paper, or by transmission of a notice of filing that
    includes an electronic link for direct access to the paper. Because
    service is under subparagraph (D), consent must be obtained from
    the persons served.
      Consent to service under Rule 5(b)(2)(D) must be in writing,
    which can be provided by electronic means. Parties are encouraged
    to specify the scope and duration of the consent. The specification
    should include at least the persons to whom service should be made,
    the appropriate address or location for such service - such as the
    e-mail address or facsimile machine number, and the format to be
    used for attachments. A district court may establish a registry or
    other facility that allows advance consent to service by specified
    means for future actions.
      Rule 6(e) is amended to allow additional time to respond when
    service is made under Rule 5(b)(2)(D). The additional time does not
    relieve a party who consents to service under Rule 5(b)(2)(D) of
    the responsibilities to monitor the facility designated for
    receiving service and to provide prompt notice of any address
    change.
      Paragraph (3) addresses a question that may arise from a literal
    reading of the provision that service by electronic means is
    complete on transmission. Electronic communication is rapidly
    improving, but lawyers report continuing failures of transmission,
    particularly with respect to attachments. Ordinarily the risk of
    non-receipt falls on the person being served, who has consented to
    this form of service. But the risk should not extend to situations
    in which the person attempting service learns that the attempted
    service in fact did not reach the person to be served. Given actual
    knowledge that the attempt failed, service is not effected. The
    person attempting service must either try again or show
    circumstances that justify dispensing with service.
      Paragraph (3) does not address the similar questions that may
    arise when a person attempting service learns that service by means
    other than electronic means in fact did not reach the person to be
    served. Case law provides few illustrations of circumstances in
    which a person attempting service actually knows that the attempt
    failed but seeks to act as if service had been made. This negative
    history suggests there is no need to address these problems in Rule
    5(b)(3). This silence does not imply any view on these issues, nor
    on the circumstances that justify various forms of judicial action
    even though service has not been made.
      Changes Made After Publication and Comments Rule 5(b)(2)(D) was
    changed to require that consent be "in writing."
      Rule 5(b)(3) is new. The published proposal did not address the
    question of failed service in the text of the rule. Instead, the
    Committee Note included this statement: "As with other modes of
    service, however, actual notice that the transmission was not
    received defeats the presumption of receipt that arises from the
    provision that service is complete on transmission. The sender must
    take additional steps to effect service. Service by other agencies
    is complete on delivery to the designated agency." The addition of
    paragraph (3) was prompted by consideration of the draft Appellate
    Rule 25(c) that was prepared for the meeting of the Appellate Rules
    Advisory Committee. This draft provided: "Service by electronic
    means is complete on transmission, unless the party making service
    is notified that the paper was not received." Although Appellate
    Rule 25(c) is being prepared for publication and comment, while
    Civil Rule 5(b) has been published and otherwise is ready to
    recommend for adoption, it seemed desirable to achieve some
    parallel between the two rules.
      The draft Rule 5(b)(3) submitted for consideration by the
    Advisory Committee covered all means of service except for leaving
    a copy with the clerk of the court when the person to be served has
    no known address. It was not limited to electronic service for fear
    that a provision limited to electronic service might generate
    unintended negative implications as to service by other means,
    particularly mail. This concern was strengthened by a small number
    of opinions that say that service by mail is effective, because
    complete on mailing, even when the person making service has prompt
    actual notice that the mail was not delivered. The Advisory
    Committee voted to limit Rule 5(b)(3) to service by electronic
    means because this means of service is relatively new, and seems
    likely to miscarry more frequently than service by post. It was
    suggested during the Advisory Committee meeting that the question
    of negative implication could be addressed in the Committee Note.
    There was little discussion of this possibility. The Committee Note
    submitted above includes a "no negative implications" paragraph
    prepared by the Reporter for consideration by the Standing
    Committee.
      The Advisory Committee did not consider at all a question that
    was framed during the later meeting of the Appellate Rules Advisory
    Committee. As approved by the Advisory Committee, Rule 5(b)(3)
    defeats service by electronic means "if the party making service
    learns that the attempted service did not reach the person to be
    served." It says nothing about the time relevant to learning of the
    failure. The omission may seem glaring. Curing the omission,
    however, requires selection of a time. As revised, proposed
    Appellate Rule 25(c) requires that the party making service learn
    of the failure within three calendar days. The Appellate Rules
    Advisory Committee will have the luxury of public comment and
    another year to consider the desirability of this short period. If
    Civil Rule 5(b) is to be recommended for adoption now, no such
    luxury is available. This issue deserves careful consideration by
    the Standing Committee.
      Several changes are made in the Committee Note. (1) It requires
    that consent "be express, and cannot be implied from conduct." This
    addition reflects a more general concern stimulated by a reported
    ruling that an e-mail address on a firm's letterhead implied
    consent to email service. (2) The paragraph discussing service
    through the court's facilities is expanded by describing
    alternative methods, including an "electronic link." (3) There is a
    new paragraph that states that the requirement of written consent
    can be satisfied by electronic means, and that suggests matters
    that should be addressed by the consent. (4) A paragraph is added
    to note the additional response time provided by amended Rule 6(e).
    (5) The final two paragraphs address newly added Rule 5(b)(3). The
    first explains the rule that electronic service is not effective if
    the person making service learns that it did not reach the person
    to be served. The second paragraph seeks to defeat any negative
    implications that might arise from limiting Rule 5(b)(3) to
    electronic service, not mail, not other means consented to such as
    commercial express service, and not service on another person on
    behalf of the person to be served.

                                 RULE 6(E)                             
      The Advisory Committee recommended that no change be made in
    Civil Rule 6(e) to reflect the provisions of Civil Rule 5(b)(2)(D)
    that, with the consent of the person to be served, would allow
    service by electronic or other means. Absent change, service by
    these means would not affect the time for acting in response to the
    paper served. Comment was requested, however, on the alternative
    that would allow an additional 3 days to respond. The alternative
    Rule 6(e) amendments are cast in a form that permits ready
    incorporation in the Bankruptcy Rules. Several of the comments
    suggest that the added three days should be provided. Electronic
    transmission is not always instantaneous, and may fail for any of a
    number of reasons. It may take three days to arrange for
    transmission in readable form. Providing added time to respond will
    not discourage people from asking for consent to electronic
    transmission, and may encourage people to give consent. The more
    who consent, the quicker will come the improvements that will make
    electronic service ever more attractive. Consistency with the
    Bankruptcy Rules will be a good thing, and the Bankruptcy Rules
    Advisory Committee believes the additional three days should be
    allowed.

-End-



-CITE-
    28 USC APPENDIX Rule 6                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 6. Time

-STATUTE-
      (a) Computation. In computing any period of time prescribed or
    allowed by these rules, by the local rules of any district court,
    by order of court, or by any applicable statute, the day of the
    act, event, or default from which the designated period of time
    begins to run shall not be included. The last day of the period so
    computed shall be included, unless it is a Saturday, a Sunday, or a
    legal holiday, or, when the act to be done is the filing of a paper
    in court, a day on which weather or other conditions have made the
    office of the clerk of the district court inaccessible, in which
    event the period runs until the end of the next day which is not
    one of the aforementioned days. When the period of time prescribed
    or allowed is less than 11 days, intermediate Saturdays, Sundays,
    and legal holidays shall be excluded in the computation. As used in
    this rule and in Rule 77(c), "legal holiday" includes New Year's
    Day, Birthday of Martin Luther King, Jr., Washington's Birthday,
    Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans
    Day, Thanksgiving Day, Christmas Day, and any other day appointed
    as a holiday by the President or the Congress of the United States,
    or by the state in which the district court is held.
      (b) Enlargement. When by these rules or by a notice given
    thereunder or by order of court an act is required or allowed to be
    done at or within a specified time, the court for cause shown may
    at any time in its discretion (1) with or without motion or notice
    order the period enlarged if request therefor is made before the
    expiration of the period originally prescribed or as extended by a
    previous order, or (2) upon motion made after the expiration of the
    specified period permit the act to be done where the failure to act
    was the result of excusable neglect; but it may not extend the time
    for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b),
    (d) and (e), and 60(b), except to the extent and under the
    conditions stated in them.
      [(c) Unaffected by Expiration of Term.] (Rescinded Feb. 28, 1966,
    eff. July 1, 1966)
      (d) For Motions - Affidavits. A written motion, other than one
    which may be heard ex parte, and notice of the hearing thereof
    shall be served not later than 5 days before the time specified for
    the hearing, unless a different period is fixed by these rules or
    by order of the court. Such an order may for cause shown be made on
    ex parte application. When a motion is supported by affidavit, the
    affidavit shall be served with the motion; and, except as otherwise
    provided in Rule 59(c), opposing affidavits may be served not later
    than 1 day before the hearing, unless the court permits them to be
    served at some other time.
      (e) Additional Time After Service Under Rule 5(b)(2)(B), (C), or
    (D). Whenever a party has the right or is required to do some act
    or take some proceedings within a prescribed period after the
    service of a notice or other paper upon the party and the notice or
    paper is served upon the party under Rule 5(b)(2)(B), (C), or (D),
    3 days shall be added to the prescribed period.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
    July 1, 1968; Mar. 1, 1971, eff. July 1, 1971; Apr. 28, 1983, eff.
    Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 26, 1999, eff. Dec. 1, 1999; Apr. 23, 2001, eff.
    Dec. 1, 2001.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivisions (a) and (b). These are amplifications along
    lines common in state practices, of [former] Equity Rule 80
    (Computation of Time - Sundays and Holidays) and of the provisions
    for enlargement of time found in [former] Equity Rules 8
    (Enforcement of Final Decrees) and 16 (Defendant to Answer -
    Default - Decree Pro Confesso). See also Rule XIII, Rules and Forms
    in Criminal Cases, 292 U.S. 661, 666 (1934). Compare Ala.Code Ann.
    (Michie, 1928) Sec. 13 and former Law Rule 8 of the Rules of the
    Supreme Court of the District of Columbia (1924), superseded in
    1929 by Law Rule 8, Rules of the District Court of the United
    States for the District of Columbia (1937).
      Note to Subdivision (c). This eliminates the difficulties caused
    by the expiration of terms of court. Such statutes as U.S.C. Title
    28, [former] Sec. 12 (Trials not discontinued by new term) are not
    affected. Compare Rules of the United States District Court of
    Minnesota, Rule 25 (Minn.Stat. (Mason, Supp. 1936), p. 1089).
      Note to Subdivision (d). Compare 2 Minn.Stat. (Mason, 1927) Sec.
    9246; N.Y.R.C.P. (1937) Rules 60 and 64.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (b). The purpose of the amendment is to clarify the
    finality of judgments. Prior to the advent of the Federal Rules of
    Civil Procedure, the general rule that a court loses jurisdiction
    to disturb its judgments, upon the expiration of the term at which
    they were entered, had long been the classic device which (together
    with the statutory limits on the time for appeal) gave finality to
    judgments. See Note to Rule 73(a). Rule 6(c) abrogates that limit
    on judicial power. That limit was open to many objections, one of
    them being inequality of operation because, under it, the time for
    vacating a judgment rendered early in a term was much longer than
    for a judgment rendered near the end of the term.
      The question to be met under Rule 6(b) is: how far should the
    desire to allow correction of judgments be allowed to postpone
    their finality? The rules contain a number of provisions permitting
    the vacation or modification of judgments on various grounds. Each
    of these rules contains express time limits on the motions for
    granting of relief. Rule 6(b) is a rule of general application
    giving wide discretion to the court to enlarge these time limits or
    revive them after they have expired, the only exceptions stated in
    the original rule being a prohibition against enlarging the time
    specified in Rule 59(b) and (d) for making motions for or granting
    new trials, and a prohibition against enlarging the time fixed by
    law for taking an appeal. It should also be noted that Rule 6(b)
    itself contains no limitation of time within which the court may
    exercise its discretion, and since the expiration of the term does
    not end its power, there is now no time limit on the exercise of
    its discretion under Rule 6(b).
      Decisions of lower federal courts suggest that some of the rules
    containing time limits which may be set aside under Rule 6(b) are
    Rules 25, 50(b), 52(b), 60(b), and 73(g).
      In a number of cases the effect of Rule 6(b) on the time
    limitations of these rules has been considered. Certainly the rule
    is susceptible of the interpretation that the court is given the
    power in its discretion to relieve a party from failure to act
    within the times specified in any of these other rules, with only
    the exceptions stated in Rule 6(b), and in some cases the rule has
    been so construed.
      With regard to Rule 25(a) for substitution, it was held in
    Anderson v. Brady (E.D.Ky. 1941) 4 Fed.Rules Service 25a.1, Case 1,
    and in Anderson v. Yungkau (C.C.A. 6th, 1946) 153 F.(2d) 685, cert.
    granted (1946) 66 S.Ct. 1025, that under Rule 6(b) the court had no
    authority to allow substitution of parties after the expiration of
    the limit fixed in Rule 25(a).
      As to Rules 50(b) for judgments notwithstanding the verdict and
    52(b) for amendment of findings and vacation of judgment, it was
    recognized in Leishman v. Associated Wholesale Electric Co. (1943)
    318 U.S. 203, that Rule 6(b) allowed the district court to enlarge
    the time to make a motion for amended findings and judgment beyond
    the limit expressly fixed in Rule 52(b). See Coca-Cola v. Busch
    (E.D.Pa. 1943) 7 Fed.Rules Service 59b.2, Case 4. Obviously, if the
    time limit in Rule 52(b) could be set aside under Rule 6(b), the
    time limit in Rule 50(b) for granting judgment notwithstanding the
    verdict (and thus vacating the judgment entered "forthwith" on the
    verdict) likewise could be set aside.
      As to Rule 59 on motions for a new trial, it has been settled
    that the time limits in Rule 59(b) and (d) for making motions for
    or granting new trial could not be set aside under Rule 6(b),
    because Rule 6(b) expressly refers to Rule 59, and forbids it. See
    Safeway Stores, Inc. v. Coe (App.D.C. 1943) 136 F.(2d) 771; Jusino
    v. Morales & Tio (C.C.A. 1st, 1944) 139 F.(2d) 946; Coca-Cola Co.
    v. Busch (E.D.Pa. 1943) 7 Fed.Rules Service 59b.2, Case 4; Peterson
    v. Chicago Great Western Ry. Co. (D.Neb. 1943) 7 Fed.Rules Service
    59b.2, Case 1; Leishman v. Associated Wholesale Electric Co. (1943)
    318 U.S. 203.
      As to Rule 60(b) for relief from a judgment, it was held in
    Schram v. O'Connor (E.D.Mich. 1941) 5 Fed.Rules Serv. 6b.31, Case
    1, 2 F.R.D. 192, s. c. 5 Fed.Rules Serv. 6b.31, Case 2, F.R.D. 192,
    that the six-months time limit in original Rule 60(b) for making a
    motion for relief from a judgment for surprise, mistake, or
    excusable neglect could be set aside under Rule 6(b). The contrary
    result was reached in Wallace v. United States (C.C.A.2d, 1944) 142
    F.(2d) 240, cert. den. (1944) 323 U.S. 712; Reed v. South Atlantic
    Steamship Co. of Del. (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case
    1.
      As to Rule 73(g), fixing the time for docketing an appeal, it was
    held in Ainsworth v. Gill Glass & Fixture Co. (C.C.A.3d, 1939) 104
    F.(2d) 83, that under Rule 6(b) the district court, upon motion
    made after the expiration of the forty-day period, stated in Rule
    73(g), but before the expiration of the ninety-day period therein
    specified, could permit the docketing of the appeal on a showing of
    excusable neglect. The contrary was held in Mutual Benefit Health &
    Accident Ass'n v. Snyder (C.C.A. 6th, 1940) 109 F.(2d) 469 and in
    Burke v. Canfield (App.D.C. 1940) 111 F.(2d) 526.
      The amendment of Rule 6(b) now proposed is based on the view that
    there should be a definite point where it can be said a judgment is
    final; that the right method of dealing with the problem is to list
    in Rule 6(b) the various other rules whose time limits may not be
    set aside, and then, if the time limit in any of those other rules
    is too short, to amend that other rule to give a longer time. The
    further argument is that Rule 6(c) abolished the long standing
    device to produce finality in judgments through expiration of the
    term, and since that limitation on the jurisdiction of courts to
    set aside their own judgments has been removed by Rule 6(c), some
    other limitation must be substituted or judgments never can be said
    to be final.
      In this connection reference is made to the established rule that
    if a motion for new trial is seasonably made, the mere making or
    pendency of the motion destroys the finality of the judgment, and
    even though the motion is ultimately denied, the full time for
    appeal starts anew from the date of denial. Also, a motion to amend
    the findings under Rule 52(b) has the same effect on the time for
    appeal. Leishman v. Associated Wholesale Electric Co. (1943) 318
    U.S. 203. By the same reasoning a motion for judgment under Rule
    50(b), involving as it does the vacation of a judgment entered
    "forthwith" on the verdict (Rule 58), operates to postpone, until
    an order is made, the running of the time for appeal. The Committee
    believes that the abolition by Rule 6(c) of the old rule that a
    court's power over its judgments ends with the term, requires a
    substitute limitation, and that unless Rule 6(b) is amended to
    prevent enlargement of the times specified in Rules 50(b), 52(b)
    and 60(b), and the limitation as to Rule 59(b) and (d) is retained,
    no one can say when a judgment is final. This is also true with
    regard to proposed Rule 59(e), which authorizes a motion to alter
    or amend a judgment, hence that rule is also included in the
    enumeration in amended Rule 6(b). In consideration of the
    amendment, however, it should be noted that Rule 60(b) is also to
    be amended so as to lengthen the six-months period originally
    prescribed in that rule to one year.
      As to Rule 25 on substitution, while finality is not involved,
    the limit there fixed should be controlling. That rule, as amended,
    gives the court power, upon showing of a reasonable excuse, to
    permit substitution after the expiration of the two-year period.
      As to Rule 73(g), it is believed that the conflict in decisions
    should be resolved and not left to further litigation, and that the
    rule should be listed as one whose limitation may not be set aside
    under Rule 6(b).
      As to Rule 59(c), fixing the time for serving affidavits on
    motion for new trial, it is believed that the court should have
    authority under Rule 6(b) to enlarge the time, because, once the
    motion for new trial is made, the judgment no longer has finality,
    and the extension of time for affidavits thus does not of itself
    disturb finality.
      Other changes proposed in Rule 6(b) are merely clarifying and
    conforming. Thus "request" is substituted for "application" in
    clause (1) because an application is defined as a motion under Rule
    7(b). The phrase "extend the time" is substituted for "enlarge the
    period" because the former is a more suitable expression and
    relates more clearly to both clauses (1) and (2). The final phrase
    in Rule 6(b), "or the period for taking an appeal as provided by
    law", is deleted and a reference to Rule 73(a) inserted, since it
    is proposed to state in that rule the time for appeal to a circuit
    court of appeals, which is the only appeal governed by the Federal
    Rules, and allows an extension of time. See Rule 72.
      Subdivision (c). The purpose of this amendment is to prevent
    reliance upon the continued existence of a term as a source of
    power to disturb the finality of a judgment upon grounds other than
    those stated in these rules. See Hill v. Hawes (1944) 320 U.S. 520;
    Boaz v. Mutual Life Ins. Co. of New York (C.C.A. 8th, 1944) 146
    F.(2d) 321; Bucy v. Nevada Construction Co. (C.C.A. 9th, 1942) 125
    F.(2d) 213.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      Subdivision (a). This amendment is related to the amendment of
    Rule 77(c) changing the regulation of the days on which the clerk's
    office shall be open.
      The wording of the first sentence of Rule 6(a) is clarified and
    the subdivision is made expressly applicable to computing periods
    of time set forth in local rules.
      Saturday is to be treated in the same way as Sunday or a "legal
    holiday" in that it is not to be included when it falls on the last
    day of a computed period, nor counted as an intermediate day when
    the period is less than 7 days. "Legal holiday" is defined for
    purposes of this subdivision and amended Rule 77(c). Compare the
    definition of "holiday" in 11 U.S.C. Sec. 1(18); also 5 U.S.C. Sec.
    86a; Executive Order No. 10358, "Observance of Holidays," June 9,
    1952, 17 Fed.Reg. 5269. In the light of these changes the last
    sentence of the present subdivision, dealing with half holidays, is
    eliminated.
      With Saturdays and State holidays made "dies non" in certain
    cases by the amended subdivision, computation of the usual 5-day
    notice of motion or the 2-day notice to dissolve or modify a
    temporary restraining order may work out so as to cause
    embarrassing delay in urgent cases. The delay can be obviated by
    applying to the court to shorten the time, see Rules 6(d) and
    65(b).
      Subdivision (b). The prohibition against extending the time for
    taking action under Rule 25 (Substitution of parties) is
    eliminated. The only limitation of time provided for in amended
    Rule 25 is the 90-day period following a suggestion upon the record
    of the death of a party within which to make a motion to substitute
    the proper parties for the deceased party. See Rule 25(a)(1), as
    amended, and the Advisory Committee's Note thereto. It is intended
    that the court shall have discretion to enlarge that period.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT       
      The amendment eliminates the references to Rule 73, which is to
    be abrogated.
      P. L. 88-139, Sec. 1, 77 Stat. 248, approved on October 16, 1963,
    amended 28 U.S.C. Sec. 138 to read as follows: "The district court
    shall not hold formal terms." Thus Rule 6(c) is rendered
    unnecessary, and it is rescinded.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      The amendment adds Columbus Day to the list of legal holidays to
    conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,
    which constituted Columbus Day a legal holiday effective after
    January 1, 1971.
      The Act, which amended Title 5, U.S.C., Sec. 6103(a), changes the
    day on which certain holidays are to be observed. Washington's
    Birthday, Memorial Day and Veterans Day are to be observed on the
    third Monday in February, the last Monday in May and the fourth
    Monday in October, respectively, rather than, as heretofore, on
    February 22, May 30, and November 11, respectively. Columbus Day is
    to be observed on the second Monday in October. New Year's Day,
    Independence Day, Thanksgiving Day and Christmas continue to be
    observed on the traditional days.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      Subdivision (b). The amendment confers finality upon the
    judgments of magistrates by foreclosing enlargement of the time for
    appeal except as provided in new Rule 74(a) (20 day period for
    demonstration of excusable neglect).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      Rule 6(a) is amended to acknowledge that weather conditions or
    other events may render the clerk's office inaccessible one or more
    days. Parties who are obliged to file something with the court
    during that period should not be penalized if they cannot do so.
    The amendment conforms to changes made in Federal Rule of Criminal
    Procedure 45(a), effective August 1, 1982.
      The Rule also is amended to extend the exclusion of intermediate
    Saturdays, Sundays, and legal holidays to the computation of time
    periods less than 11 days. Under the current version of the Rule,
    parties bringing motions under rules with 10-day periods could have
    as few as 5 working days to prepare their motions. This hardship
    would be especially acute in the case of Rules 50(b) and (c)(2),
    52(b), and 59(b), (d), and (e), which may not be enlarged at the
    discretion of the court. See Rule 6(b). If the exclusion of
    Saturdays, Sundays, and legal holidays will operate to cause
    excessive delay in urgent cases, the delay can be obviated by
    applying to the court to shorten the time, See Rule 6(b).
      The Birthday of Martin Luther King, Jr., which becomes a legal
    holiday effective in 1986, has been added to the list of legal
    holidays enumerated in the Rule.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1999 AMENDMENT             
      The reference to Rule 74(a) is stricken from the catalogue of
    time periods that cannot be extended by the district court. The
    change reflects the 1997 abrogation of Rule 74(a).

                 COMMITTEE NOTES ON RULES - 2001 AMENDMENT             
      The additional three days provided by Rule 6(e) is extended to
    the means of service authorized by the new paragraph (D) added to
    Rule 5(b), including - with the consent of the person served -
    service by electronic or other means. The three-day addition is
    provided as well for service on a person with no known address by
    leaving a copy with the clerk of the court.
      Changes Made After Publication and Comments Proposed Rule 6(e) is
    the same as the "alternative proposal" that was published in August
    1999.

-End-


-CITE-
    28 USC APPENDIX III. PLEADINGS AND MOTIONS                  01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
                        III. PLEADINGS AND MOTIONS                    

-End-



-CITE-
    28 USC APPENDIX Rule 7                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 7. Pleadings Allowed; Form of Motions

-STATUTE-
      (a) Pleadings. There shall be a complaint and an answer; a reply
    to a counterclaim denominated as such; an answer to a cross-claim,
    if the answer contains a cross-claim; a third-party complaint, if a
    person who was not an original party is summoned under the
    provisions of Rule 14; and a third-party answer, if a third-party
    complaint is served. No other pleading shall be allowed, except
    that the court may order a reply to an answer or a third-party
    answer.
      (b) Motions and Other Papers.
        (1) An application to the court for an order shall be by motion
      which, unless made during a hearing or trial, shall be made in
      writing, shall state with particularity the grounds therefor, and
      shall set forth the relief or order sought. The requirement of
      writing is fulfilled if the motion is stated in a written notice
      of the hearing of the motion.
        (2) The rules applicable to captions and other matters of form
      of pleadings apply to all motions and other papers provided for
      by these rules.
        (3) All motions shall be signed in accordance with Rule 11.

      (c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and
    exceptions for insufficiency of a pleading shall not be used.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      1. A provision designating pleadings and defining a motion is
    common in the State practice acts. See Ill.Rev.Stat. (1937), ch.
    110, Sec. 156 (Designation and order of pleadings); 2 Minn.Stat.
    (Mason, 1927) Sec. 9246 (Definition of motion); and N.Y.C.P.A.
    (1937) Sec. 113 (Definition of motion). Former Equity Rules 18
    (Pleadings - Technical Forms Abrogated), 29 (Defenses - How
    Presented), and 33 (Testing Sufficiency of Defense) abolished
    technical forms of pleading, demurrers, and pleas, and exceptions
    for insufficiency of an answer.
      2. Note to Subdivision (a). This preserves the substance of
    [former] Equity Rule 31 (Reply - When Required - When Cause at
    Issue). Compare the English practice, English Rules Under the
    Judicature Act (The Annual Practice, 1937) O. 23, r.r. 1, 2 (Reply
    to counterclaim; amended, 1933, to be subject to the rules
    applicable to defenses, O. 21). See O. 21, r.r. 1-14; O. 27, r. 13
    (When pleadings deemed denied and put in issue). Under the codes
    the pleadings are generally limited. A reply is sometimes required
    to an affirmative defense in the answer. 1 Colo.Stat.Ann. (1935)
    Sec. 66; Ore.Code Ann. (1930) Secs. 1-614, 1-616. In other
    jurisdictions no reply is necessary to an affirmative defense in
    the answer, but a reply may be ordered by the court. N.C.Code Ann.
    (1935) Sec. 525; 1 S.D.Comp.Laws (1929) Sec. 2357. A reply to a
    counterclaim is usually required. Ark.Civ.Code (Crawford, 1934)
    Secs. 123-125; Wis.Stat. (1935) Secs. 263.20, 263.21. U.S.C., Title
    28, [former] Sec. 45 (District courts; practice and procedure in
    certain cases) is modified insofar as it may dispense with a reply
    to a counterclaim.
      For amendment of pleadings, see Rule 15 dealing with amended and
    supplemental pleadings.
      3. All statutes which use the words "petition", "bill of
    complaint", "plea", "demurrer", and other such terminology are
    modified in form by this rule.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      This amendment [to subdivision (a)] eliminates any question as to
    whether the compulsory reply, where a counterclaim is pleaded, is a
    reply only to the counterclaim or is a general reply to the answer
    containing the counterclaim. See Commentary, Scope of Reply Where
    Defendant Has Pleaded Counterclaim (1939) 1 Fed.Rules Serv. 672;
    Fort Chartres and Ivy Landing Drainage and Levee District No. Five
    v. Thompson (E.D.Ill. 1945) 8 Fed.Rules Serv. 13.32, Case 1.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      Certain redundant words are eliminated and the subdivision is
    modified to reflect the amendment of Rule 14(a) which in certain
    cases eliminates the requirement of obtaining leave to bring in a
    third-party defendant.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      One of the reasons sanctions against improper motion practice
    have been employed infrequently is the lack of clarity of Rule 7.
    That rule has stated only generally that the pleading requirements
    relating to captions, signing, and other matters of form also apply
    to motions and other papers. The addition of Rule 7(b)(3) makes
    explicit the applicability of the signing requirement and the
    sanctions of Rule 11, which have been amplified.

-End-



-CITE-
    28 USC APPENDIX Rule 7.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 7.1. Disclosure Statement

-STATUTE-
      (a) Who Must File: Nongovernmental Corporate Party. A
    nongovernmental corporate party to an action or proceeding in a
    district court must file two copies of a statement that identifies
    any parent corporation and any publicly held corporation that owns
    10% or more of its stock or states that there is no such
    corporation.
      (b) Time for Filing; Supplemental Filing. A party must:
        (1) file the Rule 7.1(a) statement with its first appearance,
      pleading, petition, motion, response, or other request addressed
      to the court, and
        (2) promptly file a supplemental statement upon any change in
      the information that the statement requires.

-SOURCE-
    (As added Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Rule 7.1 is drawn from Rule 26.1 of the Federal Rules of
    Appellate Procedure, with changes to adapt to the circumstances of
    district courts that dictate different provisions for the time of
    filing, number of copies, and the like. The information required by
    Rule 7.1(a) reflects the "financial interest" standard of Canon
    3C(1)(c) of the Code of Conduct for United States Judges. This
    information will support properly informed disqualification
    decisions in situations that call for automatic disqualification
    under Canon 3C(1)(c). It does not cover all of the circumstances
    that may call for disqualification under the financial interest
    standard, and does not deal at all with other circumstances that
    may call for disqualification.
      Although the disclosures required by Rule 7.1(a) may seem
    limited, they are calculated to reach a majority of the
    circumstances that are likely to call for disqualification on the
    basis of financial information that a judge may not know or
    recollect. Framing a rule that calls for more detailed disclosure
    will be difficult. Unnecessary disclosure requirements place a
    burden on the parties and on courts. Unnecessary disclosure of
    volumes of information may create a risk that a judge will overlook
    the one bit of information that might require disqualification, and
    also may create a risk that unnecessary disqualifications will be
    made rather than attempt to unravel a potentially difficult
    question. It has not been feasible to dictate more detailed
    disclosure requirements in Rule 7.1(a).
      Rule 7.1 does not prohibit local rules that require disclosures
    in addition to those required by Rule 7.1. Developing experience
    with local disclosure practices and advances in electronic
    technology may provide a foundation for adopting more detailed
    disclosure requirements by future amendments of Rule 7.1.
      Changes Made After Publication and Comments. The provisions that
    would require disclosure of additional information that may be
    required by the Judicial Conference have been deleted.

-End-



-CITE-
    28 USC APPENDIX Rule 8                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 8. General Rules of Pleading

-STATUTE-
      (a) Claims for Relief. A pleading which sets forth a claim for
    relief, whether an original claim, counterclaim, cross-claim, or
    third-party claim, shall contain (1) a short and plain statement of
    the grounds upon which the court's jurisdiction depends, unless the
    court already has jurisdiction and the claim needs no new grounds
    of jurisdiction to support it, (2) a short and plain statement of
    the claim showing that the pleader is entitled to relief, and (3) a
    demand for judgment for the relief the pleader seeks. Relief in the
    alternative or of several different types may be demanded.
      (b) Defenses; Form of Denials. A party shall state in short and
    plain terms the party's defenses to each claim asserted and shall
    admit or deny the averments upon which the adverse party relies. If
    a party is without knowledge or information sufficient to form a
    belief as to the truth of an averment, the party shall so state and
    this has the effect of a denial. Denials shall fairly meet the
    substance of the averments denied. When a pleader intends in good
    faith to deny only a part or a qualification of an averment, the
    pleader shall specify so much of it as is true and material and
    shall deny only the remainder. Unless the pleader intends in good
    faith to controvert all the averments of the preceding pleading,
    the pleader may make denials as specific denials of designated
    averments or paragraphs or may generally deny all the averments
    except such designated averments or paragraphs as the pleader
    expressly admits; but, when the pleader does so intend to
    controvert all its averments, including averments of the grounds
    upon which the court's jurisdiction depends, the pleader may do so
    by general denial subject to the obligations set forth in Rule 11.
      (c) Affirmative Defenses. In pleading to a preceding pleading, a
    party shall set forth affirmatively accord and satisfaction,
    arbitration and award, assumption of risk, contributory negligence,
    discharge in bankruptcy, duress, estoppel, failure of
    consideration, fraud, illegality, injury by fellow servant, laches,
    license, payment, release, res judicata, statute of frauds, statute
    of limitations, waiver, and any other matter constituting an
    avoidance or affirmative defense. When a party has mistakenly
    designated a defense as a counterclaim or a counterclaim as a
    defense, the court on terms, if justice so requires, shall treat
    the pleading as if there had been a proper designation.
      (d) Effect of Failure To Deny. Averments in a pleading to which a
    responsive pleading is required, other than those as to the amount
    of damage, are admitted when not denied in the responsive pleading.
    Averments in a pleading to which no responsive pleading is required
    or permitted shall be taken as denied or avoided.
      (e) Pleading To Be Concise and Direct; Consistency.
        (1) Each averment of a pleading shall be simple, concise, and
      direct. No technical forms of pleading or motions are required.
        (2) A party may set forth two or more statements of a claim or
      defense alternately or hypothetically, either in one count or
      defense or in separate counts or defenses. When two or more
      statements are made in the alternative and one of them if made
      independently would be sufficient, the pleading is not made
      insufficient by the insufficiency of one or more of the
      alternative statements. A party may also state as many separate
      claims or defenses as the party has regardless of consistency and
      whether based on legal, equitable, or maritime grounds. All
      statements shall be made subject to the obligations set forth in
      Rule 11.

      (f) Construction of Pleadings. All pleadings shall be so
    construed as to do substantial justice.

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). See [former] Equity Rules 25 (Bill of
    Complaint - Contents), and 30 (Answer - Contents - Counterclaim).
    Compare 2 Ind.Stat.Ann. (Burns, 1933) Secs. 2-1004, 2-1015; 2 Ohio
    Gen.Code Ann. (Page, 1926) Secs. 11305, 11314; Utah Rev.Stat.Ann.
    (1933), Secs. 104-7-2, 104-9-1.
      See Rule 19(c) for the requirement of a statement in a claim for
    relief of the names of persons who ought to be parties and the
    reason for their omission.
      See Rule 23(b) for particular requirements as to the complaint in
    a secondary action by shareholders.
      Note to Subdivision (b). 1. This rule supersedes the methods of
    pleading prescribed in U.S.C., Title 19, Sec. 508 (Persons making
    seizures pleading general issue and providing special matter);
    U.S.C., Title 35, [former] Secs. 40d (Providing under general
    issue, upon notice, that a statement in application for an extended
    patent is not true), 69 [now 282] (Pleading and proof in actions
    for infringement) and similar statutes.
      2. This rule is, in part, [former] Equity Rule 30 (Answer -
    Contents - Counterclaim), with the matter on denials largely from
    the Connecticut practice. See Conn.Practice Book (1934) Secs. 107,
    108, and 122; Conn.Gen.Stat. (1930) Secs. 5508-5514. Compare the
    English practice, English Rules Under the Judicature Act (The
    Annual Practice, 1937) O. 19, r.r. 17-20.
      Note to Subdivision (c). This follows substantially English Rules
    Under the Judicature Act (The Annual Practice, 1937) O. 19, r. 15
    and N.Y.C.P.A. (1937) Sec. 242, with "surprise" omitted in this
    rule.
      Note to Subdivision (d). The first sentence is similar to
    [former] Equity Rule 30 (Answer - Contents - Counterclaim). For the
    second sentence see [former] Equity Rule 31 (Reply - When Required
    - When Cause at Issue). This is similar to English Rules Under the
    Judicature Act (The Annual Practice, 1937) O. 19, r.r. 13, 18; and
    to the practice in the States.
      Note to Subdivision (e). This rule is an elaboration upon
    [former] Equity Rule 30 (Answer - Contents - Counterclaim), plus a
    statement of the actual practice under some codes. Compare also
    [former] Equity Rule 18 (Pleadings - Technical Forms Abrogated).
    See Clark, Code Pleading (1928), pp. 171-4, 432-5; Hankin,
    Alternative and Hypothetical Pleading (1924), 33 Yale L.J. 365.
      Note to Subdivision (f). A provision of like import is of
    frequent occurrence in the codes. Ill.Rev.Stat. (1937) ch. 110,
    Sec. 157(3); 2 Minn.Stat. (Mason, 1927) Sec. 9266; N.Y.C.P.A.
    (1937) Sec. 275; 2 N.D.Comp.Laws Ann. (1913) Sec. 7458.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      The change here is consistent with the broad purposes of
    unification.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 9                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 9. Pleading Special Matters

-STATUTE-
      (a) Capacity. It is not necessary to aver the capacity of a party
    to sue or be sued or the authority of a party to sue or be sued in
    a representative capacity or the legal existence of an organized
    association of persons that is made a party, except to the extent
    required to show the jurisdiction of the court. When a party
    desires to raise an issue as to the legal existence of any party or
    the capacity of any party to sue or be sued or the authority of a
    party to sue or be sued in a representative capacity, the party
    desiring to raise the issue shall do so by specific negative
    averment, which shall include such supporting particulars as are
    peculiarly within the pleader's knowledge.
      (b) Fraud, Mistake, Condition of the Mind. In all averments of
    fraud or mistake, the circumstances constituting fraud or mistake
    shall be stated with particularity. Malice, intent, knowledge, and
    other condition of mind of a person may be averred generally.
      (c) Conditions Precedent. In pleading the performance or
    occurrence of conditions precedent, it is sufficient to aver
    generally that all conditions precedent have been performed or have
    occurred. A denial of performance or occurrence shall be made
    specifically and with particularity.
      (d) Official Document or Act. In pleading an official document or
    official act it is sufficient to aver that the document was issued
    or the act done in compliance with law.
      (e) Judgment. In pleading a judgment or decision of a domestic or
    foreign court, judicial or quasi-judicial tribunal, or of a board
    or officer, it is sufficient to aver the judgment or decision
    without setting forth matter showing jurisdiction to render it.
      (f) Time and Place. For the purpose of testing the sufficiency of
    a pleading, averments of time and place are material and shall be
    considered like all other averments of material matter.
      (g) Special Damage. When items of special damage are claimed,
    they shall be specifically stated.
      (h) Admiralty and Maritime Claims. A pleading or count setting
    forth a claim for relief within the admiralty and maritime
    jurisdiction that is also within the jurisdiction of the district
    court on some other ground may contain a statement identifying the
    claim as an admiralty or maritime claim for the purposes of Rules
    14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty
    and Maritime Claims. If the claim is cognizable only in admiralty,
    it is an admiralty or maritime claim for those purposes whether so
    identified or not. The amendment of a pleading to add or withdraw
    an identifying statement is governed by the principles of Rule 15.
    A case that includes an admiralty or maritime claim within this
    subdivision is an admiralty case within 28 U.S.C. Sec. 1292(a)(3).

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
    July 1, 1968; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). Compare [former] Equity Rule 25 (Bill of
    Complaint - Contents) requiring disability to be stated; Utah
    Rev.Stat.Ann. (1933) Sec. 104-13-15, enumerating a number of
    situations where a general averment of capacity is sufficient. For
    provisions governing averment of incorporation, see 2 Minn.Stat.
    (Mason, 1927) Sec. 9271; N.Y.R.C.P. (1937) Rule 93; 2 N.D.Comp.Laws
    Ann. (1913) Sec. 7981 et seq.
      Note to Subdivision (b). See English Rules Under the Judicature
    Act (The Annual Practice, 1937) O. 19, r. 22.
      Note to Subdivision (c). The codes generally have this or a
    similar provision. See English Rules Under the Judicature Act (The
    Annual Practice, 1937) O. 19, r. 14; 2 Minn.Stat. (Mason, 1927)
    Sec. 9273; N.Y.R.C.P. (1937) Rule 92; 2 N.D.Comp.Laws Ann. (1913)
    Sec. 7461; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 288.
      Note to Subdivision (e). The rule expands the usual code
    provisions on pleading a judgment by including judgments or
    decisions of administrative tribunals and foreign courts. Compare
    Ark.Civ.Code (Crawford, 1934) Sec. 141; 2 Minn.Stat. (Mason, 1927)
    Sec. 9269; N.Y.R.C.P. (1937) Rule 95; 2 Wash.Rev.Stat.Ann.
    (Remington, 1932) Sec. 287.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Certain distinctive features of the admiralty practice must be
    preserved for what are now suits in admiralty. This raises the
    question: After unification, when a single form of action is
    established, how will the counterpart of the present suit in
    admiralty be identifiable? In part the question is easily answered.
    Some claims for relief can only be suits in admiralty, either
    because the admiralty jurisdiction is exclusive or because no
    nonmaritime ground of federal jurisdiction exists. Many claims,
    however, are cognizable by the district courts whether asserted in
    admiralty or in a civil action, assuming the existence of a
    nonmaritime ground of jurisdiction. Thus at present the pleader has
    power to determine procedural consequences by the way in which he
    exercises the classic privilege given by the saving-to-suitors
    clause (28 U.S.C. Sec. 1333) or by equivalent statutory provisions.
    For example, a longshoreman's claim for personal injuries suffered
    by reason of the unseaworthiness of a vessel may be asserted in a
    suit in admiralty or, if diversity of citizenship exists, in a
    civil action. One of the important procedural consequences is that
    in the civil action either party may demand a jury trial, while in
    the suit in admiralty there is no right to jury trial except as
    provided by statute.
      It is no part of the purpose of unification to inject a right to
    jury trial into those admiralty cases in which that right is not
    provided by statute. Similarly as will be more specifically noted
    below, there is no disposition to change the present law as to
    interlocutory appeals in admiralty, or as to the venue of suits in
    admiralty; and, of course, there is no disposition to inject into
    the civil practice as it now is the distinctively maritime remedies
    (maritime attachment and garnishment, actions in rem, possessory,
    petitory and partition actions and limitation of liability). The
    unified rules must therefore provide some device for preserving the
    present power of the pleader to determine whether these
    historically maritime procedures shall be applicable to his claim
    or not; the pleader must be afforded some means of designating his
    claim as the counterpart of the present suit in admiralty, where
    its character as such is not clear.
      The problem is different from the similar one concerning the
    identification of claims that were formerly suits in equity. While
    that problem is not free from complexities, it is broadly true that
    the modern counterpart of the suit in equity is distinguishable
    from the former action at law by the character of the relief
    sought. This mode of identification is possible in only a limited
    category of admiralty cases. In large numbers of cases the relief
    sought in admiralty is simple money damages, indistinguishable from
    the remedy afforded by the common law. This is true, for example,
    in the case of the longshoreman's action for personal injuries
    stated above. After unification has abolished the distinction
    between civil actions and suits in admiralty, the complaint in such
    an action would be almost completely ambiguous as to the pleader's
    intentions regarding the procedure invoked. The allegation of
    diversity of citizenship might be regarded as a clue indicating an
    intention to proceed as at present under the saving-to-suitors
    clause; but this, too, would be ambiguous if there were also
    reference to the admiralty jurisdiction, and the pleader ought not
    be required to forego mention of all available jurisdictional
    grounds.
      Other methods of solving the problem were carefully explored, but
    the Advisory Committee concluded that the preferable solution is to
    allow the pleader who now has power to determine procedural
    consequences by filing a suit in admiralty to exercise that power
    under unification, for the limited instances in which procedural
    differences will remain, by a simple statement in his pleading to
    the effect that the claim is an admiralty or maritime claim.
      The choice made by the pleader in identifying or in failing to
    identify his claim as an admiralty or maritime claim is not an
    irrevocable election. The rule provides that the amendment of a
    pleading to add or withdraw an identifying statement is subject to
    the principles of Rule 15.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT       
      The amendment eliminates the reference to Rule 73 which is to be
    abrogated and transfers to Rule 9(h) the substance of Subsection
    (h) of Rule 73 which preserved the right to an interlocutory appeal
    in admiralty cases which is provided by 28 U.S.C. Sec. 1292(a)(3).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      The reference to Rule 26(a) is deleted, in light of the transfer
    of that subdivision to Rule 30(a) and the elimination of the de
    bene esse procedure therefrom. See the Advisory Committee's note to
    Rule 30(a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      Section 1292(a)(3) of the Judicial Code provides for appeal from
    "[i]nterlocutory decrees of * * * district courts * * * determining
    the rights and liabilities of the parties to admiralty cases in
    which appeals from final decrees are allowed."
      Rule 9(h) was added in 1966 with the unification of civil and
    admiralty procedure. Civil Rule 73(h) was amended at the same time
    to provide that the Sec. 1292(a)(3) reference "to admiralty cases
    shall be construed to mean admiralty and maritime claims within the
    meaning of Rule 9(h)." This provision was transferred to Rule 9(h)
    when the Appellate Rules were adopted.
      A single case can include both admiralty or maritime claims and
    nonadmiralty claims or parties. This combination reveals an
    ambiguity in the statement in present Rule 9(h) that an admiralty
    "claim" is an admiralty "case." An order "determining the rights
    and liabilities of the parties" within the meaning of Sec.
    1292(a)(3) may resolve only a nonadmiralty claim, or may
    simultaneously resolve interdependent admiralty and nonadmiralty
    claims. Can appeal be taken as to the nonadmiralty matter, because
    it is part of a case that includes an admiralty claim, or is appeal
    limited to the admiralty claim?
      The courts of appeals have not achieved full uniformity in
    applying the Sec. 1292(a)(3) requirement that an order "determin[e]
    the rights and liabilities of the parties." It is common to assert
    that the statute should be construed narrowly, under the general
    policy that exceptions to the final judgment rule should be
    construed narrowly. This policy would suggest that the ambiguity
    should be resolved by limiting the interlocutory appeal right to
    orders that determine the rights and liabilities of the parties to
    an admiralty claim.
      A broader view is chosen by this amendment for two reasons. The
    statute applies to admiralty "cases," and may itself provide for
    appeal from an order that disposes of a nonadmiralty claim that is
    joined in a single case with an admiralty claim. Although a rule of
    court may help to clarify and implement a statutory grant of
    jurisdiction, the line is not always clear between permissible
    implementation and impermissible withdrawal of jurisdiction. In
    addition, so long as an order truly disposes of the rights and
    liabilities of the parties within the meaning of Sec. 1292(a)(3),
    it may prove important to permit appeal as to the nonadmiralty
    claim. Disposition of the nonadmiralty claim, for example, may make
    it unnecessary to consider the admiralty claim and have the same
    effect on the case and parties as disposition of the admiralty
    claim. Or the admiralty and nonadmiralty claims may be
    interdependent. An illustration is provided by Roco Carriers, Ltd.
    v. M/V Nurnberg Express, 899 F.2d 1292 (2d Cir. 1990). Claims for
    losses of ocean shipments were made against two defendants, one
    subject to admiralty jurisdiction and the other not. Summary
    judgment was granted in favor of the admiralty defendant and
    against the nonadmiralty defendant. The nonadmiralty defendant's
    appeal was accepted, with the explanation that the determination of
    its liability was "integrally linked with the determination of
    non-liability" of the admiralty defendant, and that "section
    1292(a)(3) is not limited to admiralty claims; instead, it refers
    to admiralty cases." 899 F.2d at 1297. The advantages of permitting
    appeal by the nonadmiralty defendant would be particularly clear if
    the plaintiff had appealed the summary judgment in favor of the
    admiralty defendant.
      It must be emphasized that this amendment does not rest on any
    particular assumptions as to the meaning of the Sec. 1292(a)(3)
    provision that limits interlocutory appeal to orders that determine
    the rights and liabilities of the parties. It simply reflects the
    conclusion that so long as the case involves an admiralty claim and
    an order otherwise meets statutory requirements, the opportunity to
    appeal should not turn on the circumstance that the order does - or
    does not - dispose of an admiralty claim. No attempt is made to
    invoke the authority conferred by 28 U.S.C. Sec. 1292(e) to provide
    by rule for appeal of an interlocutory decision that is not
    otherwise provided for by other subsections of Sec. 1292.
      GAP Report on Rule 9(h). No changes have been made in the
    published proposal.

-End-



-CITE-
    28 USC APPENDIX Rule 10                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 10. Form of Pleadings

-STATUTE-
      (a) Caption; Names of Parties. Every pleading shall contain a
    caption setting forth the name of the court, the title of the
    action, the file number, and a designation as in Rule 7(a). In the
    complaint the title of the action shall include the names of all
    the parties, but in other pleadings it is sufficient to state the
    name of the first party on each side with an appropriate indication
    of other parties.
      (b) Paragraphs; Separate Statements. All averments of claim or
    defense shall be made in numbered paragraphs, the contents of each
    of which shall be limited as far as practicable to a statement of a
    single set of circumstances; and a paragraph may be referred to by
    number in all succeeding pleadings. Each claim founded upon a
    separate transaction or occurrence and each defense other than
    denials shall be stated in a separate count or defense whenever a
    separation facilitates the clear presentation of the matters set
    forth.
      (c) Adoption by Reference; Exhibits. Statements in a pleading may
    be adopted by reference in a different part of the same pleading or
    in another pleading or in any motion. A copy of any written
    instrument which is an exhibit to a pleading is a part thereof for
    all purposes.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      The first sentence is derived in part from the opening statement
    of [former] Equity Rule 25 (Bill of Complaint - Contents). The
    remainder of the rule is an expansion in conformity with usual
    state provisions. For numbered paragraphs and separate statements,
    see Conn.Gen.Stat. (1930) Sec. 5513; Ill.Rev.Stat. (1937) ch. 110,
    Sec. 157 (2); N.Y.R.C.P. (1937) Rule 90. For incorporation by
    reference, see N.Y.R.C.P. (1937) Rule 90. For written instruments
    as exhibits, see Ill.Rev.Stat. (1937) ch. 110, Sec. 160.

-End-



-CITE-
    28 USC APPENDIX Rule 11                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 11. Signing of Pleadings, Motions, and Other Papers;
      Representations to Court; Sanctions

-STATUTE-
      (a) Signature. Every pleading, written motion, and other paper
    shall be signed by at least one attorney of record in the
    attorney's individual name, or, if the party is not represented by
    an attorney, shall be signed by the party. Each paper shall state
    the signer's address and telephone number, if any. Except when
    otherwise specifically provided by rule or statute, pleadings need
    not be verified or accompanied by affidavit. An unsigned paper
    shall be stricken unless omission of the signature is corrected
    promptly after being called to the attention of the attorney or
    party.
      (b) Representations to Court. By presenting to the court (whether
    by signing, filing, submitting, or later advocating) a pleading,
    written motion, or other paper, an attorney or unrepresented party
    is certifying that to the best of the person's knowledge,
    information, and belief, formed after an inquiry reasonable under
    the circumstances, - 
        (1) it is not being presented for any improper purpose, such as
      to harass or to cause unnecessary delay or needless increase in
      the cost of litigation;
        (2) the claims, defenses, and other legal contentions therein
      are warranted by existing law or by a nonfrivolous argument for
      the extension, modification, or reversal of existing law or the
      establishment of new law;
        (3) the allegations and other factual contentions have
      evidentiary support or, if specifically so identified, are likely
      to have evidentiary support after a reasonable opportunity for
      further investigation or discovery; and
        (4) the denials of factual contentions are warranted on the
      evidence or, if specifically so identified, are reasonably based
      on a lack of information or belief.

      (c) Sanctions. If, after notice and a reasonable opportunity to
    respond, the court determines that subdivision (b) has been
    violated, the court may, subject to the conditions stated below,
    impose an appropriate sanction upon the attorneys, law firms, or
    parties that have violated subdivision (b) or are responsible for
    the violation.
        (1) How Initiated.
          (A) By Motion. A motion for sanctions under this rule shall
        be made separately from other motions or requests and shall
        describe the specific conduct alleged to violate subdivision
        (b). It shall be served as provided in Rule 5, but shall not be
        filed with or presented to the court unless, within 21 days
        after service of the motion (or such other period as the court
        may prescribe), the challenged paper, claim, defense,
        contention, allegation, or denial is not withdrawn or
        appropriately corrected. If warranted, the court may award to
        the party prevailing on the motion the reasonable expenses and
        attorney's fees incurred in presenting or opposing the motion.
        Absent exceptional circumstances, a law firm shall be held
        jointly responsible for violations committed by its partners,
        associates, and employees.
          (B) On Court's Initiative. On its own initiative, the court
        may enter an order describing the specific conduct that appears
        to violate subdivision (b) and directing an attorney, law firm,
        or party to show cause why it has not violated subdivision (b)
        with respect thereto.

        (2) Nature of Sanction; Limitations. A sanction imposed for
      violation of this rule shall be limited to what is sufficient to
      deter repetition of such conduct or comparable conduct by others
      similarly situated. Subject to the limitations in subparagraphs
      (A) and (B), the sanction may consist of, or include, directives
      of a nonmonetary nature, an order to pay a penalty into court,
      or, if imposed on motion and warranted for effective deterrence,
      an order directing payment to the movant of some or all of the
      reasonable attorneys' fees and other expenses incurred as a
      direct result of the violation.
          (A) Monetary sanctions may not be awarded against a
        represented party for a violation of subdivision (b)(2).
          (B) Monetary sanctions may not be awarded on the court's
        initiative unless the court issues its order to show cause
        before a voluntary dismissal or settlement of the claims made
        by or against the party which is, or whose attorneys are, to be
        sanctioned.

        (3) Order. When imposing sanctions, the court shall describe
      the conduct determined to constitute a violation of this rule and
      explain the basis for the sanction imposed.

      (d) Inapplicability to Discovery. Subdivisions (a) through (c) of
    this rule do not apply to disclosures and discovery requests,
    responses, objections, and motions that are subject to the
    provisions of Rules 26 through 37.

-SOURCE-
    (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      This is substantially the content of [former] Equity Rules 24
    (Signature of Counsel) and 21 (Scandal and Impertinence)
    consolidated and unified. Compare [former] Equity Rule 36 (Officers
    Before Whom Pleadings Verified). Compare to similar purposes,
    English Rules Under the Judicature Act (The Annual Practice, 1937)
    O. 19, r. 4, and Great Australian Gold Mining Co. v. Martin, L. R.,
    5 Ch.Div. 1, 10 (1877). Subscription of pleadings is required in
    many codes. 2 Minn.Stat. (Mason, 1927) Sec. 9265; N.Y.R.C.P. (1937)
    Rule 91; 2 N.D.Comp.Laws Ann. (1913) Sec. 7455.
      This rule expressly continues any statute which requires a
    pleading to be verified or accompanied by an affidavit, such as:

    U.S.C., Title 28:

     Sec. 381 [former] (Preliminary injunctions and temporary
          restraining orders)
     Sec. 762 [now 1402] (Suit against the United States).

      U.S.C., Title 28, Sec. 829 [now 1927] (Costs; attorney liable
    for, when) is unaffected by this rule.
      For complaints which must be verified under these rules, see
    Rules 23(b) (Secondary Action by Shareholders) and 65
    (Injunctions).
      For abolition of the rule in equity that the averments of an
    answer under oath must be overcome by the testimony of two
    witnesses or of one witness sustained by corroborating
    circumstances, see Pa.Stat.Ann. (Purdon, 1931) see 12 P.S.Pa., Sec.
    1222; for the rule in equity itself, see Greenfield v. Blumenthal,
    69 F.2d 294 (C.C.A. 3d, 1934).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      Since its original promulgation, Rule 11 has provided for the
    striking of pleadings and the imposition of disciplinary sanctions
    to check abuses in the signing of pleadings. Its provisions have
    always applied to motions and other papers by virtue of
    incorporation by reference in Rule 7(b)(2). The amendment and the
    addition of Rule 7(b)(3) expressly confirms this applicability.
      Experience shows that in practice Rule 11 has not been effective
    in deterring abuses. See 6 Wright & Miller, Federal Practice and
    Procedure: Civil Sec. 1334 (1971). There has been considerable
    confusion as to (1) the circumstances that should trigger striking
    a pleading or motion or taking disciplinary action, (2) the
    standard of conduct expected of attorneys who sign pleadings and
    motions, and (3) the range of available and appropriate sanctions.
    See Rodes, Ripple & Mooney, Sanctions Imposable for Violations of
    the Federal Rules of Civil Procedure 64-65, Federal Judicial Center
    (1981). The new language is intended to reduce the reluctance of
    courts to impose sanctions, see Moore, Federal Practice &#182;
    7.05, at 1547, by emphasizing the responsibilities of the attorney
    and reenforcing those obligations by the imposition of sanctions.
      The amended rule attempts to deal with the problem by building
    upon and expanding the equitable doctrine permitting the court to
    award expenses, including attorney's fees, to a litigant whose
    opponent acts in bad faith in instituting or conducting litigation.
    See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, (1980);
    Hall v. Cole, 412 U.S. 1, 5 (1973). Greater attention by the
    district courts to pleading and motion abuses and the imposition of
    sanctions when appropriate, should discourage dilatory or abusive
    tactics and help to streamline the litigation process by lessening
    frivolous claims or defenses.
      The expanded nature of the lawyer's certification in the fifth
    sentence of amended Rule 11 recognizes that the litigation process
    may be abused for purposes other than delay. See, e.g., Browning
    Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078 (2d Cir.
    1977).
      The words "good ground to support" the pleading in the original
    rule were interpreted to have both factual and legal elements. See,
    e.g., Heart Disease Research Foundation v. General Motors Corp., 15
    Fed.R.Serv. 2d 1517, 1519 (S.D.N.Y. 1972). They have been replaced
    by a standard of conduct that is more focused.
      The new language stresses the need for some prefiling inquiry
    into both the facts and the law to satisfy the affirmative duty
    imposed by the rule. The standard is one of reasonableness under
    the circumstances. See Kinee v. Abraham Lincoln Fed. Sav. & Loan
    Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). This standard is more
    stringent than the original good-faith formula and thus it is
    expected that a greater range of circumstances will trigger its
    violation. See Nemeroff v. Abelson, 620 F.2d 339 (2d Cir. 1980).
      The rule is not intended to chill an attorney's enthusiasm or
    creativity in pursuing factual or legal theories. The court is
    expected to avoid using the wisdom of hindsight and should test the
    signer's conduct by inquiring what was reasonable to believe at the
    time the pleading, motion, or other paper was submitted. Thus, what
    constitutes a reasonable inquiry may depend on such factors as how
    much time for investigation was available to the signer; whether he
    had to rely on a client for information as to the facts underlying
    the pleading, motion, or other paper; whether the pleading, motion,
    or other paper was based on a plausible view of the law; or whether
    he depended on forwarding counsel or another member of the bar.
      The rule does not require a party or an attorney to disclose
    privileged communications or work product in order to show that the
    signing of the pleading, motion, or other paper is substantially
    justified. The provisions of Rule 26(c), including appropriate
    orders after in camera inspection by the court, remain available to
    protect a party claiming privilege or work product protection.
      Amended Rule 11 continues to apply to anyone who signs a
    pleading, motion, or other paper. Although the standard is the same
    for unrepresented parties, who are obliged themselves to sign the
    pleadings, the court has sufficient discretion to take account of
    the special circumstances that often arise in pro se situations.
    See Haines v. Kerner 404 U.S. 519 (1972).
      The provision in the original rule for striking pleadings and
    motions as sham and false has been deleted. The passage has rarely
    been utilized, and decisions thereunder have tended to confuse the
    issue of attorney honesty with the merits of the action. See
    generally Risinger, Honesty in Pleading and its Enforcement: Some
    "Striking" Problems with Fed. R. Civ. P. 11, 61 Minn.L.Rev. 1
    (1976). Motions under this provision generally present issues
    better dealt with under Rules 8, 12, or 56. See Murchison v. Kirby,
    27 F.R.D. 14 (S.D.N.Y. 1961); 5 Wright & Miller, Federal Practice
    and Procedure: Civil Sec. 1334 (1969).
      The former reference to the inclusion of scandalous or indecent
    matter, which is itself strong indication that an improper purpose
    underlies the pleading, motion, or other paper, also has been
    deleted as unnecessary. Such matter may be stricken under Rule
    12(f) as well as dealt with under the more general language of
    amended Rule 11.
      The text of the amended rule seeks to dispel apprehensions that
    efforts to obtain enforcement will be fruitless by insuring that
    the rule will be applied when properly invoked. The word
    "sanctions" in the caption, for example, stresses a deterrent
    orientation in dealing with improper pleadings, motions or other
    papers. This corresponds to the approach in imposing sanctions for
    discovery abuses. See National Hockey League v. Metropolitan Hockey
    Club, 427 U.S. 639 (1976) (per curiam). And the words "shall
    impose" in the last sentence focus the court's attention on the
    need to impose sanctions for pleading and motion abuses. The court,
    however, retains the necessary flexibility to deal appropriately
    with violations of the rule. It has discretion to tailor sanctions
    to the particular facts of the case, with which it should be well
    acquainted.
      The reference in the former text to wilfullness as a prerequisite
    to disciplinary action has been deleted. However, in considering
    the nature and severity of the sanctions to be imposed, the court
    should take account of the state of the attorney's or party's
    actual or presumed knowledge when the pleading or other paper was
    signed. Thus, for example, when a party is not represented by
    counsel, the absence of legal advice is an appropriate factor to be
    considered.
      Courts currently appear to believe they may impose sanctions on
    their own motion. See North American Trading Corp. v. Zale Corp.,
    73 F.R.D. 293 (S.D.N.Y. 1979). Authority to do so has been made
    explicit in order to overcome the traditional reluctance of courts
    to intervene unless requested by one of the parties. The detection
    and punishment of a violation of the signing requirement,
    encouraged by the amended rule, is part of the court's
    responsibility for securing the system's effective operation.
      If the duty imposed by the rule is violated, the court should
    have the discretion to impose sanctions on either the attorney, the
    party the signing attorney represents, or both, or on an
    unrepresented party who signed the pleading, and the new rule so
    provides. Although Rule 11 has been silent on the point, courts
    have claimed the power to impose sanctions on an attorney
    personally, either by imposing costs or employing the contempt
    technique. See 5 Wright & Miller, Federal Practice and Procedure:
    Civil Sec. 1334 (1969); 2A Moore, Federal Practice &#182; 11.02, at
    2104 n.8. This power has been used infrequently. The amended rule
    should eliminate any doubt as to the propriety of assessing
    sanctions against the attorney.
      Even though it is the attorney whose signature violates the rule,
    it may be appropriate under the circumstances of the case to impose
    a sanction on the client. See Browning Debenture Holders' Committee
    v. DASA Corp., supra. This modification brings Rule 11 in line with
    practice under Rule 37, which allows sanctions for abuses during
    discovery to be imposed upon the party, the attorney, or both.
      A party seeking sanctions should give notice to the court and the
    offending party promptly upon discovering a basis for doing so. The
    time when sanctions are to be imposed rests in the discretion of
    the trial judge. However, it is anticipated that in the case of
    pleadings the sanctions issue under Rule 11 normally will be
    determined at the end of the litigation, and in the case of motions
    at the time when the motion is decided or shortly thereafter. The
    procedure obviously must comport with due process requirements. The
    particular format to be followed should depend on the circumstances
    of the situation and the severity of the sanction under
    consideration. In many situations the judge's participation in the
    proceedings provides him with full knowledge of the relevant facts
    and little further inquiry will be necessary.
      To assure that the efficiencies achieved through more effective
    operation of the pleading regimen will not be offset by the cost of
    satellite litigation over the imposition of sanctions, the court
    must to the extent possible limit the scope of sanction proceedings
    to the record. Thus, discovery should be conducted only by leave of
    the court, and then only in extraordinary circumstances.
      Although the encompassing reference to "other papers" in new Rule
    11 literally includes discovery papers, the certification
    requirement in that context is governed by proposed new Rule 26(g).
    Discovery motions, however, fall within the ambit of Rule 11.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Purpose of revision. This revision is intended to remedy problems
    that have arisen in the interpretation and application of the 1983
    revision of the rule. For empirical examination of experience under
    the 1983 rule, see, e.g., New York State Bar Committee on Federal
    Courts, Sanctions and Attorneys' Fees (1987); T. Willging, The Rule
    11 Sanctioning Process (1989); American Judicature Society, Report
    of the Third Circuit Task Force on Federal Rule of Civil Procedure
    11 (S. Burbank ed., 1989); E. Wiggins, T. Willging, and D.
    Stienstra, Report on Rule 11 (Federal Judicial Center 1991). For
    book-length analyses of the case law, see G. Joseph, Sanctions: The
    Federal Law of Litigation Abuse (1989); J. Solovy, The Federal Law
    of Sanctions (1991); G. Vairo, Rule 11 Sanctions: Case Law
    Perspectives and Preventive Measures (1991).
      The rule retains the principle that attorneys and pro se
    litigants have an obligation to the court to refrain from conduct
    that frustrates the aims of Rule 1. The revision broadens the scope
    of this obligation, but places greater constraints on the
    imposition of sanctions and should reduce the number of motions for
    sanctions presented to the court. New subdivision (d) removes from
    the ambit of this rule all discovery requests, responses,
    objections, and motions subject to the provisions of Rule 26
    through 37.
      Subdivision (a). Retained in this subdivision are the provisions
    requiring signatures on pleadings, written motions, and other
    papers. Unsigned papers are to be received by the Clerk, but then
    are to be stricken if the omission of the signature is not
    corrected promptly after being called to the attention of the
    attorney or pro se litigant. Correction can be made by signing the
    paper on file or by submitting a duplicate that contains the
    signature. A court may require by local rule that papers contain
    additional identifying information regarding the parties or
    attorneys, such as telephone numbers to facilitate facsimile
    transmissions, though, as for omission of a signature, the paper
    should not be rejected for failure to provide such information.
      The sentence in the former rule relating to the effect of answers
    under oath is no longer needed and has been eliminated. The
    provision in the former rule that signing a paper constitutes a
    certificate that it has been read by the signer also has been
    eliminated as unnecessary. The obligations imposed under
    subdivision (b) obviously require that a pleading, written motion,
    or other paper be read before it is filed or submitted to the
    court.
      Subdivisions (b) and (c). These subdivisions restate the
    provisions requiring attorneys and pro se litigants to conduct a
    reasonable inquiry into the law and facts before signing pleadings,
    written motions, and other documents, and prescribing sanctions for
    violation of these obligations. The revision in part expands the
    responsibilities of litigants to the court, while providing greater
    constraints and flexibility in dealing with infractions of the
    rule. The rule continues to require litigants to "stop-and-think"
    before initially making legal or factual contentions. It also,
    however, emphasizes the duty of candor by subjecting litigants to
    potential sanctions for insisting upon a position after it is no
    longer tenable and by generally providing protection against
    sanctions if they withdraw or correct contentions after a potential
    violation is called to their attention.
      The rule applies only to assertions contained in papers filed
    with or submitted to the court. It does not cover matters arising
    for the first time during oral presentations to the court, when
    counsel may make statements that would not have been made if there
    had been more time for study and reflection. However, a litigant's
    obligations with respect to the contents of these papers are not
    measured solely as of the time they are filed with or submitted to
    the court, but include reaffirming to the court and advocating
    positions contained in those pleadings and motions after learning
    that they cease to have any merit. For example, an attorney who
    during a pretrial conference insists on a claim or defense should
    be viewed as "presenting to the court" that contention and would be
    subject to the obligations of subdivision (b) measured as of that
    time. Similarly, if after a notice of removal is filed, a party
    urges in federal court the allegations of a pleading filed in state
    court (whether as claims, defenses, or in disputes regarding
    removal or remand), it would be viewed as "presenting" - and hence
    certifying to the district court under Rule 11 - those allegations.
      The certification with respect to allegations and other factual
    contentions is revised in recognition that sometimes a litigant may
    have good reason to believe that a fact is true or false but may
    need discovery, formal or informal, from opposing parties or third
    persons to gather and confirm the evidentiary basis for the
    allegation. Tolerance of factual contentions in initial pleadings
    by plaintiffs or defendants when specifically identified as made on
    information and belief does not relieve litigants from the
    obligation to conduct an appropriate investigation into the facts
    that is reasonable under the circumstances; it is not a license to
    join parties, make claims, or present defenses without any factual
    basis or justification. Moreover, if evidentiary support is not
    obtained after a reasonable opportunity for further investigation
    or discovery, the party has a duty under the rule not to persist
    with that contention. Subdivision (b) does not require a formal
    amendment to pleadings for which evidentiary support is not
    obtained, but rather calls upon a litigant not thereafter to
    advocate such claims or defenses.
      The certification is that there is (or likely will be)
    "evidentiary support" for the allegation, not that the party will
    prevail with respect to its contention regarding the fact. That
    summary judgment is rendered against a party does not necessarily
    mean, for purposes of this certification, that it had no
    evidentiary support for its position. On the other hand, if a party
    has evidence with respect to a contention that would suffice to
    defeat a motion for summary judgment based thereon, it would have
    sufficient "evidentiary support" for purposes of Rule 11.
      Denials of factual contentions involve somewhat different
    considerations. Often, of course, a denial is premised upon the
    existence of evidence contradicting the alleged fact. At other
    times a denial is permissible because, after an appropriate
    investigation, a party has no information concerning the matter or,
    indeed, has a reasonable basis for doubting the credibility of the
    only evidence relevant to the matter. A party should not deny an
    allegation it knows to be true; but it is not required, simply
    because it lacks contradictory evidence, to admit an allegation
    that it believes is not true.
      The changes in subdivisions (b)(3) and (b)(4) will serve to
    equalize the burden of the rule upon plaintiffs and defendants, who
    under Rule 8(b) are in effect allowed to deny allegations by
    stating that from their initial investigation they lack sufficient
    information to form a belief as to the truth of the allegation. If,
    after further investigation or discovery, a denial is no longer
    warranted, the defendant should not continue to insist on that
    denial. While sometimes helpful, formal amendment of the pleadings
    to withdraw an allegation or denial is not required by subdivision
    (b).
      Arguments for extensions, modifications, or reversals of existing
    law or for creation of new law do not violate subdivision (b)(2)
    provided they are "nonfrivolous." This establishes an objective
    standard, intended to eliminate any "empty-head pure-heart"
    justification for patently frivolous arguments. However, the extent
    to which a litigant has researched the issues and found some
    support for its theories even in minority opinions, in law review
    articles, or through consultation with other attorneys should
    certainly be taken into account in determining whether paragraph
    (2) has been violated. Although arguments for a change of law are
    not required to be specifically so identified, a contention that is
    so identified should be viewed with greater tolerance under the
    rule.
      The court has available a variety of possible sanctions to impose
    for violations, such as striking the offending paper; issuing an
    admonition, reprimand, or censure; requiring participation in
    seminars or other educational programs; ordering a fine payable to
    the court; referring the matter to disciplinary authorities (or, in
    the case of government attorneys, to the Attorney General,
    Inspector General, or agency head), etc. See Manual for Complex
    Litigation, Second, Sec. 42.3. The rule does not attempt to
    enumerate the factors a court should consider in deciding whether
    to impose a sanction or what sanctions would be appropriate in the
    circumstances; but, for emphasis, it does specifically note that a
    sanction may be nonmonetary as well as monetary. Whether the
    improper conduct was willful, or negligent; whether it was part of
    a pattern of activity, or an isolated event; whether it infected
    the entire pleading, or only one particular count or defense;
    whether the person has engaged in similar conduct in other
    litigation; whether it was intended to injure; what effect it had
    on the litigation process in time or expense; whether the
    responsible person is trained in the law; what amount, given the
    financial resources of the responsible person, is needed to deter
    that person from repetition in the same case; what amount is needed
    to deter similar activity by other litigants: all of these may in a
    particular case be proper considerations. The court has significant
    discretion in determining what sanctions, if any, should be imposed
    for a violation, subject to the principle that the sanctions should
    not be more severe than reasonably necessary to deter repetition of
    the conduct by the offending person or comparable conduct by
    similarly situated persons.
      Since the purpose of Rule 11 sanctions is to deter rather than to
    compensate, the rule provides that, if a monetary sanction is
    imposed, it should ordinarily be paid into court as a penalty.
    However, under unusual circumstances, particularly for
    [subdivision] (b)(1) violations, deterrence may be ineffective
    unless the sanction not only requires the person violating the rule
    to make a monetary payment, but also directs that some or all of
    this payment be made to those injured by the violation.
    Accordingly, the rule authorizes the court, if requested in a
    motion and if so warranted, to award attorney's fees to another
    party. Any such award to another party, however, should not exceed
    the expenses and attorneys' fees for the services directly and
    unavoidably caused by the violation of the certification
    requirement. If, for example, a wholly unsupportable count were
    included in a multi-count complaint or counterclaim for the purpose
    of needlessly increasing the cost of litigation to an impecunious
    adversary, any award of expenses should be limited to those
    directly caused by inclusion of the improper count, and not those
    resulting from the filing of the complaint or answer itself. The
    award should not provide compensation for services that could have
    been avoided by an earlier disclosure of evidence or an earlier
    challenge to the groundless claims or defenses. Moreover, partial
    reimbursement of fees may constitute a sufficient deterrent with
    respect to violations by persons having modest financial resources.
    In cases brought under statutes providing for fees to be awarded to
    prevailing parties, the court should not employ cost-shifting under
    this rule in a manner that would be inconsistent with the standards
    that govern the statutory award of fees, such as stated in
    Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).
      The sanction should be imposed on the persons - whether
    attorneys, law firms, or parties - who have violated the rule or
    who may be determined to be responsible for the violation. The
    person signing, filing, submitting, or advocating a document has a
    nondelegable responsibility to the court, and in most situations is
    the person to be sanctioned for a violation. Absent exceptional
    circumstances, a law firm is to be held also responsible when, as a
    result of a motion under subdivision (c)(1)(A), one of its
    partners, associates, or employees is determined to have violated
    the rule. Since such a motion may be filed only if the offending
    paper is not withdrawn or corrected within 21 days after service of
    the motion, it is appropriate that the law firm ordinarily be
    viewed as jointly responsible under established principles of
    agency. This provision is designed to remove the restrictions of
    the former rule. Cf. Pavelic & LeFlore v. Marvel Entertainment
    Group, 493 U.S. 120 (1989) (1983 version of Rule 11 does not permit
    sanctions against law firm of attorney signing groundless
    complaint).
      The revision permits the court to consider whether other
    attorneys in the firm, co-counsel, other law firms, or the party
    itself should be held accountable for their part in causing a
    violation. When appropriate, the court can make an additional
    inquiry in order to determine whether the sanction should be
    imposed on such persons, firms, or parties either in addition to
    or, in unusual circumstances, instead of the person actually making
    the presentation to the court. For example, such an inquiry may be
    appropriate in cases involving governmental agencies or other
    institutional parties that frequently impose substantial
    restrictions on the discretion of individual attorneys employed by
    it.
      Sanctions that involve monetary awards (such as a fine or an
    award of attorney's fees) may not be imposed on a represented party
    for causing a violation of subdivision (b)(2), involving frivolous
    contentions of law. Monetary responsibility for such violations is
    more properly placed solely on the party's attorneys. With this
    limitation, the rule should not be subject to attack under the
    Rules Enabling Act. See Willy v. Coastal Corp., __ U.S. __ (1992);
    Business Guides, Inc. v. Chromatic Communications Enter. Inc., __
    U.S. __ (1991). This restriction does not limit the court's power
    to impose sanctions or remedial orders that may have collateral
    financial consequences upon a party, such as dismissal of a claim,
    preclusion of a defense, or preparation of amended pleadings.
      Explicit provision is made for litigants to be provided notice of
    the alleged violation and an opportunity to respond before
    sanctions are imposed. Whether the matter should be decided solely
    on the basis of written submissions or should be scheduled for oral
    argument (or, indeed, for evidentiary presentation) will depend on
    the circumstances. If the court imposes a sanction, it must, unless
    waived, indicate its reasons in a written order or on the record;
    the court should not ordinarily have to explain its denial of a
    motion for sanctions. Whether a violation has occurred and what
    sanctions, if any, to impose for a violation are matters committed
    to the discretion of the trial court; accordingly, as under current
    law, the standard for appellate review of these decisions will be
    for abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496
    U.S. 384 (1990) (noting, however, that an abuse would be
    established if the court based its ruling on an erroneous view of
    the law or on a clearly erroneous assessment of the evidence).
      The revision leaves for resolution on a case-by-case basis,
    considering the particular circumstances involved, the question as
    to when a motion for violation of Rule 11 should be served and
    when, if filed, it should be decided. Ordinarily the motion should
    be served promptly after the inappropriate paper is filed, and, if
    delayed too long, may be viewed as untimely. In other
    circumstances, it should not be served until the other party has
    had a reasonable opportunity for discovery. Given the "safe harbor"
    provisions discussed below, a party cannot delay serving its Rule
    11 motion until conclusion of the case (or judicial rejection of
    the offending contention).
      Rule 11 motions should not be made or threatened for minor,
    inconsequential violations of the standards prescribed by
    subdivision (b). They should not be employed as a discovery device
    or to test the legal sufficiency or efficacy of allegations in the
    pleadings; other motions are available for those purposes. Nor
    should Rule 11 motions be prepared to emphasize the merits of a
    party's position, to exact an unjust settlement, to intimidate an
    adversary into withdrawing contentions that are fairly debatable,
    to increase the costs of litigation, to create a conflict of
    interest between attorney and client, or to seek disclosure of
    matters otherwise protected by the attorney-client privilege or the
    work-product doctrine. As under the prior rule, the court may defer
    its ruling (or its decision as to the identity of the persons to be
    sanctioned) until final resolution of the case in order to avoid
    immediate conflicts of interest and to reduce the disruption
    created if a disclosure of attorney-client communications is needed
    to determine whether a violation occurred or to identify the person
    responsible for the violation.
      The rule provides that requests for sanctions must be made as a
    separate motion, i.e., not simply included as an additional prayer
    for relief contained in another motion. The motion for sanctions is
    not, however, to be filed until at least 21 days (or such other
    period as the court may set) after being served. If, during this
    period, the alleged violation is corrected, as by withdrawing
    (whether formally or informally) some allegation or contention, the
    motion should not be filed with the court. These provisions are
    intended to provide a type of "safe harbor" against motions under
    Rule 11 in that a party will not be subject to sanctions on the
    basis of another party's motion unless, after receiving the motion,
    it refuses to withdraw that position or to acknowledge candidly
    that it does not currently have evidence to support a specified
    allegation. Under the former rule, parties were sometimes reluctant
    to abandon a questionable contention lest that be viewed as
    evidence of a violation of Rule 11; under the revision, the timely
    withdrawal of a contention will protect a party against a motion
    for sanctions.
      To stress the seriousness of a motion for sanctions and to define
    precisely the conduct claimed to violate the rule, the revision
    provides that the "safe harbor" period begins to run only upon
    service of the motion. In most cases, however, counsel should be
    expected to give informal notice to the other party, whether in
    person or by a telephone call or letter, of a potential violation
    before proceeding to prepare and serve a Rule 11 motion.
      As under former Rule 11, the filing of a motion for sanctions is
    itself subject to the requirements of the rule and can lead to
    sanctions. However, service of a cross motion under Rule 11 should
    rarely be needed since under the revision the court may award to
    the person who prevails on a motion under Rule 11 - whether the
    movant or the target of the motion - reasonable expenses, including
    attorney's fees, incurred in presenting or opposing the motion.
      The power of the court to act on its own initiative is retained,
    but with the condition that this be done through a show cause
    order. This procedure provides the person with notice and an
    opportunity to respond. The revision provides that a monetary
    sanction imposed after a court-initiated show cause order be
    limited to a penalty payable to the court and that it be imposed
    only if the show cause order is issued before any voluntary
    dismissal or an agreement of the parties to settle the claims made
    by or against the litigant. Parties settling a case should not be
    subsequently faced with an unexpected order from the court leading
    to monetary sanctions that might have affected their willingness to
    settle or voluntarily dismiss a case. Since show cause orders will
    ordinarily be issued only in situations that are akin to a contempt
    of court, the rule does not provide a "safe harbor" to a litigant
    for withdrawing a claim, defense, etc., after a show cause order
    has been issued on the court's own initiative. Such corrective
    action, however, should be taken into account in deciding what - if
    any - sanction to impose if, after consideration of the litigant's
    response, the court concludes that a violation has occurred.
      Subdivision (d). Rules 26(g) and 37 establish certification
    standards and sanctions that apply to discovery disclosures,
    requests, responses, objections, and motions. It is appropriate
    that Rules 26 through 37, which are specially designed for the
    discovery process, govern such documents and conduct rather than
    the more general provisions of Rule 11. Subdivision (d) has been
    added to accomplish this result.
      Rule 11 is not the exclusive source for control of improper
    presentations of claims, defenses, or contentions. It does not
    supplant statutes permitting awards of attorney's fees to
    prevailing parties or alter the principles governing such awards.
    It does not inhibit the court in punishing for contempt, in
    exercising its inherent powers, or in imposing sanctions, awarding
    expenses, or directing remedial action authorized under other rules
    or under 28 U.S.C. Sec. 1927. See Chambers v. NASCO, __ U.S. __
    (1991). Chambers cautions, however, against reliance upon inherent
    powers if appropriate sanctions can be imposed under provisions
    such as Rule 11, and the procedures specified in Rule 11 - notice,
    opportunity to respond, and findings - should ordinarily be
    employed when imposing a sanction under the court's inherent
    powers. Finally, it should be noted that Rule 11 does not preclude
    a party from initiating an independent action for malicious
    prosecution or abuse of process.

-End-



-CITE-
    28 USC APPENDIX Rule 12                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 12. Defenses and Objections - When and How Presented - By
      Pleading or Motion - Motion for Judgment on the Pleadings

-STATUTE-
      (a) When Presented.
        (1) Unless a different time is prescribed in a statute of the
      United States, a defendant shall serve an answer
          (A) within 20 days after being served with the summons and
        complaint, or
          (B) if service of the summons has been timely waived on
        request under Rule 4(d), within 60 days after the date when the
        request for waiver was sent, or within 90 days after that date
        if the defendant was addressed outside any judicial district of
        the United States.

        (2) A party served with a pleading stating a cross-claim
      against that party shall serve an answer thereto within 20 days
      after being served. The plaintiff shall serve a reply to a
      counterclaim in the answer within 20 days after service of the
      answer, or, if a reply is ordered by the court, within 20 days
      after service of the order, unless the order otherwise directs.
        (3)(A) The United States, an agency of the United States, or an
      officer or employee of the United States sued in an official
      capacity, shall serve an answer to the complaint or cross-claim -
      or a reply to a counterclaim - within 60 days after the United
      States attorney is served with the pleading asserting the claim.
        (B) An officer or employee of the United States sued in an
      individual capacity for acts or omissions occurring in connection
      with the performance of duties on behalf of the United States
      shall serve an answer to the complaint or cross-claim - or a
      reply to a counterclaim - within 60 days after service on the
      officer or employee, or service on the United States attorney,
      whichever is later.
        (4) Unless a different time is fixed by court order, the
      service of a motion permitted under this rule alters these
      periods of time as follows:
          (A) if the court denies the motion or postpones its
        disposition until the trial on the merits, the responsive
        pleading shall be served within 10 days after notice of the
        court's action; or
          (B) if the court grants a motion for a more definite
        statement, the responsive pleading shall be served within 10
        days after the service of the more definite statement.

      (b) How Presented. Every defense, in law or fact, to a claim for
    relief in any pleading, whether a claim, counterclaim, cross-claim,
    or third-party claim, shall be asserted in the responsive pleading
    thereto if one is required, except that the following defenses may
    at the option of the pleader be made by motion: (1) lack of
    jurisdiction over the subject matter, (2) lack of jurisdiction over
    the person, (3) improper venue, (4) insufficiency of process, (5)
    insufficiency of service of process, (6) failure to state a claim
    upon which relief can be granted, (7) failure to join a party under
    Rule 19. A motion making any of these defenses shall be made before
    pleading if a further pleading is permitted. No defense or
    objection is waived by being joined with one or more other defenses
    or objections in a responsive pleading or motion. If a pleading
    sets forth a claim for relief to which the adverse party is not
    required to serve a responsive pleading, the adverse party may
    assert at the trial any defense in law or fact to that claim for
    relief. If, on a motion asserting the defense numbered (6) to
    dismiss for failure of the pleading to state a claim upon which
    relief can be granted, matters outside the pleading are presented
    to and not excluded by the court, the motion shall be treated as
    one for summary judgment and disposed of as provided in Rule 56,
    and all parties shall be given reasonable opportunity to present
    all material made pertinent to such a motion by Rule 56.
      (c) Motion for Judgment on the Pleadings. After the pleadings are
    closed but within such time as not to delay the trial, any party
    may move for judgment on the pleadings. If, on a motion for
    judgment on the pleadings, matters outside the pleadings are
    presented to and not excluded by the court, the motion shall be
    treated as one for summary judgment and disposed of as provided in
    Rule 56, and all parties shall be given reasonable opportunity to
    present all material made pertinent to such a motion by Rule 56.
      (d) Preliminary Hearings. The defenses specifically enumerated
    (1)-(7) in subdivision (b) of this rule, whether made in a pleading
    or by motion, and the motion for judgment mentioned in subdivision
    (c) of this rule shall be heard and determined before trial on
    application of any party, unless the court orders that the hearing
    and determination thereof be deferred until the trial.
      (e) Motion for More Definite Statement. If a pleading to which a
    responsive pleading is permitted is so vague or ambiguous that a
    party cannot reasonably be required to frame a responsive pleading,
    the party may move for a more definite statement before interposing
    a responsive pleading. The motion shall point out the defects
    complained of and the details desired. If the motion is granted and
    the order of the court is not obeyed within 10 days after notice of
    the order or within such other time as the court may fix, the court
    may strike the pleading to which the motion was directed or make
    such order as it deems just.
      (f) Motion To Strike. Upon motion made by a party before
    responding to a pleading or, if no responsive pleading is permitted
    by these rules, upon motion made by a party within 20 days after
    the service of the pleading upon the party or upon the court's own
    initiative at any time, the court may order stricken from any
    pleading any insufficient defense or any redundant, immaterial,
    impertinent, or scandalous matter.
      (g) Consolidation of Defenses in Motion. A party who makes a
    motion under this rule may join with it any other motions herein
    provided for and then available to the party. If a party makes a
    motion under this rule but omits therefrom any defense or objection
    then available to the party which this rule permits to be raised by
    motion, the party shall not thereafter make a motion based on the
    defense or objection so omitted, except a motion as provided in
    subdivision (h)(2) hereof on any of the grounds there stated.
      (h) Waiver or Preservation of Certain Defenses.
        (1) A defense of lack of jurisdiction over the person, improper
      venue, insufficiency of process, or insufficiency of service of
      process is waived (A) if omitted from a motion in the
      circumstances described in subdivision (g), or (B) if it is
      neither made by motion under this rule nor included in a
      responsive pleading or an amendment thereof permitted by Rule
      15(a) to be made as a matter of course.
        (2) A defense of failure to state a claim upon which relief can
      be granted, a defense of failure to join a party indispensable
      under Rule 19, and an objection of failure to state a legal
      defense to a claim may be made in any pleading permitted or
      ordered under Rule 7(a), or by motion for judgment on the
      pleadings, or at the trial on the merits.
        (3) Whenever it appears by suggestion of the parties or
      otherwise that the court lacks jurisdiction of the subject
      matter, the court shall dismiss the action.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff.
    Dec. 1, 2000.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). 1. Compare [former] Equity Rules 12
    (Issue of Subpoena - Time for Answer) and 31 (Reply - When Required
    - When Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) Secs. 9107,
    9158; N.Y.C.P.A. (1937) Sec. 263; N.Y.R.C.P. (1937) Rules 109-111.
      2. U.S.C., Title 28, Sec. 763 [now 547] (Petition in action
    against United States; service; appearance by district attorney)
    provides that the United States as a defendant shall have 60 days
    within which to answer or otherwise defend. This and other statutes
    which provide 60 days for the United States or an officer or agency
    thereof to answer or otherwise defend are continued by this rule.
    Insofar as any statutes not excepted in Rule 81 provide a different
    time for a defendant to defend, such statutes are modified. See
    U.S.C., Title 28, [former] Sec. 45 (District courts; practice and
    procedure in certain cases under the interstate commerce laws) (30
    days).
      3. Compare the last sentence of [former] Equity Rule 29 (Defenses
    - How Presented) and N.Y.C.P.A. (1937) Sec. 283. See Rule 15(a) for
    time within which to plead to an amended pleading.
      Note to Subdivisions (b) and (d). 1. See generally [former]
    Equity Rules 29 (Defenses - How Presented), 33 (Testing Sufficiency
    of Defense), 43 (Defect of Parties - Resisting Objection), and 44
    (Defect of Parties - Tardy Objection); N.Y.C.P.A. (1937) Secs.
    277-280; N.Y.R.C.P. (1937) Rules 106-112; English Rules Under the
    Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1-4; Clark,
    Code Pleading (1928) pp. 371-381.
      2. For provisions authorizing defenses to be made in the answer
    or reply see English Rules Under the Judicature Act (The Annual
    Practice, 1937) O. 25, r.r. 1-4; 1 Miss.Code Ann. (1930) Secs. 378,
    379. Compare [former] Equity Rule 29 (Defenses - How Presented);
    U.S.C., Title 28, [former] Sec. 45 (District Courts; practice and
    procedure in certain cases under the interstate commerce laws).
    U.S.C., Title 28, [former] Sec. 45, substantially continued by this
    rule, provides: "No replication need be filed to the answer, and
    objections to the sufficiency of the petition or answer as not
    setting forth a cause of action or defense must be taken at the
    final hearing or by motion to dismiss the petition based on said
    grounds, which motion may be made at any time before answer is
    filed." Compare Calif.Code Civ.Proc. (Deering, 1937) Sec. 433; 4
    Nev.Comp.Laws (Hillyer, 1929) Sec. 8600. For provisions that the
    defendant may demur and answer at the same time, see Calif.Code
    Civ.Proc. (Deering, 1937) Sec. 431; 4 Nev.Comp.Laws (Hillyer, 1929)
    Sec. 8598.
      3. [Former] Equity Rule 29 (Defenses - How Presented) abolished
    demurrers and provided that defenses in point of law arising on the
    face of the bill should be made by motion to dismiss or in the
    answer, with further provision that every such point of law going
    to the whole or material part of the cause or causes stated might
    be called up and disposed of before final hearing "at the
    discretion of the court." Likewise many state practices have
    abolished the demurrer, or retain it only to attack substantial and
    not formal defects. See 6 Tenn.Code Ann. (Williams, 1934) Sec.
    8784; Ala.Code Ann. (Michie, 1928) Sec. 9479; 2 Mass.Gen.Laws
    (Ter.Ed., 1932) ch. 231, Secs. 15-18; Kansas Gen.Stat.Ann. (1935)
    Secs. 60-705, 60-706.
      Note to Subdivision (c). Compare [former] Equity Rule 33 (Testing
    Sufficiency of Defense); N.Y.R.C.P. (1937) Rules 111 and 112.
      Note to Subdivisions (e) and (f). Compare [former] Equity Rules
    20 (Further and Particular Statement in Pleading May Be Required)
    and 21 (Scandal and Impertinence); English Rules Under the
    Judicature Act (The Annual Practice, 1937) O. 19, r.r. 7, 7a, 7b,
    8; 4 Mont.Rev.Codes Ann. (1935) Secs. 9166, 9167; N.Y.C.P.A. (1937)
    Sec. 247; N.Y.R.C.P. (1937) Rules 103, 115, 116, 117;
    Wyo.Rev.Stat.Ann. (Courtright, 1931) Secs. 89-1033, 89-1034.
      Note to Subdivision (g). Compare Rules of the District Court of
    the United States for the District of Columbia (1937), Equity Rule
    11; N.M. Rules of Pleading, Practice and Procedure, 38 N.M.Rep. vii
    [105-408] (1934); Wash.Gen.Rules of the Superior Courts, 1
    Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e) and (f).
      Note to Subdivision (h). Compare Calif.Code Civ.Proc. (Deering,
    1937) Sec. 434; 2 Minn.Stat. (Mason, 1927) Sec. 9252; N.Y.C.P.A.
    (1937) Secs. 278 and 279; Wash.Gen.Rules of the Superior Courts, 1
    Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e). This rule
    continues U.S.C., Title 28, Sec. 80 [now 1359, 1447, 1919]
    (Dismissal or remand) (of action over which district court lacks
    jurisdiction), while U.S.C., Title 28, Sec. 399 [now 1653]
    (Amendments to show diverse citizenship) is continued by Rule 15.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (a). Various minor alterations in language have been
    made to improve the statement of the rule. All references to bills
    of particulars have been stricken in accordance with changes made
    in subdivision (e).
      Subdivision (b). The addition of defense (7), "failure to join an
    indispensable party", cures an omission in the rules, which are
    silent as to the mode of raising such failure. See Commentary,
    Manner of Raising Objection of Non-Joinder of Indispensable Party
    (1940) 2 Fed.Rules Serv. 658 and (1942) 5 Fed.Rules Serv. 820. In
    one case, United States v. Metropolitan Life Ins. Co. (E.D.Pa.
    1941) 36 F.Supp. 399, the failure to join an indispensable party
    was raised under Rule 12(c).
      Rule 12(b)(6), permitting a motion to dismiss for failure of the
    complaint to state a claim on which relief can be granted, is
    substantially the same as the old demurrer for failure of a
    pleading to state a cause of action. Some courts have held that as
    the rule by its terms refers to statements in the complaint,
    extraneous matter on affidavits, depositions or otherwise, may not
    be introduced in support of the motion, or to resist it. On the
    other hand, in many cases the district courts have permitted the
    introduction of such material. When these cases have reached
    circuit courts of appeals in situations where the extraneous
    material so received shows that there is no genuine issue as to any
    material question of fact and that on the undisputed facts as
    disclosed by the affidavits or depositions, one party or the other
    is entitled to judgment as a matter of law, the circuit courts,
    properly enough, have been reluctant to dispose of the case merely
    on the face of the pleading, and in the interest of prompt
    disposition of the action have made a final disposition of it. In
    dealing with such situations the Second Circuit has made the sound
    suggestion that whatever its label or original basis, the motion
    may be treated as a motion for summary judgment and disposed of as
    such. Samara v. United States (C.C.A.2d, 1942) 129 F.(2d) 594,
    cert. den. (1942) 317 U.S. 686; Boro Hall Corp. v. General Motors
    Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S.
    695. See also Kithcart v. Metropolitan Life Ins. Co. (C.C.A.8th,
    1945) 150 F.(2d) 997, aff'g 62 F.Supp. 93.
      It has also been suggested that this practice could be justified
    on the ground that the federal rules permit "speaking" motions. The
    Committee entertains the view that on motion under Rule 12(b)(6) to
    dismiss for failure of the complaint to state a good claim, the
    trial court should have authority to permit the introduction of
    extraneous matter, such as may be offered on a motion for summary
    judgment, and if it does not exclude such matter the motion should
    then be treated as a motion for summary judgment and disposed of in
    the manner and on the conditions stated in Rule 56 relating to
    summary judgments, and, of course, in such a situation, when the
    case reaches the circuit court of appeals, that court should treat
    the motion in the same way. The Committee believes that such
    practice, however, should be tied to the summary judgment rule. The
    term "speaking motion" is not mentioned in the rules, and if there
    is such a thing its limitations are undefined. Where extraneous
    matter is received, by tying further proceedings to the summary
    judgment rule the courts have a definite basis in the rules for
    disposing of the motion.
      The Committee emphasizes particularly the fact that the summary
    judgment rule does not permit a case to be disposed of by judgment
    on the merits on affidavits, which disclose a conflict on a
    material issue of fact, and unless this practice is tied to the
    summary judgment rule, the extent to which a court, on the
    introduction of such extraneous matter, may resolve questions of
    fact on conflicting proof would be left uncertain.
      The decisions dealing with this general situation may be
    generally grouped as follows: (1) cases dealing with the use of
    affidavits and other extraneous material on motions; (2) cases
    reversing judgments to prevent final determination on mere pleading
    allegations alone.
      Under group (1) are: Boro Hall Corp. v. General Motors Corp.
    (C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S. 695;
    Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90; Central Mexico
    Light & Power Co. v. Munch (C.C.A.2d, 1940) 116 F.(2d) 85; National
    Labor Relations Board v. Montgomery Ward & Co. (App.D.C. 1944) 144
    F.(2d) 528, cert. den. (1944) 65 S.Ct. 134; Urquhart v. American-La
    France Foamite Corp. (App.D.C. 1944) 144 F.(2d) 542; Samara v.
    United States (C.C.A.2d, 1942) 129 F.(2d) 594; Cohen v. American
    Window Glass Co. (C.C.A.2d, 1942) 126 F.(2d) 111; Sperry Products
    Inc. v. Association of American Railroads (C.C.A.2d, 1942) 132
    F.(2d) 408; Joint Council Dining Car Employees Local 370 v.
    Delaware, Lackawanna and Western R. Co. (C.C.A.2d, 1946) 157 F.(2d)
    417; Weeks v. Bareco Oil Co. (C.C.A.7th, 1941) 125 F.(2d) 84;
    Carroll v. Morrison Hotel Corp. (C.C.A.7th, 1945) 149 F.(2d) 404;
    Victory v. Manning (C.C.A.3rd, 1942) 128 F.(2d) 415; Locals No.
    1470, No. 1469, and 1512 of International Longshoremen's
    Association v. Southern Pacific Co. (C.C.A.5th, 1942) 131 F.(2d)
    605; Lucking v. Delano (C.C.A.6th, 1942) 129 F.(2d) 283; San
    Francisco Lodge No. 68 of International Association of Machinists
    v. Forrestal (N.D.Cal. 1944) 58 F.Supp. 466; Benson v. Export
    Equipment Corp. (N. Mex. 1945) 164 P.2d 380 (construing New Mexico
    rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v. Gould
    Pumps, Inc. (W.D.N.Y. 1946) 9 Fed.Rules Serv. 12b.33, Case 2, 5
    F.R.D. 132. Cf. Kohler v. Jacobs (C.C.A.5th, 1943) 138 F.(2d) 440;
    Cohen v. United States (C.C.A.8th, 1942) 129 F.(2d) 733.
      Under group (2) are: Sparks v. England (C.C.A.8th, 1940) 113
    F.(2d) 579; Continental Collieries, Inc. v. Shober (C.C.A.3d, 1942)
    130 F.(2d) 631; Downey v. Palmer (C.C.A.2d 1940) 114 F.(2d) 116;
    DeLoach v. Crowley's Inc. (C.C.A.5th, 1942) 128 F.(2d) 378; Leimer
    v. State Mutual Life Assurance Co. of Worcester, Mass. (C.C.A.8th,
    1940) 108 F.(2d) 302; Rossiter v. Vogel (C.C.A.2d, 1943) 134 F.(2d)
    908, compare s. c. (C.C.A.2d, 1945) 148 F.(2d) 292; Karl Kiefer
    Machine Co. v. United States Bottlers Machinery Co. (C.C.A.7th,
    1940) 113 F.(2d) 356; Chicago Metallic Mfg. Co. v. Edward Katzinger
    Co. (C.C.A.7th, 1941) 123 F.(2d) 518; Louisiana Farmers' Protective
    Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc.
    (C.C.A.8th, 1942) 131 F.(2d) 419; Publicity Bldg. Realty Corp. v.
    Hannegan (C.C.A.8th, 1943) 139 F.(2d) 583; Dioguardi v. Durning
    (C.C.A.2d, 1944) 139 F.(2d) 774; Package Closure Corp. v. Sealright
    Co., Inc. (C.C.A.2d, 1944) 141 F.(2d) 972; Tahir Erk v. Glenn L.
    Martin Co. (C.C.A.4th, 1941) 116 F.(2d) 865; Bell v. Preferred Life
    Assurance Society of Montgomery, Ala. (1943) 320 U.S. 238.
      The addition at the end of subdivision (b) makes it clear that on
    a motion under Rule 12(b)(6) extraneous material may not be
    considered if the court excludes it, but that if the court does not
    exclude such material the motion shall be treated as a motion for
    summary judgment and disposed of as provided in Rule 56. It will
    also be observed that if a motion under Rule 12(b)(6) is thus
    converted into a summary judgment motion, the amendment insures
    that both parties shall be given a reasonable opportunity to submit
    affidavits and extraneous proofs to avoid taking a party by
    surprise through the conversion of the motion into a motion for
    summary judgment. In this manner and to this extent the amendment
    regularizes the practice above described. As the courts are already
    dealing with cases in this way, the effect of this amendment is
    really only to define the practice carefully and apply the
    requirements of the summary judgment rule in the disposition of the
    motion.
      Subdivision (c). The sentence appended to subdivision (c)
    performs the same function and is grounded on the same reasons as
    the corresponding sentence added in subdivision (b).
      Subdivision (d). The change here was made necessary because of
    the addition of defense (7) in subdivision (b).
      Subdivision (e). References in this subdivision to a bill of
    particulars have been deleted, and the motion provided for is
    confined to one for a more definite statement, to be obtained only
    in cases where the movant cannot reasonably be required to frame an
    answer or other responsive pleading to the pleading in question.
    With respect to preparations for trial, the party is properly
    relegated to the various methods of examination and discovery
    provided in the rules for that purpose. Slusher v. Jones (E.D.Ky.
    1943) 7 Fed.Rules Serv. 12e.231, Case 5, 3 F.R.D. 168; Best Foods,
    Inc. v. General Mills, Inc. (D.Del. 1943) 7 Fed.Rules Serv.
    12e.231, Case 7, 3 F.R.D. 275; Braden v. Callaway (E.D.Tenn. 1943)
    8 Fed.Rules Serv. 12e.231, Case 1 (". . . most courts . . .
    conclude that the definiteness required is only such as will be
    sufficient for the party to prepare responsive pleadings").
    Accordingly, the reference to the 20 day time limit has also been
    eliminated, since the purpose of this present provision is to state
    a time period where the motion for a bill is made for the purpose
    of preparing for trial.
      Rule 12(e) as originally drawn has been the subject of more
    judicial rulings than any other part of the rules, and has been
    much criticized by commentators, judges and members of the bar. See
    general discussion and cases cited in 1 Moore's Federal Practice
    (1938), Cum.Supplement Sec. 12.07, under "Page 657"; also,
    Holtzoff, New Federal Procedure and the Courts (1940) 35-41. And
    compare vote of Second Circuit Conference of Circuit and District
    Judges (June 1940) recommending the abolition of the bill of
    particulars; Sun Valley Mfg. Co. v. Mylish (E.D.Pa. 1944) 8
    Fed.Rules Serv. 12e.231, Case 6 ("Our experience . . . has
    demonstrated not only that 'the office of the bill of particulars
    is fast becoming obsolete' . . . but that in view of the adequate
    discovery procedure available under the Rules, motions for bills of
    particulars should be abolished altogether."); Walling v. American
    Steamship Co. (W.D.N.Y. 1945) 4 F.R.D. 355, 8 Fed.Rules Serv.
    12e.244, Case 8 (". . . the adoption of the rule was ill advised.
    It has led to confusion, duplication and delay.") The tendency of
    some courts freely to grant extended bills of particulars has
    served to neutralize any helpful benefits derived from Rule 8, and
    has overlooked the intended use of the rules on depositions and
    discovery. The words "or to prepare for trial" - eliminated by the
    proposed amendment - have sometimes been seized upon as grounds for
    compulsory statement in the opposing pleading of all the details
    which the movant would have to meet at the trial. On the other
    hand, many courts have in effect read these words out of the rule.
    See Walling v. Alabama Pipe Co. (W.D.Mo. 1942) 6 Fed.Rules Serv.
    12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc. (E.D.Tenn.
    1941) 42 F.Supp. 230; Kellogg Co. v. National Biscuit Co. (D.N.J.
    1941) 38 F.Supp. 643; Brown v. H. L. Green Co. (S.D.N.Y. 1943) 7
    Fed.Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident Ins.
    Co. (W.D.Mo. 1945) 8 Fed.Rules Serv. 12e.231, Case 8; Bowles v.
    Ohse (D.Neb. 1945) 4 F.R.D. 403, 9 Fed.Rules Serv. 12e.231, Case 1;
    Klages v. Cohen (E.D.N.Y. 1945) 9 Fed.Rules Serv. 8a.25, Case 4;
    Bowles v. Lawrence (D.Mass. 1945) 8 Fed.Rules Serv. 12e.231, Case
    19; McKinney Tool & Mfg. Co. v. Hoyt (N.D.Ohio 1945) 9 Fed.Rules
    Serv. 12e.235, Case 1; Bowles v. Jack (D.Minn. 1945) 5 F.R.D. 1, 9
    Fed.Rules Serv. 12e.244, Case 9. And it has been urged from the
    bench that the phrase be stricken. Poole v. White (N.D.W.Va. 1941).
    5 Fed.Rules Serv. 12e.231, Case 4, 2 F.R.D. 40. See also Bowles v.
    Gabel (W.D.Mo. 1946) 9 Fed.Rules Serv. 12e.244, Case 10 ("The
    courts have never favored that portion of the rules which undertook
    to justify a motion of this kind for the purpose of aiding counsel
    in preparing his case for trial.").
      Subdivision (f). This amendment affords a specific method of
    raising the insufficiency of a defense, a matter which has troubled
    some courts, although attack has been permitted in one way or
    another. See Dysart v. Remington-Rand, Inc. (D.Conn. 1939) 31
    F.Supp. 296; Eastman Kodak Co. v. McAuley (S.D.N.Y. 1941) 4
    Fed.Rules Serv. 12f.21, Case 8, 2 F.R.D. 21; Schenley Distillers
    Corp. v. Renken (E.D.S.C. 1940) 34 F.Supp. 678; Yale Transport
    Corp. v. Yellow Truck & Coach Mfg. Co. (S.D.N.Y. 1944) 3 F.R.D.
    440; United States v. Turner Milk Co. (N.D.Ill. 1941) 4 Fed.Rules
    Serv. 12b.51, Case 3, 1 F.R.D. 643; Teiger v. Stephan Oderwald,
    Inc. (S.D.N.Y. 1940) 31 F.Supp. 626; Teplitsky v. Pennsylvania R.
    Co. (N.D.Ill. 1941) 38 F.Supp. 535; Gallagher v. Carroll (E.D.N.Y.
    1939) 27 F.Supp. 568; United States v. Palmer (S.D.N.Y. 1939) 28
    F.Supp. 936. And see Indemnity Ins. Co. of North America v. Pan
    American Airways, Inc. (S.D.N.Y. 1944) 58 F.Supp. 338; Commentary,
    Modes of Attacking Insufficient Defenses in the Answer (1939) 1
    Fed.Rules Serv. 669 (1940) 2 Fed.Rules Serv. 640.
      Subdivision (g). The change in title conforms with the companion
    provision in subdivision (h).
      The alteration of the "except" clause requires that other than
    provided in subdivision (h) a party who resorts to a motion to
    raise defenses specified in the rule, must include in one motion
    all that are then available to him. Under the original rule
    defenses which could be raised by motion were divided into two
    groups which could be the subjects of two successive motions.
      Subdivision (h). The addition of the phrase relating to
    indispensable parties is one of necessity.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      This amendment conforms to the amendment of Rule 4(e). See also
    the Advisory Committee's Note to amended Rule 4(b).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Subdivision (b)(7). The terminology of this subdivision is
    changed to accord with the amendment of Rule 19. See the Advisory
    Committee's Note to Rule 19, as amended, especially the third
    paragraph therein before the caption "Subdivision (c)."
      Subdivision (g). Subdivision (g) has forbidden a defendant who
    makes a preanswer motion under this rule from making a further
    motion presenting any defense or objection which was available to
    him at the time he made the first motion and which he could have
    included, but did not in fact include therein. Thus if the
    defendant moves before answer to dismiss the complaint for failure
    to state a claim, he is barred from making a further motion
    presenting the defense of improper venue, if that defense was
    available to him when he made his original motion. Amended
    subdivision (g) is to the same effect. This required consolidation
    of defenses and objections in a Rule 12 motion is salutary in that
    it works against piecemeal consideration of a case. For exceptions
    to the requirement of consolidation, see the last clause of
    subdivision (g), referring to new subdivision (h)(2).
      Subdivision (h). The question has arisen whether an omitted
    defense which cannot be made the basis of a second motion may
    nevertheless be pleaded in the answer. Subdivision (h) called for
    waiver of "* * * defenses and objections which he [defendant] does
    not present * * * by motion * * * or, if he has made no motion, in
    his answer * * *." If the clause "if he has made no motion," was
    read literally, it seemed that the omitted defense was waived and
    could not be pleaded in the answer. On the other hand, the clause
    might be read as adding nothing of substance to the preceding
    words; in that event it appeared that a defense was not waived by
    reason of being omitted from the motion and might be set up in the
    answer. The decisions were divided. Favoring waiver, see Keefe v.
    Derounian, 6 F.R.D. 11 (N.D.Ill. 1946); Elbinger v. Precision Metal
    Workers Corp., 18 F.R.D. 467 (E.D.Wis. 1956); see also Rensing v.
    Turner Aviation Corp., 166 F.Supp. 790 (N.D.Ill. 1958); P.
    Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282
    (S.D.N.Y. 1950); Neset v. Christensen, 92 F.Supp. 78 (E.D.N.Y.
    1950). Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th
    Cir. 1941); Crum v. Graham, 32 F.R.D. 173 (D.Mont. 1963)
    (regretfully following the Phillips case); see also Birnbaum v.
    Birrell, 9 F.R.D. 72 (S.D.N.Y. 1948); Johnson v. Joseph Schlitz
    Brewing Co., 33 F.Supp. 176 (E.D.Tenn. 1940); cf. Carter v.
    American Bus Lines, Inc., 22 F.R.D. 323 (D.Neb. 1958).
      Amended subdivision (h)(1)(A) eliminates the ambiguity and states
    that certain specified defenses which were available to a party
    when he made a preanswer motion, but which he omitted from the
    motion, are waived. The specified defenses are lack of jurisdiction
    over the person, improper venue, insufficiency of process, and
    insufficiency of service of process (see Rule 12(b)(2)-(5)). A
    party who by motion invites the court to pass upon a threshold
    defense should bring forward all the specified defenses he then has
    and thus allow the court to do a reasonably complete job. The
    waiver reinforces the policy of subdivision (g) forbidding
    successive motions.
      By amended subdivision (h)(1)(B), the specified defenses, even if
    not waived by the operation of (A), are waived by the failure to
    raise them by a motion under Rule 12 or in the responsive pleading
    or any amendment thereof to which the party is entitled as a matter
    of course. The specified defenses are of such a character that they
    should not be delayed and brought up for the first time by means of
    an application to the court to amend the responsive pleading.
      Since the language of the subdivisions is made clear, the party
    is put on fair notice of the effect of his actions and omissions
    and can guard himself against unintended waiver. It is to be noted
    that while the defenses specified in subdivision (h)(1) are subject
    to waiver as there provided, the more substantial defenses of
    failure to state a claim upon which relief can be granted, failure
    to join a party indispensable under Rule 19, and failure to state a
    legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as
    the defense of lack of jurisdiction over the subject matter (see
    Rule 12(b)(1)), are expressly preserved against waiver by amended
    subdivision (h)(2) and (3).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a) is divided into paragraphs for greater clarity,
    and paragraph (1)(B) is added to reflect amendments to Rule 4.
    Consistent with Rule 4(d)(3), a defendant that timely waives
    service is allowed 60 days from the date the request was mailed in
    which to respond to the complaint, with an additional 30 days
    afforded if the request was sent out of the country. Service is
    timely waived if the waiver is returned within the time specified
    in the request (30 days after the request was mailed, or 60 days if
    mailed out of the country) and before being formally served with
    process. Sometimes a plaintiff may attempt to serve a defendant
    with process while also sending the defendant a request for waiver
    of service; if the defendant executes the waiver of service within
    the time specified and before being served with process, it should
    have the longer time to respond afforded by waiving service.
      The date of sending the request is to be inserted by the
    plaintiff on the face of the request for waiver and on the waiver
    itself. This date is used to measure the return day for the waiver
    form, so that the plaintiff can know on a day certain whether
    formal service of process will be necessary; it is also a useful
    date to measure the time for answer when service is waived. The
    defendant who returns the waiver is given additional time for
    answer in order to assure that it loses nothing by waiving service
    of process.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Rule 12(a)(3)(B) is added to complement the addition of Rule
    4(i)(2)(B). The purposes that underlie the requirement that service
    be made on the United States in an action that asserts individual
    liability of a United States officer or employee for acts occurring
    in connection with the performance of duties on behalf of the
    United States also require that the time to answer be extended to
    60 days. Time is needed for the United States to determine whether
    to provide representation to the defendant officer or employee. If
    the United States provides representation, the need for an extended
    answer period is the same as in actions against the United States,
    a United States agency, or a United States officer sued in an
    official capacity.
      An action against a former officer or employee of the United
    States is covered by subparagraph (3)(B) in the same way as an
    action against a present officer or employee. Termination of the
    relationship between the individual defendant and the United States
    does not reduce the need for additional time to answer.
      GAP Report. No changes are recommended for Rule 12 as published.

-End-



-CITE-
    28 USC APPENDIX Rule 13                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 13. Counterclaim and Cross-Claim

-STATUTE-
      (a) Compulsory Counterclaims. A pleading shall state as a
    counterclaim any claim which at the time of serving the pleading
    the pleader has against any opposing party, if it arises out of the
    transaction or occurrence that is the subject matter of the
    opposing party's claim and does not require for its adjudication
    the presence of third parties of whom the court cannot acquire
    jurisdiction. But the pleader need not state the claim if (1) at
    the time the action was commenced the claim was the subject of
    another pending action, or (2) the opposing party brought suit upon
    the claim by attachment or other process by which the court did not
    acquire jurisdiction to render a personal judgment on that claim,
    and the pleader is not stating any counterclaim under this Rule 13.
      (b) Permissive Counterclaims. A pleading may state as a
    counterclaim any claim against an opposing party not arising out of
    the transaction or occurrence that is the subject matter of the
    opposing party's claim.
      (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or
    may not diminish or defeat the recovery sought by the opposing
    party. It may claim relief exceeding in amount or different in kind
    from that sought in the pleading of the opposing party.
      (d) Counterclaim Against the United States. These rules shall not
    be construed to enlarge beyond the limits now fixed by law the
    right to assert counterclaims or to claim credits against the
    United States or an officer or agency thereof.
      (e) Counterclaim Maturing or Acquired After Pleading. A claim
    which either matured or was acquired by the pleader after serving a
    pleading may, with the permission of the court, be presented as a
    counterclaim by supplemental pleading.
      (f) Omitted Counterclaim. When a pleader fails to set up a
    counterclaim through oversight, inadvertence, or excusable neglect,
    or when justice requires, the pleader may by leave of court set up
    the counterclaim by amendment.
      (g) Cross-Claim Against Co-Party. A pleading may state as a
    cross-claim any claim by one party against a co-party arising out
    of the transaction or occurrence that is the subject matter either
    of the original action or of a counterclaim therein or relating to
    any property that is the subject matter of the original action.
    Such cross-claim may include a claim that the party against whom it
    is asserted is or may be liable to the cross-claimant for all or
    part of a claim asserted in the action against the cross-claimant.
      (h) Joinder of Additional Parties. Persons other than those made
    parties to the original action may be made parties to a
    counterclaim or cross-claim in accordance with the provisions of
    Rules 19 and 20.
      (i) Separate Trials; Separate Judgments. If the court orders
    separate trials as provided in Rule 42(b), judgment on a
    counterclaim or cross-claim may be rendered in accordance with the
    terms of Rule 54(b) when the court has jurisdiction so to do, even
    if the claims of the opposing party have been dismissed or
    otherwise disposed of.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      1. This is substantially [former] Equity Rule 30 (Answer -
    Contents - Counterclaim), broadened to include legal as well as
    equitable counterclaims.
      2. Compare the English practice, English Rules Under the
    Judicature Act (The Annual Practice, 1937) O. 19, r.r. 2 and 3, and
    O. 21, r.r. 10 - 17; Beddall v. Maitland, L.R. 17 Ch.Div. 174, 181,
    182 (1881).
      3. Certain States have also adopted almost unrestricted
    provisions concerning both the subject matter of and the parties to
    a counterclaim. This seems to be the modern tendency. Ark.Civ.Code
    (Crawford, 1934) Secs. 117 (as amended) and 118; N.J.Comp.Stat. (2
    Cum.Supp. 1911-1924), N.Y.C.P.A. (1937) Secs. 262, 266, 267 (all as
    amended, Laws of 1936, ch. 324), 268, 269, and 271; Wis.Stat.
    (1935) Sec. 263.14 (1)(c).
      4. Most codes do not expressly provide for a counterclaim in the
    reply. Clark, Code Pleading (1928), p. 486. Ky.Codes (Carroll,
    1932) Civ.Pract. Sec. 98 does provide, however, for such
    counterclaim.
      5. The provisions of this rule respecting counterclaims are
    subject to Rule 82 (Jurisdiction and Venue Unaffected). For a
    discussion of Federal jurisdiction and venue in regard to
    counterclaims and cross-claims, see Shulman and Jaegerman, Some
    Jurisdictional Limitations in Federal Procedure (1936), 45 Yale
    L.J. 393, 410 et seq.
      6. This rule does not affect such statutes of the United States
    as U.S.C., Title 28, Sec. 41(1) [now 1332, 1345, 1359] (United
    States as plaintiff; civil suits at common law and in equity),
    relating to assigned claims in actions based on diversity of
    citizenship.
      7. If the action proceeds to judgment without the interposition
    of a counterclaim as required by subdivision (a) of this rule, the
    counterclaim is barred. See American Mills Co. v. American Surety
    Co., 260 U.S. 360 (1922); Marconi Wireless Telegraph Co. v.
    National Electric Signalling Co., 206 Fed. 295 (E.D.N.Y., 1913);
    Hopkins, Federal Equity Rules (8th ed., 1933), p. 213; Simkins,
    Federal Practice (1934), p. 663
      8. For allowance of credits against the United States see U.S.C.,
    Title 26, Secs. 1672-1673 [see 7442] (Suits for refunds of internal
    revenue taxes - limitations); U.S.C., Title 28, Secs. 774 [now
    2406] (Suits by United States against individuals; credits),
    [former] 775 (Suits under postal laws; credits); U.S.C., Title 31,
    Sec. 227 [now 3728] (Offsets against judgments and claims against
    United States).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (a). The use of the word "filing" was inadvertent.
    The word "serving" conforms with subdivision (e) and with usage
    generally throughout the rules.
      The removal of the phrase "not the subject of a pending action"
    and the addition of the new clause at the end of the subdivision is
    designed to eliminate the ambiguity noted in Prudential Insurance
    Co. of America v. Saxe (App.D.C. 1943) 134 F.(2d) 16, 33-34, cert.
    den. (1943) 319 U.S. 745. The rewording of the subdivision in this
    respect insures against an undesirable possibility presented under
    the original rule whereby a party having a claim which would be the
    subject of a compulsory counterclaim could avoid stating it as such
    by bringing an independent action in another court after the
    commencement of the federal action but before serving his pleading
    in the federal action.
      Subdivision (g). The amendment is to care for a situation such as
    where a second mortgagee is made defendant in a foreclosure
    proceeding and wishes to file a cross-complaint against the
    mortgagor in order to secure a personal judgment for the
    indebtedness and foreclose his lien. A claim of this sort by the
    second mortgagee may not necessarily arise out of the transaction
    or occurrence that is the subject matter of the original action
    under the terms of Rule 13(g).
      Subdivision (h). The change clarifies the interdependence of
    Rules 13(i) and 54(b).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      When a defendant, if he desires to defend his interest in
    property, is obliged to come in and litigate in a court to whose
    jurisdiction he could not ordinarily be subjected, fairness
    suggests that he should not be required to assert counterclaims,
    but should rather be permitted to do so at his election. If,
    however, he does elect to assert a counterclaim, it seems fair to
    require him to assert any other which is compulsory within the
    meaning of Rule 13(a). Clause (2), added by amendment to Rule
    13(a), carries out this idea. It will apply to various cases
    described in Rule 4(e), as amended, where service is effected
    through attachment or other process by which the court does not
    acquire jurisdiction to render a personal judgment against the
    defendant. Clause (2) will also apply to actions commenced in State
    courts jurisdictionally grounded on attachment or the like, and
    removed to the Federal courts.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Rule 13(h), dealing with the joinder of additional parties to a
    counterclaim or cross-claim, has partaken of some of the textual
    difficulties of Rule 19 on necessary joinder of parties. See
    Advisory Committee's Note to Rule 19, as amended; cf. 3 Moore's
    Federal Practice, Par. 13.39 (2d ed. 1963), and Supp. thereto; 1A
    Barron & Holtzoff, Federal Practice and Procedure Sec. 399 (Wright
    ed. 1960). Rule 13(h) has also been inadequate in failing to call
    attention to the fact that a party pleading a counterclaim or
    cross-claim may join additional persons when the conditions for
    permissive joinder of parties under Rule 20 are satisfied.
      The amendment of Rule 13(h) supplies the latter omission by
    expressly referring to Rule 20, as amended, and also incorporates
    by direct reference the revised criteria and procedures of Rule 19,
    as amended. Hereafter, for the purpose of determining who must or
    may be joined as additional parties to a counterclaim or
    cross-claim, the party pleading the claim is to be regarded as a
    plaintiff and the additional parties as plaintiffs or defendants as
    the case may be, and amended Rules 19 and 20 are to be applied in
    the usual fashion. See also Rules 13(a) (compulsory counterclaims)
    and 22 (interpleader).
      The amendment of Rule 13(h), like the amendment of Rule 19, does
    not attempt to regulate Federal jurisdiction or venue. See Rule 82.
    It should be noted, however, that in some situations the decisional
    law has recognized "ancillary" Federal jurisdiction over
    counterclaims and cross-claims and "ancillary" venue as to parties
    to these claims.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 14                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 14. Third-Party Practice

-STATUTE-
      (a) When Defendant May Bring in Third Party. At any time after
    commencement of the action a defending party, as a third-party
    plaintiff, may cause a summons and complaint to be served upon a
    person not a party to the action who is or may be liable to the
    third-party plaintiff for all or part of the plaintiff's claim
    against the third-party plaintiff. The third-party plaintiff need
    not obtain leave to make the service if the third-party plaintiff
    files the third-party complaint not later than 10 days after
    serving the original answer. Otherwise the third-party plaintiff
    must obtain leave on motion upon notice to all parties to the
    action. The person served with the summons and third-party
    complaint, hereinafter called the third-party defendant, shall make
    any defenses to the third-party plaintiff's claim as provided in
    Rule 12 and any counterclaims against the third-party plaintiff and
    cross-claims against other third-party defendants as provided in
    Rule 13. The third-party defendant may assert against the plaintiff
    any defenses which the third-party plaintiff has to the plaintiff's
    claim. The third-party defendant may also assert any claim against
    the plaintiff arising out of the transaction or occurrence that is
    the subject matter of the plaintiff's claim against the third-party
    plaintiff. The plaintiff may assert any claim against the
    third-party defendant arising out of the transaction or occurrence
    that is the subject matter of the plaintiff's claim against the
    third-party plaintiff, and the third-party defendant thereupon
    shall assert any defenses as provided in Rule 12 and any
    counterclaims and cross-claims as provided in Rule 13. Any party
    may move to strike the third-party claim, or for its severance or
    separate trial. A third-party defendant may proceed under this rule
    against any person not a party to the action who is or may be
    liable to the third-party defendant for all or part of the claim
    made in the action against the third-party defendant. The
    third-party complaint, if within the admiralty and maritime
    jurisdiction, may be in rem against a vessel, cargo, or other
    property subject to admiralty or maritime process in rem, in which
    case references in this rule to the summons include the warrant of
    arrest, and references to the third-party plaintiff or defendant
    include, where appropriate, a person who asserts a right under
    Supplemental Rule C(6)(b)(i) in the property arrested.
      (b) When Plaintiff May Bring in Third Party. When a counterclaim
    is asserted against a plaintiff, the plaintiff may cause a third
    party to be brought in under circumstances which under this rule
    would entitle a defendant to do so.
      (c) Admiralty and Maritime Claims. When a plaintiff asserts an
    admiralty or maritime claim within the meaning of Rule 9(h), the
    defendant or person who asserts a right under Supplemental Rule
    C(6)(b)(i), as a third-party plaintiff, may bring in a third-party
    defendant who may be wholly or partly liable, either to the
    plaintiff or to the third-party plaintiff, by way of remedy over,
    contribution, or otherwise on account of the same transaction,
    occurrence, or series of transactions or occurrences. In such a
    case the third-party plaintiff may also demand judgment against the
    third-party defendant in favor of the plaintiff, in which event the
    third-party defendant shall make any defenses to the claim of the
    plaintiff as well as to that of the third-party plaintiff in the
    manner provided in Rule 12 and the action shall proceed as if the
    plaintiff had commenced it against the third-party defendant as
    well as the third-party plaintiff.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Third-party impleader is in some aspects a modern innovation in
    law and equity although well known in admiralty. Because of its
    many advantages a liberal procedure with respect to it has
    developed in England, in the Federal admiralty courts, and in some
    American State jurisdictions. See English Rules Under the
    Judicature Act (The Annual Practice, 1937) O. 16A, r.r. 1-13;
    United States Supreme Court Admiralty Rules (1920), Rule 56 (Right
    to Bring in Party Jointly Liable); Pa.Stat.Ann. (Purdon, 1936)
    Title 12, Sec. 141; Wis.Stat. (1935) Secs. 260.19, 260.20;
    N.Y.C.P.A. (1937) Secs. 193 (2), 211(a). Compare La.Code Pract.
    (Dart, 1932) Secs. 378-388. For the practice in Texas as developed
    by judicial decision, see Lottman v. Cuilla, 288 S.W. 123, 126
    (Tex., 1926). For a treatment of this subject see Gregory,
    Legislative Loss Distribution in Negligence Actions (1936); Shulman
    and Jaegerman, Some Jurisdictional Limitations on Federal Procedure
    (1936), 45 Yale L.J. 393, 417, et seq.
      Third-party impleader under the conformity act has been applied
    in actions at law in the Federal courts. Lowry and Co., Inc., v.
    National City Bank of New York, 28 F.(2d) 895 (S.D.N.Y., 1928);
    Yellow Cab Co. of Philadelphia v. Rodgers, 61 F.(2d) 729 (C.C.A.3d,
    1932).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      The provisions in Rule 14(a) which relate to the impleading of a
    third party who is or may be liable to the plaintiff have been
    deleted by the proposed amendment. It has been held that under Rule
    14(a) the plaintiff need not amend his complaint to state a claim
    against such third party if he does not wish to do so. Satink v.
    Holland Township (D.N.J. 1940) 31 F.Supp. 229, noted (1940) 88
    U.Pa.L.Rev. 751; Connelly v. Bender (E.D.Mich. 1941) 36 F.Supp.
    368; Whitmire v. Partin v. Milton (E.D.Tenn. 1941) 5 Fed.Rules
    Serv. 14a.513, Case 2; Crim v. Lumbermen's Mutual Casualty Co.
    (D.D.C. 1939) 26 F.Supp. 715; Carbola Chemical Co., Inc. v. Trundle
    (S.D.N.Y. 1943) 7 Fed.Rules Serv. 14a.224, Case 1; Roadway Express,
    Inc. v. Automobile Ins. Co. of Hartford, Conn. v. Providence
    Washington Ins. Co. (N.D.Ohio 1945) 8 Fed.Rules Serv. 14a.513, Case
    3. In Delano v. Ives (E.D.Pa. 1941) 40 F.Supp. 672, the court said:
    ". . . the weight of authority is to the effect that a defendant
    cannot compel the plaintiff, who has sued him, to sue also a third
    party whom he does not wish to sue, by tendering in a third party
    complaint the third party as an additional defendant directly
    liable to the plaintiff." Thus impleader here amounts to no more
    than a mere offer of a party to the plaintiff, and if he rejects
    it, the attempt is a time-consuming futility. See Satink v. Holland
    Township, supra; Malkin v. Arundel Corp. (D.Md. 1941) 36 F.Supp.
    948; also Koenigsberger, Suggestions for Changes in the Federal
    Rules of Civil Procedure, (1941) 4 Fed.Rules Serv. 1010. But cf.
    Atlantic Coast Line R. Co. v. United States Fidelity & Guaranty Co.
    (M.D.Ga. 1943) 52 F.Supp. 177. Moreover, in any case where the
    plaintiff could not have joined the third party originally because
    of jurisdictional limitations such as lack of diversity of
    citizenship, the majority view is that any attempt by the plaintiff
    to amend his complaint and assert a claim against the impleaded
    third party would be unavailing. Hoskie v. Prudential Ins. Co. of
    America v. Lorrac Real Estate Corp. (E.D.N.Y. 1941) 39 F.Supp. 305;
    Johnson v. G. J. Sherrard Co. v. New England Telephone & Telegraph
    Co. (D.Mass. 1941) 5 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 164;
    Thompson v. Cranston (W.D.N.Y. 1942) 6 Fed.Rules Serv. 14a.511,
    Case 1, 2 F.R.D. 270, aff'd (C.C.A.2d, 1942) 132 F.(2d) 631, cert.
    den. (1943) 319 U.S. 741; Friend v. Middle Atlantic Transportation
    Co. (C.C.A.2d, 1946) 153 F.(2d) 778, cert. den. (1946) 66 S.Ct.
    1370; Herrington v. Jones (E.D.La. 1941) 5 Fed.Rules Serv. 14a.511,
    Case 2, 2 F.R.D. 108; Banks v. Employers' Liability Assurance Corp.
    v. Central Surety & Ins. Corp. (W.D.Mo. 1943) 7 Fed.Rules Serv.
    14a.11, Case 2; Saunders v. Baltimore & Ohio R. Co. (S.D.W.Va.
    1945) 9 Fed.Rules Serv. 14a.62, Case 2; Hull v. United States
    Rubber Co. v. Johnson Larsen & Co. (E.D.Mich. 1945) 9 Fed.Rules
    Serv. 14a.62, Case 3. See also concurring opinion of Circuit Judge
    Minton in People of State of Illinois for use of Trust Co. of
    Chicago v. Maryland Casualty Co. (C.C.A.7th, 1942) 132 F.(2d) 850,
    853. Contra: Sklar v. Hayes v. Singer (E.D.Pa. 1941) 4 Fed.Rules
    Serv. 14a.511, Case 2, 1 F.R.D. 594. Discussion of the problem will
    be found in Commentary, Amendment of Plaintiff's Pleading to Assert
    Claim Against Third-Party Defendant (1942) 5 Fed.Rules Serv. 811;
    Commentary, Federal Jurisdiction in Third-Party Practice (1943) 6
    Fed.Rules Serv. 766; Holtzoff, Some Problems Under Federal
    Third-Party Practice (1941) 3 La.L.Rev. 408, 419-420; 1. Moore's
    Federal Practice (1938) Cum.Supplement Sec. 14.08. For these
    reasons therefore, the words "or to the plaintiff" in the first
    sentence of subdivision (a) have been removed by the amendment; and
    in conformance therewith the words "the plaintiff" in the second
    sentence of the subdivision, and the words "or to the third-party
    plaintiff" in the concluding sentence thereof have likewise been
    eliminated.
      The third sentence of Rule 14(a) has been expanded to clarify the
    right of the third-party defendant to assert any defenses which the
    third-party plaintiff may have to the plaintiff's claim. This
    protects the impleaded third-party defendant where the third-party
    plaintiff fails or neglects to assert a proper defense to the
    plaintiff's action. A new sentence has also been inserted giving
    the third-party defendant the right to assert directly against the
    original plaintiff any claim arising out of the transaction or
    occurrence that is the subject matter of the plaintiff's claim
    against the third-party plaintiff. This permits all claims arising
    out of the same transaction or occurrence to be heard and
    determined in the same action. See Atlantic Coast Line R. Co. v.
    United States Fidelity & Guaranty Co. (M.D.Ga. 1943) 52 F.Supp.
    177. Accordingly, the next to the last sentence of subdivision (a)
    has also been revised to make clear that the plaintiff may, if he
    desires, assert directly against the third-party defendant either
    by amendment or by a new pleading any claim he may have against him
    arising out of the transaction or occurrence that is the subject
    matter of the plaintiff's claim against the third-party plaintiff.
    In such a case, the third-party defendant then is entitled to
    assert the defenses, counterclaims and cross-claims provided in
    Rules 12 and 13.
      The sentence reading "The third-party defendant is bound by the
    adjudication of the third-party plaintiff's liability to the
    plaintiff, as well as of his own to the plaintiff, or to the
    third-party plaintiff" has been stricken from Rule 14(a), not to
    change the law, but because the sentence states a rule of
    substantive law which is not within the scope of a procedural rule.
    It is not the purpose of the rules to state the effect of a
    judgment.
      The elimination of the words "the third-party plaintiff, or any
    other party" from the second sentence of Rule 14(a), together with
    the insertion of the new phrases therein, are not changes of
    substance but are merely for the purpose of clarification.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      Under the amendment of the initial sentences of the subdivision,
    a defendant as a third-party plaintiff may freely and without leave
    of court bring in a third-party defendant if he files the
    third-party complaint not later than 10 days after he serves his
    original answer. When the impleader comes so early in the case,
    there is little value in requiring a preliminary ruling by the
    court on the propriety of the impleader.
      After the third-party defendant is brought in, the court has
    discretion to strike the third-party claim if it is obviously
    unmeritorious and can only delay or prejudice the disposition of
    the plaintiff's claim, or to sever the third-party claim or accord
    it separate trial if confusion or prejudice would otherwise result.
    This discretion, applicable not merely to the cases covered by the
    amendment where the third-party defendant is brought in without
    leave, but to all impleaders under the rule, is emphasized in the
    next-to-last sentence of the subdivision, added by amendment.
      In dispensing with leave of court for an impleader filed not
    later than 10 days after serving the answer, but retaining the
    leave requirement for impleaders sought to be effected thereafter,
    the amended subdivision takes a moderate position on the lines
    urged by some commentators, see Note, 43 Minn.L.Rev. 115 (1958);
    cf. Pa.R.Civ.P. 2252-53 (60 days after service on the defendant);
    Minn.R.Civ.P. 14.01 (45 days). Other commentators would dispense
    with the requirement of leave regardless of the time when impleader
    is effected, and would rely on subsequent action by the court to
    dismiss the impleader if it would unduly delay or complicate the
    litigation or would be otherwise objectionable. See 1A Barron &
    Holtzoff, Federal Practice & Procedure 649-50 (Wright ed. 1960);
    Comment, 58 Colum.L.Rev. 532, 546 (1958); cf. N.Y.Civ.Prac. Act
    Sec. 193-a; Me.R.Civ.P. 14. The amended subdivision preserves the
    value of a preliminary screening, through the leave procedure, of
    impleaders attempted after the 10-day period.
      The amendment applies also when an impleader is initiated by a
    third-party defendant against a person who may be liable to him, as
    provided in the last sentence of the subdivision.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Rule 14 was modeled on Admiralty Rule 56. An important feature of
    Admiralty Rule 56 was that it allowed impleader not only of a
    person who might be liable to the defendant by way of remedy over,
    but also of any person who might be liable to the plaintiff. The
    importance of this provision was that the defendant was entitled to
    insist that the plaintiff proceed to judgment against the
    third-party defendant. In certain cases this was a valuable
    implementation of a substantive right. For example, in a case of
    ship collision where a finding of mutual fault is possible, one
    ship- owner, if sued alone, faces the prospect of an absolute
    judgment for the full amount of the damage suffered by an innocent
    third party; but if he can implead the owner of the other vessel,
    and if mutual fault is found, the judgment against the original
    defendant will be in the first instance only for a moiety of the
    damages; liability for the remainder will be conditioned on the
    plaintiff's inability to collect from the third-party defendant.
      This feature was originally incorporated in Rule 14, but was
    eliminated by the amendment of 1946, so that under the amended rule
    a third party could not be impleaded on the basis that he might be
    liable to the plaintiff. One of the reasons for the amendment was
    that the Civil Rule, unlike the Admiralty Rule, did not require the
    plaintiff to go to judgment against the third-party defendant.
    Another reason was that where jurisdiction depended on diversity of
    citizenship the impleader of an adversary having the same
    citizenship as the plaintiff was not considered possible.
      Retention of the admiralty practice in those cases that will be
    counterparts of a suit in admiralty is clearly desirable.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Subdivisions (a) and (c) are amended to reflect revisions in
    Supplemental Rule C(6).
      GAP Report. Rule B(1)(a) was modified by moving "in an in
    personam action" out of paragraph (a) and into the first line of
    subdivision (1). This change makes it clear that all paragraphs of
    subdivision (1) apply when attachment is sought in an in personam
    action. Rule B(1)(d) was modified by changing the requirement that
    the clerk deliver the summons and process to the person or
    organization authorized to serve it. The new form requires only
    that the summons and process be delivered, not that the clerk
    effect the delivery. This change conforms to present practice in
    some districts and will facilitate rapid service. It matches the
    spirit of Civil Rule 4(b), which directs the clerk to issue the
    summons "to the plaintiff for service on the defendant." A parallel
    change is made in Rule C(3)(b).

-End-



-CITE-
    28 USC APPENDIX Rule 15                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 15. Amended and Supplemental Pleadings

-STATUTE-
      (a) Amendments. A party may amend the party's pleading once as a
    matter of course at any time before a responsive pleading is served
    or, if the pleading is one to which no responsive pleading is
    permitted and the action has not been placed upon the trial
    calendar, the party may so amend it at any time within 20 days
    after it is served. Otherwise a party may amend the party's
    pleading only by leave of court or by written consent of the
    adverse party; and leave shall be freely given when justice so
    requires. A party shall plead in response to an amended pleading
    within the time remaining for response to the original pleading or
    within 10 days after service of the amended pleading, whichever
    period may be the longer, unless the court otherwise orders.
      (b) Amendments To Conform to the Evidence. When issues not raised
    by the pleadings are tried by express or implied consent of the
    parties, they shall be treated in all respects as if they had been
    raised in the pleadings. Such amendment of the pleadings as may be
    necessary to cause them to conform to the evidence and to raise
    these issues may be made upon motion of any party at any time, even
    after judgment; but failure so to amend does not affect the result
    of the trial of these issues. If evidence is objected to at the
    trial on the ground that it is not within the issues made by the
    pleadings, the court may allow the pleadings to be amended and
    shall do so freely when the presentation of the merits of the
    action will be subserved thereby and the objecting party fails to
    satisfy the court that the admission of such evidence would
    prejudice the party in maintaining the party's action or defense
    upon the merits. The court may grant a continuance to enable the
    objecting party to meet such evidence.
      (c) Relation Back of Amendments. An amendment of a pleading
    relates back to the date of the original pleading when
        (1) relation back is permitted by the law that provides the
      statute of limitations applicable to the action, or
        (2) the claim or defense asserted in the amended pleading arose
      out of the conduct, transaction, or occurrence set forth or
      attempted to be set forth in the original pleading, or
        (3) the amendment changes the party or the naming of the party
      against whom a claim is asserted if the foregoing provision (2)
      is satisfied and, within the period provided by Rule 4(m) for
      service of the summons and complaint, the party to be brought in
      by amendment (A) has received such notice of the institution of
      the action that the party will not be prejudiced in maintaining a
      defense on the merits, and (B) knew or should have known that,
      but for a mistake concerning the identity of the proper party,
      the action would have been brought against the party.
        The delivery or mailing of process to the United States
      Attorney, or United States Attorney's designee, or the Attorney
      General of the United States, or an agency or officer who would
      have been a proper defendant if named, satisfies the requirement
      of subparagraphs (A) and (B) of this paragraph (3) with respect
      to the United States or any agency or officer thereof to be
      brought into the action as a defendant.

      (d) Supplemental Pleadings. Upon motion of a party the court may,
    upon reasonable notice and upon such terms as are just, permit the
    party to serve a supplemental pleading setting forth transactions
    or occurrences or events which have happened since the date of the
    pleading sought to be supplemented. Permission may be granted even
    though the original pleading is defective in its statement of a
    claim for relief or defense. If the court deems it advisable that
    the adverse party plead to the supplemental pleading, it shall so
    order, specifying the time therefor.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.
    July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
    Dec. 1, 1991; Pub. L. 102-198, Sec. 11(a), Dec. 9, 1991, 105 Stat.
    1626; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      See generally for the present federal practice, [former] Equity
    Rules 19 (Amendments Generally), 28 (Amendment of Bill as of
    Course), 32 (Answer to Amended Bill), 34 (Supplemental Pleading),
    and 35 (Bills of Revivor and Supplemental Bills - Form); U.S.C.,
    Title 28, Secs. 399 [now 1653] (Amendments to show diverse
    citizenship) and [former] 777 (Defects of Form; amendments). See
    English Rules Under the Judicature Act (The Annual Practice, 1937)
    O. 28, r.r. 1-13; O. 20, r. 4; O. 24, r.r. 1-3.
      Note to Subdivision (a). The right to serve an amended pleading
    once as of course is common. 4 Mont.Rev.Codes Ann. (1935) Sec.
    9186; 1 Ore.Code Ann. (1930) Sec. 1-904; 1 S.C.Code (Michie, 1932)
    Sec. 493; English Rules Under the Judicature Act (The Annual
    Practice, 1937) O. 28, r. 2. Provision for amendment of pleading
    before trial, by leave of court, is in almost every code. If there
    is no statute the power of the court to grant leave is said to be
    inherent. Clark, Code Pleading, (1928) pp. 498, 509.
      Note to Subdivision (b). Compare [former] Equity Rule 19
    (Amendments Generally) and code provisions which allow an amendment
    "at any time in furtherance of justice," (e. g., Ark.Civ.Code
    (Crawford, 1934) Sec. 155) and which allow an amendment of
    pleadings to conform to the evidence, where the adverse party has
    not been misled and prejudiced (e.g., N.M.Stat.Ann. (Courtright,
    1929) Secs. 105-601, 105-602).
      Note to Subdivision (c). "Relation back" is a well recognized
    doctrine of recent and now more frequent application. Compare
    Ala.Code Ann. (Michie, 1928) Sec. 9513; Ill.Rev.Stat. (1937) ch.
    110, Sec. 170(2); 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec.
    308-3(4). See U.S.C., Title 28, Sec. 399 [now 1653] (Amendments to
    show diverse citizenship) for a provision for "relation back."
      Note to Subdivision (d). This is an adaptation of Equity Rule 34
    (Supplemental Pleading).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      Rule 15(d) is intended to give the court broad discretion in
    allowing a supplemental pleading. However, some cases, opposed by
    other cases and criticized by the commentators, have taken the
    rigid and formalistic view that where the original complaint fails
    to state a claim upon which relief can be granted, leave to serve a
    supplemental complaint must be denied. See Bonner v. Elizabeth
    Arden, Inc., 177 F.2d 703 (2d Cir. 1949); Bowles v. Senderowitz, 65
    F.Supp. 548 (E.D.Pa.), rev'd on other grounds, 158 F.2d 435 (3d
    Cir. 1946), cert. denied, Senderowitz v. Fleming, 330 U.S. 848, 67
    S.Ct. 1091, 91 L.Ed. 1292 (1947); cf. LaSalle Nat. Bank v. 222 East
    Chestnut St. Corp., 267 F.2d 247 (7th Cir.), cert. denied, 361 U.S.
    836, 80 S.Ct. 88, 4 L.Ed.2d 77 (1959). But see Camilla Cotton Oil
    Co. v. Spencer Kellogg & Sons, 257 F.2d 162 (5th Cir. 1958); Genuth
    v. National Biscuit Co., 81 F.Supp. 213 (S.D.N.Y. 1948), app.
    dism., 177 F.2d 962 (2d Cir. 1949); 3 Moore's Federal Practice
    &#182; 15.01 [5] (Supp. 1960); 1A Barron & Holtzoff, Federal
    Practice & Procedure 820-21 (Wright ed. 1960). Thus plaintiffs have
    sometimes been needlessly remitted to the difficulties of
    commencing a new action even though events occurring after the
    commencement of the original action have made clear the right to
    relief.
      Under the amendment the court has discretion to permit a
    supplemental pleading despite the fact that the original pleading
    is defective. As in other situations where a supplemental pleading
    is offered, the court is to determine in the light of the
    particular circumstances whether filing should be permitted, and if
    so, upon what terms. The amendment does not attempt to deal with
    such questions as the relation of the statute of limitations to
    supplemental pleadings, the operation of the doctrine of laches, or
    the availability of other defenses. All these questions are for
    decision in accordance with the principles applicable to
    supplemental pleadings generally. Cf. Blau v. Lamb, 191 F.Supp. 906
    (S.D.N.Y. 1961); Lendonsol Amusement Corp. v. B. & Q. Assoc., Inc.,
    23 F.R.Serv. 15d. 3, Case 1 (D.Mass. 1957).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Rule 15(c) is amplified to state more clearly when an amendment
    of a pleading changing the party against whom a claim is asserted
    (including an amendment to correct a misnomer or misdescription of
    a defendant) shall "relate back" to the date of the original
    pleading.
      The problem has arisen most acutely in certain actions by private
    parties against officers or agencies of the United States. Thus an
    individual denied social security benefits by the Secretary of
    Health, Education, and Welfare may secure review of the decision by
    bringing a civil action against that officer within sixty days. 42
    U.S.C. Sec. 405(g) (Supp. III, 1962). In several recent cases the
    claimants instituted timely action but mistakenly named as
    defendant the United States, the Department of HEW, the "Federal
    Security Administration" (a nonexistent agency), and a Secretary
    who had retired from the office nineteen days before. Discovering
    their mistakes, the claimants moved to amend their complaints to
    name the proper defendant; by this time the statutory sixty-day
    period had expired. The motions were denied on the ground that the
    amendment "would amount to the commencement of a new proceeding and
    would not relate back in time so as to avoid the statutory
    provision * * * that suit be brought within sixty days * * *" Cohn
    v. Federal Security Adm., 199 F.Supp. 884, 885 (W.D.N.Y. 1961); see
    also Cunningham v. United States, 199 F.Supp. 541 (W.D.Mo. 1958);
    Hall v. Department of HEW, 199 F.Supp. 833 (S.D.Tex. 1960);
    Sandridge v. Folsom, Secretary of HEW, 200 F.Supp. 25 (M.D.Tenn.
    1959). [The Secretary of Health, Education, and Welfare has
    approved certain ameliorative regulations under 42 U.S.C. Sec.
    405(g). See 29 Fed.Reg. 8209 (June 30, 1964); Jacoby, The Effect of
    Recent Changes in the Law of "Nonstatutory" Judicial Review, 53
    Geo.L.J. 19, 42-43 (1964); see also Simmons v. United States Dept.
    HEW, 328 F.2d 86 (3d Cir. 1964).]
      Analysis in terms of "new proceeding" is traceable to Davis v. L.
    L. Cohen & Co., 268 U.S. 638 (1925), and Mellon v. Arkansas Land &
    Lumber Co., 275 U.S. 460 (1928), but those cases antedate the
    adoption of the Rules which import different criteria for
    determining when an amendment is to "relate back". As lower courts
    have continued to rely on the Davis and Mellon cases despite the
    contrary intent of the Rules, clarification of Rule 15(c) is
    considered advisable.
      Relation back is intimately connected with the policy of the
    statute of limitations. The policy of the statute limiting the time
    for suit against the Secretary of HEW would not have been offended
    by allowing relation back in the situations described above. For
    the government was put on notice of the claim within the stated
    period - in the particular instances, by means of the initial
    delivery of process to a responsible government official (see Rule
    4(d)(4) and (5). In these circumstances, characterization of the
    amendment as a new proceeding is not responsive to the realty, but
    is merely question-begging; and to deny relation back is to defeat
    unjustly the claimant's opportunity to prove his case. See the full
    discussion by Byse, Suing the "Wrong" Defendant in Judicial Review
    of Federal Administrative Action: Proposals for Reform, 77
    Harv.L.Rev. 40 (1963); see also Ill.Civ.P.Act Sec. 46(4).
      Much the same question arises in other types of actions against
    the government (see Byse, supra, at 45 n. 15). In actions between
    private parties, the problem of relation back of amendments
    changing defendants has generally been better handled by the
    courts, but incorrect criteria have sometimes been applied, leading
    sporadically to doubtful results. See 1A Barron & Holtzoff, Federal
    Practice & Procedure Sec. 451 (Wright ed. 1960); 1 id. Sec. 186
    (1960); 2 id. Sec. 543 (1961); 3 Moore's Federal Practice, par.
    15.15 (Cum.Supp. 1962); Annot., Change in Party After Statute of
    Limitations Has Run, 8 A.L.R.2d 6 (1949). Rule 15(c) has been
    amplified to provide a general solution. An amendment changing the
    party against whom a claim is asserted relates back if the
    amendment satisfies the usual condition of Rule 15(c) of "arising
    out of the conduct * * * set forth * * * in the original pleading,"
    and if, within the applicable limitations period, the party brought
    in by amendment, first, received such notice of the institution of
    the action - the notice need not be formal - that he would not be
    prejudiced in defending the action, and, second, knew or should
    have known that the action would have been brought against him
    initially had there not been a mistake concerning the identity of
    the proper party. Revised Rule 15(c) goes on to provide
    specifically in the government cases that the first and second
    requirements are satisfied when the government has been notified in
    the manner there described (see Rule 4(d)(4) and (5). As applied to
    the government cases, revised Rule 15(c) further advances the
    objectives of the 1961 amendment of Rule 25(d) (substitution of
    public officers).
      The relation back of amendments changing plaintiffs is not
    expressly treated in revised Rule 15(c) since the problem is
    generally easier. Again the chief consideration of policy is that
    of the statute of limitations, and the attitude taken in revised
    Rule 15(c) toward change of defendants extends by analogy to
    amendments changing plaintiffs. Also relevant is the amendment of
    Rule 17(a) (real party in interest). To avoid forfeitures of just
    claims, revised Rule 17(a) would provide that no action shall be
    dismissed on the ground that it is not prosecuted in the name of
    the real party in interest until a reasonable time has been allowed
    for correction of the defect in the manner there stated.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The rule has been revised to prevent parties against whom claims
    are made from taking unjust advantage of otherwise inconsequential
    pleading errors to sustain a limitations defense.
      Paragraph (c)(1). This provision is new. It is intended to make
    it clear that the rule does not apply to preclude any relation back
    that may be permitted under the applicable limitations law.
    Generally, the applicable limitations law will be state law. If
    federal jurisdiction is based on the citizenship of the parties,
    the primary reference is the law of the state in which the district
    court sits. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). If
    federal jurisdiction is based on a federal question, the reference
    may be to the law of the state governing relations between the
    parties. E.g., Board of Regents v. Tomanio, 446 U.S. 478 (1980). In
    some circumstances, the controlling limitations law may be federal
    law. E.g., West v. Conrail, Inc., 107 S.Ct. 1538 (1987). Cf.
    Burlington Northern R. Co. v. Woods, 480 U.S. 1 (1987); Stewart
    Organization v. Ricoh, 108 S.Ct. 2239 (1988). Whatever may be the
    controlling body of limitations law, if that law affords a more
    forgiving principle of relation back than the one provided in this
    rule, it should be available to save the claim. Accord, Marshall v.
    Mulrenin, 508 F.2d 39 (1st cir. 1974). If Schiavone v. Fortune, 106
    S.Ct. 2379 (1986) implies the contrary, this paragraph is intended
    to make a material change in the rule.
      Paragraph (c)(3). This paragraph has been revised to change the
    result in Schiavone v. Fortune, supra, with respect to the problem
    of a misnamed defendant. An intended defendant who is notified of
    an action within the period allowed by Rule 4(m) for service of a
    summons and complaint may not under the revised rule defeat the
    action on account of a defect in the pleading with respect to the
    defendant's name, provided that the requirements of clauses (A) and
    (B) have been met. If the notice requirement is met within the Rule
    4(m) period, a complaint may be amended at any time to correct a
    formal defect such as a misnomer or misidentification. On the basis
    of the text of the former rule, the Court reached a result in
    Schiavone v. Fortune that was inconsistent with the liberal
    pleading practices secured by Rule 8. See Bauer, Schiavone: An
    Un-Fortune-ate Illustration of the Supreme Court's Role as
    Interpreter of the Federal Rules of Civil Procedure, 63 NOTRE DAME
    L. REV. 720 (1988); Brussack, Outrageous Fortune: The Case for
    Amending Rule 15(c) Again, 61 S. CAL. L. REV. 671 (1988); Lewis,
    The Excessive History of Federal Rule 15(c) and Its Lessons for
    Civil Rules Revision, 86 MICH. L. REV. 1507 (1987).
      In allowing a name-correcting amendment within the time allowed
    by Rule 4(m), this rule allows not only the 120 days specified in
    that rule, but also any additional time resulting from any
    extension ordered by the court pursuant to that rule, as may be
    granted, for example, if the defendant is a fugitive from service
    of the summons.
      This revision, together with the revision of Rule 4(i) with
    respect to the failure of a plaintiff in an action against the
    United States to effect timely service on all the appropriate
    officials, is intended to produce results contrary to those reached
    in Gardner v. Gartman, 880 F.2d 797 (4th cir. 1989), Rys v. U.S.
    Postal Service, 886 F.2d 443 (1st cir. 1989), Martin's Food &
    Liquor, Inc. v. U.S. Dept. of Agriculture, 14 F.R.S.3d 86 (N.D.
    Ill. 1988). But cf. Montgomery v. United States Postal Service, 867
    F.2d 900 (5th cir. 1989), Warren v. Department of the Army, 867
    F.2d 1156 (8th cir. 1989); Miles v. Department of the Army, 881
    F.2d 777 (9th cir. 1989), Barsten v. Department of the Interior,
    896 F.2d 422 (9th cir. 1990); Brown v. Georgia Dept. of Revenue,
    881 F.2d 1018 (11th cir. 1989).

           CONGRESSIONAL MODIFICATION OF PROPOSED 1991 AMENDMENT       
      Section 11(a) of Pub. L. 102-198 [set out as a note under section
    2074 of this title] provided that Rule 15(c)(3) of the Federal
    Rules of Civil Procedure as transmitted to Congress by the Supreme
    Court to become effective on Dec. 1, 1991, is amended. See 1991
    Amendment note below.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      The amendment conforms the cross reference to Rule 4 to the
    revision of that rule.

                          AMENDMENT BY PUBLIC LAW                      
      1991 - Subd. (c)(3). Pub. L. 102-198 substituted "Rule 4(j)" for
    "Rule 4(m)".

-End-



-CITE-
    28 USC APPENDIX Rule 16                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 16. Pretrial Conferences; Scheduling; Management

-STATUTE-
      (a) Pretrial Conferences; Objectives. In any action, the court
    may in its discretion direct the attorneys for the parties and any
    unrepresented parties to appear before it for a conference or
    conferences before trial for such purposes as
        (1) expediting the disposition of the action;
        (2) establishing early and continuing control so that the case
      will not be protracted because of lack of management;
        (3) discouraging wasteful pretrial activities;
        (4) improving the quality of the trial through more thorough
      preparation, and;
        (5) facilitating the settlement of the case.

      (b) Scheduling and Planning. Except in categories of actions
    exempted by district court rule as inappropriate, the district
    judge, or a magistrate judge when authorized by district court
    rule, shall, after receiving the report from the parties under Rule
    26(f) or after consulting with the attorneys for the parties and
    any unrepresented parties by a scheduling conference, telephone,
    mail, or other suitable means, enter a scheduling order that limits
    the time
        (1) to join other parties and to amend the pleadings;
        (2) to file motions; and
        (3) to complete discovery.

    The scheduling order also may include
        (4) modifications of the times for disclosures under Rules
      26(a) and 26(e)(1) and of the extent of discovery to be
      permitted;
        (5) the date or dates for conferences before trial, a final
      pretrial conference, and trial; and
        (6) any other matters appropriate in the circumstances of the
      case.

    The order shall issue as soon as practicable but in any event
    within 90 days after the appearance of a defendant and within 120
    days after the complaint has been served on a defendant. A schedule
    shall not be modified except upon a showing of good cause and by
    leave of the district judge or, when authorized by local rule, by a
    magistrate judge.
      (c) Subjects for Consideration at Pretrial Conferences. At any
    conference under this rule consideration may be given, and the
    court may take appropriate action, with respect to
        (1) the formulation and simplification of the issues, including
      the elimination of frivolous claims or defenses;
        (2) the necessity or desirability of amendments to the
      pleadings;
        (3) the possibility of obtaining admissions of fact and of
      documents which will avoid unnecessary proof, stipulations
      regarding the authenticity of documents, and advance rulings from
      the court on the admissibility of evidence;
        (4) the avoidance of unnecessary proof and of cumulative
      evidence, and limitations or restrictions on the use of testimony
      under Rule 702 of the Federal Rules of Evidence;
        (5) the appropriateness and timing of summary adjudication
      under Rule 56;
        (6) the control and scheduling of discovery, including orders
      affecting disclosures and discovery pursuant to Rule 26 and Rules
      29 through 37;
        (7) the identification of witnesses and documents, the need and
      schedule for filing and exchanging pretrial briefs, and the date
      or dates for further conferences and for trial;
        (8) the advisability of referring matters to a magistrate judge
      or master;
        (9) settlement and the use of special procedures to assist in
      resolving the dispute when authorized by statute or local rule;
        (10) the form and substance of the pretrial order;
        (11) the disposition of pending motions;
        (12) the need for adopting special procedures for managing
      potentially difficult or protracted actions that may involve
      complex issues, multiple parties, difficult legal questions, or
      unusual proof problems;
        (13) an order for a separate trial pursuant to Rule 42(b) with
      respect to a claim, counterclaim, cross-claim, or third-party
      claim, or with respect to any particular issue in the case;
        (14) an order directing a party or parties to present evidence
      early in the trial with respect to a manageable issue that could,
      on the evidence, be the basis for a judgment as a matter of law
      under Rule 50(a) or a judgment on partial findings under Rule
      52(c);
        (15) an order establishing a reasonable limit on the time
      allowed for presenting evidence; and
        (16) such other matters as may facilitate the just, speedy, and
      inexpensive disposition of the action.

    At least one of the attorneys for each party participating in any
    conference before trial shall have authority to enter into
    stipulations and to make admissions regarding all matters that the
    participants may reasonably anticipate may be discussed. If
    appropriate, the court may require that a party or its
    representative be present or reasonably available by telephone in
    order to consider possible settlement of the dispute.
      (d) Final Pretrial Conference. Any final pretrial conference
    shall be held as close to the time of trial as reasonable under the
    circumstances. The participants at any such conference shall
    formulate a plan for trial, including a program for facilitating
    the admission of evidence. The conference shall be attended by at
    least one of the attorneys who will conduct the trial for each of
    the parties and by any unrepresented parties.
      (e) Pretrial Orders. After any conference held pursuant to this
    rule, an order shall be entered reciting the action taken. This
    order shall control the subsequent course of the action unless
    modified by a subsequent order. The order following a final
    pretrial conference shall be modified only to prevent manifest
    injustice.
      (f) Sanctions. If a party or party's attorney fails to obey a
    scheduling or pretrial order, or if no appearance is made on behalf
    of a party at a scheduling or pretrial conference, or if a party or
    party's attorney is substantially unprepared to participate in the
    conference, or if a party or party's attorney fails to participate
    in good faith, the judge, upon motion or the judge's own
    initiative, may make such orders with regard thereto as are just,
    and among others any of the orders provided in Rule 37(b)(2)(B),
    (C), (D). In lieu of or in addition to any other sanction, the
    judge shall require the party or the attorney representing the
    party or both to pay the reasonable expenses incurred because of
    any noncompliance with this rule, including attorney's fees, unless
    the judge finds that the noncompliance was substantially justified
    or that other circumstances make an award of expenses unjust.

-SOURCE-
    (As amended Apr. 28, 1983, eff. Aug. 1, 1983; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      1. Similar rules of pre-trial procedure are now in force in
    Boston, Cleveland, Detroit, and Los Angeles, and a rule
    substantially like this one has been proposed for the urban centers
    of New York state. For a discussion of the successful operation of
    pre-trial procedure in relieving the congested condition of trial
    calendars of the courts in such cities and for the proposed New
    York plan, see A Proposal for Minimizing Calendar Delay in Jury
    Cases (Dec. 1936 - published by The New York Law Society);
    Pre-Trial Procedure and Administration, Third Annual Report of the
    Judicial Council of the State of New York (1937), pp. 207-243;
    Report of the Commission on the Administration of Justice in New
    York State (1934), pp. (288)-(290). See also Pre-Trial Procedure in
    the Wayne Circuit Court, Detroit, Michigan, Sixth Annual Report of
    the Judicial Council of Michigan (1936), pp. 63-75; and Sunderland,
    The Theory and Practice of Pre-Trial Procedure (Dec. 1937) 36
    Mich.L.Rev. 215-226, 21 J.Am.Jud.Soc. 125. Compare the English
    procedure known as the "summons for directions," English Rules
    Under the Judicature Act (The Annual Practice, 1937) O. 38a; and a
    similar procedure in New Jersey, N.J.Comp.Stat. (2 Cum.Supp.
    1911-1924); N.J. Supreme Court Rules, 2 N.J.Misc.Rep. (1924) 1230,
    Rules 94, 92, 93, 95 (the last three as amended 1933, 11
    N.J.Misc.Rep. (1933) 955).
      2. Compare the similar procedure under Rule 56(d) (Summary
    Judgment - Case Not Fully Adjudicated on Motion). Rule 12(g)
    (Consolidation of Motions), by requiring to some extent the
    consolidation of motions dealing with matters preliminary to trial,
    is a step in the same direction. In connection with clause (5) of
    this rule, see Rules 53(b) (Masters; Reference) and 53(e)(3)
    (Master's Report; In Jury Actions).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       

                               INTRODUCTION                           
      Rule 16 has not been amended since the Federal Rules were
    promulgated in 1938. In many respects, the rule has been a success.
    For example, there is evidence that pretrial conferences may
    improve the quality of justice rendered in the federal courts by
    sharpening the preparation and presentation of cases, tending to
    eliminate trial surprise, and improving, as well as facilitating,
    the settlement process. See 6 Wright & Miller, Federal Practice and
    Procedure: Civil Sec. 1522 (1971). However, in other respects
    particularly with regard to case management, the rule has not
    always been as helpful as it might have been. Thus there has been a
    widespread feeling that amendment is necessary to encourage
    pretrial management that meets the needs of modern litigation. See
    Report of the National Commission for the Review of Antitrust Laws
    and Procedures (1979).
      Major criticism of Rule 16 has centered on the fact that its
    application can result in over-regulation of some cases and
    under-regulation of others. In simple, run-of-the-mill cases,
    attorneys have found pretrial requirements burdensome. It is
    claimed that over-administration leads to a series of mini-trials
    that result in a waste of an attorney's time and needless expense
    to a client. Pollack, Pretrial Procedures More Effectively Handled,
    65 F.R.D. 475 (1974). This is especially likely to be true when
    pretrial proceedings occur long before trial. At the other end of
    the spectrum, the discretionary character of Rule 16 and its
    orientation toward a single conference late in the pretrial process
    has led to under-administration of complex or protracted cases.
    Without judicial guidance beginning shortly after institution,
    these cases often become mired in discovery.
      Four sources of criticism of pretrial have been identified.
    First, conferences often are seen as a mere exchange of legalistic
    contentions without any real analysis of the particular case.
    Second, the result frequently is nothing but a formal agreement on
    minutiae. Third, the conferences are seen as unnecessary and
    time-consuming in cases that will be settled before trial. Fourth,
    the meetings can be ceremonial and ritualistic, having little
    effect on the trial and being of minimal value, particularly when
    the attorneys attending the sessions are not the ones who will try
    the case or lack authority to enter into binding stipulations. See
    generally McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976);
    Pollack, Pretrial Procedures More Effectively Handled, 65 F.R.D.
    475 (1974); Rosenberg, The Pretrial Conference and Effective
    Justice 45 (1964).
      There also have been difficulties with the pretrial orders that
    issue following Rule 16 conferences. When an order is entered far
    in advance of trial, some issues may not be properly formulated.
    Counsel naturally are cautious and often try to preserve as many
    options as possible. If the judge who tries the case did not
    conduct the conference, he could find it difficult to determine
    exactly what was agreed to at the conference. But any insistence on
    a detailed order may be too burdensome, depending on the nature or
    posture of the case.
      Given the significant changes in federal civil litigation since
    1938 that are not reflected in Rule 16, it has been extensively
    rewritten and expanded to meet the challenges of modern litigation.
    Empirical studies reveal that when a trial judge intervenes
    personally at an early stage to assume judicial control over a case
    and to schedule dates for completion by the parties of the
    principal pretrial steps, the case is disposed of by settlement or
    trial more efficiently and with less cost and delay than when the
    parties are left to their own devices. Flanders, Case Management
    and Court Management in United States District Courts 17, Federal
    Judicial Center (1977). Thus, the rule mandates a pretrial
    scheduling order. However, although scheduling and pretrial
    conferences are encouraged in appropriate cases, they are not
    mandated.

                                DISCUSSION                            
      Subdivision (a); Pretrial Conferences; Objectives. The amended
    rule makes scheduling and case management an express goal of
    pretrial procedure. This is done in Rule 16(a) by shifting the
    emphasis away from a conference focused solely on the trial and
    toward a process of judicial management that embraces the entire
    pretrial phase, especially motions and discovery. In addition, the
    amendment explicitly recognizes some of the objectives of pretrial
    conferences and the powers that many courts already have assumed.
    Rule 16 thus will be a more accurate reflection of actual practice.
      Subdivision (b); Scheduling and Planning. The most significant
    change in Rule 16 is the mandatory scheduling order described in
    Rule 16(b), which is based in part on Wisconsin Civil Procedure
    Rule 802.10. The idea of scheduling orders is not new. It has been
    used by many federal courts. See, e.g., Southern District of
    Indiana, Local Rule 19.
      Although a mandatory scheduling order encourages the court to
    become involved in case management early in the litigation, it
    represents a degree of judicial involvement that is not warranted
    in many cases. Thus, subdivision (b) permits each district court to
    promulgate a local rule under Rule 83 exempting certain categories
    of cases in which the burdens of scheduling orders exceed the
    administrative efficiencies that would be gained. See Eastern
    District of Virginia, Local Rule 12(1). Logical candidates for this
    treatment include social security disability matters, habeas corpus
    petitions, forfeitures, and reviews of certain administrative
    actions.
      A scheduling conference may be requested either by the judge, a
    magistrate when authorized by district court rule, or a party
    within 120 days after the summons and complaint are filed. If a
    scheduling conference is not arranged within that time and the case
    is not exempted by local rule, a scheduling order must be issued
    under Rule 16(b), after some communication with the parties, which
    may be by telephone or mail rather than in person. The use of the
    term "judge" in subdivision (b) reflects the Advisory Committee's
    judgment that is it preferable that this task should be handled by
    a district judge rather than a magistrate, except when the
    magistrate is acting under 28 U.S.C. Sec. 636(c). While personal
    supervision by the trial judge is preferred, the rule, in
    recognition of the impracticality or difficulty of complying with
    such a requirement in some districts, authorizes a district by
    local rule to delegate the duties to a magistrate. In order to
    formulate a practicable scheduling order, the judge, or a
    magistrate when authorized by district court rule, and attorneys
    are required to develop a timetable for the matters listed in Rule
    16(b)(1)-(3). As indicated in Rule 16(b)(4)-(5), the order may also
    deal with a wide range of other matters. The rule is phrased
    permissively as to clauses (4) and (5), however, because scheduling
    these items at an early point may not be feasible or appropriate.
    Even though subdivision (b) relates only to scheduling, there is no
    reason why some of the procedural matters listed in Rule 16(c)
    cannot be addressed at the same time, at least when a scheduling
    conference is held.
      Item (1) assures that at some point both the parties and the
    pleadings will be fixed, by setting a time within which joinder of
    parties shall be completed and the pleadings amended.
      Item (2) requires setting time limits for interposing various
    motions that otherwise might be used as stalling techniques.
      Item (3) deals with the problem of procrastination and delay by
    attorneys in a context in which scheduling is especially important
    - discovery. Scheduling the completion of discovery can serve some
    of the same functions as the conference described in Rule 26(f).
      Item (4) refers to setting dates for conferences and for trial.
    Scheduling multiple pretrial conferences may well be desirable if
    the case is complex and the court believes that a more elaborate
    pretrial structure, such as that described in the Manual for
    Complex Litigation, should be employed. On the other hand, only one
    pretrial conference may be necessary in an uncomplicated case.
      As long as the case is not exempted by local rule, the court must
    issue a written scheduling order even if no scheduling conference
    is called. The order, like pretrial orders under the former rule
    and those under new Rule 16(c), normally will "control the
    subsequent course of the action." See Rule 16(e). After
    consultation with the attorneys for the parties and any
    unrepresented parties - a formal motion is not necessary - the
    court may modify the schedule on a showing of good cause if it
    cannot reasonably be met despite the diligence of the party seeking
    the extension. Since the scheduling order is entered early in the
    litigation, this standard seems more appropriate than a "manifest
    injustice" or "substantial hardship" test. Otherwise, a fear that
    extensions will not be granted may encourage counsel to request the
    longest possible periods for completing pleading, joinder, and
    discovery. Moreover, changes in the court's calendar sometimes will
    oblige the judge or magistrate when authorized by district court
    rule to modify the scheduling order.
      The district courts undoubtedly will develop several prototype
    scheduling orders for different types of cases. In addition, when
    no formal conference is held, the court may obtain scheduling
    information by telephone, mail, or otherwise. In many instances
    this will result in a scheduling order better suited to the
    individual case than a standard order, without taking the time that
    would be required by a formal conference.
      Rule 16(b) assures that the judge will take some early control
    over the litigation, even when its character does not warrant
    holding a scheduling conference. Despite the fact that the process
    of preparing a scheduling order does not always bring the attorneys
    and judge together, the fixing of time limits serves
      to stimulate litigants to narrow the areas of inquiry and
      advocacy to those they believe are truly relevant and material.
      Time limits not only compress the amount of time for litigation,
      they should also reduce the amount of resources invested in
      litigation. Litigants are forced to establish discovery
      priorities and thus to do the most important work first.
    Report of the National Commission for the Review of Antitrust Laws
    and Procedures 28 (1979).
      Thus, except in exempted cases, the judge or a magistrate when
    authorized by district court rule will have taken some action in
    every case within 120 days after the complaint is filed that
    notifies the attorneys that the case will be moving toward trial.
    Subdivision (b) is reenforced by subdivision (f), which makes it
    clear that the sanctions for violating a scheduling order are the
    same as those for violating a pretrial order.
      Subdivision (c); Subjects to be Discussed at Pretrial
    Conferences. This subdivision expands upon the list of things that
    may be discussed at a pretrial conference that appeared in original
    Rule 16. The intention is to encourage better planning and
    management of litigation. Increased judicial control during the
    pretrial process accelerates the processing and termination of
    cases. Flanders, Case Management and Court Management in United
    States District Courts, Federal Judicial Center (1977). See also
    Report of the National Commission for the Review of Antitrust Laws
    and Procedures (1979).
      The reference in Rule 16(c)(1) to "formulation" is intended to
    clarify and confirm the court's power to identify the litigable
    issues. It has been added in the hope of promoting efficiency and
    conserving judicial resources by identifying the real issues prior
    to trial, thereby saving time and expense for everyone. See
    generally Meadow Gold Prods. Co. v. Wright, 278 F.2d 867 (D.C. Cir.
    1960). The notion is emphasized by expressly authorizing the
    elimination of frivolous claims or defenses at a pretrial
    conference. There is no reason to require that this await a formal
    motion for summary judgment. Nor is there any reason for the court
    to wait for the parties to initiate the process called for in Rule
    16(c)(1).
      The timing of any attempt at issue formulation is a matter of
    judicial discretion. In relatively simple cases it may not be
    necessary or may take the form of a stipulation between counsel or
    a request by the court that counsel work together to draft a
    proposed order.
      Counsel bear a substantial responsibility for assisting the court
    in identifying the factual issues worthy of trial. If counsel fail
    to identify an issue for the court, the right to have the issue
    tried is waived. Although an order specifying the issues is
    intended to be binding, it may be amended at trial to avoid
    manifest injustice. See Rule 16(e). However, the rule's
    effectiveness depends on the court employing its discretion
    sparingly.
      Clause (6) acknowledges the widespread availability and use of
    magistrates. The corresponding provision in the original rule
    referred only to masters and limited the function of the reference
    to the making of "findings to be used as evidence" in a case to be
    tried to a jury. The new text is not limited and broadens the
    potential use of a magistrate to that permitted by the Magistrate's
    Act.
      Clause (7) explicitly recognizes that it has become commonplace
    to discuss settlement at pretrial conferences. Since it obviously
    eases crowded court dockets and results in savings to the litigants
    and the judicial system, settlement should be facilitated at as
    early a stage of the litigation as possible. Although it is not the
    purpose of Rule 16(b)(7) to impose settlement negotiations on
    unwilling litigants, it is believed that providing a neutral forum
    for discussing the subject might foster it. See Moore's Federal
    Practice &#182; 16.17; 6 Wright & Miller, Federal Practice and
    Procedure: Civil Sec. 1522 (1971). For instance, a judge to whom a
    case has been assigned may arrange, on his own motion or a at a
    party's request, to have settlement conferences handled by another
    member of the court or by a magistrate. The rule does not make
    settlement conferences mandatory because they would be a waste of
    time in many cases. See Flanders, Case Management and Court
    Management in the United States District Courts, 39, Federal
    Judicial Center (1977). Requests for a conference from a party
    indicating a willingness to talk settlement normally should be
    honored, unless thought to be frivolous or dilatory.
      A settlement conference is appropriate at any time. It may be
    held in conjunction with a pretrial or discovery conference,
    although various objectives of pretrial management, such as moving
    the case toward trial, may not always be compatible with settlement
    negotiations, and thus a separate settlement conference may be
    desirable. See 6 Wright & Miller, Federal Practice and Procedure:
    Civil Sec. 1522, at p. 751 (1971).
      In addition to settlement, Rule 16(c)(7) refers to exploring the
    use of procedures other than litigation to resolve the dispute.
    This includes urging the litigants to employ adjudicatory
    techniques outside the courthouse. See, for example, the experiment
    described in Green, Marks & Olson, Settling Large Case Litigation:
    An Alternative Approach, 11 Loyola of L.A. L.Rev. 493 (1978).
      Rule 16(c)(10) authorizes the use of special pretrial procedures
    to expedite the adjudication of potentially difficult or protracted
    cases. Some district courts obviously have done so for many years.
    See Rubin, The Managed Calendar: Some Pragmatic Suggestions About
    Achieving the Just, Speedy and Inexpensive Determination of Civil
    Cases in Federal Courts, 4 Just. Sys. J. 135 (1976). Clause 10
    provides an explicit authorization for such procedures and
    encourages their use. No particular techniques have been described;
    the Committee felt that flexibility and experience are the keys to
    efficient management of complex cases. Extensive guidance is
    offered in such documents as the Manual for Complex Litigation.
      The rule simply identifies characteristics that make a case a
    strong candidate for special treatment. The four mentioned are
    illustrative, not exhaustive, and overlap to some degree. But
    experience has shown that one or more of them will be present in
    every protracted or difficult case and it seems desirable to set
    them out. See Kendig, Procedures for Management of Non-Routine
    Cases, 3 Hofstra L.Rev. 701 (1975).
      The last sentence of subdivision (c) is new. See Wisconsin Civil
    Procedure Rule 802.11(2). It has been added to meet one of the
    criticisms of the present practice described earlier and insure
    proper preconference preparation so that the meeting is more than a
    ceremonial or ritualistic event. The reference to "authority" is
    not intended to insist upon the ability to settle the litigation.
    Nor should the rule be read to encourage the judge conducting the
    conference to compel attorneys to enter into stipulations or to
    make admissions that they consider to be unreasonable, that touch
    on matters that could not normally have been anticipated to arise
    at the conference, or on subjects of a dimension that normally
    require prior consultation with and approval from the client.
      Subdivision (d); Final Pretrial Conference. This provision has
    been added to make it clear that the time between any final
    pretrial conference (which in a simple case may be the only
    pretrial conference) and trail should be as short as possible to be
    certain that the litigants make substantial progress with the case
    and avoid the inefficiency of having that preparation repeated when
    there is a delay between the last pretrial conference and trial. An
    optimum time of 10 days to two weeks has been suggested by one
    federal judge. Rubin, The Managed Calendar: Some Pragmatic
    Suggestions About Achieving the Just, Speedy and Inexpensive
    Determination of Civil Cases in Federal Courts, 4 Just. Sys. J.
    135, 141 (1976). The Committee, however, concluded that it would be
    inappropriate to fix a precise time in the rule, given the numerous
    variables that could bear on the matter. Thus the timing has been
    left to the court's discretion.
      At least one of the attorneys who will conduct the trial for each
    party must be present at the final pretrial conference. At this
    late date there should be no doubt as to which attorney or
    attorneys this will be. Since the agreements and stipulations made
    at this final conference will control the trial, the presence of
    lawyers who will be involved in it is especially useful to assist
    the judge in structuring the case, and to lead to a more effective
    trial.
      Subdivision (e); Pretrial Orders. Rule 16(e) does not
    substantially change the portion of the original rule dealing with
    pretrial orders. The purpose of an order is to guide the course of
    the litigation and the language of the original rule making that
    clear has been retained. No compelling reason has been found for
    major revision, especially since this portion of the rule has been
    interpreted and clarified by over forty years of judicial decisions
    with comparatively little difficulty. See 6 Wright & Miller,
    Federal Practice and Procedure: Civil Secs. 1521-30 (1971). Changes
    in language therefore have been kept to a minimum to avoid
    confusion.
      Since the amended rule encourages more extensive pretrial
    management than did the original, two or more conferences may be
    held in many cases. The language of Rule 16(e) recognizes this
    possibility and the corresponding need to issue more than one
    pretrial order in a single case.
      Once formulated, pretrial orders should not be changed lightly;
    but total inflexibility is undesirable. See, e.g., Clark v.
    Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir. 1964). The exact words
    used to describe the standard for amending the pretrial order
    probably are less important than the meaning given them in
    practice. By not imposing any limitation on the ability to modify a
    pretrial order, the rule reflects the reality that in any process
    of continuous management what is done at one conference may have to
    be altered at the next. In the case of the final pretrial order,
    however, a more stringent standard is called for and the words "to
    prevent manifest injustice," which appeared in the original rule,
    have been retained. They have the virtue of familiarity and
    adequately describe the restraint the trial judge should exercise.
      Many local rules make the plaintiff's attorney responsible for
    drafting a proposed pretrial order, either before or after the
    conference. Others allow the court to appoint any of the attorneys
    to perform the task, and others leave it to the court. See Note,
    Pretrial Conference: A Critical Examination of Local Rules Adopted
    by Federal District Courts, 64 Va.L.Rev. 467 (1978). Rule 16 has
    never addressed this matter. Since there is no consensus about
    which method of drafting the order works best and there is no
    reason to believe that nationwide uniformity is needed, the rule
    has been left silent on the point. See Handbook for Effective
    Pretrial Procedure, 37 F.R.D. 225 (1964).
      Subdivision (f); Sanctions. Original Rule 16 did not mention the
    sanctions that might be imposed for failing to comply with the
    rule. However, courts have not hesitated to enforce it by
    appropriate measures. See, e.g., Link v. Wabash R. Co., 370 U.S.
    628 (1962) (district court's dismissal under Rule 41(b) after
    plaintiff's attorney failed to appear at a pretrial conference
    upheld); Admiral Theatre Corp. v. Douglas Theatre, 585 F.2d 877
    (8th Cir. 1978) (district court has discretion to exclude exhibits
    or refuse to permit the testimony of a witness not listed prior to
    trial in contravention of its pretrial order).
      To reflect that existing practice, and to obviate dependence upon
    Rule 41(b) or the court's inherent power to regulate litigation,
    cf. Societe Internationale Pour Participations Industrielles et
    Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), Rule 16(f)
    expressly provides for imposing sanctions on disobedient or
    recalcitrant parties, their attorneys, or both in four types of
    situations. Rodes, Ripple & Mooney, Sanctions Imposable for
    Violations of the Federal Rules of Civil Procedure 65-67, 80-84,
    Federal Judicial Center (1981). Furthermore, explicit reference to
    sanctions reenforces the rule's intention to encourage forceful
    judicial management.
      Rule 16(f) incorporates portions of Rule 37(b)(2), which
    prescribes sanctions for failing to make discovery. This should
    facilitate application of Rule 16(f), since courts and lawyers
    already are familiar with the Rule 37 standards. Among the
    sanctions authorized by the new subdivision are: preclusion order,
    striking a pleading, staying the proceeding, default judgment,
    contempt, and charging a party, his attorney, or both with the
    expenses, including attorney's fees, caused by noncompliance. The
    contempt sanction, however, is only available for a violation of a
    court order. The references in Rule 16(f) are not exhaustive.
      As is true under Rule 37(b)(2), the imposition of sanctions may
    be sought by either the court or a party. In addition, the court
    has discretion to impose whichever sanction it feels is appropriate
    under the circumstances. Its action is reviewable under the
    abuse-of-discretion standard. See National Hockey League v.
    Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (b). One purpose of this amendment is to provide a
    more appropriate deadline for the initial scheduling order required
    by the rule. The former rule directed that the order be entered
    within 120 days from the filing of the complaint. This requirement
    has created problems because Rule 4(m) allows 120 days for service
    and ordinarily at least one defendant should be available to
    participate in the process of formulating the scheduling order. The
    revision provides that the order is to be entered within 90 days
    after the date a defendant first appears (whether by answer or by a
    motion under Rule 12) or, if earlier (as may occur in some actions
    against the United States or if service is waived under Rule 4),
    within 120 days after service of the complaint on a defendant. The
    longer time provided by the revision is not intended to encourage
    unnecessary delays in entering the scheduling order. Indeed, in
    most cases the order can and should be entered at a much earlier
    date. Rather, the additional time is intended to alleviate problems
    in multi-defendant cases and should ordinarily be adequate to
    enable participation by all defendants initially named in the
    action.
      In many cases the scheduling order can and should be entered
    before this deadline. However, when setting a scheduling
    conference, the court should take into account the effect this
    setting will have in establishing deadlines for the parties to meet
    under revised Rule 26(f) and to exchange information under revised
    Rule 26(a)(1). While the parties are expected to stipulate to
    additional time for making their disclosures when warranted by the
    circumstances, a scheduling conference held before defendants have
    had time to learn much about the case may result in diminishing the
    value of the Rule 26(f) meeting, the parties' proposed discovery
    plan, and indeed the conference itself.
      New paragraph (4) has been added to highlight that it will
    frequently be desirable for the scheduling order to include
    provisions relating to the timing of disclosures under Rule 26(a).
    While the initial disclosures required by Rule 26(a)(1) will
    ordinarily have been made before entry of the scheduling order, the
    timing and sequence for disclosure of expert testimony and of the
    witnesses and exhibits to be used at trial should be tailored to
    the circumstances of the case and is a matter that should be
    considered at the initial scheduling conference. Similarly, the
    scheduling order might contain provisions modifying the extent of
    discovery (e.g., number and length of depositions) otherwise
    permitted under these rules or by a local rule.
      The report from the attorneys concerning their meeting and
    proposed discovery plan, as required by revised Rule 26(f), should
    be submitted to the court before the scheduling order is entered.
    Their proposals, particularly regarding matters on which they
    agree, should be of substantial value to the court in setting the
    timing and limitations on discovery and should reduce the time of
    the court needed to conduct a meaningful conference under Rule
    16(b). As under the prior rule, while a scheduling order is
    mandated, a scheduling conference is not. However, in view of the
    benefits to be derived from the litigants and a judicial officer
    meeting in person, a Rule 16(b) conference should, to the extent
    practicable, be held in all cases that will involve discovery.
      This subdivision, as well as subdivision (c)(8), also is revised
    to reflect the new title of United States Magistrate Judges
    pursuant to the Judicial Improvements Act of 1990.
      Subdivision (c). The primary purposes of the changes in
    subdivision (c) are to call attention to the opportunities for
    structuring of trial under Rules 42, 50, and 52 and to eliminate
    questions that have occasionally been raised regarding the
    authority of the court to make appropriate orders designed either
    to facilitate settlement or to provide for an efficient and
    economical trial. The prefatory language of this subdivision is
    revised to clarify the court's power to enter appropriate orders at
    a conference notwithstanding the objection of a party. Of course
    settlement is dependent upon agreement by the parties and, indeed,
    a conference is most effective and productive when the parties
    participate in a spirit of cooperation and mindful of their
    responsibilities under Rule 1.
      Paragraph (4) is revised to clarify that in advance of trial the
    court may address the need for, and possible limitations on, the
    use of expert testimony under Rule 702 of the Federal Rules of
    Evidence. Even when proposed expert testimony might be admissible
    under the standards of Rules 403 and 702 of the evidence rules, the
    court may preclude or limit such testimony if the cost to the
    litigants - which may include the cost to adversaries of securing
    testimony on the same subjects by other experts - would be unduly
    expensive given the needs of the case and the other evidence
    available at trial.
      Paragraph (5) is added (and the remaining paragraphs renumbered)
    in recognition that use of Rule 56 to avoid or reduce the scope of
    trial is a topic that can, and often should, be considered at a
    pretrial conference. Renumbered paragraph (11) enables the court to
    rule on pending motions for summary adjudication that are ripe for
    decision at the time of the conference. Often, however, the
    potential use of Rule 56 is a matter that arises from discussions
    during a conference. The court may then call for motions to be
    filed.
      Paragraph (6) is added to emphasize that a major objective of
    pretrial conferences should be to consider appropriate controls on
    the extent and timing of discovery. In many cases the court should
    also specify the times and sequence for disclosure of written
    reports from experts under revised Rule 26(a)(2)(B) and perhaps
    direct changes in the types of experts from whom written reports
    are required. Consideration should also be given to possible
    changes in the timing or form of the disclosure of trial witnesses
    and documents under Rule 26(a)(3).
      Paragraph (9) is revised to describe more accurately the various
    procedures that, in addition to traditional settlement conferences,
    may be helpful in settling litigation. Even if a case cannot
    immediately be settled, the judge and attorneys can explore
    possible use of alternative procedures such as mini-trials, summary
    jury trials, mediation, neutral evaluation, and nonbinding
    arbitration that can lead to consensual resolution of the dispute
    without a full trial on the merits. The rule acknowledges the
    presence of statutes and local rules or plans that may authorize
    use of some of these procedures even when not agreed to by the
    parties. See 28 U.S.C. Secs. 473(a)(6), 473(b)(4), 651-58; Section
    104(b)(2), Pub. L. 101-650. The rule does not attempt to resolve
    questions as to the extent a court would be authorized to require
    such proceedings as an exercise of its inherent powers.
      The amendment of paragraph (9) should be read in conjunction with
    the sentence added to the end of subdivision (c), authorizing the
    court to direct that, in appropriate cases, a responsible
    representative of the parties be present or available by telephone
    during a conference in order to discuss possible settlement of the
    case. The sentence refers to participation by a party or its
    representative. Whether this would be the individual party, an
    officer of a corporate party, a representative from an insurance
    carrier, or someone else would depend on the circumstances.
    Particularly in litigation in which governmental agencies or large
    amounts of money are involved, there may be no one with on-the-spot
    settlement authority, and the most that should be expected is
    access to a person who would have a major role in submitting a
    recommendation to the body or board with ultimate decision-making
    responsibility. The selection of the appropriate representative
    should ordinarily be left to the party and its counsel. Finally, it
    should be noted that the unwillingness of a party to be available,
    even by telephone, for a settlement conference may be a clear
    signal that the time and expense involved in pursuing settlement is
    likely to be unproductive and that personal participation by the
    parties should not be required.
      The explicit authorization in the rule to require personal
    participation in the manner stated is not intended to limit the
    reasonable exercise of the court's inherent powers, e.g., G.
    Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir.
    1989), or its power to require party participation under the Civil
    Justice Reform Act of 1990. See 28 U.S.C. Sec. 473(b)(5) (civil
    justice expense and delay reduction plans adopted by district
    courts may include requirement that representatives "with authority
    to bind [parties] in settlement discussions" be available during
    settlement conferences).
      New paragraphs (13) and (14) are added to call attention to the
    opportunities for structuring of trial under Rule 42 and under
    revised Rules 50 and 52.
      Paragraph (15) is also new. It supplements the power of the court
    to limit the extent of evidence under Rules 403 and 611(a) of the
    Federal Rules of Evidence, which typically would be invoked as a
    result of developments during trial. Limits on the length of trial
    established at a conference in advance of trial can provide the
    parties with a better opportunity to determine priorities and
    exercise selectivity in presenting evidence than when limits are
    imposed during trial. Any such limits must be reasonable under the
    circumstances, and ordinarily the court should impose them only
    after receiving appropriate submissions from the parties outlining
    the nature of the testimony expected to be presented through
    various witnesses, and the expected duration of direct and
    cross-examination.

-End-


-CITE-
    28 USC APPENDIX IV. PARTIES                                 01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
                                IV. PARTIES                            

-End-



-CITE-
    28 USC APPENDIX Rule 17                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 17. Parties Plaintiff and Defendant; Capacity

-STATUTE-
      (a) Real Party in Interest. Every action shall be prosecuted in
    the name of the real party in interest. An executor, administrator,
    guardian, bailee, trustee of an express trust, a party with whom or
    in whose name a contract has been made for the benefit of another,
    or a party authorized by statute may sue in that person's own name
    without joining the party for whose benefit the action is brought;
    and when a statute of the United States so provides, an action for
    the use or benefit of another shall be brought in the name of the
    United States. No action shall be dismissed on the ground that it
    is not prosecuted in the name of the real party in interest until a
    reasonable time has been allowed after objection for ratification
    of commencement of the action by, or joinder or substitution of,
    the real party in interest; and such ratification, joinder, or
    substitution shall have the same effect as if the action had been
    commenced in the name of the real party in interest.
      (b) Capacity To Sue or Be Sued. The capacity of an individual,
    other than one acting in a representative capacity, to sue or be
    sued shall be determined by the law of the individual's domicile.
    The capacity of a corporation to sue or be sued shall be determined
    by the law under which it was organized. In all other cases
    capacity to sue or be sued shall be determined by the law of the
    state in which the district court is held, except (1) that a
    partnership or other unincorporated association, which has no such
    capacity by the law of such state, may sue or be sued in its common
    name for the purpose of enforcing for or against it a substantive
    right existing under the Constitution or laws of the United States,
    and (2) that the capacity of a receiver appointed by a court of the
    United States to sue or be sued in a court of the United States is
    governed by Title 28, U.S.C., Sections 754 and 959(a).
      (c) Infants or Incompetent Persons. Whenever an infant or
    incompetent person has a representative, such as a general
    guardian, committee, conservator, or other like fiduciary, the
    representative may sue or defend on behalf of the infant or
    incompetent person. An infant or incompetent person who does not
    have a duly appointed representative may sue by a next friend or by
    a guardian ad litem. The court shall appoint a guardian ad litem
    for an infant or incompetent person not otherwise represented in an
    action or shall make such other order as it deems proper for the
    protection of the infant or incompetent person.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
    Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L. 100-690,
    title VII, Sec. 7049, Nov. 18, 1988, 102 Stat. 4401.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). The real party in interest provision,
    except for the last clause which is new, is taken verbatim from
    [former] Equity Rule 37 (Parties Generally - Intervention), except
    that the word "expressly" has been omitted. For similar provisions
    see N.Y.C.P.A. (1937) Sec. 210; Wyo.Rev.Stat.Ann. (1931) Secs.
    89-501, 89-502, 89-503; English Rules Under the Judicature Act (The
    Annual Practice, 1937) O. 16, r. 8. See also Equity Rule 41 (Suit
    to Execute Trusts of Will - Heir as Party). For examples of
    statutes of the United States providing particularly for an action
    for the use or benefit of another in the name of the United States,
    see U.S.C., [former] Title 40, Sec. 270b (Suit by persons
    furnishing labor and material for work on public building contracts
    * * * may sue on a payment bond, "in the name of the United States
    for the use of the person suing") [now 40 U.S.C. Sec. 3133(b),
    (c)]; and U.S.C., Title 25, Sec. 201 (Penalties under laws relating
    to Indians - how recovered). Compare U.S.C., Title 26, [former]
    Sec. 1645(c) (Suits for penalties, fines, and forfeitures, under
    this title, where not otherwise provided for, to be in name of
    United States).
      Note to Subdivision (b). For capacity see generally Clark and
    Moore, A New Federal Civil Procedure - II. Pleadings and Parties,
    44 Yale L.J. 1291, 1312-1317 (1935) and specifically Coppedge v.
    Clinton, 72 F.(2d) 531 (C.C.A.10th, 1934) (natural person); David
    Lupton's Sons Co. v. Automobile Club of America, 225 U.S. 489
    (1912) (corporation); Puerto Rico v. Russell & Co., 288 U.S. 476
    (1933) (unincorporated ass'n.); United Mine Workers of America v.
    Coronado Coal Co., 259 U.S. 344 (1922) (federal substantive right
    enforced against unincorporated association by suit against the
    association in its common name without naming all its members as
    parties). This rule follows the existing law as to such
    associations, as declared in the case last cited above. Compare
    Moffat Tunnel League v. United States, 289 U.S. 113 (1933). See
    note to Rule 23, clause (1).
      Note to Subdivision (c). The provision for infants and
    incompetent persons is substantially [former] Equity Rule 70 (Suits
    by or Against Incompetents) with slight additions. Compare the more
    detailed English provisions, English Rules Under the Judicature Act
    (The Annual Practice, 1937) O. 16, r.r. 16-21.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      The new matter [in subdivision (b)] makes clear the controlling
    character of Rule 66 regarding suits by or against a federal
    receiver in a federal court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      Since the statute states the capacity of a federal receiver to
    sue or be sued, a repetitive statement in the rule is confusing and
    undesirable.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      The minor change in the text of the rule is designed to make it
    clear that the specific instances enumerated are not exceptions to,
    but illustrations of, the rule. These illustrations, of course,
    carry no negative implication to the effect that there are not
    other instances of recognition as the real party in interest of one
    whose standing as such may be in doubt. The enumeration is simply
    of cases in which there might be substantial doubt as to the issue
    but for the specific enumeration. There are other potentially
    arguable cases that are not excluded by the enumeration. For
    example, the enumeration states that the promisee in a contract for
    the benefit of a third party may sue as real party in interest; it
    does not say, because it is obvious, that the third-party
    beneficiary may sue (when the applicable law gives him that right.)
      The rule adds to the illustrative list of real parties in
    interest a bailee - meaning, of course, a bailee suing on behalf of
    the bailor with respect to the property bailed. (When the possessor
    of property other than the owner sues for an invasion of the
    possessory interest he is the real party in interest.) The word
    "bailee" is added primarily to preserve the admiralty practice
    whereby the owner of a vessel as bailee of the cargo, or the master
    of the vessel as bailee of both vessel and cargo, sues for damage
    to either property interest or both. But there is no reason to
    limit such a provision to maritime situations. The owner of a
    warehouse in which household furniture is stored is equally
    entitled to sue on behalf of the numerous owners of the furniture
    stored. Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
      The provision that no action shall be dismissed on the ground
    that it is not prosecuted in the name of the real party in interest
    until a reasonable time has been allowed, after the objection has
    been raised, for ratification, substitution, etc., is added simply
    in the interests of justice. In its origin the rule concerning the
    real party in interest was permissive in purpose: it was designed
    to allow an assignee to sue in his own name. That having been
    accomplished, the modern function of the rule in its negative
    aspect is simply to protect the defendant against a subsequent
    action by the party actually entitled to recover, and to insure
    generally that the judgment will have its proper effect as res
    judicata.
      This provision keeps pace with the law as it is actually
    developing. Modern decisions are inclined to be lenient when an
    honest mistake has been made in choosing the party in whose name
    the action is to be filed - in both maritime and nonmaritime cases.
    See Levinson v. Deupree, 345 U.S. 648 (1953); Link Aviation, Inc.
    v. Downs, 325 F.2d 613 (D.C.Cir. 1963). The provision should not be
    misunderstood or distorted. It is intended to prevent forfeiture
    when determination of the proper party to sue is difficult or when
    an understandable mistake has been made. It does not mean, for
    example, that, following an airplane crash in which all aboard were
    killed, an action may be filed in the name of John Doe (a
    fictitious person), as personal representative of Richard Roe
    (another fictitious person), in the hope that at a later time the
    attorney filing the action may substitute the real name of the real
    personal representative of a real victim, and have the benefit of
    suspension of the limitation period. It does not even mean, when an
    action is filed by the personal representative of John Smith, of
    Buffalo, in the good faith belief that he was aboard the flight,
    that upon discovery that Smith is alive and well, having missed the
    fatal flight, the representative of James Brown, of San Francisco,
    an actual victim, can be substituted to take advantage of the
    suspension of the limitation period. It is, in cases of this sort,
    intended to insure against forfeiture and injustice - in short, to
    codify in broad terms the salutary principle of Levinson v.
    Deupree, 345 U.S. 648 (1953), and Link Aviation, Inc. v. Downs, 325
    F.2d 613 (D.C.Cir. 1963).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendment is technical. No substantive change is intended.

                          AMENDMENT BY PUBLIC LAW                      
      1988 - Subd. (a). Pub. L. 100-690, which directed amendment of
    subd. (a) by striking "with him", could not be executed because of
    the intervening amendment by the Court by order dated Apr. 25,
    1988, eff. Aug. 1, 1988.

-End-



-CITE-
    28 USC APPENDIX Rule 18                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 18. Joinder of Claims and Remedies

-STATUTE-
      (a) Joinder of Claims. A party asserting a claim to relief as an
    original claim, counterclaim, cross-claim, or third-party claim,
    may join, either as independent or as alternate claims, as many
    claims, legal, equitable, or maritime, as the party has against an
    opposing party.
      (b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim
    is one heretofore cognizable only after another claim has been
    prosecuted to a conclusion, the two claims may be joined in a
    single action; but the court shall grant relief in that action only
    in accordance with the relative substantive rights of the parties.
    In particular, a plaintiff may state a claim for money and a claim
    to have set aside a conveyance fraudulent as to that plaintiff,
    without first having obtained a judgment establishing the claim for
    money.

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). 1. Recent development, both in code and
    common law states, has been toward unlimited joinder of actions.
    See Ill.Rev.Stat. (1937) ch. 110, Sec. 168; N.J.S.A. 2:27-37, as
    modified by N.J.Sup.Ct.Rules, Rule 21, 2 N.J.Misc. 1208 (1924);
    N.Y.C.P.A. (1937) Sec. 258 as amended by Laws of 1935, ch. 339.
      2. This provision for joinder of actions has been patterned upon
    [former] Equity Rule 26 (Joinder of Causes of Action) and broadened
    to include multiple parties. Compare the English practice, English
    Rules Under the Judicature Act (The Annual Practice, 1937) O. 18,
    r.r. 1-9 (noting rules 1 and 6). The earlier American codes set
    forth classes of joinder, following the now abandoned New York
    rule. See N.Y.C.P.A. Sec. 258 before amended in 1935; Compare
    Kan.Gen.Stat.Ann. (1935) Sec. 60-601; Wis.Stat. (1935) Sec. 263.04
    for the more liberal practice.
      3. The provisions of this rule for the joinder of claims are
    subject to Rule 82 (Jurisdiction and Venue Unaffected). For the
    jurisdictional aspects of joinder of claims, see Shulman and
    Jaegerman, Some Jurisdictional Limitations on Federal Procedure
    (1936), 45 Yale L.J. 393, 397-410. For separate trials of joined
    claims, see Rule 42(b).
      Note to Subdivision (b). This rule is inserted to make it clear
    that in a single action a party should be accorded all the relief
    to which he is entitled regardless of whether it is legal or
    equitable or both. This necessarily includes a deficiency judgment
    in foreclosure actions formerly provided for in [former] Equity
    Rule 10 (Decree for Deficiency in Foreclosures, Etc.). In respect
    to fraudulent conveyances the rule changes the former rule
    requiring a prior judgment against the owner (Braun v. American
    Laundry Mach. Co., 56 F.(2d) 197 (S.D.N.Y. 1932)) to conform to the
    provisions of the Uniform Fraudulent Conveyance Act, Secs. 9 and
    10. See McLaughlin, Application of the Uniform Fraudulent
    Conveyance Act, 46 Harv.L.Rev. 404, 444 (1933).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      The Rules "proceed upon the theory that no inconvenience can
    result from the joinder of any two or more matters in the
    pleadings, but only from trying two or more matters together which
    have little or nothing in common." Sunderland, The New Federal
    Rules, 45 W.Va.L.Q. 5, 13 (1938); see Clark, Code Pleading 58 (2d
    ed. 1947). Accordingly, Rule 18(a) has permitted a party to plead
    multiple claims of all types against an opposing party, subject to
    the court's power to direct an appropriate procedure for trying the
    claims. See Rules 42(b), 20(b), 21.
      The liberal policy regarding joinder of claims in the pleadings
    extends to cases with multiple parties. However, the language used
    in the second sentence of Rule 18(a) - "if the requirements of
    Rules 19 [necessary joinder of parties], 20 [permissive joinder of
    parties], and 22 [interpleader] are satisfied" - has led some
    courts to infer that the rules regulating joinder of parties are
    intended to carry back to Rule 18(a) and to impose some special
    limits on joinder of claims in multiparty cases. In particular,
    Rule 20(a) has been read as restricting the operation of Rule 18(a)
    in certain situations in which a number of parties have been
    permissively joined in an action. In Federal Housing Admr. v.
    Christianson, 26 F.Supp. 419 (D.Conn. 1939), the indorsee of two
    notes sued the three comakers of one note, and sought to join in
    the action a count on a second note which had been made by two of
    the three defendants. There was no doubt about the propriety of the
    joinder of the three parties defendant, for a right to relief was
    being asserted against all three defendants which arose out of a
    single "transaction" (the first note) and a question of fact or law
    "common" to all three defendants would arise in the action. See the
    text of Rule 20(a). The court, however, refused to allow the
    joinder of the count on the second note, on the ground that this
    right to relief, assumed to arise from a distinct transaction, did
    not involve a question common to all the defendants but only two of
    them. For analysis of the Christianson case and other authorities,
    see 2 Barron & Holtzoff, Federal Practice & Procedure, Sec. 533.1
    (Wright ed. 1961); 3 Moore's Federal Practice, par. 18.04[3] (2d
    ed. 1963).
      If the court's view is followed, it becomes necessary to enter at
    the pleading stage into speculations about the exact relation
    between the claim sought to be joined against fewer than all the
    defendants properly joined in the action, and the claims asserted
    against all the defendants. Cf. Wright, Joinder of Claims and
    Parties Under Modern Pleading Rules, 36 Minn.L.Rev. 580, 605-06
    (1952). Thus if it could be found in the Christianson situation
    that the claim on the second note arose out of the same transaction
    as the claim on the first or out of a transaction forming part of a
    "series," and that any question of fact or law with respect to the
    second note also arose with regard to the first, it would be held
    that the claim on the second note could be joined in the complaint.
    See 2 Barron & Holtzoff, supra, at 199; see also id. at 198 n.
    60.4; cf. 3 Moore's Federal Practice, supra, at 1811. Such pleading
    niceties provide a basis for delaying and wasteful maneuver. It is
    more compatible with the design of the Rules to allow the claim to
    be joined in the pleading, leaving the question of possible
    separate trial of that claim to be later decided. See 2 Barron &
    Holtzoff, supra, Sec. 533.1; Wright, supra, 36 Minn.L.Rev. at
    604-11; Developments in the Law - Multiparty Litigation in the
    Federal Courts, 71 Harv. 874, 970-71 (1958); Commentary, Relation
    Between Joinder of Parties and Joinder of Claims, 5 F.R.Serv. 822
    (1942). It is instructive to note that the court in the
    Christianson case, while holding that the claim on the second note
    could not be joined as a matter of pleading, held open the
    possibility that both claims would later be consolidated for trial
    under Rule 42(a). See 26 F.Supp. 419.
      Rule 18(a) is now amended not only to overcome the Christianson
    decision and similar authority, but also to state clearly as a
    comprehensive proposition, that a party asserting a claim (an
    original claim, counterclaim, cross-claim, or third-party claim)
    may join as many claims as he has against an opposing party. See
    Noland Co., Inc. v. Graver Tank & Mfg. Co., 301 F.2d 43, 49-51 (4th
    Cir. 1962); but cf. C. W. Humphrey Co. v. Security Alum. Co., 31
    F.R.D. 41 (E.D.Mich. 1962) This permitted joinder of claims is not
    affected by the fact that there are multiple parties in the action.
    The joinder of parties is governed by other rules operating
    independently.
      It is emphasized that amended Rule 18(a) deals only with
    pleading. As already indicated, a claim properly joined as a matter
    of pleading need not be proceeded with together with the other
    claim if fairness or convenience justifies separate treatment.
      Amended Rule 18(a), like the rule prior to amendment, does not
    purport to deal with questions of jurisdiction or venue which may
    arise with respect to claims properly joined as a matter of
    pleading. See Rule 82.
      See also the amendment of Rule 20(a) and the Advisory Committee's
    Note thereto.
      Free joinder of claims and remedies is one of the basic purposes
    of unification of the admiralty and civil procedure. The amendment
    accordingly provides for the inclusion in the rule of maritime
    claims as well as those which are legal and equitable in character.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 19                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 19. Joinder of Persons Needed for Just Adjudication

-STATUTE-
      (a) Persons To Be Joined if Feasible. A person who is subject to
    service of process and whose joinder will not deprive the court of
    jurisdiction over the subject matter of the action shall be joined
    as a party in the action if (1) in the person's absence complete
    relief cannot be accorded among those already parties, or (2) the
    person claims an interest relating to the subject of the action and
    is so situated that the disposition of the action in the person's
    absence may (i) as a practical matter impair or impede the person's
    ability to protect that interest or (ii) leave any of the persons
    already parties subject to a substantial risk of incurring double,
    multiple, or otherwise inconsistent obligations by reason of the
    claimed interest. If the person has not been so joined, the court
    shall order that the person be made a party. If the person should
    join as a plaintiff but refuses to do so, the person may be made a
    defendant, or, in a proper case, an involuntary plaintiff. If the
    joined party objects to venue and joinder of that party would
    render the venue of the action improper, that party shall be
    dismissed from the action.
      (b) Determination by Court Whenever Joinder Not Feasible. If a
    person as described in subdivision (a)(1)-(2) hereof cannot be made
    a party, the court shall determine whether in equity and good
    conscience the action should proceed among the parties before it,
    or should be dismissed, the absent person being thus regarded as
    indispensable. The factors to be considered by the court include:
    first, to what extent a judgment rendered in the person's absence
    might be prejudicial to the person or those already parties;
    second, the extent to which, by protective provisions in the
    judgment, by the shaping of relief, or other measures, the
    prejudice can be lessened or avoided; third, whether a judgment
    rendered in the person's absence will be adequate; fourth, whether
    the plaintiff will have an adequate remedy if the action is
    dismissed for nonjoinder.
      (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
    for relief shall state the names, if known to the pleader, of any
    persons as described in subdivision (a)(1)-(2) hereof who are not
    joined, and the reasons why they are not joined.
      (d) Exception of Class Actions. This rule is subject to the
    provisions of Rule 23.

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). The first sentence with verbal
    differences (e.g., "united" interest for "joint" interest) is to be
    found in [former] Equity Rule 37 (Parties Generally -
    Intervention). Such compulsory joinder provisions are common.
    Compare Alaska Comp. Laws (1933) Sec. 3392 (containing in same
    sentence a "class suit" provision); Wyo.Rev.Stat.Ann. (Courtright,
    1931) Sec. 89-515 (immediately followed by "class suit" provisions,
    Sec. 89-516). See also [former] Equity Rule 42 (Joint and Several
    Demands). For example of a proper case for involuntary plaintiff,
    see Independent Wireless Telegraph Co. v. Radio Corp. of America,
    269 U.S. 459 (1926).
      The joinder provisions of this rule are subject to Rule 82
    (Jurisdiction and Venue Unaffected).
      Note to Subdivision (b). For the substance of this rule see
    [former] Equity Rule 39 (Absence of Persons Who Would be Proper
    Parties) and U.S.C., Title 28, Sec. 111 [now 1391] (When part of
    several defendants cannot be served); Camp v. Gress, 250 U.S. 308
    (1919). See also the second and third sentences of [former] Equity
    Rule 37 (Parties Generally - Intervention).
      Note to Subdivision (c). For the substance of this rule see the
    fourth subdivision of [former] Equity Rule 25 (Bill of Complaint -
    Contents).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       

                          GENERAL CONSIDERATIONS                      
      Whenever feasible, the persons materially interested in the
    subject of an action - see the more detailed description of these
    persons in the discussion of new subdivision (a) below - should be
    joined as parties so that they may be heard and a complete
    disposition made. When this comprehensive joinder cannot be
    accomplished - a situation which may be encountered in Federal
    courts because of limitations on service of process, subject matter
    jurisdiction, and venue - the case should be examined pragmatically
    and a choice made between the alternatives of proceeding with the
    action in the absence of particular interested persons, and
    dismissing the action.
      Even if the court is mistaken in its decision to proceed in the
    absence of an interested person, it does not by that token deprive
    itself of the power to adjudicate as between the parties already
    before it through proper service of process. But the court can make
    a legally binding adjudication only between the parties actually
    joined in the action. It is true that an adjudication between the
    parties before the court may on occasion adversely affect the
    absent person as a practical matter, or leave a party exposed to a
    later inconsistent recovery by the absent person. These are factors
    which should be considered in deciding whether the action should
    proceed, or should rather be dismissed; but they do not themselves
    negate the court's power to adjudicate as between the parties who
    have been joined.

                       DEFECTS IN THE ORIGINAL RULE                   
      The foregoing propositions were well understood in the older
    equity practice, see Hazard, Indispensable Party: The Historical
    Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254 (1961), and
    Rule 19 could be and often was applied in consonance with them. But
    experience showed that the rule was defective in its phrasing and
    did not point clearly to the proper basis of decision.
      Textual defects. - (1) The expression "persons * * * who ought to
    be parties if complete relief is to be accorded between those
    already parties," appearing in original subdivision (b), was
    apparently intended as a description of the persons whom it would
    be desirable to join in the action, all questions of feasibility of
    joinder being put to one side; but it was not adequately
    descriptive of those persons.
      (2) The word "Indispensable," appearing in original subdivision
    (b), was apparently intended as an inclusive reference to the
    interested persons in whose absence it would be advisable, all
    factors having been considered, to dismiss the action. Yet the
    sentence implied that there might be interested persons, not
    "indispensable." in whose absence the action ought also to be
    dismissed. Further, it seemed at least superficially plausible to
    equate the word "indispensable" with the expression "having a joint
    interest," appearing in subdivision (a). See United States v.
    Washington Inst. of Tech., Inc., 138 F.2d 25, 26 (3d Cir. 1943);
    cf. Chidester v. City of Newark, 162 F.2d 598 (3d Cir. 1947). But
    persons holding an interest technically "joint" are not always so
    related to an action that it would be unwise to proceed without
    joining all of them, whereas persons holding an interest not
    technically "joint" may have this relation to an action. See Reed,
    Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327,
    356 ff., 483 (1957).
      (3) The use of "indispensable" and "joint interest" in the
    context of original Rule 19 directed attention to the technical or
    abstract character of the rights or obligations of the persons
    whose joinder was in question, and correspondingly distracted
    attention from the pragmatic considerations which should be
    controlling.
      (4) The original rule, in dealing with the feasibility of joining
    a person as a party to the action, besides referring to whether the
    person was "subject to the jurisdiction of the court as to both
    service of process and venue," spoke of whether the person could be
    made a party "without depriving the court of jurisdiction of the
    parties before it." The second quoted expression used
    "jurisdiction" in the sense of the competence of the court over the
    subject matter of the action, and in this sense the expression was
    apt. However, by a familiar confusion, the expression seems to have
    suggested to some that the absence from the lawsuit of a person who
    was "indispensable" or "who ought to be [a] part[y]" itself
    deprived the court of the power to adjudicate as between the
    parties already joined. See Samuel Goldwyn, Inc. v. United Artists
    Corp., 113 F.2d 703, 707 (3d Cir. 1940); McArthur v. Rosenbaum Co.
    of Pittsburgh, 180 F.2d 617, 621 (3d Cir. 1949); cf. Calcote v.
    Texas Pac. Coal & Oil Co., 157 F.2d 216 (5th Cir. 1946), cert.
    denied, 329 U.S. 782 (1946), noted in 56 Yale L.J. 1088 (1947);
    Reed, supra, 55 Mich.L.Rev. at 332-34.
      Failure to point to correct basis of decision. The original rule
    did not state affirmatively what factors were relevant in deciding
    whether the action should proceed or be dismissed when joinder of
    interested persons was infeasible. In some instances courts did not
    undertake the relevant inquiry or were misled by the "jurisdiction"
    fallacy. In other instances there was undue preoccupation with
    abstract classifications of rights or obligations, as against
    consideration of the particular consequences of proceeding with the
    action and the ways by which these consequences might be
    ameliorated by the shaping of final relief or other precautions.
      Although these difficulties cannot be said to have been general
    analysis of the cases showed that there was good reason for
    attempting to strengthen the rule. The literature also indicated
    how the rule should be reformed. See Reed, supra (discussion of the
    important case of Shields v. Barrow, 17 How. (58 U.S.) 130 (1854),
    appears at 55 Mich.L.Rev., p. 340 ff.); Hazard, supra; N.Y.
    Temporary Comm. on Courts, First Preliminary Report, Legis.Doc.
    1957, No. 6(b), pp. 28, 233; N.Y. Judicial Council, Twelfth
    Ann.Rep., Legis.Doc. 1946, No. 17, p. 163; Joint Comm. on Michigan
    Procedural Revision, Final Report, Pt. III, p. 69 (1960); Note,
    Indispensable Parties in the Federal Courts, 65 Harv.L.Rev. 1050
    (1952); Developments in the Law - Multiparty Litigation in the
    Federal Courts, 71 Harv.L.Rev. 874, 879 (1958); Mich.Gen.Court
    Rules, R. 205 (effective Jan. 1, 1963); N.Y.Civ.Prac.Law & Rules,
    Sec. 1001 (effective Sept. 1, 1963).

                             THE AMENDED RULE                         
      New subdivision (a) defines the persons whose joinder in the
    action is desirable. Clause (1) stresses the desirability of
    joining those persons in whose absence the court would be obliged
    to grant partial or "hollow" rather than complete relief to the
    parties before the court. The interests that are being furthered
    here are not only those of the parties, but also that of the public
    in avoiding repeated lawsuits on the same essential subject matter.
    Clause (2)(i) recognizes the importance of protecting the person
    whose joinder is in question against the practical prejudice to him
    which may arise through a disposition of the action in his absence.
    Clause (2)(ii) recognizes the need for considering whether a party
    may be left, after the adjudication, in a position where a person
    not joined can subject him to a double or otherwise inconsistent
    liability. See Reed, supra, 55 Mich.L.Rev. at 330, 338; Note,
    supra, 65 Harv.L.Rev. at 1052-57; Developments in the Law, supra,
    71 Harv.L.Rev. at 881-85.
      The subdivision (a) definition of persons to be joined is not
    couched in terms of the abstract nature of their interests -
    "joint," "united," "separable," or the like. See N.Y. Temporary
    Comm. on Courts, First Preliminary Report, supra; Developments in
    the Law, supra, at 880. It should be noted particularly, however,
    that the description is not at variance with the settled
    authorities holding that a tortfeasor with the usual
    "joint-and-several" liability is merely a permissive party to an
    action against another with like liability. See 3 Moore's Federal
    Practice 2153 (2d ed. 1963); 2 Barron & Holtzoff, Federal Practice
    & Procedure Sec. 513.8 (Wright ed. 1961). Joinder of these
    tortfeasors continues to be regulated by Rule 20; compare Rule 14
    on third-party practice.
      If a person as described in subdivision (a)(1)(2) is amenable to
    service of process and his joinder would not deprive the court of
    jurisdiction in the sense of competence over the action, he should
    be joined as a party; and if he has not been joined, the court
    should order him to be brought into the action. If a party joined
    has a valid objection to the venue and chooses to assert it, he
    will be dismissed from the action.
      Subdivision (b). - When a person as described in subdivision
    (a)(1)-(2) cannot be made a party, the court is to determine
    whether in equity and good conscience the action should proceed
    among the parties already before it, or should be dismissed. That
    this decision is to be made in the light of pragmatic
    considerations has often been acknowledged by the courts. See Roos
    v. Texas Co., 23 F.2d 171 (2d Cir. 1927), cert. denied, 277 U.S.
    587 (1928); Niles-Bement-Pond Co. v. Iron Moulders, Union, 254 U.S.
    77, 80 (1920). The subdivision sets out four relevant
    considerations drawn from the experience revealed in the decided
    cases. The factors are to a certain extent overlapping, and they
    are not intended to exclude other considerations which may be
    applicable in particular situations.
      The first factor brings in a consideration of what a judgment in
    the action would mean to the absentee. Would the absentee be
    adversely affected in a practical sense, and if so, would the
    prejudice be immediate and serious, or remote and minor? The
    possible collateral consequences of the judgment upon the parties
    already joined are also to be appraised. Would any party be exposed
    to a fresh action by the absentee, and if so, how serious is the
    threat? See the elaborate discussion in Reed, supra; cf. A. L.
    Smith Iron Co. v. Dickson, 141 F.2d 3 (2d Cir. 1944); Caldwell Mfg.
    Co. v. Unique Balance Co., 18 F.R.D. 258 (S.D.N.Y. 1955).
      The second factor calls attention to the measures by which
    prejudice may be averted or lessened. The "shaping of relief" is a
    familiar expedient to this end. See, e.g., the award of money
    damages in lieu of specific relief where the latter might affect an
    absentee adversely. Ward v. Deavers, 203 F.2d 72 (D.C.Cir. 1953);
    Miller & Lux, Inc. v. Nickel, 141 F.Supp. 41 (N.D.Calif. 1956). On
    the use of "protective provisions," see Roos v. Texas Co., supra;
    Atwood v. Rhode Island Hosp. Trust Co., 275 Fed. 513, 519 (1st Cir.
    1921), cert. denied, 257 U.S. 661 (1922); cf. Stumpf v. Fidelity
    Gas Co., 294 F.2d 886 (9th Cir. 1961); and the general statement in
    National Licorice Co. v. Labor Board, 309 U.S. 350, 363 (1940).
      Sometimes the party is himself able to take measures to avoid
    prejudice. Thus a defendant faced with a prospect of a second suit
    by an absentee may be in a position to bring the latter into the
    action by defensive interpleader. See Hudson v. Newell, 172 F.2d
    848, 852 mod., 176 F.2d 546 (5th Cir. 1949); Gauss v. Kirk, 198
    F.2d 83, 86 (D.C.Cir. 1952); Abel v. Brayton Flying Service, Inc.,
    248 F.2d 713, 716 (5th Cir. 1957) (suggestion of possibility of
    counterclaim under Rule 13(h)); cf. Parker Rust-Proof Co. v.
    Western Union Tel. Co., 105 F.2d 976 (2d Cir. 1939) cert. denied,
    308 U.S. 597 (1939). See also the absentee may sometimes be able to
    avert prejudice to himself by voluntarily appearing in the action
    or intervening on an ancillary basis. See Developments in the Law,
    supra, 71 Harv.L.Rev. at 882; Annot., Intervention or Subsequent
    Joinder of Parties as Affecting Jurisdiction of Federal Court Based
    on Diversity of Citizenship, 134 A.L.R. 335 (1941); Johnson v.
    Middleton, 175 F.2d 535 (7th Cir. 1949); Kentucky Nat. Gas Corp. v.
    Duggins, 165 F.2d 1011 (6th Cir. 1948); McComb v. McCormack, 159
    F.2d 219 (5th Cir. 1947). The court should consider whether this,
    in turn, would impose undue hardship on the absentee. (For the
    possibility of the court's informing an absentee of the pendency of
    the action, see comment under subdivision (c) below.)
      The third factor - whether an "adequate" judgment can be rendered
    in the absence of a given person - calls attention to the extent of
    the relief that can be accorded among the parties joined. It meshes
    with the other factors, especially the "shaping of relief"
    mentioned under the second factor. Cf. Kroese v. General Steel
    Castings Corp., 179 F.2d 760 (3d Cir. 1949), cert. denied, 339 U.S.
    983 (1950).
      The fourth factor, looking to the practical effects of a
    dismissal, indicates that the court should consider whether there
    is any assurance that the plaintiff, if dismissed, could sue
    effectively in another forum where better joinder would be
    possible. See Fitzgerald v. Haynes, 241 F.2d 417, 420 (3d Cir.
    1957); Fouke v. Schenewerk, 197 F.2d 234, 236 (5th Cir. 1952); cf.
    Warfield v. Marks, 190 F.2d 178 (5th Cir. 1951).
      The subdivision uses the word "indispensable" only in a
    conclusory sense, that is, a person is "regarded as indispensable"
    when he cannot be made a party and, upon consideration of the
    factors above mention, it is determined that in his absence it
    would be preferable to dismiss the action, rather than to retain
    it.
      A person may be added as a party at any stage of the action on
    motion or on the court's initiative (see Rule 21); and a motion to
    dismiss, on the ground that a person has not been joined and
    justice requires that the action should not proceed in his absence,
    may be made as late as the trial on the merits (see Rule 12(h)(2),
    as amended; cf. Rule 12(b)(7), as amended). However, when the
    moving party is seeking dismissal in order to protect himself
    against a later suit by the absent person (subdivision (a)(2)(ii)),
    and is not seeking vicariously to protect the absent person against
    a prejudicial judgment (subdivision (a)(2)(i)), his undue delay in
    making the motion can properly be counted against him as a reason
    for denying the motion. A joinder question should be decided with
    reasonable promptness, but decision may properly be deferred if
    adequate information is not available at the time. Thus the
    relationship of an absent person to the action, and the practical
    effects of an adjudication upon him and others, may not be
    sufficiently revealed at the pleading stage; in such a case it
    would be appropriate to defer decision until the action was further
    advanced. Cf. Rule 12(d).
      The amended rule makes no special provision for the problem
    arising in suits against subordinate Federal officials where it has
    often been set up as a defense that some superior officer must be
    joined. Frequently this defense has been accompanied by or
    intermingled with defenses of sovereign community or lack of
    consent of the United States to suit. So far as the issue of
    joinder can be isolated from the rest, the new subdivision seems
    better adapted to handle it than the predecessor provision. See the
    discussion in Johnson v. Kirkland, 290 F.2d 440, 446-47 (5th Cir.
    1961) (stressing the practical orientation of the decisions);
    Shaughnessy v. Pedreiro, 349 U.S. 48, 54 (1955). Recent
    legislation, P.L. 87-748, 76 Stat. 744, approved October 5, 1962,
    adding Secs. 1361, 1391(e) to Title 28, U.S.C., vests original
    jurisdiction in the District Courts over actions in the nature of
    mandamus to compel officials of the United States to perform their
    legal duties, and extends the range of service of process and
    liberalizes venue in these actions. If, then, it is found that a
    particular official should be joined in the action, the legislation
    will make it easy to bring him in.
      Subdivision (c) parallels the predecessor subdivision (c) of Rule
    19. In some situations it may be desirable to advise a person who
    has not been joined of the fact that the action is pending, and in
    particular cases the court in its discretion may itself convey this
    information by directing a letter or other informal notice to the
    absentee.
      Subdivision (d) repeats the exception contained in the first
    clause of the predecessor subdivision (a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 20                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 20. Permissive Joinder of Parties

-STATUTE-
      (a) Permissive Joinder. All persons may join in one action as
    plaintiffs if they assert any right to relief jointly, severally,
    or in the alternative in respect of or arising out of the same
    transaction, occurrence, or series of transactions or occurrences
    and if any question of law or fact common to all these persons will
    arise in the action. All persons (and any vessel, cargo or other
    property subject to admiralty process in rem) may be joined in one
    action as defendants if there is asserted against them jointly,
    severally, or in the alternative, any right to relief in respect of
    or arising out of the same transaction, occurrence, or series of
    transactions or occurrences and if any question of law or fact
    common to all defendants will arise in the action. A plaintiff or
    defendant need not be interested in obtaining or defending against
    all the relief demanded. Judgment may be given for one or more of
    the plaintiffs according to their respective rights to relief, and
    against one or more defendants according to their respective
    liabilities.
      (b) Separate Trials. The court may make such orders as will
    prevent a party from being embarrassed, delayed, or put to expense
    by the inclusion of a party against whom the party asserts no claim
    and who asserts no claim against the party, and may order separate
    trials or make other orders to prevent delay or prejudice.

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      The provisions for joinder here stated are in substance the
    provisions found in England, California, Illinois, New Jersey, and
    New York. They represent only a moderate expansion of the present
    federal equity practice to cover both law and equity actions.
      With this rule compare also [former] Equity Rules 26 (Joinder of
    Causes of Action), 37 (Parties Generally - Intervention), 40
    (Nominal Parties), and 42 (Joint and Several Demands).
      The provisions of this rule for the joinder of parties are
    subject to Rule 82 (Jurisdiction and Venue Unaffected).
      Note to Subdivision (a). The first sentence is derived from
    English Rules Under the Judicature Act (The Annual Practice, 1937)
    O. 16, r. 1. Compare Calif.Code Civ.Proc. (Deering, 1937) Secs.
    378, 379a; Ill.Rev.Stat. (1937) ch. 110, Secs. 147-148;
    N.J.Comp.Stat. (2 Cum.Supp., 1911-1924), N.Y.C.P.A. (1937) Secs.
    209, 211. The second sentence is derived from English Rules Under
    the Judicature Act (he Annual Practice, 1937) O. 16, r. 4. The
    third sentence is derived from O. 16, r. 5, and the fourth from O.
    16, r.r. 1 and 4.
      Note to Subdivision (b). This is derived from English Rules Under
    the Judicature Act (The Annual Practice, 1937) O. 16, r.r. 1 and 5.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      See the amendment of Rule 18(a) and the Advisory Committee's Note
    thereto. It has been thought that a lack of clarity in the
    antecedent of the word "them," as it appeared in two places in Rule
    20(a), contributed to the view, taken by some courts, that this
    rule limited the joinder of claims in certain situations of
    permissive party joinder. Although the amendment of Rule 18(a)
    should make clear that this view is untenable, it has been
    considered advisable to amend Rule 20(a) to eliminate any
    ambiguity. See 2 Barron & Holtzoff, Federal Practice & Procedure
    202 (Wright Ed. 1961).
      A basic purpose of unification of admiralty and civil procedure
    is to reduce barriers to joinder; hence the reference to "any
    vessel," etc.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 21                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 21. Misjoinder and Non-Joinder of Parties

-STATUTE-
      Misjoinder of parties is not ground for dismissal of an action.
    Parties may be dropped or added by order of the court on motion of
    any party or of its own initiative at any stage of the action and
    on such terms as are just. Any claim against a party may be severed
    and proceeded with separately.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      See English Rules Under the Judicature Act (The Annual Practice,
    1937) O. 16, r. 11. See also [former] Equity Rules 43 (Defect of
    Parties - Resisting Objection) and 44 (Defect of Parties - Tardy
    Objection).
      For separate trials see Rules 13(i) (Counterclaims and
    Cross-Claims: Separate Trials; Separate Judgments), 20(b)
    (Permissive Joinder of Parties: Separate Trials), and 42(b)
    (Separate Trials, generally) and the note to the latter rule.

-End-



-CITE-
    28 USC APPENDIX Rule 22                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 22. Interpleader

-STATUTE-
      (1) Persons having claims against the plaintiff may be joined as
    defendants and required to interplead when their claims are such
    that the plaintiff is or may be exposed to double or multiple
    liability. It is not ground for objection to the joinder that the
    claims of the several claimants or the titles on which their claims
    depend do not have a common origin or are not identical but are
    adverse to and independent of one another, or that the plaintiff
    avers that the plaintiff is not liable in whole or in part to any
    or all of the claimants. A defendant exposed to similar liability
    may obtain such interpleader by way of cross-claim or counterclaim.
    The provisions of this rule supplement and do not in any way limit
    the joinder of parties permitted in Rule 20.
      (2) The remedy herein provided is in addition to and in no way
    supersedes or limits the remedy provided by Title 28, U.S.C., Secs.
    1335, 1397, and 2361. Actions under those provisions shall be
    conducted in accordance with these rules.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff.
    Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      The first paragraph provides for interpleader relief along the
    newer and more liberal lines of joinder in the alternative. It
    avoids the confusion and restrictions that developed around actions
    of strict interpleader and actions in the nature of interpleader.
    Compare John Hancock Mutual Life Insurance Co. v. Kegan et al.,
    (D.C.Md., 1938) [22 F.Supp. 326]. It does not change the rules on
    service of process, jurisdiction, and venue, as established by
    judicial decision.
      The second paragraph allows an action to be brought under the
    recent interpleader statute when applicable. By this paragraph all
    remedies under the statute are continued, but the manner of
    obtaining them is in accordance with these rules. For temporary
    restraining orders and preliminary injunctions under this statute,
    see Rule 65(e).
      This rule substantially continues such statutory provisions as
    U.S.C., Title 38, Sec. 445 [now 1984] (Actions on claims;
    jurisdiction; parties; procedure; limitation; witnesses;
    definitions) (actions upon veterans' contracts of insurance with
    the United States), providing for interpleader by the United States
    where it acknowledges indebtedness under a contract of insurance
    with the United States; U.S.C., Title 49, Sec. 97 [now 80110(e)]
    (Interpleader of conflicting claimants) (by carrier which has
    issued bill of lading). See Chafee, The Federal Interpleader Act of
    1936: I and II (1936), 45 Yale L.J. 963, 1161.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 23                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 23. Class Actions

-STATUTE-
      (a) Prerequisites to a Class Action. One or more members of a
    class may sue or be sued as representative parties on behalf of all
    only if (1) the class is so numerous that joinder of all members is
    impracticable, (2) there are questions of law or fact common to the
    class, (3) the claims or defenses of the representative parties are
    typical of the claims or defenses of the class, and (4) the
    representative parties will fairly and adequately protect the
    interests of the class.
      (b) Class Actions Maintainable. An action may be maintained as a
    class action if the prerequisites of subdivision (a) are satisfied,
    and in addition:
        (1) the prosecution of separate actions by or against
      individual members of the class would create a risk of
          (A) inconsistent or varying adjudications with respect to
        individual members of the class which would establish
        incompatible standards of conduct for the party opposing the
        class, or
          (B) adjudications with respect to individual members of the
        class which would as a practical matter be dispositive of the
        interests of the other members not parties to the adjudications
        or substantially impair or impede their ability to protect
        their interests; or

        (2) the party opposing the class has acted or refused to act on
      grounds generally applicable to the class, thereby making
      appropriate final injunctive relief or corresponding declaratory
      relief with respect to the class as a whole; or
        (3) the court finds that the questions of law or fact common to
      the members of the class predominate over any questions affecting
      only individual members, and that a class action is superior to
      other available methods for the fair and efficient adjudication
      of the controversy. The matters pertinent to the findings
      include: (A) the interest of members of the class in individually
      controlling the prosecution or defense of separate actions; (B)
      the extent and nature of any litigation concerning the
      controversy already commenced by or against members of the class;
      (C) the desirability or undesirability of concentrating the
      litigation of the claims in the particular forum; (D) the
      difficulties likely to be encountered in the management of a
      class action.

      (c) Determining by Order Whether to Certify a Class Action;
    Appointing Class Counsel; Notice and Membership in Class; Judgment;
    Multiple Classes and Subclasses.
        (1)(A) When a person sues or is sued as a representative of a
      class, the court must - at an early practicable time - determine
      by order whether to certify the action as a class action.
        (B) An order certifying a class action must define the class
      and the class claims, issues, or defenses, and must appoint class
      counsel under Rule 23(g).
        (C) An order under Rule 23(c)(1) may be altered or amended
      before final judgment.
        (2)(A) For any class certified under Rule 23(b)(1) or (2), the
      court may direct appropriate notice to the class.
        (B) For any class certified under Rule 23(b)(3), the court must
      direct to class members the best notice practicable under the
      circumstances, including individual notice to all members who can
      be identified through reasonable effort. The notice must
      concisely and clearly state in plain, easily understood language:
                -- the nature of the action,
                -- the definition of the class certified,
                -- the class claims, issues, or defenses,
                -- that a class member may enter an appearance through
              counsel if the member so desires,
                -- that the court will exclude from the class any
              member who requests exclusion, stating when and how
              members may elect to be excluded, and
                -- the binding effect of a class judgment on class
              members under Rule 23(c)(3).

        (3) The judgment in an action maintained as a class action
      under subdivision (b)(1) or (b)(2), whether or not favorable to
      the class, shall include and describe those whom the court finds
      to be members of the class. The judgment in an action maintained
      as a class action under subdivision (b)(3), whether or not
      favorable to the class, shall include and specify or describe
      those to whom the notice provided in subdivision (c)(2) was
      directed, and who have not requested exclusion, and whom the
      court finds to be members of the class.
        (4) When appropriate (A) an action may be brought or maintained
      as a class action with respect to particular issues, or (B) a
      class may be divided into subclasses and each subclass treated as
      a class, and the provisions of this rule shall then be construed
      and applied accordingly.

      (d) Orders in Conduct of Actions. In the conduct of actions to
    which this rule applies, the court may make appropriate orders: (1)
    determining the course of proceedings or prescribing measures to
    prevent undue repetition or complication in the presentation of
    evidence or argument; (2) requiring, for the protection of the
    members of the class or otherwise for the fair conduct of the
    action, that notice be given in such manner as the court may direct
    to some or all of the members of any step in the action, or of the
    proposed extent of the judgment, or of the opportunity of members
    to signify whether they consider the representation fair and
    adequate, to intervene and present claims or defenses, or otherwise
    to come into the action; (3) imposing conditions on the
    representative parties or on intervenors; (4) requiring that the
    pleadings be amended to eliminate therefrom allegations as to
    representation of absent persons, and that the action proceed
    accordingly; (5) dealing with similar procedural matters. The
    orders may be combined with an order under Rule 16, and may be
    altered or amended as may be desirable from time to time.
      (e) Settlement, Voluntary Dismissal, or Compromise.
        (1)(A) The court must approve any settlement, voluntary
      dismissal, or compromise of the claims, issues, or defenses of a
      certified class.
        (B) The court must direct notice in a reasonable manner to all
      class members who would be bound by a proposed settlement,
      voluntary dismissal, or compromise.
        (C) The court may approve a settlement, voluntary dismissal, or
      compromise that would bind class members only after a hearing and
      on finding that the settlement, voluntary dismissal, or
      compromise is fair, reasonable, and adequate.
        (2) The parties seeking approval of a settlement, voluntary
      dismissal, or compromise under Rule 23(e)(1) must file a
      statement identifying any agreement made in connection with the
      proposed settlement, voluntary dismissal, or compromise.
        (3) In an action previously certified as a class action under
      Rule 23(b)(3), the court may refuse to approve a settlement
      unless it affords a new opportunity to request exclusion to
      individual class members who had an earlier opportunity to
      request exclusion but did not do so.
        (4)(A) Any class member may object to a proposed settlement,
      voluntary dismissal, or compromise that requires court approval
      under Rule 23(e)(1)(A).
        (B) An objection made under Rule 23(e)(4)(A) may be withdrawn
      only with the court's approval.

      (f) Appeals. A court of appeals may in its discretion permit an
    appeal from an order of a district court granting or denying class
    action certification under this rule if application is made to it
    within ten days after entry of the order. An appeal does not stay
    proceedings in the district court unless the district judge or the
    court of appeals so orders.
      (g) Class Counsel.
        (1) Appointing Class Counsel.
          (A) Unless a statute provides otherwise, a court that
        certifies a class must appoint class counsel.
          (B) An attorney appointed to serve as class counsel must
        fairly and adequately represent the interests of the class.
          (C) In appointing class counsel, the court
            (i) must consider:
                -- the work counsel has done in identifying or
              investigating potential claims in the action,
                -- counsel's experience in handling class actions,
              other complex litigation, and claims of the type asserted
              in the action,
                -- counsel's knowledge of the applicable law, and
                -- the resources counsel will commit to representing
              the class;

            (ii) may consider any other matter pertinent to counsel's
          ability to fairly and adequately represent the interests of
          the class;
            (iii) may direct potential class counsel to provide
          information on any subject pertinent to the appointment and
          to propose terms for attorney fees and nontaxable costs; and
            (iv) may make further orders in connection with the
          appointment.

        (2) Appointment Procedure.
          (A) The court may designate interim counsel to act on behalf
        of the putative class before determining whether to certify the
        action as a class action.
          (B) When there is one applicant for appointment as class
        counsel, the court may appoint that applicant only if the
        applicant is adequate under Rule 23(g)(1)(B) and (C). If more
        than one adequate applicant seeks appointment as class counsel,
        the court must appoint the applicant best able to represent the
        interests of the class.
          (C) The order appointing class counsel may include provisions
        about the award of attorney fees or nontaxable costs under Rule
        23(h).

      (h) Attorney Fees Award. In an action certified as a class
    action, the court may award reasonable attorney fees and nontaxable
    costs authorized by law or by agreement of the parties as follows:
        (1) Motion for Award of Attorney Fees. A claim for an award of
      attorney fees and nontaxable costs must be made by motion under
      Rule 54(d)(2), subject to the provisions of this subdivision, at
      a time set by the court. Notice of the motion must be served on
      all parties and, for motions by class counsel, directed to class
      members in a reasonable manner.
        (2) Objections to Motion. A class member, or a party from whom
      payment is sought, may object to the motion.
        (3) Hearing and Findings. The court may hold a hearing and must
      find the facts and state its conclusions of law on the motion
      under Rule 52(a).
        (4) Reference to Special Master or Magistrate Judge. The court
      may refer issues related to the amount of the award to a special
      master or to a magistrate judge as provided in Rule 54(d)(2)(D).

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 27, 2003, eff.
    Dec. 1, 2003.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). This is a substantial restatement of
    [former] Equity Rule 38 (Representatives of Class) as that rule has
    been construed. It applies to all actions, whether formerly
    denominated legal or equitable. For a general analysis of class
    actions, effect of judgment, and requisites of jurisdiction see
    Moore, Federal Rules of Civil Procedure: Some Problems Raised by
    the Preliminary Draft, 25 Georgetown L.J. 551, 570 et seq. (1937);
    Moore and Cohn, Federal Class Actions, 32 Ill.L.Rev. 307 (1937);
    Moore and Cohn, Federal Class Actions - Jurisdiction and Effect of
    Judgment, 32 Ill.L.Rev. 555 - 567 (1938); Lesar, Class Suits and
    the Federal Rules, 22 Minn.L.Rev. 34 (1937); cf. Arnold and James,
    Cases on Trials, Judgments and Appeals (1936) 175; and see Blume,
    Jurisdictional Amount in Representative Suits, 15 Minn.L.Rev. 501
    (1931).
      The general test of [former] Equity Rule 38 (Representatives of
    Class) that the question should be "one of common or general
    interest to many persons constituting a class so numerous as to
    make it impracticable to bring them all before the court," is a
    common test. For states which require the two elements of a common
    or general interest and numerous persons, as provided for in
    [former] Equity Rule 38, see Del.Ch.Rule 113; Fla.Comp.Gen.Laws
    Ann. (Supp., 1936) Sec. 4918 (7); Georgia Code (1933) Sec. 37-1002,
    and see English Rules Under the Judicature Act (The Annual
    Practice, 1937) O. 16, r. 9. For statutory provisions providing for
    class actions when the question is one of common or general
    interest or when the parties are numerous, see Ala.Code Ann.
    (Michie, 1928) Sec. 5701; 2 Ind.Stat.Ann. (Burns, 1933) Sec. 2-220;
    N.Y.C.P.A. (1937) Sec. 195; Wis.Stat. (1935) Sec. 260.12. These
    statutes have, however, been uniformly construed as though phrased
    in the conjunctive. See Garfein v. Stiglitz, 260 Ky. 430, 86
    S.W.(2d) 155 (1935). The rule adopts the test of [former] Equity
    Rule 38, but defines what constitutes a "common or general
    interest". Compare with code provisions which make the action
    dependent upon the propriety of joinder of the parties. See Blume,
    The "Common Questions" Principle in the Code Provision for
    Representative Suits, 30 Mich.L.Rev. 878 (1932). For discussion of
    what constitutes "numerous persons" see Wheaton, Representative
    Suits Involving Numerous Litigants, 19 Corn.L.Q. 399 (1934); Note,
    36 Harv.L.Rev. 89 (1922).
      Clause (1), Joint, Common, or Secondary Right. This clause is
    illustrated in actions brought by or against representatives of an
    unincorporated association. See Oster v. Brotherhood of Locomotive
    Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v.
    Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A. (N.S.) 1067 (1906);
    Colt v. Hicks, 97 Ind.App. 177, 179 N.E. 335 (1932). Compare Rule
    17(b) as to when an unincorporated association has capacity to sue
    or be sued in its common name; United Mine Workers of America v.
    Coronado Coal Co., 259 U.S. 344 (1922) (an unincorporated
    association was sued as an entity for the purpose of enforcing
    against it a federal substantive right); Moore, Federal Rules of
    Civil Procedure: Some Problems Raised by the Preliminary Draft, 25
    Georgetown L.J. 551, 566 (for discussion of jurisdictional
    requisites when an unincorporated association sues or is sued in
    its common name and jurisdiction is founded upon diversity of
    citizenship). For an action brought by representatives of one group
    against representatives of another group for distribution of a fund
    held by an unincorporated association, see Smith v. Swormstedt, 16
    How. 288 (U.S. 1853). Compare Christopher, et al. v. Brusselback,
    58 S.Ct. 350 [302 U.S. 500] (1938).
      For an action to enforce rights held in common by policyholders
    against the corporate issuer of the policies, see Supreme Tribe of
    Ben Hur v. Cauble, 255 U.S. 356 (1921). See also Terry v. Little,
    101 U.S. 216 (1880); John A. Roebling's Sons Co. v. Kinnicutt, 248
    Fed. 596 (D.C.N.Y., 1917) dealing with the right held in common by
    creditors to enforce the statutory liability of stockholders.
      Typical of a secondary action is a suit by stockholders to
    enforce a corporate right. For discussion of the general nature of
    these actions see Ashwander v. Tennessee Valley Authority, 297 U.S.
    288 (1936); Glenn, The Stockholder's Suit - Corporate and
    Individual Grievances, 33 Yale L.J. 580 (1924); McLaughlin,
    Capacity of Plaintiff-Stockholder to Terminate a Stockholder's
    Suit, 46 Yale L.J. 421 (1937). See also Subdivision (b) of this
    rule which deals with Shareholder's Action; Note, 15 Minn.L.Rev.
    453 (1931).
      Clause (2). A creditor's action for liquidation or reorganization
    of a corporation is illustrative of this clause. An action by a
    stockholder against certain named defendants as representatives of
    numerous claimants presents a situation converse to the creditor's
    action.
      Clause (3). See Everglades Drainage League v. Napoleon Broward
    Drainage Dist., 253 Fed. 246 (D.C.Fla., 1918); Gramling v. Maxwell,
    52 F.(2d) 256 (D.C.N.C., 1931), approved in 30 Mich.L.Rev. 624
    (1932); Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921);
    Duke of Bedford v. Ellis (1901) A.C. 1, for class actions when
    there were numerous persons and there was only a question of law or
    fact common to them; and see Blume, The "Common Questions"
    Principle in the Code Provision for Representative Suits, 30
    Mich.L.Rev. 878 (1932).
      Note to Subdivision (b). This is [former] Equity Rule 27
    (Stockholder's Bill) with verbal changes. See also Hawes v.
    Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882) and former Equity Rule
    94, promulgated January 23, 1882, 104 U.S. IX.
      Note to Subdivision (c). See McLaughlin, Capacity of
    Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale
    L.J. 421 (1937).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (b), relating to secondary actions by shareholders,
    provides among other things, that in, such an action the
    complainant "shall aver (1) that the plaintiff was a shareholder at
    the time of the transaction of which he complains or that his share
    thereafter devolved on him by operation of law . . ."
      As a result of the decision in Erie R. Co. v. Tompkins, 304 U.S.
    64 (decided April 25, 1938, after this rule was promulgated by the
    Supreme Court, though before it took effect) a question has arisen
    as to whether the provision above quoted deals with a matter of
    substantive right or is a matter of procedure. If it is a matter of
    substantive law or right, then under Erie R. Co. v. Tompkins clause
    (1) may not be validly applied in cases pending in states whose
    local law permits a shareholder to maintain such actions, although
    not a shareholder at the time of the transactions complained of.
    The Advisory Committee, believing the question should be settled in
    the courts, proposes no change in Rule 23 but thinks rather that
    the situation should be explained in an appropriate note.
      The rule has a long history. In Hawes v. Oakland (1882) 104 U.S.
    450, the Court held that a shareholder could not maintain such an
    action unless he owned shares at the time of the transactions
    complained of, or unless they devolved on him by operation of law.
    At that time the decision in Swift v. Tyson (1842) 16 Peters 1, was
    the law, and the federal courts considered themselves free to
    establish their own principles of equity jurisprudence, so the
    Court was not in 1882 and has not been, until Erie R. Co. v.
    Tompkins in 1938, concerned with the question whether Hawes v.
    Oakland dealt with substantive right or procedure.
      Following the decision in Hawes v. Oakland, and at the same term,
    the Court, to implement its decision, adopted [former] Equity Rule
    94, which contained the same provision above quoted from Rule 23
    F.R.C.P. The provision in [former] Equity Rule 94 was later
    embodied in [former] Equity Rule 27, of which the present Rule 23
    is substantially a copy.
      In City of Quincy v. Steel (1887) 120 U.S. 241, 245, the Court
    referring to Hawes v. Oakland said: "In order to give effect to the
    principles there laid down, this Court at that term adopted Rule 94
    of the rules of practice for courts of equity of the United
    States."
      Some other cases dealing with [former] Equity Rules 94 or 27
    prior to the decision in Erie R. Co. v. Tompkins are Dimpfel v.
    Ohio & Miss. R. R. (1884) 110 U.S. 209; Illinois Central R. Co. v.
    Adams (1901) 180 U.S. 28, 34; Venner v. Great Northern Ry. (1908)
    209 U.S. 24, 30; Jacobson v. General Motors Corp. (S.D.N.Y. 1938)
    22 F.Supp. 255, 257. These cases generally treat Hawes v. Oakland
    as establishing a "principle" of equity, or as dealing not with
    jurisdiction but with the "right" to maintain an action, or have
    said that the defense under the equity rule is analogous to the
    defense that the plaintiff has no "title" and results in a
    dismissal "for want of equity."
      Those state decisions which held that a shareholder acquiring
    stock after the event may maintain a derivative action are founded
    on the view that it is a right belonging to the shareholder at the
    time of the transaction and which passes as a right to the
    subsequent purchaser. See Pollitz v. Gould (1911) 202 N.Y. 11.
      The first case arising after the decision in Erie R. Co. v.
    Tompkins, in which this problem was involved, was Summers v. Hearst
    (S.D.N.Y. 1938) 23 F.Supp. 986. It concerned [former] Equity Rule
    27, as Federal Rule 23 was not then in effect. In a well considered
    opinion Judge Leibell reviewed the decisions and said: "The federal
    cases that discuss this section of Rule 27 support the view that it
    states a principle of substantive law." He quoted Pollitz v. Gould
    (1911) 202 N.Y. 11, as saying that the United States Supreme Court
    "seems to have been more concerned with establishing this rule as
    one of practice than of substantive law" but that "whether it be
    regarded as establishing a principle of law or a rule of practice,
    this authority has been subsequently followed in the United States
    courts."
      He then concluded that, although the federal decisions treat the
    equity rule as "stating a principle of substantive law", if
    [former] "Equity Rule 27 is to be modified or revoked in view of
    Erie R. Co. v. Tompkins, it is not the province of this Court to
    suggest it, much less impliedly to follow that course by
    disregarding the mandatory provisions of the Rule."
      Some other federal decisions since 1938 touch the question.
      In Piccard v. Sperry Corporation (S.D.N.Y. 1941) 36 F.Supp. 1006,
    1009-10, affirmed without opinion (C.C.A.2d, 1941) 120 F.(2d) 328,
    a shareholder, not such at the time of the transactions complained
    of, sought to intervene. The court held an intervenor was as much
    subject to Rule 23 as an original plaintiff; and that the
    requirement of Rule 23(b) was "a matter of practice," not
    substance, and applied in New York where the state law was
    otherwise, despite Erie R. Co. v. Tompkins. In York v. Guaranty
    Trust Co. of New York (C.C.A.2d, 1944) 143 F.(2d) 503, rev'd on
    other grounds (1945) 65 S.Ct. 1464, the court said: "Restrictions
    on the bringing of stockholders' actions, such as those imposed by
    F.R.C.P. 23(b) or other state statutes are procedural," citing the
    Piccard and other cases.
      In Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90, 95, arising
    in New Jersey, the point was raised but not decided, the court
    saying that it was not satisfied that the then New Jersey rule
    differed from Rule 23(b), and that "under the circumstances the
    proper course was to follow Rule 23(b)."
      In Mullins v. De Soto Securities Co. (W.D.La. 1942) 45 F.Supp.
    871, 878, the point was not decided, because the court found the
    Louisiana rule to be the same as that stated in Rule 23(b).
      In Toebelman v. Missouri-Kansas Pipe Line Co. (D.Del. 1941) 41
    F.Supp. 334, 340, the court dealt only with another part of Rule
    23(b), relating to prior demands on the stockholders and did not
    discuss Erie R. Co. v. Tompkins, or its effect on the rule.
      In Perrott v. United States Banking Corp. (D.Del. 1944) 53
    F.Supp. 953, it appeared that the Delaware law does not require the
    plaintiff to have owned shares at the time of the transaction
    complained of. The court sustained Rule 23(b), after discussion of
    the authorities, saying:
      "It seems to me the rule does not go beyond procedure. * * *
    Simply because a particular plaintiff cannot qualify as a proper
    party to maintain such an action does not destroy or even whittle
    at the cause of action. The cause of action exists until a
    qualified plaintiff can get it started in a federal court."
      In Bankers Nat. Corp. v. Barr (S.D.N.Y. 1945) 9 Fed.Rules Serv.
    23b.11, Case 1, the court held Rule 23(b) to be one of procedure,
    but that whether the plaintiff was a stockholder was a substantive
    question to be settled by state law.
      The New York rule, as stated in Pollitz v. Gould, supra, has been
    altered by an act of the New York Legislature (Chapter 667, Laws of
    1944, effective April 9, 1944, General Corporation Law, Sec. 61)
    which provides that "in any action brought by a shareholder in the
    right of a . . . corporation, it must appear that the plaintiff was
    a stockholder at the time of the transaction of which he complains,
    or that his stock thereafter devolved upon him by operation of
    law." At the same time a further and separate provision was
    enacted, requiring under certain circumstances the giving of
    security for reasonable expenses and attorney's fees, to which
    security the corporation in whose right the action is brought and
    the defendants therein may have recourse. (Chapter 668, Laws of
    1944, effective April 9, 1944, General Corporation Law, Sec. 61-b.)
    These provisions are aimed at so-called "strike" stockholders'
    suits and their attendant abuses. Shielcrawt v. Moffett (Ct.App.
    1945) 294 N.Y. 180, 61 N.E.(2d) 435, rev'g 51 N.Y.S.(2d) 188, aff'g
    49 N.Y.S.(2d) 64; Noel Associates, Inc. v. Merrill (Sup.Ct. 1944)
    184 Misc. 646, 53 N.Y.S.(2d) 143.
      Insofar as Sec. 61 is concerned, it has been held that the
    section is procedural in nature. Klum v. Clinton Trust Co. (Sup.Ct.
    1944) 183 Misc. 340, 48 N.Y.S.(2d) 267; Noel Associates, Inc. v.
    Merrill, supra. In the latter case the court pointed out that "The
    1944 amendment to Section 61 rejected the rule laid down in the
    Pollitz case and substituted, in place thereof, in its precise
    language, the rule which has long prevailed in the Federal Courts
    and which is now Rule 23(b) . . ." There is, nevertheless, a
    difference of opinion regarding the application of the statute to
    pending actions. See Klum v. Clinton Trust Co., supra (applicable);
    Noel Associates, Inc. v. Merrill, supra (inapplicable).
      With respect to Sec. 61-b, which may be regarded as a separate
    problem (Noel Associates, Inc. v. Merrill, supra), it has been held
    that even though the statute is procedural in nature - a matter not
    definitely decided - the Legislature evinced no intent that the
    provision should apply to actions pending when it became effective.
    Shielcrawt v. Moffett, supra. As to actions instituted after the
    effective date of the legislation, the constitutionality of Sec.
    61-b is in dispute. See Wolf v. Atkinson (Sup.Ct. 1944) 182 Misc.
    675, 49 N.Y.S.(2d) 703 (constitutional); Citron v. Mangel Stores
    Corp. (Sup.Ct. 1944)  -  Misc.  - , 50 N.Y.S.(2d) 416
    (unconstitutional); Zlinkoff, The American Investor and the
    Constitutionality of Section 61-B of the New York General
    Corporation Law (1945) 54 Yale L.J. 352.
      New Jersey also enacted a statute, similar to Chapters 667 and
    668 of the New York law. See P.L. 1945, Ch. 131, R.S.Cum.Supp.
    14:3-15. The New Jersey provision similar to Chapter 668 (Sec.
    61-b) differs, however, in that it specifically applies
    retroactively. It has been held that this provision is procedural
    and hence will not govern a pending action brought against a New
    Jersey corporation in the New York courts. Shielcrawt v. Moffett
    (Sup.Ct.N.Y. 1945) 184 Misc. 1074, 56 N.Y.S.(2d) 134.
      See also generally, 2 Moore's Federal Practice (1938) 2250-2253,
    and Cum.Supplement Sec. 23.05.
      The decisions here discussed show that the question is a
    debatable one, and that there is respectable authority for either
    view, with a recent trend towards the view that Rule 23(b)(1) is
    procedural. There is reason to say that the question is one which
    should not be decided by the Supreme Court ex parte, but left to
    await a judicial decision in a litigated case, and that in the
    light of the material in this note, the only inference to be drawn
    from a failure to amend Rule 23(b) would be that the question is
    postponed to await a litigated case.
      The Advisory Committee is unanimously of the opinion that this
    course should be followed.
      If, however, the final conclusion is that the rule deals with a
    matter of substantive right, then the rule should be amended by
    adding a provision that Rule 23(b)(1) does not apply in
    jurisdictions where state law permits a shareholder to maintain a
    secondary action, although he was not a shareholder at the time of
    the transactions of which he complains.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Difficulties with the original rule. The categories of class
    actions in the original rule were defined in terms of the abstract
    nature of the rights involved: the so-called "true" category was
    defined as involving "joint, common, or secondary rights"; the
    "hybrid" category, as involving "several" rights related to
    "specific property"; the "spurious" category, as involving
    "several" rights affected by a common question and related to
    common relief. It was thought that the definitions accurately
    described the situations amendable to the class-suit device, and
    also would indicate the proper extent of the judgment in each
    category, which would in turn help to determine the res judicata
    effect of the judgment if questioned in a later action. Thus the
    judgments in "true" and "hybrid" class actions would extend to the
    class (although in somewhat different ways); the judgment in a
    "spurious" class action would extend only to the parties including
    intervenors. See Moore, Federal Rules of Civil Procedure: Some
    Problems Raised by the Preliminary Draft, 25 Geo.L.J. 551, 570-76
    (1937).
      In practice, the terms "joint," "common," etc., which were used
    as the basis of the Rule 23 classification proved obscure and
    uncertain. See Chaffee, Some Problems of Equity 245-46, 256-57
    (1950); Kalven & Rosenfield, The Contemporary Function of the Class
    Suit, 8 U. of Chi.L.Rev. 684, 707 & n. 73 (1941); Keeffe, Levy &
    Donovan, Lee Defeats Ben Hur, 33 Corn.L.Q. 327, 329-36 (1948);
    Developments in the Law: Multiparty Litigation in the Federal
    Courts, 71 Harv.L.Rev. 874, 931 (1958); Advisory Committee's Note
    to Rule 19, as amended. The courts had considerable difficulty with
    these terms. See, e.g., Gullo v. Veterans' Coop. H. Assn., 13
    F.R.D. 11 (D.D.C. 1952); Shipley v. Pittsburgh & L. E. R. Co., 70
    F.Supp. 870 (W.D.Pa. 1947); Deckert v. Independence Shares Corp.,
    27 F.Supp. 763 (E.D.Pa. 1939), rev'd, 108 F.2d 51 (3d Cir. 1939),
    rev'd, 311 U.S. 282 (1940), on remand, 39 F.Supp. 592 (E.D.Pa.
    1941), rev'd sub nom. Pennsylvania Co. for Ins. on Lives v.
    Deckert, 123 F.2d 979 (3d Cir. 1941) (see Chafee, supra, at
    264-65).
      Nor did the rule provide an adequate guide to the proper extent
    of the judgments in class actions. First, we find instances of the
    courts classifying actions as "true" or intimating that the
    judgments would be decisive for the class where these results
    seemed appropriate but were reached by dint of depriving the word
    "several" of coherent meaning. See, e.g., System Federation No. 91
    v. Reed, 180 F.2d 991 (6th Cir. 1950); Wilson v. City of Paducah,
    100 F.Supp. 116 (W.D.Ky. 1951); Citizens Banking Co. v. Monticello
    State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v. Commerce Trust
    Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323 U.S. 776
    (1944); United States v. American Optical Co., 97 F.Supp. 66
    (N.D.Ill. 1951); National Hairdressers' & C. Assn. v. Philad. Co.,
    34 F.Supp. 264 (D.Del. 1940); 41 F.Supp. 701 (D.Del. 1940), aff'd
    mem., 129 F.2d 1020 (3d Cir. 1942). Second, we find cases
    classified by the courts as "spurious" in which, on a realistic
    view, it would seem fitting for the judgments to extend to the
    class. See, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245
    (E.D.Pa. 1954); aff'd 230 F.2d 717 (3d Cir. 1956); Giesecke v.
    Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); York v.
    Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944), rev'd on grounds
    not here relevant, 326 U.S. 90 (1945) (see Chafee, supra, at 208);
    cf. Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316, 320 (3d Cir.
    1944), cert. denied, 325 U.S. 807 (1945). But cf. the early
    decisions, Duke of Bedford v. Ellis [1901], A.C. 1; Sheffield
    Waterworks v. Yeomans, L.R. 2 Ch.App. 8 (1866); Brown v. Vermuden,
    1 Ch.Cas. 272, 22 Eng.Rep. 796 (1676).
      The "spurious" action envisaged by original Rule 23 was in any
    event an anomaly because, although denominated a "class" action and
    pleaded as such, it was supposed not to adjudicate the rights or
    liabilities of any person not a party. It was believed to be an
    advantage of the "spurious" category that it would invite decisions
    that a member of the "class" could, like a member of the class in a
    "true" or "hybrid" action, intervene on an ancillary basis without
    being required to show an independent basis of Federal
    jurisdiction, and have the benefit of the date of the commencement
    of the action for purposes of the statute of limitations. See 3
    Moore's Federal Practice, pars. 23.10[1], 23.12 (2d ed. 1963).
    These results were attained in some instances but not in others. On
    the statute of limitations, see Union Carbide & Carbon Corp. v.
    Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dism., 371 U.S.
    801 (1963); but cf. P. W. Husserl, Inc. v. Newman, 25 F.R.D. 264
    (S.D.N.Y. 1960); Athas v. Day, 161 F.Supp. 916 (D.Colo. 1958). On
    ancillary intervention, see Amen v. Black, 234 F.2d 12 (10th Cir.
    1956), cert. granted, 352 U.S. 888 (1956), dism. on stip., 355 U.S.
    600 (1958); but. cf. Wagner v. Kemper, 13 F.R.D. 128 (W.D.Mo.
    1952). The results, however, can hardly depend upon the mere
    appearance of a "spurious" category in the rule; they should turn
    no more basic considerations. See discussion of subdivision (c)(1)
    below.
      Finally, the original rule did not squarely address itself to the
    question of the measures that might be taken during the course of
    the action to assure procedural fairness, particularly giving
    notice to members of the class, which may in turn be related in
    some instances to the extension of the judgment to the class. See
    Chafee, supra, at 230-31; Keeffe, Levy & Donovan, supra;
    Developments in the Law, supra, 71 Harv.L.Rev. at 937-38; Note,
    Binding Effect of Class Actions, 67 Harv.L.Rev. 1059, 1062-65
    (1954); Note, Federal Class Actions: A Suggested Revision of Rule
    23, 46 Colum.L.Rev. 818, 833-36 (1946); Mich.Gen.Court R. 208.4
    (effective Jan. 1, 1963); Idaho R.Civ.P. 23(d); Minn.R.Civ.P.
    23.04; N.Dak.R.Civ.P. 23(d).
      The amended rule describes in more practical terms the occasions
    for maintaining class actions; provides that all class actions
    maintained to the end as such will result in judgments including
    those whom the court finds to be members of the class, whether or
    not the judgment is favorable to the class; and refers to the
    measures which can be taken to assure the fair conduct of these
    actions.
      Subdivision (a) states the prerequisites for maintaining any
    class action in terms of the numerousness of the class making
    joinder of the members impracticable, the existence of questions
    common to the class, and the desired qualifications of the
    representative parties. See Weinstein, Revision of Procedure; Some
    Problems in Class Actions, 9 Buffalo L.Rev. 433, 458-59 (1960); 2
    Barron & Holtzoff, Federal Practice & Procedure Sec. 562, at 265,
    Sec. 572, at 351-52 (Wright ed. 1961). These are necessary but not
    sufficient conditions for a class action. See, e.g., Giordano v.
    Radio Corp. of Am., 183 F.2d 558, 560 (3d Cir. 1950); Zachman v.
    Erwin, 186 F.Supp. 681 (S.D.Tex. 1959); Baim & Blank, Inc. v.
    Warren Connelly Co., Inc., 19 F.R.D. 108 (S.D.N.Y. 1956).
    Subdivision (b) describes the additional elements which in varying
    situations justify the use of a class action.
      Subdivision (b)(1). The difficulties which would be likely to
    arise if resort were had to separate actions by or against the
    individual members of the class here furnish the reasons for, and
    the principal key to, the propriety and value of utilizing the
    class-action device. The considerations stated under clauses (A)
    and (B) are comparable to certain of the elements which define the
    persons whose joinder in an action is desirable as stated in Rule
    19(a), as amended. See amended Rule 19(a)(2)(i) and (ii), and the
    Advisory Committee's Note thereto; Hazard, Indispensable Party; The
    Historical Origin of a Procedural Phantom, 61 Colum.L.Rev. 1254,
    1259-60 (1961); cf. 3 Moore, supra, par. 23.08, at 3435.
      Clause (A): One person may have rights against, or be under
    duties toward, numerous persons constituting a class, and be so
    positioned that conflicting or varying adjudications in lawsuits
    with individual members of the class might establish incompatible
    standards to govern his conduct. The class action device can be
    used effectively to obviate the actual or virtual dilemma which
    would thus confront the party opposing the class. The matter has
    been stated thus: "The felt necessity for a class action is
    greatest when the courts are called upon to order or sanction the
    alteration of the status quo in circumstances such that a large
    number of persons are in a position to call on a single person to
    alter the status quo, or to complain if it is altered, and the
    possibility exists that [the] actor might be called upon to act in
    inconsistent ways." Louisell & Hazard, Pleading and Procedure;
    State and Federal 719 (1962); see Supreme Tribe of Ben-Hur v.
    Cauble, 255 U.S. 356, 366-67 (1921). To illustrate: Separate
    actions by individuals against a municipality to declare a bond
    issue invalid or condition or limit it, to prevent or limit the
    making of a particular appropriation or to compel or invalidate an
    assessment, might create a risk of inconsistent or varying
    determinations. In the same way, individual litigations of the
    rights and duties of riparian owners, or of landowners' rights and
    duties respecting a claimed nuisance, could create a possibility of
    incompatible adjudications. Actions by or against a class provide a
    ready and fair means of achieving unitary adjudication. See
    Maricopa County Mun. Water Con. Dist. v. Looney, 219 F.2d 529 (9th
    Cir. 1955); Rank v. Krug, 142 F.Supp. 1, 154-59 (S.D.Calif. 1956),
    on app., State of California v. Rank, 293 F.2d 340, 348 (9th Cir.
    1961); Gart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert. denied 359
    U.S. 978 (1959); cf. Martinez v. Maverick Cty. Water Con. & Imp.
    Dist., 219 F.2d 666 (5th Cir. 1955); 3 Moore, supra, par. 23.11[2],
    at 3458-59.
      Clause (B): This clause takes in situations where the judgment in
    a nonclass action by or against an individual member of the class,
    while not technically concluding the other members, might do so as
    a practical matter. The vice of an individual actions would lie in
    the fact that the other members of the class, thus practically
    concluded, would have had no representation in the lawsuit. In an
    action by policy holders against a fraternal benefit association
    attacking a financial reorganization of the society, it would
    hardly have been practical, if indeed it would have been possible,
    to confine the effects of a validation of the reorganization to the
    individual plaintiffs. Consequently a class action was called for
    with adequate representation of all members of the class. See
    Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356 (1921); Waybright
    v. Columbian Mut. Life Ins. Co., 30 F.Supp. 885 (W.D.Tenn. 1939);
    cf. Smith v. Swormstedt, 16 How. (57 U.S.) 288 (1853). For much the
    same reason actions by shareholders to compel the declaration of a
    dividend the proper recognition and handling of redemption or
    pre-emption rights, or the like (or actions by the corporation for
    corresponding declarations of rights), should ordinarily be
    conducted as class actions, although the matter has been much
    obscured by the insistence that each shareholder has an individual
    claim. See Knapp v. Bankers Securities Corp., 17 F.R.D. 245
    (E.D.Pa. 1954), aff'd, 230 F.2d 717 (3d Cir. 1956); Giesecke v.
    Denver Tramway Corp., 81 F.Supp. 957 (D.Del. 1949); Zahn v.
    Transamerica Corp., 162 F.2d 36 (3d Cir. 1947); Speed v.
    Transamerica Corp., 100 F.Supp. 461 (D.Del. 1951); Sobel v.
    Whittier Corp., 95 F.Supp. 643 (E.D.Mich. 1951), app. dism., 195
    F.2d 361 (6th Cir. 1952); Goldberg v. Whittier Corp., 111 F.Supp.
    382 (E.D.Mich. 1953); Dann v. Studebaker-Packard Corp., 288 F.2d
    201 (6th Cir. 1961); Edgerton v. Armour & Co.,94 F.Supp. 549
    (S.D.Calif. 1950); Ames v. Mengel Co., 190 F.2d 344 (2d Cir. 1951).
    (These shareholders' actions are to be distinguished from
    derivative actions by shareholders dealt with in new Rule 23.1).
    The same reasoning applies to an action which charges a breach of
    trust by an indenture trustee or other fiduciary similarly
    affecting the members of a large class of security holders or other
    beneficiaries, and which requires an accounting or like measures to
    restore the subject of the trust. See Bosenberg v. Chicago T. & T.
    Co., 128 F.2d 245 (7th Cir. 1942); Citizens Banking Co. v.
    Monticello State Bank, 143 F.2d 261 (8th Cir. 1944); Redmond v.
    Commerce Trust Co., 144 F.2d 140 (8th Cir. 1944), cert. denied, 323
    U.S. 776 (1944); cf. York v. Guaranty Trust Co., 143 F.2d 503 (2d
    Cir. 1944), rev'd on grounds not here relevant, 326 U.S. 99 (1945).
      In various situations an adjudication as to one or more members
    of the class will necessarily or probably have an adverse practical
    effect on the interests of other members who should therefore be
    represented in the lawsuit. This is plainly the case when claims
    are made by numerous persons against a fund insufficient to satisfy
    all claims. A class action by or against representative members to
    settle the validity of the claims as a whole, or in groups,
    followed by separate proof of the amount of each valid claim and
    proportionate distribution of the fund, meets the problem. Cf.
    Dickinson v. Burnham, 197 F.2d 973 (2d Cir. 1952), cert. denied,
    344 U.S. 875 (1952); 3 Moore, supra, at par. 23.09. The same
    reasoning applies to an action by a creditor to set aside a
    fraudulent conveyance by the debtor and to appropriate the property
    to his claim, when the debtor's assets are insufficient to pay all
    creditors' claims. See Hefferman v. Bennett & Armour, 110
    Cal.App.2d 564, 243 P.2d 846 (1952); cf. City & County of San
    Francisco v. Market Street Ry., 95 Cal.App.2d 648, 213 P.2d 780
    (1950). Similar problems, however, can arise in the absence of a
    fund either present or potential. A negative or mandatory
    injunction secured by one of a numerous class may disable the
    opposing party from performing claimed duties toward the other
    members of the class or materially affect his ability to do so. An
    adjudication as to movie "clearances and runs" nominally affecting
    only one exhibitor would often have practical effects on all the
    exhibitors in the same territorial area. Cf. United States v.
    Paramount Pictures, Inc., 66 F.Supp. 323, 341-46 (S.D.N.Y. 1946);
    334 U.S. 131, 144-48 (1948). Assuming a sufficiently numerous class
    of exhibitors, a class action would be advisable. (Here
    representation of subclasses of exhibitors could become necessary;
    see subdivision (c)(3)(B).)
      Subdivision (b)(2). This subdivision is intended to reach
    situations where a party has taken action or refused to take action
    with respect to a class, and final relief of an injunctive nature
    or of a corresponding declaratory nature, settling the legality of
    the behavior with respect to the class as a whole, is appropriate.
    Declaratory relief "corresponds" to injunctive relief when as a
    practical matter it affords injunctive relief or serves as a basis
    for later injunctive relief. The subdivision does not extend to
    cases in which the appropriate final relief relates exclusively or
    predominantly to money damages. Action or inaction is directed to a
    class within the meaning of this subdivision even if it has taken
    effect or is threatened only as to one or a few members of the
    class, provided it is based on grounds which have general
    application to the class.
      Illustrative are various actions in the civil-rights field where
    a party is charged with discriminating unlawfully against a class,
    usually one whose members are incapable of specific enumeration.
    See Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v.
    Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 377 U.S. 972
    (1964); Brunson v. Board of Trustees of School District No. 1,
    Clarendon City, S.C., 311 F.2d 107 (4th Cir. 1962), cert. denied,
    373 U.S. 933 (1963); Green v. School Bd. of Roanoke, Va., 304 F.2d
    118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush, 242 F.2d
    156 (5th Cir. 1957), cert. denied, 354 U.S. 921 (1957); Mannings v.
    Board of Public Inst. of Hillsborough County, Fla., 277 F.2d 370
    (5th Cir. 1960); Northcross v. Board of Ed. of City of Memphis, 302
    F.2d 818 (6th Cir. 1962), cert. denied 370 U.S. 944 (1962); Frasier
    v. Board of Trustees of Univ. of N.C., 134 F.Supp. 589 (M.D.N.C.
    1955, 3-judge court), aff'd, 350 U.S. 979 (1956). Subdivision
    (b)(2) is not limited to civil-rights cases. Thus an action looking
    to specific or declaratory relief could be brought by a numerous
    class of purchasers, say retailers of a given description, against
    a seller alleged to have undertaken to sell to that class at prices
    higher than those set for other purchasers, say retailers of
    another description, when the applicable law forbids such a pricing
    differential. So also a patentee of a machine, charged with selling
    or licensing the machine on condition that purchasers or licensees
    also purchase or obtain licenses to use an ancillary unpatented
    machine, could be sued on a class basis by a numerous group of
    purchasers or licensees, or by a numerous group of competing
    sellers or licensors of the unpatented machine, to test the
    legality of the "tying" condition.
      Subdivision (b)(3). In the situations to which this subdivision
    relates, class-action treatment is not as clearly called for as in
    those described above, but it may nevertheless be convenient and
    desirable depending upon the particular facts. Subdivision (b)(3)
    encompasses those cases in which a class action would achieve
    economies of time, effort, and expense, and promote, uniformity of
    decision as to persons similarly situated, without sacrificing
    procedural fairness or bringing about other undesirable results.
    Cf. Chafee, supra, at 201.
      The court is required to find, as a condition of holding that a
    class action may be maintained under this subdivision, that the
    questions common to the class predominate over the questions
    affecting individual members. It is only where this predominance
    exists that economies can be achieved by means of the class-action
    device. In this view, a fraud perpetrated on numerous persons by
    the use of similar misrepresentations may be an appealing situation
    for a class action, and it may remain so despite the need, if
    liability is found, for separate determination of the damages
    suffered by individuals within the class. On the other hand,
    although having some common core, a fraud case may be unsuited for
    treatment as a class action if there was material variation in the
    representation made or in the kinds or degrees of reliance by the
    persons to whom they were addressed. See Oppenheimer v. F. J. Young
    & Co., Inc., 144 F.2d 387 (2d Cir. 1944); Miller v. National City
    Bank of N.Y., 166 F.2d 723 (2d Cir. 1948); and for like problems in
    other contexts, see Hughes v. Encyclopaedia Brittanica, 199 F.2d
    295 (7th Cir. 1952); Sturgeon v. Great Lakes Steel Corp., 143 F.2d
    819 (6th Cir. 1944). A "mass accident" resulting in injuries to
    numerous persons is ordinarily not appropriate for a class action
    because of the likelihood that significant questions, not only of
    damages but of liability and defenses of liability, would be
    present, affecting the individuals in different ways. In these
    circumstances an action conducted nominally as a class action would
    degenerate in practice into multiple lawsuits separately tried. See
    Pennsylvania R.R. v. United States, 111 F.Supp. 80 (D.N.J. 1953);
    cf. Weinstein, supra, 9 Buffalo L.Rev. at 469. Private damage
    claims by numerous individuals arising out of concerted antitrust
    violations may or may not involve predominating common questions.
    See Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.
    1961), pet. cert. dism., 371 U.S. 801 (1963); cf. Weeks v. Bareco
    Oil Co., 125 F.2d 84 (7th Cir. 1941); Kainz v. Anheuser-Busch,
    Inc., 194 F.2d 737 (7th Cir. 1952); Hess v. Anderson, Clayton &
    Co., 20 F.R.D. 466 (S.D.Calif. 1957).
      That common questions predominate is not itself sufficient to
    justify a class action under subdivision (b)(3), for another method
    of handling the litigious situation may be available which has
    greater practical advantages. Thus one or more actions agreed to by
    the parties as test or model actions may be preferable to a class
    action; or it may prove feasible and preferable to consolidate
    actions. Cf. Weinstein, supra, 9 Buffalo L.Rev. at 438-54. Even
    when a number of separate actions are proceeding simultaneously,
    experience shows that the burdens on the parties and the courts can
    sometimes be reduced by arrangements for avoiding repetitious
    discovery or the like. Currently the Coordinating Committee on
    Multiple Litigation in the United States District Courts (a
    subcommittee of the Committee on Trial Practice and Technique of
    the Judicial Conference of the United States) is charged with
    developing methods for expediting such massive litigation. To
    reinforce the point that the court with the aid of the parties
    ought to assess the relative advantages of alternative procedures
    for handling the total controversy, subdivision (b)(3) requires, as
    a further condition of maintaining the class action, that the court
    shall find that that procedure is "superior" to the others in the
    particular circumstances.
      Factors (A)-(D) are listed, non-exhaustively, as pertinent to the
    findings. The court is to consider the interests of individual
    members of the class in controlling their own litigations and
    carrying them on as they see fit. See Weeks v. Bareco Oil Co., 125
    F.2d 84, 88-90, 93-94 (7th Cir. 1941) (anti-trust action); see also
    Pentland v. Dravo Corp., 152 F.2d 851 (3d Cir. 1945), and Chaffee,
    supra, at 273-75, regarding policy of Fair Labor Standards Act of
    1938, Sec. 16(b), 29 U.S.C. Sec. 216(b), prior to amendment by
    Portal-to-Portal Act of 1947, Sec. 5(a). [The present provisions of
    29 U.S.C. Sec. 216(b) are not intended to be affected by Rule 23,
    as amended.]
      In this connection the court should inform itself of any
    litigation actually pending by or against the individuals. The
    interests of individuals in conducting separate lawsuits may be so
    strong as to call for denial of a class action. On the other hand,
    these interests may be theoretic rather than practical; the class
    may have a high degree of cohesion and prosecution of the action
    through representatives would be quite unobjectionable, or the
    amounts at stake for individuals may be so small that separate
    suits would be impracticable. The burden that separate suits would
    impose on the party opposing the class, or upon the court
    calendars, may also fairly be considered. (See the discussion,
    under subdivision (c)(2) below, of the right of members to be
    excluded from the class upon their request.)
      Also pertinent is the question of the desirability of
    concentrating the trial of the claims in the particular forum by
    means of a class action, in contrast to allowing the claims to be
    litigated separately in forums to which they would ordinarily be
    brought. Finally, the court should consider the problems of
    management which are likely to arise in the conduct of a class
    action.
      Subdivision (c)(1). In order to give clear definition to the
    action, this provision requires the court to determine, as early in
    the proceedings as may be practicable, whether an action brought as
    a class action is to be so maintained. The determination depends in
    each case on satisfaction of the terms of subdivision (a) and the
    relevant provisions of subdivision (b).
      An order embodying a determination can be conditional; the court
    may rule, for example, that a class action may be maintained only
    if the representation is improved through intervention of
    additional parties of a stated type. A determination once made can
    be altered or amended before the decision on the merits if, upon
    fuller development of the facts, the original determination appears
    unsound. A negative determination means that the action should be
    stripped of its character as a class action. See subdivision
    (d)(4). Although an action thus becomes a nonclass action, the
    court may still be receptive to interventions before the decision
    on the merits so that the litigation may cover as many interests as
    can be conveniently handled; the questions whether the intervenors
    in the nonclass action shall be permitted to claim "ancillary"
    jurisdiction or the benefit of the date of the commencement of the
    action for purposes of the statute of limitations are to be decided
    by reference to the laws governing jurisdiction and limitations as
    they apply in particular contexts.
      Whether the court should require notice to be given to members of
    the class of its intention to make a determination, or of the order
    embodying it, is left to the court's discretion under subdivision
    (d)(2).
      Subdivision (c)(2) makes special provision for class actions
    maintained under subdivision (b)(3). As noted in the discussion of
    the latter subdivision, the interests of the individuals in
    pursuing their own litigations may be so strong here as to warrant
    denial of a class action altogether. Even when a class action is
    maintained under subdivision (b)(3), this individual interest is
    respected. Thus the court is required to direct notice to the
    members of the class of the right of each member to be excluded
    from the class upon his request. A member who does not request
    exclusion may, if he wishes, enter an appearance in the action
    through his counsel; whether or not he does so, the judgment in the
    action will embrace him.
      The notice setting forth the alternatives open to the members of
    the class, is to be the best practicable under the circumstances,
    and shall include individual notice to the members who can be
    identified through reasonable effort. (For further discussion of
    this notice, see the statement under subdivision (d)(2) below.)
      Subdivision (c)(3). The judgment in a class action maintained as
    such to the end will embrace the class, that is, in a class action
    under subdivision (b)(1) or (b)(2), those found by the court to be
    class members; in a class action under subdivision (b)(3), those to
    whom the notice prescribed by subdivision (c)(2) was directed,
    excepting those who requested exclusion or who are ultimately found
    by the court not to be members of the class. The judgment has this
    scope whether it is favorable or unfavorable to the class. In a
    (b)(1) or (b)(2) action the judgment "describes" the members of the
    class, but need not specify the individual members; in a (b)(3)
    action the judgment "specifies" the individual members who have
    been identified and described the others.
      Compare subdivision (c)(4) as to actions conducted as class
    actions only with respect to particular issues. Where the
    class-action character of the lawsuit is based solely on the
    existence of a "limited fund," the judgment, while extending to all
    claims of class members against the fund, has ordinarily left
    unaffected the personal claims of nonappearing members against the
    debtor. See 3 Moore, supra, par. 23.11[4].
      Hitherto, in a few actions conducted as "spurious" class actions
    and thus nominally designed to extend only to parties and others
    intervening before the determination of liability, courts have held
    or intimated that class members might be permitted to intervene
    after a decision on the merits favorable to their interests, in
    order to secure the benefits of the decision for themselves,
    although they would presumably be unaffected by an unfavorable
    decision. See, as to the propriety of this so-called "one-way"
    intervention in "spurious" actions, the conflicting views expressed
    in Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir.
    1961), pet. cert. dism., 371 U.S. 801 (1963); York v. Guaranty
    Trust Co., 143 F.2d 503, 529 (2d Cir. 1944), rev'd on grounds not
    here relevant, 326 U.S. 99 (1945); Pentland v. Dravo Corp., 152
    F.2d 851, 856 (3d Cir. 1945); Speed v. Transamerica Corp., 100
    F.Supp. 461, 463 (D.Del. 1951); State Wholesale Grocers v. Great
    Atl. & Pac. Tea Co., 24 F.R.D. 510 (N.D.Ill. 1959); Alabama Ind.
    Serv. Stat. Assn. v. Shell Pet Corp., 28 F.Supp. 386, 390 (N.D.Ala.
    1939); Tolliver v. Cudahy Packing Co., 39 F.Supp. 337, 339
    (E.D.Tenn. 1941); Kalven & Rosenfield, supra, 8 U. of Chi.L.Rev.
    684 (1941); Comment, 53 Nw.U.L.Rev. 627, 632-33 (1958);
    Developments in the Law, supra, 71 Harv.L.Rev. at 935; 2 Barron &
    Holtzoff, supra, Sec. 568; but cf. Lockwood v. Hercules Powder Co.,
    7 F.R.D. 24, 28-29 (W.D.Mo. 1947); Abram v. San Joaquin Cotton Oil
    Co., 46 F.Supp. 969, 976-77 (S.D.Calif. 1942); Chaffee, supra, at
    280, 285; 3 Moore, supra, par. 23.12, at 3476. Under proposed
    subdivision (c)(3), one-way intervention is excluded; the action
    will have been early determined to be a class or nonclass action,
    and in the former case the judgment, whether or not favorable, will
    include the class, as above stated.
      Although thus declaring that the judgment in a class action
    includes the class, as defined, subdivision (c)(3) does not disturb
    the recognized principle that the court conducting the action
    cannot predetermine the res judicata effect of the judgment; this
    can be tested only in a subsequent action. See Restatement,
    Judgments Sec. 86, comment (h), Sec. 116 (1942). The court,
    however, in framing the judgment in any suit brought as a class
    action, must decide what its extent or coverage shall be, and if
    the matter is carefully considered, questions of res judicata are
    less likely to be raised at a later time and if raised will be more
    satisfactorily answered. See Chafee, supra, at 294; Weinstein,
    supra, 9 Buffalo L.Rev. at 460.
      Subdivision (c)(4). This provision recognizes that an action may
    be maintained as a class action as to particular issues only. For
    example, in a fraud or similar case the action may retain its
    "class" character only through the adjudication of liability to the
    class; the members of the class may thereafter be required to come
    in individually and prove the amounts of their respective claims.
      Two or more classes may be represented in a single action. Where
    a class is found to include subclasses divergent in interest, the
    class may be divided correspondingly, and each subclass treated as
    a class.
      Subdivision (d) is concerned with the fair and efficient conduct
    of the action and lists some types of orders which may be
    appropriate.
      The court should consider how the proceedings are to be arranged
    in sequence, and what measures should be taken to simplify the
    proof and argument. See subdivision (d)(1). The orders resulting
    from this consideration, like the others referred to in subdivision
    (d), may be combined with a pretrial order under Rule 16, and are
    subject to modification as the case proceeds.
      Subdivision (d)(2) sets out a non-exhaustive list of possible
    occasions for orders requiring notice to the class. Such notice is
    not a novel conception. For example, in "limited fund" cases,
    members of the class have been notified to present individual
    claims after the basic class decision. Notice has gone to members
    of a class so that they might express any opposition to the
    representation, see United States v. American Optical Co., 97
    F.Supp. 66 (N.D.Ill. 1951), and 1950-51 CCH Trade Cases 64573-74
    (par. 62869); cf. Weeks v. Bareco Oil Co., 125 F.2d 84, 94 (7th
    Cir. 1941), and notice may encourage interventions to improve the
    representation of the class. Cf. Oppenheimer v. F. J. Young & Co.,
    144 F.2d 387 (2d Cir. 1944). Notice has been used to poll members
    on a proposed modification of a consent decree. See record in Sam
    Fox Publishing Co. v. United States, 366 U.S. 683 (1961).
      Subdivision (d)(2) does not require notice at any stage, but
    rather calls attention to its availability and invokes the court's
    discretion. In the degree that there is cohesiveness or unity in
    the class and the representation is effective, the need for notice
    to the class will tend toward a minimum. These indicators suggest
    that notice under subdivision (d)(2) may be particularly useful and
    advisable in certain class actions maintained under subdivision
    (b)(3), for example, to permit members of the class to object to
    the representation. Indeed, under subdivision (c)(2), notice must
    be ordered, and is not merely discretionary, to give the members in
    a subdivision (b)(3) class action an opportunity to secure
    exclusion from the class. This mandatory notice pursuant to
    subdivision (c)(2), together with any discretionary notice which
    the court may find it advisable to give under subdivision (d)(2),
    is designed to fulfill requirements of due process to which the
    class action procedure is of course subject. See Hansberry v. Lee,
    311 U.S. 32 (1940); Mullane v. Central Hanover Bank & Trust Co.,
    339 U.S. 306 (1950); cf. Dickinson v. Burnham, 197 F.2d 973, 979
    (2d Cir. 1952), and studies cited at 979 n. 4; see also All
    American Airways, Inc. v. Elderd, 209 F.2d 247, 249 (2d Cir. 1954);
    Gart v. Cole, 263 F.2d 244, 248-49 (2d Cir. 1959), cert. denied,
    359 U.S. 978 (1959).
      Notice to members of the class, whenever employed under amended
    Rule 23, should be accommodated to the particular purpose but need
    not comply with the formalities for service of process. See Chafee,
    supra, at 230-31; Brendle v. Smith, 7 F.R.D. 119 (S.D.N.Y. 1946).
    The fact that notice is given at one stage of the action does not
    mean that it must be given at subsequent stages. Notice is
    available fundamentally "for the protection of the members of the
    class or otherwise for the fair conduct of the action" and should
    not be used merely as a device for the undesirable solicitation of
    claims. See the discussion in Cherner v. Transitron Electronic
    Corp., 201 F.Supp. 934 (D.Mass. 1962); Hormel v. United States, 17
    F.R.D. 303 (S.D.N.Y. 1955).
      In appropriate cases the court should notify interested
    government agencies of the pendency of the action or of particular
    steps therein.
      Subdivision (d)(3) reflects the possibility of conditioning the
    maintenance of a class action, e.g., on the strengthening of the
    representation, see subdivision (c)(1) above; and recognizes that
    the imposition of conditions on intervenors may be required for the
    proper and efficient conduct of the action.
      As to orders under subdivision (d)(4), see subdivision (c)(1)
    above.
      Subdivision (e) requires approval of the court, after notice, for
    the dismissal or compromise of any class action.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      Subdivision (f). This permissive interlocutory appeal provision
    is adopted under the power conferred by 28 U.S.C. Sec. 1292(e).
    Appeal from an order granting or denying class certification is
    permitted in the sole discretion of the court of appeals. No other
    type of Rule 23 order is covered by this provision. The court of
    appeals is given unfettered discretion whether to permit the
    appeal, akin to the discretion exercised by the Supreme Court in
    acting on a petition for certiorari. This discretion suggests an
    analogy to the provision in 28 U.S.C. Sec. 1292(b) for permissive
    appeal on certification by a district court. Subdivision (f),
    however, departs from the Sec. 1292(b) model in two significant
    ways. It does not require that the district court certify the
    certification ruling for appeal, although the district court often
    can assist the parties and court of appeals by offering advice on
    the desirability of appeal. And it does not include the potentially
    limiting requirements of Sec. 1292(b) that the district court order
    "involve[] a controlling question of law as to which there is
    substantial ground for difference of opinion and that an immediate
    appeal from the order may materially advance the ultimate
    termination of the litigation."
      The courts of appeals will develop standards for granting review
    that reflect the changing areas of uncertainty in class litigation.
    The Federal Judicial Center study supports the view that many suits
    with class-action allegations present familiar and almost routine
    issues that are no more worthy of immediate appeal than many other
    interlocutory rulings. Yet several concerns justify expansion of
    present opportunities to appeal. An order denying certification may
    confront the plaintiff with a situation in which the only sure path
    to appellate review is by proceeding to final judgment on the
    merits of an individual claim that, standing alone, is far smaller
    than the costs of litigation. An order granting certification, on
    the other hand, may force a defendant to settle rather than incur
    the costs of defending a class action and run the risk of
    potentially ruinous liability. These concerns can be met at low
    cost by establishing in the court of appeals a discretionary power
    to grant interlocutory review in cases that show appeal-worthy
    certification issues.
      Permission to appeal may be granted or denied on the basis of any
    consideration that the court of appeals finds persuasive.
    Permission is most likely to be granted when the certification
    decision turns on a novel or unsettled question of law, or when, as
    a practical matter, the decision on certification is likely
    dispositive of the litigation.
      The district court, having worked through the certification
    decision, often will be able to provide cogent advice on the
    factors that bear on the decision whether to permit appeal. This
    advice can be particularly valuable if the certification decision
    is tentative. Even as to a firm certification decision, a statement
    of reasons bearing on the probable benefits and costs of immediate
    appeal can help focus the court of appeals decision, and may
    persuade the disappointed party that an attempt to appeal would be
    fruitless.
      The 10-day period for seeking permission to appeal is designed to
    reduce the risk that attempted appeals will disrupt continuing
    proceedings. It is expected that the courts of appeals will act
    quickly in making the preliminary determination whether to permit
    appeal. Permission to appeal does not stay trial court proceedings.
    A stay should be sought first from the trial court. If the trial
    court refuses a stay, its action and any explanation of its views
    should weigh heavily with the court of appeals.
      Appellate Rule 5 has been modified to establish the procedure for
    petitioning for leave to appeal under subdivision (f).
      Changes Made after Publication (GAP Report). No changes were made
    in the text of Rule 23(f) as published.
      Several changes were made in the published Committee Note. (1)
    References to 28 U.S.C. Sec. 1292(b) interlocutory appeals were
    revised to dispel any implication that the restrictive elements of
    Sec. 1292(b) should be read in to Rule 23(f). New emphasis was
    placed on court of appeals discretion by making explicit the
    analogy to certiorari discretion. (2) Suggestions that the new
    procedure is a "modest" expansion of appeal opportunities, to be
    applied with "restraint," and that permission "almost always will
    be denied when the certification decision turns on case-specific
    matters of fact and district court discretion," were deleted. It
    was thought better simply to observe that courts of appeals will
    develop standards "that reflect the changing areas of uncertainty
    in class litigation."

                 COMMITTEE NOTES ON RULES - 2003 AMENDMENT             
      Subdivision (c). Subdivision (c) is amended in several respects.
    The requirement that the court determine whether to certify a class
    "as soon as practicable after commencement of an action" is
    replaced by requiring determination "at an early practicable time."
    The notice provisions are substantially revised.
      Paragraph (1). Subdivision (c)(1)(A) is changed to require that
    the determination whether to certify a class be made "at an early
    practicable time." The "as soon as practicable" exaction neither
    reflects prevailing practice nor captures the many valid reasons
    that may justify deferring the initial certification decision. See
    Willging, Hooper & Niemic, Empirical Study of Class Actions in Four
    Federal District Courts: Final Report to the Advisory Committee on
    Civil Rules 26-36 (Federal Judicial Center 1996).
      Time may be needed to gather information necessary to make the
    certification decision. Although an evaluation of the probable
    outcome on the merits is not properly part of the certification
    decision, discovery in aid of the certification decision often
    includes information required to identify the nature of the issues
    that actually will be presented at trial. In this sense it is
    appropriate to conduct controlled discovery into the "merits,"
    limited to those aspects relevant to making the certification
    decision on an informed basis. Active judicial supervision may be
    required to achieve the most effective balance that expedites an
    informed certification determination without forcing an artificial
    and ultimately wasteful division between "certification discovery"
    and "merits discovery." A critical need is to determine how the
    case will be tried. An increasing number of courts require a party
    requesting class certification to present a "trial plan" that
    describes the issues likely to be presented at trial and tests
    whether they are susceptible of class-wide proof. See Manual For
    Complex Litigation Third, Sec. 21.213, p. 44; Sec. 30.11, p. 214;
    Sec. 30.12, p. 215.
      Other considerations may affect the timing of the certification
    decision. The party opposing the class may prefer to win dismissal
    or summary judgment as to the individual plaintiffs without
    certification and without binding the class that might have been
    certified. Time may be needed to explore designation of class
    counsel under Rule 23(g), recognizing that in many cases the need
    to progress toward the certification determination may require
    designation of interim counsel under Rule 23(g)(2)(A).
      Although many circumstances may justify deferring the
    certification decision, active management may be necessary to
    ensure that the certification decision is not unjustifiably
    delayed.
      Subdivision (c)(1)(C) reflects two amendments. The provision that
    a class certification "may be conditional" is deleted. A court that
    is not satisfied that the requirements of Rule 23 have been met
    should refuse certification until they have been met. The provision
    that permits alteration or amendment of an order granting or
    denying class certification is amended to set the cut-off point at
    final judgment rather than "the decision on the merits." This
    change avoids the possible ambiguity in referring to "the decision
    on the merits." Following a determination of liability, for
    example, proceedings to define the remedy may demonstrate the need
    to amend the class definition or subdivide the class. In this
    setting the final judgment concept is pragmatic. It is not the same
    as the concept used for appeal purposes, but it should be flexible,
    particularly in protracted litigation.
      The authority to amend an order under Rule 23(c)(1) before final
    judgment does not restore the practice of "one-way intervention"
    that was rejected by the 1966 revision of Rule 23. A determination
    of liability after certification, however, may show a need to amend
    the class definition. Decertification may be warranted after
    further proceedings.
      If the definition of a class certified under Rule 23(b)(3) is
    altered to include members who have not been afforded notice and an
    opportunity to request exclusion, notice - including an opportunity
    to request exclusion - must be directed to the new class members
    under Rule 23(c)(2)(B).
      Paragraph (2). The first change made in Rule 23(c)(2) is to call
    attention to the court's authority - already established in part by
    Rule 23(d)(2) - to direct notice of certification to a Rule
    23(b)(1) or (b)(2) class. The present rule expressly requires
    notice only in actions certified under Rule 23(b)(3). Members of
    classes certified under Rules 23(b)(1) or (b)(2) have interests
    that may deserve protection by notice.
      The authority to direct notice to class members in a (b)(1) or
    (b)(2) class action should be exercised with care. For several
    reasons, there may be less need for notice than in a (b)(3) class
    action. There is no right to request exclusion from a (b)(1) or
    (b)(2) class. The characteristics of the class may reduce the need
    for formal notice. The cost of providing notice, moreover, could
    easily cripple actions that do not seek damages. The court may
    decide not to direct notice after balancing the risk that notice
    costs may deter the pursuit of class relief against the benefits of
    notice.
      When the court does direct certification notice in a (b)(1) or
    (b)(2) class action, the discretion and flexibility established by
    subdivision (c)(2)(A) extend to the method of giving notice. Notice
    facilitates the opportunity to participate. Notice calculated to
    reach a significant number of class members often will protect the
    interests of all. Informal methods may prove effective. A simple
    posting in a place visited by many class members, directing
    attention to a source of more detailed information, may suffice.
    The court should consider the costs of notice in relation to the
    probable reach of inexpensive methods.
      If a Rule 23(b)(3) class is certified in conjunction with a
    (b)(2) class, the (c)(2)(B) notice requirements must be satisfied
    as to the (b)(3) class.
      The direction that class-certification notice be couched in
    plain, easily understood language is a reminder of the need to work
    unremittingly at the difficult task of communicating with class
    members. It is difficult to provide information about most class
    actions that is both accurate and easily understood by class
    members who are not themselves lawyers. Factual uncertainty, legal
    complexity, and the complication of class-action procedure raise
    the barriers high. The Federal Judicial Center has created
    illustrative clear-notice forms that provide a helpful starting
    point for actions similar to those described in the forms.
      Subdivision (e). Subdivision (e) is amended to strengthen the
    process of reviewing proposed class-action settlements. Settlement
    may be a desirable means of resolving a class action. But court
    review and approval are essential to assure adequate representation
    of class members who have not participated in shaping the
    settlement.
      Paragraph (1). Subdivision (e)(1)(A) expressly recognizes the
    power of a class representative to settle class claims, issues, or
    defenses.
      Rule 23(e)(1)(A) resolves the ambiguity in former Rule 23(e)'s
    reference to dismissal or compromise of "a class action." That
    language could be - and at times was - read to require court
    approval of settlements with putative class representatives that
    resolved only individual claims. See Manual for Complex Litigation
    Third, Sec. 30.41. The new rule requires approval only if the
    claims, issues, or defenses of a certified class are resolved by a
    settlement, voluntary dismissal, or compromise.
      Subdivision (e)(1)(B) carries forward the notice requirement of
    present Rule 23(e) when the settlement binds the class through
    claim or issue preclusion; notice is not required when the
    settlement binds only the individual class representatives. Notice
    of a settlement binding on the class is required either when the
    settlement follows class certification or when the decisions on
    certification and settlement proceed simultaneously.
      Reasonable settlement notice may require individual notice in the
    manner required by Rule 23(c)(2)(B) for certification notice to a
    Rule 23(b)(3) class. Individual notice is appropriate, for example,
    if class members are required to take action - such as filing
    claims - to participate in the judgment, or if the court orders a
    settlement opt-out opportunity under Rule 23(e)(3).
      Subdivision (e)(1)(C) confirms and mandates the already common
    practice of holding hearings as part of the process of approving
    settlement, voluntary dismissal, or compromise that would bind
    members of a class.
      Subdivision (e)(1)(C) states the standard for approving a
    proposed settlement that would bind class members. The settlement
    must be fair, reasonable, and adequate. A helpful review of many
    factors that may deserve consideration is provided by In re:
    Prudential Ins. Co. America Sales Practice Litigation Agent
    Actions, 148 F.3d 283, 316-324 (3d Cir. 1998). Further guidance can
    be found in the Manual for Complex Litigation.
      The court must make findings that support the conclusion that the
    settlement is fair, reasonable, and adequate. The findings must be
    set out in sufficient detail to explain to class members and the
    appellate court the factors that bear on applying the standard.
      Settlement review also may provide an occasion to review the
    cogency of the initial class definition. The terms of the
    settlement themselves, or objections, may reveal divergent
    interests of class members and demonstrate the need to redefine the
    class or to designate subclasses. Redefinition of a class certified
    under Rule 23(b)(3) may require notice to new class members under
    Rule 23(c)(2)(B). See Rule 23(c)(1)(C).
      Paragraph (2). Subdivision (e)(2) requires parties seeking
    approval of a settlement, voluntary dismissal, or compromise under
    Rule 23(e)(1) to file a statement identifying any agreement made in
    connection with the settlement. This provision does not change the
    basic requirement that the parties disclose all terms of the
    settlement or compromise that the court must approve under Rule
    23(e)(1). It aims instead at related undertakings that, although
    seemingly separate, may have influenced the terms of the settlement
    by trading away possible advantages for the class in return for
    advantages for others. Doubts should be resolved in favor of
    identification.
      Further inquiry into the agreements identified by the parties
    should not become the occasion for discovery by the parties or
    objectors. The court may direct the parties to provide to the court
    or other parties a summary or copy of the full terms of any
    agreement identified by the parties. The court also may direct the
    parties to provide a summary or copy of any agreement not
    identified by the parties that the court considers relevant to its
    review of a proposed settlement. In exercising discretion under
    this rule, the court may act in steps, calling first for a summary
    of any agreement that may have affected the settlement and then for
    a complete version if the summary does not provide an adequate
    basis for review. A direction to disclose a summary or copy of an
    agreement may raise concerns of confidentiality. Some agreements
    may include information that merits protection against general
    disclosure. And the court must provide an opportunity to claim
    work-product or other protections.
      Paragraph (3). Subdivision (e)(3) authorizes the court to refuse
    to approve a settlement unless the settlement affords class members
    a new opportunity to request exclusion from a class certified under
    Rule 23(b)(3) after settlement terms are known. An agreement by the
    parties themselves to permit class members to elect exclusion at
    this point by the settlement agreement may be one factor supporting
    approval of the settlement. Often there is an opportunity to opt
    out at this point because the class is certified and settlement is
    reached in circumstances that lead to simultaneous notice of
    certification and notice of settlement. In these cases, the basic
    opportunity to elect exclusion applies without further
    complication. In some cases, particularly if settlement appears
    imminent at the time of certification, it may be possible to
    achieve equivalent protection by deferring notice and the
    opportunity to elect exclusion until actual settlement terms are
    known. This approach avoids the cost and potential confusion of
    providing two notices and makes the single notice more meaningful.
    But notice should not be delayed unduly after certification in the
    hope of settlement.
      Rule 23(e)(3) authorizes the court to refuse to approve a
    settlement unless the settlement affords a new opportunity to elect
    exclusion in a case that settles after a certification decision if
    the earlier opportunity to elect exclusion provided with the
    certification notice has expired by the time of the settlement
    notice. A decision to remain in the class is likely to be more
    carefully considered and is better informed when settlement terms
    are known.
      The opportunity to request exclusion from a proposed settlement
    is limited to members of a (b)(3) class. Exclusion may be requested
    only by individual class members; no class member may purport to
    opt out other class members by way of another class action.
      The decision whether to approve a settlement that does not allow
    a new opportunity to elect exclusion is confided to the court's
    discretion. The court may make this decision before directing
    notice to the class under Rule 23(e)(1)(B) or after the Rule
    23(e)(1)(C) hearing. Many factors may influence the court's
    decision. Among these are changes in the information available to
    class members since expiration of the first opportunity to request
    exclusion, and the nature of the individual class members' claims.
      The terms set for permitting a new opportunity to elect exclusion
    from the proposed settlement of a Rule 23(b)(3) class action may
    address concerns of potential misuse. The court might direct, for
    example, that class members who elect exclusion are bound by
    rulings on the merits made before the settlement was proposed for
    approval. Still other terms or conditions may be appropriate.
      Paragraph (4). Subdivision (e)(4) confirms the right of class
    members to object to a proposed settlement, voluntary dismissal, or
    compromise. The right is defined in relation to a disposition that,
    because it would bind the class, requires court approval under
    subdivision (e)(1)(C).
      Subdivision (e)(4)(B) requires court approval for withdrawal of
    objections made under subdivision (e)(4)(A). Review follows
    automatically if the objections are withdrawn on terms that lead to
    modification of the settlement with the class. Review also is
    required if the objector formally withdraws the objections. If the
    objector simply abandons pursuit of the objection, the court may
    inquire into the circumstances.
      Approval under paragraph (4)(B) may be given or denied with
    little need for further inquiry if the objection and the
    disposition go only to a protest that the individual treatment
    afforded the objector under the proposed settlement is unfair
    because of factors that distinguish the objector from other class
    members. Different considerations may apply if the objector has
    protested that the proposed settlement is not fair, reasonable, or
    adequate on grounds that apply generally to a class or subclass.
    Such objections, which purport to represent class-wide interests,
    may augment the opportunity for obstruction or delay. If such
    objections are surrendered on terms that do not affect the class
    settlement or the objector's participation in the class settlement,
    the court often can approve withdrawal of the objections without
    elaborate inquiry.
      Once an objector appeals, control of the proceeding lies in the
    court of appeals. The court of appeals may undertake review and
    approval of a settlement with the objector, perhaps as part of
    appeal settlement procedures, or may remand to the district court
    to take advantage of the district court's familiarity with the
    action and settlement.
      Subdivision (g). Subdivision (g) is new. It responds to the
    reality that the selection and activity of class counsel are often
    critically important to the successful handling of a class action.
    Until now, courts have scrutinized proposed class counsel as well
    as the class representative under Rule 23(a)(4). This experience
    has recognized the importance of judicial evaluation of the
    proposed lawyer for the class, and this new subdivision builds on
    that experience rather than introducing an entirely new element
    into the class certification process. Rule 23(a)(4) will continue
    to call for scrutiny of the proposed class representative, while
    this subdivision will guide the court in assessing proposed class
    counsel as part of the certification decision. This subdivision
    recognizes the importance of class counsel, states the obligation
    to represent the interests of the class, and provides a framework
    for selection of class counsel. The procedure and standards for
    appointment vary depending on whether there are multiple applicants
    to be class counsel. The new subdivision also provides a method by
    which the court may make directions from the outset about the
    potential fee award to class counsel in the event the action is
    successful.
      Paragraph (1) sets out the basic requirement that class counsel
    be appointed if a class is certified and articulates the obligation
    of class counsel to represent the interests of the class, as
    opposed to the potentially conflicting interests of individual
    class members. It also sets out the factors the court should
    consider in assessing proposed class counsel.
      Paragraph (1)(A) requires that the court appoint class counsel to
    represent the class. Class counsel must be appointed for all
    classes, including each subclass that the court certifies to
    represent divergent interests.
      Paragraph (1)(A) does not apply if "a statute provides
    otherwise." This recognizes that provisions of the Private
    Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109
    Stat. 737 (1995) (codified in various sections of 15 U.S.C.),
    contain directives that bear on selection of a lead plaintiff and
    the retention of counsel. This subdivision does not purport to
    supersede or to affect the interpretation of those provisions, or
    any similar provisions of other legislation.
      Paragraph 1(B) recognizes that the primary responsibility of
    class counsel, resulting from appointment as class counsel, is to
    represent the best interests of the class. The rule thus
    establishes the obligation of class counsel, an obligation that may
    be different from the customary obligations of counsel to
    individual clients. Appointment as class counsel means that the
    primary obligation of counsel is to the class rather than to any
    individual members of it. The class representatives do not have an
    unfettered right to "fire" class counsel. In the same vein, the
    class representatives cannot command class counsel to accept or
    reject a settlement proposal. To the contrary, class counsel must
    determine whether seeking the court's approval of a settlement
    would be in the best interests of the class as a whole.
      Paragraph (1)(C) articulates the basic responsibility of the
    court to appoint class counsel who will provide the adequate
    representation called for by paragraph (1)(B). It identifies
    criteria that must be considered and invites the court to consider
    any other pertinent matters. Although couched in terms of the
    court's duty, the listing also informs counsel seeking appointment
    about the topics that should be addressed in an application for
    appointment or in the motion for class certification.
      The court may direct potential class counsel to provide
    additional information about the topics mentioned in paragraph
    (1)(C) or about any other relevant topic. For example, the court
    may direct applicants to inform the court concerning any agreements
    about a prospective award of attorney fees or nontaxable costs, as
    such agreements may sometimes be significant in the selection of
    class counsel. The court might also direct that potential class
    counsel indicate how parallel litigation might be coordinated or
    consolidated with the action before the court.
      The court may also direct counsel to propose terms for a
    potential award of attorney fees and nontaxable costs. Attorney fee
    awards are an important feature of class action practice, and
    attention to this subject from the outset may often be a productive
    technique. Paragraph (2)(C) therefore authorizes the court to
    provide directions about attorney fees and costs when appointing
    class counsel. Because there will be numerous class actions in
    which this information is not likely to be useful, the court need
    not consider it in all class actions.
      Some information relevant to class counsel appointment may
    involve matters that include adversary preparation in a way that
    should be shielded from disclosure to other parties. An appropriate
    protective order may be necessary to preserve confidentiality.
      In evaluating prospective class counsel, the court should weigh
    all pertinent factors. No single factor should necessarily be
    determinative in a given case. For example, the resources counsel
    will commit to the case must be appropriate to its needs, but the
    court should be careful not to limit consideration to lawyers with
    the greatest resources.
      If, after review of all applicants, the court concludes that none
    would be satisfactory class counsel, it may deny class
    certification, reject all applications, recommend that an
    application be modified, invite new applications, or make any other
    appropriate order regarding selection and appointment of class
    counsel.
      Paragraph (2). This paragraph sets out the procedure that should
    be followed in appointing class counsel. Although it affords
    substantial flexibility, it provides the framework for appointment
    of class counsel in all class actions. For counsel who filed the
    action, the materials submitted in support of the motion for class
    certification may suffice to justify appointment so long as the
    information described in paragraph (g)(1)(C) is included. If there
    are other applicants, they ordinarily would file a formal
    application detailing their suitability for the position.
      In a plaintiff class action the court usually would appoint as
    class counsel only an attorney or attorneys who have sought
    appointment. Different considerations may apply in defendant class
    actions.
      The rule states that the court should appoint "class counsel." In
    many instances, the applicant will be an individual attorney. In
    other cases, however, an entire firm, or perhaps numerous attorneys
    who are not otherwise affiliated but are collaborating on the
    action will apply. No rule of thumb exists to determine when such
    arrangements are appropriate; the court should be alert to the need
    for adequate staffing of the case, but also to the risk of
    overstaffing or an ungainly counsel structure.
      Paragraph (2)(A) authorizes the court to designate interim
    counsel during the pre-certification period if necessary to protect
    the interests of the putative class. Rule 23(c)(1)(B) directs that
    the order certifying the class include appointment of class
    counsel. Before class certification, however, it will usually be
    important for an attorney to take action to prepare for the
    certification decision. The amendment to Rule 23(c)(1) recognizes
    that some discovery is often necessary for that determination. It
    also may be important to make or respond to motions before
    certification. Settlement may be discussed before certification.
    Ordinarily, such work is handled by the lawyer who filed the
    action. In some cases, however, there may be rivalry or uncertainty
    that makes formal designation of interim counsel appropriate. Rule
    23(g)(2)(A) authorizes the court to designate interim counsel to
    act on behalf of the putative class before the certification
    decision is made. Failure to make the formal designation does not
    prevent the attorney who filed the action from proceeding in it.
    Whether or not formally designated interim counsel, an attorney who
    acts on behalf of the class before certification must act in the
    best interests of the class as a whole. For example, an attorney
    who negotiates a pre-certification settlement must seek a
    settlement that is fair, reasonable, and adequate for the class.
      Rule 23(c)(1) provides that the court should decide whether to
    certify the class "at an early practicable time," and directs that
    class counsel should be appointed in the order certifying the
    class. In some cases, it may be appropriate for the court to allow
    a reasonable period after commencement of the action for filing
    applications to serve as class counsel. The primary ground for
    deferring appointment would be that there is reason to anticipate
    competing applications to serve as class counsel. Examples might
    include instances in which more than one class action has been
    filed, or in which other attorneys have filed individual actions on
    behalf of putative class members. The purpose of facilitating
    competing applications in such a case is to afford the best
    possible representation for the class. Another possible reason for
    deferring appointment would be that the initial applicant was found
    inadequate, but it seems appropriate to permit additional
    applications rather than deny class certification.
      Paragraph (2)(B) states the basic standard the court should use
    in deciding whether to certify the class and appoint class counsel
    in the single applicant situation - that the applicant be able to
    provide the representation called for by paragraph (1)(B) in light
    of the factors identified in paragraph (1)(C).
      If there are multiple adequate applicants, paragraph (2)(B)
    directs the court to select the class counsel best able to
    represent the interests of the class. This decision should also be
    made using the factors outlined in paragraph (1)(C), but in the
    multiple applicant situation the court is to go beyond scrutinizing
    the adequacy of counsel and make a comparison of the strengths of
    the various applicants. As with the decision whether to appoint the
    sole applicant for the position, no single factor should be
    dispositive in selecting class counsel in cases in which there are
    multiple applicants. The fact that a given attorney filed the
    instant action, for example, might not weigh heavily in the
    decision if that lawyer had not done significant work identifying
    or investigating claims. Depending on the nature of the case, one
    important consideration might be the applicant's existing
    attorney-client relationship with the proposed class
    representative.
      Paragraph (2)(C) builds on the appointment process by authorizing
    the court to include provisions regarding attorney fees in the
    order appointing class counsel. Courts may find it desirable to
    adopt guidelines for fees or nontaxable costs, or to direct class
    counsel to report to the court at regular intervals on the efforts
    undertaken in the action, to facilitate the court's later
    determination of a reasonable attorney fee.
      Subdivision (h). Subdivision (h) is new. Fee awards are a
    powerful influence on the way attorneys initiate, develop, and
    conclude class actions. Class action attorney fee awards have
    heretofore been handled, along with all other attorney fee awards,
    under Rule 54(d)(2), but that rule is not addressed to the
    particular concerns of class actions. This subdivision is designed
    to work in tandem with new subdivision (g) on appointment of class
    counsel, which may afford an opportunity for the court to provide
    an early framework for an eventual fee award, or for monitoring the
    work of class counsel during the pendency of the action.
      Subdivision (h) applies to "an action certified as a class
    action." This includes cases in which there is a simultaneous
    proposal for class certification and settlement even though
    technically the class may not be certified unless the court
    approves the settlement pursuant to review under Rule 23(e). When a
    settlement is proposed for Rule 23(e) approval, either after
    certification or with a request for certification, notice to class
    members about class counsel's fee motion would ordinarily accompany
    the notice to the class about the settlement proposal itself.
      This subdivision does not undertake to create new grounds for an
    award of attorney fees or nontaxable costs. Instead, it applies
    when such awards are authorized by law or by agreement of the
    parties. Against that background, it provides a format for all
    awards of attorney fees and nontaxable costs in connection with a
    class action, not only the award to class counsel. In some
    situations, there may be a basis for making an award to other
    counsel whose work produced a beneficial result for the class, such
    as attorneys who acted for the class before certification but were
    not appointed class counsel, or attorneys who represented objectors
    to a proposed settlement under Rule 23(e) or to the fee motion of
    class counsel. Other situations in which fee awards are authorized
    by law or by agreement of the parties may exist.
      This subdivision authorizes an award of "reasonable" attorney
    fees and nontaxable costs. This is the customary term for
    measurement of fee awards in cases in which counsel may obtain an
    award of fees under the "common fund" theory that applies in many
    class actions, and is used in many fee-shifting statutes. Depending
    on the circumstances, courts have approached the determination of
    what is reasonable in different ways. In particular, there is some
    variation among courts about whether in "common fund" cases the
    court should use the lodestar or a percentage method of determining
    what fee is reasonable. The rule does not attempt to resolve the
    question whether the lodestar or percentage approach should be
    viewed as preferable.
      Active judicial involvement in measuring fee awards is singularly
    important to the proper operation of the class-action process.
    Continued reliance on caselaw development of fee-award measures
    does not diminish the court's responsibility. In a class action,
    the district court must ensure that the amount and mode of payment
    of attorney fees are fair and proper whether the fees come from a
    common fund or are otherwise paid. Even in the absence of
    objections, the court bears this responsibility.
      Courts discharging this responsibility have looked to a variety
    of factors. One fundamental focus is the result actually achieved
    for class members, a basic consideration in any case in which fees
    are sought on the basis of a benefit achieved for class members.
    The Private Securities Litigation Reform Act of 1995 explicitly
    makes this factor a cap for a fee award in actions to which it
    applies. See 15 U.S.C. Secs. 77z-1(a)(6); 78u-4(a)(6) (fee award
    should not exceed a "reasonable percentage of the amount of any
    damages and prejudgment interest actually paid to the class"). For
    a percentage approach to fee measurement, results achieved is the
    basic starting point.
      In many instances, the court may need to proceed with care in
    assessing the value conferred on class members. Settlement regimes
    that provide for future payments, for example, may not result in
    significant actual payments to class members. In this connection,
    the court may need to scrutinize the manner and operation of any
    applicable claims procedure. In some cases, it may be appropriate
    to defer some portion of the fee award until actual payouts to
    class members are known. Settlements involving nonmonetary
    provisions for class members also deserve careful scrutiny to
    ensure that these provisions have actual value to the class. On
    occasion the court's Rule 23(e) review will provide a solid basis
    for this sort of evaluation, but in any event it is also important
    to assessing the fee award for the class.
      At the same time, it is important to recognize that in some class
    actions the monetary relief obtained is not the sole determinant of
    an appropriate attorney fees award. Cf. Blanchard v. Bergeron, 489
    U.S. 87, 95 (1989) (cautioning in an individual case against an
    "undesirable emphasis" on "the importance of the recovery of
    damages in civil rights litigation" that might "shortchange efforts
    to seek effective injunctive or declaratory relief").
      Any directions or orders made by the court in connection with
    appointing class counsel under Rule 23(g) should weigh heavily in
    making a fee award under this subdivision.
      Courts have also given weight to agreements among the parties
    regarding the fee motion, and to agreements between class counsel
    and others about the fees claimed by the motion. Rule 54(d)(2)(B)
    provides: "If directed by the court, the motion shall also disclose
    the terms of any agreement with respect to fees to be paid for the
    services for which claim is made." The agreement by a settling
    party not to oppose a fee application up to a certain amount, for
    example, is worthy of consideration, but the court remains
    responsible to determine a reasonable fee. "Side agreements"
    regarding fees provide at least perspective pertinent to an
    appropriate fee award.
      In addition, courts may take account of the fees charged by class
    counsel or other attorneys for representing individual claimants or
    objectors in the case. In determining a fee for class counsel, the
    court's objective is to ensure an overall fee that is fair for
    counsel and equitable within the class. In some circumstances
    individual fee agreements between class counsel and class members
    might have provisions inconsistent with those goals, and the court
    might determine that adjustments in the class fee award were
    necessary as a result.
      Finally, it is important to scrutinize separately the application
    for an award covering nontaxable costs. If costs were addressed in
    the order appointing class counsel, those directives should be a
    presumptive starting point in determining what is an appropriate
    award.
      Paragraph (1). Any claim for an award of attorney fees must be
    sought by motion under Rule 54(d)(2), which invokes the provisions
    for timing of appeal in Rule 58 and Appellate Rule 4. Owing to the
    distinctive features of class action fee motions, however, the
    provisions of this subdivision control disposition of fee motions
    in class actions, while Rule 54(d)(2) applies to matters not
    addressed in this subdivision.
      The court should direct when the fee motion must be filed. For
    motions by class counsel in cases subject to court review of a
    proposed settlement under Rule 23(e), it would be important to
    require the filing of at least the initial motion in time for
    inclusion of information about the motion in the notice to the
    class about the proposed settlement that is required by Rule 23(e).
    In cases litigated to judgment, the court might also order class
    counsel's motion to be filed promptly so that notice to the class
    under this subdivision (h) can be given.
      Besides service of the motion on all parties, notice of class
    counsel's motion for attorney fees must be "directed to the class
    in a reasonable manner." Because members of the class have an
    interest in the arrangements for payment of class counsel whether
    that payment comes from the class fund or is made directly by
    another party, notice is required in all instances. In cases in
    which settlement approval is contemplated under Rule 23(e), notice
    of class counsel's fee motion should be combined with notice of the
    proposed settlement, and the provision regarding notice to the
    class is parallel to the requirements for notice under Rule 23(e).
    In adjudicated class actions, the court may calibrate the notice to
    avoid undue expense.
      Paragraph (2). A class member and any party from whom payment is
    sought may object to the fee motion. Other parties - for example,
    nonsettling defendants - may not object because they lack a
    sufficient interest in the amount the court awards. The rule does
    not specify a time limit for making an objection. In setting the
    date objections are due, the court should provide sufficient time
    after the full fee motion is on file to enable potential objectors
    to examine the motion.
      The court may allow an objector discovery relevant to the
    objections. In determining whether to allow discovery, the court
    should weigh the need for the information against the cost and
    delay that would attend discovery. See Rule 26(b)(2). One factor in
    determining whether to authorize discovery is the completeness of
    the material submitted in support of the fee motion, which depends
    in part on the fee measurement standard applicable to the case. If
    the motion provides thorough information, the burden should be on
    the objector to justify discovery to obtain further information.
      Paragraph (3). Whether or not there are formal objections, the
    court must determine whether a fee award is justified and, if so,
    set a reasonable fee. The rule does not require a formal hearing in
    all cases. The form and extent of a hearing depend on the
    circumstances of the case. The rule does require findings and
    conclusions under Rule 52(a).
      Paragraph (4). By incorporating Rule 54(d)(2), this provision
    gives the court broad authority to obtain assistance in determining
    the appropriate amount to award. In deciding whether to direct
    submission of such questions to a special master or magistrate
    judge, the court should give appropriate consideration to the cost
    and delay that such a process might entail.
      Changes Made After Publication and Comment. Rule 23(c)(1)(B) is
    changed to incorporate the counsel-appointment provisions of Rule
    23(g). The statement of the method and time for requesting
    exclusion from a (b)(3) class has been moved to the notice of
    certification provision in Rule 23(c)(2)(B).
      Rule 23(c)(1)(C) is changed by deleting all references to
    "conditional" certification.
      Rule 23(c)(2)(A) is changed by deleting the requirement that
    class members be notified of certification of a (b)(1) or (b)(2)
    class. The new version provides only that the court may direct
    appropriate notice to the class.
      Rule 23(c)(2)(B) is revised to require that the notice of class
    certification define the certified class in terms identical to the
    terms used in (c)(1)(B), and to incorporate the statement
    transferred from (c)(1)(B) on "when and how members may elect to be
    excluded."
      Rule 23(e)(1) is revised to delete the requirement that the
    parties must win court approval for a precertification dismissal or
    settlement.
      Rule 23(e)(2) is revised to change the provision that the court
    may direct the parties to file a copy or summary of any agreement
    or understanding made in connection with a proposed settlement. The
    new provision directs the parties to a proposed settlement to
    identify any agreement made in connection with the settlement.
      Rule 23(e)(3) is proposed in a restyled form of the second
    version proposed for publication.
      Rule 23(e)(4)(B) is restyled.
      Rule 23(g)(1)(C) is a transposition of criteria for appointing
    class counsel that was published as Rule 23(g)(2)(B). The criteria
    are rearranged, and expanded to include consideration of experience
    in handling claims of the type asserted in the action and of
    counsel's knowledge of the applicable law.
      Rule 23(g)(2)(A) is a new provision for designation of interim
    counsel to act on behalf of a putative class before a certification
    determination is made.
      Rule 23(g)(2)(B) is revised to point up the differences between
    appointment of class counsel when there is only one applicant and
    when there are competing applicants. When there is only one
    applicant the court must determine that the applicant is able to
    fairly and adequately represent class interests. When there is more
    than one applicant the court must appoint the applicant best able
    to represent class interests.
      Rule 23(h) is changed to require that notice of an attorney-fee
    motion by class counsel be "directed to class members," rather than
    "given to all class members."

-End-



-CITE-
    28 USC APPENDIX Rule 23.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 23.1. Derivative Actions by Shareholders

-STATUTE-
      In a derivative action brought by one or more shareholders or
    members to enforce a right of a corporation or of an unincorporated
    association, the corporation or association having failed to
    enforce a right which may properly be asserted by it, the complaint
    shall be verified and shall allege (1) that the plaintiff was a
    shareholder or member at the time of the transaction of which the
    plaintiff complains or that the plaintiff's share or membership
    thereafter devolved on the plaintiff by operation of law, and (2)
    that the action is not a collusive one to confer jurisdiction on a
    court of the United States which it would not otherwise have. The
    complaint shall also allege with particularity the efforts, if any,
    made by the plaintiff to obtain the action the plaintiff desires
    from the directors or comparable authority and, if necessary, from
    the shareholders or members, and the reasons for the plaintiff's
    failure to obtain the action or for not making the effort. The
    derivative action may not be maintained if it appears that the
    plaintiff does not fairly and adequately represent the interests of
    the shareholders or members similarly situated in enforcing the
    right of the corporation or association. The 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
    shareholders or members in such manner as the court directs.

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1966            
      A derivative action by a shareholder of a corporation or by a
    member of an unincorporated association has distinctive aspects
    which require the special provisions set forth in the new rule. The
    next-to-the-last sentence recognizes that the question of adequacy
    of representation may arise when the plaintiff is one of a group of
    shareholders or members. Cf. 3 Moore's Federal Practice, par. 23.08
    (2d ed. 1963).
      The court has inherent power to provide for the conduct of the
    proceedings in a derivative action, including the power to
    determine the course of the proceedings and require that any
    appropriate notice be given to shareholders or members.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 23.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 23.2. Actions Relating to Unincorporated Associations

-STATUTE-
      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).

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1966            
      Although an action by or against representatives of the
    membership of an unincorporated association has often been viewed
    as a class action, the real or main purpose of this
    characterization has been to give "entity treatment" to the
    association when for formal reasons it cannot sue or be sued as a
    jural person under Rule 17(b). See Louisell & Hazard, Pleading and
    Procedure: State and Federal 718 (1962); 3 Moore's Federal
    Practice, par. 23.08 (2d ed. 1963); Story, J. in West v. Randall,
    29 Fed.Cas. 718, 722-23, No. 17,424 (C.C.D.R.I. 1820); and, for
    examples, Gibbs v. Buck, 307 U.S. 66 (1939); Tunstall v.
    Brotherhood of Locomotive F. & E., 148 F.2d 403 (4th Cir. 1945);
    Oskoian v. Canuel, 269 F.2d 311 (1st Cir. 1959). Rule 23.2 deals
    separately with these actions, referring where appropriate to Rule
    23.

-End-



-CITE-
    28 USC APPENDIX Rule 24                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 24. Intervention

-STATUTE-
      (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. When a party to an action relies for
    ground of claim or defense upon any statute or executive order
    administered by a federal or state 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. 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., Sec. 2403. When the constitutionality
    of any statute of a State affecting the public interest is drawn in
    question in any action in which that State or any agency, officer,
    or employee thereof is not a party, the court shall notify the
    attorney general of the State as provided in Title 28, U.S.C. Sec.
    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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
    Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966,
    eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,
    eff. Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      The right to intervene given by the following and similar
    statutes is preserved, but the procedure for its assertion is
    governed by this rule:

    U.S.C., Title 28:

     Sec. 45a [now 2323] (Special attorneys; participation by
          Interstate Commerce Commission; intervention) (in certain
          cases under interstate commerce laws)
     Sec. 48 [now 2322] (Suits to be against United States;
          intervention by United States)
     Sec. 401 [now 2403] (Intervention by United States;
          constitutionality of Federal statute)

    U.S.C., Title 40:

     Sec. 276a-2(b) [now 3144] (Bonds of contractors for public
          buildings or works; rights of persons furnishing labor and
          materials).

      Compare with the last sentence of [former] Equity Rule 37
    (Parties Generally - Intervention). This rule amplifies and
    restates the present federal practice at law and in equity. For the
    practice in admiralty see Admiralty Rules 34 (How Third Party May
    Intervene) and 42 (Claims Against Proceeds in Registry). See
    generally Moore and Levi, Federal Intervention: I The Right to
    Intervene and Reorganization (1936), 45 Yale L.J. 565. Under the
    codes two types of intervention are provided, one for the recovery
    of specific real or personal property (2 Ohio Gen.Code Ann. (Page,
    1926) Sec. 11263; Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec.
    89-522), and the other allowing intervention generally when the
    applicant has an interest in the matter in litigation (1
    Colo.Stat.Ann. (1935) Code Civ.Proc. Sec. 22; La.Code Pract. (Dart,
    1932) Arts. 389-394; Utah Rev.Stat.Ann. (1933) Sec. 104-3-24). The
    English intervention practice is based upon various rules and
    decisions and falls into the two categories of absolute right and
    discretionary right. For the absolute right see English Rules Under
    the Judicature Act (The Annual Practice, 1937) O. 12, r. 24
    (admiralty), r. 25 (land), r. 23 (probate); O. 57, r. 12
    (execution); J. A. (1925) Secs. 181, 182, 183(2) (divorce); In re
    Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497
    (receivership); Wilson v. Church, 9 Ch.D. 552 (1878)
    (representative action). For the discretionary right see O. 16, r.
    11 (nonjoinder) and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916),
    Vavasseur v. Krupp, 9 Ch.D. 351 (1878) (persons out of the
    jurisdiction).

          NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENTS      
      Note. Subdivision (a). The addition to subdivision (a)(3) covers
    the situation where property may be in the actual custody of some
    other officer or agency - such as the Secretary of the Treasury -
    but the control and disposition of the property is lodged in the
    court wherein the action is pending.
      Subdivision (b). The addition in subdivision (b) permits the
    intervention of governmental officers or agencies in proper cases
    and thus avoids exclusionary constructions of the rule. For an
    example of the latter, see Matter of Bender Body Co. (Ref.Ohio
    1941) 47 F.Supp. 224, aff'd as moot (N.D.Ohio 1942) 47 F.Supp. 224,
    234, holding that the Administrator of the Office of Price
    Administration, then acting under the authority of an Executive
    Order of the President, could not intervene in a bankruptcy
    proceeding to protest the sale of assets above ceiling prices.
    Compare, however, Securities and Exchange Commission v. United
    States Realty & Improvement Co. (1940) 310 U.S. 434, where
    permissive intervention of the Commission to protect the public
    interest in an arrangement proceeding under Chapter XI of the
    Bankruptcy Act was upheld. See also dissenting opinion in
    Securities and Exchange Commission v. Long Island Lighting Co.
    (C.C.A.2d, 1945) 148 F.(2d) 252, judgment vacated as moot and case
    remanded with direction to dismiss complaint (1945) 325 U.S. 833.
    For discussion see Commentary, Nature of Permissive Intervention
    Under Rule 24b (1940) 3 Fed.Rules Serv. 704; Berger, Intervention
    by Public Agencies in Private Litigation in the Federal Courts
    (1940) 50 Yale L.J. 65.
      Regarding the construction of subdivision (b)(2), see Allen
    Calculators, Inc. v. National Cash Register Co. (1944) 322 U.S.
    137.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      This amendment conforms to the amendment of Rule 5(a). See the
    Advisory Committee's Note to that amendment.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      In attempting to overcome certain difficulties which have arisen
    in the application of present Rule 24(a)(2) and (3), this amendment
    draws upon the revision of the related Rules 19 (joinder of persons
    needed for just adjudication) and 23 (class actions), and the
    reasoning underlying that revision.
      Rule 24(a)(3) as amended in 1948 provided for intervention of
    right where the applicant established that he would be adversely
    affected by the distribution or disposition of property involved in
    an action to which he had not been made a party. Significantly,
    some decided cases virtually disregarded the language of this
    provision. Thus Professor Moore states: "The concept of a fund has
    been applied so loosely that it is possible for a court to find a
    fund in almost any in personam action." 4 Moore's Federal Practice,
    par. 24.09[3], at 55 (2d ed. 1962), and see, e.g., Formulabs, Inc.
    v. Hartley Pen Co., 275 F.2d 52 (9th Cir. 1960). This development
    was quite natural, for Rule 24(a)(3) was unduly restricted. If an
    absentee would be substantially affected in a practical sense by
    the determination made in an action, he should, as a general rule,
    be entitled to intervene, and his right to do so should not depend
    on whether there is a fund to be distributed or otherwise disposed
    of. Intervention of right is here seen to be a kind of counterpart
    to Rule 19(a)(2)(i) on joinder of persons needed for a just
    adjudication: where, upon motion of a party in an action, an
    absentee should be joined so that he may protect his interest which
    as a practical matter may be substantially impaired by the
    disposition of the action, he ought to have a right to intervene in
    the action on his own motion. See Louisell & Hazard, Pleading and
    Procedure: State and Federal 749-50 (1962).
      The general purpose of original Rule 24(a)(2) was to entitle an
    absentee, purportedly represented by a party, to intervene in the
    action if he could establish with fair probability that the
    representation was inadequate. Thus, where an action is being
    prosecuted or defended by a trustee, a beneficiary of the trust
    should have a right to intervene if he can show that the trustee's
    representation of his interest probably is inadequate; similarly a
    member of a class should have the right to intervene in a class
    action if he can show the inadequacy of the representation of his
    interest by the representative parties before the court.
      Original Rule 24(a)(2), however, made it a condition of
    intervention that "the applicant is or may be bound by a judgment
    in the action," and this created difficulties with intervention in
    class actions. If the "bound" language was read literally in the
    sense of res judicata, it could defeat intervention in some
    meritorious cases. A member of a class to whom a judgment in a
    class action extended by its terms (see Rule 23(c)(3), as amended)
    might be entitled to show in a later action, when the judgment in
    the class action was claimed to operate as res judicata against
    him, that the "representative" in the class action had not in fact
    adequately represented him. If he could make this showing, the
    class-action judgment might be held not to bind him. See Hansberry
    v. Lee, 311 U.S. 32 (1940). If a class member sought to intervene
    in the class action proper, while it was still pending, on grounds
    of inadequacy of representation, he could be met with the argument:
    if the representation was in fact inadequate, he would not be
    "bound" by the judgment when it was subsequently asserted against
    him as res judicata, hence he was not entitled to intervene; if the
    representation was in fact adequate, there was no occasion or
    ground for intervention. See Sam Fox Publishing Co. v. United
    States, 366 U.S. 683 (1961); cf. Sutphen Estates, Inc. v. United
    States, 342 U.S. 19 (1951). This reasoning might be linguistically
    justified by original Rule 24(a)(2); but it could lead to poor
    results. Compare the discussion in International M. & I. Corp. v.
    Von Clemm, 301 F.2d 857 (2d Cir. 1962); Atlantic Refining Co. v.
    Standard Oil Co., 304 F.2d 387 (D.C.Cir. 1962). A class member who
    claims that his "representative" does not adequately represent him,
    and is able to establish that proposition with sufficient
    probability, should not be put to the risk of having a judgment
    entered in the action which by its terms extends to him, and be
    obliged to test the validity of the judgment as applied to his
    interest by a later collateral attack. Rather he should, as a
    general rule, be entitled to intervene in the action.
      The amendment provides that an applicant is entitled to intervene
    in an action when his position is comparable to that of a person
    under Rule 19(a)(2)(i), as amended, unless his interest is already
    adequately represented in the action by existing parties. The Rule
    19(a)(2)(i) criterion imports practical considerations, and the
    deletion of the "bound" language similarly frees the rule from
    undue preoccupation with strict considerations of res judicata.
      The representation whose adequacy comes into question under the
    amended rule is not confined to formal representation like that
    provided by a trustee for his beneficiary or a representative party
    in a class action for a member of the class. A party to an action
    may provide practical representation to the absentee seeking
    intervention although no such formal relationship exists between
    them, and the adequacy of this practical representation will then
    have to be weighed. See International M. & I. Corp. v. Von Clemm,
    and Atlantic Refining Co. v. Standard Oil Co., both supra; Wolpe v.
    Poretsky, 144 F.2d 505 (D.C.Cir. 1944), cert. denied, 323 U.S. 777
    (1944); cf. Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir.
    1957); and generally, Annot., 84 A.L.R.2d 1412 (1961).
      An intervention of right under the amended rule may be subject to
    appropriate conditions or restrictions responsive among other
    things to the requirements of efficient conduct of the proceedings.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Language is added to bring Rule 24(c) into conformity with the
    statute cited, resolving some confusion reflected in district court
    rules. As the text provides, counsel challenging the
    constitutionality of legislation in an action in which the
    appropriate government is not a party should call the attention of
    the court to its duty to notify the appropriate governmental
    officers. The statute imposes the burden of notification on the
    court, not the party making the constitutional challenge, partly in
    order to protect against any possible waiver of constitutional
    rights by parties inattentive to the need for notice. For this
    reason, the failure of a party to call the court's attention to the
    matter cannot be treated as a waiver.

-End-



-CITE-
    28 USC APPENDIX Rule 25                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IV. PARTIES

-HEAD-
    Rule 25. Substitution of Parties

-STATUTE-
      (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, together
      with the notice of hearing, shall be served on the parties as
      provided in Rule 5 and upon persons not parties in the manner
      provided in Rule 4 for the service of a summons, and may be
      served in any judicial district. 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 his
      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.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.
    July 19, 1961; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.
    Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). 1. The first paragraph of this rule is
    based upon [former] Equity Rule 45 (Death of Party - Revivor) and
    U.S.C., Title 28, [former] Sec. 778 (Death of parties; substitution
    of executor or administrator). The scire facias procedure provided
    for in the statute cited is superseded and the writ is abolished by
    Rule 81 (b). Paragraph two states the content of U.S.C., Title 28,
    [former] Sec. 779 (Death of one of several plaintiffs or
    defendants). With these two paragraphs compare generally English
    Rules Under the Judicature Act (The Annual Practice, 1937) O. 17,
    r.r. 1-10.
      2. This rule modifies U.S.C., Title 28, [former] Secs. 778 (Death
    of parties; substitution of executor or administrator), 779 (Death
    of one of several plaintiffs or defendants), and 780 (Survival of
    actions, suits, or proceedings, etc.) insofar as they differ from
    it.
      Note to Subdivisions (b) and (c). These are a combination and
    adaptation of N.Y.C.P.A. (1937) Sec. 83 and Calif.Code Civ.Proc.
    (Deering, 1937) Sec. 385; see also 4 Nev.Comp.Laws (Hillyer, 1929)
    Sec. 8561.
      Note to Subdivision (d). With the first and last sentences
    compare U.S.C., Title 28, [former] Sec. 780 (Survival of actions,
    suits, or proceedings, etc.). With the second sentence of this
    subdivision compare Ex parte La Prade, 289 U.S. 444 (1933).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The Act of February 13, 1925, 43 Stat. 941, U.S.C. Title 28, Sec.
    780, is repealed and not included in revised Title 28, for the
    stated reason that it is "Superseded by Rules 25 and 81 of the
    Federal Rules of Civil Procedure." See Report from the Committee on
    the Judiciary, House of Representatives, to Accompany H.R. 3214,
    House Rept. 308 (80th Cong., 1st Sess.), p. A239. Those officers
    which that Act specified but which were not enumerated in Rule
    25(d), namely, officers of "the Canal Zone, or of a Territory or an
    insular possession of the United States, . . . or other
    governmental agency of such Territory or insular possession,"
    should now be specifically enumerated in the rule and the amendment
    so provides.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT       
      Subdivision (d)(1). Present Rule 25(d) is generally considered to
    be unsatisfactory. 4 Moore's Federal Practice &#182; 25.01[7] (2d
    ed. 1950); Wright, Amendments to the Federal Rules: The Function of
    a Continuing Rules Committee, 7 Vand.L.Rev. 521, 529 (1954);
    Developments in the Law - Remedies Against the United States and
    Its Officials, 70 Harv.L.Rev. 827, 931-34 (1957). To require, as a
    condition of substituting a successor public officer as a party to
    a pending action, that an application be made with a showing that
    there is substantial need for continuing the litigation, can rarely
    serve any useful purpose and fosters a burdensome formality. And to
    prescribe a short, fixed time period for substitution which cannot
    be extended even by agreement, see Snyder v. Buck, 340 U.S. 15, 19
    (1950), with the penalty of dismissal of the action, "makes a trap
    for unsuspecting litigants which seems unworthy of a great
    government." Vibra Brush Corp. v. Schaffer, 256 F.2d 681, 684 (2d
    Cir. 1958). Although courts have on occasion found means of
    undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th
    Cir. 1954) (substitution of defendant officer unnecessary on theory
    that only a declaration of status was sought), it has operated
    harshly in many instances, e.g. Snyder v. Buck, supra; Poindexter
    v. Folsom, 242 F.2d 516 (3d Cir. 1957).
      Under the amendment, the successor is automatically substituted
    as a party without an application or showing of need to continue
    the action. An order of substitution is not required, but may be
    entered at any time if a party desires or the court thinks fit.
      The general term "public officer" is used in preference to the
    enumeration which appears in the present rule. It comprises
    Federal, State, and local officers.
      The expression "in his official capacity" is to be interpreted in
    its context as part of a simple procedural rule for substitution;
    care should be taken not to distort its meaning by mistaken
    analogies to the doctrine of sovereign immunity from suit or the
    Eleventh Amendment. The amended rule will apply to all actions
    brought by public officers for the government, and to any action
    brought in form against a named officer, but intrinsically against
    the government or the office or the incumbent thereof whoever he
    may be from time to time during the action. Thus the amended rule
    will apply to actions against officers to compel performance of
    official duties or to obtain judicial review of their orders. It
    will also apply to actions to prevent officers from acting in
    excess of their authority or under authority not validly conferred,
    cf. Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), or from
    enforcing unconstitutional enactments, cf. Ex parte Young, 209 U.S.
    123 (1908); Ex parte La Prade, 289 U.S. 444 (1933). In general it
    will apply whenever effective relief would call for corrective
    behavior by the one then having official status and power, rather
    than one who has lost that status and power through ceasing to hold
    office. Cf. Land v. Dollar, 330 U.S. 731 (1947); Larson v. Domestic
    & Foreign Commerce Corp., 337 U.S. 682 (1949). Excluded from the
    operation of the amended rule will be the relatively infrequent
    actions which are directed to securing money judgments against the
    named officers enforceable against their personal assets; in these
    cases Rule 25(a)(1), not Rule 25(d), applies to the question of
    substitution. Examples are actions against officers seeking to make
    them pay damages out of their own pockets for defamatory utterances
    or other misconduct in some way related to the office, see Barr v.
    Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959);
    Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339
    U.S. 949 (1950). Another example is the anomalous action for a tax
    refund against a collector of internal revenue, see Ignelzi v.
    Granger, 16 F.R.D. 517 (W.D.Pa. 1955), 28 U.S.C. Sec. 2006, 4
    Moore, supra, &#182; 25.05, p. 531; but see 28 U.S.C. Sec.
    1346(a)(1), authorizing the bringing of such suits against the
    United States rather than the officer.
      Automatic substitution under the amended rule, being merely a
    procedural device for substituting a successor for a past
    officeholder as a party, is distinct from and does not affect any
    substantive issues which may be involved in the action. Thus a
    defense of immunity from suit will remain in the case despite a
    substitution.
      Where the successor does not intend to pursue the policy of his
    predecessor which gave rise to the lawsuit, it will be open to him,
    after substitution, as plaintiff to seek voluntary dismissal of the
    action, or as defendant to seek to have the action dismissed as
    moot or to take other appropriate steps to avert a judgment or
    decree. Contrast Ex parte La Prade, supra; Allen v. Regents of the
    University System, 304 U.S. 439 (1938); McGrath v. National Assn.
    of Mfgrs., 344 U.S. 804 (1952); Danenberg v. Cohen, 213 F.2d 944
    (7th Cir. 1954).
      As the present amendment of Rule 25(d)(1) eliminates a specified
    time period to secure substitution of public officers, the
    reference in Rule 6(b) (regarding enlargement of time) to Rule 25
    will no longer apply to these public-officer substitutions.
      As to substitution on appeal, the rules of the appellate courts
    should be consulted.
      Subdivision (d)(2). This provision, applicable in "official
    capacity" cases as described above, will encourage the use of the
    official title without any mention of the officer individually,
    thereby recognizing the intrinsic character of the action and
    helping to eliminate concern with the problem of substitution. If
    for any reason it seems necessary or desirable to add the
    individual's name, this may be done upon motion or on the court's
    initiative without dismissal of the action; thereafter the
    procedure of amended Rule 25(d)(1) will apply if the individual
    named ceases to hold office.
      For examples of naming the office or title rather than the
    officeholder, see Annot., 102 A.L.R. 943, 948-52; Comment, 50
    Mich.L.Rev. 443, 450 (1952); cf. 26 U.S.C. Sec. 7484. Where an
    action is brought by or against a board or agency with continuity
    of existence, it has been often decided that there is no need to
    name the individual members and substitution is unnecessary when
    the personnel changes. 4 Moore, supra, &#182; 25.09, p. 536. The
    practice encouraged by amended Rule 25(d)(2) is similar.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      Present Rule 25(a)(1), together with present Rule 6(b), results
    in an inflexible requirement that an action be dismissed as to a
    deceased party if substitution is not carried out within a fixed
    period measured from the time of the death. The hardships and
    inequities of this unyielding requirement plainly appear from the
    cases. See e.g., Anderson v. Yungkau, 329 U.S. 482, 67 S.Ct. 428,
    91 L.Ed. 436 (1947); Iovino v. Waterson, 274 F.2d 41 (1959), cert.
    denied, Carlin v. Sovino, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867
    (1960); Perry v. Allen, 239 F.2d 107 (5th Cir. 1956); Starnes v.
    Pennsylvania R.R., 26 F.R.D. 625 (E.D.N.Y.), aff'd per curiam, 295
    F.2d 704 (2d Cir. 1961), cert. denied, 369 U.S. 813, 82 S.Ct. 688,
    7 L.Ed.2d 612 (1962); Zdanok v. Glidden Co., 28 F.R.D. 346
    (S.D.N.Y. 1961). See also 4 Moore's Federal Practice &#182;
    25.01[9] (Supp. 1960); 2 Barron & Holtzoff, Federal Practice &
    Procedure Sec. 621, at 420-21 (Wright ed. 1961).
      The amended rule establishes a time limit for the motion to
    substitute based not upon the time of the death, but rather upon
    the time information of the death as provided by the means of a
    suggestion of death upon the record, i.e., service of a statement
    of the fact of the death. Cf. Ill.Ann.Stat., ch. 110, Sec. 54(2)
    (Smith-Hurd 1956). The motion may not be made later than 90 days
    after the service of the statement unless the period is extended
    pursuant to Rule 6(b), as amended. See the Advisory Committee's
    Note to amended Rule 6(b). See also the new Official Form 30.
      A motion to substitute may be made by any party or by the
    representative of the deceased party without awaiting the
    suggestion of death. Indeed, the motion will usually be so made. If
    a party or the representative of the deceased party desires to
    limit the time within which another may make the motion, he may do
    so by suggesting the death upon the record.
      A motion to substitute made within the prescribed time will
    ordinarily be granted, but under the permissive language of the
    first sentence of the amended rule ("the court may order") it may
    be denied by the court in the exercise of a sound discretion if
    made long after the death - as can occur if the suggestion of death
    is not made or is delayed - and circumstances have arisen rendering
    it unfair to allow substitution. Cf. Anderson v. Yungkau, supra,
    329 U.S. at 485, 486, 67 S.Ct. at 430, 431, 91 L.Ed. 436, where it
    was noted under the present rule that settlement and distribution
    of the state of a deceased defendant might be so far advanced as to
    warrant denial of a motion for substitution even though made within
    the time limit prescribed by that rule. Accordingly, a party
    interested in securing substitution under the amended rule should
    not assume that he can rest indefinitely awaiting the suggestion of
    death before he makes his motion to substitute.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-


-CITE-
    28 USC APPENDIX V. DEPOSITIONS AND DISCOVERY                01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
                       V. DEPOSITIONS AND DISCOVERY                   


-MISC1-
    NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENTS TO DISCOVERY
                                   RULES
      This statement is intended to serve as a general introduction to
    the amendments of Rules 26-37, concerning discovery, as well as
    related amendments of other rules. A separate note of customary
    scope is appended to amendments proposed for each rule. This
    statement provides a framework for the consideration of individual
    rule changes.

                      CHANGES IN THE DISCOVERY RULES                  
      The discovery rules, as adopted in 1938, were a striking and
    imaginative departure from tradition. It was expected from the
    outset that they would be important, but experience has shown them
    to play an even larger role than was initially foreseen. Although
    the discovery rules have been amended since 1938, the changes were
    relatively few and narrowly focused, made in order to remedy
    specific defects. The amendments now proposed reflect the first
    comprehensive review of the discovery rules undertaken since 1938.
    These amendments make substantial changes in the discovery rules.
    Those summarized here are among the more important changes.
      Scope of Discovery. New provisions are made and existing
    provisions changed affecting the scope of discovery: (1) The
    contents of insurance policies are made discoverable (Rule
    26(b)(2)). (2) A showing of good cause is no longer required for
    discovery of documents and things and entry upon land (Rule 34).
    However, a showing of need is required for discovery of "trial
    preparation" materials other than a party's discovery of his own
    statement and a witness' discovery of his own statement; and
    protection is afforded against disclosure in such documents of
    mental impressions, conclusions, opinions, or legal theories
    concerning the litigation. (Rule 26(b)(3)). (3) Provision is made
    for discovery with respect to experts retained for trial
    preparation, and particularly those experts who will be called to
    testify at trial (Rule 26(b)(4)). (4) It is provided that
    interrogatories and requests for admission are not objectionable
    simply because they relate to matters of opinion or contention,
    subject of course to the supervisory power of the court (Rules
    33(b), 36(a)). (5) Medical examination is made available as to
    certain nonparties. (Rule 35(a)).
      Mechanics of Discovery. A variety of changes are made in the
    mechanics of the discovery process, affecting the sequence and
    timing of discovery, the respective obligations of the parties with
    respect to requests, responses, and motions for court orders, and
    the related powers of the court to enforce discovery requests and
    to protect against their abusive use. A new provision eliminates
    the automatic grant of priority in discovery to one side (Rule
    26(d)). Another provides that a party is not under a duty to
    supplement his responses to requests for discovery, except as
    specified (Rule 26(e)).
      Other changes in the mechanics of discovery are designed to
    encourage extrajudicial discovery with a minimum of court
    intervention. Among these are the following: (1) The requirement
    that a plaintiff seek leave of court for early discovery requests
    is eliminated or reduced, and motions for a court order under Rule
    34 are made unnecessary. Motions under Rule 35 are continued. (2)
    Answers and objections are to be served together and an enlargement
    of the time for response is provided. (3) The party seeking
    discovery, rather than the objecting party, is made responsible for
    invoking judicial determination of discovery disputes not resolved
    by the parties. (4) Judicial sanctions are tightened with respect
    to unjustified insistence upon or objection to discovery. These
    changes bring Rules 33, 34, and 36 substantially into line with the
    procedure now provided for depositions.
      Failure to amend Rule 35 in the same way is based upon two
    considerations. First, the Columbia Survey (described below) finds
    that only about 5 percent of medical examinations require court
    motions, of which about half result in court orders. Second and of
    greater importance, the interest of the person to be examined in
    the privacy of his person was recently stressed by the Supreme
    Court in Schlagenhauf v. Holder, 379 U.S. 104 (1964). The court
    emphasized the trial judge's responsibility to assure that the
    medical examination was justified, particularly as to its scope.
      Rearrangement of Rules. A limited rearrangement of the discovery
    rules has been made, whereby certain provisions are transferred
    from one rule to another. The reasons for this rearrangement are
    discussed below in a separate section of this statement, and the
    details are set out in a table at the end of this statement.
      Optional Procedures. In two instances, new optional procedures
    have been made available. A new procedure is provided to a party
    seeking to take the deposition of a corporation or other
    organization (Rule 30(b)(6)). A party on whom interrogatories have
    been served requesting information derivable from his business
    records may under specified circumstances produce the records
    rather than give answers (Rule 33(c)).
      Other Changes. This summary of changes is by no means exhaustive.
    Various changes have been made in order to improve, tighten, or
    clarify particular provisions, to resolve conflicts in the case
    law, and to improve language. All changes, whether mentioned here
    or not, are discussed in the appropriate note for each rule.

                   A FIELD SURVEY OF DISCOVERY PRACTICE               
      Despite widespread acceptance of discovery as an essential part
    of litigation, disputes have inevitably arisen concerning the
    values claimed for discovery and abuses alleged to exist. Many
    disputes about discovery relate to particular rule provisions or
    court decisions and can be studied in traditional fashion with a
    view to specific amendment. Since discovery is in large measure
    extra-judicial, however, even these disputes may be enlightened by
    a study of discovery "in the field." And some of the larger
    questions concerning discovery can be pursued only by a study of
    its operation at the law office level and in unreported cases.
      The Committee, therefore, invited the Project for Effective
    Justice of Columbia Law School to conduct a field survey of
    discovery. Funds were obtained from the Ford Foundation and the
    Walter E. Meyer Research Institute of Law, Inc. The survey was
    carried on under the direction of Prof. Maurice Rosenberg of
    Columbia Law School. The Project for Effective Justice has
    submitted a report to the Committee entitled "Field Survey of
    Federal Pretrial Discovery" (hereafter referred to as the Columbia
    Survey). The Committee is deeply grateful for the benefit of this
    extensive undertaking and is most appreciative of the cooperation
    of the Project and the funding organizations. The Committee is
    particularly grateful to Professor Rosenberg who not only directed
    the survey but has given much time in order to assist the Committee
    in assessing the results.
      The Columbia Survey concludes, in general, that there is no
    empirical evidence to warrant a fundamental change in the
    philosophy of the discovery rules. No widespread or profound
    failings are disclosed in the scope or availability of discovery.
    The costs of discovery do not appear to be oppressive, as a general
    matter, either in relation to ability to pay or to the stakes of
    the litigation. Discovery frequently provides evidence that would
    not otherwise be available to the parties and thereby makes for a
    fairer trial or settlement. On the other hand, no positive evidence
    is found that discovery promotes settlement.
      More specific findings of the Columbia Survey are described in
    other Committee notes, in relation to particular rule provisions
    and amendments. Those interested in more detailed information may
    obtain it from the Project for Effective Justice.

                   REARRANGEMENT OF THE DISCOVERY RULES               
      The present discovery rules are structured entirely in terms of
    individual discovery devices, except for Rule 27 which deals with
    perpetuation of testimony, and Rule 37 which provides sanctions to
    enforce discovery. Thus, Rules 26 and 28 to 32 are in terms
    addressed only to the taking of a deposition of a party or third
    person. Rules 33 to 36 then deal in succession with four additional
    discovery devices: Written interrogatories to parties, production
    for inspection of documents and things, physical or mental
    examination and requests for admission.
      Under the rules as promulgated in 1938, therefore, each of the
    discovery devices was separate and self-contained. A defect of this
    arrangement is that there is no natural location in the discovery
    rules for provisions generally applicable to all discovery or to
    several discovery devices. From 1938 until the present, a few
    amendments have applied a discovery provision to several rules. For
    example, in 1948, the scope of deposition discovery in Rule 26(b)
    and the provision for protective orders in Rule 30(b) were
    incorporated by reference in Rules 33 and 34. The arrangement was
    adequate so long as there were few provisions governing discovery
    generally and these provisions were relatively simple.
      As will be seen, however, a series of amendments are now proposed
    which govern most or all of the discovery devices. Proposals of a
    similar nature will probably be made in the future. Under these
    circumstances, it is very desirable, even necessary, that the
    discovery rules contain one rule addressing itself to discovery
    generally.
      Rule 26 is obviously the most appropriate rule for this purpose.
    One of its subdivisions, Rule 26(b), in terms governs only scope of
    deposition discovery, but it has been expressly incorporated by
    reference in Rules 33 and 34 and is treated by courts as setting a
    general standard. By means of a transfer to Rule 26 of the
    provisions for protective orders now contained in Rule 30(b), and a
    transfer from Rule 26 of provisions addressed exclusively to
    depositions, Rule 26 is converted into a rule concerned with
    discovery generally. It becomes a convenient vehicle for the
    inclusion of new provisions dealing with the scope, timing, and
    regulation of discovery. Few additional transfers are needed. See
    table showing rearrangement of rules, set out below.
      There are, to be sure, disadvantages in transferring any
    provision from one rule to another. Familiarity with the present
    pattern, reinforced by the references made by prior court decisions
    and the various secondary writings about the rules, is not lightly
    to be sacrificed. Revision of treatises and other references works
    is burdensome and costly. Moreover, many States have adopted the
    existing pattern as a model for their rules.
      On the other hand, the amendments now proposed will in any event
    require revision of texts and reference works as well as
    reconsideration by States following the Federal model. If these
    amendments are to be incorporated in an understandable way, a rule
    with general discovery provisions is needed. As will be seen, the
    proposed rearrangement produces a more coherent and intelligible
    pattern for the discovery rules taken as a whole. The difficulties
    described are those encountered whenever statutes are reexamined
    and revised. Failure to rearrange the discovery rules now would
    freeze the present scheme, making future change even more
    difficult.



                   TABLE SHOWING REARRANGEMENT OF RULES               
    --------------------------------------------------------------------
                 Existing Rule No.                     New Rule No.     
    --------------------------------------------------------------------
      26(a)                                       30(a), 31(a)          
      26(c)                                       30(c)                 
      26(d)                                       32(a)                 
      26(e)                                       32(b)                 
      26(f)                                       32(c)                 
      30(a)                                       30(b)                 
      30(b)                                       26(c)                 
      32                                          32(d)                 
    --------------------------------------------------------------------


-End-



-CITE-
    28 USC APPENDIX Rule 26                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

-STATUTE-
      (a) Required Disclosures; Methods to Discover Additional Matter.
        (1) Initial Disclosures. Except in categories of proceedings
      specified in Rule 26(a)(1)(E), or to the extent otherwise
      stipulated or directed by order, a party must, without awaiting a
      discovery request, provide to other parties:
          (A) the name and, if known, the address and telephone number
        of each individual likely to have discoverable information that
        the disclosing party may use to support its claims or defenses,
        unless solely for impeachment, identifying the subjects of the
        information;
          (B) a copy of, or a description by category and location of,
        all documents, data compilations, and tangible things that are
        in the possession, custody, or control of the party and that
        the disclosing party may use to support its claims or defenses,
        unless solely for impeachment;
          (C) a computation of any category of damages claimed by the
        disclosing party, making available for inspection and copying
        as under Rule 34 the documents or other evidentiary material,
        not privileged or protected from disclosure, on which such
        computation is based, including materials bearing on the nature
        and extent of injuries suffered; and
          (D) for inspection and copying as under Rule 34 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.
          (E) The following categories of proceedings are exempt from
        initial disclosure under Rule 26(a)(1):
            (i) an action for review on an administrative record;
            (ii) a petition for habeas corpus or other proceeding to
          challenge a criminal conviction or sentence;
            (iii) an action brought without counsel by a person in
          custody of the United States, a state, or a state
          subdivision;
            (iv) an action to enforce or quash an administrative
          summons or subpoena;
            (v) an action by the United States to recover benefit
          payments;
            (vi) an action by the United States to collect on a student
          loan guaranteed by the United States;
            (vii) a proceeding ancillary to proceedings in other
          courts; and
            (viii) an action to enforce an arbitration award.

      These disclosures must be made at or within 14 days after the
      Rule 26(f) conference unless a different time is set by
      stipulation or court order, or unless a party objects during the
      conference that initial disclosures are not appropriate in the
      circumstances of the action and states the objection in the Rule
      26(f) discovery plan. In ruling on the objection, the court must
      determine what disclosures - if any - are to be made, and set the
      time for disclosure. Any party first served or otherwise joined
      after the Rule 26(f) conference must make these disclosures
      within 30 days after being served or joined unless a different
      time is set by stipulation or court order. A party must make its
      initial disclosures based on the information then reasonably
      available to it and is not excused from making its disclosures
      because it has not fully completed its investigation of the case
      or because it challenges the sufficiency of another party's
      disclosures or because another party has not made its
      disclosures.
        (2) Disclosure of Expert Testimony.
          (A) In addition to the disclosures required by paragraph (1),
        a party shall disclose to other parties the identity of any
        person who may be used at trial to present evidence under Rules
        702, 703, or 705 of the Federal Rules of Evidence.
          (B) Except as otherwise stipulated or directed by the court,
        this disclosure shall, with respect to a witness who is
        retained or specially employed to provide expert testimony in
        the case or whose duties as an employee of the party regularly
        involve giving expert testimony, be accompanied by a written
        report prepared and signed by the witness. The report shall
        contain a complete statement of all opinions to be expressed
        and the basis and reasons therefor; the data or other
        information considered by the witness in forming the opinions;
        any exhibits to be used as a summary of or support for the
        opinions; the qualifications of the witness, including a list
        of all publications authored by the witness within the
        preceding ten years; the compensation to be paid for the study
        and testimony; and a listing of any other cases in which the
        witness has testified as an expert at trial or by deposition
        within the preceding four years.
          (C) These disclosures shall be made at the times and in the
        sequence directed by the court. In the absence of other
        directions from the court or stipulation by the parties, the
        disclosures shall be made at least 90 days before the trial
        date or the date the case is to be ready for trial or, if the
        evidence is intended solely to contradict or rebut evidence on
        the same subject matter identified by another party under
        paragraph (2)(B), within 30 days after the disclosure made by
        the other party. The parties shall supplement these disclosures
        when required under subdivision (e)(1).

        (3) Pretrial Disclosures. In addition to the disclosures
      required by Rule 26(a)(1) and (2), a party must provide to other
      parties and promptly file with the court the following
      information regarding the evidence that it may present at trial
      other than solely for impeachment:
          (A) the name and, if not previously provided, the address and
        telephone number of each witness, separately identifying those
        whom the party expects to present and those whom the party may
        call if the need arises;
          (B) the designation of those witnesses whose testimony is
        expected to be presented by means of a deposition and, if not
        taken stenographically, a transcript of the pertinent portions
        of the deposition testimony; and
          (C) an appropriate identification of each document or other
        exhibit, including summaries of other evidence, separately
        identifying those which the party expects to offer and those
        which the party may offer if the need arises.

      Unless otherwise directed by the court, these disclosures must be
      made at least 30 days before trial. Within 14 days thereafter,
      unless a different time is specified by the court, a party may
      serve and promptly file a list disclosing (i) any objections to
      the use under Rule 32(a) of a deposition designated by another
      party under Rule 26(a)(3)(B), and (ii) any objection, together
      with the grounds therefor, that may be made to the admissibility
      of materials identified under Rule 26(a)(3)(C). Objections not so
      disclosed, other than objections under Rules 402 and 403 of the
      Federal Rules of Evidence, are waived unless excused by the court
      for good cause.
        (4) Form of Disclosures. Unless the court orders otherwise, all
      disclosures under Rules 26(a)(1) through (3) must be made in
      writing, signed, and served.
        (5) Methods to Discover Additional Matter. 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 under Rule 34 or
      45(a)(1)(C), 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 in accordance with these rules, the scope of discovery
    is as follows:
        (1) In General. Parties may obtain discovery regarding any
      matter, not privileged, that is relevant to the claim or defense
      of any 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. For good cause, the
      court may order discovery of any matter relevant to the subject
      matter involved in the action. Relevant information need not be
      admissible at the trial if the discovery appears reasonably
      calculated to lead to the discovery of admissible evidence. All
      discovery is subject to the limitations imposed by Rule
      26(b)(2)(i), (ii), and (iii).
        (2) Limitations. By order, the court may alter the limits in
      these rules on the number of depositions and interrogatories or
      the length of depositions under Rule 30. By order or local rule,
      the court may also limit the number of requests under Rule 36.
      The frequency or extent of use of the discovery methods otherwise
      permitted under these rules and by any local 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 burden or expense of the
      proposed discovery outweighs its likely benefit, taking into
      account the needs of the case, the amount in controversy, the
      parties' resources, the importance of the issues at stake in the
      litigation, and the importance of the proposed discovery in
      resolving the issues. The court may act upon its own initiative
      after reasonable notice or pursuant to a motion under Rule 26(c).
        (3) Trial Preparation: Materials. Subject to the provisions of
      subdivision (b)(4) 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 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)(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.
        (4) Trial Preparation: Experts.
          (A) A party may depose any person who has been identified as
        an expert whose opinions may be presented at trial. If a report
        from the expert is required under subdivision (a)(2)(B), the
        deposition shall not be conducted until after the report is
        provided.
          (B) A party may, through interrogatories or by deposition,
        discover facts known or opinions held by an expert who has been
        retained or specially employed by another party in anticipation
        of litigation or 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
        this subdivision; and (ii) with respect to discovery obtained
        under subdivision (b)(4)(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.

        (5) Claims of Privilege or Protection of Trial Preparation
      Materials. When a party withholds information otherwise
      discoverable under these rules by claiming that it is privileged
      or subject to protection as trial preparation material, the party
      shall make the claim expressly and shall describe the nature of
      the documents, communications, or things not produced or
      disclosed in a manner that, without revealing information itself
      privileged or protected, will enable other parties to assess the
      applicability of the privilege or protection.

      (c) Protective Orders. Upon motion by a party or by the person
    from whom discovery is sought, accompanied by a certification that
    the movant has in good faith conferred or attempted to confer with
    other affected parties in an effort to resolve the dispute without
    court action, and for good cause shown, the court in which the
    action is pending or alternatively, on matters relating to a
    deposition, the court in the district where the deposition is to be
    taken 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 disclosure or discovery not be had;
        (2) that the disclosure or 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 disclosure or 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 revealed or be
      revealed only in a designated way; and
        (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 other 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) Timing and Sequence of Discovery. Except in categories of
    proceedings exempted from initial disclosure under Rule
    26(a)(1)(E), or when authorized under these rules or by order or
    agreement of the parties, a party may not seek discovery from any
    source before the parties have conferred as required by Rule 26(f).
    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, does not operate to delay any other party's discovery.
      (e) Supplementation of Disclosures and Responses. A party who has
    made a disclosure under subdivision (a) or responded to a request
    for discovery with a disclosure or response is under a duty to
    supplement or correct the disclosure or response to include
    information thereafter acquired if ordered by the court or in the
    following circumstances:
        (1) A party is under a duty to supplement at appropriate
      intervals its disclosures under subdivision (a) if the party
      learns that in some material respect the information disclosed is
      incomplete or incorrect and if the additional or corrective
      information has not otherwise been made known to the other
      parties during the discovery process or in writing. With respect
      to testimony of an expert from whom a report is required under
      subdivision (a)(2)(B) the duty extends both to information
      contained in the report and to information provided through a
      deposition of the expert, and any additions or other changes to
      this information shall be disclosed by the time the party's
      disclosures under Rule 26(a)(3) are due.
        (2) A party is under a duty seasonably to amend a prior
      response to an interrogatory, request for production, or request
      for admission if the party learns that the response is in some
      material respect incomplete or incorrect and if the additional or
      corrective information has not otherwise been made known to the
      other parties during the discovery process or in writing.

      (f) Conference of Parties; Planning for Discovery. Except in
    categories of proceedings exempted from initial disclosure under
    Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as
    soon as practicable and in any event at least 21 days before a
    scheduling conference is held or a scheduling order is due under
    Rule 16(b), confer to consider the nature and basis of their claims
    and defenses and the possibilities for a prompt settlement or
    resolution of the case, to make or arrange for the disclosures
    required by Rule 26(a)(1), and to develop a proposed discovery plan
    that indicates the parties' views and proposals concerning:
        (1) what changes should be made in the timing, form, or
      requirement for disclosures under Rule 26(a), including a
      statement as to when disclosures under Rule 26(a)(1) were made or
      will be made;
        (2) the subjects on which discovery may be needed, when
      discovery should be completed, and whether discovery should be
      conducted in phases or be limited to or focused upon particular
      issues;
        (3) what changes should be made in the limitations on discovery
      imposed under these rules or by local rule, and what other
      limitations should be imposed; and
        (4) any other orders that should be entered by the court under
      Rule 26(c) or under Rule 16(b) and (c).

    The attorneys of record and all unrepresented parties that have
    appeared in the case are jointly responsible for arranging the
    conference, for attempting in good faith to agree on the proposed
    discovery plan, and for submitting to the court within 14 days
    after the conference a written report outlining the plan. A court
    may order that the parties or attorneys attend the conference in
    person. If necessary to comply with its expedited schedule for Rule
    16(b) conferences, a court may by local rule (i) require that the
    conference between the parties occur fewer than 21 days before the
    scheduling conference is held or a scheduling order is due under
    Rule 16(b), and (ii) require that the written report outlining the
    discovery plan be filed fewer than 14 days after the conference
    between the parties, or excuse the parties from submitting a
    written report and permit them to report orally on their discovery
    plan at the Rule 16(b) conference.
      (g) Signing of Disclosures, Discovery Requests, Responses, and
    Objections.
        (1) Every disclosure made pursuant to subdivision (a)(1) or
      subdivision (a)(3) shall be signed by at least one attorney of
      record in the attorney's individual name, whose address shall be
      stated. An unrepresented party shall sign the disclosure and
      state the party's address. The signature of the attorney or party
      constitutes a certification that to the best of the signer's
      knowledge, information, and belief, formed after a reasonable
      inquiry, the disclosure is complete and correct as of the time it
      is made.
        (2) Every discovery request, response, or objection 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 shall be stated. An unrepresented party shall sign the
      request, response, or objection and state the party's address.
      The signature of the attorney or party constitutes a
      certification that to the best of the signer's knowledge,
      information, and belief, formed after a reasonable inquiry, the
      request, response, or objection is:
          (A) consistent with these rules and warranted by existing law
        or a good faith argument for the extension, modification, or
        reversal of existing law;
          (B) not interposed for any improper purpose, such as to
        harass or to cause unnecessary delay or needless increase in
        the cost of litigation; and
          (C) 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.
        (3) If without substantial justification 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 disclosure, 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 30, 1970, eff.
    July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 28, 1983, eff.
    Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). This rule freely authorizes the taking
    of depositions under the same circumstances and by the same methods
    whether for the purpose of discovery or for the purpose of
    obtaining evidence. Many states have adopted this practice on
    account of its simplicity and effectiveness, safeguarding it by
    imposing such restrictions upon the subsequent use of the
    deposition at the trial or hearing as are deemed advisable. See
    Ark.Civ.Code (Crawford, 1934) Secs. 606-607; Calif.Code Civ.Proc.
    (Deering, 1937) Sec. 2021; 1 Colo.Stat.Ann. (1935) Code Civ.Proc.
    Sec. 376; Idaho Code Ann. (1932) Sec. 16-906; Ill. Rules of Pract.,
    Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.19); Ill.Rev.Stat.
    (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933) Secs. 2-1501,
    2-1506; Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 557; 1
    Mo.Rev.Stat. (1929) Sec. 1753; 4 Mont.Rev.Codes Ann. (1935) Sec.
    10645; Neb.Comp.Stat. (1929) ch. 20, Secs. 1246-7; 4 Nev.Comp.Laws
    (Hillyer, 1929) Sec. 9001; 2 N.H.Pub.Laws (1926) ch. 337, Sec. 1;
    N.C.Code Ann. (1935) Sec. 1809; 2 N.D.Comp.Laws Ann. (1913) Secs.
    7889-7897; 2 Ohio Gen.Code Ann. (Page, 1926) Secs. 11525-6; 1
    Ore.Code Ann. (1930) Title 9, Sec. 1503; 1 S.D.Comp.Laws (1929)
    Secs. 2713-16; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769;
    Utah Rev.Stat.Ann. (1933) Sec. 104-51-7; Wash. Rules of Practice
    adopted by the Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann.
    (Remington, 1932) Sec. 308-8; W.Va.Code (1931) ch. 57, art. 4, Sec.
    1. Compare [former] Equity Rules 47 (Depositions - To be Taken in
    Exceptional Instances); 54 (Depositions Under Revised Statutes,
    Sections 863, 865, 866, 867 - Cross-Examination); 58 (Discovery -
    Interrogatories - Inspection and Production of Documents -
    Admission of Execution or Genuineness).
      This and subsequent rules incorporate, modify, and broaden the
    provisions for depositions under U.S.C., Title 28, [former] Secs.
    639 (Depositions de bene esse; when and where taken; notice), 640
    (Same; mode of taking), 641 (Same; transmission to court), 644
    (Depositions under dedimus potestatem and in perpetuam), 646
    (Deposition under dedimus potestatem; how taken). These statutes
    are superseded insofar as they differ from this and subsequent
    rules. U.S.C., Title 28, [former] Sec. 643 (Depositions; taken in
    mode prescribed by State laws) is superseded by the third sentence
    of Subdivision (a).
      While a number of states permit discovery only from parties or
    their agents, others either make no distinction between parties or
    agents of parties and ordinary witnesses, or authorize the taking
    of ordinary depositions, without restriction, from any persons who
    have knowledge of relevant facts. See Ark.Civ.Code (Crawford, 1934)
    Secs. 606-607; 1 Idaho Code Ann. (1932) Sec. 16-906; Ill. Rules of
    Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.19);
    Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann. (Burns, 1933)
    Sec. 2-1501; Ky.Codes (Carroll, 1932) Civ.Pract. Secs. 554-558; 2
    Md.Ann.Code (Bagby, 1924) Art. 35, Sec. 21; 2 Minn.Stat. (Mason,
    1927) Sec. 9820; 1 Mo.Rev.Stat. (1929) Secs. 1753, 1759;
    Neb.Comp.Stat. (1929) ch. 20, Secs. 1246-7; 2 N.H.Pub.Laws (1926)
    ch. 337, Sec. 1; 2 N.D.Comp.Laws Ann. (1913) Sec. 7897; 2 Ohio
    Gen.Code Ann. (Page, 1926) Secs. 11525-6; 1 S.D.Comp.Laws (1929)
    Secs. 2713-16; Tex.Stat. (Vernon, 1928) arts. 3738, 3752, 3769;
    Utah Rev.Stat.Ann. (1933) Sec. 104-51-7; Wash. Rules of Practice
    adopted by Supreme Ct., Rule 8, 2 Wash.Rev.Stat.Ann. (Remington,
    1932) Sec. 308-8; W.Va.Code (1931) ch. 57, art. 4, Sec. 1.
      The more common practice in the United States is to take
    depositions on notice by the party desiring them, without any order
    from the court, and this has been followed in these rules. See
    Calif.Code Civ.Proc. (Deering 1937) Sec. 2031; 2 Fla.Comp.Gen.Laws
    Ann. (1927) Secs. 4405-7; 1 Idaho Code Ann. (1932) Sec. 16-902;
    Ill. Rules of Pract., Rule 19 (Ill.Rev.Stat. (1937) ch. 110, Sec.
    25919); Ill.Rev.Stat. (1937) ch. 51, Sec. 24; 2 Ind.Stat.Ann.
    (Burns, 1933) Sec. 2-1502; Kan.Gen.Stat.Ann. (1935) Sec. 60-2827;
    Ky.Codes (Carroll, 1932) Civ.Pract. Sec. 565; 2 Minn.Stat. (Mason,
    1927) Sec. 9820; 1 Mo.Rev.Stat. (1929) Sec. 1761; 4 Mont.Rev.Codes
    Ann. (1935) Sec. 10651; Nev.Comp.Laws (Hillyer, 1929) Sec. 9002;
    N.C.Code Ann. (1935) Sec. 1809; 2 N.D.Comp.Laws Ann. (1913) Sec.
    7895; Utah Rev.Stat.Ann. (1933) Sec. 104-51-8.
      Note to Subdivision (b). While the old chancery practice limited
    discovery to facts supporting the case of the party seeking it,
    this limitation has been largely abandoned by modern legislation.
    See Ala.Code Ann. (Michie, 1928) Secs. 7764-7773; 2 Ind.Stat.Ann.
    (Burns, 1933) Secs. 2-1028, 2-1506, 2-1728-2-1732; Iowa Code (1935)
    Sec. 11185; Ky.Codes (Carroll, 1932) Civ.Pract. Secs. 557, 606 (8);
    La.Code Pract. (Dart, 1932) arts. 347-356; 2 Mass.Gen.Laws
    (Ter.Ed., 1932) ch. 231, Secs. 61-67; 1 Mo.Rev.Stat. (1929) Secs.
    1753, 1759; Neb.Comp.Stat. (1929) Secs. 20-1246, 20-1247; 2
    N.H.Pub.Laws (1926) ch. 337, Sec. 1; 2 Ohio Gen.Code Ann. (Page,
    1926) Secs. 11497, 11526; Tex.Stat. (Vernon, 1928) arts. 3738,
    3753, 3769; Wis.Stat. (1935) Sec. 326.12; Ontario Consol.Rules of
    Pract. (1928) Rules 237-347; Quebec Code of Civ.Proc. (Curran,
    1922) Secs. 286-290.
      Note to Subdivisions (d), (e), and (f). The restrictions here
    placed upon the use of depositions at the trial or hearing are
    substantially the same as those provided in U.S.C., Title 28,
    [former] Sec. 641, for depositions taken, de bene esse, with the
    additional provision that any deposition may be used when the court
    finds the existence of exceptional circumstances. Compare English
    Rules Under the Judicature Act (The Annual Practice, 1937) O. 37,
    r. 18 (with additional provision permitting use of deposition by
    consent of the parties). See also [former] Equity Rule 64 (Former
    Depositions, Etc., May be Used Before Master); and 2 Minn. Stat.
    (Mason, 1927) Sec. 9835 (Use in a subsequent action of a deposition
    filed in a previously dismissed action between the same parties and
    involving the same subject matter).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (a). The amendment eliminates the requirement of
    leave of court for the taking of a deposition except where a
    plaintiff seeks to take a deposition within 20 days after the
    commencement of the action. The retention of the requirement where
    a deposition is sought by a plaintiff within 20 days of the
    commencement of the action protects a defendant who has not had an
    opportunity to retain counsel and inform himself as to the nature
    of the suit; the plaintiff, of course, needs no such protection.
    The present rule forbids the plaintiff to take a deposition,
    without leave of court, before the answer is served. Sometimes the
    defendant delays the serving of an answer for more than 20 days,
    but as 20 days are sufficient time for him to obtain a lawyer,
    there is no reason to forbid the plaintiff to take a deposition
    without leave merely because the answer has not been served. In all
    cases, Rule 30(a) empowers the court, for cause shown, to alter the
    time of the taking of a deposition, and Rule 30(b) contains
    provisions giving ample protection to persons who are unreasonably
    pressed. The modified practice here adopted is along the line of
    that followed in various states. See, e.g., 8 Mo.Rev.Stat.Ann.
    (1939) Sec. 1917; 2 Burns' Ind.Stat.Ann. (1933) Sec. 2-1506.
      Subdivision (b). The amendments to subdivision (b) make clear the
    broad scope of examination and that it may cover not only evidence
    for use at the trial but also inquiry into matters in themselves
    inadmissible as evidence but which will lead to the discovery of
    such evidence. The purpose of discovery is to allow a broad search
    for facts, the names of witnesses, or any other matters which may
    aid a party in the preparation or presentation of his case. Engl v.
    Aetna Life Ins. Co. (C.C.A.2d, 1943) 139 F.(2d) 469; Mahler v.
    Pennsylvania R. Co. (E.D.N.Y. 1945) 8 Fed.Rules Serv. 33.351, Case
    1. In such a preliminary inquiry admissibility at trial should not
    be the test as to whether the information sought is within the
    scope of proper examination. Such a standard unnecessarily curtails
    the utility of discovery practice. Of course, matters entirely
    without bearing either as direct evidence or as leads to evidence
    are not within the scope of inquiry, but to the extent that the
    examination develops useful information, it functions successfully
    as an instrument of discovery, even if it produces no testimony
    directly admissible. Lewis v. United Air Lines Transportation Corp.
    (D.Conn. 1939) 27 F.Supp. 946; Engl v. Aetna Life Ins. Co., supra;
    Mahler v. Pennsylvania R. Co., supra; Bloomer v. Sirian Lamp Co.
    (D.Del. 1944) 8 Fed.Rules Serv. 26b.31, Case 3; Rousseau v. Langley
    (S.D.N.Y. 1945) 9 Fed.Rules Serv. 34.41, Case 1 (Rule 26
    contemplates "examinations not merely for the narrow purpose of
    adducing testimony which may be offered in evidence but also for
    the broad discovery of information which may be useful in
    preparation for trial."); Olson Transportation Co. v. Socony-Vacuum
    Co. (E.D.Wis. 1944) 8 Fed.Rules Serv. 34.41, Case 2 (". . . the
    Rules . . . permit 'fishing' for evidence as they should."); Note
    (1945) 45 Col.L.Rev. 482. Thus hearsay, while inadmissible itself,
    may suggest testimony which properly may be proved. Under Rule 26
    (b) several cases, however, have erroneously limited discovery on
    the basis of admissibility, holding that the word "relevant" in
    effect meant "material and competent under the rules of evidence".
    Poppino v. Jones Store Co. (W.D.Mo. 1940) 3 Fed.Rules Serv. 26b.5,
    Case 1; Benevento v. A. & P. Food Stores, Inc. (E.D.N.Y. 1939) 26
    F.Supp. 424. Thus it has been said that inquiry might not be made
    into statements or other matters which, when disclosed, amounted
    only to hearsay. See Maryland for use of Montvila v. Pan-American
    Bus Lines, Inc. (D.Md. 1940) 3 Fed.Rules Serv. 26b.211, Case 3;
    Gitto v. "Italia," Societa Anonima Di Navigazione (E.D.N.Y. 1940)
    31 F.Supp. 567; Rose Silk Mills, Inc. v. Insurance Co. of North
    America (S.D.N.Y. 1939) 29 F.Supp. 504; Colpak v. Hetterick
    (E.D.N.Y. 1941) 40 F.Supp. 350; Matthies v. Peter F. Connolly Co.
    (E.D.N.Y. 1941) 6 Fed.Rules Serv. 30a.22, Case 1, 2 F.R.D. 277;
    Matter of Examination of Citizens Casualty Co. of New York
    (S.D.N.Y. 1942) 7 Fed.Rules Serv. 26b.211, Case 1; United States v.
    Silliman (D.N.J. 1944) 8 Fed.Rules Serv. 26b.52, Case 1. The
    contrary and better view, however, has often been stated. See,
    e.g., Engl v. Aetna Life Ins. Co., supra; Stevenson v. Melady
    (S.D.N.Y. 1940) 3 Fed.Rules Serv. 26b.31, Case 1, 1 F.R.D. 329;
    Lewis v. United Air Lines Transport Corp., supra; Application of
    Zenith Radio Corp. (E.D.Pa. 1941) 4 Fed.Rules Serv. 30b.21, Case 1,
    1 F.R.D. 627; Steingut v. Guaranty Trust Co. of New York (S.D.N.Y.
    1941) 4 Fed.Rules Serv. 26b.5. Case 2; DeSeversky v. Republic
    Aviation Corp (E.D.N.Y. 1941) 5 Fed.Rules Serv. 26b.31, Case 5;
    Moore v. George A. Hormel & Co. (S.D.N.Y. 1942) 6 Fed.Rules Serv.
    30b.41, Case 1, 2 F.R.D. 340; Hercules Powder Co. v. Rohm & Haas
    Co. (D.Del. 1943) 7 Fed.Rules Serv. 45b.311, Case 2, 3 F.R.D. 302;
    Bloomer v. Sirian Lamp Co., supra; Crosby Steam Gage & Valve Co. v.
    Manning, Maxwell & Moore, Inc. (D.Mass. 1944) 8 Fed.Rules Serv.
    26b.31, Case 1; Patterson Oil Terminals, Inc. v. Charles Kurz &
    Co., Inc. (E.D.Pa. 1945) 9 Fed.Rules Serv. 33.321, Case 2; Pueblo
    Trading Co. v. Reclamation Dist. No. 1500 (N.D.Cal. 1945) 9
    Fed.Rules Serv. 33.321, Case 4, 4 F.R.D. 471. See also discussion
    as to the broad scope of discovery in Hoffman v. Palmer (C.C.A.2d,
    1942) 129 F.(2d) 976, 995-997, aff'd on other grounds (1942) 318
    U.S. 109; Note (1945) 45 Col.L.Rev. 482.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      This amendment conforms to the amendment of Rule 28(b). See the
    next-to-last paragraph of the Advisory Committee's Note to that
    amendment.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      The requirement that the plaintiff obtain leave of court in order
    to serve notice of taking of a deposition within 20 days after
    commencement of the action gives rises to difficulties when the
    prospective deponent is about to become unavailable for
    examination. The problem is not confined to admiralty, but has been
    of special concern in that context because of the mobility of
    vessels and their personnel. When Rule 26 was adopted as Admiralty
    Rule 30A in 1961, the problem was alleviated by permitting
    depositions de bene esse, for which leave of court is not required.
    See Advisory Committee's Note to Admiralty Rule 30A (1961).
      A continuing study is being made in the effort to devise a
    modification of the 20-day rule appropriate to both the civil and
    admiralty practice to the end that Rule 26(a) shall state a uniform
    rule applicable alike to what are now civil actions and suits in
    admiralty. Meanwhile, the exigencies of maritime litigation require
    preservation, for the time being at least, of the traditional de
    bene esse procedure for the post-unification counterpart of the
    present suit in admiralty. Accordingly, the amendment provides for
    continued availability of that procedure in admiralty and maritime
    claims within the meaning of Rule 9(h).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      A limited rearrangement of the discovery rules is made, whereby
    certain rule provisions are transferred, as follows: Existing Rule
    26(a) is transferred to Rules 30(a) and 31(a). Existing Rule 26(c)
    is transferred to Rule 30(c). Existing Rules 26(d), (e), and (f)
    are transferred to Rule 32. Revisions of the transferred
    provisions, if any, are discussed in the notes appended to Rules
    30, 31, and 32. In addition, Rule 30(b) is transferred to Rule
    26(c). The purpose of this rearrangement is to establish Rule 26 as
    a rule governing discovery in general. (The reasons are set out in
    the Advisory Committee's explanatory statement.)
      Subdivision (a) - Discovery Devices. This is a new subdivision
    listing all of the discovery devices provided in the discovery
    rules and establishing the relationship between the general
    provisions of Rule 26 and the specific rules for particular
    discovery devices. The provision that the frequency of use of these
    methods is not limited confirms existing law. It incorporates in
    general form a provision now found in Rule 33.
      Subdivision (b) - Scope of Discovery. This subdivision is recast
    to cover the scope of discovery generally. It regulates the
    discovery obtainable through any of the discovery devices listed in
    Rule 26(a).
      All provisions as to scope of discovery are subject to the
    initial qualification that the court may limit discovery in
    accordance with these rules. Rule 26(c) (transferred from 30(b))
    confers broad powers on the courts to regulate or prevent discovery
    even though the materials sought are within the scope of 26(b), and
    these powers have always been freely exercised. For example, a
    party's income tax return is generally held not privileged, 2A
    Barron & Holtzoff, Federal Practice and Procedure, Sec. 65.2
    (Wright ed. 1961), and yet courts have recognized that interests in
    privacy may call for a measure of extra protection. E.g.,
    Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556 (S.D.N.Y. 1964).
    Similarly, the courts have in appropriate circumstances protected
    materials that are primarily of an impeaching character. These two
    types of materials merely illustrate the many situations, not
    capable of governance by precise rule, in which courts must
    exercise judgment. The new subsections in Rule 26(d) do not change
    existing law with respect to such situations.
      Subdivision (b)(1) - In General. The language is changed to
    provide for the scope of discovery in general terms. The existing
    subdivision, although in terms applicable only to depositions, is
    incorporated by reference in existing Rules 33 and 34. Since
    decisions as to relevance to the subject matter of the action are
    made for discovery purposes well in advance of trial, a flexible
    treatment of relevance is required and the making of discovery,
    whether voluntary or under court order, is not a concession or
    determination of relevance for purposes of trial. Cf. 4 Moore's
    Federal Practice &#182; 26-16[1] (2d ed. 1966).
      Subdivision (b)(2) - Insurance Policies. Both cases and
    commentators are sharply in conflict on the question whether
    defendant's liability insurance coverage is subject to discovery in
    the usual situation when the insurance coverage is not itself
    admissible and does not bear on another issue on the case. Examples
    of Federal cases requiring disclosure and supporting comments: Cook
    v. Welty, 253 F.Supp. 875 (D.D.C. 1966) (cases cited); Johanek v.
    Aberle, 27 F.R.D. 272 (D.Mont. 1961); Williams, Discovery of Dollar
    Limits in Liability Policies in Automobile Tort Cases, 10
    Ala.L.Rev. 355 (1958); Thode, Some Reflections on the 1957
    Amendments to the Texas Rules, 37 Tex.L.Rev. 33, 40-42 (1958).
    Examples of Federal cases refusing disclosure and supporting
    comments: Bisserier v. Manning, 207 F.Supp. 476 (D.N.J. 1962);
    Cooper v. Stender, 30 F.R.D. 389 (E.D.Tenn. 1962); Frank, Discovery
    and Insurance Coverage, 1959 Ins.L.J. 281; Fournier, Pre-Trial
    Discovery of Insurance Coverage and Limits, 28 Ford L.Rev. 215
    (1959).
      The division in reported cases is close. State decisions based on
    provisions similar to the federal rules are similarly divided. See
    cases collected in 2A Barron & Holtzoff, Federal Practice and
    Procedure Sec. 647.1, nn. 45.5, 45.6 (Wright ed. 1961). It appears
    to be difficult if not impossible to obtain appellate review of the
    issue. Resolution by rule amendment is indicated. The question is
    essentially procedural in that it bears upon preparation for trial
    and settlement before trial, and courts confronting the question,
    however, they have decided it, have generally treated it as
    procedural and governed by the rules.
      The amendment resolves this issue in favor of disclosure. Most of
    the decisions denying discovery, some explicitly, reason from the
    text of Rule 26(b) that it permits discovery only of matters which
    will be admissible in evidence or appear reasonably calculated to
    lead to such evidence; they avoid considerations of policy,
    regarding them as foreclosed. See Bisserier v. Manning, supra. Some
    note also that facts about a defendant's financial status are not
    discoverable as such, prior to judgment with execution unsatisfied,
    and fear that, if courts hold insurance coverage discoverable, they
    must extend the principle to other aspects of the defendant's
    financial status. The cases favoring disclosure rely heavily on the
    practical significance of insurance in the decisions lawyers make
    about settlement and trial preparation. In Clauss v. Danker, 264
    F.Supp. 246 (S.D.N.Y. 1967), the court held that the rules forbid
    disclosure but called for an amendment to permit it.
      Disclosure of insurance coverage will enable counsel for both
    sides to make the same realistic appraisal of the case, so that
    settlement and litigation strategy are based on knowledge and not
    speculation. It will conduce to settlement and avoid protracted
    litigation in some cases, though in others it may have an opposite
    effect. The amendment is limited to insurance coverage, which
    should be distinguished from any other facts concerning defendant's
    financial status (1) because insurance is an asset created
    specifically to satisfy the claim; (2) because the insurance
    company ordinarily controls the litigation; (3) because information
    about coverage is available only from defendant or his insurer; and
    (4) because disclosure does not involve a significant invasion of
    privacy.
      Disclosure is required when the insurer "may be liable" on part
    or all of the judgment. Thus, an insurance company must disclose
    even when it contests liability under the policy, and such
    disclosure does not constitute a waiver of its claim. It is
    immaterial whether the liability is to satisfy the judgment
    directly or merely to indemnify or reimburse another after he pays
    the judgment.
      The provision applies only to persons "carrying on an insurance
    business" and thus covers insurance companies and not the ordinary
    business concern that enters into a contract of indemnification.
    Cf. N.Y.Ins. Law Sec. 41. Thus, the provision makes no change in
    existing law on discovery of indemnity agreements other than
    insurance agreements by persons carrying on an insurance business.
    Similarly, the provision does not cover the business concern that
    creates a reserve fund for purposes of self-insurance.
      For some purposes other than discovery, an application for
    insurance is treated as a part of the insurance agreement. The
    provision makes clear that, for discovery purposes, the application
    is not to be so treated. The insurance application may contain
    personal and financial information concerning the insured,
    discovery of which is beyond the purpose of this provision.
      In no instance does disclosure make the facts concerning
    insurance coverage admissible in evidence.
      Subdivision (b)(3) - Trial Preparation: Materials. Some of the
    most controversial and vexing problems to emerge from the discovery
    rules have arisen out of requests for the production of documents
    or things prepared in anticipation of litigation or for trial. The
    existing rules make no explicit provision for such materials. Yet,
    two verbally distinct doctrines have developed, each conferring a
    qualified immunity on these materials - the "good cause"
    requirement in Rule 34 (now generally held applicable to discovery
    of documents via deposition under Rule 45 and interrogatories under
    Rule 33) and the work-product doctrine of Hickman v. Taylor, 329
    U.S. 495 (1947). Both demand a showing of justification before
    production can be had, the one of "good cause" and the other
    variously described in the Hickman case: "necessity or
    justification," "denial * * * would unduly prejudice the
    preparation of petitioner's case," or "cause hardship or injustice"
    329 U.S. at 509-510.
      In deciding the Hickman case, the Supreme Court appears to have
    expressed a preference in 1947 for an approach to the problem of
    trial preparation materials by judicial decision rather than by
    rule. Sufficient experience has accumulated, however, with lower
    court applications of the Hickman decision to warrant a
    reappraisal.
      The major difficulties visible in the existing case law are (1)
    confusion and disagreement as to whether "good cause" is made out
    by a showing of relevance and lack of privilege, or requires an
    additional showing of necessity, (2) confusion and disagreement as
    to the scope of the Hickman work-product doctrine, particularly
    whether it extends beyond work actually performed by lawyers, and
    (3) the resulting difficulty of relating the "good cause" required
    by Rule 34 and the "necessity or justification" of the work-product
    doctrine, so that their respective roles and the distinctions
    between them are understood.
      Basic Standard. Since Rule 34 in terms requires a showing of
    "good cause" for the production of all documents and things,
    whether or not trial preparation is involved, courts have felt that
    a single formula is called for and have differed over whether a
    showing of relevance and lack of privilege is enough or whether
    more must be shown. When the facts of the cases are studied,
    however, a distinction emerges based upon the type of materials.
    With respect to documents not obtained or prepared with an eye to
    litigation, the decisions, while not uniform, reflect a strong and
    increasing tendency to relate "good cause" to a showing that the
    documents are relevant to the subject matter of the action. E.g.,
    Connecticut Mutual Life Ins. Co. v. Shields, 17 F.R.D. 273
    (S.D.N.Y. 1959), with cases cited; Houdry Process Corp. v.
    Commonwealth Oil Refining Co., 24 F.R.D. 58 (S.D.N.Y. 1955); see
    Bell v. Commercial Ins. Co., 280 F.2d 514, 517 (3d Cir. 1960). When
    the party whose documents are sought shows that the request for
    production is unduly burdensome or oppressive, courts have denied
    discovery for lack of "good cause", although they might just as
    easily have based their decision on the protective provisions of
    existing Rule 30(b) (new Rule 26(c)). E.g., Lauer v. Tankrederi, 39
    F.R.D. 334 (E.D.Pa. 1966).
      As to trial-preparation materials, however, the courts are
    increasingly interpreting "good cause" as requiring more than
    relevance. When lawyers have prepared or obtained the materials for
    trial, all courts require more than relevance; so much is clearly
    commanded by Hickman. But even as to the preparatory work of
    nonlawyers, while some courts ignore work-product and equate "good
    cause" with relevance, e.g., Brown v. New York, N.H. & H. RR., 17
    F.R.D. 324 (S.D.N.Y. 1955), the more recent trend is to read "good
    cause" as requiring inquiry into the importance of and need for the
    materials as well as into alternative sources for securing the same
    information. In Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921
    (4th Cir. 1962), statements of witnesses obtained by claim agents
    were held not discoverable because both parties had had equal
    access to the witnesses at about the same time, shortly after the
    collision in question. The decision was based solely on Rule 34 and
    "good cause"; the court declined to rule on whether the statements
    were work-product. The court's treatment of "good cause" is quoted
    at length and with approval in Schlagenhauf v. Holder, 379 U.S.
    104, 117-118 (1964). See also Mitchell v. Bass, 252 F.2d 513 (8th
    Cir. 1958); Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th
    Cir. 1954); Burke v. United States, 32 F.R.D. 213 (E.D.N.Y. 1963).
    While the opinions dealing with "good cause" do not often draw an
    explicit distinction between trial preparation materials and other
    materials, in fact an overwhelming proportion of the cases in which
    special showing is required are cases involving trial preparation
    materials.
      The rules are amended by eliminating the general requirement of
    "good cause" from Rule 34 but retaining a requirement of a special
    showing for trial preparation materials in this subdivision. The
    required showing is expressed, not in terms of "good cause" whose
    generality has tended to encourage confusion and controversy, but
    in terms of the elements of the special showing to be made:
    substantial need of the materials in the preparation of the case
    and inability without undue hardship to obtain the substantial
    equivalent of the materials by other means.
      These changes conform to the holdings of the cases, when viewed
    in light of their facts. Apart from trial preparation, the fact
    that the materials sought are documentary does not in and of itself
    require a special showing beyond relevance and absence of
    privilege. The protective provisions are of course available, and
    if the party from whom production is sought raises a special issue
    of privacy (as with respect to income tax returns or grand jury
    minutes) or points to evidence primarily impeaching, or can show
    serious burden or expense, the court will exercise its traditional
    power to decide whether to issue a protective order. On the other
    hand, the requirement of a special showing for discovery of trial
    preparation materials reflects the view that each side's informal
    evaluation of its case should be protected, that each side should
    be encouraged to prepare independently, and that one side should
    not automatically have the benefit of the detailed preparatory work
    of the other side. See Field and McKusick, Maine Civil Practice 264
    (1959).
      Elimination of a "good cause" requirement from Rule 34 and the
    establishment of a requirement of a special showing in this
    subdivision will eliminate the confusion caused by having two
    verbally distinct requirements of justification that the courts
    have been unable to distinguish clearly. Moreover, the language of
    the subdivision suggests the factors which the courts should
    consider in determining whether the requisite showing has been
    made. The importance of the materials sought to the party seeking
    them in preparation of his case and the difficulty he will have
    obtaining them by other means are factors noted in the Hickman
    case. The courts should also consider the likelihood that the
    party, even if he obtains the information by independent means,
    will not have the substantial equivalent of the documents the
    production of which he seeks.
      Consideration of these factors may well lead the court to
    distinguish between witness statements taken by an investigator, on
    the one hand, and other parts of the investigative file, on the
    other. The court in Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir.
    1968), while it naturally addressed itself to the "good cause"
    requirements of Rule 34, set forth as controlling considerations
    the factors contained in the language of this subdivision. The
    analysis of the court suggests circumstances under which witness
    statements will be discoverable. The witness may have given a fresh
    and contemporaneous account in a written statement while he is
    available to the party seeking discovery only a substantial time
    thereafter. Lanham, supra at 127-128; Guilford, supra at 926. Or he
    may be reluctant or hostile. Lanham, supra at 128-129; Brookshire
    v. Pennsylvania RR., 14 F.R.D. 154 (N.D.Ohio 1953); Diamond v.
    Mohawk Rubber Co., 33 F.R.D. 264 (D.Colo. 1963). Or he may have a
    lapse of memory. Tannenbaum v. Walker, 16 F.R.D. 570 (E.D.Pa.
    1954). Or he may probably be deviating from his prior statement.
    Cf. Hauger v. Chicago, R.I. & Pac. RR., 216 F.2d 501 (7th Cir.
    1954). On the other hand, a much stronger showing is needed to
    obtain evaluative materials in an investigator's reports. Lanham,
    supra at 131-133; Pickett v. L. R. Ryan, Inc., 237 F.Supp. 198
    (E.D.S.C. 1965).
      Materials assembled in the ordinary course of business, or
    pursuant to public requirements unrelated to litigation, or for
    other nonlitigation purposes are not under the qualified immunity
    provided by this subdivision. Gossman v. A. Duie Pyle, Inc., 320
    F.2d 45 (4th Cir. 1963); cf. United States v. New York Foreign
    Trade Zone Operators, Inc., 304 F.2d 792 (2d Cir. 1962). No change
    is made in the existing doctrine, noted in the Hickman case, that
    one party may discover relevant facts known or available to the
    other party, even though such facts are contained in a document
    which is not itself discoverable.
      Treatment of Lawyers; Special Protection of Mental Impressions,
    Conclusions, Opinions, and Legal Theories Concerning the
    Litigation. - The courts are divided as to whether the work-product
    doctrine extends to the preparatory work only of lawyers. The
    Hickman case left this issue open since the statements in that case
    were taken by a lawyer. As to courts of appeals, compare Alltmont
    v. United States, 177 F.2d 971, 976 (3d Cir. 1949), cert. denied,
    339 U.S. 967 (1950) (Hickman applied to statements obtained by FBI
    agents on theory it should apply to "all statements of prospective
    witnesses which a party has obtained for his trial counsel's use"),
    with Southern Ry. v. Campbell, 309 F.2d 569 (5th Cir. 1962)
    (statements taken by claim agents not work-product), and Guilford
    Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962) (avoiding
    issue of work-product as to claim agents, deciding case instead
    under Rule 34 "good cause"). Similarly, the district courts are
    divided on statements obtained by claim agents, compare, e.g.,
    Brown v. New York, N.H. & H. RR., 17 F.R.D. 324 (S.D.N.Y. 1955)
    with Hanke v. Milwaukee Electric Ry. & Transp. Co., 7 F.R.D. 540
    (E.D. Wis. 1947); investigators, compare Burke v. United States, 32
    F.R.D. 213 (E.D.N.Y.1963) with Snyder v. United States, 20 F.R.D. 7
    (E.D.N.Y.1956); and insurers, compare Gottlieb v. Bresler, 24
    F.R.D. 371 (D.D.C.1959) with Burns v. Mulder, 20 F.R.D. 605 (ED.Pa
    1957). See 4 Moore's Federal Practice &#182; 26.23 [8.1] (2d ed.
    1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec.
    652.2 (Wright ed. 1961).
      A complication is introduced by the use made by courts of the
    "good cause" requirement of Rule 34, as described above. A court
    may conclude that trial preparation materials are not work-product
    because not the result of lawyer's work and yet hold that they are
    not producible because "good cause" has not been shown. Cf.
    Guilford Nat'l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962),
    cited and described above. When the decisions on "good cause" are
    taken into account, the weight of authority affords protection of
    the preparatory work of both lawyers and nonlawyers (though not
    necessarily to the same extent) by requiring more than a showing of
    relevance to secure production.
      Subdivision (b)(3) reflects the trend of the cases by requiring a
    special showing, not merely as to materials prepared by an
    attorney, but also as to materials prepared in anticipation of
    litigation or preparation for trial by or for a party or any
    representative acting on his behalf. The subdivision then goes on
    to protect against disclosure the mental impressions, conclusions,
    opinions, or legal theories concerning the litigation of an
    attorney or other representative of a party. The Hickman opinion
    drew special attention to the need for protecting an attorney
    against discovery of memoranda prepared from recollection of oral
    interviews. The courts have steadfastly safeguarded against
    disclosure of lawyers' mental impressions and legal theories, as
    well as mental impressions and subjective evaluations of
    investigators and claim-agents. In enforcing this provision of the
    subdivision, the courts will sometimes find it necessary to order
    disclosure of a document but with portions deleted.
      Rules 33 and 36 have been revised in order to permit discovery
    calling for opinions, contentions, and admissions relating not only
    to fact but also to the application of law to fact. Under those
    rules, a party and his attorney or other representative may be
    required to disclose, to some extent, mental impressions, opinions,
    or conclusions. But documents or parts of documents containing
    these matters are protected against discovery by this subdivision.
    Even though a party may ultimately have to disclose in response to
    interrogatories or requests to admit, he is entitled to keep
    confidential documents containing such matters prepared for
    internal use.
      Party's Right to Own Statement. - An exception to the requirement
    of this subdivision enables a party to secure production of his own
    statement without any special showing. The cases are divided.
    Compare, e.g., Safeway Stores, Inc. v. Reynolds, 176 F.2d 476 (D.C.
    Cir. 1949); Shupe v. Pennsylvania RR., 19 F.R.D. 144 (W.D.Pa.
    1956); with e.g., New York Central RR. v. Carr, 251 F.2d 433 (4th
    Cir. 1957); Belback v. Wilson Freight Forwarding Co., 40 F.R.D. 16
    (W.D.Pa. 1966).
      Courts which treat a party's statement as though it were that of
    any witness overlook the fact that the party's statement is,
    without more, admissible in evidence. Ordinarily, a party gives a
    statement without insisting on a copy because he does not yet have
    a lawyer and does not understand the legal consequences of his
    actions. Thus, the statement is given at a time when he functions
    at a disadvantage. Discrepancies between his trial testimony and
    earlier statement may result from lapse of memory or ordinary
    inaccuracy; a written statement produced for the first time at
    trial may give such discrepancies a prominence which they do not
    deserve. In appropriate cases the court may order a party to be
    deposed before his statement is produced. E.g., Smith v. Central
    Linen Service Co., 39 F.R.D. 15 (D.Md. 1966); McCoy v. General
    Motors Corp., 33 F.R.D. 354 (W.D.Pa. 1963).
      Commentators strongly support the view that a party be able to
    secure his statement without a showing. 4 Moore's Federal Practice
    &#182; 26.23 [8.4] (2d ed. 1966); 2A Barron & Holtzoff, Federal
    Practice and Procedure Sec. 652.3 (Wright ed. 1961); see also Note,
    Developments in the Law - Discovery, 74 Harv.L.Rev. 940, 1039
    (1961). The following states have by statute or rule taken the same
    position: Statutes: Fla.Stat.Ann. Sec. 92.33; Ga.Code Ann. Sec.
    38-2109(b); La.Stat.Ann.R.S. 13:3732; Mass.Gen.Laws Ann. c. 271,
    Sec. 44; Minn.Stat.Ann. Sec. 602.01; N.Y.C.P.L.R. Sec. 3101(e).
    Rules: Mo.R.C.P. 56.01(a); N.Dak.R.C.P. 34(b); Wyo.R.C.P. 34(b);
    cf. Mich.G.C.R. 306.2.
      In order to clarify and tighten the provision on statements by a
    party, the term "statement" is defined. The definition is adapted
    from 18 U.S.C. Sec. 3500(e) (Jencks Act). The statement of a party
    may of course be that of plaintiff or defendant, and it may be that
    of an individual or of a corporation or other organization.
      Witness' Right to Own Statement. - A second exception to the
    requirement of this subdivision permits a nonparty witness to
    obtain a copy of his own statement without any special showing.
    Many, though not all, of the considerations supporting a party's
    right to obtain his statement apply also to the non-party witness.
    Insurance companies are increasingly recognizing that a witness is
    entitled to a copy of his statement and are modifying their regular
    practice accordingly.
      Subdivision (b)(4) - Trial Preparation: Experts. This is a new
    provision dealing with discovery of information (including facts
    and opinions) obtained by a party from an expert retained by that
    party in relation to litigation or obtained by the expert and not
    yet transmitted to the party. The subdivision deals separately with
    those experts whom the party expects to call as trial witnesses and
    with those experts who have been retained or specially employed by
    the party but who are not expected to be witnesses. It should be
    noted that the subdivision does not address itself to the expert
    whose information was not acquired in preparation for trial but
    rather because he was an actor or viewer with respect to
    transactions or occurrences that are part of the subject matter of
    the lawsuit. Such an expert should be treated as an ordinary
    witness.
      Subsection (b)(4)(A) deals with discovery of information obtained
    by or through experts who will be called as witnesses at trial. The
    provision is responsive to problems suggested by a relatively
    recent line of authorities. Many of these cases present intricate
    and difficult issues as to which expert testimony is likely to be
    determinative. Prominent among them are food and drug, patent, and
    condemnation cases. See, e.g., United States v. Nysco Laboratories,
    Inc., 26 F.R.D. 159, 162 (E.D.N.Y. 1960) (food and drug); E. I. du
    Pont de Nemours & Co. v. Phillips Petroleum Co., 24 F.R.D. 416, 421
    (D.Del. 1959) (patent); Cold Metal Process Co. v. Aluminum Co. of
    America, 7 F.R.D. 425 (N.D.Ohio 1947), aff'd. Sachs v. Aluminum Co.
    of America, 167 F.2d 570 (6th Cir. 1948) (same); United States v.
    50.34 Acres of Land, 13 F.R.D. 19 (E.D.N.Y. 1952) (condemnation).
      In cases of this character, a prohibition against discovery of
    information held by expert witnesses produces in acute form the
    very evils that discovery has been created to prevent. Effective
    cross-examination of an expert witness requires advance
    preparation. The lawyer even with the help of his own experts
    frequently cannot anticipate the particular approach his
    adversary's expert will take or the data on which he will base his
    judgment on the stand. McGlothlin, Some Practical Problems in Proof
    of Economic, Scientific, and Technical Facts, 23 F.R.D. 467, 478
    (1958). A California study of discovery and pretrial in
    condemnation cases notes that the only substitute for discovery of
    experts' valuation materials is "lengthy - and often fruitless -
    cross-examination during trial," and recommends pretrial exchange
    of such material. Calif.Law Rev.Comm'n, Discovery in Eminent Domain
    Proceedings 707-710 (Jan.1963). Similarly, effective rebuttal
    requires advance knowledge of the line of testimony of the other
    side. If the latter is foreclosed by a rule against discovery, then
    the narrowing of issues and elimination of surprise which discovery
    normally produces are frustrated.
      These considerations appear to account for the broadening of
    discovery against experts in the cases cited where expert testimony
    was central to the case. In some instances, the opinions are
    explicit in relating expanded discovery to improved
    cross-examination and rebuttal at trial. Franks v. National Dairy
    Products Corp., 41 F.R.D. 234 (W.D.Tex. 1966); United States v.
    23.76 Acres, 32 F.R.D. 593 (D.Md. 1963); see also an unpublished
    opinion of Judge Hincks, quoted in United States v. 48 Jars, etc.,
    23 F.R.D. 192, 198 (D.D.C. 1958). On the other hand, the need for a
    new provision is shown by the many cases in which discovery of
    expert trial witnesses is needed for effective cross-examination
    and rebuttal, and yet courts apply the traditional doctrine and
    refuse disclosure. E.g., United States v. Certain Parcels of Land,
    25 F.R.D. 192 (N.D.Cal. 1959); United States v. Certain Acres, 18
    F.R.D. 98 (M.D.Ga. 1955).
      Although the trial problems flowing from lack of discovery of
    expert witnesses are most acute and noteworthy when the case turns
    largely on experts, the same problems are encountered when a single
    expert testifies. Thus, subdivision (b)(4)(A) draws no line between
    complex and simple cases, or between cases with many experts and
    those with but one. It establishes by rule substantially the
    procedure adopted by decision of the court in Knighton v. Villian &
    Fassio, 39 F.R.D. 11 (D.Md. 1965). For a full analysis of the
    problem and strong recommendations to the same effect, see
    Friedenthal, Discovery and Use of an Adverse Party's Expert
    Information, 14 Stan.L.Rev. 455, 485-488 (1962); Long, Discovery
    and Experts under the Federal Rules of Civil Procedure, 38 F.R.D.
    111 (1965).
      Past judicial restrictions on discovery of an adversary's expert,
    particularly as to his opinions, reflect the fear that one side
    will benefit unduly from the other's better preparation. The
    procedure established in subsection (b)(4)(A) holds the risk to a
    minimum. Discovery is limited to trial witnesses, and may be
    obtained only at a time when the parties know who their expert
    witnesses will be. A party must as a practical matter prepare his
    own case in advance of that time, for he can hardly hope to build
    his case out of his opponent's experts.
      Subdivision (b)(4)(A) provides for discovery of an expert who is
    to testify at the trial. A party can require one who intends to use
    the expert to state the substance of the testimony that the expert
    is expected to give. The court may order further discovery, and it
    has ample power to regulate its timing and scope and to prevent
    abuse. Ordinarily, the order for further discovery shall compensate
    the expert for his time, and may compensate the party who intends
    to use the expert for past expenses reasonably incurred in
    obtaining facts or opinions from the expert. Those provisions are
    likely to discourage abusive practices.
      Subdivision (b)(4)(B) deals with an expert who has been retained
    or specially employed by the party in anticipation of litigation or
    preparation for trial (thus excluding an expert who is simply a
    general employee of the party not specially employed on the case),
    but who is not expected to be called as a witness. Under its
    provisions, a party may discover facts known or opinions held by
    such an expert only on 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.
      Subdivision (b)(4)(B) is concerned only with experts retained or
    specially consulted in relation to trial preparation. Thus the
    subdivision precludes discovery against experts who were informally
    consulted in preparation for trial, but not retained or specially
    employed. As an ancillary procedure, a party may on a proper
    showing require the other party to name experts retained or
    specially employed, but not those informally consulted.
      These new provisions of subdivision (b)(4) repudiate the few
    decisions that have held an expert's information privileged simply
    because of his status as an expert, e.g., American Oil Co. v.
    Pennsylvania Petroleum Products Co., 23 F.R.D. 680, 685-686 (D.R.I.
    1959). See Louisell, Modern California Discovery 315-316 (1963).
    They also reject as ill-considered the decisions which have sought
    to bring expert information within the work-product doctrine. See
    United States v. McKay, 372 F.2d 174, 176-177 (5th Cir. 1967). The
    provisions adopt a form of the more recently developed doctrine of
    "unfairness". See e.g., United States v. 23.76 Acres of Land, 32
    F.R.D. 593, 597 (D.Md. 1963); Louisell, supra, at 317-318; 4
    Moore's Federal Practice Sec. 26.24 (2d ed. 1966).
      Under subdivision (b)(4)(C), the court is directed or authorized
    to issue protective orders, including an order that the expert be
    paid a reasonable fee for time spent in responding to discovery,
    and that the party whose expert is made subject to discovery be
    paid a fair portion of the fees and expenses that the party
    incurred in obtaining information from the expert. The court may
    issue the latter order as a condition of discovery, or it may delay
    the order until after discovery is completed. These provisions for
    fees and expenses meet the objection that it is unfair to permit
    one side to obtain without cost the benefit of an expert's work for
    which the other side has paid, often a substantial sum. E.g., Lewis
    v. United Air Lines Transp. Corp., 32 F.Supp. 21 (W.D.Pa. 1940);
    Walsh v. Reynolds Metal Co., 15 F.R.D. 376 (D.N.J. 1954). On the
    other hand, a party may not obtain discovery simply by offering to
    pay fees and expenses. Cf. Boynton v. R. J. Reynolds Tobacco Co.,
    36 F.Supp. 593 (D.Mass. 1941).
      In instances of discovery under subdivision (b)(4)(B), the court
    is directed to award fees and expenses to the other party, since
    the information is of direct value to the discovering party's
    preparation of his case. In ordering discovery under (b)(4)(A)(ii),
    the court has discretion whether to award fees and expenses to the
    other party; its decision should depend upon whether the
    discovering party is simply learning about the other party's case
    or is going beyond this to develop his own case. Even in cases
    where the court is directed to issue a protective order, it may
    decline to do so if it finds that manifest injustice would result.
    Thus, the court can protect, when necessary and appropriate, the
    interests of an indigent party.
      Subdivision (c) - Protective Orders. The provisions of existing
    Rule 30(b) are transferred to this subdivision (c), as part of the
    rearrangement of Rule 26. The language has been changed to give it
    application to discovery generally. The subdivision recognizes the
    power of the court in the district where a deposition is being
    taken to make protective orders. Such power is needed when the
    deposition is being taken far from the court where the action is
    pending. The court in the district where the deposition is being
    taken may, and frequently will, remit the deponent or party to the
    court where the action is pending.
      In addition, drafting changes are made to carry out and clarify
    the sense of the rule. Insertions are made to avoid any possible
    implication that a protective order does not extend to "time" as
    well as to "place" or may not safeguard against "undue burden or
    expense."
      The new reference to trade secrets and other confidential
    commercial information reflects existing law. The courts have not
    given trade secrets automatic and complete immunity against
    disclosure, but have in each case weighed their claim to privacy
    against the need for disclosure. Frequently, they have been
    afforded a limited protection. See, e.g., Covey Oil Co. v.
    Continental Oil Co., 340 F.2d 993 (10th Cir. 1965); Julius M. Ames
    Co. v. Bostitch, Inc., 235 F.Supp. 856 (S.D.N.Y. 1964).
      The subdivision contains new matter relating to sanctions. When a
    motion for a protective order is made and the court is disposed to
    deny it, the court may go a step further and issue an order to
    provide or permit discovery. This will bring the sanctions of Rule
    37(b) directly into play. Since the court has heard the contentions
    of all interested persons, an affirmative order is justified. See
    Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58
    Col.L.Rev. 480, 492-493 (1958). In addition, the court may require
    the payment of expenses incurred in relation to the motion.
      Subdivision (d) - Sequence and Priority. This new provision is
    concerned with the sequence in which parties may proceed with
    discovery and with related problems of timing. The principal
    effects of the new provision are first, to eliminate any fixed
    priority in the sequence of discovery, and second, to make clear
    and explicit the court's power to establish priority by an order
    issued in a particular case.
      A priority rule developed by some courts, which confers priority
    on the party who first serves notice of taking a deposition, is
    unsatisfactory in several important respects:
      First, this priority rule permits a party to establish a priority
    running to all depositions as to which he has given earlier notice.
    Since he can on a given day serve notice of taking many depositions
    he is in a position to delay his adversary's taking of depositions
    for an inordinate time. Some courts have ruled that deposition
    priority also permits a party to delay his answers to
    interrogatories and production of documents. E.g., E. I. du Pont de
    Nemours & Co. v. Phillips Petroleum Co., 23 F.R.D. 237 (D.Del.
    1959); but cf. Sturdevant v. Sears, Roebuck & Co., 32 F.R.D. 426
    (W.D.Mo. 1963).
      Second, since notice is the key to priority, if both parties wish
    to take depositions first a race results. See Caldwell-Clements,
    Inc. v. McGraw-Hill Pub. Co., 11 F.R.D. 156 (S.D.N.Y. 1951)
    (description of tactics used by parties). But the existing rules on
    notice of deposition create a race with runners starting from
    different positions. The plaintiff may not give notice without
    leave of court until 20 days after commencement of the action,
    whereas the defendant may serve notice at any time after
    commencement. Thus, a careful and prompt defendant can almost
    always secure priority. This advantage of defendants is fortuitous,
    because the purpose of requiring plaintiff to wait 20 days is to
    afford defendant an opportunity to obtain counsel, not to confer
    priority.
      Third, although courts have ordered a change in the normal
    sequence of discovery on a number of occasions, e.g., Kaeppler v.
    James H. Matthews & Co., 200 F.Supp. 229 (E.D.Pa. 1961); Park &
    Tilford Distillers Corp. v. Distillers Co., 19 F.R.D. 169 (S.D.N.Y.
    1956), and have at all times avowed discretion to vary the usual
    priority, most commentators are agreed that courts in fact grant
    relief only for "the most obviously compelling reasons." 2A Barron
    & Holtzoff, Federal Practice and Procedure 447-47 (Wright ed.
    1961); see also Younger, Priority of Pretrial Examination in the
    Federal Courts - A Comment, 34 N.Y.U.L.Rev. 1271 (1959); Freund,
    The Pleading and Pretrial of an Antitrust Claim, 46 Corn.L.Q. 555,
    564, (1964). Discontent with the fairness of actual practice has
    been evinced by other observers. Comments, 59 Yale L.J. 117,
    134-136 (1949); Yudkin, Some Refinements in Federal Discovery
    Procedure, 11 Fed.B.J. 289, 296-297 (1951); Developments in the
    Law-Discovery, 74 Harv.L.Rev. 940, 954-958 (1961).
      Despite these difficulties, some courts have adhered to the
    priority rule, presumably because it provides a test which is
    easily understood and applied by the parties without much court
    intervention. It thus permits deposition discovery to function
    extrajudicially, which the rules provide for and the courts desire.
    For these same reasons, courts are reluctant to make numerous
    exceptions to the rule.
      The Columbia Survey makes clear that the problem of priority does
    not affect litigants generally. It found that most litigants do not
    move quickly to obtain discovery. In over half of the cases, both
    parties waited at least 50 days. During the first 20 days after
    commencement of the action - the period when defendant might assure
    his priority by noticing depositions - 16 percent of the defendants
    acted to obtain discovery. A race could not have occurred in more
    than 16 percent of the cases and it undoubtedly occurred in fewer.
    On the other hand, five times as many defendants as plaintiffs
    served notice of deposition during the first 19 days. To the same
    effect, see Comment, Tactical Use and Abuse of Depositions Under
    the Federal Rules, 59 Yale L.J. 117, 134 (1949).
      These findings do not mean, however, that the priority rule is
    satisfactory or that a problem of priority does not exist. The
    court decisions show that parties do bottle on this issue and carry
    their disputes to court. The statistics show that these court cases
    are not typical. By the same token, they reveal that more extensive
    exercise of judicial discretion to vary the priority will not bring
    a flood of litigation, and that a change in the priority rule will
    in fact affect only a small fraction of the cases.
      It is contended by some that there is no need to alter the
    existing priority practice. In support, it is urged that there is
    no evidence that injustices in fact result from present practice
    and that, in any event, the courts can and do promulgate local
    rules, as in New York, to deal with local situations and issue
    orders to avoid possible injustice in particular cases.
      Subdivision (d) is based on the contrary view that the rule of
    priority based on notice is unsatisfactory and unfair in its
    operation. Subdivision (d) follows an approach adapted from Civil
    Rule 4 of the District Court for the Southern District of New York.
    That rule provides that starting 40 days after commencement of the
    action, unless otherwise ordered by the court, the fact that one
    part is taking a deposition shall not prevent another party from
    doing so "concurrently." In practice, the depositions are not
    usually taken simultaneously; rather, the parties work out
    arrangements for alternation in the taking of depositions. One
    party may take a complete deposition and then the other, or, if the
    depositions are extensive, one party deposes for a set time, and
    then the other. See Caldwell-Clements, Inc. v. McGraw-Hill Pub.
    Co., 11 F.R.D. 156 (S.D.N.Y. 1951).
      In principle, one party's initiation of discovery should not wait
    upon the other's completion, unless delay is dictated by special
    considerations. Clearly the principle is feasible with respect to
    all methods of discovery other than depositions. And the experience
    of the Southern District of New York shows that the principle can
    be applied to depositions as well. The courts have not had an
    increase in motion business on this matter. Once it is clear to
    lawyers that they bargain on an equal footing, they are usually
    able to arrange for an orderly succession of depositions without
    judicial intervention. Professor Moore has called attention to
    Civil Rule 4 and suggested that it may usefully be extended to
    other areas. 4 Moore's Federal Practice 1154 (2d ed. 1966).
      The court may upon motion and by order grant priority in a
    particular case. But a local court rule purporting to confer
    priority in certain classes of cases would be inconsistent with
    this subdivision and thus void.
      Subdivision (e) - Supplementation of Responses. The rules do not
    now state whether interrogatories (and questions at deposition as
    well as requests for inspection and admissions) impose a
    "continuing burden" on the responding party to supplement his
    answers if he obtains new information. The issue is acute when new
    information renders substantially incomplete or inaccurate an
    answer which was complete and accurate when made. It is essential
    that the rules provide an answer to this question. The parties can
    adjust to a rule either way, once they know what it is. See 4
    Moore's Federal Practice &#182; 33.25[4] (2d ed. 1966).
      Arguments can be made both ways. Imposition of a continuing
    burden reduces the proliferation of additional sets of
    interrogatories. Some courts have adopted local rules establishing
    such a burden. E.g., E.D.Pa.R. 20(f), quoted in Taggart v. Vermont
    Transp. Co., 32 F.R.D. 587 (E.D.Pa. 1963); D.Me.R.15(c). Others
    have imposed the burden by decision, E.g., Chenault v. Nebraska
    Farm Products, Inc., 9 F.R.D. 529, 533 (D.Nebr. 1949). On the other
    hand, there are serious objections to the burden, especially in
    protracted cases. Although the party signs the answers, it is his
    lawyer who understands their significance and bears the
    responsibility to bring answers up to date. In a complex case all
    sorts of information reaches the party, who little understands its
    bearing on answers previously given to interrogatories. In
    practice, therefore, the lawyer under a continuing burden must
    periodically recheck all interrogatories and canvass all new
    information. But a full set of new answers may no longer be needed
    by the interrogating party. Some issues will have been dropped from
    the case, some questions are now seen as unimportant, and other
    questions must in any event be reformulated. See Novick v.
    Pennsylvania RR., 18 F.R.D. 296, 298 (W.D.Pa. 1955).
      Subdivision (e) provides that a party is not under a continuing
    burden except as expressly provided. Cf. Note, 68 Harv.L.Rev. 673,
    677 (1955). An exception is made as to the identity of persons
    having knowledge of discoverable matters, because of the obvious
    importance to each side of knowing all witnesses and because
    information about witnesses routinely comes to each lawyer's
    attention. Many of the decisions on the issue of a continuing
    burden have in fact concerned the identity of witnesses. An
    exception is also made as to expert trial witnesses in order to
    carry out the provisions of Rule 26(b)(4). See Diversified Products
    Corp. v. Sports Center Co., 42 F.R.D. 3 (D.Md. 1967).
      Another exception is made for the situation in which a party, or
    more frequently his lawyer, obtains actual knowledge that a prior
    response is incorrect. This exception does not impose a duty to
    check the accuracy of prior responses, but it prevents knowing
    concealment by a party or attorney. Finally, a duty to supplement
    may be imposed by order of the court in a particular case
    (including an order resulting from a pretrial conference) or by
    agreement of the parties. A party may of course make a new
    discovery request which requires supplementation of prior
    responses.
      The duty will normally be enforced, in those limited instances
    where it is imposed, through sanctions imposed by the trial court,
    including exclusion of evidence, continuance, or other action, as
    the court may deem appropriate.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      Subdivision (f). This subdivision is new. There has been
    widespread criticism of abuse of discovery. The Committee has
    considered a number of proposals to eliminate abuse, including a
    change in Rule 26(b)(1) with respect to the scope of discovery and
    a change in Rule 33(a) to limit the number of questions that can be
    asked by interrogatories to parties.
      The Committee believes that abuse of discovery, while very
    serious in certain cases, is not so general as to require such
    basic changes in the rules that govern discovery in all cases. A
    very recent study of discovery in selected metropolitan districts
    tends to support its belief. P. Connolly, E. Holleman, & M.
    Kuhlman, Judicial Controls and the Civil Litigative Process:
    Discovery (Federal Judicial Center, 1978). In the judgment of the
    Committee abuse can best be prevented by intervention by the court
    as soon as abuse is threatened.
      To this end this subdivision provides that counsel who has
    attempted without success to effect with opposing counsel a
    reasonable program or plan for discovery is entitled to the
    assistance of the court.
      It is not contemplated that requests for discovery conferences
    will be made routinely. A relatively narrow discovery dispute
    should be resolved by resort to Rules 26(c) or 37(a), and if it
    appears that a request for a conference is in fact grounded in such
    a dispute, the court may refer counsel to those rules. If the court
    is persuaded that a request is frivolous or vexatious, it can
    strike it. See Rules 11 and 7(b)(2).
      A number of courts routinely consider discovery matters in
    preliminary pretrial conferences held shortly after the pleadings
    are closed. This subdivision does not interfere with such a
    practice. It authorizes the court to combine a discovery conference
    with a pretrial conference under Rule 16 if a pretrial conference
    is held sufficiently early to prevent or curb abuse.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      Excessive discovery and evasion or resistance to reasonable
    discovery requests pose significant problems. Recent studies have
    made some attempt to determine the sources and extent of the
    difficulties. See Brazil, Civil Discovery: Lawyers' Views of its
    Effectiveness, Principal Problems and Abuses, American Bar
    Foundation (1980); Connolly, Holleman & Kuhlman, Judicial Controls
    and the Civil Litigative Process: Discovery, Federal Judicial
    Center (1978); Ellington, A Study of Sanctions for Discovery Abuse,
    Department of Justice (1979); Schroeder & Frank, The Proposed
    Changes in the Discovery Rules, 1978 Ariz.St.L.J. 475.
      The purpose of discovery is to provide a mechanism for making
    relevant information available to the litigants. "Mutual knowledge
    of all the relevant facts gathered by both parties is essential to
    proper litigation." Hickman v. Taylor, 329 U.S. 495, 507 (1947).
    Thus the spirit of the rules is violated when advocates attempt to
    use discovery tools as tactical weapons rather than to expose the
    facts and illuminate the issues by overuse of discovery or
    unnecessary use of defensive weapons or evasive responses. All of
    this results in excessively costly and time-consuming activities
    that are disproportionate to the nature of the case, the amount
    involved, or the issues or values at stake.
      Given our adversary tradition and the current discovery rules, it
    is not surprising that there are many opportunities, if not
    incentives, for attorneys to engage in discovery that, although
    authorized by the broad, permissive terms of the rules,
    nevertheless results in delay. See Brazil, The Adversary Character
    of Civil Discovery: A Critique and Proposals for Change, 31
    Vand.L.Rev. 1259 (1978). As a result, it has been said that the
    rules have "not infrequently [been] exploited to the disadvantage
    of justice." Herbert v. Lando, 441 U.S. 153, 179 (1979) (Powell,
    J., concurring). These practices impose costs on an already
    overburdened system and impede the fundamental goal of the "just,
    speedy, and inexpensive determination of every action."
    Fed.R.Civ.P. 1.
      Subdivision (a); Discovery Methods. The deletion of the last
    sentence of Rule 26(a)(1), which provided that unless the court
    ordered otherwise under Rule 26(c) "the frequency of use" of the
    various discovery methods was not to be limited, is an attempt to
    address the problem of duplicative, redundant, and excessive
    discovery and to reduce it. The amendment, in conjunction with the
    changes in Rule 26(b)(1), is designed to encourage district judges
    to identify instances of needless discovery and to limit the use of
    the various discovery devices accordingly. The question may be
    raised by one of the parties, typically on a motion for a
    protective order, or by the court on its own initiative. It is
    entirely appropriate to consider a limitation on the frequency of
    use of discovery at a discovery conference under Rule 26(f) or at
    any other pretrial conference authorized by these rules. In
    considering the discovery needs of a particular case, the court
    should consider the factors described in Rule 26(b)(1).
      Subdivision (b); Discovery Scope and Limits. Rule 26(b)(1) has
    been amended to add a sentence to deal with the problem of
    over-discovery. The objective is to guard against redundant or
    disproportionate discovery by giving the court authority to reduce
    the amount of discovery that may be directed to matters that are
    otherwise proper subjects of inquiry. The new sentence is intended
    to encourage judges to be more aggressive in identifying and
    discouraging discovery overuse. The grounds mentioned in the
    amended rule for limiting discovery reflect the existing practice
    of many courts in issuing protective orders under Rule 26(c). See
    e.g., Carlson Cos. v. Sperry & Hutchinson Co., 374 F.Supp. 1080
    (D.Minn. 1974); Dolgow v. Anderson, 53 F.R.D. 661 (E.D.N.Y. 1971);
    Mitchell v. American Tobacco Co., 33 F.R.D. 262 (M.D.Pa. 1963);
    Welty v. Clute, 1 F.R.D. 446 (W.D.N.Y. 1941). On the whole,
    however, district judges have been reluctant to limit the use of
    the discovery devices. See, e.g., Apco Oil Co. v. Certified
    Transp., Inc., 46 F.R.D. 428 (W.D.Mo. 1969). See generally 8 Wright
    & Miller, Federal Practice and Procedure: Civil Secs. 2036, 2037,
    2039, 2040 (1970).
      The first element of the standard, Rule 26(b)(1)(i), is designed
    to minimize redundancy in discovery and encourage attorneys to be
    sensitive to the comparative costs of different methods of securing
    information. Subdivision (b)(1)(ii) also seeks to reduce
    repetitiveness and to oblige lawyers to think through their
    discovery activities in advance so that full utilization is made of
    each deposition, document request, or set of interrogatories. The
    elements of Rule 26(b)(1)(iii) address the problem of discovery
    that is disproportionate to the individual lawsuit as measured by
    such matters as its nature and complexity, the importance of the
    issues at stake in a case seeking damages, the limitations on a
    financially weak litigant to withstand extensive opposition to a
    discovery program or to respond to discovery requests, and the
    significance of the substantive issues, as measured in philosophic,
    social, or institutional terms. Thus the rule recognizes that many
    cases in public policy spheres, such as employment practices, free
    speech, and other matters, may have importance far beyond the
    monetary amount involved. The court must apply the standards in an
    even-handed manner that will prevent use of discovery to wage a war
    of attrition or as a device to coerce a party, whether financially
    weak or affluent.
      The rule contemplates greater judicial involvement in the
    discovery process and thus acknowledges the reality that it cannot
    always operate on a self-regulating basis. See Connolly, Holleman &
    Kuhlman, Judicial Controls and the Civil Litigative Process:
    Discovery 77, Federal Judicial Center (1978). In an appropriate
    case the court could restrict the number of depositions,
    interrogatories, or the scope of a production request. But the
    court must be careful not to deprive a party of discovery that is
    reasonably necessary to afford a fair opportunity to develop and
    prepare the case.
      The court may act on motion, or its own initiative. It is
    entirely appropriate to resort to the amended rule in conjunction
    with a discovery conference under Rule 26(f) or one of the other
    pretrial conferences authorized by the rules.
      Subdivision (g); Signing of Discovery Requests, Responses, and
    Objections. Rule 26(g) imposes an affirmative duty to engage in
    pretrial discovery in a responsible manner that is consistent with
    the spirit and purposes of Rules 26 through 37. In addition, Rule
    26(g) is designed to curb discovery abuse by explicitly encouraging
    the imposition of sanctions. The subdivision provides a deterrent
    to both excessive discovery and evasion by imposing a certification
    requirement that obliges each attorney to stop and think about the
    legitimacy of a discovery request, a response thereto, or an
    objection. The term "response" includes answers to interrogatories
    and to requests to admit as well as responses to production
    requests.
      If primary responsibility for conducting discovery is to continue
    to rest with the litigants, they must be obliged to act responsibly
    and avoid abuse. With this in mind, Rule 26(g), which parallels the
    amendments to Rule 11, requires an attorney or unrepresented party
    to sign each discovery request, response, or objection. Motions
    relating to discovery are governed by Rule 11. However, since a
    discovery request, response, or objection usually deals with more
    specific subject matter than motions or papers, the elements that
    must be certified in connection with the former are spelled out
    more completely. The signature is a certification of the elements
    set forth in Rule 26(g).
      Although the certification duty requires the lawyer to pause and
    consider the reasonableness of his request, response, or objection,
    it is not meant to discourage or restrict necessary and legitimate
    discovery. The rule simply requires that the attorney make a
    reasonable inquiry into the factual basis of his response, request,
    or objection.
      The duty to make a "reasonable inquiry" is satisfied if the
    investigation undertaken by the attorney and the conclusions drawn
    therefrom are reasonable under the circumstances. It is an
    objective standard similar to the one imposed by Rule 11. See the
    Advisory Committee Note to Rule 11. See also Kinee v. Abraham
    Lincoln Fed. Sav. & Loan Ass'n, 365 F.Supp. 975 (E.D.Pa. 1973). In
    making the inquiry, the attorney may rely on assertions by the
    client and on communications with other counsel in the case as long
    as that reliance is appropriate under the circumstances.
    Ultimately, what is reasonable is a matter for the court to decide
    on the totality of the circumstances.
      Rule 26(g) does not require the signing attorney to certify the
    truthfulness of the client's factual responses to a discovery
    request. Rather, the signature certifies that the lawyer has made a
    reasonable effort to assure that the client has provided all the
    information and documents available to him that are responsive to
    the discovery demand. Thus, the lawyer's certification under Rule
    26(g) should be distinguished from other signature requirements in
    the rules, such as those in Rules 30(e) and 33.
      Nor does the rule require a party or an attorney to disclose
    privileged communications or work product in order to show that a
    discovery request, response, or objection is substantially
    justified. The provisions of Rule 26(c), including appropriate
    orders after in camera inspection by the court, remain available to
    protect a party claiming privilege or work product protection.
      The signing requirement means that every discovery request,
    response, or objection should be grounded on a theory that is
    reasonable under the precedents or a good faith belief as to what
    should be the law. This standard is heavily dependent on the
    circumstances of each case. The certification speaks as of the time
    it is made. The duty to supplement discovery responses continues to
    be governed by Rule 26(e).
      Concern about discovery abuse has led to widespread recognition
    that there is a need for more aggressive judicial control and
    supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979)
    (certiorari denied) (Powell, J., dissenting). Sanctions to deter
    discovery abuse would be more effective if they were diligently
    applied "not merely to penalize those whose conduct may be deemed
    to warrant such a sanction, but to deter those who might be tempted
    to such conduct in the absence of such a deterrent." National
    Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643
    (1976). See also Note, The Emerging Deterrence Orientation in the
    Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978).
    Thus the premise of Rule 26(g) is that imposing sanctions on
    attorneys who fail to meet the rule's standards will significantly
    reduce abuse by imposing disadvantages therefor.
      Because of the asserted reluctance to impose sanctions on
    attorneys who abuse the discovery rules, see Brazil, Civil
    Discovery: Lawyers' Views of its Effectiveness, Principal Problems
    and Abuses, American Bar Foundation (1980); Ellington, A Study of
    Sanctions for Discovery Abuse, Department of Justice (1979), Rule
    26(g) makes explicit the authority judges now have to impose
    appropriate sanctions and requires them to use it. This authority
    derives from Rule 37, 28 U.S.C. Sec. 1927, and the court's inherent
    power. See Roadway Express, Inc., v. Piper, 447 U.S. 752 (1980);
    Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D.Col. 1980);
    Note, Sanctions Imposed by Courts on Attorneys Who Abuse the
    Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule mandates
    that sanctions be imposed on attorneys who fail to meet the
    standards established in the first portion of Rule 26(g). The
    nature of the sanction is a matter of judicial discretion to be
    exercised in light of the particular circumstances. The court may
    take into account any failure by the party seeking sanctions to
    invoke protection under Rule 26(c) at an early stage in the
    litigation.
      The sanctioning process must comport with due process
    requirements. The kind of notice and hearing required will depend
    on the facts of the case and the severity of the sanction being
    considered. To prevent the proliferation of the sanction procedure
    and to avoid multiple hearings, discovery in any sanction
    proceeding normally should be permitted only when it is clearly
    required by the interests of justice. In most cases the court will
    be aware of the circumstances and only a brief hearing should be
    necessary.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a). Through the addition of paragraphs (1)-(4), this
    subdivision imposes on parties a duty to disclose, without awaiting
    formal discovery requests, certain basic information that is needed
    in most cases to prepare for trial or make an informed decision
    about settlement. The rule requires all parties (1) early in the
    case to exchange information regarding potential witnesses,
    documentary evidence, damages, and insurance, (2) at an appropriate
    time during the discovery period to identify expert witnesses and
    provide a detailed written statement of the testimony that may be
    offered at trial through specially retained experts, and (3) as the
    trial date approaches to identify the particular evidence that may
    be offered at trial. The enumeration in Rule 26(a) of items to be
    disclosed does not prevent a court from requiring by order or local
    rule that the parties disclose additional information without a
    discovery request. Nor are parties precluded from using traditional
    discovery methods to obtain further information regarding these
    matters, as for example asking an expert during a deposition about
    testimony given in other litigation beyond the four-year period
    specified in Rule 26(a)(2)(B).
      A major purpose of the revision is to accelerate the exchange of
    basic information about the case and to eliminate the paper work
    involved in requesting such information, and the rule should be
    applied in a manner to achieve those objectives. The concepts of
    imposing a duty of disclosure were set forth in Brazil, The
    Adversary Character of Civil Discovery: A Critique and Proposals
    for Change, 31 Vand. L. Rev. 1348 (1978), and Schwarzer, The
    Federal Rules, the Adversary Process, and Discovery Reform, 50 U.
    Pitt. L. Rev. 703, 721-23 (1989).
      The rule is based upon the experience of district courts that
    have required disclosure of some of this information through local
    rules, court-approved standard interrogatories, and standing
    orders. Most have required pretrial disclosure of the kind of
    information described in Rule 26(a)(3). Many have required written
    reports from experts containing information like that specified in
    Rule 26(a)(2)(B). While far more limited, the experience of the few
    state and federal courts that have required pre-discovery exchange
    of core information such as is contemplated in Rule 26(a)(1)
    indicates that savings in time and expense can be achieved,
    particularly if the litigants meet and discuss the issues in the
    case as a predicate for this exchange and if a judge supports the
    process, as by using the results to guide further proceedings in
    the case. Courts in Canada and the United Kingdom have for many
    years required disclosure of certain information without awaiting a
    request from an adversary.
      Paragraph (1). As the functional equivalent of court-ordered
    interrogatories, this paragraph requires early disclosure, without
    need for any request, of four types of information that have been
    customarily secured early in litigation through formal discovery.
    The introductory clause permits the court, by local rule, to exempt
    all or particular types of cases from these disclosure
    requirement[s] or to modify the nature of the information to be
    disclosed. It is expected that courts would, for example, exempt
    cases like Social Security reviews and government collection cases
    in which discovery would not be appropriate or would be unlikely.
    By order the court may eliminate or modify the disclosure
    requirements in a particular case, and similarly the parties,
    unless precluded by order or local rule, can stipulate to
    elimination or modification of the requirements for that case. The
    disclosure obligations specified in paragraph (1) will not be
    appropriate for all cases, and it is expected that changes in these
    obligations will be made by the court or parties when the
    circumstances warrant.
      Authorization of these local variations is, in large measure,
    included in order to accommodate the Civil Justice Reform Act of
    1990, which implicitly directs districts to experiment during the
    study period with differing procedures to reduce the time and
    expense of civil litigation. The civil justice delay and expense
    reduction plans adopted by the courts under the Act differ as to
    the type, form, and timing of disclosures required. Section
    105(c)(1) of the Act calls for a report by the Judicial Conference
    to Congress by December 31, 1995, comparing experience in twenty of
    these courts; and section 105(c)(2)(B) contemplates that some
    changes in the Rules may then be needed. While these studies may
    indicate the desirability of further changes in Rule 26(a)(1),
    these changes probably could not become effective before December
    1998 at the earliest. In the meantime, the present revision puts in
    place a series of disclosure obligations that, unless a court acts
    affirmatively to impose other requirements or indeed to reject all
    such requirements for the present, are designed to eliminate
    certain discovery, help focus the discovery that is needed, and
    facilitate preparation for trial or settlement.
      Subparagraph (A) requires identification of all persons who,
    based on the investigation conducted thus far, are likely to have
    discoverable information relevant to the factual disputes between
    the parties. All persons with such information should be disclosed,
    whether or not their testimony will be supportive of the position
    of the disclosing party. As officers of the court, counsel are
    expected to disclose the identity of those persons who may be used
    by them as witnesses or who, if their potential testimony were
    known, might reasonably be expected to be deposed or called as a
    witness by any of the other parties. Indicating briefly the general
    topics on which such persons have information should not be
    burdensome, and will assist other parties in deciding which
    depositions will actually be needed.
      Subparagraph (B) is included as a substitute for the inquiries
    routinely made about the existence and location of documents and
    other tangible things in the possession, custody, or control of the
    disclosing party. Although, unlike subdivision (a)(3)(C), an
    itemized listing of each exhibit is not required, the disclosure
    should describe and categorize, to the extent identified during the
    initial investigation, the nature and location of potentially
    relevant documents and records, including computerized data and
    other electronically-recorded information, sufficiently to enable
    opposing parties (1) to make an informed decision concerning which
    documents might need to be examined, at least initially, and (2) to
    frame their document requests in a manner likely to avoid squabbles
    resulting from the wording of the requests. As with potential
    witnesses, the requirement for disclosure of documents applies to
    all potentially relevant items then known to the party, whether or
    not supportive of its contentions in the case.
      Unlike subparagraphs (C) and (D), subparagraph (B) does not
    require production of any documents. Of course, in cases involving
    few documents a disclosing party may prefer to provide copies of
    the documents rather than describe them, and the rule is written to
    afford this option to the disclosing party. If, as will be more
    typical, only the description is provided, the other parties are
    expected to obtain the documents desired by proceeding under Rule
    34 or through informal requests. The disclosing party does not, by
    describing documents under subparagraph (B), waive its right to
    object to production on the basis of privilege or work product
    protection, or to assert that the documents are not sufficiently
    relevant to justify the burden or expense of production.
      The initial disclosure requirements of subparagraphs (A) and (B)
    are limited to identification of potential evidence "relevant to
    disputed facts alleged with particularity in the pleadings." There
    is no need for a party to identify potential evidence with respect
    to allegations that are admitted. Broad, vague, and conclusory
    allegations sometimes tolerated in notice pleading - for example,
    the assertion that a product with many component parts is defective
    in some unspecified manner - should not impose upon responding
    parties the obligation at that point to search for and identify all
    persons possibly involved in, or all documents affecting, the
    design, manufacture, and assembly of the product. The greater the
    specificity and clarity of the allegations in the pleadings, the
    more complete should be the listing of potential witnesses and
    types of documentary evidence. Although paragraphs (1)(A) and
    (1)(B) by their terms refer to the factual disputes defined in the
    pleadings, the rule contemplates that these issues would be
    informally refined and clarified during the meeting of the parties
    under subdivision (f) and that the disclosure obligations would be
    adjusted in the light of these discussions. The disclosure
    requirements should, in short, be applied with common sense in
    light of the principles of Rule 1, keeping in mind the salutary
    purposes that the rule is intended to accomplish. The litigants
    should not indulge in gamesmanship with respect to the disclosure
    obligations.
      Subparagraph (C) imposes a burden of disclosure that includes the
    functional equivalent of a standing Request for Production under
    Rule 34. A party claiming damages or other monetary relief must, in
    addition to disclosing the calculation of such damages, make
    available the supporting documents for inspection and copying as if
    a request for such materials had been made under Rule 34. This
    obligation applies only with respect to documents then reasonably
    available to it and not privileged or protected as work product.
    Likewise, a party would not be expected to provide a calculation of
    damages which, as in many patent infringement actions, depends on
    information in the possession of another party or person.
      Subparagraph (D) replaces subdivision (b)(2) of Rule 26, and
    provides that liability insurance policies be made available for
    inspection and copying. The last two sentences of that subdivision
    have been omitted as unnecessary, not to signify any change of law.
    The disclosure of insurance information does not thereby render
    such information admissible in evidence. See Rule 411, Federal
    Rules of Evidence. Nor does subparagraph (D) require disclosure of
    applications for insurance, though in particular cases such
    information may be discoverable in accordance with revised
    subdivision (a)(5).
      Unless the court directs a different time, the disclosures
    required by subdivision (a)(1) are to be made at or within 10 days
    after the meeting of the parties under subdivision (f). One of the
    purposes of this meeting is to refine the factual disputes with
    respect to which disclosures should be made under paragraphs (1)(A)
    and (1)(B), particularly if an answer has not been filed by a
    defendant, or, indeed, to afford the parties an opportunity to
    modify by stipulation the timing or scope of these obligations. The
    time of this meeting is generally left to the parties provided it
    is held at least 14 days before a scheduling conference is held or
    before a scheduling order is due under Rule 16(b). In cases in
    which no scheduling conference is held, this will mean that the
    meeting must ordinarily be held within 75 days after a defendant
    has first appeared in the case and hence that the initial
    disclosures would be due no later than 85 days after the first
    appearance of a defendant.
      Before making its disclosures, a party has the obligation under
    subdivision (g)(1) to make a reasonable inquiry into the facts of
    the case. The rule does not demand an exhaustive investigation at
    this stage of the case, but one that is reasonable under the
    circumstances, focusing on the facts that are alleged with
    particularity in the pleadings. The type of investigation that can
    be expected at this point will vary based upon such factors as the
    number and complexity of the issues; the location, nature, number,
    and availability of potentially relevant witnesses and documents;
    the extent of past working relationships between the attorney and
    the client, particularly in handling related or similar litigation;
    and of course how long the party has to conduct an investigation,
    either before or after filing of the case. As provided in the last
    sentence of subdivision (a)(1), a party is not excused from the
    duty of disclosure merely because its investigation is incomplete.
    The party should make its initial disclosures based on the
    pleadings and the information then reasonably available to it. As
    its investigation continues and as the issues in the pleadings are
    clarified, it should supplement its disclosures as required by
    subdivision (e)(1). A party is not relieved from its obligation of
    disclosure merely because another party has not made its
    disclosures or has made an inadequate disclosure.
      It will often be desirable, particularly if the claims made in
    the complaint are broadly stated, for the parties to have their
    Rule 26(f) meeting early in the case, perhaps before a defendant
    has answered the complaint or had time to conduct other than a
    cursory investigation. In such circumstances, in order to
    facilitate more meaningful and useful initial disclosures, they can
    and should stipulate to a period of more than 10 days after the
    meeting in which to make these disclosures, at least for defendants
    who had no advance notice of the potential litigation. A
    stipulation at an early meeting affording such a defendant at least
    60 days after receiving the complaint in which to make its
    disclosures under subdivision (a)(1) - a period that is two weeks
    longer than the time formerly specified for responding to
    interrogatories served with a complaint - should be adequate and
    appropriate in most cases.
      Paragraph (2). This paragraph imposes an additional duty to
    disclose information regarding expert testimony sufficiently in
    advance of trial that opposing parties have a reasonable
    opportunity to prepare for effective cross examination and perhaps
    arrange for expert testimony from other witnesses. Normally the
    court should prescribe a time for these disclosures in a scheduling
    order under Rule 16(b), and in most cases the party with the burden
    of proof on an issue should disclose its expert testimony on that
    issue before other parties are required to make their disclosures
    with respect to that issue. In the absence of such a direction, the
    disclosures are to be made by all parties at least 90 days before
    the trial date or the date by which the case is to be ready for
    trial, except that an additional 30 days is allowed (unless the
    court specifies another time) for disclosure of expert testimony to
    be used solely to contradict or rebut the testimony that may be
    presented by another party's expert. For a discussion of procedures
    that have been used to enhance the reliability of expert testimony,
    see M. Graham, Expert Witness Testimony and the Federal Rules of
    Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U.
    Ill. L. Rev. 90.
      Paragraph (2)(B) requires that persons retained or specially
    employed to provide expert testimony, or whose duties as an
    employee of the party regularly involve the giving of expert
    testimony, must prepare a detailed and complete written report,
    stating the testimony the witness is expected to present during
    direct examination, together with the reasons therefor. The
    information disclosed under the former rule in answering
    interrogatories about the "substance" of expert testimony was
    frequently so sketchy and vague that it rarely dispensed with the
    need to depose the expert and often was even of little help in
    preparing for a deposition of the witness. Revised Rule 37(c)(1)
    provides an incentive for full disclosure; namely, that a party
    will not ordinarily be permitted to use on direct examination any
    expert testimony not so disclosed. Rule 26(a)(2)(B) does not
    preclude counsel from providing assistance to experts in preparing
    the reports, and indeed, with experts such as automobile mechanics,
    this assistance may be needed. Nevertheless, the report, which is
    intended to set forth the substance of the direct examination,
    should be written in a manner that reflects the testimony to be
    given by the witness and it must be signed by the witness.
      The report is to disclose the data and other information
    considered by the expert and any exhibits or charts that summarize
    or support the expert's opinions. Given this obligation of
    disclosure, litigants should no longer be able to argue that
    materials furnished to their experts to be used in forming their
    opinions - whether or not ultimately relied upon by the expert -
    are privileged or otherwise protected from disclosure when such
    persons are testifying or being deposed.
      Revised subdivision (b)(4)(A) authorizes the deposition of expert
    witnesses. Since depositions of experts required to prepare a
    written report may be taken only after the report has been served,
    the length of the deposition of such experts should be reduced, and
    in many cases the report may eliminate the need for a deposition.
    Revised subdivision (e)(1) requires disclosure of any material
    changes made in the opinions of an expert from whom a report is
    required, whether the changes are in the written report or in
    testimony given at a deposition.
      For convenience, this rule and revised Rule 30 continue to use
    the term "expert" to refer to those persons who will testify under
    Rule 702 of the Federal Rules of Evidence with respect to
    scientific, technical, and other specialized matters. The
    requirement of a written report in paragraph (2)(B), however,
    applies only to those experts who are retained or specially
    employed to provide such testimony in the case or whose duties as
    an employee of a party regularly involve the giving of such
    testimony. A treating physician, for example, can be deposed or
    called to testify at trial without any requirement for a written
    report. By local rule, order, or written stipulation, the
    requirement of a written report may be waived for particular
    experts or imposed upon additional persons who will provide
    opinions under Rule 702.
      Paragraph (3). This paragraph imposes an additional duty to
    disclose, without any request, information customarily needed in
    final preparation for trial. These disclosures are to be made in
    accordance with schedules adopted by the court under Rule 16(b) or
    by special order. If no such schedule is directed by the court, the
    disclosures are to be made at least 30 days before commencement of
    the trial. By its terms, rule 26(a)(3) does not require disclosure
    of evidence to be used solely for impeachment purposes; however,
    disclosure of such evidence - as well as other items relating to
    conduct of trial - may be required by local rule or a pretrial
    order.
      Subparagraph (A) requires the parties to designate the persons
    whose testimony they may present as substantive evidence at trial,
    whether in person or by deposition. Those who will probably be
    called as witnesses should be listed separately from those who are
    not likely to be called but who are being listed in order to
    preserve the right to do so if needed because of developments
    during trial. Revised Rule 37(c)(1) provides that only persons so
    listed may be used at trial to present substantive evidence. This
    restriction does not apply unless the omission was "without
    substantial justification" and hence would not bar an unlisted
    witness if the need for such testimony is based upon developments
    during trial that could not reasonably have been anticipated -
    e.g., a change of testimony.
      Listing a witness does not obligate the party to secure the
    attendance of the person at trial, but should preclude the party
    from objecting if the person is called to testify by another party
    who did not list the person as a witness.
      Subparagraph (B) requires the party to indicate which of these
    potential witnesses will be presented by deposition at trial. A
    party expecting to use at trial a deposition not recorded by
    stenographic means is required by revised Rule 32 to provide the
    court with a transcript of the pertinent portions of such
    depositions. This rule requires that copies of the transcript of a
    nonstenographic deposition be provided to other parties in advance
    of trial for verification, an obvious concern since counsel often
    utilize their own personnel to prepare transcripts from audio or
    video tapes. By order or local rule, the court may require that
    parties designate the particular portions of stenographic
    depositions to be used at trial.
      Subparagraph (C) requires disclosure of exhibits, including
    summaries (whether to be offered in lieu of other documentary
    evidence or to be used as an aid in understanding such evidence),
    that may be offered as substantive evidence. The rule requires a
    separate listing of each such exhibit, though it should permit
    voluminous items of a similar or standardized character to be
    described by meaningful categories. For example, unless the court
    has otherwise directed, a series of vouchers might be shown
    collectively as a single exhibit with their starting and ending
    dates. As with witnesses, the exhibits that will probably be
    offered are to be listed separately from those which are unlikely
    to be offered but which are listed in order to preserve the right
    to do so if needed because of developments during trial. Under
    revised Rule 37(c)(1) the court can permit use of unlisted
    documents the need for which could not reasonably have been
    anticipated in advance of trial.
      Upon receipt of these final pretrial disclosures, other parties
    have 14 days (unless a different time is specified by the court) to
    disclose any objections they wish to preserve to the usability of
    the deposition testimony or to the admissibility of the documentary
    evidence (other than under Rules 402 and 403 of the Federal Rules
    of Evidence). Similar provisions have become commonplace either in
    pretrial orders or by local rules, and significantly expedite the
    presentation of evidence at trial, as well as eliminate the need to
    have available witnesses to provide "foundation" testimony for most
    items of documentary evidence. The listing of a potential objection
    does not constitute the making of that objection or require the
    court to rule on the objection; rather, it preserves the right of
    the party to make the objection when and as appropriate during
    trial. The court may, however, elect to treat the listing as a
    motion "in limine" and rule upon the objections in advance of trial
    to the extent appropriate.
      The time specified in the rule for the final pretrial disclosures
    is relatively close to the trial date. The objective is to
    eliminate the time and expense in making these disclosures of
    evidence and objections in those cases that settle shortly before
    trial, while affording a reasonable time for final preparation for
    trial in those cases that do not settle. In many cases, it will be
    desirable for the court in a scheduling or pretrial order to set an
    earlier time for disclosures of evidence and provide more time for
    disclosing potential objections.
      Paragraph (4). This paragraph prescribes the form of disclosures.
    A signed written statement is required, reminding the parties and
    counsel of the solemnity of the obligations imposed; and the
    signature on the initial or pretrial disclosure is a certification
    under subdivision (g)(1) that it is complete and correct as of the
    time when made. Consistent with Rule 5(d), these disclosures are to
    be filed with the court unless otherwise directed. It is
    anticipated that many courts will direct that expert reports
    required under paragraph (2)(B) not be filed until needed in
    connection with a motion or for trial.
      Paragraph (5). This paragraph is revised to take note of the
    availability of revised Rule 45 for inspection from non-parties of
    documents and premises without the need for a deposition.
      Subdivision (b). This subdivision is revised in several respects.
    First, former paragraph (1) is subdivided into two paragraphs for
    ease of reference and to avoid renumbering of paragraphs (3) and
    (4). Textual changes are then made in new paragraph (2) to enable
    the court to keep tighter rein on the extent of discovery. The
    information explosion of recent decades has greatly increased both
    the potential cost of wide-ranging discovery and the potential for
    discovery to be used as an instrument for delay or oppression.
    Amendments to Rules 30, 31, and 33 place presumptive limits on the
    number of depositions and interrogatories, subject to leave of
    court to pursue additional discovery. The revisions in Rule
    26(b)(2) are intended to provide the court with broader discretion
    to impose additional restrictions on the scope and extent of
    discovery and to authorize courts that develop case tracking
    systems based on the complexity of cases to increase or decrease by
    local rule the presumptive number of depositions and
    interrogatories allowed in particular types or classifications of
    cases. The revision also dispels any doubt as to the power of the
    court to impose limitations on the length of depositions under Rule
    30 or on the number of requests for admission under Rule 36.
      Second, former paragraph (2), relating to insurance, has been
    relocated as part of the required initial disclosures under
    subdivision (a)(1)(D), and revised to provide for disclosure of the
    policy itself.
      Third, paragraph (4)(A) is revised to provide that experts who
    are expected to be witnesses will be subject to deposition prior to
    trial, conforming the norm stated in the rule to the actual
    practice followed in most courts, in which depositions of experts
    have become standard. Concerns regarding the expense of such
    depositions should be mitigated by the fact that the expert's fees
    for the deposition will ordinarily be borne by the party taking the
    deposition. The requirement under subdivision (a)(2)(B) of a
    complete and detailed report of the expected testimony of certain
    forensic experts may, moreover, eliminate the need for some such
    depositions or at least reduce the length of the depositions.
    Accordingly, the deposition of an expert required by subdivision
    (a)(2)(B) to provide a written report may be taken only after the
    report has been served.
      Paragraph (4)(C), bearing on compensation of experts, is revised
    to take account of the changes in paragraph (4)(A).
      Paragraph (5) is a new provision. A party must notify other
    parties if it is withholding materials otherwise subject to
    disclosure under the rule or pursuant to a discovery request
    because it is asserting a claim of privilege or work product
    protection. To withhold materials without such notice is contrary
    to the rule, subjects the party to sanctions under Rule 37(b)(2),
    and may be viewed as a waiver of the privilege or protection.
      The party must also provide sufficient information to enable
    other parties to evaluate the applicability of the claimed
    privilege or protection. Although the person from whom the
    discovery is sought decides whether to claim a privilege or
    protection, the court ultimately decides whether, if this claim is
    challenged, the privilege or protection applies. Providing
    information pertinent to the applicability of the privilege or
    protection should reduce the need for in camera examination of the
    documents.
      The rule does not attempt to define for each case what
    information must be provided when a party asserts a claim of
    privilege or work product protection. Details concerning time,
    persons, general subject matter, etc., may be appropriate if only a
    few items are withheld, but may be unduly burdensome when
    voluminous documents are claimed to be privileged or protected,
    particularly if the items can be described by categories. A party
    can seek relief through a protective order under subdivision (c) if
    compliance with the requirement for providing this information
    would be an unreasonable burden. In rare circumstances some of the
    pertinent information affecting applicability of the claim, such as
    the identity of the client, may itself be privileged; the rule
    provides that such information need not be disclosed.
      The obligation to provide pertinent information concerning
    withheld privileged materials applies only to items "otherwise
    discoverable." If a broad discovery request is made - for example,
    for all documents of a particular type during a twenty year period
    - and the responding party believes in good faith that production
    of documents for more than the past three years would be unduly
    burdensome, it should make its objection to the breadth of the
    request and, with respect to the documents generated in that three
    year period, produce the unprivileged documents and describe those
    withheld under the claim of privilege. If the court later rules
    that documents for a seven year period are properly discoverable,
    the documents for the additional four years should then be either
    produced (if not privileged) or described (if claimed to be
    privileged).
      Subdivision (c). The revision requires that before filing a
    motion for a protective order the movant must confer - either in
    person or by telephone - with the other affected parties in a good
    faith effort to resolve the discovery dispute without the need for
    court intervention. If the movant is unable to get opposing parties
    even to discuss the matter, the efforts in attempting to arrange
    such a conference should be indicated in the certificate.
      Subdivision (d). This subdivision is revised to provide that
    formal discovery - as distinguished from interviews of potential
    witnesses and other informal discovery - not commence until the
    parties have met and conferred as required by subdivision (f).
    Discovery can begin earlier if authorized under Rule 30(a)(2)(C)
    (deposition of person about to leave the country) or by local rule,
    order, or stipulation. This will be appropriate in some cases, such
    as those involving requests for a preliminary injunction or motions
    challenging personal jurisdiction. If a local rule exempts any
    types of cases in which discovery may be needed from the
    requirement of a meeting under Rule 26(f), it should specify when
    discovery may commence in those cases.
      The meeting of counsel is to take place as soon as practicable
    and in any event at least 14 days before the date of the scheduling
    conference under Rule 16(b) or the date a scheduling order is due
    under Rule 16(b). The court can assure that discovery is not unduly
    delayed either by entering a special order or by setting the case
    for a scheduling conference.
      Subdivision (e). This subdivision is revised to provide that the
    requirement for supplementation applies to all disclosures required
    by subdivisions (a)(1)-(3). Like the former rule, the duty, while
    imposed on a "party," applies whether the corrective information is
    learned by the client or by the attorney. Supplementations need not
    be made as each new item of information is learned but should be
    made at appropriate intervals during the discovery period, and with
    special promptness as the trial date approaches. It may be useful
    for the scheduling order to specify the time or times when
    supplementations should be made.
      The revision also clarifies that the obligation to supplement
    responses to formal discovery requests applies to interrogatories,
    requests for production, and requests for admissions, but not
    ordinarily to deposition testimony. However, with respect to
    experts from whom a written report is required under subdivision
    (a)(2)(B), changes in the opinions expressed by the expert whether
    in the report or at a subsequent deposition are subject to a duty
    of supplemental disclosure under subdivision (e)(1).
      The obligation to supplement disclosures and discovery responses
    applies whenever a party learns that its prior disclosures or
    responses are in some material respect incomplete or incorrect.
    There is, however, no obligation to provide supplemental or
    corrective information that has been otherwise made known to the
    parties in writing or during the discovery process, as when a
    witness not previously disclosed is identified during the taking of
    a deposition or when an expert during a deposition corrects
    information contained in an earlier report.
      Subdivision (f). This subdivision was added in 1980 to provide a
    party threatened with abusive discovery with a special means for
    obtaining judicial intervention other than through discrete motions
    under Rules 26(c) and 37(a). The amendment envisioned a two-step
    process: first, the parties would attempt to frame a mutually
    agreeable plan; second, the court would hold a "discovery
    conference" and then enter an order establishing a schedule and
    limitations for the conduct of discovery. It was contemplated that
    the procedure, an elective one triggered on request of a party,
    would be used in special cases rather than as a routine matter. As
    expected, the device has been used only sparingly in most courts,
    and judicial controls over the discovery process have ordinarily
    been imposed through scheduling orders under Rule 16(b) or through
    rulings on discovery motions.
      The provisions relating to a conference with the court are
    removed from subdivision (f). This change does not signal any
    lessening of the importance of judicial supervision. Indeed, there
    is a greater need for early judicial involvement to consider the
    scope and timing of the disclosure requirements of Rule 26(a) and
    the presumptive limits on discovery imposed under these rules or by
    local rules. Rather, the change is made because the provisions
    addressing the use of conferences with the court to control
    discovery are more properly included in Rule 16, which is being
    revised to highlight the court's powers regarding the discovery
    process.
      The desirability of some judicial control of discovery can hardly
    be doubted. Rule 16, as revised, requires that the court set a time
    for completion of discovery and authorizes various other orders
    affecting the scope, timing, and extent of discovery and
    disclosures. Before entering such orders, the court should consider
    the views of the parties, preferably by means of a conference, but
    at the least through written submissions. Moreover, it is desirable
    that the parties' proposals regarding discovery be developed
    through a process where they meet in person, informally explore the
    nature and basis of the issues, and discuss how discovery can be
    conducted most efficiently and economically.
      As noted above, former subdivision (f) envisioned the development
    of proposed discovery plans as an optional procedure to be used in
    relatively few cases. The revised rule directs that in all cases
    not exempted by local rule or special order the litigants must meet
    in person and plan for discovery. Following this meeting, the
    parties submit to the court their proposals for a discovery plan
    and can begin formal discovery. Their report will assist the court
    in seeing that the timing and scope of disclosures under revised
    Rule 26(a) and the limitations on the extent of discovery under
    these rules and local rules are tailored to the circumstances of
    the particular case.
      To assure that the court has the litigants' proposals before
    deciding on a scheduling order and that the commencement of
    discovery is not delayed unduly, the rule provides that the meeting
    of the parties take place as soon as practicable and in any event
    at least 14 days before a scheduling conference is held or before a
    scheduling order is due under Rule 16(b). (Rule 16(b) requires that
    a scheduling order be entered within 90 days after the first
    appearance of a defendant or, if earlier, within 120 days after the
    complaint has been served on any defendant.) The obligation to
    participate in the planning process is imposed on all parties that
    have appeared in the case, including defendants who, because of a
    pending Rule 12 motion, may not have yet filed an answer in the
    case. Each such party should attend the meeting, either through one
    of its attorneys or in person if unrepresented. If more parties are
    joined or appear after the initial meeting, an additional meeting
    may be desirable.
      Subdivision (f) describes certain matters that should be
    accomplished at the meeting and included in the proposed discovery
    plan. This listing does not exclude consideration of other
    subjects, such as the time when any dispositive motions should be
    filed and when the case should be ready for trial.
      The parties are directed under subdivision (a)(1) to make the
    disclosures required by that subdivision at or within 10 days after
    this meeting. In many cases the parties should use the meeting to
    exchange, discuss, and clarify their respective disclosures. In
    other cases, it may be more useful if the disclosures are delayed
    until after the parties have discussed at the meeting the claims
    and defenses in order to define the issues with respect to which
    the initial disclosures should be made. As discussed in the Notes
    to subdivision (a)(1), the parties may also need to consider
    whether a stipulation extending this 10-day period would be
    appropriate, as when a defendant would otherwise have less than 60
    days after being served in which to make its initial disclosure.
    The parties should also discuss at the meeting what additional
    information, although not subject to the disclosure requirements,
    can be made available informally without the necessity for formal
    discovery requests.
      The report is to be submitted to the court within 10 days after
    the meeting and should not be difficult to prepare. In most cases
    counsel should be able to agree that one of them will be
    responsible for its preparation and submission to the court. Form
    35 has been added in the Appendix to the Rules, both to illustrate
    the type of report that is contemplated and to serve as a checklist
    for the meeting.
      The litigants are expected to attempt in good faith to agree on
    the contents of the proposed discovery plan. If they cannot agree
    on all aspects of the plan, their report to the court should
    indicate the competing proposals of the parties on those items, as
    well as the matters on which they agree. Unfortunately, there may
    be cases in which, because of disagreements about time or place or
    for other reasons, the meeting is not attended by all parties or,
    indeed, no meeting takes place. In such situations, the report - or
    reports - should describe the circumstances and the court may need
    to consider sanctions under Rule 37(g).
      By local rule or special order, the court can exempt particular
    cases or types of cases from the meet-and-confer requirement of
    subdivision (f). In general this should include any types of cases
    which are exempted by local rule from the requirement for a
    scheduling order under Rule 16(b), such as cases in which there
    will be no discovery (e.g., bankruptcy appeals and reviews of
    social security determinations). In addition, the court may want to
    exempt cases in which discovery is rarely needed (e.g., government
    collection cases and proceedings to enforce administrative
    summonses) or in which a meeting of the parties might be
    impracticable (e.g., actions by unrepresented prisoners). Note that
    if a court exempts from the requirements for a meeting any types of
    cases in which discovery may be needed, it should indicate when
    discovery may commence in those cases.
      Subdivision (g). Paragraph (1) is added to require signatures on
    disclosures, a requirement that parallels the provisions of
    paragraph (2) with respect to discovery requests, responses, and
    objections. The provisions of paragraph (3) have been modified to
    be consistent with Rules 37(a)(4) and 37(c)(1); in combination,
    these rules establish sanctions for violation of the rules
    regarding disclosures and discovery matters. Amended Rule 11 no
    longer applies to such violations.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Purposes of amendments. The Rule 26(a)(1) initial disclosure
    provisions are amended to establish a nationally uniform practice.
    The scope of the disclosure obligation is narrowed to cover only
    information that the disclosing party may use to support its
    position. In addition, the rule exempts specified categories of
    proceedings from initial disclosure, and permits a party who
    contends that disclosure is not appropriate in the circumstances of
    the case to present its objections to the court, which must then
    determine whether disclosure should be made. Related changes are
    made in Rules 26(d) and (f).
      The initial disclosure requirements added by the 1993 amendments
    permitted local rules directing that disclosure would not be
    required or altering its operation. The inclusion of the "opt out"
    provision reflected the strong opposition to initial disclosure
    felt in some districts, and permitted experimentation with
    differing disclosure rules in those districts that were favorable
    to disclosure. The local option also recognized that - partly in
    response to the first publication in 1991 of a proposed disclosure
    rule - many districts had adopted a variety of disclosure programs
    under the aegis of the Civil Justice Reform Act. It was hoped that
    developing experience under a variety of disclosure systems would
    support eventual refinement of a uniform national disclosure
    practice. In addition, there was hope that local experience could
    identify categories of actions in which disclosure is not useful.
      A striking array of local regimes in fact emerged for disclosure
    and related features introduced in 1993. See D. Stienstra,
    Implementation of Disclosure in United States District Courts, With
    Specific Attention to Courts' Responses to Selected Amendments to
    Federal Rule of Civil Procedure 26 (Federal Judicial Center, March
    30, 1998) (describing and categorizing local regimes). In its final
    report to Congress on the CJRA experience, the Judicial Conference
    recommended reexamination of the need for national uniformity,
    particularly in regard to initial disclosure. Judicial Conference,
    Alternative Proposals for Reduction of Cost and Delay: Assessment
    of Principles, Guidelines and Techniques, 175 F.R.D. 62, 98 (1997).
      At the Committee's request, the Federal Judicial Center undertook
    a survey in 1997 to develop information on current disclosure and
    discovery practices. See T. Willging, J. Shapard, D. Stienstra & D.
    Miletich, Discovery and Disclosure Practice, Problems, and
    Proposals for Change (Federal Judicial Center, 1997). In addition,
    the Committee convened two conferences on discovery involving
    lawyers from around the country and received reports and
    recommendations on possible discovery amendments from a number of
    bar groups. Papers and other proceedings from the second conference
    are published in 39 Boston Col. L. Rev. 517-840 (1998).
      The Committee has discerned widespread support for national
    uniformity. Many lawyers have experienced difficulty in coping with
    divergent disclosure and other practices as they move from one
    district to another. Lawyers surveyed by the Federal Judicial
    Center ranked adoption of a uniform national disclosure rule second
    among proposed rule changes (behind increased availability of
    judges to resolve discovery disputes) as a means to reduce
    litigation expenses without interfering with fair outcomes.
    Discovery and Disclosure Practice, supra, at 44-45. National
    uniformity is also a central purpose of the Rules Enabling Act of
    1934, as amended, 28 U.S.C. Secs. 2072-2077.
      These amendments restore national uniformity to disclosure
    practice. Uniformity is also restored to other aspects of discovery
    by deleting most of the provisions authorizing local rules that
    vary the number of permitted discovery events or the length of
    depositions. Local rule options are also deleted from Rules 26(d)
    and (f).
      Subdivision (a)(1). The amendments remove the authority to alter
    or opt out of the national disclosure requirements by local rule,
    invalidating not only formal local rules but also informal
    "standing" orders of an individual judge or court that purport to
    create exemptions from - or limit or expand - the disclosure
    provided under the national rule. See Rule 83. Case-specific orders
    remain proper, however, and are expressly required if a party
    objects that initial disclosure is not appropriate in the
    circumstances of the action. Specified categories of proceedings
    are excluded from initial disclosure under subdivision (a)(1)(E).
    In addition, the parties can stipulate to forgo disclosure, as was
    true before. But even in a case excluded by subdivision (a)(1)(E)
    or in which the parties stipulate to bypass disclosure, the court
    can order exchange of similar information in managing the action
    under Rule 16.
      The initial disclosure obligation of subdivisions (a)(1)(A) and
    (B) has been narrowed to identification of witnesses and documents
    that the disclosing party may use to support its claims or
    defenses. "Use" includes any use at a pretrial conference, to
    support a motion, or at trial. The disclosure obligation is also
    triggered by intended use in discovery, apart from use to respond
    to a discovery request; use of a document to question a witness
    during a deposition is a common example. The disclosure obligation
    attaches both to witnesses and documents a party intends to use and
    also to witnesses and to documents the party intends to use if - in
    the language of Rule 26(a)(3) - "the need arises."
      A party is no longer obligated to disclose witnesses or
    documents, whether favorable or unfavorable, that it does not
    intend to use. The obligation to disclose information the party may
    use connects directly to the exclusion sanction of Rule 37(c)(1).
    Because the disclosure obligation is limited to material that the
    party may use, it is no longer tied to particularized allegations
    in the pleadings. Subdivision (e)(1), which is unchanged, requires
    supplementation if information later acquired would have been
    subject to the disclosure requirement. As case preparation
    continues, a party must supplement its disclosures when it
    determines that it may use a witness or document that it did not
    previously intend to use.
      The disclosure obligation applies to "claims and defenses," and
    therefore requires a party to disclose information it may use to
    support its denial or rebuttal of the allegations, claim, or
    defense of another party. It thereby bolsters the requirements of
    Rule 11(b)(4), which authorizes denials "warranted on the
    evidence," and disclosure should include the identity of any
    witness or document that the disclosing party may use to support
    such denials.
      Subdivision (a)(3) presently excuses pretrial disclosure of
    information solely for impeachment. Impeachment information is
    similarly excluded from the initial disclosure requirement.
      Subdivisions (a)(1)(C) and (D) are not changed. Should a case be
    exempted from initial disclosure by Rule 26(a)(1)(E) or by
    agreement or order, the insurance information described by
    subparagraph (D) should be subject to discovery, as it would have
    been under the principles of former Rule 26(b)(2), which was added
    in 1970 and deleted in 1993 as redundant in light of the new
    initial disclosure obligation.
      New subdivision (a)(1)(E) excludes eight specified categories of
    proceedings from initial disclosure. The objective of this listing
    is to identify cases in which there is likely to be little or no
    discovery, or in which initial disclosure appears unlikely to
    contribute to the effective development of the case. The list was
    developed after a review of the categories excluded by local rules
    in various districts from the operation of Rule 16(b) and the
    conference requirements of subdivision (f). Subdivision (a)(1)(E)
    refers to categories of "proceedings" rather than categories of
    "actions" because some might not properly be labeled "actions."
    Case designations made by the parties or the clerk's office at the
    time of filing do not control application of the exemptions. The
    descriptions in the rule are generic and are intended to be
    administered by the parties - and, when needed, the courts - with
    the flexibility needed to adapt to gradual evolution in the types
    of proceedings that fall within these general categories. The
    exclusion of an action for review on an administrative record, for
    example, is intended to reach a proceeding that is framed as an
    "appeal" based solely on an administrative record. The exclusion
    should not apply to a proceeding in a form that commonly permits
    admission of new evidence to supplement the record. Item (vii),
    excluding a proceeding ancillary to proceedings in other courts,
    does not refer to bankruptcy proceedings; application of the Civil
    Rules to bankruptcy proceedings is determined by the Bankruptcy
    Rules.
      Subdivision (a)(1)(E) is likely to exempt a substantial
    proportion of the cases in most districts from the initial
    disclosure requirement. Based on 1996 and 1997 case filing
    statistics, Federal Judicial Center staff estimate that,
    nationwide, these categories total approximately one-third of all
    civil filings.
      The categories of proceedings listed in subdivision (a)(1)(E) are
    also exempted from the subdivision (f) conference requirement and
    from the subdivision (d) moratorium on discovery. Although there is
    no restriction on commencement of discovery in these cases, it is
    not expected that this opportunity will often lead to abuse since
    there is likely to be little or no discovery in most such cases.
    Should a defendant need more time to respond to discovery requests
    filed at the beginning of an exempted action, it can seek relief by
    motion under Rule 26(c) if the plaintiff is unwilling to defer the
    due date by agreement.
      Subdivision (a)(1)(E)'s enumeration of exempt categories is
    exclusive. Although a case-specific order can alter or excuse
    initial disclosure, local rules or "standing" orders that purport
    to create general exemptions are invalid. See Rule 83.
      The time for initial disclosure is extended to 14 days after the
    subdivision (f) conference unless the court orders otherwise. This
    change is integrated with corresponding changes requiring that the
    subdivision (f) conference be held 21 days before the Rule 16(b)
    scheduling conference or scheduling order, and that the report on
    the subdivision (f) conference be submitted to the court 14 days
    after the meeting. These changes provide a more orderly opportunity
    for the parties to review the disclosures, and for the court to
    consider the report. In many instances, the subdivision (f)
    conference and the effective preparation of the case would benefit
    from disclosure before the conference, and earlier disclosure is
    encouraged.
      The presumptive disclosure date does not apply if a party objects
    to initial disclosure during the subdivision (f) conference and
    states its objection in the subdivision (f) discovery plan. The
    right to object to initial disclosure is not intended to afford
    parties an opportunity to "opt out" of disclosure unilaterally. It
    does provide an opportunity for an objecting party to present to
    the court its position that disclosure would be "inappropriate in
    the circumstances of the action." Making the objection permits the
    objecting party to present the question to the judge before any
    party is required to make disclosure. The court must then rule on
    the objection and determine what disclosures - if any - should be
    made. Ordinarily, this determination would be included in the Rule
    16(b) scheduling order, but the court could handle the matter in a
    different fashion. Even when circumstances warrant suspending some
    disclosure obligations, others - such as the damages and insurance
    information called for by subdivisions (a)(1)(C) and (D) - may
    continue to be appropriate.
      The presumptive disclosure date is also inapplicable to a party
    who is "first served or otherwise joined" after the subdivision (f)
    conference. This phrase refers to the date of service of a claim on
    a party in a defensive posture (such as a defendant or third-party
    defendant), and the date of joinder of a party added as a claimant
    or an intervenor. Absent court order or stipulation, a new party
    has 30 days in which to make its initial disclosures. But it is
    expected that later-added parties will ordinarily be treated the
    same as the original parties when the original parties have
    stipulated to forgo initial disclosure, or the court has ordered
    disclosure in a modified form.
      Subdivision (a)(3). The amendment to Rule 5(d) forbids filing
    disclosures under subdivisions (a)(1) and (a)(2) until they are
    used in the proceeding, and this change is reflected in an
    amendment to subdivision (a)(4). Disclosures under subdivision
    (a)(3), however, may be important to the court in connection with
    the final pretrial conference or otherwise in preparing for trial.
    The requirement that objections to certain matters be filed points
    up the court's need to be provided with these materials.
    Accordingly, the requirement that subdivision (a)(3) materials be
    filed has been moved from subdivision (a)(4) to subdivision (a)(3),
    and it has also been made clear that they - and any objections -
    should be filed "promptly."
      Subdivision (a)(4). The filing requirement has been removed from
    this subdivision. Rule 5(d) has been amended to provide that
    disclosures under subdivisions (a)(1) and (a)(2) must not be filed
    until used in the proceeding. Subdivision (a)(3) has been amended
    to require that the disclosures it directs, and objections to them,
    be filed promptly. Subdivision (a)(4) continues to require that all
    disclosures under subdivisions (a)(1), (a)(2), and (a)(3) be in
    writing, signed, and served.
      "Shall" is replaced by "must" under the program to conform
    amended rules to current style conventions when there is no
    ambiguity.
      Subdivision (b)(1). In 1978, the Committee published for comment
    a proposed amendment, suggested by the Section of Litigation of the
    American Bar Association, to refine the scope of discovery by
    deleting the "subject matter" language. This proposal was
    withdrawn, and the Committee has since then made other changes in
    the discovery rules to address concerns about overbroad discovery.
    Concerns about costs and delay of discovery have persisted
    nonetheless, and other bar groups have repeatedly renewed similar
    proposals for amendment to this subdivision to delete the "subject
    matter" language. Nearly one-third of the lawyers surveyed in 1997
    by the Federal Judicial Center endorsed narrowing the scope of
    discovery as a means of reducing litigation expense without
    interfering with fair case resolutions. Discovery and Disclosure
    Practice, supra, at 44-45 (1997). The Committee has heard that in
    some instances, particularly cases involving large quantities of
    discovery, parties seek to justify discovery requests that sweep
    far beyond the claims and defenses of the parties on the ground
    that they nevertheless have a bearing on the "subject matter"
    involved in the action.
      The amendments proposed for subdivision (b)(1) include one
    element of these earlier proposals but also differ from these
    proposals in significant ways. The similarity is that the
    amendments describe the scope of party-controlled discovery in
    terms of matter relevant to the claim or defense of any party. The
    court, however, retains authority to order discovery of any matter
    relevant to the subject matter involved in the action for good
    cause. The amendment is designed to involve the court more actively
    in regulating the breadth of sweeping or contentious discovery. The
    Committee has been informed repeatedly by lawyers that involvement
    of the court in managing discovery is an important method of
    controlling problems of inappropriately broad discovery. Increasing
    the availability of judicial officers to resolve discovery disputes
    and increasing court management of discovery were both strongly
    endorsed by the attorneys surveyed by the Federal Judicial Center.
    See Discovery and Disclosure Practice, supra, at 44. Under the
    amended provisions, if there is an objection that discovery goes
    beyond material relevant to the parties' claims or defenses, the
    court would become involved to determine whether the discovery is
    relevant to the claims or defenses and, if not, whether good cause
    exists for authorizing it so long as it is relevant to the subject
    matter of the action. The good-cause standard warranting broader
    discovery is meant to be flexible.
      The Committee intends that the parties and the court focus on the
    actual claims and defenses involved in the action. The dividing
    line between information relevant to the claims and defenses and
    that relevant only to the subject matter of the action cannot be
    defined with precision. A variety of types of information not
    directly pertinent to the incident in suit could be relevant to the
    claims or defenses raised in a given action. For example, other
    incidents of the same type, or involving the same product, could be
    properly discoverable under the revised standard. Information about
    organizational arrangements or filing systems of a party could be
    discoverable if likely to yield or lead to the discovery of
    admissible information. Similarly, information that could be used
    to impeach a likely witness, although not otherwise relevant to the
    claims or defenses, might be properly discoverable. In each
    instance, the determination whether such information is
    discoverable because it is relevant to the claims or defenses
    depends on the circumstances of the pending action.
      The rule change signals to the court that it has the authority to
    confine discovery to the claims and defenses asserted in the
    pleadings, and signals to the parties that they have no entitlement
    to discovery to develop new claims or defenses that are not already
    identified in the pleadings. In general, it is hoped that
    reasonable lawyers can cooperate to manage discovery without the
    need for judicial intervention. When judicial intervention is
    invoked, the actual scope of discovery should be determined
    according to the reasonable needs of the action. The court may
    permit broader discovery in a particular case depending on the
    circumstances of the case, the nature of the claims and defenses,
    and the scope of the discovery requested.
      The amendments also modify the provision regarding discovery of
    information not admissible in evidence. As added in 1946, this
    sentence was designed to make clear that otherwise relevant
    material could not be withheld because it was hearsay or otherwise
    inadmissible. The Committee was concerned that the "reasonably
    calculated to lead to the discovery of admissible evidence"
    standard set forth in this sentence might swallow any other
    limitation on the scope of discovery. Accordingly, this sentence
    has been amended to clarify that information must be relevant to be
    discoverable, even though inadmissible, and that discovery of such
    material is permitted if reasonably calculated to lead to the
    discovery of admissible evidence. As used here, "relevant" means
    within the scope of discovery as defined in this subdivision, and
    it would include information relevant to the subject matter
    involved in the action if the court has ordered discovery to that
    limit based on a showing of good cause.
      Finally, a sentence has been added calling attention to the
    limitations of subdivision (b)(2)(i), (ii), and (iii). These
    limitations apply to discovery that is otherwise within the scope
    of subdivision (b)(1). The Committee has been told repeatedly that
    courts have not implemented these limitations with the vigor that
    was contemplated. See 8 Federal Practice & Procedure Sec. 2008.1 at
    121. This otherwise redundant cross-reference has been added to
    emphasize the need for active judicial use of subdivision (b)(2) to
    control excessive discovery. Cf. Crawford-El v. Britton, 118 S. Ct.
    1584, 1597 (1998) (quoting Rule 26(b)(2)(iii) and stating that
    "Rule 26 vests the trial judge with broad discretion to tailor
    discovery narrowly").
      Subdivision (b)(2). Rules 30, 31, and 33 establish presumptive
    national limits on the numbers of depositions and interrogatories.
    New Rule 30(d)(2) establishes a presumptive limit on the length of
    depositions. Subdivision (b)(2) is amended to remove the previous
    permission for local rules that establish different presumptive
    limits on these discovery activities. There is no reason to believe
    that unique circumstances justify varying these
    nationally-applicable presumptive limits in certain districts. The
    limits can be modified by court order or agreement in an individual
    action, but "standing" orders imposing different presumptive limits
    are not authorized. Because there is no national rule limiting the
    number of Rule 36 requests for admissions, the rule continues to
    authorize local rules that impose numerical limits on them. This
    change is not intended to interfere with differentiated case
    management in districts that use this technique by case-specific
    order as part of their Rule 16 process.
      Subdivision (d). The amendments remove the prior authority to
    exempt cases by local rule from the moratorium on discovery before
    the subdivision (f) conference, but the categories of proceedings
    exempted from initial disclosure under subdivision (a)(1)(E) are
    excluded from subdivision (d). The parties may agree to disregard
    the moratorium where it applies, and the court may so order in a
    case, but "standing" orders altering the moratorium are not
    authorized.
      Subdivision (f). As in subdivision (d), the amendments remove the
    prior authority to exempt cases by local rule from the conference
    requirement. The Committee has been informed that the addition of
    the conference was one of the most successful changes made in the
    1993 amendments, and it therefore has determined to apply the
    conference requirement nationwide. The categories of proceedings
    exempted from initial disclosure under subdivision (a)(1)(E) are
    exempted from the conference requirement for the reasons that
    warrant exclusion from initial disclosure. The court may order that
    the conference need not occur in a case where otherwise required,
    or that it occur in a case otherwise exempted by subdivision
    (a)(1)(E). "Standing" orders altering the conference requirement
    for categories of cases are not authorized.
      The rule is amended to require only a "conference" of the
    parties, rather than a "meeting." There are important benefits to
    face-to-face discussion of the topics to be covered in the
    conference, and those benefits may be lost if other means of
    conferring were routinely used when face-to-face meetings would not
    impose burdens. Nevertheless, geographic conditions in some
    districts may exact costs far out of proportion to these benefits.
    The amendment allows the court by case-specific order to require a
    face-to-face meeting, but "standing" orders so requiring are not
    authorized.
      As noted concerning the amendments to subdivision (a)(1), the
    time for the conference has been changed to at least 21 days before
    the Rule 16 scheduling conference, and the time for the report is
    changed to no more than 14 days after the Rule 26(f) conference.
    This should ensure that the court will have the report well in
    advance of the scheduling conference or the entry of the scheduling
    order.
      Since Rule 16 was amended in 1983 to mandate some case management
    activities in all courts, it has included deadlines for completing
    these tasks to ensure that all courts do so within a reasonable
    time. Rule 26(f) was fit into this scheme when it was adopted in
    1993. It was never intended, however, that the national
    requirements that certain activities be completed by a certain time
    should delay case management in districts that move much faster
    than the national rules direct, and the rule is therefore amended
    to permit such a court to adopt a local rule that shortens the
    period specified for the completion of these tasks.
      "Shall" is replaced by "must," "does," or an active verb under
    the program to conform amended rules to current style conventions
    when there is no ambiguity.
      GAP Report. The Advisory Committee recommends that the amendments
    to Rules 26(a)(1)(A) and (B) be changed so that initial disclosure
    applies to information the disclosing party "may use to support"
    its claims or defenses. It also recommends changes in the Committee
    Note to explain that disclosure requirement. In addition, it
    recommends inclusion in the Note of further explanatory matter
    regarding the exclusion from initial disclosure provided in new
    Rule 26(a)(1)(E) for actions for review on an administrative record
    and the impact of these exclusions on bankruptcy proceedings. Minor
    wording improvements in the Note are also proposed.
      The Advisory Committee recommends changing the rule to authorize
    the court to expand discovery to any "matter" - not "information" -
    relevant to the subject matter involved in the action. In addition,
    it recommends additional clarifying material in the Committee Note
    about the impact of the change on some commonly disputed discovery
    topics, the relationship between cost-bearing under Rule 26(b)(2)
    and expansion of the scope of discovery on a showing of good cause,
    and the meaning of "relevant" in the revision to the last sentence
    of current subdivision (b)(1). In addition, some minor
    clarifications of language changes have been proposed for the
    Committee Note.
      The Advisory Committee recommends adding a sentence to the
    published amendments to Rule 26(f) authorizing local rules
    shortening the time between the attorney conference and the court's
    action under Rule 16(b), and addition to the Committee Note of
    explanatory material about this change to the rule. This addition
    can be made without republication in response to public comments.

-End-



-CITE-
    28 USC APPENDIX Rule 27                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 27. Depositions Before Action or Pending Appeal

-STATUTE-
      (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.

-SOURCE-
    (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.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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 (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) Secs. 666-670; Calif.Code Civ.Proc.
    (Deering, 1937) 2083-2089; Ill.Rev.Stat. (1937) ch. 51, Secs.
    39-46; Iowa Code (1935) Secs. 11400-11407; 2 Mass.Gen.Laws
    (Ter.Ed., 1932) ch. 233, Sec. 46-63; N.Y.C.P.A. (1937) Sec. 295;
    Ohio Gen.Code Ann. ((Throckmorton, 1936) Sec. 12216-12222; Va.Code
    Ann. (Michie, 1936) Sec. 6235; Wisc.Stat. (1935) Secs.
    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 (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] Sec. 644 (Depositions under dedimus potestatem and in
    perpetuam) as an alternate method.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The only changes are in nomenclature to conform to the official
    designation of a district court in Title 28, U.S.C., Sec. 132(a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 28                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 28. Persons Before Whom Depositions May Be Taken

-STATUTE-
      (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. Depositions may be taken in a foreign
    country (1) pursuant to any applicable treaty or convention, or (2)
    pursuant to a letter of request (whether or not captioned a letter
    rogatory), or (3) on notice before a person authorized to
    administer oaths in the place where the examination is held, either
    by the law thereof or by the law of the United States, or (4)
    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. A commission or a
    letter of request 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 of request that the taking of
    the deposition in any other manner is impracticable or
    inconvenient; and both a commission and a letter of request 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 of request may be addressed "To the
    Appropriate Authority in [here name the country]." When a letter of
    request or any other device is used pursuant to any applicable
    treaty or convention, it shall be captioned in the form prescribed
    by that treaty or convention. Evidence obtained in response to a
    letter of request need not be excluded merely because it is not a
    verbatim transcript, because the testimony was not taken under
    oath, or because of any similar departure from the requirements for
    depositions taken within the United States 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      In effect this rule is substantially the same as U.S.C., Title
    28, [former] Sec. 639 (Depositions de bene esse; when and where
    taken; notice). U.S.C., Title 28, [former] Sec. 642 (Depositions,
    acknowledgements, and affidavits taken by notaries public) does not
    conflict with subdivision (a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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 &#182;&#182; 28.05-28.08 (2d ed. 1950).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      The amendments are clarifying.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This revision is intended to make effective use of the Hague
    Convention on the Taking of Evidence Abroad in Civil or Commercial
    Matters, and of any similar treaties that the United States may
    enter into in the future which provide procedures for taking
    depositions abroad. The party taking the deposition is ordinarily
    obliged to conform to an applicable treaty or convention if an
    effective deposition can be taken by such internationally approved
    means, even though a verbatim transcript is not available or
    testimony cannot be taken under oath. For a discussion of the
    impact of such treaties upon the discovery process, and of the
    application of principles of comity upon discovery in countries not
    signatories to a convention, see Socie&233;te&233; Nationale
    Industrielle Ae&233;rospatiale v. United States District Court, 482
    U.S. 522 (1987).
      The term "letter of request" has been substituted in the rule for
    the term "letter rogatory" because it is the primary method
    provided by the Hague Convention. A letter rogatory is essentially
    a form of letter of request. There are several other minor changes
    that are designed merely to carry out the intent of the other
    alterations.

-End-



-CITE-
    28 USC APPENDIX Rule 29                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 29. Stipulations Regarding Discovery Procedure

-STATUTE-
      Unless otherwise directed by the court, 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 other procedures governing or limitations placed
    upon discovery, except that stipulations extending the time
    provided in Rules 33, 34, and 36 for responses to discovery may, if
    they would interfere with any time set for completion of discovery,
    for hearing of a motion, or for trial, be made only with the
    approval of the court.

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970; Apr. 22, 1993, eff.
    Dec. 1, 1993.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This rule is revised to give greater opportunity for litigants to
    agree upon modifications to the procedures governing discovery or
    to limitations upon discovery. Counsel are encouraged to agree on
    less expensive and time-consuming methods to obtain information, as
    through voluntary exchange of documents, use of interviews in lieu
    of depositions, etc. Likewise, when more depositions or
    interrogatories are needed than allowed under these rules or when
    more time is needed to complete a deposition than allowed under a
    local rule, they can, by agreeing to the additional discovery,
    eliminate the need for a special motion addressed to the court.
      Under the revised rule, the litigants ordinarily are not required
    to obtain the court's approval of these stipulations. By order or
    local rule, the court can, however, direct that its approval be
    obtained for particular types of stipulations; and, in any event,
    approval must be obtained if a stipulation to extend the 30-day
    period for responding to interrogatories, requests for production,
    or requests for admissions would interfere with dates set by the
    court for completing discovery, for hearing of a motion, or for
    trial.

-End-



-CITE-
    28 USC APPENDIX Rule 30                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 30. Depositions Upon Oral Examination

-STATUTE-
      (a) When Depositions May Be Taken; When Leave Required.
        (1) A party may take the testimony of any person, including a
      party, by deposition upon oral examination without leave of court
      except as provided in paragraph (2). The attendance of witnesses
      may be compelled by subpoena as provided in Rule 45.
        (2) A party must obtain leave of court, which shall be granted
      to the extent consistent with the principles stated in Rule
      26(b)(2), if the person to be examined is confined in prison or
      if, without the written stipulation of the parties,
          (A) a proposed deposition would result in more than ten
        depositions being taken under this rule or Rule 31 by the
        plaintiffs, or by the defendants, or by third-party defendants;
          (B) the person to be examined already has been deposed in the
        case; or
          (C) a party seeks to take a deposition before the time
        specified in Rule 26(d) unless the notice contains a
        certification, with supporting facts, that the person to be
        examined is expected to leave the United States and be
        unavailable for examination in this country unless deposed
        before that time.

      (b) Notice of Examination: General Requirements; Method of
    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 party taking the deposition shall state in the notice
      the method by which the testimony shall be recorded. Unless the
      court orders otherwise, it may be recorded by sound,
      sound-and-visual, or stenographic means, and the party taking the
      deposition shall bear the cost of the recording. Any party may
      arrange for a transcription to be made from the recording of a
      deposition taken by nonstenographic means.
        (3) With prior notice to the deponent and other parties, any
      party may designate another method to record the deponent's
      testimony in addition to the method specified by the person
      taking the deposition. The additional record or transcript shall
      be made at that party's expense unless the court otherwise
      orders.
        (4) Unless otherwise agreed by the parties, a deposition shall
      be conducted before an officer appointed or designated under Rule
      28 and shall begin with a statement on the record by the officer
      that includes (A) the officer's name and business address; (B)
      the date, time, and place of the deposition; (C) the name of the
      deponent; (D) the administration of the oath or affirmation to
      the deponent; and (E) an identification of all persons present.
      If the deposition is recorded other than stenographically, the
      officer shall repeat items (A) through (C) at the beginning of
      each unit of recorded tape or other recording medium. The
      appearance or demeanor of deponents or attorneys shall not be
      distorted through camera or sound-recording techniques. At the
      end of the deposition, the officer shall state on the record that
      the deposition is complete and shall set forth any stipulations
      made by counsel concerning the custody of the transcript or
      recording and the exhibits, or concerning other pertinent
      matters.
        (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 or other
      remote electronic means. For the purposes of this rule and Rules
      28(a), 37(a)(1), and 37(b)(1), a deposition taken by such means
      is taken in the district and at the place where the deponent is
      to answer questions.

      (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 except Rules 103 and 615. The officer
    before whom the deposition is to be taken shall put the witness on
    oath or affirmation 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 method authorized by
    subdivision (b)(2) of this rule. All objections made at the time of
    the examination to the qualifications of the officer taking the
    deposition, to the manner of taking it, to the evidence presented,
    to the conduct of any party, or to any other aspect of the
    proceedings shall be noted by the officer upon the record of the
    deposition; but the examination shall proceed, with the testimony
    being 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) Schedule and Duration; Motion to Terminate or Limit
    Examination.
        (1) Any objection during a deposition must be stated concisely
      and in a non-argumentative and non-suggestive manner. A person
      may instruct a deponent not to answer only when necessary to
      preserve a privilege, to enforce a limitation directed by the
      court, or to present a motion under Rule 30(d)(4).
        (2) Unless otherwise authorized by the court or stipulated by
      the parties, a deposition is limited to one day of seven hours.
      The court must allow additional time consistent with Rule
      26(b)(2) if needed for a fair examination of the deponent or if
      the deponent or another person, or other circumstance, impedes or
      delays the examination.
        (3) If the court finds that any impediment, delay, or other
      conduct has frustrated the fair examination of the deponent, it
      may impose upon the persons responsible an appropriate sanction,
      including the reasonable costs and attorney's fees incurred by
      any parties as a result thereof.
        (4) At any time during a 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 may 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 must 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) Review by Witness; Changes; Signing. If requested by the
    deponent or a party before completion of the deposition, the
    deponent shall have 30 days after being notified by the officer
    that the transcript or recording is available in which to review
    the transcript or recording and, if there are changes in form or
    substance, to sign a statement reciting such changes and the
    reasons given by the deponent for making them. The officer shall
    indicate in the certificate prescribed by subdivision (f)(1)
    whether any review was requested and, if so, shall append any
    changes made by the deponent during the period allowed.
      (f) Certification and Delivery by Officer; Exhibits; Copies.
        (1) The officer must certify that the witness was duly sworn by
      the officer and that the deposition is a true record of the
      testimony given by the witness. This certificate must be in
      writing and accompany the record of the deposition. Unless
      otherwise ordered by the court, the officer must securely seal
      the deposition in an envelope or package indorsed with the title
      of the action and marked "Deposition of [here insert name of
      witness]" and must promptly send it to the attorney who arranged
      for the transcript or recording, who must store it under
      conditions that will protect it against loss, destruction,
      tampering, or deterioration. Documents and things produced for
      inspection during the examination of the witness must, 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) Unless otherwise ordered by the court or agreed by the
      parties, the officer shall retain stenographic notes of any
      deposition taken stenographically or a copy of the recording of
      any deposition taken by another method. Upon payment of
      reasonable charges therefor, the officer shall furnish a copy of
      the transcript or other recording 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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 30, 1970, eff.
    July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, eff.
    July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff.
    Dec. 1, 2000.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). This is in accordance with common
    practice. See U.S.C., Title 28, [former] Sec. 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) Sec. 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] Secs. 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) Sec. 9833, but is more extensive.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      This amendment corresponds to the change in Rule 4(d)(4). See the
    Advisory Committee's Note to that amendment.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 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. Sec. 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 Sec. 644.1 n.
    83.2, Sec. 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. Sec. 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. Sec. 3116(c).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      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 Sec. 2114.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

          EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a). Paragraph (1) retains the first and third
    sentences from the former subdivision (a) without significant
    modification. The second and fourth sentences are relocated.
      Paragraph (2) collects all provisions bearing on requirements of
    leave of court to take a deposition.
      Paragraph (2)(A) is new. It provides a limit on the number of
    depositions the parties may take, absent leave of court or
    stipulation with the other parties. One aim of this revision is to
    assure judicial review under the standards stated in Rule 26(b)(2)
    before any side will be allowed to take more than ten depositions
    in a case without agreement of the other parties. A second
    objective is to emphasize that counsel have a professional
    obligation to develop a mutual cost-effective plan for discovery in
    the case. Leave to take additional depositions should be granted
    when consistent with the principles of Rule 26(b)(2), and in some
    cases the ten-per-side limit should be reduced in accordance with
    those same principles. Consideration should ordinarily be given at
    the planning meeting of the parties under Rule 26(f) and at the
    time of a scheduling conference under Rule 16(b) as to enlargements
    or reductions in the number of depositions, eliminating the need
    for special motions.
      A deposition under Rule 30(b)(6) should, for purposes of this
    limit, be treated as a single deposition even though more than one
    person may be designated to testify.
      In multi-party cases, the parties on any side are expected to
    confer and agree as to which depositions are most needed, given the
    presumptive limit on the number of depositions they can take
    without leave of court. If these disputes cannot be amicably
    resolved, the court can be requested to resolve the dispute or
    permit additional depositions.
      Paragraph (2)(B) is new. It requires leave of court if any
    witness is to be deposed in the action more than once. This
    requirement does not apply when a deposition is temporarily
    recessed for convenience of counsel or the deponent or to enable
    additional materials to be gathered before resuming the deposition.
    If significant travel costs would be incurred to resume the
    deposition, the parties should consider the feasibility of
    conducting the balance of the examination by telephonic means.
      Paragraph (2)(C) revises the second sentence of the former
    subdivision (a) as to when depositions may be taken. Consistent
    with the changes made in Rule 26(d), providing that formal
    discovery ordinarily not commence until after the litigants have
    met and conferred as directed in revised Rule 26(f), the rule
    requires leave of court or agreement of the parties if a deposition
    is to be taken before that time (except when a witness is about to
    leave the country).
      Subdivision (b). The primary change in subdivision (b) is that
    parties will be authorized to record deposition testimony by
    nonstenographic means without first having to obtain permission of
    the court or agreement from other counsel.
      Former subdivision (b)(2) is partly relocated in subdivision
    (a)(2)(C) of this rule. The latter two sentences of the first
    paragraph are deleted, in part because they are redundant to Rule
    26(g) and in part because Rule 11 no longer applies to discovery
    requests. The second paragraph of the former subdivision (b)(2),
    relating to use of depositions at trial where a party was unable to
    obtain counsel in time for an accelerated deposition, is relocated
    in Rule 32.
      New paragraph (2) confers on the party taking the deposition the
    choice of the method of recording, without the need to obtain prior
    court approval for one taken other than stenographically. A party
    choosing to record a deposition only by videotape or audiotape
    should understand that a transcript will be required by Rule
    26(a)(3)(B) and Rule 32(c) if the deposition is later to be offered
    as evidence at trial or on a dispositive motion under Rule 56.
    Objections to the nonstenographic recording of a deposition, when
    warranted by the circumstances, can be presented to the court under
    Rule 26(c).
      Paragraph (3) provides that other parties may arrange, at their
    own expense, for the recording of a deposition by a means
    (stenographic, visual, or sound) in addition to the method
    designated by the person noticing the deposition. The former
    provisions of this paragraph, relating to the court's power to
    change the date of a deposition, have been eliminated as redundant
    in view of Rule 26(c)(2).
      Revised paragraph (4) requires that all depositions be recorded
    by an officer designated or appointed under Rule 28 and contains
    special provisions designed to provide basic safeguards to assure
    the utility and integrity of recordings taken other than
    stenographically.
      Paragraph (7) is revised to authorize the taking of a deposition
    not only by telephone but also by other remote electronic means,
    such as satellite television, when agreed to by the parties or
    authorized by the court.
      Subdivision (c). Minor changes are made in this subdivision to
    reflect those made in subdivision (b) and to complement the new
    provisions of subdivision (d)(1), aimed at reducing the number of
    interruptions during depositions.
      In addition, the revision addresses a recurring problem as to
    whether other potential deponents can attend a deposition. Courts
    have disagreed, some holding that witnesses should be excluded
    through invocation of Rule 615 of the evidence rules, and others
    holding that witnesses may attend unless excluded by an order under
    Rule 26(c)(5). The revision provides that other witnesses are not
    automatically excluded from a deposition simply by the request of a
    party. Exclusion, however, can be ordered under Rule 26(c)(5) when
    appropriate; and, if exclusion is ordered, consideration should be
    given as to whether the excluded witnesses likewise should be
    precluded from reading, or being otherwise informed about, the
    testimony given in the earlier depositions. The revision addresses
    only the matter of attendance by potential deponents, and does not
    attempt to resolve issues concerning attendance by others, such as
    members of the public or press.
      Subdivision (d). The first sentence of new paragraph (1) provides
    that any objections during a deposition must be made concisely and
    in a non-argumentative and non-suggestive manner. Depositions
    frequently have been unduly prolonged, if not unfairly frustrated,
    by lengthy objections and colloquy, often suggesting how the
    deponent should respond. While objections may, under the revised
    rule, be made during a deposition, they ordinarily should be
    limited to those that under Rule 32(d)(3) might be waived if not
    made at that time, i.e., objections on grounds that might be
    immediately obviated, removed, or cured, such as to the form of a
    question or the responsiveness of an answer. Under Rule 32(b),
    other objections can, even without the so-called "usual
    stipulation" preserving objections, be raised for the first time at
    trial and therefore should be kept to a minimum during a
    deposition.
      Directions to a deponent not to answer a question can be even
    more disruptive than objections. The second sentence of new
    paragraph (1) prohibits such directions except in the three
    circumstances indicated: to claim a privilege or protection against
    disclosure (e.g., as work product), to enforce a court directive
    limiting the scope or length of permissible discovery, or to
    suspend a deposition to enable presentation of a motion under
    paragraph (3).
      Paragraph (2) is added to this subdivision to dispel any doubts
    regarding the power of the court by order or local rule to
    establish limits on the length of depositions. The rule also
    explicitly authorizes the court to impose the cost resulting from
    obstructive tactics that unreasonably prolong a deposition on the
    person engaged in such obstruction. This sanction may be imposed on
    a non-party witness as well as a party or attorney, but is
    otherwise congruent with Rule 26(g).
      It is anticipated that limits on the length of depositions
    prescribed by local rules would be presumptive only, subject to
    modification by the court or by agreement of the parties. Such
    modifications typically should be discussed by the parties in their
    meeting under Rule 26(f) and included in the scheduling order
    required by Rule 16(b). Additional time, moreover, should be
    allowed under the revised rule when justified under the principles
    stated in Rule 26(b)(2). To reduce the number of special motions,
    local rules should ordinarily permit - and indeed encourage - the
    parties to agree to additional time, as when, during the taking of
    a deposition, it becomes clear that some additional examination is
    needed.
      Paragraph (3) authorizes appropriate sanctions not only when a
    deposition is unreasonably prolonged, but also when an attorney
    engages in other practices that improperly frustrate the fair
    examination of the deponent, such as making improper objections or
    giving directions not to answer prohibited by paragraph (1). In
    general, counsel should not engage in any conduct during a
    deposition that would not be allowed in the presence of a judicial
    officer. The making of an excessive number of unnecessary
    objections may itself constitute sanctionable conduct, as may the
    refusal of an attorney to agree with other counsel on a fair
    apportionment of the time allowed for examination of a deponent or
    a refusal to agree to a reasonable request for some additional time
    to complete a deposition, when that is permitted by the local rule
    or order.
      Subdivision (e). Various changes are made in this subdivision to
    reduce problems sometimes encountered when depositions are taken
    stenographically. Reporters frequently have difficulties obtaining
    signatures - and the return of depositions - from deponents. Under
    the revision pre-filing review by the deponent is required only if
    requested before the deposition is completed. If review is
    requested, the deponent will be allowed 30 days to review the
    transcript or recording and to indicate any changes in form or
    substance. Signature of the deponent will be required only if
    review is requested and changes are made.
      Subdivision (f). Minor changes are made in this subdivision to
    reflect those made in subdivision (b). In courts which direct that
    depositions not be automatically filed, the reporter can transmit
    the transcript or recording to the attorney taking the deposition
    (or ordering the transcript or record), who then becomes custodian
    for the court of the original record of the deposition. Pursuant to
    subdivision (f)(2), as under the prior rule, any other party is
    entitled to secure a copy of the deposition from the officer
    designated to take the deposition; accordingly, unless ordered or
    agreed, the officer must retain a copy of the recording or the
    stenographic notes.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Subdivision (d). Paragraph (1) has been amended to clarify the
    terms regarding behavior during depositions. The references to
    objections "to evidence" and limitations "on evidence" have been
    removed to avoid disputes about what is "evidence" and whether an
    objection is to, or a limitation is on, discovery instead. It is
    intended that the rule apply to any objection to a question or
    other issue arising during a deposition, and to any limitation
    imposed by the court in connection with a deposition, which might
    relate to duration or other matters.
      The current rule places limitations on instructions that a
    witness not answer only when the instruction is made by a "party."
    Similar limitations should apply with regard to anyone who might
    purport to instruct a witness not to answer a question.
    Accordingly, the rule is amended to apply the limitation to
    instructions by any person. The amendment is not intended to confer
    new authority on nonparties to instruct witnesses to refuse to
    answer deposition questions. The amendment makes it clear that,
    whatever the legitimacy of giving such instructions, the nonparty
    is subject to the same limitations as parties.
      Paragraph (2) imposes a presumptive durational limitation of one
    day of seven hours for any deposition. The Committee has been
    informed that overlong depositions can result in undue costs and
    delays in some circumstances. This limitation contemplates that
    there will be reasonable breaks during the day for lunch and other
    reasons, and that the only time to be counted is the time occupied
    by the actual deposition. For purposes of this durational limit,
    the deposition of each person designated under Rule 30(b)(6) should
    be considered a separate deposition. The presumptive duration may
    be extended, or otherwise altered, by agreement. Absent agreement,
    a court order is needed. The party seeking a court order to extend
    the examination, or otherwise alter the limitations, is expected to
    show good cause to justify such an order.
      Parties considering extending the time for a deposition - and
    courts asked to order an extension - might consider a variety of
    factors. For example, if the witness needs an interpreter, that may
    prolong the examination. If the examination will cover events
    occurring over a long period of time, that may justify allowing
    additional time. In cases in which the witness will be questioned
    about numerous or lengthy documents, it is often desirable for the
    interrogating party to send copies of the documents to the witness
    sufficiently in advance of the deposition so that the witness can
    become familiar with them. Should the witness nevertheless not read
    the documents in advance, thereby prolonging the deposition, a
    court could consider that a reason for extending the time limit. If
    the examination reveals that documents have been requested but not
    produced, that may justify further examination once production has
    occurred. In multi-party cases, the need for each party to examine
    the witness may warrant additional time, although duplicative
    questioning should be avoided and parties with similar interests
    should strive to designate one lawyer to question about areas of
    common interest. Similarly, should the lawyer for the witness want
    to examine the witness, that may require additional time. Finally,
    with regard to expert witnesses, there may more often be a need for
    additional time - even after the submission of the report required
    by Rule 26(a)(2) - for full exploration of the theories upon which
    the witness relies.
      It is expected that in most instances the parties and the witness
    will make reasonable accommodations to avoid the need for resort to
    the court. The limitation is phrased in terms of a single day on
    the assumption that ordinarily a single day would be preferable to
    a deposition extending over multiple days; if alternative
    arrangements would better suit the parties, they may agree to them.
    It is also assumed that there will be reasonable breaks during the
    day. Preoccupation with timing is to be avoided.
      The rule directs the court to allow additional time where
    consistent with Rule 26(b)(2) if needed for a fair examination of
    the deponent. In addition, if the deponent or another person
    impedes or delays the examination, the court must authorize extra
    time. The amendment makes clear that additional time should also be
    allowed where the examination is impeded by an "other
    circumstance," which might include a power outage, a health
    emergency, or other event.
      In keeping with the amendment to Rule 26(b)(2), the provision
    added in 1993 granting authority to adopt a local rule limiting the
    time permitted for depositions has been removed. The court may
    enter a case-specific order directing shorter depositions for all
    depositions in a case or with regard to a specific witness. The
    court may also order that a deposition be taken for limited periods
    on several days.
      Paragraph (3) includes sanctions provisions formerly included in
    paragraph (2). It authorizes the court to impose an appropriate
    sanction on any person responsible for an impediment that
    frustrated the fair examination of the deponent. This could include
    the deponent, any party, or any other person involved in the
    deposition. If the impediment or delay results from an "other
    circumstance" under paragraph (2), ordinarily no sanction would be
    appropriate.
      Former paragraph (3) has been renumbered (4) but is otherwise
    unchanged.
      Subdivision (f)(1). This subdivision is amended because Rule 5(d)
    has been amended to direct that discovery materials, including
    depositions, ordinarily should not be filed. The rule already has
    provisions directing that the lawyer who arranged for the
    transcript or recording preserve the deposition. Rule 5(d) provides
    that, once the deposition is used in the proceeding, the attorney
    must file it with the court.
      "Shall" is replaced by "must" or "may" under the program to
    conform amended rules to current style conventions when there is no
    ambiguity.
      GAP Report. The Advisory Committee recommends deleting the
    requirement in the published proposed amendments that the deponent
    consent to extending a deposition beyond one day, and adding an
    amendment to Rule 30(f)(1) to conform to the published amendment to
    Rule 5(d) regarding filing of depositions. It also recommends
    conforming the Committee Note with regard to the deponent veto, and
    adding material to the Note to provide direction on computation of
    the durational limitation on depositions, to provide examples of
    situations in which the parties might agree - or the court order -
    that a deposition be extended, and to make clear that no new
    authority to instruct a witness is conferred by the amendment. One
    minor wording improvement in the Note is also suggested.

-End-



-CITE-
    28 USC APPENDIX Rule 31                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 31. Depositions Upon Written Questions

-STATUTE-
      (a) Serving Questions; Notice.
        (1) A party may take the testimony of any person, including a
      party, by deposition upon written questions without leave of
      court except as provided in paragraph (2). The attendance of
      witnesses may be compelled by the use of subpoena as provided in
      Rule 45.
        (2) A party must obtain leave of court, which shall be granted
      to the extent consistent with the principles stated in Rule
      26(b)(2), if the person to be examined is confined in prison or
      if, without the written stipulation of the parties,
          (A) a proposed deposition would result in more than ten
        depositions being taken under this rule or Rule 30 by the
        plaintiffs, or by the defendants, or by third-party defendants;
          (B) the person to be examined has already been deposed in the
        case; or
          (C) a party seeks to take a deposition before the time
        specified in Rule 26(d).

        (3) 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).
        (4) Within 14 days after the notice and written questions are
      served, a party may serve cross questions upon all other parties.
      Within 7 days after being served with cross questions, a party
      may serve redirect questions upon all other parties. Within 7
      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.

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a). The first paragraph of subdivision (a) is
    divided into two subparagraphs, with provisions comparable to those
    made in the revision of Rule 30. Changes are made in the former
    third paragraph, numbered in the revision as paragraph (4), to
    reduce the total time for developing cross-examination, redirect,
    and recross questions from 50 days to 28 days.

-End-



-CITE-
    28 USC APPENDIX Rule 32                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 32. Use of Depositions in Court Proceedings

-STATUTE-
      (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.

      A deposition taken without leave of court pursuant to a notice
      under Rule 30(a)(2)(C) shall not be used against a party who
      demonstrates that, when served with the notice, it was unable
      through the exercise of diligence to obtain counsel to represent
      it at the taking of the deposition; nor shall a deposition be
      used against a party who, having received less than 11 days
      notice of a deposition, has promptly upon receiving such notice
      filed a motion for a protective order under Rule 26(c)(2)
      requesting that the deposition not be held or be held at a
      different time or place and such motion is pending at the time
      the deposition is held.
        (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) Form of Presentation. Except as otherwise directed by the
    court, a party offering deposition testimony pursuant to this rule
    may offer it in stenographic or nonstenographic form, but, if in
    nonstenographic form, the party shall also provide the court with a
    transcript of the portions so offered. On request of any party in a
    case tried before a jury, deposition testimony offered other than
    for impeachment purposes shall be presented in nonstenographic
    form, if available, unless the court for good cause orders
    otherwise.
      (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.

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970; Nov. 20, 1972, eff.
    July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      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 Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a). The last sentence of revised subdivision (a) not
    only includes the substance of the provisions formerly contained in
    the second paragraph of Rule 30(b)(2), but adds a provision to deal
    with the situation when a party, receiving minimal notice of a
    proposed deposition, is unable to obtain a court ruling on its
    motion for a protective order seeking to delay or change the place
    of the deposition. Ordinarily a party does not obtain protection
    merely by the filing of a motion for a protective order under Rule
    26(c); any protection is dependent upon the court's ruling. Under
    the revision, a party receiving less than 11 days notice of a
    deposition can, provided its motion for a protective order is filed
    promptly, be spared the risks resulting from nonattendance at the
    deposition held before its motion is ruled upon. Although the
    revision of Rule 32(a) covers only the risk that the deposition
    could be used against the non-appearing movant, it should also
    follow that, when the proposed deponent is the movant, the deponent
    would have "just cause" for failing to appear for purposes of Rule
    37(d)(1). Inclusion of this provision is not intended to signify
    that 11 days' notice is the minimum advance notice for all
    depositions or that greater than 10 days should necessarily be
    deemed sufficient in all situations.
      Subdivision (c). This new subdivision, inserted at the location
    of a subdivision previously abrogated, is included in view of the
    increased opportunities for video-recording and audio-recording of
    depositions under revised Rule 30(b). Under this rule a party may
    offer deposition testimony in any of the forms authorized under
    Rule 30(b) but, if offering it in a nonstenographic form, must
    provide the court with a transcript of the portions so offered. On
    request of any party in a jury trial, deposition testimony offered
    other than for impeachment purposes is to be presented in a
    nonstenographic form if available, unless the court directs
    otherwise. Note that under Rule 26(a)(3)(B) a party expecting to
    use nonstenographic deposition testimony as substantive evidence is
    required to provide other parties with a transcript in advance of
    trial.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a)(1), (4),
    are set out in this Appendix.


-MISC2-
          EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972      
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 33                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 33. Interrogatories to Parties

-STATUTE-
      (a) Availability. Without leave of court or written stipulation,
    any party may serve upon any other party written interrogatories,
    not exceeding 25 in number including all discrete subparts, 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. Leave to serve additional
    interrogatories shall be granted to the extent consistent with the
    principles of Rule 26(b)(2). Without leave of court or written
    stipulation, interrogatories may not be served before the time
    specified in Rule 26(d).
      (b) Answers and Objections.
        (1) Each interrogatory shall be answered separately and fully
      in writing under oath, unless it is objected to, in which event
      the objecting party shall state the reasons for objection and
      shall answer to the extent the interrogatory is not
      objectionable.
        (2) The answers are to be signed by the person making them, and
      the objections signed by the attorney making them.
        (3) 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. A shorter or
      longer time may be directed by the court or, in the absence of
      such an order, agreed to in writing by the parties subject to
      Rule 29.
        (4) All grounds for an objection to an interrogatory shall be
      stated with specificity. Any ground not stated in a timely
      objection is waived unless the party's failure to object is
      excused by the court for good cause shown.
        (5) 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.

      (c) Scope; Use at Trial. Interrogatories may relate to any
    matters which can be inquired into under Rule 26(b)(1), 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.
      (d) 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.
    July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Apr. 22, 1993, eff.
    Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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) 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) 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) 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) 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) 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) 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) 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) 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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, &#182;
    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. Sec. 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 &#182; 33.17 (2d ed.
    1966); 2A Barron & Holtzoff, Federal Practice and Procedure Sec.
    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 Sec. 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 &#182; 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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Purpose of Revision. The purpose of this revision is to reduce
    the frequency and increase the efficiency of interrogatory
    practice. The revision is based on experience with local rules. For
    ease of reference, subdivision (a) is divided into two subdivisions
    and the remaining subdivisions renumbered.
      Subdivision (a). Revision of this subdivision limits
    interrogatory practice. Because Rule 26(a)(1)-(3) requires
    disclosure of much of the information previously obtained by this
    form of discovery, there should be less occasion to use it.
    Experience in over half of the district courts has confirmed that
    limitations on the number of interrogatories are useful and
    manageable. Moreover, because the device can be costly and may be
    used as a means of harassment, it is desirable to subject its use
    to the control of the court consistent with the principles stated
    in Rule 26(b)(2), particularly in multi-party cases where it has
    not been unusual for the same interrogatory to be propounded to a
    party by more than one of its adversaries.
      Each party is allowed to serve 25 interrogatories upon any other
    party, but must secure leave of court (or a stipulation from the
    opposing party) to serve a larger number. Parties cannot evade this
    presumptive limitation through the device of joining as "subparts"
    questions that seek information about discrete separate subjects.
    However, a question asking about communications of a particular
    type should be treated as a single interrogatory even though it
    requests that the time, place, persons present, and contents be
    stated separately for each such communication.
      As with the number of depositions authorized by Rule 30, leave to
    serve additional interrogatories is to be allowed when consistent
    with Rule 26(b)(2). The aim is not to prevent needed discovery, but
    to provide judicial scrutiny before parties make potentially
    excessive use of this discovery device. In many cases it will be
    appropriate for the court to permit a larger number of
    interrogatories in the scheduling order entered under Rule 16(b).
      Unless leave of court is obtained, interrogatories may not be
    served prior to the meeting of the parties under Rule 26(f).
      When a case with outstanding interrogatories exceeding the number
    permitted by this rule is removed to federal court, the
    interrogating party must seek leave allowing the additional
    interrogatories, specify which twenty-five are to be answered, or
    resubmit interrogatories that comply with the rule. Moreover, under
    Rule 26(d), the time for response would be measured from the date
    of the parties' meeting under Rule 26(f). See Rule 81(c), providing
    that these rules govern procedures after removal.
      Subdivision (b). A separate subdivision is made of the former
    second paragraph of subdivision (a). Language is added to paragraph
    (1) of this subdivision to emphasize the duty of the responding
    party to provide full answers to the extent not objectionable. If,
    for example, an interrogatory seeking information about numerous
    facilities or products is deemed objectionable, but an
    interrogatory seeking information about a lesser number of
    facilities or products would not have been objectionable, the
    interrogatory should be answered with respect to the latter even
    though an objection is raised as to the balance of the facilities
    or products. Similarly, the fact that additional time may be needed
    to respond to some questions (or to some aspects of questions)
    should not justify a delay in responding to those questions (or
    other aspects of questions) that can be answered within the
    prescribed time.
      Paragraph (4) is added to make clear that objections must be
    specifically justified, and that unstated or untimely grounds for
    objection ordinarily are waived. Note also the provisions of
    revised Rule 26(b)(5), which require a responding party to indicate
    when it is withholding information under a claim of privilege or as
    trial preparation materials.
      These provisions should be read in light of Rule 26(g),
    authorizing the court to impose sanctions on a party and attorney
    making an unfounded objection to an interrogatory.
      Subdivisions (c) and (d). The provisions of former subdivisions
    (b) and (c) are renumbered.

-End-



-CITE-
    28 USC APPENDIX Rule 34                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 34. Production of Documents and Things and Entry Upon Land for
      Inspection and Other Purposes

-STATUTE-
      (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 shall set forth, either by individual
    item or by category, the items to be inspected, and describe each
    with reasonable particularity. The request shall specify a
    reasonable time, place, and manner of making the inspection and
    performing the related acts. Without leave of court or written
    stipulation, a request may not be served before the time specified
    in Rule 26(d).
      The party upon whom the request is served shall serve a written
    response within 30 days after the service of the request. A shorter
    or longer time may be directed by the court or, in the absence of
    such an order, agreed to in writing by the parties, subject to Rule
    29. 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 the objection shall be stated. If objection is made to
    part of an item or category, the part shall be specified and
    inspection permitted of the remaining parts. 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.
    July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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 ("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 ("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.").

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      The rule is revised to reflect the change made by Rule 26(d),
    preventing a party from seeking formal discovery prior to the
    meeting of the parties required by Rule 26(f). Also, like a change
    made in Rule 33, the rule is modified to make clear that, if a
    request for production is objectionable only in part, production
    should be afforded with respect to the unobjectionable portions.
      When a case with outstanding requests for production is removed
    to federal court, the time for response would be measured from the
    date of the parties' meeting. See Rule 81(c), providing that these
    rules govern procedures after removal.

-End-



-CITE-
    28 USC APPENDIX Rule 35                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 35. Physical and Mental Examinations of Persons

-STATUTE-
      (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.

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff.
    Aug. 1, 1987; Pub. L. 100-690, title VII, Sec. 7047(b), Nov. 18,
    1988, 102 Stat. 4401; Apr. 30, 1991, eff. Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Physical examination of parties before trial is authorized by
    statute or rule in a number of states. See Ariz.Rev.Code Ann.
    (Struckmeyer, 1928) Sec. 4468; Mich.Court Rules Ann. (Searl, 1933)
    Rule 41, Sec. 2; 2 N.J.Comp.Stat. (1910), N.Y.C.P.A. (1937) Sec.
    306; 1 S.D.Comp.Laws (1929) Sec. 2716A; 3 Wash.Rev.Stat.Ann.
    (Remington, 1932) Sec. 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 (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 (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, Secs. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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. Sec. 2032;
    Ida.R.Civ.P. 35; Ill.S-H Ann. c. 110A, Sec. 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. Sec. 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 &#182; 35.06,
    n.1 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and
    Procedure Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The 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 Sec.
    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.

                          AMENDMENT BY PUBLIC LAW                      
      1988 - Subd. (a). Pub. L. 100-690, Sec. 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, Sec. 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, Sec. 7047(b)(3), added subd. (c).

-End-



-CITE-
    28 USC APPENDIX Rule 36                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 36. Requests for Admission

-STATUTE-
      (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)(1) 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. Without leave of court or written stipulation, requests
    for admission may not be served before the time specified in Rule
    26(d).
      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 or as the parties may agree to in writing,
    subject to Rule 29, 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. 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff.
    July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.
    Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Sec. 182 and
    Rule 18 (Ill.Rev.Stat. (1937) ch. 110, Sec. 259.18); 2
    Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, Sec. 69; Mich.Court Rules
    Ann. (Searl, 1933) Rule 42; N.J.Comp.Stat. (2 Cum.Supp. 1911-1924)
    N.Y.C.P.A. (1937) Secs. 322, 323; Wis.Stat. (1935) Sec. 327.22.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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 (2) [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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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 &#182; 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 &#182; 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 &#182; 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 Sec. 8.07 (1963); 2A Barron & Holtzoff, Federal Practice
    and Procedure Sec. 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 Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      The rule is revised to reflect the change made by Rule 26(d),
    preventing a party from seeking formal discovery until after the
    meeting of the parties required by Rule 26(f).

-End-



-CITE-
    28 USC APPENDIX Rule 37                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 37. Failure to Make Disclosure or Cooperate in Discovery;
      Sanctions

-STATUTE-
      (a) Motion For Order Compelling Disclosure or Discovery. A party,
    upon reasonable notice to other parties and all persons affected
    thereby, may apply for an order compelling disclosure or discovery
    as follows:
        (1) Appropriate Court. An application for an order to a party
      shall be made to the court in which the action is pending. An
      application for an order to a person who is not a party shall be
      made to the court in the district where the discovery is being,
      or is to be, taken.
        (2) Motion.
          (A) If a party fails to make a disclosure required by Rule
        26(a), any other party may move to compel disclosure and for
        appropriate sanctions. The motion must include a certification
        that the movant has in good faith conferred or attempted to
        confer with the party not making the disclosure in an effort to
        secure the disclosure without court action.
          (B) 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. The
        motion must include a certification that the movant has in good
        faith conferred or attempted to confer with the person or party
        failing to make the discovery in an effort to secure the
        information or material without court action. When taking a
        deposition on oral examination, the proponent of the question
        may complete or adjourn the examination before applying for an
        order.

        (3) Evasive or Incomplete Disclosure, Answer, or Response. For
      purposes of this subdivision an evasive or incomplete disclosure,
      answer, or response is to be treated as a failure to disclose,
      answer, or respond.
        (4) Expenses and Sanctions.
          (A) If the motion is granted or if the disclosure or
        requested discovery is provided after the motion was filed, the
        court shall, after affording an opportunity to be heard,
        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 making the motion, including attorney's fees,
        unless the court finds that the motion was filed without the
        movant's first making a good faith effort to obtain the
        disclosure or discovery without court action, or that the
        opposing party's nondisclosure, response, or objection was
        substantially justified, or that other circumstances make an
        award of expenses unjust.
          (B) If the motion is denied, the court may enter any
        protective order authorized under Rule 26(c) and shall, after
        affording an opportunity to be heard, require the moving party
        or the attorney filing 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.
          (C) If the motion is granted in part and denied in part, the
        court may enter any protective order authorized under Rule
        26(c) and may, after affording an opportunity to be heard,
        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) Failure to Disclose; False or Misleading Disclosure; Refusal
    to Admit.
        (1) A party that without substantial justification fails to
      disclose information required by Rule 26(a) or 26(e)(1), or to
      amend a prior response to discovery as required by Rule 26(e)(2),
      is not, unless such failure is harmless, permitted to use as
      evidence at a trial, at a hearing, or on a motion any witness or
      information not so disclosed. In addition to or in lieu of this
      sanction, the court, on motion and after affording an opportunity
      to be heard, may impose other appropriate sanctions. In addition
      to requiring payment of reasonable expenses, including attorney's
      fees, caused by the failure, these sanctions may include any of
      the actions authorized under Rule 37(b)(2)(A), (B), and (C) and
      may include informing the jury of the failure to make the
      disclosure.
        (2) 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 (A) the request was held objectionable
      pursuant to Rule 36(a), or (B) the admission sought was of no
      substantial importance, or (C) the party failing to admit had
      reasonable ground to believe that the party might prevail on the
      matter, or (D) 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 subparagraphs (A), (B), and (C) of subdivision
    (b)(2) of this rule. Any motion specifying a failure under clause
    (2) or (3) of this subdivision shall include a certification that
    the movant has in good faith conferred or attempted to confer with
    the party failing to answer or respond in an effort to obtain such
    answer or response without court action. 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 a pending motion 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 development and submission of a proposed discovery plan as
    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.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff.
    July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980; Pub. L. 96-481,
    title II, Sec. 205(a), Oct. 21, 1980, 94 Stat. 2330; Mar. 2, 1987,
    eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000,
    eff. Dec. 1, 2000.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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 (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 (1897), for
    the mere purpose of punishing for contempt.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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. Sec. 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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      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.
    Sec. 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.
    Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (a). This subdivision is revised to reflect the
    revision of Rule 26(a), requiring disclosure of matters without a
    discovery request.
      Pursuant to new subdivision (a)(2)(A), a party dissatisfied with
    the disclosure made by an opposing party may under this rule move
    for an order to compel disclosure. In providing for such a motion,
    the revised rule parallels the provisions of the former rule
    dealing with failures to answer particular interrogatories. Such a
    motion may be needed when the information to be disclosed might be
    helpful to the party seeking the disclosure but not to the party
    required to make the disclosure. If the party required to make the
    disclosure would need the material to support its own contentions,
    the more effective enforcement of the disclosure requirement will
    be to exclude the evidence not disclosed, as provided in
    subdivision (c)(1) of this revised rule.
      Language is included in the new paragraph and added to the
    subparagraph (B) that requires litigants to seek to resolve
    discovery disputes by informal means before filing a motion with
    the court. This requirement is based on successful experience with
    similar local rules of court promulgated pursuant to Rule 83.
      The last sentence of paragraph (2) is moved into paragraph (4).
      Under revised paragraph (3), evasive or incomplete disclosures
    and responses to interrogatories and production requests are
    treated as failures to disclose or respond. Interrogatories and
    requests for production should not be read or interpreted in an
    artificially restrictive or hypertechnical manner to avoid
    disclosure of information fairly covered by the discovery request,
    and to do so is subject to appropriate sanctions under subdivision
    (a).
      Revised paragraph (4) is divided into three subparagraphs for
    ease of reference, and in each the phrase "after opportunity for
    hearing" is changed to "after affording an opportunity to be heard"
    to make clear that the court can consider such questions on written
    submissions as well as on oral hearings.
      Subparagraph (A) is revised to cover the situation where
    information that should have been produced without a motion to
    compel is produced after the motion is filed but before it is
    brought on for hearing. The rule also is revised to provide that a
    party should not be awarded its expenses for filing a motion that
    could have been avoided by conferring with opposing counsel.
      Subparagraph (C) is revised to include the provision that
    formerly was contained in subdivision (a)(2) and to include the
    same requirement of an opportunity to be heard that is specified in
    subparagraphs (A) and (B).
      Subdivision (c). The revision provides a self-executing sanction
    for failure to make a disclosure required by Rule 26(a), without
    need for a motion under subdivision (a)(2)(A).
      Paragraph (1) prevents a party from using as evidence any
    witnesses or information that, without substantial justification,
    has not been disclosed as required by Rules 26(a) and 26(e)(1).
    This automatic sanction provides a strong inducement for disclosure
    of material that the disclosing party would expect to use as
    evidence, whether at a trial, at a hearing, or on a motion, such as
    one under Rule 56. As disclosure of evidence offered solely for
    impeachment purposes is not required under those rules, this
    preclusion sanction likewise does not apply to that evidence.
      Limiting the automatic sanction to violations "without
    substantial justification," coupled with the exception for
    violations that are "harmless," is needed to avoid unduly harsh
    penalties in a variety of situations: e.g., the inadvertent
    omission from a Rule 26(a)(1)(A) disclosure of the name of a
    potential witness known to all parties; the failure to list as a
    trial witness a person so listed by another party; or the lack of
    knowledge of a pro se litigant of the requirement to make
    disclosures. In the latter situation, however, exclusion would be
    proper if the requirement for disclosure had been called to the
    litigant's attention by either the court or another party.
      Preclusion of evidence is not an effective incentive to compel
    disclosure of information that, being supportive of the position of
    the opposing party, might advantageously be concealed by the
    disclosing party. However, the rule provides the court with a wide
    range of other sanctions - such as declaring specified facts to be
    established, preventing contradictory evidence, or, like spoliation
    of evidence, allowing the jury to be informed of the fact of
    nondisclosure - that, though not self-executing, can be imposed
    when found to be warranted after a hearing. The failure to identify
    a witness or document in a disclosure statement would be admissible
    under the Federal Rules of Evidence under the same principles that
    allow a party's interrogatory answers to be offered against it.
      Subdivision (d). This subdivision is revised to require that,
    where a party fails to file any response to interrogatories or a
    Rule 34 request, the discovering party should informally seek to
    obtain such responses before filing a motion for sanctions.
      The last sentence of this subdivision is revised to clarify that
    it is the pendency of a motion for protective order that may be
    urged as an excuse for a violation of subdivision (d). If a party's
    motion has been denied, the party cannot argue that its subsequent
    failure to comply would be justified. In this connection, it should
    be noted that the filing of a motion under Rule 26(c) is not
    self-executing - the relief authorized under that rule depends on
    obtaining the court's order to that effect.
      Subdivision (g). This subdivision is modified to conform to the
    revision of Rule 26(f).

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Subdivision (c)(1). When this subdivision was added in 1993 to
    direct exclusion of materials not disclosed as required, the duty
    to supplement discovery responses pursuant to Rule 26(e)(2) was
    omitted. In the face of this omission, courts may rely on inherent
    power to sanction for failure to supplement as required by Rule
    26(e)(2), see 8 Federal Practice & Procedure Sec. 2050 at 607-09,
    but that is an uncertain and unregulated ground for imposing
    sanctions. There is no obvious occasion for a Rule 37(a) motion in
    connection with failure to supplement, and ordinarily only Rule
    37(c)(1) exists as rule-based authority for sanctions if this
    supplementation obligation is violated.
      The amendment explicitly adds failure to comply with Rule
    26(e)(2) as a ground for sanctions under Rule 37(c)(1), including
    exclusion of withheld materials. The rule provides that this
    sanction power only applies when the failure to supplement was
    "without substantial justification." Even if the failure was not
    substantially justified, a party should be allowed to use the
    material that was not disclosed if the lack of earlier notice was
    harmless.
      "Shall" is replaced by "is" under the program to conform amended
    rules to current style conventions when there is no ambiguity.
      GAP Report. The Advisory Committee recommends that the published
    amendment proposal be modified to state that the exclusion sanction
    can apply to failure "to amend a prior response to discovery as
    required by Rule 26(e)(2)." In addition, one minor phrasing change
    is recommended for the Committee Note.

                          AMENDMENT BY PUBLIC LAW                      
      1980 - 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.

                     EFFECTIVE DATE OF 1980 AMENDMENT                 
      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.

-End-


-CITE-
    28 USC APPENDIX VI. TRIALS                                  01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
                                VI. TRIALS                            

-End-



-CITE-
    28 USC APPENDIX Rule 38                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 38. Jury Trial of Right

-STATUTE-
      (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 (1) 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, and (2) filing the demand as
    required by Rule 5(d). 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 and file a demand as
    required by this rule 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).

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Sec. 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, Sec. 188; 6 Tenn.Code Ann. (Williams,
    1934) Sec. 8734; compare Wyo.Rev.Stat.Ann. (1931) Sec. 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)
    Sec. 5624; Hawaii Rev.Laws (1935) Sec. 4101; 2 Mass.Gen.Laws
    (Ter.Ed. 1932) ch. 231, Sec. 60; 3 Mich.Comp.Laws (1929) Sec.
    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) Sec. 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) Sec. 3802; Calif.Code
    Civ.Proc. (Deering, 1937) Sec. 631, par. 4; Iowa Code (1935) Sec.
    10724; 4 Nev.Comp.Laws (Hillyer, 1929) Sec. 8782; N.M.Stat.Ann.
    (Courtright, 1929) Sec. 105-814; N.Y.C.P.A. (1937) Sec. 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, Sec. 6; Utah Rev.Stat.Ann. (1933) Sec.
    104-23-6; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 316; England
    (4 days after notice of trial), Administration of Justice Act
    (1933) Sec. 6 and amended rule under the Judicature Act (The Annual
    Practice, 1937), O. 36, r. 1; Australia High Court Procedure Act
    (1921) Sec. 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, Sec.
    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] Sec. 773 (Trial of issues of fact; by
    court).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      See Note to Rule 9(h), supra.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Language requiring the filing of a jury demand as provided in
    subdivision (d) is added to subdivision (b) to eliminate an
    apparent ambiguity between the two subdivisions. For proper
    scheduling of cases, it is important that jury demands not only be
    served on other parties, but also be filed with the court.

-End-



-CITE-
    28 USC APPENDIX Rule 39                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 39. Trial by Jury or by the Court

-STATUTE-
      (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.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      The provisions for express waiver of jury trial found in U.S.C.,
    Title 28, [former] Sec. 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] Sec. 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 (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) Sec. 592; 1 Colo.Stat.Ann. (1935) Code Civ.Proc.,
    ch. 12, Sec. 191; Conn.Gen.Stat. (1930) Sec. 5625; 2 Minn.Stat.
    (Mason, 1927) Sec. 9288; 4 Mont.Rev.Codes Ann. (1935) Sec. 9327;
    N.Y.C.P.A. (1937) Sec. 430; 2 Ohio Gen.Code Ann. (Page, 1926) Sec.
    11380; 1 Okla.Stat.Ann. (Harlow, 1931) Sec. 351; Utah Rev.Stat.Ann.
    (1933) Sec. 104-23-5; 2 Wash.Rev.Stat.Ann. (Remington, 1932) Sec.
    315; Wis.Stat. (1935) Sec. 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]
    Sec. 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 (1926); Watt v. Starke, 101 U.S. 247, 25 L.Ed.
    826 (1879).

-End-



-CITE-
    28 USC APPENDIX Rule 40                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 40. Assignment of Cases for Trial

-STATUTE-
      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.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      U.S.C., Title 28, [former] Sec. 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,
    Sec. 47 [now 1253, 2101, 2325] (Injunctions as to orders of
    Interstate Commerce Commission); Sec. 380 [now 1253, 2101, 2284]
    (Injunctions alleged unconstitutionality of state statutes); Sec.
    380a [now 1253, 2101, 2284] (Same; Constitutionality of federal
    statute); [former] Sec. 768 (Priority of cases where a state is
    party); Title 15, Sec. 28 (Antitrust laws; suits against monopolies
    expedited); Title 22, Sec. 240 (Petition for restoration of
    property seized as munitions of war, etc.); and Title 49, [former]
    Sec. 44 (Proceedings in equity under interstate commerce laws;
    expedition of suits).

-End-



-CITE-
    28 USC APPENDIX Rule 41                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 41. Dismissal of Actions

-STATUTE-
      (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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff.
    July 1, 1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
    Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). Compare Ill.Rev.Stat. (1937) ch. 110,
    Sec. 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, Sec. 164 [see 1329] (Jurisdiction of district courts in
    immigration cases) and U.S.C., Title 31, Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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 appearances 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 Sec. 41.03, under
    "Page 3045"; Commentary, The Motion to Dismiss in Non-Jury Cases
    (1946) 9 Fed.Rules Serv., Comm.Pg. 41b.14.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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 Sec. 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 Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      The terminology is changed to accord with the amendment of Rule
    19. See that amended rule and the Advisory Committee's Note
    thereto.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT       
      The amendment corrects an inadvertent error in the reference to
    amended Rule 23.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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).

-End-



-CITE-
    28 USC APPENDIX Rule 42                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 42. Consolidation; Separate Trials

-STATUTE-
      (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.

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Subdivision (a) is based upon U.S.C., Title 28, [former] Sec. 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) Sec. 1081; Calif.Code
    Civ.Proc. (Deering, 1937) Sec. 1048; N.M.Stat.Ann. (Courtright,
    1929) Sec. 105-828; N.Y.C.P.A. (1937) Secs. 96, 96a, and 97;
    American Judicature Society, Bulletin XIV (1919) Art.26.
      For severance or separate trials see Calif.Code Civ.Proc.
    (Deering, 1937) Sec. 1048; N.Y.C.P.A. (1937) Sec. 96; American
    Judicature Society, Bulletin XIV (1919) Art. 3, Sec. 2 and Art. 10,
    Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 43                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 43. Taking of Testimony

-STATUTE-
      (a) Form. In every trial, the testimony of witnesses shall be
    taken in open court, unless a federal law, these rules, the Federal
    Rules of Evidence, or other rules adopted by the Supreme Court
    provide otherwise. The court may, for good cause shown in
    compelling circumstances and upon appropriate safeguards, permit
    presentation of testimony in open court by contemporaneous
    transmission from a different location.
      [(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.

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Nov. 20, 1972, and
    Dec. 18, 1972, eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987;
    Apr. 23, 1996, eff. Dec. 1, 1996.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). The first sentence is a restatement of
    the substance of U.S.C., Title 28, [former] Sec. 635 (Proof in
    common-law actions), Sec. 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, Sec. 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] Sec. 631 (Competency of witnesses
    governed by State laws).
      Note to Subdivision (b). See 4 Wigmore on Evidence (2d ed., 1923)
    Sec. 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 (1876); Nelson v. United States, 201 U.S. 92. 114 (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, Sec. 1 (Words importing
    singular number, masculine gender, etc.; extended application),
    providing for affirmation in lieu of oath.

      NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE
                         REGARDING RULES 43 AND 44
      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; 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT       
      Rule 43(a) is revised to conform to the style conventions adopted
    for simplifying the present Civil Rules. The only intended changes
    of meaning are described below.
      The requirement that testimony be taken "orally" is deleted. The
    deletion makes it clear that testimony of a witness may be given in
    open court by other means if the witness is not able to communicate
    orally. Writing or sign language are common examples. The
    development of advanced technology may enable testimony to be given
    by other means. A witness unable to sign or write by hand may be
    able to communicate through a computer or similar device.
      Contemporaneous transmission of testimony from a different
    location is permitted only on showing good cause in compelling
    circumstances. The importance of presenting live testimony in court
    cannot be forgotten. The very ceremony of trial and the presence of
    the factfinder may exert a powerful force for truthtelling. The
    opportunity to judge the demeanor of a witness face-to-face is
    accorded great value in our tradition. Transmission cannot be
    justified merely by showing that it is inconvenient for the witness
    to attend the trial.
      The most persuasive showings of good cause and compelling
    circumstances are likely to arise when a witness is unable to
    attend trial for unexpected reasons, such as accident or illness,
    but remains able to testify from a different place. Contemporaneous
    transmission may be better than an attempt to reschedule the trial,
    particularly if there is a risk that other - and perhaps more
    important - witnesses might not be available at a later time.
      Other possible justifications for remote transmission must be
    approached cautiously. Ordinarily depositions, including video
    depositions, provide a superior means of securing the testimony of
    a witness who is beyond the reach of a trial subpoena, or of
    resolving difficulties in scheduling a trial that can be attended
    by all witnesses. Deposition procedures ensure the opportunity of
    all parties to be represented while the witness is testifying. An
    unforeseen need for the testimony of a remote witness that arises
    during trial, however, may establish good cause and compelling
    circumstances. Justification is particularly likely if the need
    arises from the interjection of new issues during trial or from the
    unexpected inability to present testimony as planned from a
    different witness.
      Good cause and compelling circumstances may be established with
    relative ease if all parties agree that testimony should be
    presented by transmission. The court is not bound by a stipulation,
    however, and can insist on live testimony. Rejection of the
    parties' agreement will be influenced, among other factors, by the
    apparent importance of the testimony in the full context of the
    trial.
      A party who could reasonably foresee the circumstances offered to
    justify transmission of testimony will have special difficulty in
    showing good cause and the compelling nature of the circumstances.
    Notice of a desire to transmit testimony from a different location
    should be given as soon as the reasons are known, to enable other
    parties to arrange a deposition, or to secure an advance ruling on
    transmission so as to know whether to prepare to be present with
    the witness while testifying.
      No attempt is made to specify the means of transmission that may
    be used. Audio transmission without video images may be sufficient
    in some circumstances, particularly as to less important testimony.
    Video transmission ordinarily should be preferred when the cost is
    reasonable in relation to the matters in dispute, the means of the
    parties, and the circumstances that justify transmission.
    Transmission that merely produces the equivalent of a written
    statement ordinarily should not be used.
      Safeguards must be adopted that ensure accurate identification of
    the witness and that protect against influence by persons present
    with the witness. Accurate transmission likewise must be assured.
      Other safeguards should be employed to ensure that advance notice
    is given to all parties of foreseeable circumstances that may lead
    the proponent to offer testimony by transmission. Advance notice is
    important to protect the opportunity to argue for attendance of the
    witness at trial. Advance notice also ensures an opportunity to
    depose the witness, perhaps by video record, as a means of
    supplementing transmitted testimony.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a), are set
    out in this Appendix.


-MISC2-
       EFFECTIVE DATE OF AMENDMENTS PROPOSED NOVEMBER 20, 1972, AND
                             DECEMBER 18, 1972
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 44                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 44. Proof of Official Record

-STATUTE-
      (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.

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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:

     Sec. 661 [now 1733] (Copies of department or corporation records
          and papers; admissibility; seal)
     Sec. 662 [now 1733] (Same; in office of General Counsel of the
          Treasury)
     Sec. 663 [now 1733] (Instruments and papers of Comptroller of
          Currency; admissibility)
     Sec. 664 [now 1733] (Organization certificates of national banks;
          admissibility)
     Sec. 665 [now 1733] (Transcripts from books of Treasury in suits
          against delinquents; admissibility)
     Sec. 666 [now 1733] (Same; certificate by Secretary or Assistant
          Secretary)
     Sec. 670 [now 1743] (Admissibility of copies of statements of
          demands by Post Office Department)
     Sec. 671 [now 1733] (Admissibility of copies of post office
          records and statement of accounts)
     Sec. 672 [former] (Admissibility of copies of records in General
          Land Office)
     Sec. 673 [now 1744] (Admissibility of copies of records, and so
          forth, of Patent Office)
     Sec. 674 [now 1745] (Copies of foreign letters patent as prima
          facie evidence)
     Sec. 675 [former] (Copies of specifications and drawings of
          patents admissible)
     Sec. 676 [now 1736] (Extracts from Journals of Congress admissible
          when injunction of secrecy removed)
     Sec. 677 [now 1740] (Copies of records in offices of United States
          consuls admissible)
     Sec. 678 [former] (Books and papers in certain district courts)
     Sec. 679 [former] (Records in clerks' offices, western district of
          North Carolina)
     Sec. 680 [former] (Records in clerks' offices of former district
          of California)
     Sec. 681 [now 1734] (Original records lost or destroyed; certified
          copy admissible)
     Sec. 682 [now 1734] (Same; when certified copy not obtainable)
     Sec. 685 [now 1735] (Same; certified copy of official papers)
     Sec. 687 [now 1738] (Authentication of legislative acts; proof of
          judicial proceedings of State)
     Sec. 688 [now 1739] (Proofs of records in offices not pertaining
          to courts)
     Sec. 689 [now 1742] (Copies of foreign records relating to land
          titles)
     Sec. 695 [now 1732] (Writings and records made in regular course
          of business; admissibility)
     Sec. 695e [now 1741] (Foreign documents on record in public
          offices; certification)

    U.S.C., Title 1:

     Sec. 30 [now 112] (Statutes at large; contents; admissibility in
          evidence)
     Sec. 30a [now 113] ("Little and Brown's" edition of laws and
          treaties competent evidence of Acts of Congress)
     Sec. 54 [now 204] (Codes and supplements as establishing prima
          facie the laws of United States and District of Columbia,
          etc.)
     Sec. 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:

     Sec. 490 [former] (Records of Department of Interior;
          authenticated copies as evidence)

    U.S.C., Title 6:

     Sec. 7 [now Title 31, Sec. 9306] (Surety Companies as sureties;
          appointment of agents; service of process)

    U.S.C., Title 8:

     Sec. 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)
     Sec. 356 [see 1443] (Regulations for execution of naturalization
          laws; certified copies of papers as evidence)
     Sec. 399b(d) [see 1443] (Certifications of naturalization records;
          authorization; admissibility as evidence)

    U.S.C., Title 11:

     Sec. 44(d), (e), (f), (g) [former] (Bankruptcy court proceedings
          and orders as evidence)
     Sec. 204 [former] (Extensions extended, etc.; evidence of
          confirmation)
     Sec. 207(j) [former] (Corporate reorganizations; certified copy of
          decree as evidence)

    U.S.C., Title 15:

     Sec. 127 (Trade-mark records in Patent Office; copies as evidence)

    U.S.C., Title 20:

     Sec. 52 (Smithsonian Institution; evidence of title to site and
          buildings)

    U.S.C., Title 25:

     Sec. 6 (Bureau of Indian Affairs; seal; authenticated and
          certified documents; evidence)

    U.S.C., Title 31:

     Sec. 46 [now 704] (Laws governing General Accounting Office;
          copies of books, records, etc., thereof as evidence)

    U.S.C., Title 38:

     Sec. 11g [see 302] (Seal of Veterans' Administration;
          authentication of copies of records)

    U.S.C., Title 40:

     Sec. 238 [former] (National Archives; seal; reproduction of
          archives; fee; admissibility in evidence of reproductions)
     Sec. 270c [now 3133(a)] (Bonds of contractors for public works;
          right of person furnishing labor or material to copy of bond)

    U.S.C., Title 43:

     Secs. 57-59 (Copies of land surveys, etc., in certain states and
          districts admissible as evidence)
     Sec. 83 (General Land Office registers and receivers; transcripts
          of records as evidence)

    U.S.C., Title 46:

     Sec. 823 [former] (Records of Maritime Commission; copies;
          publication of reports; evidence)

    U.S.C., Title 47:

     Sec. 154(m) (Federal Communications Commission; copies of reports
          and decisions as evidence)
     Sec. 412 (Documents filed with Federal Communications Commission
          as public records; prima facie evidence; confidential
          records)

    U.S.C., Title 49:

     Sec. 14(3) [see 706] (Interstate Commerce Commission reports and
          decisions; printing and distribution of copies)
     Sec. 16(13) [former] (Copies of schedules, tariffs, etc., filed
          with Interstate Commerce Commission as evidence)
     Sec. 19a(i) [former] (Valuation of property of carriers by
          Interstate Commerce Commission; final published valuations as
          evidence)

      NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE
                         REGARDING RULES 43 AND 44
      For supplementary note of Advisory Committee on this rule, see
    note under rule 43.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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 Sec. 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. Sec. 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. Sec. 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
    Secs. 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. Secs. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The 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).

-End-



-CITE-
    28 USC APPENDIX Rule 44.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 44.1. Determination of Foreign Law

-STATUTE-
      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.

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966; amended Nov. 20, 1972,
    eff. July 1, 1975; Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1966            
      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, Sec. 8-273; 2
    W.Va.Code Ann. Sec. 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 Sec. 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, Sec. 638 (1st ed.
    1834, 8th ed. 1883); 1 Greenleaf, Evidence, Sec. 486 (1st ed. 1842,
    16th ed. 1899); 4 Wigmore, Evidence Sec. 2558 (1st ed. 1905); 9 id.
    Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in text, are set out
    in this Appendix.


-MISC2-
          EFFECTIVE DATE OF AMENDMENT PROPOSED NOVEMBER 20, 1972      
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 45                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 45. Subpoena

-STATUTE-
      (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. Sec. 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).

-SOURCE-
    (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.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Secs. 222 and 511n (Secretary of Agriculture)
     U.S.C., Title 15, Sec. 49 (Federal Trade Commission)
     U.S.C., Title 15, Secs. 77v(b), 78u(c), 79r(d) (Securities and
          Exchange Commission)
     U.S.C., Title 16, Secs. 797(g) and 825f (Federal Power Commission)
     U.S.C., Title 19, Sec. 1333(b) (Tariff Commission)
     U.S.C., Title 22, Secs. 268, 270d and 270e (International
          Commissions, etc.)
     U.S.C., Title 26, Secs. 614, 619(b) [see 7456] (Board of Tax
          Appeals)
     U.S.C., Title 26, Sec. 1523(a) [see 7608] (Internal Revenue
          Officers)
     U.S.C., Title 29, Sec. 161 (Labor Relations Board)
     U.S.C., Title 33, Sec. 506 (Secretary of Army)
     U.S.C., Title 35, Secs. 54-56 [now 24] (Patent Office proceedings)
     U.S.C., Title 38, [former] Sec. 133 (Veterans' Administration)
     U.S.C., Title 41, Sec. 39 (Secretary of Labor)
     U.S.C., Title 45, Sec. 157 Third. (h) (Board of Arbitration under
          Railway Labor Act)
     U.S.C., Title 45, Sec. 222(b) (Investigation Commission under
          Railroad Retirement Act of 1935)
     U.S.C., Title 46 [App.], Sec. 1124(b) (Maritime Commission)
     U.S.C., Title 47, Sec. 409(c) and (d) (Federal Communications
          Commission)
     U.S.C., Title 49, Sec. 12(2) and (3) [see 721(c) and 13301(c)]
          (Interstate Commerce Commission)
     U.S.C., Title 49, Sec. 173a [see 46104] (Secretary of Commerce)

      Note to Subdivisions (a) and (b). These simplify the form of
    subpoena as provided in U.S.C., Title 28, [former] Sec. 655
    (Witnesses; subpoena; form; attendance under); and broaden U.S.C.,
    Title 28, [former] Sec. 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) Sec. 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) Secs. 220, 404, J.Ct.Act, Sec. 191; 3
    Wash.Rev.Stat.Ann. (Remington, 1932) Sec. 1218. Compare Equity Rule
    15 (Process, by Whom Served).
      For statutes governing fees and mileage of witnesses see:

    U.S.C., Title 28:

     Sec. 600a [now 1871] (Per diem; mileage)
     Sec. 600c [now 1821, 1825] (Amount per diem and mileage for
          witnesses; subsistence)
     Sec. 600d [former] (Fees and mileage in certain states)
     Sec. 601 [former] (Witnesses; fees; enumeration)
     Sec. 602 [now 1824] (Fees and mileage of jurors and witnesses)
     Sec. 603 [see Title 5, Secs. 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] Sec.
    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] Sec. 648 (Deposition under
    dedimus potestatem; witnesses, when required to attend); N.Y.C.P.A.
    (1937) Sec. 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] Sec. 654 (Witnesses;
    subpoenas; may run into another district). Compare U.S.C., Title
    11, [former] Sec. 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:

     Sec. 23 (Suits by United States; subpoenas for witnesses) (under
          antitrust laws).

    U.S.C., Title 38:

     Sec. 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, Secs. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (b). The added words, "or tangible things" in
    subdivision (b) merely make 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1980 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 46                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 46. Exceptions Unnecessary

-STATUTE-
      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.

-SOURCE-
    (As amended Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Abolition of formal exceptions is often provided by statute. See
    Ill.Rev.Stat. (1937), ch. 110, Sec. 204; Neb.Comp.Stat. (1929) Sec.
    20-1139; N.M.Stat.Ann. (Courtright, 1929) Sec. 105-830; 2
    N.D.Comp.Laws Ann. (1913) Sec. 7653; Ohio Code Ann. (Throckmorton,
    1936) Sec. 11560; 1 S.D.Comp.Laws (1929) Sec. 2542; Utah
    Rev.Stat.Ann. (1933) Secs. 104-39-2, 104-24-18; Va.Rules of Court,
    Rule 22, 163 Va. v, xii (1935); Wis.Stat. (1935) Sec. 270.39.
    Compare N.Y.C.P.A. (1937) Secs. 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] Secs. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 47                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 47. Selection of Jurors

-STATUTE-
      (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. Sec. 1870.
      (c) Excuse. The court may for good cause excuse a juror from
    service during trial or deliberation.

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1991, eff.
    Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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) Sec.
    2330(a); Ohio Gen.Code Ann. (Page, Supp. 1926-1935) Sec. 11419-47;
    Pa.Stat.Ann. (Purdon, Supp. 1936) Title 17, Sec. 1153; compare
    U.S.C., Title 28, [former] Sec. 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:

     Sec. 411 [now 1861] (Qualifications and exemptions)
     Sec. 412 [now 1864] (Manner of drawing)
     Sec. 413 [now 1865] (Apportioned in district)
     Sec. 415 [see 1862] (Not disqualified because of race or color)
     Sec. 416 [now 1867] (Venire; service and return)
     Sec. 417 [now 1866] (Talesmen for petit jurors)
     Sec. 418 [now 1866] (Special juries)
     Sec. 423 [now 1869] (Jurors not to serve more than once a year)
     Sec. 424 [now 1870] (Challenges)

    and D.C. Code (1930) Title 18, Secs. 341-360 (Juries and Jury
    Commission) and Title 6, Sec. 366 (Peremptory challenges.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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."

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 48                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 48. Number of Jurors - Participation in Verdict

-STATUTE-
      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.

-SOURCE-
    (As amended Apr. 30, 1991, eff. Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      For provisions in state codes, compare Utah Rev.Stat.Ann. (1933)
    Sec. 48-O-5 (In civil cases parties may agree in open court on
    lesser number of jurors); 2 Wash.Rev.Stat.Ann. (Remington, 1932)
    Sec. 323 (Parties may consent to any number of jurors not less than
    three).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 49                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 49. Special Verdicts and Interrogatories

-STATUTE-
      (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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.
    Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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
    (1914); Spokane and I. E. R. Co. v. Campbell, 217 Fed. 518
    (C.C.A.9th, 1914), affd. 241 U.S. 497 (1916); Simkins, Federal
    Practice (1934) Sec. 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
    (1897); Southwestern Brewery and Ice Co. v. Schmidt, 226 U.S. 162
    (1912).
      Compare Wis.Stat. (1935) Secs. 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] Sec. 400(3)
    (Declaratory judgments authorized; procedure) permitting the
    submission of issues of fact to a jury are covered by this rule.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      This amendment conforms to the amendment of Rule 58. See the
    Advisory Committee's Note to Rule 58, as amended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 50                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative
      Motion for New Trial; Conditional Rulings

-STATUTE-
      (a) Judgment as a Matter of Law.
        (1) If during a trial by jury a party has been fully heard on
      an issue and there is no legally sufficient evidentiary basis for
      a reasonable jury to find for that party on that issue, the court
      may determine the issue against that party and may grant a motion
      for judgment as a matter of law against that party with respect
      to a claim or defense that cannot under the controlling law be
      maintained or defeated 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) Renewing Motion for Judgment After Trial; Alternative Motion
    for New Trial. If, for any reason, the court does not grant a
    motion for judgment as a matter of law made at the close of all the
    evidence, the court is considered to have submitted the action to
    the jury subject to the court's later deciding the legal questions
    raised by the motion. The movant may renew its request for judgment
    as a matter of law by filing a motion no later than 10 days after
    entry of judgment - and may alternatively request a new trial or
    join a motion for a new trial under Rule 59. In ruling on a renewed
    motion, the court may:
        (1) if a verdict was returned:
          (A) allow the judgment to stand,
          (B) order a new trial, or
          (C) direct entry of judgment as a matter of law; or

        (2) if no verdict was returned:
          (A) order a new trial, or
          (B) direct entry of judgment as a matter of law.

      (c) Granting Renewed Motion for Judgment as a Matter of Law;
    Conditional Rulings; New Trial Motion.
        (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) Any motion for a new trial under Rule 59 by a party against
      whom judgment as a matter of law is rendered shall be filed no
      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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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 (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) Sec. 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 (1935); compare Slocum v. New York Life Ins.
    Co., 228 U.S. 364 (1913).
      See Northern Ry. Co. v. Page, 274 U.S. 65 (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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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 Sec.
    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 Sec.
    1302.1 at 346-47 (Wright ed. 1958); 6 Moore's Federal Practice
    &#182; 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      Subdivision (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 Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This technical amendment corrects an ambiguity in the text of the
    1991 revision of the rule, which, as indicated in the Notes, was
    not intended to change the existing standards under which "directed
    verdicts" could be granted. This amendment makes clear that
    judgments as a matter of law in jury trials may be entered against
    both plaintiffs and defendants and with respect to issues or
    defenses that may not be wholly dispositive of a claim or defense.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      The only change, other than stylistic, intended by this revision
    is to prescribe a uniform explicit time for filing of post-judgment
    motions under this rule - no later than 10 days after entry of the
    judgment. Previously, there was an inconsistency in the wording of
    Rules 50, 52, and 59 with respect to whether certain post-judgment
    motions had to be filed, or merely served, during that period. This
    inconsistency caused special problems when motions for a new trial
    were joined with other post-judgment motions. These motions affect
    the finality of the judgment, a matter often of importance to third
    persons as well as the parties and the court. The Committee
    believes that each of these rules should be revised to require
    filing before end of the 10-day period. Filing is an event that can
    be determined with certainty from court records. The phrase "no
    later than" is used - rather than "within" - to include
    post-judgment motions that sometimes are filed before actual entry
    of the judgment by the clerk. It should be noted that under Rule
    6(a) Saturdays, Sundays, and legal holidays are excluded in
    measuring the 10-day period, and that under Rule 5 the motions when
    filed are to contain a certificate of service on other parties.

-End-



-CITE-
    28 USC APPENDIX Rule 51                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 51. Instructions to Jury; Objections; Preserving a Claim of
      Error

-STATUTE-
      (a) Requests.
        (1) A party may, at the close of the evidence or at an earlier
      reasonable time that the court directs, file and furnish to every
      other party written requests that the court instruct the jury on
      the law as set forth in the requests.
        (2) After the close of the evidence, a party may:
          (A) file requests for instructions on issues that could not
        reasonably have been anticipated at an earlier time for
        requests set under Rule 51(a)(1), and
          (B) with the court's permission file untimely requests for
        instructions on any issue.

      (b) Instructions. The court:
        (1) must inform the parties of its proposed instructions and
      proposed action on the requests before instructing the jury and
      before final jury arguments;
        (2) must give the parties an opportunity to object on the
      record and out of the jury's hearing to the proposed instructions
      and actions on requests before the instructions and arguments are
      delivered; and
        (3) may instruct the jury at any time after trial begins and
      before the jury is discharged.

      (c) Objections.
        (1) A party who objects to an instruction or the failure to
      give an instruction must do so on the record, stating distinctly
      the matter objected to and the grounds of the objection.
        (2) An objection is timely if:
          (A) a party that has been informed of an instruction or
        action on a request before the jury is instructed and before
        final jury arguments, as provided by Rule 51(b)(1), objects at
        the opportunity for objection required by Rule 51(b)(2); or
          (B) a party that has not been informed of an instruction or
        action on a request before the time for objection provided
        under Rule 51(b)(2) objects promptly after learning that the
        instruction or request will be, or has been, given or refused.

      (d) Assigning Error; Plain Error.
        (1) A party may assign as error:
          (A) an error in an instruction actually given if that party
        made a proper objection under Rule 51(c), or
          (B) a failure to give an instruction if that party made a
        proper request under Rule 51(a), and - unless the court made a
        definitive ruling on the record rejecting the request - also
        made a proper objection under Rule 51(c).

        (2) A court may consider a plain error in the instructions
      affecting substantial rights that has not been preserved as
      required by Rule 51(d)(1)(A) or (B).

-SOURCE-
    (As amended Mar. 2, 1987, eff. Aug. 1, 1987; Mar. 27, 2003, eff.
    Dec. 1, 2003.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      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.

                 COMMITTEE NOTES ON RULES - 2003 AMENDMENT             
      Rule 51 is revised to capture many of the interpretations that
    have emerged in practice. The revisions in text will make uniform
    the conclusions reached by a majority of decisions on each point.
    Additions also are made to cover some practices that cannot now be
    anchored in the text of Rule 51.
      Scope. Rule 51 governs instructions to the trial jury on the law
    that governs the verdict. A variety of other instructions cannot
    practicably be brought within Rule 51. Among these instructions are
    preliminary instructions to a venire, and cautionary or limiting
    instructions delivered in immediate response to events at trial.
      Requests. Subdivision (a) governs requests. Apart from the plain
    error doctrine recognized in subdivision (d)(2), a court is not
    obliged to instruct the jury on issues raised by the evidence
    unless a party requests an instruction. The revised rule recognizes
    the court's authority to direct that requests be submitted before
    trial.
      The close-of-the-evidence deadline may come before trial is
    completed on all potential issues. Trial may be formally bifurcated
    or may be sequenced in some less formal manner. The close of the
    evidence is measured by the occurrence of two events: completion of
    all intended evidence on an identified phase of the trial and
    impending submission to the jury with instructions.
      The risk in directing a pretrial request deadline is that trial
    evidence may raise new issues or reshape issues the parties thought
    they had understood. Courts need not insist on pretrial requests in
    all cases. Even if the request time is set before trial or early in
    the trial, subdivision (a)(2)(A) permits requests after the close
    of the evidence to address issues that could not reasonably have
    been anticipated at the earlier time for requests set by the court.
      Subdivision (a)(2)(B) expressly recognizes the court's discretion
    to act on an untimely request. The most important consideration in
    exercising the discretion confirmed by subdivision (a)(2)(B) is the
    importance of the issue to the case - the closer the issue lies to
    the "plain error" that would be recognized under subdivision
    (d)(2), the better the reason to give an instruction. The cogency
    of the reason for failing to make a timely request also should be
    considered. To be considered under subdivision (a)(2)(B) a request
    should be made before final instructions and before final jury
    arguments. What is a "final" instruction and argument depends on
    the sequence of submitting the case to the jury. If separate
    portions of the case are submitted to the jury in sequence, the
    final arguments and final instructions are those made on submitting
    to the jury the portion of the case addressed by the arguments and
    instructions.
      Instructions. Subdivision (b)(1) requires the court to inform the
    parties, before instructing the jury and before final jury
    arguments related to the instruction, of the proposed instructions
    as well as the proposed action on instruction requests. The time
    limit is addressed to final jury arguments to reflect the practice
    that allows interim arguments during trial in complex cases; it may
    not be feasible to develop final instructions before such interim
    arguments. It is enough that counsel know of the intended
    instructions before making final arguments addressed to the issue.
    If the trial is sequenced or bifurcated, the final arguments
    addressed to an issue may occur before the close of the entire
    trial.
      Subdivision (b)(2) complements subdivision (b)(1) by carrying
    forward the opportunity to object established by present Rule 51.
    It makes explicit the opportunity to object on the record, ensuring
    a clear memorial of the objection.
      Subdivision (b)(3) reflects common practice by authorizing
    instructions at any time after trial begins and before the jury is
    discharged.
      Objections. Subdivision (c) states the right to object to an
    instruction or the failure to give an instruction. It carries
    forward the formula of present Rule 51 requiring that the objection
    state distinctly the matter objected to and the grounds of the
    objection, and makes explicit the requirement that the objection be
    made on the record. The provisions on the time to object make clear
    that it is timely to object promptly after learning of an
    instruction or action on a request when the court has not provided
    advance information as required by subdivision (b)(1). The need to
    repeat a request by way of objection is continued by new
    subdivision (d)(1)(B) except where the court made a definitive
    ruling on the record.
      Preserving a claim of error and plain error. Many cases hold that
    a proper request for a jury instruction is not alone enough to
    preserve the right to appeal failure to give the instruction. The
    request must be renewed by objection. This doctrine is appropriate
    when the court may not have sufficiently focused on the request, or
    may believe that the request has been granted in substance although
    in different words. But this doctrine may also prove a trap for the
    unwary who fail to add an objection after the court has made it
    clear that the request has been considered and rejected on the
    merits. Subdivision (d)(1)(B) establishes authority to review the
    failure to grant a timely request, despite a failure to add an
    objection, when the court has made a definitive ruling on the
    record rejecting the request.
      Many circuits have recognized that an error not preserved under
    Rule 51 may be reviewed in exceptional circumstances. The language
    adopted to capture these decisions in subdivision (d)(2) is
    borrowed from Criminal Rule 52. Although the language is the same,
    the context of civil litigation often differs from the context of
    criminal prosecution; actual application of the plain-error
    standard takes account of the differences. The Supreme Court has
    summarized application of Criminal Rule 52 as involving four
    elements: (1) there must be an error; (2) the error must be plain;
    (3) the error must affect substantial rights; and (4) the error
    must seriously affect the fairness, integrity, or public reputation
    of judicial proceedings. Johnson v. U.S., 520 U.S. 461, 466-467,
    469-470 (1997). (The Johnson case quoted the fourth element from
    its decision in a civil action, U.S. v. Atkinson, 297 U.S. 157, 160
    (1936): "In exceptional circumstances, especially in criminal
    cases, appellate courts, in the public interest, may, of their own
    motion, notice errors to which no exception has been taken, if the
    errors are obvious, or if they otherwise substantially affect the
    fairness, integrity, or public reputation of judicial
    proceedings.")
      The court's duty to give correct jury instructions in a civil
    action is shaped by at least four factors.
      The factor most directly implied by a "plain" error rule is the
    obviousness of the mistake. The importance of the error is a second
    major factor. The costs of correcting an error reflect a third
    factor that is affected by a variety of circumstances. In a case
    that seems close to the fundamental error line, account also may be
    taken of the impact a verdict may have on nonparties.
      Changes Made After Publication and Comment. The changes made
    after publication and comment are indicated by double-underlining
    and overstriking on the texts that were published in August 2001.
      Rule 51(d) was revised to conform the plain-error provision to
    the approach taken in Criminal Rule 52(b). The Note was revised as
    described in the Recommendation.

-End-



-CITE-
    28 USC APPENDIX Rule 52                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 52. Findings by the Court; Judgment on Partial Findings

-STATUTE-
      (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. On a party's motion filed no 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 accompany a motion for a new trial under Rule 59. When
    findings of fact are made in actions tried without a jury, the
    sufficiency of the evidence supporting the findings may be later
    questioned whether or not in the district court the party raising
    the question objected to the findings, moved to amend them, or
    moved for partial findings.
      (c) Judgment on Partial Findings. If during a trial without a
    jury a party has been fully heard on 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 with respect to a claim or defense
    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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff.
    Aug. 1, 1985; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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] Sec. 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] Secs. 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 (1913); Warren v. Keep, 155 U.S. 265 (1894); Furrer v.
    Ferris, 145 U.S. 132 (1892); Tilghman v. Proctor, 125 U.S. 136, 149
    (1888); Kimberly v. Arms, 129 U.S. 512, 524 (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) Sec. 364; California, Code Civ.Proc. (Deering,
    1937) Secs. 632, 634; Colorado, 1 Stat.Ann. (1935) Code Civ.Proc.
    Secs. 232, 291 (in actions before referees or for possession of and
    damages to land); Connecticut, Gen.Stats. Secs. 5660, 5664; Idaho,
    1 Code Ann. (1932) Secs. 7-302 through 7-305; Massachusetts (equity
    cases), 2 Gen.Laws (Ter.Ed., 1932) ch. 214, Sec. 23; Minnesota, 2
    Stat. (Mason, 1927) Sec. 9311; Nevada, 4 Comp.Laws (Hillyer, 1929)
    Sec. 8783-8784; New Jersey, Sup.Ct. Rule 113, 2 N.J.Misc. 1197,
    1239 (1924); New Mexico, Stat.Ann. (Courtright, 1929) Sec. 105-813;
    North Carolina, Code (1935) Sec. 569; North Dakota, 2 Comp.Laws
    Ann. (1913) Sec. 7641; Oregon, 2 Code Ann. (1930) Sec. 2-502; South
    Carolina, Code (Michie, 1932) Sec. 649; South Dakota, 1 Comp.Laws
    (1929) Secs. 2525-2526; Utah, Rev.Stat.Ann. (1933) Sec. 104-26-2,
    104-26-3; Vermont (where jury trial waived), Pub. Laws (1933) Sec.
    2069; Washington, 2 Rev.Stat.Ann. (Remington, 1932) Sec. 367;
    Wisconsin, Stat. (1935) Sec. 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) Secs. 9498, 8599;
    California, Code Civ.Proc. (Deering, 1937) Sec. 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, Sec. 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) Sec. 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) Sec. 104-41-5; Vermont,
    Roberge v. Troy, 105 Vt. 134, 163 Atl. 770 (1933); Washington, 2
    Rev.Stat.Ann. (Remington, 1932) Secs. 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) Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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) 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
    Publications (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) 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) 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. 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. 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 over-elaboration
    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; 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) 6 Fed.Rules Serv. 52a.1, Case
    1; Pen-Ken Oil & Gas Corp. v. Warfield Natural Gas Co. (E.D.Ky.
    1942) 5 Fed.Rules Serv. 52a.1, Case 3; also Commentary, Necessity
    of Findings of Fact (1941) 4 Fed.Rules Serv. 936.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      This amendment conforms to the amendment of Rule 58. See the
    Advisory Committee's Note to Rule 58, as amended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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 Sec. 2587, at 740 (1971) (language of the Rule
    is clear), with 5A J. Moore, Federal Practice &#182; 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This technical amendment corrects an ambiguity in the text of the
    1991 revision of the rule, similar to the revision being made to
    Rule 50. This amendment makes clear that judgments as a matter of
    law in nonjury trials may be entered against both plaintiffs and
    defendants and with respect to issues or defenses that may not be
    wholly dispositive of a claim or defense.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      The only change, other than stylistic, intended by this revision
    is to require that any motion to amend or add findings after a
    nonjury trial must be filed no later than 10 days after entry of
    the judgment. Previously, there was an inconsistency in the wording
    of Rules 50, 52, and 59 with respect to whether certain
    post-judgment motions had to be filed, or merely served, during
    that period. This inconsistency caused special problems when
    motions for a new trial were joined with other post-judgment
    motions. These motions affect the finality of the judgment, a
    matter often of importance to third persons as well as the parties
    and the court. The Committee believes that each of these rules
    should be revised to require filing before end of the 10-day
    period. Filing is an event that can be determined with certainty
    from court records. The phrase "no later than" is used - rather
    than "within" - to include post-judgment motions that sometimes are
    filed before actual entry of the judgment by the clerk. It should
    be noted that under Rule 6(a) Saturdays, Sundays, and legal
    holidays are excluded in measuring the 10-day period, and that
    under Rule 5 the motions when filed are to contain a certificate of
    service on other parties.

-End-



-CITE-
    28 USC APPENDIX Rule 53                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VI. TRIALS

-HEAD-
    Rule 53. Masters

-STATUTE-
      (a) Appointment.
        (1) Unless a statute provides otherwise, a court may appoint a
      master only to:
          (A) perform duties consented to by the parties;
          (B) hold trial proceedings and make or recommend findings of
        fact on issues to be decided by the court without a jury if
        appointment is warranted by
            (i) some exceptional condition, or
            (ii) the need to perform an accounting or resolve a
          difficult computation of damages; or

          (C) address pretrial and post-trial matters that cannot be
        addressed effectively and timely by an available district judge
        or magistrate judge of the district.

        (2) A master must not have a relationship to the parties,
      counsel, action, or court that would require disqualification of
      a judge under 28 U.S.C. Sec. 455 unless the parties consent with
      the court's approval to appointment of a particular person after
      disclosure of any potential grounds for disqualification.
        (3) In appointing a master, the court must consider the
      fairness of imposing the likely expenses on the parties and must
      protect against unreasonable expense or delay.

      (b) Order Appointing Master.
        (1) Notice. The court must give the parties notice and an
      opportunity to be heard before appointing a master. A party may
      suggest candidates for appointment.
        (2) Contents. The order appointing a master must direct the
      master to proceed with all reasonable diligence and must state:
          (A) the master's duties, including any investigation or
        enforcement duties, and any limits on the master's authority
        under Rule 53(c);
          (B) the circumstances - if any - in which the master may
        communicate ex parte with the court or a party;
          (C) the nature of the materials to be preserved and filed as
        the record of the master's activities;
          (D) the time limits, method of filing the record, other
        procedures, and standards for reviewing the master's orders,
        findings, and recommendations; and
          (E) the basis, terms, and procedure for fixing the master's
        compensation under Rule 53(h).

        (3) Entry of Order. The court may enter the order appointing a
      master only after the master has filed an affidavit disclosing
      whether there is any ground for disqualification under 28 U.S.C.
      Sec. 455 and, if a ground for disqualification is disclosed,
      after the parties have consented with the court's approval to
      waive the disqualification.
        (4) Amendment. The order appointing a master may be amended at
      any time after notice to the parties, and an opportunity to be
      heard.

      (c) Master's Authority. Unless the appointing order expressly
    directs otherwise, a master has authority to regulate all
    proceedings and take all appropriate measures to perform fairly and
    efficiently the assigned duties. The master may by order impose
    upon a party any noncontempt sanction provided by Rule 37 or 45,
    and may recommend a contempt sanction against a party and sanctions
    against a nonparty.
      (d) Evidentiary Hearings. Unless the appointing order expressly
    directs otherwise, a master conducting an evidentiary hearing may
    exercise the power of the appointing court to compel, take, and
    record evidence.
      (e) Master's Orders. A master who makes an order must file the
    order and promptly serve a copy on each party. The clerk must enter
    the order on the docket.
      (f) Master's Reports. A master must report to the court as
    required by the order of appointment. The master must file the
    report and promptly serve a copy of the report on each party unless
    the court directs otherwise.
      (g) Action on Master's Order, Report, or Recommendations.
        (1) Action. In acting on a master's order, report, or
      recommendations, the court must afford an opportunity to be heard
      and may receive evidence, and may: adopt or affirm; modify;
      wholly or partly reject or reverse; or resubmit to the master
      with instructions.
        (2) Time To Object or Move. A party may file objections to - or
      a motion to adopt or modify - the master's order, report, or
      recommendations no later than 20 days from the time the master's
      order, report, or recommendations are served, unless the court
      sets a different time.
        (3) Fact Findings. The court must decide de novo all objections
      to findings of fact made or recommended by a master unless the
      parties stipulate with the court's consent that:
          (A) the master's findings will be reviewed for clear error,
        or
          (B) the findings of a master appointed under Rule 53(a)(1)(A)
        or (C) will be final.

        (4) Legal Conclusions. The court must decide de novo all
      objections to conclusions of law made or recommended by a master.
        (5) Procedural Matters. Unless the order of appointment
      establishes a different standard of review, the court may set
      aside a master's ruling on a procedural matter only for an abuse
      of discretion.

      (h) Compensation.
        (1) Fixing Compensation. The court must fix the master's
      compensation before or after judgment on the basis and terms
      stated in the order of appointment, but the court may set a new
      basis and terms after notice and an opportunity to be heard.
        (2) Payment. The compensation fixed under Rule 53(h)(1) must be
      paid either:
          (A) by a party or parties; or
          (B) from a fund or subject matter of the action within the
        court's control.

        (3) Allocation. The court must allocate payment of the master's
      compensation among the parties after considering the nature and
      amount of the controversy, the means of the parties, and the
      extent to which any party is more responsible than other parties
      for the reference to a master. An interim allocation may be
      amended to reflect a decision on the merits.

      (i) Appointment of Magistrate Judge. A magistrate judge is
    subject to this rule only when the order referring a matter to the
    magistrate judge expressly provides that the reference is made
    under this rule.

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 28, 1983, eff.
    Aug. 1, 1983; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
    Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff.
    Dec. 1, 2003.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      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. Sec. 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. Sec. 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. Sec.
    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. Sec.
    636(b)(2) is governed by the provisions of Rule 53, with the
    exceptional condition requirement lifted in the case of a
    consensual reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This revision is made to conform the rule to changes made by the
    Judicial Improvements Act of 1990.

                 COMMITTEE NOTES ON RULES - 2003 AMENDMENT             
      Rule 53 is revised extensively to reflect changing practices in
    using masters. From the beginning in 1938, Rule 53 focused
    primarily on special masters who perform trial functions. Since
    then, however, courts have gained experience with masters appointed
    to perform a variety of pretrial and post-trial functions. See
    Willging, Hooper, Leary, Miletich, Reagan, & Shapard, Special
    Masters' Incidence and Activity (Federal Judicial Center 2000).
    This revised Rule 53 recognizes that in appropriate circumstances
    masters may properly be appointed to perform these functions and
    regulates such appointments. Rule 53 continues to address trial
    masters as well, but permits appointment of a trial master in an
    action to be tried to a jury only if the parties consent. The new
    rule clarifies the provisions that govern the appointment and
    function of masters for all purposes. Rule 53(g) also changes the
    standard of review for findings of fact made or recommended by a
    master. The core of the original Rule 53 remains, including its
    prescription that appointment of a master must be the exception and
    not the rule.
      Special masters are appointed in many circumstances outside the
    Civil Rules. Rule 53 applies only to proceedings that Rule 1 brings
    within its reach.
      Subdivision (a)(1). District judges bear primary responsibility
    for the work of their courts. A master should be appointed only in
    limited circumstances. Subdivision (a)(1) describes three different
    standards, relating to appointments by consent of the parties,
    appointments for trial duties, and appointments for pretrial or
    post-trial duties.
      Consent Masters. Subparagraph (a)(1)(A) authorizes appointment of
    a master with the parties' consent. Party consent does not require
    that the court make the appointment; the court retains unfettered
    discretion to refuse appointment.
      Trial Masters. Use of masters for the core functions of trial has
    been progressively limited. These limits are reflected in the
    provisions of subparagraph (a)(1)(B) that restrict appointments to
    exercise trial functions. The Supreme Court gave clear direction to
    this trend in La Buy v. Howes Leather Co., 352 U.S. 249 (1957);
    earlier roots are sketched in Los Angeles Brush Mfg. Corp. v.
    James, 272 U.S. 701 (1927). As to nonjury trials, this trend has
    developed through elaboration of the "exceptional condition"
    requirement in present Rule 53(b). This phrase is retained, and
    will continue to have the same force as it has developed. Although
    the provision that a reference "shall be the exception and not the
    rule" is deleted, its meaning is embraced for this setting by the
    exceptional condition requirement.
      Subparagraph (a)(1)(B)(ii) carries forward the approach of
    present Rule 53(b), which exempts from the "exceptional condition"
    requirement "matters of account and of difficult computation of
    damages." This approach is justified only as to essentially
    ministerial determinations that require mastery of much detailed
    information but that do not require extensive determinations of
    credibility. Evaluations of witness credibility should only be
    assigned to a trial master when justified by an exceptional
    condition.
      The use of a trial master without party consent is abolished as
    to matters to be decided by a jury unless a statute provides for
    this practice.
      Abolition of the direct power to appoint a trial master as to
    issues to be decided by a jury leaves the way free to appoint a
    trial master with the consent of all parties. A trial master should
    be appointed in a jury case, with consent of the parties and
    concurrence of the court, only if the parties waive jury trial with
    respect to the issues submitted to the master or if the master's
    findings are to be submitted to the jury as evidence in the manner
    provided by former Rule 53(e)(3). In no circumstance may a master
    be appointed to preside at a jury trial.
      The central function of a trial master is to preside over an
    evidentiary hearing on the merits of the claims or defenses in the
    action. This function distinguishes the trial master from most
    functions of pretrial and post-trial masters. If any master is to
    be used for such matters as a preliminary injunction hearing or a
    determination of complex damages issues, for example, the master
    should be a trial master. The line, however, is not distinct. A
    pretrial master might well conduct an evidentiary hearing on a
    discovery dispute, and a post-trial master might conduct
    evidentiary hearings on questions of compliance.
      Rule 53 has long provided authority to report the evidence
    without recommendations in nonjury trials. This authority is
    omitted from Rule 53(a)(1)(B). In some circumstances a master may
    be appointed under Rule 53(a)(1)(A) or (C) to take evidence and
    report without recommendations.
      For nonjury cases, a master also may be appointed to assist the
    court in discharging trial duties other than conducting an
    evidentiary hearing.
      Pretrial and Post-Trial Masters. Subparagraph (a)(1)(C)
    authorizes appointment of a master to address pretrial or
    post-trial matters. Appointment is limited to matters that cannot
    be addressed effectively and in a timely fashion by an available
    district judge or magistrate judge of the district. A master's
    pretrial or post-trial duties may include matters that could be
    addressed by a judge, such as reviewing discovery documents for
    privilege, or duties that might not be suitable for a judge. Some
    forms of settlement negotiations, investigations, or administration
    of an organization are familiar examples of duties that a judge
    might not feel free to undertake.
      Magistrate Judges. Particular attention should be paid to the
    prospect that a magistrate judge may be available for special
    assignments. United States magistrate judges are authorized by
    statute to perform many pretrial functions in civil actions. 28
    U.S.C. Sec. 636(b)(1). Ordinarily a district judge who delegates
    these functions should refer them to a magistrate judge acting as
    magistrate judge.
      There is statutory authority to appoint a magistrate judge as
    special master. 28 U.S.C. Sec. 636(b)(2). In special circumstances,
    or when expressly authorized by a statute other than Sec.
    636(b)(2), it may be appropriate to appoint a magistrate judge as a
    master when needed to perform functions outside those listed in
    Sec. 636(b)(1). There is no apparent reason to appoint a magistrate
    judge to perform as master duties that could be performed in the
    role of magistrate judge. Party consent is required for trial
    before a magistrate judge, moreover, and this requirement should
    not be undercut by resort to Rule 53 unless specifically authorized
    by statute; see 42 U.S.C. Sec. 2000e-5(f)(5).
      Pretrial Masters. The appointment of masters to participate in
    pretrial proceedings has developed extensively over the last two
    decades as some district courts have felt the need for additional
    help in managing complex litigation. This practice is not well
    regulated by present Rule 53, which focuses on masters as trial
    participants. Rule 53 is amended to confirm the authority to
    appoint - and to regulate the use of - pretrial masters.
      A pretrial master should be appointed only when the need is
    clear. Direct judicial performance of judicial functions may be
    particularly important in cases that involve important public
    issues or many parties. At the extreme, a broad delegation of
    pretrial responsibility as well as a delegation of trial
    responsibilities can run afoul of Article III.
      A master also may be appointed to address matters that blur the
    divide between pretrial and trial functions. The court's
    responsibility to interpret patent claims as a matter of law, for
    example, may be greatly assisted by appointing a master who has
    expert knowledge of the field in which the patent operates. Review
    of the master's findings will be de novo under Rule 53(g)(4), but
    the advantages of initial determination by a master may make the
    process more effective and timely than disposition by the judge
    acting alone. Determination of foreign law may present comparable
    difficulties. The decision whether to appoint a master to address
    such matters is governed by subdivision (a)(1)(C), not the
    trial-master provisions of subdivision (a)(1)(B).
      Post-Trial Masters. Courts have come to rely on masters to assist
    in framing and enforcing complex decrees. Present Rule 53 does not
    directly address this practice. Amended Rule 53 authorizes
    appointment of post-trial masters for these and similar purposes.
    The constraint of subdivision (a)(1)(C) limits this practice to
    cases in which the master's duties cannot be performed effectively
    and in a timely fashion by an available district judge or
    magistrate judge of the district.
      Reliance on a master is appropriate when a complex decree
    requires complex policing, particularly when a party has proved
    resistant or intransigent. This practice has been recognized by the
    Supreme Court, see Local 28, Sheet Metal Workers' Internat. Assn.
    v. EEOC, 478 U.S. 421, 481-482 (1986). The master's role in
    enforcement may extend to investigation in ways that are quite
    unlike the traditional role of judicial officers in an adversary
    system.
      Expert Witness Overlap. This rule does not address the
    difficulties that arise when a single person is appointed to
    perform overlapping roles as master and as court-appointed expert
    witness under Evidence Rule 706. Whatever combination of functions
    is involved, the Rule 53(a)(1)(B) limit that confines trial masters
    to issues to be decided by the court does not apply to a person who
    also is appointed as an expert witness under Evidence Rule 706.
      Subdivision (a)(2) and (3). Masters are subject to the Code of
    Conduct for United States Judges, with exceptions spelled out in
    the Code. Special care must be taken to ensure that there is no
    actual or apparent conflict of interest involving a master. The
    standard of disqualification is established by 28 U.S.C. Sec. 455.
    The affidavit required by Rule 53(b)(3) provides an important
    source of information about possible grounds for disqualification,
    but careful inquiry should be made at the time of making the
    initial appointment. The disqualification standards established by
    Sec. 455 are strict. Because a master is not a public judicial
    officer, it may be appropriate to permit the parties to consent to
    appointment of a particular person as master in circumstances that
    would require disqualification of a judge. The judge must be
    careful to ensure that no party feels any pressure to consent, but
    with such assurances - and with the judge's own determination that
    there is no troubling conflict of interests or disquieting
    appearance of impropriety - consent may justify an otherwise barred
    appointment.
      One potential disqualification issue is peculiar to the master's
    role. It may happen that a master who is an attorney represents a
    client whose litigation is assigned to the judge who appointed the
    attorney as master. Other parties to the litigation may fear that
    the attorney-master will gain special respect from the judge. A
    flat prohibition on appearance before the appointing judge during
    the time of service as master, however, might in some circumstances
    unduly limit the opportunity to make a desirable appointment. These
    matters may be regulated to some extent by state rules of
    professional responsibility. The question of present conflicts, and
    the possibility of future conflicts, can be considered at the time
    of appointment. Depending on the circumstances, the judge may
    consider it appropriate to impose a non-appearance condition on the
    lawyer-master, and perhaps on the master's firm as well.
      Subdivision (b). The order appointing a pretrial master is
    vitally important in informing the master and the parties about the
    nature and extent of the master's duties and authority. Care must
    be taken to make the order as precise as possible. The parties must
    be given notice and opportunity to be heard on the question whether
    a master should be appointed and on the terms of the appointment.
    To the extent possible, the notice should describe the master's
    proposed duties, time to complete the duties, standards of review,
    and compensation. Often it will be useful to engage the parties in
    the process of identifying the master, inviting nominations, and
    reviewing potential candidates. Party involvement may be
    particularly useful if a pretrial master is expected to promote
    settlement.
      The hearing requirement of Rule 53(b)(1) can be satisfied by an
    opportunity to make written submissions unless the circumstances
    require live testimony.
      Rule 53(b)(2) requires precise designation of the master's duties
    and authority. Clear identification of any investigating or
    enforcement duties is particularly important. Clear delineation of
    topics for any reports or recommendations is also an important part
    of this process. And it is important to protect against delay by
    establishing a time schedule for performing the assigned duties.
    Early designation of the procedure for fixing the master's
    compensation also may provide useful guidance to the parties.
      Ex parte communications between a master and the court present
    troubling questions. Ordinarily the order should prohibit such
    communications, assuring that the parties know where authority is
    lodged at each step of the proceedings. Prohibiting ex parte
    communications between master and court also can enhance the role
    of a settlement master by assuring the parties that settlement can
    be fostered by confidential revelations that will not be shared
    with the court. Yet there may be circumstances in which the
    master's role is enhanced by the opportunity for ex parte
    communications with the court. A master assigned to help coordinate
    multiple proceedings, for example, may benefit from off-the-record
    exchanges with the court about logistical matters. The rule does
    not directly regulate these matters. It requires only that the
    court exercise its discretion and address the topic in the order of
    appointment.
      Similarly difficult questions surround ex parte communications
    between a master and the parties. Ex parte communications may be
    essential in seeking to advance settlement. Ex parte communications
    also may prove useful in other settings, as with in camera review
    of documents to resolve privilege questions. In most settings,
    however, ex parte communications with the parties should be
    discouraged or prohibited. The rule requires that the court address
    the topic in the order of appointment.
      Subdivision (b)(2)(C) provides that the appointment order must
    state the nature of the materials to be preserved and filed as the
    record of the master's activities, and (b)(2)(D) requires that the
    order state the method of filing the record. It is not feasible to
    prescribe the nature of the record without regard to the nature of
    the master's duties. The records appropriate to discovery duties
    may be different from those appropriate to encouraging settlement,
    investigating possible violations of a complex decree, or making
    recommendations for trial findings. A basic requirement, however,
    is that the master must make and file a complete record of the
    evidence considered in making or recommending findings of fact on
    the basis of evidence. The order of appointment should routinely
    include this requirement unless the nature of the appointment
    precludes any prospect that the master will make or recommend
    evidence-based findings of fact. In some circumstances it may be
    appropriate for a party to file materials directly with the court
    as provided by Rule 5(e), but in many circumstances filing with the
    court may be inappropriate. Confidentiality is important with
    respect to many materials that may properly be considered by a
    master. Materials in the record can be transmitted to the court,
    and filed, in connection with review of a master's order, report,
    or recommendations under subdivisions (f) and (g). Independently of
    review proceedings, the court may direct filing of any materials
    that it wishes to make part of the public record.
      The provision in subdivision (b)(2)(D) that the order must state
    the standards for reviewing the master's orders, findings, or
    recommendations is a reminder of the provisions of subdivision
    (g)(3) that recognize stipulations for review less searching than
    the presumptive requirement of de novo decision by the court.
    Subdivision (b)(2)(D) does not authorize the court to supersede the
    limits of subdivision (g)(3).
      In setting the procedure for fixing the master's compensation, it
    is useful at the outset to establish specific guidelines to control
    total expense. The court has power under subdivision (h) to change
    the basis and terms for determining compensation after notice to
    the parties.
      Subdivision (b)(3) permits entry of the order appointing a master
    only after the master has filed an affidavit disclosing whether
    there is any ground for disqualification under 28 U.S.C. Sec. 455.
    If the affidavit discloses a possible ground for disqualification,
    the order can enter only if the court determines that there is no
    ground for disqualification or if the parties, knowing of the
    ground for disqualification, consent with the court's approval to
    waive the disqualification.
      The provision in Rule 53(b)(4) for amending the order of
    appointment is as important as the provisions for the initial
    order. Anything that could be done in the initial order can be done
    by amendment. The hearing requirement can be satisfied by an
    opportunity to make written submissions unless the circumstances
    require live testimony.
      Subdivision (c). Subdivision (c) is a simplification of the
    provisions scattered throughout present Rule 53. It is intended to
    provide the broad and flexible authority necessary to discharge the
    master's responsibilities. The most important delineation of a
    master's authority and duties is provided by the Rule 53(b)
    appointing order.
      Subdivision (d). The subdivision (d) provisions for evidentiary
    hearings are reduced from the extensive provisions in current Rule
    53. This simplification of the rule is not intended to diminish the
    authority that may be delegated to a master. Reliance is placed on
    the broad and general terms of subdivision (c).
      Subdivision (e). Subdivision (e) provides that a master's order
    must be filed and entered on the docket. It must be promptly served
    on the parties, a task ordinarily accomplished by mailing or other
    means as permitted by Rule 5(b). In some circumstances it may be
    appropriate to have the clerk's office assist the master in mailing
    the order to the parties.
      Subdivision (f). Subdivision (f) restates some of the provisions
    of present Rule 53(e)(1). The report is the master's primary means
    of communication with the court. The materials to be provided to
    support review of the report will depend on the nature of the
    report. The master should provide all portions of the record
    preserved under Rule 53(b)(2)(C) that the master deems relevant to
    the report. The parties may designate additional materials from the
    record, and may seek permission to supplement the record with
    evidence. The court may direct that additional materials from the
    record be provided and filed. Given the wide array of tasks that
    may be assigned to a pretrial master, there may be circumstances
    that justify sealing a report or review record against public
    access - a report on continuing or failed settlement efforts is the
    most likely example. A post-trial master may be assigned duties in
    formulating a decree that deserve similar protection. Such
    circumstances may even justify denying access to the report or
    review materials by the parties, although this step should be taken
    only for the most compelling reasons. Sealing is much less likely
    to be appropriate with respect to a trial master's report.
      Before formally making an order, report, or recommendations, a
    master may find it helpful to circulate a draft to the parties for
    review and comment. The usefulness of this practice depends on the
    nature of the master's proposed action.
      Subdivision (g). The provisions of subdivision (g)(1), describing
    the court's powers to afford a hearing, take evidence, and act on a
    master's order, report, or recommendations are drawn from present
    Rule 53(e)(2), but are not limited, as present Rule 53(e)(2) is
    limited, to the report of a trial master in a nonjury action. The
    requirement that the court must afford an opportunity to be heard
    can be satisfied by taking written submissions when the court acts
    on the report without taking live testimony.
      The subdivision (g)(2) time limits for objecting to - or seeking
    adoption or modification of - a master's order, report, or
    recommendations, are important. They are not jurisdictional.
    Although a court may properly refuse to entertain untimely review
    proceedings, the court may excuse the failure to seek timely
    review. The basic time period is lengthened to 20 days because the
    present 10-day period may be too short to permit thorough study and
    response to a complex report dealing with complex litigation. If no
    party asks the court to act on a master's report, the court is free
    to adopt the master's action or to disregard it at any relevant
    point in the proceedings.
      Subdivision (g)(3) establishes the standards of review for a
    master's findings of fact or recommended findings of fact. The
    court must decide de novo all objections to findings of fact made
    or recommended by the master unless the parties stipulate, with the
    court's consent, that the findings will be reviewed for clear error
    or - with respect to a master appointed on the parties' consent or
    appointed to address pretrial or post-trial matters - that the
    findings will be final. Clear-error review is more likely to be
    appropriate with respect to findings that do not go to the merits
    of the underlying claims or defenses, such as findings of fact
    bearing on a privilege objection to a discovery request. Even if no
    objection is made, the court is free to decide the facts de novo;
    to review for clear error if an earlier approved stipulation
    provided clear-error review; or to withdraw its consent to a
    stipulation for clear-error review or finality, and then to decide
    de novo. If the court withdraws its consent to a stipulation for
    finality or clear-error review, it may reopen the opportunity to
    object.
      Under Rule 53(g)(4), the court must decide de novo all objections
    to conclusions of law made or recommended by a master. As with
    findings of fact, the court also may decide conclusions of law de
    novo when no objection is made.
      Apart from factual and legal questions, masters often make
    determinations that, when made by a trial court, would be treated
    as matters of procedural discretion. The court may set a standard
    for review of such matters in the order of appointment, and may
    amend the order to establish the standard. If no standard is set by
    the original or amended order appointing the master, review of
    procedural matters is for abuse of discretion. The subordinate role
    of the master means that the trial court's review for abuse of
    discretion may be more searching than the review that an appellate
    court makes of a trial court.
      If a master makes a recommendation on any matter that does not
    fall within Rule 53(g)(3), (4), or (5), the court may act on the
    recommendation under Rule 53(g)(1).
      Subdivision (h). The need to pay compensation is a substantial
    reason for care in appointing private persons as masters.
      Payment of the master's fees must be allocated among the parties
    and any property or subject-matter within the court's control. The
    amount in controversy and the means of the parties may provide some
    guidance in making the allocation. The nature of the dispute also
    may be important - parties pursuing matters of public interest, for
    example, may deserve special protection. A party whose unreasonable
    behavior has occasioned the need to appoint a master, on the other
    hand, may properly be charged all or a major portion of the
    master's fees. It may be proper to revise an interim allocation
    after decision on the merits. The revision need not await a
    decision that is final for purposes of appeal, but may be made to
    reflect disposition of a substantial portion of the case.
      The basis and terms for fixing compensation should be stated in
    the order of appointment. The court retains power to alter the
    initial basis and terms, after notice and an opportunity to be
    heard, but should protect the parties against unfair surprise.
      The provision of former Rule 53(a) that the "provision for
    compensation shall not apply when a United States Magistrate Judge
    is designated to serve as a master" is deleted as unnecessary.
    Other provisions of law preclude compensation.
      Subdivision (i). Rule 53(i) carries forward unchanged former Rule
    53(f).
      Changes Made After Publication and Comment. Subdivision (a)(3),
    barring appearance by a master as attorney before the appointing
    judge during the period of the appointment, is deleted. Subdivision
    (a)(4) is renumbered as (a)(3).
      Subdivision (b)(2) is amended by adding new material to the
    subparagraph (A), (B,) (C), and (D) specifications of issues that
    must be addressed in the order appointing a master. (A) now
    requires a statement of any investigation or enforcement duties.
    (B) now establishes a presumption that ex parte communications
    between master and court are limited to administrative matters; the
    court may, in its discretion, permit ex parte communications on
    other matters. (C) directs that the order address not only
    preservation but also filing of the record. (D) requires that the
    order state the method of filing the record.
      Subdivision (b)(3) is changed by requiring an opportunity to be
    heard on an order amending an appointment order. It also is
    renumbered as (b)(4).
      Subdivision (b)(4), renumbered as (b)(3), is redrafted to express
    the original meaning more clearly.
      Subdivision (c) has a minor style change.
      Subdivision (g)(1) is amended to state that in acting on a
    master's recommendations the court "must" afford an opportunity to
    be heard.
      Subdivision (g)(3) is changed to narrow still further the
    opportunities to depart from de novo determination of objections to
    a master's findings or recommendations for findings of fact.
      Subdivision (g)(4) is changed by deleting the opportunity of the
    parties to stipulate that a master's conclusions of law will be
    final.

-End-


-CITE-
    28 USC APPENDIX VII. JUDGMENT                               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
                               VII. JUDGMENT                           

-End-



-CITE-
    28 USC APPENDIX Rule 54                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 54. Judgments; Costs

-STATUTE-
      (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; Attorneys' Fees.
        (1) Costs Other than Attorneys' Fees. Except when express
      provision therefor is made either in a statute of the United
      States or in these rules, costs other than attorneys' fees 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. Such 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.
        (2) Attorneys' Fees.
          (A) Claims for attorneys' fees and related nontaxable
        expenses shall be made by motion unless the substantive law
        governing the action provides for the recovery of such fees as
        an element of damages to be proved at trial.
          (B) Unless otherwise provided by statute or order of the
        court, the motion must be filed no later than 14 days after
        entry of judgment; must specify the judgment and the statute,
        rule, or other grounds entitling the moving party to the award;
        and must state the amount or provide a fair estimate of the
        amount sought. If directed by the court, the motion shall also
        disclose the terms of any agreement with respect to fees to be
        paid for the services for which claim is made.
          (C) On request of a party or class member, the court shall
        afford an opportunity for adversary submissions with respect to
        the motion in accordance with Rule 43(e) or Rule 78. The court
        may determine issues of liability for fees before receiving
        submissions bearing on issues of evaluation of services for
        which liability is imposed by the court. The court shall find
        the facts and state its conclusions of law as provided in Rule
        52(a).
          (D) By local rule the court may establish special procedures
        by which issues relating to such fees may be resolved without
        extensive evidentiary hearings. In addition, the court may
        refer issues relating to the value of services to a special
        master under Rule 53 without regard to the provisions of Rule
        53(a)(1) and may refer a motion for attorneys' fees to a
        magistrate judge under Rule 72(b) as if it were a dispositive
        pretrial matter.
          (E) The provisions of subparagraphs (A) through (D) do not
        apply to claims for fees and expenses as sanctions for
        violations of these rules or under 28 U.S.C. Sec. 1927.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff.
    July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff.
    Dec. 1, 1993; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 27, 2003, eff.
    Dec. 1, 2003.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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) Sec. 270.54;
    Compare N.Y.C.P.A. (1937) Sec. 476.
      Note to Subdivision (c). For the limitation on default contained
    in the first sentence, see 2 N.D.Comp.Laws Ann. (1913) Sec. 7680;
    N.Y.C.P.A. (1937) Sec. 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, Secs. 832-836 [now 1915] are unaffected by
    this rule. Other sections of U.S.C., Title 28, which are unaffected
    by this rule are: Secs. 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, Secs. 77v(a), 78aa, 79y (Securities and Exchange
          Commission)
     U.S.C., Title 16, Sec. 825p (Federal Power Commission)
     U.S.C., Title 26, [former] Secs. 1569(d) and 1645(d) (Internal
          revenue actions)
     U.S.C., Title 26, [former] Sec. 1670(b)(2) (Reimbursement of costs
          of recovery against revenue officers)
     U.S.C., Title 28, [former] Sec. 817 (Internal revenue actions)
     U.S.C., Title 28, Sec. 836 [now 1915] (United States - actions in
          forma pauperis)
     U.S.C., Title 28, Sec. 842 [now 2006] (Actions against revenue
          officers)
     U.S.C., Title 28, Sec. 870 [now 2408] (United States - in certain
          cases)
     U.S.C., Title 28, [former] Sec. 906 (United States - foreclosure
          actions)
     U.S.C., Title 47, Sec. 401 (Communications Commission)

      The provisions of the following and similar statutes as to costs
    are unaffected:

     U.S.C., Title 7, Sec. 210(f) (Actions for damages based on an
          order of the Secretary of Agriculture under Stockyards Act)
     U.S.C., Title 7, Sec. 499g(c) (Appeals from reparations orders of
          Secretary of Agriculture under Perishable Commodities Act)
     U.S.C., Title 8, [former] Sec. 45 (Action against district
          attorneys in certain cases)
     U.S.C., Title 15, Sec. 15 (Actions for injuries due to violation
          of antitrust laws)
     U.S.C., Title 15, Sec. 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, Sec. 77k (Actions by persons acquiring
          securities registered with untrue statements under Securities
          Act of 1933)
     U.S.C., Title 15, Sec. 78i(e) (Certain actions under the
          Securities Exchange Act of 1934)
     U.S.C., Title 15, Sec. 78r (Similar to 78i(e))
     U.S.C., Title 15, Sec. 96 (Infringement of trade-mark - damages)
     U.S.C., Title 15, Sec. 99 (Infringement of trade-mark -
          injunctions)
     U.S.C., Title 15, Sec. 124 (Infringement of trade-mark - damages)
     U.S.C., Title 19, Sec. 274 (Certain actions under customs law)
     U.S.C., Title 30, Sec. 32 (Action to determine right to possession
          of mineral lands in certain cases)
     U.S.C., Title 31, Secs. 232 [now 3730] and [former] 234 (Action
          for making false claims upon United States)
     U.S.C., Title 33, Sec. 926 (Actions under Harbor Workers'
          Compensation Act)
     U.S.C., Title 35, Sec. 67 [now 281, 284] (Infringement of patent -
          damages)
     U.S.C., Title 35, Sec. 69 [now 282] (Infringement of patent -
          pleading and proof)
     U.S.C., Title 35, Sec. 71 [now 288] (Infringement of patent - when
          specification too broad)
     U.S.C., Title 45, Sec. 153p (Actions for non-compliance with an
          order of National R. R. Adjustment Board for payment of
          money)
     U.S.C., Title 46, [former] Sec. 38 (Action for penalty for failure
          to register vessel)
     U.S.C., Title 46, [former] Sec. 829 (Action based on
          non-compliance with an order of Maritime Commission for
          payment of money)
     U.S.C., Title 46, Sec. 941 [now 31304] (Certain actions under Ship
          Mortgage Act)
     U.S.C., Title 46 [App.], Sec. 1227 (Actions for damages for
          violation of certain provisions of the Merchant Marine Act,
          1936)
     U.S.C., Title 47, Sec. 206 (Actions for certain violations of
          Communications Act of 1934)
     U.S.C., Title 49, Sec. 16(2) [see 11704, 15904] (Action based on
          non-compliance with an order of I. C. C. for payment of
          money)

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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; Rexford v. Brunswick-Balke-Collender Co. (1913) 228 U.S. 339;
    Collins v. Miller (1920) 252 U.S. 364. 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. See also United States v. Florian (1941) 312 U.S. 656, 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.
      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) 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT       
      This rule permitting appeal, upon the trial court's determination
    of "no just reason for delay," from a judgment upon one or more but
    fewer 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 fewer 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
    &#182; 54.34[2] (2d ed. 1953); 3 Barron & Holtzoff, Federal
    Practice & Procedure Sec. 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, Sec.
    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. Sec. 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 Sec. 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, Sec. 58.1, p. 321 (Wright ed. 1960).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Subdivision (d). This revision adds paragraph (2) to this
    subdivision to provide for a frequently recurring form of
    litigation not initially contemplated by the rules - disputes over
    the amount of attorneys' fees to be awarded in the large number of
    actions in which prevailing parties may be entitled to such awards
    or in which the court must determine the fees to be paid from a
    common fund. This revision seeks to harmonize and clarify
    procedures that have been developed through case law and local
    rules.
      Paragraph (1). Former subdivision (d), providing for taxation of
    costs by the clerk, is renumbered as paragraph (1) and revised to
    exclude applications for attorneys' fees.
      Paragraph (2). This new paragraph establishes a procedure for
    presenting claims for attorneys' fees, whether or not denominated
    as "costs." It applies also to requests for reimbursement of
    expenses, not taxable as costs, when recoverable under governing
    law incident to the award of fees. Cf. West Virginia Univ. Hosp. v.
    Casey, __ U.S. __ (1991), holding, prior to the Civil Rights Act of
    1991, that expert witness fees were not recoverable under 42 U.S.C.
    Sec. 1988. As noted in subparagraph (A), it does not, however,
    apply to fees recoverable as an element of damages, as when sought
    under the terms of a contract; such damages typically are to be
    claimed in a pleading and may involve issues to be resolved by a
    jury. Nor, as provided in subparagraph (E), does it apply to awards
    of fees as sanctions authorized or mandated under these rules or
    under 28 U.S.C. Sec. 1927.
      Subparagraph (B) provides a deadline for motions for attorneys'
    fees - 14 days after final judgment unless the court or a statute
    specifies some other time. One purpose of this provision is to
    assure that the opposing party is informed of the claim before the
    time for appeal has elapsed. Prior law did not prescribe any
    specific time limit on claims for attorneys' fees. White v. New
    Hampshire Dep't of Employment Sec., 455 U.S. 445 (1982). In many
    nonjury cases the court will want to consider attorneys' fee issues
    immediately after rendering its judgment on the merits of the case.
    Note that the time for making claims is specifically stated in some
    legislation, such as the Equal Access to Justice Act, 28 U.S.C.
    Sec. 2412(d)(1)(B) (30-day filing period).
      Prompt filing affords an opportunity for the court to resolve fee
    disputes shortly after trial, while the services performed are
    freshly in mind. It also enables the court in appropriate
    circumstances to make its ruling on a fee request in time for any
    appellate review of a dispute over fees to proceed at the same time
    as review on the merits of the case.
      Filing a motion for fees under this subdivision does not affect
    the finality or the appealability of a judgment, though revised
    Rule 58 provides a mechanism by which prior to appeal the court can
    suspend the finality to resolve a motion for fees. If an appeal on
    the merits of the case is taken, the court may rule on the claim
    for fees, may defer its ruling on the motion, or may deny the
    motion without prejudice, directing under subdivision (d)(2)(B) a
    new period for filing after the appeal has been resolved. A notice
    of appeal does not extend the time for filing a fee claim based on
    the initial judgment, but the court under subdivision (d)(2)(B) may
    effectively extend the period by permitting claims to be filed
    after resolution of the appeal. A new period for filing will
    automatically begin if a new judgment is entered following a
    reversal or remand by the appellate court or the granting of a
    motion under Rule 59.
      The rule does not require that the motion be supported at the
    time of filing with the evidentiary material bearing on the fees.
    This material must of course be submitted in due course, according
    to such schedule as the court may direct in light of the
    circumstances of the case. What is required is the filing of a
    motion sufficient to alert the adversary and the court that there
    is a claim for fees and the amount of such fees (or a fair
    estimate).
      If directed by the court, the moving party is also required to
    disclose any fee agreement, including those between attorney and
    client, between attorneys sharing a fee to be awarded, and between
    adversaries made in partial settlement of a dispute where the
    settlement must be implemented by court action as may be required
    by Rules 23(e) and 23.1 or other like provisions. With respect to
    the fee arrangements requiring court approval, the court may also
    by local rule require disclosure immediately after such
    arrangements are agreed to. E.g., Rule 5 of United States District
    Court for the Eastern District of New York; cf. In re "Agent
    Orange" Product Liability Litigation (MDL 381), 611 F. Supp. 1452,
    1464 (E.D.N.Y. 1985).
      In the settlement of class actions resulting in a common fund
    from which fees will be sought, courts frequently have required
    that claims for fees be presented in advance of hearings to
    consider approval of the proposed settlement. The rule does not
    affect this practice, as it permits the court to require
    submissions of fee claims in advance of entry of judgment.
      Subparagraph (C) assures the parties of an opportunity to make an
    appropriate presentation with respect to issues involving the
    evaluation of legal services. In some cases, an evidentiary hearing
    may be needed, but this is not required in every case. The amount
    of time to be allowed for the preparation of submissions both in
    support of and in opposition to awards should be tailored to the
    particular case.
      The court is explicitly authorized to make a determination of the
    liability for fees before receiving submissions by the parties
    bearing on the amount of an award. This option may be appropriate
    in actions in which the liability issue is doubtful and the
    evaluation issues are numerous and complex.
      The court may order disclosure of additional information, such as
    that bearing on prevailing local rates or on the appropriateness of
    particular services for which compensation is sought.
      On rare occasion, the court may determine that discovery under
    Rules 26-37 would be useful to the parties. Compare Rules Governing
    Section 2254 Cases in the U.S. District Courts, Rule 6. See Note,
    Determining the Reasonableness of Attorneys' Fees - the
    Discoverability of Billing Records, 64 B.U.L. Rev. 241 (1984). In
    complex fee disputes, the court may use case management techniques
    to limit the scope of the dispute or to facilitate the settlement
    of fee award disputes.
      Fee awards should be made in the form of a separate judgment
    under Rule 58 since such awards are subject to review in the court
    of appeals. To facilitate review, the paragraph provides that the
    court set forth its findings and conclusions as under Rule 52(a),
    though in most cases this explanation could be quite brief.
      Subparagraph (D) explicitly authorizes the court to establish
    procedures facilitating the efficient and fair resolution of fee
    claims. A local rule, for example, might call for matters to be
    presented through affidavits, or might provide for issuance of
    proposed findings by the court, which would be treated as accepted
    by the parties unless objected to within a specified time. A court
    might also consider establishing a schedule reflecting customary
    fees or factors affecting fees within the community, as implicitly
    suggested by Justice O'Connor in Pennsylvania v. Delaware Valley
    Citizens' Council, 483 U.S. 711, 733 (1987) (O'Connor, J.,
    concurring) (how particular markets compensate for contingency).
    Cf. Thompson v. Kennickell, 710 F. Supp. 1 (D.D.C. 1989) (use of
    findings in other cases to promote consistency). The parties, of
    course, should be permitted to show that in the circumstances of
    the case such a schedule should not be applied or that different
    hourly rates would be appropriate.
      The rule also explicitly permits, without need for a local rule,
    the court to refer issues regarding the amount of a fee award in a
    particular case to a master under Rule 53. The district judge may
    designate a magistrate judge to act as a master for this purpose or
    may refer a motion for attorneys' fees to a magistrate judge for
    proposed findings and recommendations under Rule 72(b). This
    authorization eliminates any controversy as to whether such
    references are permitted under Rule 53(b) as "matters of account
    and of difficult computation of damages" and whether motions for
    attorneys' fees can be treated as the equivalent of a dispositive
    pretrial matter that can be referred to a magistrate judge. For
    consistency and efficiency, all such matters might be referred to
    the same magistrate judge.
      Subparagraph (E) excludes from this rule the award of fees as
    sanctions under these rules or under 28 U.S.C. Sec. 1927.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Subdivision (d)(2)(C) is amended to delete the requirement that
    judgment on a motion for attorney fees be set forth in a separate
    document. This change complements the amendment of Rule 58(a)(1),
    which deletes the separate document requirement for an order
    disposing of a motion for attorney fees under Rule 54. These
    changes are made to support amendment of Rule 4 of the Federal
    Rules of Appellate Procedure. It continues to be important that a
    district court make clear its meaning when it intends an order to
    be the final disposition of a motion for attorney fees.
      The requirement in subdivision (d)(2)(B) that a motion for
    attorney fees be not only filed but also served no later than 14
    days after entry of judgment is changed to require filing only, to
    establish a parallel with Rules 50, 52, and 59. Service continues
    to be required under Rule 5(a).

                 COMMITTEE NOTES ON RULES - 2003 AMENDMENT             
      Rule 54(d)(2)(D) is revised to reflect amendments to Rule 53.

-End-



-CITE-
    28 USC APPENDIX Rule 55                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 55. Default

-STATUTE-
      (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.

-SOURCE-
    (As amended Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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] Sec. 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, Sec. 57. For affidavit of default, see 2 Minn.Stat.
    (Mason, 1927) Sec. 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) Sec. 485, in Calif.Code Civ.Proc.
    (Deering, 1937) Sec. 585(1), and in Conn.Practice Book (1934) Sec.
    47. For provisions similar to paragraph (2), compare Calif.Code,
    supra, Sec. 585(2); N.Y.C.P.A. (1937) Sec. 490; 2 Minn.Stat.
    (Mason, 1927) Sec. 9256(3); 2 Wash.Rev.Stat.Ann. (Remington, 1932)
    Sec. 411(2). U.S.C., Title 28, Sec. 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] Sec. 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] Sec.
    45 (Practice and procedure in certain cases under the interstate
    commerce laws) and similar statutes are modified insofar as they
    contain anything inconsistent therewith.

      NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE  
      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.
    [App.] Sec. 501 et seq.). Section 200 of the Act [50 U.S.C.
    Appendix, Sec. 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 Sec. 55.02.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 56                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 56. Summary Judgment

-STATUTE-
      (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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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) Sec. 14260) and
    Illinois (Ill.Rev.Stat. (1937) ch. 110, Secs. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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 serves 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. 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. 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) 149 F.(2d) 19; Biggins v. Oltmer Iron Works, supra;
    Catlin v. United States (1945) 324 U.S. 229.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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, Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 57                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 57. Declaratory Judgments

-STATUTE-
      The procedure for obtaining a declaratory judgment pursuant to
    Title 28, U.S.C., Sec. 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.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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) Sec. 1062a), Michigan (3 Comp.Laws (1929) Sec. 13904), and
    Kentucky (Codes (Carroll, 1932) Civ.Pract. Sec. 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 (1937); Nashville, Chattanooga & St.
    Louis Ry. v. Wallace, 288 U.S. 249 (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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

-End-



-CITE-
    28 USC APPENDIX Rule 58                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 58. Entry of Judgment

-STATUTE-
      (a) Separate Document.
        (1) Every judgment and amended judgment must be set forth on a
      separate document, but a separate document is not required for an
      order disposing of a motion:
          (A) for judgment under Rule 50(b);
          (B) to amend or make additional findings of fact under Rule
        52(b);
          (C) for attorney fees under Rule 54;
          (D) for a new trial, or to alter or amend the judgment, under
        Rule 59; or
          (E) for relief under Rule 60.

        (2) Subject to Rule 54(b):
          (A) unless the court orders otherwise, the clerk must,
        without awaiting the court's direction, promptly prepare, sign,
        and enter the judgment when:
            (i) the jury returns a general verdict,
            (ii) the court awards only costs or a sum certain, or
            (iii) the court denies all relief;

          (B) the court must promptly approve the form of the judgment,
        which the clerk must promptly enter, when:
            (i) the jury returns a special verdict or a general verdict
          accompanied by interrogatories, or
            (ii) the court grants other relief not described in Rule
          58(a)(2).

      (b) Time of Entry. Judgment is entered for purposes of these
    rules:
        (1) if Rule 58(a)(1) does not require a separate document, when
      it is entered in the civil docket under Rule 79(a), and
        (2) if Rule 58(a)(1) requires a separate document, when it is
      entered in the civil docket under Rule 79(a) and when the earlier
      of these events occurs:
          (A) when it is set forth on a separate document, or
          (B) when 150 days have run from entry in the civil docket
        under Rule 79(a).

      (c) Cost or Fee Awards.
        (1) Entry of judgment may not be delayed, nor the time for
      appeal extended, in order to tax costs or award fees, except as
      provided in Rule 58(c)(2).
        (2) When a timely motion for attorney fees is made under Rule
      54(d)(2), the court may act before a notice of appeal has been
      filed and has become effective to order that the motion have the
      same effect under Federal Rule of Appellate Procedure 4(a)(4) as
      a timely motion under Rule 59.

      (d) Request for Entry. A party may request that judgment be set
    forth on a separate document as required by Rule 58(a)(1).

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 2002, eff.
    Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      See Wis.Stat. (1935) Sec. 270.31 (judgment entered forthwith on
    verdict of jury unless otherwise ordered), Sec. 270.65 (where trial
    is by the court, entered by direction of the court), Sec. 270.63
    (entered by clerk on judgment on admitted claim for money). Compare
    1 Idaho Code Ann. (1932) Sec. 7-1101, and 4 Mont.Rev.Codes Ann.
    (1935) Sec. 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) Sec. 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) Sec. 431, in jury cases the judgment is entered
    two days after the return of verdict to give time for making motion
    for new trial; Sec. 435 (ibid.), provides that all judgments shall
    be entered by the clerk, subject to the court's direction.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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; Craig v.
    The Hartford (C.C.Cal. 1856) Fed.Case No. 3,333; Tuttle v. Claflin
    (C.C.A.2d, 1895) 60 Fed. 7, cert. den. (1897) 166 U.S. 721;
    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. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      Ordinarily the pendency or post-judgment filing of a claim for
    attorney's fees will not affect the time for appeal from the
    underlying judgment. See Budinich v. Becton Dickinson & Co., 486
    U.S. 196 (1988). Particularly if the claim for fees involves
    substantial issues or is likely to be affected by the appellate
    decision, the district court may prefer to defer consideration of
    the claim for fees until after the appeal is resolved. However, in
    many cases it may be more efficient to decide fee questions before
    an appeal is taken so that appeals relating to the fee award can be
    heard at the same time as appeals relating to the merits of the
    case. This revision permits, but does not require, the court to
    delay the finality of the judgment for appellate purposes under
    revised Fed. R. App. P. 4(a) until the fee dispute is decided. To
    accomplish this result requires entry of an order by the district
    court before the time a notice of appeal becomes effective for
    appellate purposes. If the order is entered, the motion for
    attorney's fees is treated in the same manner as a timely motion
    under Rule 59.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Rule 58 has provided that a judgment is effective only when set
    forth on a separate document and entered as provided in Rule 79(a).
    This simple separate document requirement has been ignored in many
    cases. The result of failure to enter judgment on a separate
    document is that the time for making motions under Rules 50, 52,
    54(d)(2)(B), 59, and some motions under Rule 60, never begins to
    run. The time to appeal under Appellate Rule 4(a) also does not
    begin to run. There have been few visible problems with respect to
    Rule 50, 52, 54(d)(2)(B), 59, or 60 motions, but there have been
    many and horridly confused problems under Appellate Rule 4(a).
    These amendments are designed to work in conjunction with Appellate
    Rule 4(a) to ensure that appeal time does not linger on
    indefinitely, and to maintain the integration of the time periods
    set for Rules 50, 52, 54(d)(2)(B), 59, and 60 with Appellate Rule
    4(a).
      Rule 58(a) preserves the core of the present separate document
    requirement, both for the initial judgment and for any amended
    judgment. No attempt is made to sort through the confusion that
    some courts have found in addressing the elements of a separate
    document. It is easy to prepare a separate document that recites
    the terms of the judgment without offering additional explanation
    or citation of authority. Forms 31 and 32 provide examples.
      Rule 58 is amended, however, to address a problem that arises
    under Appellate Rule 4(a). Some courts treat such orders as those
    that deny a motion for new trial as a "judgment," so that appeal
    time does not start to run until the order is entered on a separate
    document. Without attempting to address the question whether such
    orders are appealable, and thus judgments as defined by Rule 54(a),
    the amendment provides that entry on a separate document is not
    required for an order disposing of the motions listed in Appellate
    Rule 4(a). The enumeration of motions drawn from the Appellate Rule
    4(a) list is generalized by omitting details that are important for
    appeal time purposes but that would unnecessarily complicate the
    separate document requirement. As one example, it is not required
    that any of the enumerated motions be timely. Many of the
    enumerated motions are frequently made before judgment is entered.
    The exemption of the order disposing of the motion does not excuse
    the obligation to set forth the judgment itself on a separate
    document. And if disposition of the motion results in an amended
    judgment, the amended judgment must be set forth on a separate
    document.
      Rule 58(b) discards the attempt to define the time when a
    judgment becomes "effective." Taken in conjunction with the Rule
    54(a) definition of a judgment to include "any order from which an
    appeal lies," the former Rule 58 definition of effectiveness could
    cause strange difficulties in implementing pretrial orders that are
    appealable under interlocutory appeal provisions or under expansive
    theories of finality. Rule 58(b) replaces the definition of
    effectiveness with a new provision that defines the time when
    judgment is entered. If judgment is promptly set forth on a
    separate document, as should be done when required by Rule
    58(a)(1), the new provision will not change the effect of Rule 58.
    But in the cases in which court and clerk fail to comply with this
    simple requirement, the motion time periods set by Rules 50, 52,
    54, 59, and 60 begin to run after expiration of 150 days from entry
    of the judgment in the civil docket as required by Rule 79(a).
      A companion amendment of Appellate Rule 4(a)(7) integrates these
    changes with the time to appeal.
      The new all-purpose definition of the entry of judgment must be
    applied with common sense to other questions that may turn on the
    time when judgment is entered. If the 150-day provision in Rule
    58(b)(2)(B) - designed to integrate the time for post-judgment
    motions with appeal time - serves no purpose, or would defeat the
    purpose of another rule, it should be disregarded. In theory, for
    example, the separate document requirement continues to apply to an
    interlocutory order that is appealable as a final decision under
    collateral-order doctrine. Appealability under collateral-order
    doctrine should not be complicated by failure to enter the order as
    a judgment on a separate document - there is little reason to force
    trial judges to speculate about the potential appealability of
    every order, and there is no means to ensure that the trial judge
    will always reach the same conclusion as the court of appeals.
    Appeal time should start to run when the collateral order is
    entered without regard to creation of a separate document and
    without awaiting expiration of the 150 days provided by Rule
    58(b)(2). Drastic surgery on Rules 54(a) and 58 would be required
    to address this and related issues, however, and it is better to
    leave this conundrum to the pragmatic disregard that seems its
    present fate. The present amendments do not seem to make matters
    worse, apart from one false appearance. If a pretrial order is set
    forth on a separate document that meets the requirements of Rule
    58(b), the time to move for reconsideration seems to begin to run,
    perhaps years before final judgment. And even if there is no
    separate document, the time to move for reconsideration seems to
    begin 150 days after entry in the civil docket. This apparent
    problem is resolved by Rule 54(b), which expressly permits revision
    of all orders not made final under Rule 54(b) "at any time before
    the entry of judgment adjudicating all the claims and the rights
    and liabilities of all the parties."
      New Rule 58(d) replaces the provision that attorneys shall not
    submit forms of judgment except on direction of the court. This
    provision was added to Rule 58 to avoid the delays that were
    frequently encountered by the former practice of directing the
    attorneys for the prevailing party to prepare a form of judgment,
    and also to avoid the occasionally inept drafting that resulted
    from attorney-prepared judgments. See 11 Wright, Miller & Kane,
    Federal Practice & Procedure: Civil 2d, Sec. 2786. The express
    direction in Rule 58(a)(2) for prompt action by the clerk, and by
    the court if court action is required, addresses this concern. The
    new provision allowing any party to move for entry of judgment on a
    separate document will protect all needs for prompt commencement of
    the periods for motions, appeals, and execution or other
    enforcement.
      Changes Made After Publication and Comments. Minor style changes
    were made. The definition of the time of entering judgment in Rule
    58(b) was extended to reach all Civil Rules, not only the Rules
    described in the published version - Rules 50, 52, 54(d)(2)(B), 59,
    60, and 62. And the time of entry was extended from 60 days to 150
    days after entry in the civil docket without a required separate
    document.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in subd.
    (c)(2), are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 59                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 59. New Trials; Amendment of Judgments

-STATUTE-
      (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. Any motion for a new trial shall be filed no
    later than 10 days after entry of the judgment.
      (c) Time for Serving Affidavits. When a motion for new trial is
    based on affidavits, they shall be filed with the motion. The
    opposing party has 10 days after service to file opposing
    affidavits, but that period may be extended for up to 20 days,
    either by the court for good cause or by the parties' written
    stipulation. The court may permit reply affidavits.
      (d) On Court's Initiative; Notice; Specifying Grounds. No later
    than 10 days after entry of judgment the court, on its own, may
    order a new trial for any reason that would justify granting one on
    a party's motion. After giving the parties notice and an
    opportunity to be heard, the court may grant a timely motion for a
    new trial for a reason not stated in the motion. When granting a
    new trial on its own initiative or for a reason not stated in a
    motion, the court shall specify the grounds in its order.
      (e) Motion to Alter or Amend Judgment. Any motion to alter or
    amend a judgment shall be filed no later than 10 days after entry
    of the judgment.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff.
    July 1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Sec. 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) Secs. 656-663a, U.S.C., Title 28, Sec. 391 [see
    2111] (New trials; harmless error) is thus substantially continued
    in this rule. U.S.C., Title 28, [former] Sec. 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 (1926); Aspen Mining and Smelting Co. v.
    Billings, 150 U.S. 31 (1893).
      For partial new trials which are permissible under Subdivision
    (a), see Gasoline Products Co., Inc., v. Champlin Refining Co., 283
    U.S. 494 (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) Sec. 3852; Calif.Code Civ.Proc. (Deering, 1937)
    Secs. 657, 662; Ill.Rev.Stat. (1937) ch. 110, Sec. 216 (par. (f));
    Md.Ann.Code (Bagby, 1924) Art. 5, Secs. 25, 26; Mich.Court Rules
    Ann. (Searl, 1933) Rule 47, Sec. 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), Sec. 7844, as
    amended by N.D.Laws 1927, ch. 214.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      The only change, other than stylistic, intended by this revision
    is to add explicit time limits for filing motions for a new trial,
    motions to alter or amend a judgment, and affidavits opposing a new
    trial motion. Previously, there was an inconsistency in the wording
    of Rules 50, 52, and 59 with respect to whether certain
    post-judgment motions had to be filed, or merely served, during the
    prescribed period. This inconsistency caused special problems when
    motions for a new trial were joined with other post-judgment
    motions. These motions affect the finality of the judgment, a
    matter often of importance to third persons as well as the parties
    and the court. The Committee believes that each of these rules
    should be revised to require filing before end of the 10-day
    period. Filing is an event that can be determined with certainty
    from court records. The phrase "no later than" is used - rather
    than "within" - to include post-judgment motions that sometimes are
    filed before actual entry of the judgment by the clerk. It should
    be noted that under Rule 5 the motions when filed are to contain a
    certificate of service on other parties. It also should be noted
    that under Rule 6(a) Saturdays, Sundays, and legal holidays are
    excluded in measuring the 10-day period, but that Bankruptcy Rule
    9006(a) excludes intermediate Saturdays, Sundays, and legal
    holidays only in computing periods less than 8 days.

-End-



-CITE-
    28 USC APPENDIX Rule 60                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 60. Relief From Judgment or Order

-STATUTE-
      (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., Sec.
    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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
    Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Sec. 3; 2 Wash.Rev.Stat.Ann. (Remington,
    1932) Sec. 464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) Sec.
    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) Secs. 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) Sec. 473. See also
    N.Y.C.P.A. (1937) Sec. 108; 2 Minn.Stat. (Mason, 1927) Sec. 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 Sec. 214.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.
      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; 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) 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.
      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 Sec. 200(4) of the Soldiers'
    and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] Sec. 501 et
    seq. [Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 61                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 61. Harmless Error

-STATUTE-
      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.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      A combination of U.S.C., Title 28, Secs. 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 (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).

-End-



-CITE-
    28 USC APPENDIX Rule 62                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 62. Stay of Proceedings To Enforce a Judgment

-STATUTE-
      (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.

-SOURCE-
    (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.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). The first sentence states the substance
    of the last sentence of U.S.C., Title 28, [former] Sec. 874
    (Supersedeas). The remainder of the subdivision states the
    substance of the last clause of U.S.C., Title 28, [former] Sec. 227
    (Appeals in proceedings for injunctions; receivers; and admiralty),
    and of [former] Sec. 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]
    Sec. 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 (1922).
    See Simkins, Federal Practice (1934) Sec. 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:

     Sec. 217 (Proceedings for suspension of orders of Secretary of
          Agriculture under Stockyards Act) - by reference.
     Sec. 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:

     Sec. 28 (Antitrust laws; suits against monopolies expedited)

    U.S.C., Title 28:

     Sec. 47 [now 2325] (Injunctions as to orders of Interstate
          Commerce Commission, etc.)
     Sec. 380 [now 2284] (Injunctions; alleged unconstitutionality of
          State statutes.)
     Sec. 380a [now 2284] (Same; constitutionality of federal statute)

    U.S.C., Title 49:

     Sec. 44 [former] (Suits in equity under interstate commerce laws;
          expedition of suits)

      Note to Subdivision (d). This modifies U.S.C., Title 28, [former]
    Sec. 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, Sec. 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] Sec. 841 (Executions; stay of one term) with
    appropriate modification to conform to the provisions of Rule 6(c)
    as to terms of court.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivision (a). [This subdivision not amended]. Sections 203 and
    204 of the Soldiers' and Sailors' Civil Relief Act of 1940 (50
    U.S.C. [App.] Sec. 501 et seq. [Secs. 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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      Section 210 of the Judicial Code, as amended, U.S.C., Title 28,
    Sec. 47a, is repealed by revised Title 28 and its provisions that
    stays pending appeals to the Supreme Court in Interstate Commerce
    Commission cases may be granted only by that court or a justice
    thereof are not included in revised Title 28. Prior to this repeal
    the additional general reference in subdivision (g) to "other
    statutes of the United States", was needed as a safety residual
    provision due to the specific reference to Section 210 of the
    Judicial Code. With the repeal of this latter section there is no
    need for the residual provision, which has no present
    applicability; and to the extent that any statute is enacted
    providing "that stays pending appeals to the Supreme Court may be
    granted only by that court or a justice thereof" it will govern and
    will not be inconsistent or repugnant to subdivision (g) as
    amended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1961 AMENDMENT       
      These changes conform to the amendment of Rule 54(b).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 63                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VII. JUDGMENT

-HEAD-
    Rule 63. Inability of a Judge to Proceed

-STATUTE-
      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.

-SOURCE-
    (As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
    Dec. 1, 1991.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      This rule adapts and extends the provisions of U.S.C., Title 28,
    [former] Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The 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).

-End-


-CITE-
    28 USC APPENDIX VIII. PROVISIONAL AND FINAL
      REMEDIES                                             01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
                   VIII. PROVISIONAL AND FINAL REMEDIES               

-End-



-CITE-
    28 USC APPENDIX Rule 64                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 64. Seizure of Person or Property

-STATUTE-
      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.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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] Sec. 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:

     Sec. 737 [now 2710] (Attachment in postal suits)
     Sec. 738 [now 2711] (Attachment; application for warrant)
     Sec. 739 [now 2712] (Attachment; issue of warrant)
     Sec. 740 [now 2713] (Attachment; trial of ownership of property)
     Sec. 741 [now 2714] (Attachment; investment of proceeds of
          attached property)
     Sec. 742 [now 2715] (Attachment; publication of attachment)
     Sec. 743 [now 2716] (Attachment; personal notice of attachment)
     Sec. 744 [now 2717] (Attachment; discharge; bond)
     Sec. 745 [former] (Attachment; accrued rights not affected)
     Sec. 746 (Attachments dissolved in conformity with State laws)

      For statutes of the United States on garnishment, see e.g.:

    U.S.C., Title 28:

     Sec. 748 [now 2405] (Garnishees in suits by United States against
          a corporation)
     Sec. 749 [now 2405] (Same; issue tendered on denial of
          indebtedness)
     Sec. 750 [now 2405] (Same; garnishee failing to appear)

      For statutes of the United States on arrest, see e.g.:

    U.S.C., Title 28:

     Sec. 376 [now 1651] (Writs of ne exeat)
     Sec. 755 [former] (Special bail in suits for duties and penalties)
     Sec. 756 [former] (Defendant giving bail in one district and
          committed in another)
     Sec. 757 [former] (Defendant giving bail in one district and
          committed in another; defendant held until judgment in first
          suit)
     Sec. 758 [former] (Bail and affidavits; taking by commissioners)
     Sec. 759 [former] (Calling of bail in Kentucky)
     Sec. 760 [former] (Clerks may take bail de bene esse)
     Sec. 843 [now 2007] (Imprisonment for debt)
     Sec. 844 [now 2007] (Imprisonment for debt; discharge according to
          State laws)
     Sec. 845 [now 2007] (Imprisonment for debt; jail limits)

      For statutes of the United States on replevin, see, e.g.:

    U.S.C., Title 28:

     Sec. 747 [now 2463] (Replevy of property taken under revenue laws)

      NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE  
      Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief
    Act of 1940 (50 U.S.C. [App.] Sec. 501 et seq. [Secs. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 65                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 65. Injunctions

-STATUTE-
      (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., Sec. 2361, relating to preliminary injunctions in
    actions of interpleader or in the nature of interpleader; or Title
    28, U.S.C., Sec. 2284, relating to actions required by Act of
    Congress to be heard and determined by a district court of three
    judges.
      (f) Copyright Impoundment. This rule applies to copyright
    impoundment proceedings.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
    Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff.
    Aug. 1, 1987; Apr. 23, 2001, eff. Dec. 1, 2001.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivisions (a) and (b). These are taken from U.S.C.,
    Title 28, [former] Sec. 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] Sec. 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, Secs. 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] Sec. 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:

     Sec. 46 [now 2324] (Suits to enjoin orders of Interstate Commerce
          Commission to be against United States)
     Sec. 47 [now 2325] (Injunctions as to orders of Interstate
          Commerce Commission; appeal to Supreme Court; time for
          taking)
     Sec. 378 [former] (Injunctions; when granted)
     Sec. 379 [now 2283] (Injunctions; stay in State courts)
     Sec. 380 [now 1253, 2101, 2281, 2284] (Injunctions; alleged
          unconstitutionality of State statutes; appeal to Supreme
          Court)
     Sec. 380a [now 1253, 2101, 2281, 2284] (Injunctions;
          constitutionality of Federal statute; application for
          hearing; appeal to Supreme Court)

    U.S.C., Title 7:

     Sec. 216 (Court proceedings to enforce orders; injunction)
     Sec. 217 (Proceedings for suspension of orders)

    U.S.C., Title 15:

     Sec. 4 (Jurisdiction of courts; duty of district attorney;
          procedure)
     Sec. 25 (Restraining violations; procedure)
     Sec. 26 (Injunctive relief for private parties; exceptions)
     Sec. 77t(b) (Injunctions and prosecution of offenses)

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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 Sec. 50(n) of the Bankruptcy Act, 11 U.S.C.
    Sec. 78(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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      Specific enumeration of statutes dealing with labor injunctions
    is undesirable due to the enactment of amendatory or new
    legislation from time to time. The more general and inclusive
    reference, "any statute of the United States", does not change the
    intent of subdivision (e) of Rule 65, and the subdivision will have
    continuing applicability without the need of subsequent
    readjustment to labor legislation.
      The amendment relative to actions of interpleader or in the
    nature of interpleader substitutes the present statutory reference
    and will embrace any future amendment to statutory interpleader
    provided for in Title 28, U.S.C., Sec. 2361.
      The Act of August 24, 1937, provided for a district court of
    three judges to hear and determine an action to enjoin the
    enforcement of any Act of Congress for repugnance to the
    Constitution of the United States. The provisions of that Act
    dealing with the procedure for the issuance of temporary
    restraining orders and interlocutory and final injunctions have
    been included in revised Title 28, U.S.C., Sec. 2284, which,
    however, has been broadened to apply to all actions required to be
    heard and determined by a district court of three judges. The
    amendatory saving clause of subdivision (e) of Rule 65 has been
    broadened accordingly.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2001 AMENDMENT             
      New subdivision (f) is added in conjunction with abrogation of
    the antiquated Copyright Rules of Practice adopted for proceedings
    under the 1909 Copyright Act. Courts have naturally turned to Rule
    65 in response to the apparent inconsistency of the former
    Copyright Rules with the discretionary impoundment procedure
    adopted in 1976, 17 U.S.C. Sec. 503(a). Rule 65 procedures also
    have assuaged well-founded doubts whether the Copyright Rules
    satisfy more contemporary requirements of due process. See, e.g.,
    Religious Technology Center v. Netcom On-Line Communications
    Servs., Inc., 923 F.Supp. 1231, 1260-1265 (N.D.Cal.1995); Paramount
    Pictures Corp. v. Doe, 821 F.Supp. 82 (E.D.N.Y.1993); WPOW, Inc. v.
    MRLJ Enterprises, 584 F.Supp. 132 (D.D.C.1984).
      A common question has arisen from the experience that notice of a
    proposed impoundment may enable an infringer to defeat the court's
    capacity to grant effective relief. Impoundment may be ordered on
    an ex parte basis under subdivision (b) if the applicant makes a
    strong showing of the reasons why notice is likely to defeat
    effective relief. Such no-notice procedures are authorized in
    trademark infringement proceedings, see 15 U.S.C. Sec. 1116(d), and
    courts have provided clear illustrations of the kinds of showings
    that support ex parte relief. See Matter of Vuitton et Fils S.A.,
    606 F.2d 1 (2d Cir.1979); Vuitton v. White, 945 F.2d 569 (3d
    Cir.1991). In applying the tests for no-notice relief, the court
    should ask whether impoundment is necessary, or whether adequate
    protection can be had by a less intrusive form of no-notice relief
    shaped as a temporary restraining order.
      This new subdivision (f) does not limit use of trademark
    procedures in cases that combine trademark and copyright claims.
    Some observers believe that trademark procedures should be adopted
    for all copyright cases, a proposal better considered by
    Congressional processes than by rulemaking processes.
      Changes Made After Publication and Comments No change has been
    made.

-End-



-CITE-
    28 USC APPENDIX Rule 65.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 65.1. Security: Proceedings Against Sureties

-STATUTE-
      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.

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


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1966            
      See Note to Rule 65.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 66                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 66. Receivers Appointed by Federal Courts

-STATUTE-
      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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
    Oct. 20, 1949.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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; Kelley v.
    Queeney (W.D.N.Y. 1941) 41 F.Supp. 1015; see also McCandless v.
    Furlaud (1934) 293 U.S. 67. 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. 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.) Sec. 549. Under 28 U.S.C. Sec. 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) &#182;&#182; 2.23-2.36.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      Title 28, U.S.C., Secs. 754 and 959(a), state the capacity of a
    federal receiver to sue or be sued in a federal court, and a
    repetitive statement of the statute in Rule 66 is confusing and
    undesirable. See also Note to Rule 17(b), supra.

-End-



-CITE-
    28 USC APPENDIX Rule 67                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 67. Deposit in Court

-STATUTE-
      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., Secs. 2041, and 2042; the Act of June 26, 1934, c. 756,
    Sec. 23, as amended (48 Stat. 1236, 58 Stat. 845), U.S.C., Title
    31, Sec. 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.


-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff.
    Aug. 1, 1983.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      This rule provides for deposit in court generally, continuing
    similar special provisions contained in such statutes as U.S.C.,
    Title 28, Sec. 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
    (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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The first amendment substitutes the present statutory reference.
      Since the Act of June 26, 1934, was amended by Act of December
    21, 1944, 58 Stat. 845, correcting references are made.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1983 AMENDMENT       
      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.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Act of June 26, 1934, c. 756, Sec. 23, as amended (48 Stat. 1236,
    58 Stat. 845), 31 U.S.C. Sec. 725v, referred to in text, was
    repealed by Pub. L. 97-258, Sec. 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, Sec. 23, as amended (31 U.S.C. 725v) was reenacted as
    sections 572a and 2043 of Title 28 by Pub. L. 97-258, Sec. 2(g)(3),
    (4).

-FOOTNOTE-
    (!1) See References in Text note below.


-End-



-CITE-
    28 USC APPENDIX Rule 68                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 68. Offer of Judgment

-STATUTE-
      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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff.
    July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      See 2 Minn. Stat. (Mason, 1927) Sec. 9323; 4 Mont. Rev. Codes
    Ann. (1935) Sec. 9770; N.Y.C.P.A. (1937) Sec. 177.
      For the recovery of costs against the United States, see Rule
    54(d).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 69                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 69. Execution

-STATUTE-
      (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., Sec. 2006, or against an
    officer of Congress in an action mentioned in the Act of March 3,
    1875, ch. 130, Sec. 8 (18 Stat. 401), U.S.C., Title 2, Sec. 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.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff.
    July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). This follows in substance U.S.C., Title
    28, [former] Secs. 727 (Executions as provided by State laws) and
    729 [now Title 42, Sec. 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:

     Sec. 91 (Transfers by bank and other acts in contemplation of
          insolvency)
     Sec. 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:

     Sec. 199 (Judgments for customs duties, how payable)

    U.S.C., Title 26:

     Sec. 1610(a) [former] (Surrender of property subject to distraint)

    U.S.C., Title 28:

     Sec. 122 [now 1656] (Creation of new district or transfer of
          territory; lien)
     Sec. 350 [now 2101] (Time for making application for appeal or
          certiorari; stay pending application for certiorari)
     Sec. 489 [now 547] (District Attorneys; reports to Department of
          Justice)
     Sec. 574 [now 1921] (Marshals, fees enumerated)
     Sec. 786 [former] (Judgments for duties; collected in coin)
     Sec. 811 [now 1961] (Interest on judgments)
     Sec. 838 [former] (Executions; run in all districts of State)
     Sec. 839 [now 2413] (Executions; run in every State and Territory)
     Sec. 840 [former] (Executions; stay on conditions), as modified by
          Rule 62(b).
     Sec. 841 [former] (Executions; stay of one term), as modified by
          Rule 62(f)
     Sec. 842 [now 2006] (Executions; against officers of revenue in
          cases of probable cause), as incorporated in Subdivision (b)
          of this rule
     Sec. 843 [now 2007] (Imprisonment for debt)
     Sec. 844 [now 2007] (Imprisonment for debt; discharge according to
          State laws)
     Sec. 845 [now 2007] (Imprisonment for debt; jail limits)
     Sec. 846 [now 2005] (Fieri Facias; appraisal of goods; appraisers)
     Sec. 847 [now 2001] (Sales; real property under order or decree)
     Sec. 848 [now 2004] (Sales; personal property under order or
          decree)
     Sec. 849 [now 2002] (Sales; necessity of notice)
     Sec. 850 [now 2003] (Sales; death of marshal after levy or after
          sale)
     Sec. 869 [former] (Bond in former error and on appeal) as
          incorporated in Rule 73(c)
     Sec. 874 [former] (Supersedeas), as modified by Rules 62(d) and
          73(d)

    U.S.C., Title 31:

     Sec. 195 [now 3715] (Purchase on execution)

    U.S.C., Title 33:

     Sec. 918 (Collection of defaulted payments)

    U.S.C., Title 49:

     Sec. 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:

     Sec. 118 (Actions against officers of Congress for official acts)

    U.S.C., Title 5:

     Sec. 729 [see 8346, 8470] (Federal employees retirement annuities
          not subject to assignment, execution, levy, or other legal
          process)

    U.S.C., Title 10:

     Sec. 610 [now 3690, 8690] (Exemption of enlisted men from arrest
          on civil process)

    U.S.C., Title 22:

     Sec. 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:

     Sec. 916 (Assignment and exemption from claims of creditors)
          Longshoremen's and Harborworkers' Compensation Act)

    U.S.C., Title 38:

     Sec. 54 [see 5301] (Attachment, levy or seizure of moneys due
          pensioners prohibited)
     Sec. 393 [former] (Army and Navy Medal of Honor Roll; pensions
          additional to other pensions; liability to attachment, etc.)
          Compare Title 34, Sec. 365(c) (Medal of Honor Roll; special
          pension to persons enrolled)
     Sec. 618 [see 5301] (Benefits exempt from seizure under process
          and taxation; no deductions for indebtedness to United
          States)

    U.S.C., Title 43:

     Sec. 175 (Exemption from execution of homestead land)

    U.S.C., Title 48:

     Sec. 1371o (Panama Canal and railroad retirement annuities,
          exemption from execution and so forth)

      NOTES OF ADVISORY COMMITTEE ON RULES - 1946 SUPPLEMENTARY NOTE  
      With respect to the provisions of the Soldiers' and Sailors'
    Civil Relief Act of 1940 (50 U.S.C. [App.] Sec. 501 et seq.) see
    Notes to Rules 62 and 64 herein.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The amendment substitutes the present statutory reference.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      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
    &#182; 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 70                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 70. Judgment for Specific Acts; Vesting Title

-STATUTE-
      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.


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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),
    Sec. 10594; 2 Conn.Gen.Stat. (1930), Sec. 5455; N.M.Stat.Ann.
    (Courtright, 1929), Sec. 117-117; 2 Ohio Gen.Code Ann. (Page,
    1926), Sec. 11590; and England, Supreme Court of Judicature Act
    (1925), Sec. 47.

-End-



-CITE-
    28 USC APPENDIX Rule 71                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 71. Process in Behalf of and Against Persons Not Parties

-STATUTE-
      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.

-SOURCE-
    (As amended Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-


-CITE-
    28 USC APPENDIX IX. SPECIAL PROCEEDINGS                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
                          IX. SPECIAL PROCEEDINGS                      

-End-



-CITE-
    28 USC APPENDIX Rule 71A                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 71A. Condemnation of Property

-STATUTE-
      (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.
          (A) Personal Service. Personal service of the notice (but
        without copies of the complaint) shall be made in accordance
        with Rule 4 upon a defendant whose residence is known and who
        resides within the United States or a territory subject to the
        administrative or judicial jurisdiction of the United States.
          (B) 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
        defendant'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.

      (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 authority of a master provided in Rule 53(c) and
    proceedings before it shall be governed by the provisions of Rule
    53(d). 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 Rule
    53(e), (f), and (g). 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).

-SOURCE-
    (As added Apr. 30, 1951, eff. Aug. 1, 1951; amended Jan. 21, 1963,
    eff. July 1, 1963; Apr. 29, 1985, eff. Aug. 1, 1985; Mar. 2, 1987,
    eff. Aug. 1, 1987; Apr. 25, 1988, eff. Aug. 1, 1988; Pub. L.
    100-690, title VII, Sec. 7050, Nov. 18, 1988, 102 Stat. 4401; Apr.
    22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1951            

      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., [former] Title 40, Secs. 361-386) 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, Sec. 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 ([former] 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 [former] 40 U.S.C. Sec.
    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, Sec.
    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:

       Sec. 404c-11 (Mammoth Cave National Park; acquisition of lands,
        interests in lands or other property for park by the Secretary
        of the Interior).
       Sec. 426d (Stones River National Park; acquisition of land for
        parks by the Secretary of the Army).
       Sec. 450aa (George Washington Carver National Monument;
        acquisition of land by the Secretary of the Interior).
       Sec. 517 (National forest reservation; title to lands to be
        acquired by the Secretary of Agriculture).

    U.S.C., Title 42:

       Secs. 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:

       Sec. 423k (Richmond National Battlefield Park; acquisition of
        lands by the Secretary of the Interior).
       Sec. 714 (Exercise by water power licensee of power of eminent
        domain).

    U.S.C., Title 24:

       Sec. 78 (Condemnation of land for the former National Home for
        Disabled Volunteer Soldiers).

    U.S.C., Title 33:

       Sec. 591 (Condemnation of lands and materials for river and
        harbor improvement by the Secretary of the Army).

    U.S.C., Title 40:

       Sec. 257 [now 3113] (Condemnation of realty for sites for public
        building and for other public uses by the Secretary of the
        Treasury authorized).
       Sec. 258 [former] (Same procedure).

    U.S.C., Title 50:

       Sec. 171 (Acquisition of land by the Secretary of the Army for
        national defense).
       Sec. 172 (Acquisition of property by the Secretary of the Army,
        etc., for production of lumber).
       Sec. 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:

       Sec. 831x (Condemnation by Tennessee Valley Authority).

    U.S.C., Title 40:

       Secs. 361-386 [former] (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, Secs. 1, 2 (48 Stat. 1064), 28 U.S.C. Secs. 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, [former] 40 U.S.C.
    Sec. 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] Sec. 438j (World War
    Veterans' Relief Act); 42 U.S.C. Secs. 1805, 1811, 1813 (Atomic
    Energy Act); 50 U.S.C. Sec. 79 (Nitrates Act); 50 U.S.C. Secs.
    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. Sec. 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, Secs. 1-5 (46 Stat. 1421), 40 U.S.C.
    Secs. 258a-258e [now 40 U.S.C. 3114, 3115, 3118], 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:

       Sec. 594 (When immediate possession of land may be taken; for a
        work of river and harbor improvements).

    U.S.C., Title 42:

       Sec. 1813(b) (When immediate possession may be taken under
        Atomic Energy Act).

    U.S.C., Title 50:

       Sec. 171 (Acquisition of land by the Secretary of the Army for
        national defense).
       Sec. 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 Secs. 1-5 (46
    Stat. 1421), 40 U.S.C. Secs. 258a-258e [now 40 U.S.C. 3114, 3115,
    3118], supra; and 33 U.S.C. Sec. 594, 42 U.S.C. Sec. 1813(b), 50
    U.S.C. Secs. 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, Sec. 2; Ill. Ann. Stat.
    (Smith-Hurd) c. 47, Sec. 2; 1 Iowa Code, 1946, Sec. 472.3; Kans.
    Stat. Ann., 1935, Sec. 26-101; 2 Mass. Laws Ann., 1932, ch. 80A,
    Sec. 4; 7 Mich. Stat. Ann., 1936, Sec. 8.2; 2 Minn. Stat., Mason,
    1927, Sec. 6541; 20 N.J. Stat. Ann., 1939, Sec. 1-2; 3 Wash.
    Revised Stat., Remington, 1932, Title 6, Sec. 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, Sec. 310 ("such [unknown]
    defendant may be joined in the petition under a fictitious name.";
    Ill. Ann. Stat., Smith-Hurd), c. 47, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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.
    Sec. 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, Sec.
    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., [former] Title 40, Secs.
    361-386. Under Sec. 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, [former] 40
    U.S.C. Sec. 258, in states which provided for jury trial. See
    generally, 2 Lewis, Eminent Domain 3d ed. 1909, Secs. 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, Sec. 258a [now 40 U.S.C. 3114(a)-(d)]; U.S.C., Title 33, Sec.
    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, Secs. 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.
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       

      This amendment conforms to the amendment of Rule 4(f).
           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       

      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.
           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       

      The amendments are technical. No substantive change is intended.
           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       

      The amendment is technical. No substantive change is intended.
           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       

      The references to the subdivisions of Rule 4 are deleted in light
    of the revision of that rule.
                 COMMITTEE NOTES ON RULES - 2003 AMENDMENT             

      The references to specific subdivisions of Rule 53 are deleted or
    revised to reflect amendments of Rule 53.
                          AMENDMENT BY PUBLIC LAW                      

      1988 - 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.

-End-



-CITE-
    28 USC APPENDIX Rule 72                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 72. Magistrate Judges; Pretrial Orders

-STATUTE-
      (a) Nondispositive Matters. A magistrate judge 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 judge'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 judge'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 judge's order
    found to be clearly erroneous or contrary to law.
      (b) Dispositive Motions and Prisoner Petitions. A magistrate
    judge 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 judge, and a
    record may be made of such other proceedings as the magistrate
    judge deems necessary. The magistrate judge 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
    judge 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 judge'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 judge with
    instructions.

-SOURCE-
    (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 30, 1991,
    eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1983            
      Subdivision (a). This subdivision addresses court-ordered
    referrals of nondispositive matters under 28 U.S.C. Sec.
    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. Sec. 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. Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This revision is made to conform the rule to changes made by the
    Judicial Improvements Act of 1990.

-End-



-CITE-
    28 USC APPENDIX Rule 73                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 73. Magistrate Judges; Trial by Consent and Appeal

-STATUTE-
      (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 judge may exercise the
    authority provided by Title 28, U.S.C. Sec. 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. Sec. 636(c)(5).
      (b) Consent. When a magistrate judge 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 judge of civil jurisdiction over the case,
    as authorized by Title 28, U.S.C. Sec. 636(c). If, within the
    period specified by local rule, the parties agree to a magistrate
    judge's exercise of such authority, they shall execute and file a
    joint form of consent or separate forms of consent setting forth
    such election.
      A district judge, magistrate judge, or other court official may
    again advise the parties of the availability of the magistrate
    judge, but, in so doing, shall also advise the parties that they
    are free to withhold consent without adverse substantive
    consequences. A district judge or magistrate judge shall not 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 judge.
      The district judge, for good cause shown on the judge's own
    initiative, or under extraordinary circumstances shown by a party,
    may vacate a reference of a civil matter to a magistrate judge
    under this subdivision.
      (c) Appeal. In accordance with Title 28, U.S.C. Sec. 636(c)(3),
    appeal from a judgment entered upon direction of a magistrate judge
    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.] (Abrogated Apr. 11, 1997, eff. Dec.
    1, 1997)

-SOURCE-
    (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Mar. 2, 1987,
    eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 11, 1997,
    eff. Dec. 1, 1997.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1983            
      Subdivision (a). This subdivision implements the broad authority
    of the 1979 amendments to the Magistrates Act, 28 U.S.C. Sec.
    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. Sec. 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. Sec. 639(e). In view of 28 U.S.C. Sec.
    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. Sec. 1291 governing
    appeals.
      Subdivision (b). This subdivision implements the blind consent
    provision of 28 U.S.C. Sec. 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. Sec. 636(c)(6) for vacating a reference to the
    magistrate.
      Subdivision (c). Under 28 U.S.C. Sec. 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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This revision is made to conform the rule to changes made by the
    Judicial Improvements Act of 1990. The Act requires that, when
    being reminded of the availability of a magistrate judge, the
    parties be advised that withholding of consent will have no
    "adverse substantive consequences." They may, however, be advised
    if the withholding of consent will have the adverse procedural
    consequence of a potential delay in trial.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      The Federal Courts Improvement Act of 1996 repealed the former
    provisions of 28 U.S.C. Sec. 636(c)(4) and (5) that enabled parties
    that had agreed to trial before a magistrate judge to agree also
    that appeal should be taken to the district court. Rule 73 is
    amended to conform to this change. Rules 74, 75, and 76 are
    abrogated for the same reason. The portions of Form 33 and Form 34
    that referred to appeals to the district court also are deleted.

-End-



-CITE-
    28 USC APPENDIX Rule 74                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
    [Rule 74. Method of Appeal From Magistrate Judge to District Judge
      Under Title 28, U.S.C. Sec. 636(c)(4) and Rule 73(d)] (Abrogated
      Apr. 11, 1997, eff. Dec. 1, 1997)


-STATUTE-

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      Rule 74 is abrogated for the reasons described in the Note to
    Rule 73.

-End-



-CITE-
    28 USC APPENDIX Rule 75                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
    [Rule 75. Proceedings on Appeal From Magistrate Judge to District
      Judge Under Rule 73(d)] (Abrogated Apr. 11, 1997, eff. Dec. 1,
      1997)


-STATUTE-

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      Rule 75 is abrogated for the reasons described in the Note to
    Rule 73.

-End-



-CITE-
    28 USC APPENDIX Rule 76                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    IX. SPECIAL PROCEEDINGS

-HEAD-
    [Rule 76. Judgment of the District Judge on the Appeal Under Rule
      73(d) and Costs] (Abrogated Apr. 11, 1997, eff. Dec. 1, 1997)


-STATUTE-

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      Rule 76 is abrogated for the reasons described in the Note to
    Rule 73.

-End-


-CITE-
    28 USC APPENDIX X. DISTRICT COURTS AND CLERKS               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    X. DISTRICT COURTS AND CLERKS

-HEAD-
                       X. DISTRICT COURTS AND CLERKS                   

-End-



-CITE-
    28 USC APPENDIX Rule 77                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    X. DISTRICT COURTS AND CLERKS

-HEAD-
    Rule 77. District Courts and Clerks

-STATUTE-
      (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 in
    the manner provided for in Rule 5(b) 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(b) 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff.
    July 1, 1963; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff.
    July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff.
    Dec. 1, 1991; Apr. 23, 2001, eff. Dec. 1, 2001.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      This rule states the substance of U.S.C., Title 28, Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT       
      The provisions of Rule 73(a) are incorporated in Rule 4(a) of the
    Federal Rules of Appellate Procedure.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      The amendment adds Columbus Day to the list of legal holidays.
    See the Note accompanying the amendment of Rule 6(a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

                 COMMITTEE NOTES ON RULES - 2001 AMENDMENT             
      Rule 77(d) is amended to reflect changes in Rule 5(b). A few
    courts have experimented with serving Rule 77(d) notices by
    electronic means on parties who consent to this procedure. The
    success of these experiments warrants express authorization.
    Because service is made in the manner provided in Rule 5(b), party
    consent is required for service by electronic or other means
    described in Rule 5(b)(2)(D). The same provision is made for a
    party who wishes to ensure actual communication of the Rule 77(d)
    notice by also serving notice.
      Changes Made After Publication and Comments Rule 77(d) was
    amended to correct an oversight in the published version. The clerk
    is to note "service," not "mailing," on the docket.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in text,
    are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 78                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    X. DISTRICT COURTS AND CLERKS

-HEAD-
    Rule 78. Motion Day

-STATUTE-
      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.

-SOURCE-
    (As amended Mar. 2, 1987, eff. Aug. 1, 1987.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 79                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    X. DISTRICT COURTS AND CLERKS

-HEAD-
    Rule 79. Books and Records Kept by the Clerk and Entries Therein

-STATUTE-
      (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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff.
    Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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:

     Sec. 301 [see Title 28, Sec. 526] (Officials for investigation of
          official acts, records and accounts of marshals, attorneys,
          clerks of courts, United States commissioners, referees and
          trustees)
     Sec. 318 [former] (Accounts of district attorneys)

    U.S.C., Title 28:

     Sec. 556 [former] (Clerks of district courts; books open to
          inspection)
     Sec. 567 [now 751] (Same; accounts)
     Sec. 568 [now 751] (Same; reports and accounts of moneys received;
          dockets)
     Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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, c. 501, Secs. 1-7, 53 Stat. 1223, 28 U.S.C. Secs.
    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
    the 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The change in nomenclature conforms to the official designation
    in Title 28, U.S.C., Sec. 231.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      The terminology is clarified without any change of the prescribed
    practice. See amended Rule 58, and the Advisory Committee's Note
    thereto.

-End-



-CITE-
    28 USC APPENDIX Rule 80                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    X. DISTRICT COURTS AND CLERKS

-HEAD-
    Rule 80. Stenographer; Stenographic Report or Transcript as
      Evidence

-STATUTE-
      [(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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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) Sec. 11353.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      Subdivisions (a) and (b) of Rule 80 have been abrogated because
    of Public Law 222, 78th Cong., c. 3, 2d Sess., approved Jan. 20,
    1944, 28 U.S.C. Sec. 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.

-End-


-CITE-
    28 USC APPENDIX XI. GENERAL PROVISIONS                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
                          XI. GENERAL PROVISIONS                      

-End-



-CITE-
    28 USC APPENDIX Rule 81                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 81. Applicability in General

-STATUTE-
      (a) Proceedings to Which the Rules Apply.
        (1) These rules do not apply to prize proceedings in admiralty
      governed by Title 10, U.S.C., Secs. 7651-7681. They do apply to
      proceedings in bankruptcy to the extent provided by the Federal
      Rules of Bankruptcy Procedure.
        (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, the Rules Governing Section 2254 Cases, or the
      Rules Governing Section 2255 Proceedings, and has heretofore
      conformed to the practice in civil actions.
        (3) In proceedings under Title 9, U.S.C., relating to
      arbitration, or under the Act of May 20, 1926, ch. 347, Sec. 9
      (44 Stat. 585), U.S.C., Title 45, Sec. 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, Sec. 2 (42 Stat. 388), U.S.C.,
      Title 7, Sec. 292; or by the Act of June 10, 1930, ch. 436, Sec.
      7 (46 Stat. 534), as amended, U.S.C., Title 7, Sec. 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, Sec. 2 (48 Stat. 1214),
      U.S.C., Title 15, Sec. 522, for instituting proceedings to review
      orders of the Secretary of the Interior; or prescribed by the Act
      of February 22, 1935, ch. 18, Sec. 5 (49 Stat. 31), U.S.C., Title
      15, Sec. 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,
      Secs. 9 and 10 (49 Stat. 453), as amended, U.S.C., Title 29,
      Secs. 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, Secs.
      18, 21 (44 Stat. 1434, 1436), as amended, U.S.C., Title 33, Secs.
      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, Sec. 340 (66 Stat. 260), U.S.C., Title 8, Sec. 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.

-SOURCE-
    (As amended Dec. 28, 1939, eff. Apr. 3, 1941; Dec. 27, 1946, eff.
    Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 30, 1951,
    eff. Aug. 1, 1951; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966,
    eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971,
    eff. July 1, 1971; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 23, 2001,
    eff. Dec. 1, 2001; Apr. 29, 2002, eff. Dec. 1, 2002.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      Note to Subdivision (a). Paragraph (1): Compare the enabling act,
    act of June 19, 1934, U.S.C., Title 28, Secs. 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 Sec.
    25 of the copyright act, act of March 4, 1909, U.S.C., Title 17,
    Sec. 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, Secs. 377a-377c (Quo
    warranto); and such forfeiture statutes as U.S.C., Title 7, Sec.
    116 (Misbranded seeds, confiscation), and Title 21, Sec. 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 (1912).
      For examples of statutes which under paragraph (7) will continue
    to govern procedure in condemnation cases, see U.S.C., [former]
    Title 40, Sec. 258 (Condemnation of realty for sites for public
    building, etc., procedure); U.S.C., Title 16, Sec. 831x
    (Condemnation by Tennessee Valley Authority); U.S.C., [former]
    Title 40, Sec. 120 (Acquisition of lands for public use in District
    of Columbia); [former] Title 40, ch. 7 (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:

     Sec. 222 (Federal Trade Commission powers adopted for enforcement
          of Stockyards Act) (By reference to Title 15, Sec. 49)

    U.S.C., Title 15:

     Sec. 49 (Enforcement of Federal Trade Commission orders and
          antitrust laws)
     Sec. 77t(c) (Enforcement of Securities and Exchange Commission
          orders and Securities Act of 1933)
     Sec. 78u(f) (Same; Securities Exchange Act of 1934)
     Sec. 79r(g) (Same; Public Utility Holding Company Act of 1935)

    U.S.C., Title 16:

     Sec. 820 (Proceedings in equity for revocation or to prevent
          violations of license of Federal Power Commission licensee)
     Sec. 825m(b) (Mandamus to compel compliance with Federal Water
          Power Act, etc.)

    U.S.C., Title 19:

     Sec. 1333(c) (Mandamus to compel compliance with orders of Tariff
          Commission, etc.)

    U.S.C., Title 28:

     Sec. 377 [now 1651] (Power to issue writs)
     Sec. 572 [now 1923] (Fees, attorneys, solicitors and proctors)
     Sec. 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:

     Sec. 495 (Removal of bridges over navigable waters)

    U.S.C., Title 45:

     Sec. 88 (Mandamus against Union Pacific Railroad Company)
     Sec. 153(p) (Mandamus to enforce orders of Adjustment Board under
          Railway Labor Act)
     Sec. 185 (Same; National Air Transport Adjustment Board) (By
          reference to Sec. 153)

    U.S.C., Title 47:

     Sec. 11 (Powers of Federal Communications Commission)
     Sec. 401(a) (Enforcement of Federal Communications Act and orders
          of Commission)
     Sec. 406 (Same; compelling furnishing of facilities; mandamus)

    U.S.C., Title 49:

     Sec. 19a(l) [see 11703(a), 14703, 15903(a)] (Mandamus to compel
          compliance with Interstate Commerce Act)
     Sec. 20(9) [see 11703(a), 14703, 15903(a)] (Jurisdiction to compel
          compliance with interstate commerce laws by mandamus)

      For comparable provisions in state practice see Ill. Rev. Stat.
    (1937), ch. 110, Sec. 179; Calif. Code Civ. Proc. (Deering, 1937)
    Sec. 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:

     Sec. 71 [now 1441, 1445, 1447] (Removal of suits from state
          courts)
     Sec. 72 [now 1446, 1447] (Same; procedure)
     Sec. 73 [former] (Same; suits under grants of land from different
          states)
     Sec. 74 [now 1443, 1446, 1447] (Same; causes against persons
          denied civil rights)
     Sec. 75 [now 1446] (Same; petitioner in actual custody of state
          court)
     Sec. 76 [now 1442, 1446, 1447] (Same; suits and prosecutions
          against revenue officers)
     Sec. 77 [now 1442] (Same; suits by aliens)
     Sec. 78 [now 1449] (Same; copies of records refused by clerk of
          state court)
     Sec. 79 [now 1450] (Same; previous attachment bonds or orders)
     Sec. 80 [now 1359, 1447, 1919] (Same; dismissal or remand)
     Sec. 81 [now 1447] (Same; proceedings in suits removed)
     Sec. 82 [former] (Same; record; filing and return)
     Sec. 83 [now 1447, 1448] (Service of process after removal)

      U.S.C., Title 28, Sec. 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, Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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., Secs. 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, 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) [see 28 U.S.C. 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) [see 28
    U.S.C. 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 Sec. 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,
    Sec. 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, Sec. 405 (seizure of war
    materials intended for unlawful export) or U.S.C., Title 21, Sec.
    334(b) (Federal Food, Drug, and Cosmetic Act; formerly Title 21,
    Sec. 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; Walling
    v. News Printing, Inc. (C.C.A. 3d, 1945) 148 F.(2d) 57; McCrone v.
    United States (1939) 307 U.S. 61. 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 [Goodyear 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; 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 Sec. 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.
    Sec. 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; Smietanka v. Indiana Steel Co.
    (1921) 257 U.S. 1; United States v. Nunnally Investment Co. (1942)
    316 U.S. 258. The addition of subdivision (f) to Rule 81 dispels
    any doubts on the matter and avoids further litigation.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      Subdivision (a) - Paragraph (1). - The Copyright Act of March 4,
    1909, as amended, was repealed and Title 17, U.S.C., enacted into
    positive law by the Act of July 30, 1947, c. 391, Secs. 1, 2, 61
    Stat. 652. The first amendment, therefore, reflects this change.
    The second amendment involves a matter of nomenclature and reflects
    the official designation of the United States District Court for
    the District of Columbia in Title 28, U.S.C. Secs. 88, 132.
      Paragraph (2). - The amendment substitutes the present statutory
    reference.
      Paragraph (3). - The Arbitration Act of February 12, 1925, was
    repealed and Title 9, U.S.C., enacted into positive law by the Act
    of July 30, 1947, c. 392, Secs. 1, 2, 61 Stat. 669, and the
    amendment reflects this change. The Act of May 20, 1926, c. 347,
    Sec. 9 (44 Stat. 585), U.S.C., Title 45, Sec. 159, deals with the
    review by the district court of an award of a board of arbitration
    under the Railway Labor Act, and provides, inter alia, for an
    appeal within 10 days from a final judgment of the district court
    to the court of appeals. It is not clear whether Title 28, U.S.C.,
    repealed this time period and substituted the time periods provided
    for in Title 28, U.S.C., Sec. 2107, normally a minimum of 30 days.
    If there has been no repeal, then the 10-day time period of 45
    U.S.C., Sec. 159, applies by virtue of the "unless" clause in Rule
    73(a); if there has been a repeal, then the other time periods
    stated in Rule 73(a), normally a minimum of 30 days, apply. For
    discussion, see Note to Rule 73 (Sec. ), supra.
      Paragraph (4). - The nomenclature of the district courts is
    changed to conform to the official designation in Title 28, U.S.C.,
    Sec. 132(a).
      Paragraph (5). - The nomenclature of the district courts is
    changed to conform to the official designation in Title 28, U.S.C.,
    Sec. 132(a). The Act of July 5, 1935, c. 372, Secs. 9 and 10, was
    amended by Act of June 23, 1947, c. 120, 61 Stat. 143, 146, and
    will probably be amended from time to time. Insertion in Rule
    81(a)(5) of the words "as amended", and deletion of the subsection
    reference "(e), (g), and (i)" of U.S.C., Title 29, Sec. 160, make
    correcting references and are sufficiently general to include
    future statutory amendment.
      Paragraph (6). - The Chinese Exclusion Acts were repealed by the
    Act of December 17, 1943, c. 344, Sec. 1, 57 Stat. 600, and hence
    the reference to the Act of September 13, 1888, as amended, is
    deleted. The Longshoremen's and Harbor Workers' Compensation Act of
    March 4, 1927, was amended by Act of June 25, 1936, c. 804, 49
    Stat. 1921, and hence the words "as amended" have been added to
    reflect this change and, as they are sufficiently general, to
    include future statutory amendment. The Nationality Act of October
    14, 1940, c. 876, 54 Stat. 1137, 1172, repealed and replaced the
    Act of June 29, 1906, as amended, and correcting statutory
    references are, therefore, made.
      Subdivision (c). - In the first sentence the change in
    nomenclature conforms to the official designation of district
    courts in Title 28, U.S.C., Sec. 132(a); and the word "all" is
    deleted as superfluous. The need for revision of the third sentence
    is occasioned by the procedure for removal set forth in revised
    Title 28, U.S.C., Sec. 1446. Under the prior removal procedure
    governing civil actions, 28 U.S.C., Sec. 72 (1946), the petition
    for removal had to be first presented to and filed with the state
    court, except in the case of removal on the basis of prejudice or
    local influence, within the time allowed "to answer or plead to the
    declaration or complaint of the plaintiff"; and the defendant had
    to file a transcript of the record in the federal court within
    thirty days from the date of filing his removal petition. Under
    Sec. 1446(a) removal is effected by a defendant filing with the
    proper United States district court "a verified petition containing
    a short and plain statement of the facts which entitled him or them
    to removal together with a copy of all process, pleadings, and
    orders served upon him or them in such action." And Sec. 1446(b)
    provides: "The petition for removal of a civil action or proceeding
    may be filed within twenty days after commencement of the action or
    service of process, whichever is later." This subsection (b) gives
    trouble in states where an action may be both commenced and service
    of process made without serving or otherwise giving the defendant a
    copy of the complaint or other initial pleading. To cure this
    statutory defect, the Judge's Committee appointed pursuant to
    action of the Judicial Conference and headed by Judge Albert B.
    Maris is proposing an amendment to Sec. 1446(b) to read
    substantially as follows: "The petition for removal of a civil
    action or proceedings shall be filed within 20 days after the
    receipt through service or otherwise by the defendant of a copy of
    the initial pleading setting forth the claim for relief upon which
    the action or proceeding is based." The revised third sentence of
    Rule 81(c) is geared to this proposed statutory amendment; and it
    gives the defendant at least 5 days after removal within which to
    present his defenses.*

      The change in the last sentence of subdivision (c) reflects the
    fact that a transcript of the record is no longer required under
    Sec. 1446, and safeguards the right to demand a jury trial, where
    the right has not already been waived and where the parties are at
    issue - "all necessary pleadings have been served." Only, rarely
    will the last sentence of Rule 81(c) have any applicability, since
    removal will normally occur before the pleadings are closed, and in
    this usual situation Rule 38(b) applies and safeguards the right to
    jury trial. See Moore's Federal practice (1st ed.) 3020.
      Subdivision (d). - This subdivision is abrogated because it is
    obsolete and unnecessary under Title 28, U.S.C. Sections 88, 132,
    and 133 provide that the District of Columbia constitutes a
    judicial district, the district court of that district is the
    United States District Court for the District of Columbia, and the
    personnel of that court are district judges. Sections 41, 43, and
    44 provide that the District of Columbia is a judicial circuit, the
    court of appeals of that circuit is the United States Court of
    Appeals for the District of Columbia, and the personnel of that
    court are circuit judges.
      Subdivision (e). - The change in nomenclature conforms to the
    official designation of the United States District Court for the
    District of Columbia in Title 28, U.S.C., Secs. 132(a), 88.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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, Sec. 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 &#182; 38.39[3] (2d ed. 1951); 1 Barron
    & Holtzoff, Federal Practice and Procedure Sec. 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 Sec. 25.09 at 531 (2d ed.
    1950).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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. Sec. 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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1968 AMENDMENT       
      The amendments eliminate inappropriate references to appellate
    procedure.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT       
      Title 28, U.S.C., Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2001 AMENDMENT             
      Former Copyright Rule 1 made the Civil Rules applicable to
    copyright proceedings except to the extent the Civil Rules were
    inconsistent with Copyright Rules. Abrogation of the Copyright
    Rules leaves the Civil Rules fully applicable to copyright
    proceedings. Rule 81(a)(1) is amended to reflect this change.
      The District of Columbia Court Reform and Criminal Procedure Act
    of 1970, Pub.L. 91-358, 84 Stat. 473, transferred mental health
    proceedings formerly held in the United States District Court for
    the District of Columbia to local District of Columbia courts. The
    provision that the Civil Rules do not apply to these proceedings is
    deleted as superfluous.
      The reference to incorporation of the Civil Rules in the Federal
    Rules of Bankruptcy Procedure has been restyled.
      Changes Made After Publication and Comments The Committee Note
    was amended to correct the inadvertent omission of a negative. As
    revised, it correctly reflects the language that is stricken from
    the rule.

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      This amendment brings Rule 81(a)(2) into accord with the Rules
    Governing Sec. 2254 and Sec. 2255 proceedings. In its present form,
    Rule 81(a)(2) includes return-time provisions that are inconsistent
    with the provisions in the Rules Governing Secs. 2254 and 2255. The
    inconsistency should be eliminated, and it is better that the time
    provisions continue to be set out in the other rules without
    duplication in Rule 81. Rule 81 also directs that the writ be
    directed to the person having custody of the person detained.
    Similar directions exist in the Sec. 2254 and Sec. 2255 rules,
    providing additional detail for applicants subject to future
    custody. There is no need for partial duplication in Rule 81.
      The provision that the civil rules apply to the extent that
    practice is not set forth in the Sec. 2254 and Sec. 2255 rules
    dovetails with the provisions in Rule 11 of the Sec. 2254 rules and
    Rule 12 of the Sec. 2255 rules.
      Changes Made After Publication and Comment. The only change since
    publication is deletion of an inadvertent reference to Sec. 2241
    proceedings.

                       EFFECTIVE DATE OF ABROGATION                   
      Abrogation of par. (7) of subdivision (a) of this rule as
    effective August 1, 1951, see Effective Date note under Rule 71A.

           -FOOTNOTE-
               

               * Note. - The Supreme Court made these changes in the
         committee's proposed amendment to Rule 81(c): The phrase, "or
         within 20 days after the service of summons upon such initial
         pleading, then filed," was inserted following the phrase,
         "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", because
         in several states suit is commenced by service of summons upon
         the defendant, notifying him that the plaintiff's pleading has
         been filed with the clerk of court. Thus, he may never receive
         a copy of the initial pleading. The added phrase is intended
         to give the defendant 20 days after the service of such
         summons in which to answer in a removed action, or 5 days
         after the filing of the petition for removal, whichever is
         longer. In these states, the 20-day period does not begin to
         run until such pleading is actually filed. The last word of
         the third sentence was changed from "longer" to "longest"
         because of the added phrase.
           The phrase, "and who has not already waived his right to
         such trial," which previously appeared in the fourth sentence
         of subsection (c) of Rule 81, was deleted in order to afford a
         party who has waived his right to trial by jury in a state
         court an opportunity to assert that right upon removal to a
         federal court.


-End-



-CITE-
    28 USC APPENDIX Rule 82                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 82. Jurisdiction and Venue Unaffected

-STATUTE-
      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., Secs. 1391-1392.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff.
    July 1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The change in nomenclature conforms to the official designation
    of district courts in Title 28, U.S.C., Sec. 132(a).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      Title 28, U.S.C. Sec. 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.

                 COMMITTEE NOTES ON RULES - 2001 AMENDMENT             
      The final sentence of Rule 82 is amended to delete the reference
    to 28 U.S.C. Sec. 1393, which has been repealed.

                               STYLE COMMENT                           
      The recommendation that the change be made without publication
    carries with it a recommendation that style changes not be made.
    Styling would carry considerable risks. The first sentence of Rule
    82, for example, states that the Civil Rules do not "extend or
    limit the jurisdiction of the United States district courts." That
    sentence is a flat lie if "jurisdiction" includes personal or
    quasi-in rem jurisdiction. The styling project on this rule
    requires publication and comment.

-End-



-CITE-
    28 USC APPENDIX Rule 83                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 83. Rules by District Courts; Judge's Directives

-STATUTE-
      (a) Local Rules.
        (1) Each district court, acting by a majority of its district
      judges, may, after giving appropriate public notice and an
      opportunity for comment, make and amend rules governing its
      practice. A local rule shall be consistent with - but not
      duplicative of - Acts of Congress and rules adopted under 28
      U.S.C. Secs. 2072 and 2075, and shall conform to any uniform
      numbering system prescribed by the Judicial Conference of the
      United States. A local rule takes effect on the date specified by
      the district court and remains in effect unless amended by the
      court or abrogated by the judicial council of the circuit. Copies
      of rules and amendments 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.
        (2) A local rule imposing a requirement of form shall not be
      enforced in a manner that causes a party to lose rights because
      of a nonwillful failure to comply with the requirement.

      (b) Procedures When There is No Controlling Law. A judge may
    regulate practice in any manner consistent with federal law, rules
    adopted under 28 U.S.C. Secs. 2072 and 2075, and local rules of the
    district. No sanction or other disadvantage may be imposed for
    noncompliance with any requirement not in federal law, federal
    rules, or the local district rules unless the alleged violator has
    been furnished in the particular case with actual notice of the
    requirement.

-SOURCE-
    (As amended Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 27, 1995, eff.
    Dec. 1, 1995.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      This rule substantially continues U.S.C., Title 28, Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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 Sec. 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, Sec. 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. Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT       
      Subdivison (a). This rule is amended to reflect the requirement
    that local rules be consistent not only with the national rules but
    also with Acts of Congress. The amendment also states that local
    rules should not repeat Acts of Congress or national rules.
      The amendment also requires that the numbering of local rules
    conform with any uniform numbering system that may be prescribed by
    the Judicial Conference. Lack of uniform numbering might create
    unnecessary traps for counsel and litigants. A uniform numbering
    system would make it easier for an increasingly national bar and
    for litigants to locate a local rule that applies to a particular
    procedural issue.
      Paragraph (2) is new. Its aim is to protect against loss of
    rights in the enforcement of local rules relating to matters of
    form. For example, a party should not be deprived of a right to a
    jury trial because its attorney, unaware of - or forgetting - a
    local rule directing that jury demands be noted in the caption of
    the case, includes a jury demand only in the body of the pleading.
    The proscription of paragraph (2) is narrowly drawn - covering only
    violations attributable to nonwillful failure to comply and only
    those involving local rules directed to matters of form. It does
    not limit the court's power to impose substantive penalties upon a
    party if it or its attorney contumaciously or willfully violates a
    local rule, even one involving merely a matter of form. Nor does it
    affect the court's power to enforce local rules that involve more
    than mere matters of form - for example, a local rule requiring
    parties to identify evidentiary matters relied upon to support or
    oppose motions for summary judgment.
      Subdivision (b). This rule provides flexibility to the court in
    regulating practice when there is no controlling law. Specifically,
    it permits the court to regulate practice in any manner consistent
    with Acts of Congress, with rules adopted under 28 U.S.C. Secs.
    2072 and 2075, and with the district local rules.
      This rule recognizes that courts rely on multiple directives to
    control practice. Some courts regulate practice through the
    published Federal Rules and the local rules of the court. Some
    courts also have used internal operating procedures, standing
    orders, and other internal directives. Although such directives
    continue to be authorized, they can lead to problems. Counsel or
    litigants may be unaware of various directives. In addition, the
    sheer volume of directives may impose an unreasonable barrier. For
    example, it may be difficult to obtain copies of the directives.
    Finally, counsel or litigants may be unfairly sanctioned for
    failing to comply with a directive. For these reasons, the
    amendment to this rule disapproves imposing any sanction or other
    disadvantage on a person for noncompliance with such an internal
    directive, unless the alleged violator has been furnished actual
    notice of the requirement in a particular case.
      There should be no adverse consequence to a party or attorney for
    violating special requirements relating to practice before a
    particular court unless the party or attorney has actual notice of
    those requirements. Furnishing litigants with a copy outlining the
    judge's practices - or attaching instructions to a notice setting a
    case for conference or trial - would suffice to give actual notice,
    as would an order in a case specifically adopting by reference a
    judge's standing order and indicating how copies can be obtained.

-End-



-CITE-
    28 USC APPENDIX Rule 84                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 84. Forms

-STATUTE-
      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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      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, Sec. 147, Forms 1-47; English Annual Practice
    (1937) Appendix A to M, inclusive; Conn. Practice Book (1934)
    Rules, 47-68, pp. 123-427.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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 Sec. 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) 5 Fed. Rules Serv. 12e.235,
    Case 2.

-End-



-CITE-
    28 USC APPENDIX Rule 85                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 85. Title

-STATUTE-
      These rules may be known and cited as the Federal Rules of Civil
    Procedure.

-End-



-CITE-
    28 USC APPENDIX Rule 86                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 86. Effective Date

-STATUTE-
      (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.

-SOURCE-
    (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.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1937            
      See [former] Equity Rule 81 (These Rules Effective February 1,
    1913 - Old Rules Abrogated).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      By making the general amendments effective on the day following
    the adjournment of the first regular session of Congress to which
    they are transmitted, subdivision (c), supra, departs slightly from
    the prior practice of making amendments effective on the day which
    is three months subsequent to the adjournment of Congress or on
    September 1 of that year, whichever day is later. The reason for
    this departure is that no added period of time is needed for the
    Bench and Bar to acquaint themselves with the general amendments,
    which effect a change in nomenclature to conform to revised Title
    28, substitute present statutory references to this Title and cure
    the omission or defect occasioned by the statutory revision in
    relation to the substitution of public officers, to a cost bond on
    appeal, and to procedure after removal (see Rules 25(d), 73(c),
    81(c)).

        EFFECTIVE DATE OF 1966 AMENDMENT; TRANSMISSION TO 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., Secs. 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."

-FOOTNOTE-
    (!1) Subdivision heading supplied editorially.


-End-


-CITE-
    28 USC APPENDIX APPENDIX OF FORMS                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
                             APPENDIX OF FORMS                         


-MISC1-
                               (SEE RULE 84)                           

-HEAD-
                          INTRODUCTORY STATEMENT                      
      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.

-End-



-CITE-
    28 USC APPENDIX Form 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 1. Summons

-STATUTE-

-HEAD-
    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
                      CIVIL ACTION, FILE NUMBER ____                  
      A. B., Plaintiff
         v.
                                ]   Summons
      C. D., Defendant

      To the above-named Defendant:

      You are hereby summoned and required to serve upon ____,
    plaintiff's attorney, whose address is ______, 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.
       ____________, 
      Clerk of Court.  
      [Seal of the U.S. District Court]
      Dated ____________

      (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.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949.)

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       

      The change in nomenclature conforms to the official designation
    of a district court and of a court of appeals in Title 28, U.S.C.,
    Secs. 43(a), 132(a); and the more appropriate reference to "United
    States Court House, Foley Square, City of New York" in Form 19
    replaces the outmoded reference.

-End-



-CITE-
    28 USC APPENDIX Form 1A                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 1A. Notice of Lawsuit and Request for Waiver of Service of
      Summons

-STATUTE-
      TO: ___(A)___ [as ___(B)___ of ___(C)___]
      A lawsuit has been commenced against you (or the entity on whose
    behalf you are addressed). A copy of the complaint is attached to
    this notice. It has been filed in the United States District Court
    for the ___(D)___ and has been assigned docket number ___(E)___.
      This is not a formal summons or notification from the court, but
    rather my request that you sign and return the enclosed waiver of
    service in order to save the cost of serving you with a judicial
    summons and an additional copy of the complaint. The cost of
    service will be avoided if I receive a signed copy of the waiver
    within ______(F)______ days after the date designated below as the
    date on which this Notice and Request is sent. I enclose a stamped
    and addressed envelope (or other means of cost-free return) for
    your use. An extra copy of the waiver is also attached for your
    records.
      If you comply with this request and return the signed waiver, it
    will be filed with the court and no summons will be served on you.
    The action will then proceed as if you had been served on the date
    the waiver is filed, except that you will not be obligated to
    answer the complaint before 60 days from the date designated below
    as the date on which this notice is sent (or before 90 days from
    that date if your address is not in any judicial district of the
    United States).
      If you do not return the signed waiver within the time indicated,
    I will take appropriate steps to effect formal service in a manner
    authorized by the Federal Rules of Civil Procedure and will then,
    to the extent authorized by those Rules, ask the court to require
    you (or the party on whose behalf you are addressed) to pay the
    full costs of such service. In that connection, please read the
    statement concerning the duty of parties to waive the service of
    the summons, which is set forth on the reverse side (or at the
    foot) of the waiver form.
      I affirm that this request is being sent to you on behalf of the
    plaintiff, this __ day of ____, __.
                          ______________________                      
                   SIGNATURE OF PLAINTIFF'S ATTORNEY OR                
                       UNREPRESENTED PLAINTIFF                        


-MISC1-
                                   NOTES                               
      A - Name of individual defendant (or name of officer or agent of
    corporate defendant)
      B - Title, or other relationship of individual to corporate
    defendant
      C - Name of corporate defendant, if any
      D - District
      E - Docket number of action
      F - Addressee must be given at least 30 days (60 days if located
    in foreign country) in which to return waiver

-SOURCE-
    (As added Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC2-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1993            
      Forms 1A and 1B reflect the revision of Rule 4. They replace Form
    18-A.

-End-



-CITE-
    28 USC APPENDIX Form 1B                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 1B. Waiver of Service of Summons

-STATUTE-
      TO: ___(name of plaintiff's attorney or unrepresented
    plaintiff)___
      I acknowledge receipt of your request that I waive service of a
    summons in the action of ____(caption of action)____, which is case
    number ____(docket number)____ in the United States District Court
    for the ____(district)____. I have also received a copy of the
    complaint in the action, two copies of this instrument, and a means
    by which I can return the signed waiver to you without cost to me.
      I agree to save the cost of service of a summons and an
    additional copy of the complaint in this lawsuit by not requiring
    that I (or the entity on whose behalf I am acting) be served with
    judicial process in the manner provided by Rule 4.
      I (or the entity on whose behalf I am acting) will retain all
    defenses or objections to the lawsuit or to the jurisdiction or
    venue of the court except for objections based on a defect in the
    summons or in the service of the summons.
      I understand that a judgment may be entered against me (or the
    party on whose behalf I am acting) if an answer or motion under
    Rule 12 is not served upon you within 60 days after ____(date
    request was sent)____, or within 90 days after that date if the
    request was sent outside the United States.
    ______  XXXXXXXXXXXXX
    Date      Signature
                    PRINTED/TYPED NAME: ______________                 
                         [AS __________________]                       
                         [OF __________________]                       


-MISC1-
     TO BE PRINTED ON REVERSE SIDE OF THE WAIVER FORM OR SET FORTH AT
                           THE FOOT OF THE FORM:

           DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS       
      Rule 4 of the Federal Rules of Civil Procedure requires certain
    parties to cooperate in saving unnecessary costs of service of the
    summons and complaint. A defendant located in the United States
    who, after being notified of an action and asked by a plaintiff
    located in the United States to waive service of a summons, fails
    to do so will be required to bear the cost of such service unless
    good cause be shown for its failure to sign and return the waiver.
      It is not good cause for a failure to waive service that a party
    believes that the complaint is unfounded, or that the action has
    been brought in an improper place or in a court that lacks
    jurisdiction over the subject matter of the action or over its
    person or property. A party who waives service of the summons
    retains all defenses and objections (except any relating to the
    summons or to the service of the summons), and may later object to
    the jurisdiction of the court or to the place where the action has
    been brought.
      A defendant who waives service must within the time specified on
    the waiver form serve on the plaintiff's attorney (or unrepresented
    plaintiff) a response to the complaint and must also file a signed
    copy of the response with the court. If the answer or motion is not
    served within this time, a default judgment may be taken against
    that defendant. By waiving service, a defendant is allowed more
    time to answer than if the summons had been actually served when
    the request for waiver of service was received.

-SOURCE-
    (As added Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC2-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1993            
      Forms 1A and 1B reflect the revision of Rule 4. They replace Form
    18-A.

-End-



-CITE-
    28 USC APPENDIX Form 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 2. Allegation of Jurisdiction

-STATUTE-
      (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
    specified by 28 U.S.C. Sec. 1332.
      (b) Jurisdiction founded on the existence of a Federal question.
      The action arises under [the Constitution of the United States,
    Article _, Section _]; [the _ Amendment to the Constitution of the
    United States, Section _]; [the Act of _, _ Stat. _; U.S.C., Title
    _, Sec. _]; [the Treaty of the United States (here describe the
    treaty)] (!2) as hereinafter more fully appears.
      (c) Jurisdiction founded on the existence of a question arising
    under particular statutes.
      The action arises under the Act of ___, ___ Stat. ___; U.S.C.,
    Title ___, Sec. ___, 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.


-MISC1-
                             EXPLANATORY NOTES                         
      1. Diversity of Citizenship. U.S.C., Title 28, Sec. 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, Sec. 1331 (Federal
    question; amount in controversy; costs) and Sec. 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, Sec. 1338 (Patents,
    copyrights, trade-marks, and unfair competition), Sec. 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).

-SOURCE-
    (As amended Apr. 17, 1961, eff. July 19, 1961; Feb. 28, 1966, eff.
    July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 1999, eff.
    Dec. 1, 1999.)


-MISC2-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This form is revised to reflect amendments to 28 U.S.C. Secs.
    1331 and 1332 providing jurisdiction for federal questions without
    regard to the amount in controversy and raising the amount required
    to be in controversy in diversity cases to fifty thousand dollars.

-End-



-CITE-
    28 USC APPENDIX Form 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 3. Complaint on a Promissory Note

-STATUTE-
      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 ___ 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 ___ dollars, interest, and costs.
                          SIGNED: ______________,                      
                          ATTORNEY FOR PLAINTIFF.                      
                          ADDRESS: _____________                      


-MISC1-
                                   NOTES                               
      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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC2-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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, Sec. 1331 (Federal question; amount in
    controversy; costs) and Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Form 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 4. Complaint on an Account

-STATUTE-
      1. Allegation of jurisdiction.
      2. Defendant owes plaintiff ___ dollars according to the account
    hereto annexed as Exhibit A.
      Wherefore (etc. as in Form 3).

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 5. Complaint for Goods Sold and Delivered

-STATUTE-
      1. Allegation of jurisdiction.
      2. Defendant owes plaintiff ___ dollars for goods sold and
    delivered by plaintiff to defendant between June 1, 1936 and
    December 1, 1936.
      Wherefore (etc. as in Form 3).


-MISC1-
                                   NOTE                               
      This form may be used where the action is for an agreed price or
    for the reasonable value of the goods.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC2-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 6                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 6. Complaint for Money Lent

-STATUTE-
      1. Allegation of jurisdiction.
      2. Defendant owes plaintiff ___ dollars for money lent by
    plaintiff to defendant on June 1, 1936.
      Wherefore (etc. as in Form 3).

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 7                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 7. Complaint for Money Paid by Mistake

-STATUTE-
      1. Allegation of jurisdiction.
      2. Defendant owes plaintiff ___ 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).

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 8                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 8. Complaint for Money Had and Received

-STATUTE-
      1. Allegation of jurisdiction.
      2. Defendant owes plaintiff ___ 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).

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 9                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 9. Complaint for Negligence

-STATUTE-
      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 ___ dollars and costs.


-MISC1-
                                   NOTE                               
      Since contributory negligence is an affirmative defense, the
    complaint need contain no allegation of due care of plaintiff.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC2-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 10                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    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

-STATUTE-
      A. B., Plaintiff

         v.

      C. D. and E. F.,

            ]   Complaint

       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 ___ dollars and costs.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       

      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.

-End-



-CITE-
    28 USC APPENDIX Form 11                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 11. Complaint for Conversion

-STATUTE-
      1. Allegation of jurisdiction.
      2. On or about December 1, 1936, defendant converted to his own
    use ten bonds of the ____ Company (here insert brief identification
    as by number and issue) of the value of ___ dollars, the property
    of plaintiff.
      Wherefore plaintiff demands judgment against defendant in the sum
    of ___ dollars, interest, and costs.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 12                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 12. Complaint for Specific Performance of Contract To Convey
      Land

-STATUTE-
      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 ___
    dollars.


-MISC1-
                                   NOTE                               
      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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC2-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 13                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 13. Complaint on Claim for Debt and To Set Aside Fraudulent
      Conveyance Under Rule 18(b)

-STATUTE-
      A. B., Plaintiff

         v.

      C. D. and E. F.,

            ]   Complaint

       Defendants

      1. Allegation of jurisdiction.
      2. Defendant C. D. on or about ____ 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 ___ the sum of five thousand dollars with
    interest thereon at the rate of ___ percent. per annum].
      3. Defendant C. D. owes to plaintiff the amount of said note and
    interest.
      4. Defendant C. D. on or about ___ 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 ___
    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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       

      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.

-End-



-CITE-
    28 USC APPENDIX Form 14                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 14. Complaint for Negligence Under Federal Employer's
      Liability Act

-STATUTE-
      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 ___ and known as Tunnel No. ___.
      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 ___ 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 ___ dollars for medicine, medical
    attendance, and hospitalization.
      Wherefore plaintiff demands judgment against defendant in the sum
    of ___ dollars and costs.

-End-



-CITE-
    28 USC APPENDIX Form 15                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 15. Complaint for Damages Under Merchant Marine Act

-STATUTE-
      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 ___ 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 ___ plaintiff
    entered the employ of defendant as an able seaman on said steamship
    under seamen's articles of customary form for a voyage from ___
    ports to the Orient and return at a wage of ___ dollars per month
    and found, which is equal to a wage of ___ dollars per month as a
    shore worker.
      4. On June 1, 1936, said steamship was about ___ days out of the
    port of ___ and was being navigated by the master and crew on the
    return voyage to ___ 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 ___ 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 ___ dollars for medicine, medical
    attendance, and hospitalization.
      Wherefore plaintiff demands judgment against defendant in the sum
    of ___ dollars and costs.

-SOURCE-
    (As amended Feb. 28, 1966, eff. July 1, 1966.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1966 AMENDMENT       
      See Advisory Committee's Note to Form 2.

-End-



-CITE-
    28 USC APPENDIX Form 16                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 16. Complaint for Infringement of Patent

-STATUTE-
      1. Allegation of jurisdiction.
      2. On May 16, 1934, United States Letters Patent No. __ 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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      The prayer for relief is amended to reflect the language of the
    present patent statute, Title 35, U.S.C., Sec. 284 (Damages).

-End-



-CITE-
    28 USC APPENDIX Form 17                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 17. Complaint for Infringement of Copyright and Unfair
      Competition

-STATUTE-
      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 __________.
      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 ____, No. ___."
      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 ____ 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 ____, which
    was copied largely from plaintiff's copyrighted book, entitled
    __________.
      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 ____,
    defendant has been publishing, selling and otherwise marketing the
    book entitled __________, 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 __________.
      (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 __________ 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.

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 18                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 18. Complaint for Interpleader and Declaratory Relief

-STATUTE-
      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 ___ 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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 18-A                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    [Form 18-A. Abrogated Apr. 22, 1993, eff. Dec. 1, 1993]


-STATUTE-

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This form is superseded by Forms 1A and 1B in view of the
    revision of Rule 4.

-End-



-CITE-
    28 USC APPENDIX Form 19                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    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)

-STATUTE-
      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: ______________
                  Attorney for Defendant.

            Address: _____________
                  Notice of Motion
      To: ______________
            Attorney for Plaintiff.

    ________________
      Please take notice, that the undersigned will bring the above
    motion on for hearing before this Court at Room __, United States
    Court House, Foley Square, City of New York, on the ___ day of____,
    20_, at 10 o'clock in the forenoon of that day or as soon
    thereafter as counsel can be heard.

            Signed: ______________
                  Attorney for Defendant.

            Address: _____________


-MISC1-
                             EXPLANATORY NOTES                         
      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, Sec. 1391 (Venue
    generally), subsections (b) and (c).
      3. As to paragraph 4, see U.S.C., Title 28, Sec. 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.

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff.
    July 19, 1961; Mar. 27, 2003, eff. Dec. 1, 2003.)


-MISC2-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       
      The change in nomenclature conforms to the official designation
    of a district court and of a court of appeals in Title 28, U.S.C.,
    Secs. 43(a), 132(a); and the more appropriate reference to "United
    States Court House, Foley Square, City of New York" in Form 19
    replaces the outmoded reference.

-End-



-CITE-
    28 USC APPENDIX Form 20                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 20. Answer Presenting Defenses Under Rule 12(b)

-STATUTE-

-HEAD-
                               FIRST DEFENSE                           
      The complaint fails to state a claim against defendant upon which
    relief can be granted.
                              SECOND DEFENSE                          
      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.
                               THIRD DEFENSE                           
      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.
                              FOURTH DEFENSE                          
      The right of action set forth in the complaint did not accrue
    within six years next before the commencement of this action.
                               COUNTERCLAIM                           
      (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.)
                    CROSS-CLAIM AGAINST DEFENDANT M. N.                
      (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.)


-MISC1-
                                   NOTE                               
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1946 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 21                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 21. Answer to Complaint Set Forth in Form 8, With Counterclaim
      for Interpleader

-STATUTE-

-HEAD-
                                  DEFENSE                              
      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.
                       COUNTERCLAIM FOR INTERPLEADER                   
      1. Defendant received the sum of ___ 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.

-SOURCE-
    (As amended Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1963 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Form 22                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    [Form 22. Eliminated Jan. 21, 1963, eff. July 1, 1963]

-MISC1-
      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 Jan. 21, 1963, eff. July 1, 1963, 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. See Advisory Committee notes under Forms
    22-A and 22-B.

-End-



-CITE-
    28 USC APPENDIX Form 22-A                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 22-A. Summons and Complaint Against Third-Party Defendant

-STATUTE-

-HEAD-
    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
                       CIVIL ACTION, FILE NUMBER __                   

<p><img src="http://uscode.house.gov/images/current/28Af22A1.gif" width=576 height=579 alt="Image of item"><p>


    To the above-named Third-Party Defendant:
      You are hereby summoned and required to serve upon ____,
    plaintiff's attorney whose address is ____, and upon ____, who is
    attorney for C. D., defendant and third-party plaintiff, and whose
    address is ____, 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.
    ____________,
    Clerk of Court.
    [Seal of District Court]
    Dated ____________
    United States District Court for the Southern District of New York
    Civil Action, File Number __

<p><img src="http://uscode.house.gov/images/current/28Af22A2.gif" width=576 height=579 alt="Image of item"><p>


      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: _________________,
    Attorney for C. D., Third-Party Plaintiff.
            Address: _________________

      (!1) Make appropriate change where C. D. is entitled to only partial
    recovery-over against E. F.

-SOURCE-
    (As added Jan. 21, 1963, eff. July 1, 1963.)

-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 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.

-End-



-CITE-
    28 USC APPENDIX Form 22-B                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 22-B. Motion To Bring in Third-Party Defendant

-STATUTE-
      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: ________________,
                       ATTORNEY FOR DEFENDANT C. D.                   
            Address: _______________

-HEAD-
                             NOTICE OF MOTION                         
      (Contents the same as in Form 19. The notice should be addressed
    to all parties to the action.)
                                 EXHIBIT X                             
      (Contents the same as in Form 22-A.)

-SOURCE-
    (As added Jan. 21, 1963, eff. July 1, 1963.)


-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 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.

-End-



-CITE-
    28 USC APPENDIX Form 23                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 23. Motion To Intervene as a Defendant Under Rule 24

-STATUTE-

-HEAD-
                    (BASED UPON THE COMPLAINT, FORM 16)                
      United States District Court for the Southern District of New
    York
                       CIVIL ACTION, FILE NUMBER __                   
      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: ______________,
    Attorney for E. F., Applicant for Intervention.
            Address: _____________
    Notice of Motion
    (Contents the same as in Form 19)
      (!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
    Civil Action, File Number __
      A. B., plaintiff

         v.

     C. D., defendant

                                ] Intervener's Answer

     E. F., intervener

    First Defense
      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.
    Second Defense
      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: ________________,
            Attorney for E. F., Intervener.
            Address: _______________

-SOURCE-
    (As amended Dec. 29, 1948, eff. Oct. 20, 1949.)

-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1948 AMENDMENT       

      The change in nomenclature conforms to the official designation
    of a district court and of a court of appeals in Title 28, U.S.C.,
    Secs. 43(a), 132(a); and the more appropriate reference to "United
    States Court House, Foley Square, City of New York" in Form 19
    replaces the outmoded reference.

-End-



-CITE-
    28 USC APPENDIX Form 24                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 24. Request for Production of Documents, etc., Under Rule 34

-STATUTE-
      Plaintiff A. B. requests defendant C. D. to respond within ___
    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: ______________,
                          ATTORNEY FOR PLAINTIFF.                      
            Address: _____________

-SOURCE-
    (As amended Mar. 30, 1970, eff. July 1, 1970.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT       
      Form 24 is revised to accord with the changes made in Rule 34.

-End-



-CITE-
    28 USC APPENDIX Form 25                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 25. Request for Admission Under Rule 36

-STATUTE-
      Plaintiff A. B. requests defendant C. D. within ____ 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: ______________,
                          ATTORNEY FOR PLAINTIFF.                      
            Address: _____________

-SOURCE-
    (As amended Dec. 27, 1946, eff. Mar. 19, 1948.)

-End-



-CITE-
    28 USC APPENDIX Form 26                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 26. Allegation of Reason for Omitting Party

-STATUTE-
      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].

-End-



-CITE-
    28 USC APPENDIX Form 27                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    [Form 27. Abrogated Dec. 4, 1967, eff. July 1, 1968]


-STATUTE-

-MISC1-
                NOTES OF ADVISORY COMMITTEE ON RULES - 1967            
      The form of notice of appeal is transferred to the Federal Rules
    of Appellate Procedure as Form 1.

-End-



-CITE-
    28 USC APPENDIX Form 28                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 28. Notice: Condemnation

-STATUTE-
      United States District Court for the Southern District of New
    York

-HEAD-
                       CIVIL ACTION, FILE NUMBER __                   

<p><img src="http://uscode.house.gov/images/current/28Af28.gif" width=576 height=579 alt="Image of item"><p>


    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 ___, ___ Stat. ___, U.S.C., Title ___, Sec. ___".) (!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 ________.(!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.
            _________________
            United States Attorney.

            Address _____________
        (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 ____

      (!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.

-SOURCE-
    (As added May 1, 1951, eff. Aug. 1, 1951.)

-End-



-CITE-
    28 USC APPENDIX Form 29                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 29. Complaint: Condemnation

-STATUTE-
      United States District Court for the Southern District of New
    York

-HEAD-
                       CIVIL ACTION, FILE NUMBER __                   

<p><img src="http://uscode.house.gov/images/current/28Af29.gif" width=576 height=579 alt="Image of item"><p>


      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 ___, ___ Stat. ___, U.S.C., Title ___, Sec. ___") (!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.
            _________________
            United States Attorney.
            Address _____________
        (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).

-SOURCE-
    (As added May 1, 1951, eff. Aug. 1, 1951.)

-End-



-CITE-
    28 USC APPENDIX Form 30                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1)

-STATUTE-
      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.

-SOURCE-
    (Added Jan. 21, 1963, eff. July 1, 1963.)

-End-



-CITE-
    28 USC APPENDIX Form 31                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 31. Judgment on Jury Verdict

-STATUTE-

-HEAD-
    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
                       CIVIL ACTION, FILE NUMBER __                   
      A. B., Plaintiff
         v.
                                ] 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 __, with interest thereon at the rate of _ 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 __ day of ___, 20_.
      ____________, 
      Clerk of Court.

-MISC1-
                                   NOTE                               

      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.

-SOURCE-
    (As added Jan. 21, 1963, eff. July 1, 1963; amended Mar. 27, 2003,
    eff. Dec. 1, 2003.)

-End-



-CITE-
    28 USC APPENDIX Form 32                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 32. Judgment on Decision by the Court

-STATUTE-
      United States District Court for the Southern District of New
    York

-HEAD-
                       CIVIL ACTION, FILE NUMBER __                   
      A. B., Plaintiff
         v.
                                ] 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
    of__, with interest thereon at the rate of__ 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 __ day of ___, 20_.
      ____________, 
      Clerk of Court.

-MISC1-
                                   NOTES                               

      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.

-SOURCE-
    (As added Jan. 21, 1963, eff. July 1, 1963; amended Mar. 27, 2003,
    eff. Dec. 1, 2003.)

-End-



-CITE-
    28 USC APPENDIX Form 33                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 33. Notice of Availability of a Magistrate Judge to Exercise
      Jurisdiction

-STATUTE-
      In accordance with the provisions of Title 28, U.S.C. Sec.
    636(c), you are hereby notified that a United States magistrate
    judge of this district court is available to exercise the court's
    jurisdiction and to conduct any or all proceedings in this case
    including a jury or nonjury trial, and entry of a final judgment.
    Exercise of this jurisdiction by a magistrate judge is, however,
    permitted only if all parties voluntarily consent.
      You may, without adverse substantive consequences, withhold your
    consent, but this will prevent the court's jurisdiction from being
    exercised by a magistrate judge. If any party withholds consent,
    the identity of the parties consenting or withholding consent will
    not be communicated to any magistrate judge or to the district
    judge to whom the case has been assigned.
      An appeal from a judgment entered by a magistrate judge 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.
      Copies of the Form for the "Consent to Jurisdiction by a United
    States Magistrate Judge" are available from the clerk of the court.

-SOURCE-
    (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993,
    eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This form, together with Form 34, is revised in light of the
    Judicial Improvements Act of 1990. Section 308 modified 28 U.S.C.
    Sec. 636(c)(2) to enhance the potential of parties consenting to
    trial before a magistrate judge. While the exercise of jurisdiction
    by a magistrate judge remains dependent on the voluntary consent of
    the parties, the statute provides that the parties should be
    advised, and may be reminded, of the availability of this option
    and eliminates the proscription against judicial suggestions of the
    potential benefits of referral provided the parties are also
    advised that they "are free to withhold consent without adverse
    substantive consequences." The parties may be advised if the
    withholding of consent will result in a potential delay in trial.

-End-



-CITE-
    28 USC APPENDIX Form 34                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 34. Consent to Exercise of Jurisdiction by a United States
      Magistrate Judge

-STATUTE-
                       UNITED STATES DISTRICT COURT                   
                         ______ DISTRICT OF ______                     

            Plaintiff,
          vs.    
                                ] Docket No. ____
            Defendant.

-HEAD-
    CONSENT TO JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE
      In accordance with the provisions of Title 28, U.S.C. Sec.
    636(c), the undersigned party or parties to the above-captioned
    civil matter hereby voluntarily consent to have a United States
    magistrate judge conduct any and all further proceedings in the
    case, including trial, and order the entry of a final judgment.
    ______   ____________________________________
      Date      Signature

    Note: Return this form to the Clerk of the Court if you consent to
    jurisdiction by a magistrate judge. Do not send a copy of this form to
    any district judge or magistrate judge.

-SOURCE-
    (As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993,
    eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997.)

-End-



-CITE-
    28 USC APPENDIX Form 34A                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 34A. Order of Reference

-STATUTE-
                       UNITED STATES DISTRICT COURT                   
                         ______ DISTRICT OF ______                     

            Plaintiff,
          vs.    
                                ] Docket No. ____
            Defendant.

-HEAD-
    ORDER OF REFERENCE
      IT IS HEREBY ORDERED that the above-captioned matter be referred
    to United States Magistrate Judge ________ for all further
    proceedings and entry of judgment in accordance with Title 28,
    U.S.C. Sec. 636(c) and the consent of the parties.
            _________________ 
            U.S. District Judge  

-SOURCE-
    (As added Apr. 22, 1993, eff. Dec. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Form 35                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    APPENDIX OF FORMS

-HEAD-
    Form 35. Report of Parties' Planning Meeting

-STATUTE-

-HEAD-
                      [CAPTION AND NAMES OF PARTIES]                  
      1. Pursuant to Fed. R. Civ. P. 26(f), a meeting was held on
    ___(date)___ at ___(place)___ and was attended by:
      _____(name)_____ for plaintiff(s)
      _____(name)_____ for defendant(s) _____(party name)_____
      _____(name)_____ for defendant(s) _____(party name)_____
      2. Pre-Discovery Disclosures. The parties [have exchanged] [will
    exchange by ___(date)___] the information required by [Fed. R. Civ.
    P. 26(a)(1)] [local rule __].
      3. Discovery Plan. The parties jointly propose to the court the
    following discovery plan: [Use separate paragraphs or subparagraphs
    as necessary if parties disagree.]
         Discovery will be needed on the following subjects: ___(brief
          description of subjects on which discovery will be needed)___
         All discovery commenced in time to be completed by
          ___(date)___. [Discovery on ___(issue for early discovery)___
          to be completed by ___(date)___.]
         Maximum of __ interrogatories by each party to any other
          party. [Responses due __ days after service.]
         Maximum of __ requests for admission by each party to any
          other party. [Responses due __ days after service.]
         Maximum of ___ depositions by plaintiff(s) and __ by
          defendant(s).
         Each deposition [other than of ______] limited to maximum of
          __ hours unless extended by agreement of parties.
         Reports from retained experts under Rule 26(a)(2) due:
           from plaintiff(s) by __(date)__
           from defendant(s) by __(date)__
         Supplementations under Rule 26(e) due ___(time(s) or
          interval(s))___.

      4. Other Items. [Use separate paragraphs or subparagraphs as
    necessary if parties disagree.]
         The parties [request] [do not request] a conference with the
          court before entry of the scheduling order.
         The parties request a pretrial conference in ___(month and
          year)___.
         Plaintiff(s) should be allowed until ___(date)___ to join
          additional parties and until ___(date)___ to amend the
          pleadings.
         Defendant(s) should be allowed until ___(date)___ to join
          additional parties and until ___(date)___ to amend the
          pleadings.
         All potentially dispositive motions should be filed by
          ___(date)___.
         Settlement [is likely] [is unlikely] [cannot be evaluated
          prior to ___(date)___] [may be enhanced by use of the
          following alternative dispute resolution procedure:
          [____________].
         Final lists of witnesses and exhibits under Rule 26(a)(3)
          should be due
           from plaintiff(s) by __(date)__
           from defendant(s) by __(date)__
         Parties should have __ days after service of final lists of
          witnesses and exhibits to list objections under Rule
          26(a)(3).
         The case should be ready for trial by ___(date)___ [and at
          this time is expected to take approximately ___(length of
          time)___].
         [Other matters.]

    Date: ________

-SOURCE-
    (As added Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This form illustrates the type of report the parties are expected
    to submit to the court under revised Rule 26(f) and may be useful
    as a checklist of items to be discussed at the meeting.

-End-


-CITE-
    28 USC APPENDIX SUPPLEMENTAL RULES FOR CERTAIN
      ADMIRALTY AND MARITIME CLAIMS                        01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
       SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS   


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Rule A                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
    Rule A. Scope of Rules

-STATUTE-
      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.

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966.)


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
      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 Sec. 286; 28
    U.S.C., Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule B                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
    Rule B. In Personam Actions: Attachment and Garnishment

-STATUTE-
      (1) When Available; Complaint, Affidavit, Judicial Authorization,
    and Process. In an in personam action:
        (a) If a defendant is not found within the district, a verified
      complaint may contain a prayer for process to attach the
      defendant's tangible or intangible personal property - up to the
      amount sued for - in the hands of garnishees named in the
      process.
        (b) The plaintiff or the plaintiff's attorney must sign and
      file with the complaint an affidavit stating that, to the
      affiant's knowledge, or on information and belief, the defendant
      cannot be found within the district. The court must review the
      complaint and affidavit and, if the conditions of this Rule B
      appear to exist, enter an order so stating and authorizing
      process of attachment and garnishment. The clerk may issue
      supplemental process enforcing the court's order upon application
      without further court order.
        (c) If the plaintiff or the plaintiff's attorney certifies that
      exigent circumstances make court review impracticable, the clerk
      must issue the summons and process of attachment and garnishment.
      The plaintiff has the burden in any post-attachment hearing under
      Rule E(4)(f) to show that exigent circumstances existed.
        (d)(i) If the property is a vessel or tangible property on
      board a vessel, the summons, process, and any supplemental
      process must be delivered to the marshal for service.
        (ii) If the property is other tangible or intangible property,
      the summons, process, and any supplemental process must be
      delivered to a person or organization authorized to serve it, who
      may be (A) a marshal; (B) someone under contract with the United
      States; (C) someone specially appointed by the court for that
      purpose; or, (D) in an action brought by the United States, any
      officer or employee of the United States.
        (e) The plaintiff may invoke state-law remedies under Rule 64
      for seizure of person or property for the purpose of securing
      satisfaction of the judgment.

      (2) Notice to Defendant. No default judgment may be entered
    except upon proof - which may be by affidavit - that:
        (a) the complaint, summons, and process of attachment or
      garnishment have been served on the defendant in a manner
      authorized by Rule 4;
        (b) the plaintiff or the garnishee has mailed to the defendant
      the complaint, summons, and process of attachment or garnishment,
      using any form of mail requiring a return receipt; or
        (c) the plaintiff or the garnishee has tried diligently to give
      notice of the action to the defendant but could not do so.

      (3) Answer.
        (a) By Garnishee. The garnishee shall serve an answer, 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.

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985,
    eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000,
    eff. Dec. 1, 2000.)


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
    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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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 order 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Rule B(1) is amended in two ways, and style changes have been
    made.
      The service provisions of Rule C(3) are adopted in paragraph (d),
    providing alternatives to service by a marshal if the property to
    be seized is not a vessel or tangible property on board a vessel.
      The provision that allows the plaintiff to invoke state
    attachment and garnishment remedies is amended to reflect the 1993
    amendments of Civil Rule 4. Former Civil Rule 4(e), incorporated in
    Rule B(1), allowed general use of state quasi-in-rem jurisdiction
    if the defendant was not an inhabitant of, or found within, the
    state. Rule 4(e) was replaced in 1993 by Rule 4(n)(2), which
    permits use of state law to seize a defendant's assets only if
    personal jurisdiction over the defendant cannot be obtained in the
    district where the action is brought. Little purpose would be
    served by incorporating Rule 4(n)(2) in Rule B, since maritime
    attachment and garnishment are available whenever the defendant is
    not found within the district, a concept that allows attachment or
    garnishment even in some circumstances in which personal
    jurisdiction also can be asserted. In order to protect against any
    possibility that elimination of the reference to state quasi-in-rem
    jurisdiction remedies might seem to defeat continued use of state
    security devices, paragraph (e) expressly incorporates Civil Rule
    64. Because Rule 64 looks only to security, not jurisdiction, the
    former reference to Rule E(8) is deleted as no longer relevant.
      Rule B(2)(a) is amended to reflect the 1993 redistribution of the
    service provisions once found in Civil Rule 4(d) and (i). These
    provisions are now found in many different subdivisions of Rule 4.
    The new reference simply incorporates Rule 4, without designating
    the new subdivisions, because the function of Rule B(2) is simply
    to describe the methods of notice that suffice to support a default
    judgment. Style changes also have been made.

-End-



-CITE-
    28 USC APPENDIX Rule C                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
    Rule C. In Rem Actions: Special Provisions

-STATUTE-
      (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 an action in rem the complaint must:
        (a) be verified;
        (b) describe with reasonable particularity the property that is
      the subject of the action;
        (c) in an admiralty and maritime proceeding, state that the
      property is within the district or will be within the district
      while the action is pending;
        (d) in a forfeiture proceeding for violation of a federal
      statute, state:
          (i) the place of seizure and whether it was on land or on
        navigable waters;
          (ii) whether the property is within the district, and if the
        property is not within the district the statutory basis for the
        court's exercise of jurisdiction over the property; and
          (iii) all allegations required by the statute under which the
        action is brought.

      (3) Judicial Authorization and Process.
        (a) Arrest Warrant.
          (i) When the United States files a complaint demanding a
        forfeiture for violation of a federal statute, the clerk must
        promptly issue a summons and a warrant for the arrest of the
        vessel or other property without requiring a certification of
        exigent circumstances, but if the property is real property the
        United States must proceed under applicable statutory
        procedures.
          (ii)(A) In other actions, the court must review the complaint
        and any supporting papers. If the conditions for an in rem
        action appear to exist, the court must issue an order directing
        the clerk to issue a warrant for the arrest of the vessel or
        other property that is the subject of the action.
          (B) If the plaintiff or the plaintiff's attorney certifies
        that exigent circumstances make court review impracticable, the
        clerk must promptly issue a summons and a warrant for the
        arrest of the vessel or other property that is the subject of
        the action. The plaintiff has the burden in any post-arrest
        hearing under Rule E(4)(f) to show that exigent circumstances
        existed.

        (b) Service.
          (i) If the property that is the subject of the action is a
        vessel or tangible property on board a vessel, the warrant and
        any supplemental process must be delivered to the marshal for
        service.
          (ii) If the property that is the subject of the action is
        other property, tangible or intangible, the warrant and any
        supplemental process must be delivered to a person or
        organization authorized to enforce it, who may be: (A) a
        marshal; (B) someone under contract with the United States; (C)
        someone specially appointed by the court for that purpose; or,
        (D) in an action brought by the United States, any officer or
        employee of the United States.

        (c) Deposit in Court. If the property that is the subject of
      the action consists in whole or in part of freight, the proceeds
      of property sold, or other intangible property, the clerk must
      issue - in addition to the warrant - a summons directing any
      person controlling the property to show cause why it should not
      be deposited in court to abide the judgment.
        (d) Supplemental Process. The clerk may upon application issue
      supplemental process to enforce the court's order without further
      court order.

      (4) Notice. No notice other than execution of process is required
    when the property that is the subject of the action has been
    released under Rule E(5). If the property is not released within 10
    days after execution, the plaintiff must promptly - or within the
    time that the court allows - give public notice of the action and
    arrest in a newspaper designated by court order and having general
    circulation in the district, but publication may be terminated if
    the property is released before publication is completed. The
    notice must specify the time under Rule C(6) to file a statement of
    interest in or right against the seized property and to answer.
    This rule does not affect the notice requirements in an action to
    foreclose a preferred ship mortgage under 46 U.S.C. Secs. 31301 et
    seq., as amended.
      (5) Ancillary Process. In any action in rem in which process has
    been served as provided by this rule, if any part of the 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) Responsive Pleading; Interrogatories.
        (a) Civil Forfeiture. In an in rem forfeiture action for
      violation of a federal statute:
          (i) a person who asserts an interest in or right against the
        property that is the subject of the action must file a verified
        statement identifying the interest or right:
            (A) within 30 days after the earlier of (1) the date of
          service of the Government's complaint or (2) completed
          publication of notice under Rule C(4), or
            (B) within the time that the court allows.

          (ii) an agent, bailee, or attorney must state the authority
        to file a statement of interest in or right against the
        property on behalf of another; and
          (iii) a person who files a statement of interest in or right
        against the property must serve and file an answer within 20
        days after filing the statement.

        (b) Maritime Arrests and Other Proceedings. In an in rem action
      not governed by Rule C(6)(a):
          (i) A person who asserts a right of possession or any
        ownership interest in the property that is the subject of the
        action must file a verified statement of right or interest:
            (A) within 10 days after the earlier of (1) the execution
          of process, or (2) completed publication of notice under Rule
          C(4), or
            (B) within the time that the court allows;

          (ii) the statement of right or interest must describe the
        interest in the property that supports the person's demand for
        its restitution or right to defend the action;
          (iii) an agent, bailee, or attorney must state the authority
        to file a statement of right or interest on behalf of another;
        and
          (iv) a person who asserts a right of possession or any
        ownership interest must serve an answer within 20 days after
        filing the statement of interest or right.

        (c) Interrogatories. Interrogatories may be served with the
      complaint in an in rem action without leave of court. Answers to
      the interrogatories must be served with the answer to the
      complaint.

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985,
    eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,
    eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002,
    eff. Dec. 1, 2002.)


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
    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 Sec. 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 Sec. 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 Sec. 324).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Style changes have been made throughout the revised portions of
    Rule C. Several changes of meaning have been made as well.
      Subdivision 2. In rem jurisdiction originally extended only to
    property within the judicial district. Since 1986, Congress has
    enacted a number of jurisdictional and venue statutes for
    forfeiture and criminal matters that in some circumstances permit a
    court to exercise authority over property outside the district. 28
    U.S.C. Sec. 1355(b)(1) allows a forfeiture action in the district
    where an act or omission giving rise to forfeiture occurred, or in
    any other district where venue is established by Sec. 1395 or by
    any other statute. Section 1355(b)(2) allows an action to be
    brought as provided in (b)(1) or in the United States District
    Court for the District of Columbia when the forfeiture property is
    located in a foreign country or has been seized by authority of a
    foreign government. Section 1355(d) allows a court with
    jurisdiction under Sec. 1355(b) to cause service in any other
    district of process required to bring the forfeiture property
    before the court. Section 1395 establishes venue of a civil
    proceeding for forfeiture in the district where the forfeiture
    accrues or the defendant is found; in any district where the
    property is found; in any district into which the property is
    brought, if the property initially is outside any judicial
    district; or in any district where the vessel is arrested if the
    proceeding is an admiralty proceeding to forfeit a vessel. Section
    1395(e) deals with a vessel or cargo entering a port of entry
    closed by the President, and transportation to or from a state or
    section declared to be in insurrection. 18 U.S.C. Sec. 981(h)
    creates expanded jurisdiction and venue over property located
    elsewhere that is related to a criminal prosecution pending in the
    district. These amendments, and related amendments of Rule E(3),
    bring these Rules into step with the new statutes. No change is
    made as to admiralty and maritime proceedings that do not involve a
    forfeiture governed by one of the new statutes.
      Subdivision (2) has been separated into lettered paragraphs to
    facilitate understanding.
      Subdivision (3). Subdivision (3) has been rearranged and divided
    into lettered paragraphs to facilitate understanding.
      Paragraph (b)(i) is amended to make it clear that any
    supplemental process addressed to a vessel or tangible property on
    board a vessel, as well as the original warrant, is to be served by
    the marshal.
      Subdivision (4). Subdivision (4) has required that public notice
    state the time for filing an answer, but has not required that the
    notice set out the earlier time for filing a statement of interest
    or claim. The amendment requires that both times be stated.
      A new provision is added, allowing termination of publication if
    the property is released more than 10 days after execution but
    before publication is completed. Termination will save money, and
    also will reduce the risk of confusion as to the status of the
    property.
      Subdivision (6). Subdivision (6) has applied a single set of
    undifferentiated provisions to civil forfeiture proceedings and to
    in rem admiralty proceedings. Because some differences in procedure
    are desirable, these proceedings are separated by adopting a new
    paragraph (a) for civil forfeiture proceedings and recasting the
    present rule as paragraph (b) for in rem admiralty proceedings. The
    provision for interrogatories and answers is carried forward as
    paragraph (c). Although this established procedure for serving
    interrogatories with the complaint departs from the general
    provisions of Civil Rule 26(d), the special needs of expedition
    that often arise in admiralty justify continuing the practice.
      Both paragraphs (a) and (b) require a statement of interest or
    right rather than the "claim" formerly required. The new wording
    permits parallel drafting, and facilitates cross-references in
    other rules. The substantive nature of the statement remains the
    same as the former claim. The requirements of (a) and (b) are,
    however, different in some respects.
      In a forfeiture proceeding governed by paragraph (a), a statement
    must be filed by a person who asserts an interest in or a right
    against the property involved. This category includes every right
    against the property, such as a lien, whether or not it establishes
    ownership or a right to possession. In determining who has an
    interest in or a right against property, courts may continue to
    rely on precedents that have developed the meaning of "claims" or
    "claimants" for the purpose of civil forfeiture proceedings.
      In an admiralty and maritime proceeding governed by paragraph
    (b), a statement is filed only by a person claiming a right of
    possession or ownership. Other claims against the property are
    advanced by intervention under Civil Rule 24, as it may be
    supplemented by local admiralty rules. The reference to ownership
    includes every interest that qualifies as ownership under domestic
    or foreign law. If an ownership interest is asserted, it makes no
    difference whether its character is legal, equitable, or something
    else.
      Paragraph (a) provides more time than paragraph (b) for filing a
    statement. Admiralty and maritime in rem proceedings often present
    special needs for prompt action that do not commonly arise in
    forfeiture proceedings.
      Paragraphs (a) and (b) do not limit the right to make a
    restricted appearance under Rule E(8).

                 COMMITTEE NOTES ON RULES - 2002 AMENDMENT             
      Rule C(3) is amended to reflect the provisions of 18 U.S.C. Sec.
    985, enacted by the Civil Asset Forfeiture Reform Act of 2000, 114
    Stat. 202, 214-215. Section 985 provides, subject to enumerated
    exceptions, that real property that is the subject of a civil
    forfeiture action is not to be seized until an order of forfeiture
    is entered. A civil forfeiture action is initiated by filing a
    complaint, posting notice, and serving notice on the property
    owner. The summons and arrest procedure is no longer appropriate.
      Rule C(6)(a)(i)(A) is amended to adopt the provision enacted by
    18 U.S.C. Sec. 983(a)(4)(A), shortly before Rule C(6)(a)(i)(A) took
    effect, that sets the time for filing a verified statement as 30
    days rather than 20 days, and that sets the first alternative event
    for measuring the 30 days as the date of service of the
    Government's complaint.
      Rule C(6)(a)(iii) is amended to give notice of the provision
    enacted by 18 U.S.C. Sec. 983(a)(4)(B) that requires that the
    answer in a forfeiture proceeding be filed within 20 days. Without
    this notice, unwary litigants might rely on the provision of Rule
    5(d) that allows a reasonable time for filing after service.
      Rule C(6)(b)(iv) is amended to change the requirement that an
    answer be filed within 20 days to a requirement that it be served
    within 20 days. Service is the ordinary requirement, as in Rule
    12(a). Rule 5(d) requires filing within a reasonable time after
    service.
      Changes Made After Publication and Comments. No changes have been
    made since publication.

-End-



-CITE-
    28 USC APPENDIX Rule D                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
    Rule D. Possessory, Petitory, and Partition Actions

-STATUTE-
      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.

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966.)


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
      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.

-End-



-CITE-
    28 USC APPENDIX Rule E                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
    Rule E. Actions in Rem and Quasi in Rem: General Provisions

-STATUTE-
      (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) In admiralty and maritime proceedings process in rem or of
      maritime attachment and garnishment may be served only within the
      district.
        (b) In forfeiture cases process in rem may be served within the
      district or outside the district when authorized by statute.
        (c) 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., Sec. 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. Secs. 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.
        (a) When a person who has given security for damages in the
      original action asserts a counterclaim that arises from the
      transaction or occurrence that is the subject of the original
      action, a plaintiff for whose benefit the security has been given
      must give security for damages demanded in the counterclaim
      unless the court, for cause shown, directs otherwise. Proceedings
      on the original claim must be stayed until this security is
      given, unless the court directs otherwise.
        (b) The plaintiff is required to give security under Rule
      E(7)(a) when the United States or its corporate instrumentality
      counterclaims and would have been required to give security to
      respond in damages if a private party but is relieved by law from
      giving security.

      (8) Restricted Appearance. An appearance to defend against an
    admiralty and maritime claim with respect to which there has issued
    process in rem, or process of attachment and garnishment, may be
    expressly restricted to the defense of such claim, and in that
    event is not an appearance for the purposes of any other claim with
    respect to which such process is not available or has not been
    served.
      (9) Disposition of Property; Sales.
        (a) 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; Delivery.
          (i) On application of a party, the marshal, or other person
        having custody of the property, the court may order all or part
        of the property sold - with the sales proceeds, or as much of
        them as will satisfy the judgment, paid into court to await
        further orders of the court - if:
            (A) the attached or arrested property is perishable, or
          liable to deterioration, decay, or injury by being detained
          in custody pending the action;
            (B) the expense of keeping the property is excessive or
          disproportionate; or
            (C) there is an unreasonable delay in securing release of
          the property.

          (ii) In the circumstances described in Rule E(9)(b)(i), the
        court, on motion by a defendant or a person filing a statement
        of interest or right under Rule C(6), may order that the
        property, rather than being sold, be delivered to the movant
        upon giving security under these rules.

        (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.

      (10) Preservation of Property. When the owner or another person
    remains in possession of property attached or arrested under the
    provisions of Rule E(4)(b) that permit execution of process without
    taking actual possession, the court, on a party's motion or on its
    own, may enter any order necessary to preserve the property and to
    prevent its removal.

-SOURCE-
    (As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985,
    eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,
    eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000.)


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               

      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. Sec. 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., Sec. 2464
    (formerly Rev. Stat. Sec. 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., Sec.
    2464, the subject matter of Rule 12 is omitted. The substance of
    Admiralty Rule 57 is retained. 28 U.S.C., Sec. 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., Sec. 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., Secs. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Style changes have been made throughout the revised portions of
    Rule E. Several changes of meaning have been made as well.
      Subdivision (3). Subdivision (3) is amended to reflect the
    distinction drawn in Rule C(2)(c) and (d). Service in an admiralty
    or maritime proceeding still must be made within the district, as
    reflected in Rule C(2)(c), while service in forfeiture proceedings
    may be made outside the district when authorized by statute, as
    reflected in Rule C(2)(d).
      Subdivision (7). Subdivision (7)(a) is amended to make it clear
    that a plaintiff need give security to meet a counterclaim only
    when the counterclaim is asserted by a person who has given
    security to respond in damages in the original action.
      Subdivision (8). Subdivision (8) is amended to reflect the change
    in Rule B(1)(e) that deletes the former provision incorporating
    state quasi-in-rem jurisdiction. A restricted appearance is not
    appropriate when state law is invoked only for security under Civil
    Rule 64, not as a basis of quasi-in-rem jurisdiction. But if state
    law allows a special, limited, or restricted appearance as an
    incident of the remedy adopted from state law, the state practice
    applies through Rule 64 "in the manner provided by" state law.
      Subdivision (9). Subdivision 9(b)(ii) is amended to reflect the
    change in Rule C(6) that substitutes a statement of interest or
    right for a claim.
      Subdivision (10). Subdivision 10 is new. It makes clear the
    authority of the court to preserve and to prevent removal of
    attached or arrested property that remains in the possession of the
    owner or other person under Rule E(4)(b).

-REFTEXT-
                            REFERENCES IN TEXT                        
      Sections 603 and 604 of Title 46, referred to in subd. (4)(f),
    were repealed by Pub. L. 98-89, Sec. 4(b), Aug. 26, 1983, 97 Stat.
    600, section 1 of which enacted Title 46, Shipping.

-FOOTNOTE-
    (!1) See References in Text note below.


-End-



-CITE-
    28 USC APPENDIX Rule F                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF CIVIL PROCEDURE
    SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-
    Rule F. Limitation of Liability

-STATUTE-
      (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.

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


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
    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., Sec. 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 [46] U.S.C. Sec. 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 Rules 52 and 36 [46] U.S.C., Sec. 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. Secs.
    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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-


-CITE-
    28 USC APPENDIX FEDERAL RULES OF EVIDENCE                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE

-HEAD-
                         FEDERAL RULES OF EVIDENCE                     


-MISC1-
                     (AS AMENDED TO JANUARY 19, 2004)                 

                                                                

                  EFFECTIVE DATE AND APPLICATION OF RULES              
      Pub. L. 93-595, Sec. 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."

                              HISTORICAL NOTE                          
      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, Sec.
    1, 89 Stat. 576, eff. Oct. 31, 1975; Dec. 12, 1975, Pub. L. 94-149,
    Sec. 1, 89 Stat. 805; Oct. 28, 1978, Pub. L. 95-540, Sec. 2, 92
    Stat. 2046; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 251, 92
    Stat. 2673, eff. Oct. 1, 1979; Apr. 30, 1979, eff. Dec. 1, 1980;
    Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 142, title IV, Sec.
    402, 96 Stat. 45, 57, eff. Oct. 1, 1982; Oct. 12, 1984, Pub. L.
    98-473, title IV, Sec. 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, Secs. 7046, 7075, 102 Stat. 4400, 4405; Jan.
    26, 1990, eff. Dec. 1, 1990; Apr. 30, 1991, eff. Dec. 1, 1991; Apr.
    22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994;
    Sept. 13, 1994, Pub. L. 103-322, title IV, Sec. 40141, title XXXII,
    Sec. 320935, 108 Stat. 1918, 2135; Apr. 11, 1997, eff. Dec. 1,
    1997; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17, 2000, eff. Dec. 1,
    2000; Mar. 27, 2003, eff. Dec. 1, 2003.

                       ARTICLE I. GENERAL PROVISIONS                   
    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 admissibility.                                
    106.        Remainder of or related writings on recorded
                 statements.                                          

                        ARTICLE II. JUDICIAL NOTICE                    
    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.                              

        ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS    
    301.        Presumptions in general in civil actions and
                 proceedings.                                         
    302.        Applicability of State law in civil actions and
                 proceedings.                                         

                   ARTICLE IV. RELEVANCY AND ITS LIMITS               
    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 alleged 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 Alleged Victim's Past
                 Sexual Behavior or Alleged Sexual Predisposition:
                 (!2)                                                  
                  (a)  Evidence generally inadmissible.               
                  (b)  Exceptions.                                    
                  (c)  Procedure to determine admissibility.          
    413.        Evidence of Similar Crimes in Sexual Assault
                 Cases.(!3)                                            
    414.        Evidence of Similar Crimes in Child Molestation
                 Cases.(!3)                                           
    415.        Evidence of Similar Acts in Civil Cases Concerning
                 Sexual Assault or Child Molestation.(!3)             

                           ARTICLE V. PRIVILEGES                       
    501.        General rule.                                         

                           ARTICLE VI. WITNESSES                       
    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.                 
    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.                               

                ARTICLE VII. OPINIONS AND EXPERT TESTIMONY            
    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.             

                           ARTICLE VIII. HEARSAY                       
    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 (Transferred).                
    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 (Transferred).             
                   (6)  Forfeiture by wrongdoing.                   
    805.        Hearsay within hearsay.                               
    806.        Attacking and supporting credibility of declarant.    
    807.        Residual exception.                                   

               ARTICLE IX. AUTHENTICATION AND IDENTIFICATION           
    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.           
                  (11) Certified domestic records of regularly
                        conducted activity.                           
                  (12) Certified foreign records of regularly
                        conducted activity.                           
    903.        Subscribing witness' testimony unnecessary.           

       ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND 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.                          

                      ARTICLE XI. MISCELLANEOUS RULES                  
    1101.       Applicability of rules.                               
                  (a)  Courts and judges.                             
                  (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.                                                

                         AMENDMENTS BY PUBLIC LAW                     
      1994 - Pub. L. 103-322, title IV, Sec. 40141(c), Sept. 13, 1994,
    108 Stat. 1919, substituted item 412 for one which read "Sex
    offense cases; relevance of victim's past behavior."
      1988 - Pub. L. 100-690, title VII, Sec. 7046(b), Nov. 18, 1988,
    102 Stat. 4401, substituted "Sex offense" for "Rape" in item 412.
      1978 - Pub. L. 95-540, Sec. 2(b), Oct. 28, 1978, 92 Stat. 2047,
    added item 412.
      1975 - Pub. L. 94-149, Sec. 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".

-FOOTNOTE-
    (!1) So in original. Does not conform to rule catchline.

    (!2) So in original. The colon probably should be a period.

    (!3) Editorially supplied. Rules 413 to 415 added by Pub. L.
         103-322 without corresponding amendment of Table of Contents.


-End-


-CITE-
    28 USC APPENDIX ARTICLE I. GENERAL PROVISIONS               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
                       ARTICLE I. GENERAL PROVISIONS                   

-End-



-CITE-
    28 USC APPENDIX Rule 101                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
    Rule 101. Scope

-STATUTE-
      These rules govern proceedings in the courts of the United States
    and before the United States bankruptcy judges and United States
    magistrate judges, to the extent and with the exceptions stated in
    rule 1101.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1929; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 22, 1993,
    eff. Dec. 1, 1993.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      Rule 1101 specifies in detail the courts, proceedings, questions,
    and stages of proceedings to which the rules apply in whole or in
    part.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      United States bankruptcy judges are added to conform this rule
    with Rule 1101(b) and Bankruptcy Rule 9017.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This revision is made to conform the rule to changes made by the
    Judicial Improvements Act of 1990.

-End-



-CITE-
    28 USC APPENDIX Rule 102                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
    Rule 102. Purpose and Construction

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1929.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 2, and New Jersey Evidence Rule 5.

-End-



-CITE-
    28 USC APPENDIX Rule 103                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
    Rule 103. Rulings on Evidence

-STATUTE-
      (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.

    Once the court makes a definitive ruling on the record admitting or
    excluding evidence, either at or before trial, a party need not
    renew an objection or offer of proof to preserve a claim of error
    for appeal.
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Apr. 17,
    2000, eff. Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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
    Secs. 353 and 354; Kansas Code of Civil Procedure Secs. 60-404 and
    60-405. The rule does not purport to change the law with respect to
    harmless error. See 28 U.S.C. Sec. 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 Sec. 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.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      The amendment applies to all rulings on evidence whether they
    occur at or before trial, including so-called "in limine" rulings.
    One of the most difficult questions arising from in limine and
    other evidentiary rulings is whether a losing party must renew an
    objection or offer of proof when the evidence is or would be
    offered at trial, in order to preserve a claim of error on appeal.
    Courts have taken differing approaches to this question. Some
    courts have held that a renewal at the time the evidence is to be
    offered at trial is always required. See, e.g., Collins v. Wayne
    Corp., 621 F.2d 777 (5th Cir. 1980). Some courts have taken a more
    flexible approach, holding that renewal is not required if the
    issue decided is one that (1) was fairly presented to the trial
    court for an initial ruling, (2) may be decided as a final matter
    before the evidence is actually offered, and (3) was ruled on
    definitively by the trial judge. See, e.g., Rosenfeld v. Basquiat,
    78 F.3d 84 (2d Cir. 1996) (admissibility of former testimony under
    the Dead Man's Statute; renewal not required). Other courts have
    distinguished between objections to evidence, which must be renewed
    when evidence is offered, and offers of proof, which need not be
    renewed after a definitive determination is made that the evidence
    is inadmissible. See, e.g., Fusco v. General Motors Corp., 11 F.3d
    259 (1st Cir. 1993). Another court, aware of this Committee's
    proposed amendment, has adopted its approach. Wilson v. Williams,
    182 F.3d 562 (7th Cir. 1999) (en banc). Differing views on this
    question create uncertainty for litigants and unnecessary work for
    the appellate courts.
      The amendment provides that a claim of error with respect to a
    definitive ruling is preserved for review when the party has
    otherwise satisfied the objection or offer of proof requirements of
    Rule 103(a). When the ruling is definitive, a renewed objection or
    offer of proof at the time the evidence is to be offered is more a
    formalism than a necessity. See Fed.R.Civ.P. 46 (formal exceptions
    unnecessary); Fed.R.Cr.P.51 (same); United States v. Mejia-Alarcon,
    995 F.2d 982, 986 (10th Cir. 1993) ("Requiring a party to review an
    objection when the district court has issued a definitive ruling on
    a matter that can be fairly decided before trial would be in the
    nature of a formal exception and therefore unnecessary."). On the
    other hand, when the trial court appears to have reserved its
    ruling or to have indicated that the ruling is provisional, it
    makes sense to require the party to bring the issue to the court's
    attention subsequently. See, e.g., United States v. Vest, 116 F.3d
    1179, 1188 (7th Cir. 1997) (where the trial court ruled in limine
    that testimony from defense witnesses could not be admitted, but
    allowed the defendant to seek leave at trial to call the witnesses
    should their testimony turn out to be relevant, the defendant's
    failure to seek such leave at trial meant that it was "too late to
    reopen the issue now on appeal"); United States v. Valenti, 60 F.3d
    941 (2d Cir. 1995) (failure to proffer evidence at trial waives any
    claim of error where the trial judge had stated that he would
    reserve judgment on the in limine motion until he had heard the
    trial evidence).
      The amendment imposes the obligation on counsel to clarify
    whether an in limine or other evidentiary ruling is definitive when
    there is doubt on that point. See, e.g., Walden v. Georgia-Pacific
    Corp., 126 F.3d 506, 520 (3d Cir. 1997) (although "the district
    court told plaintiffs' counsel not to reargue every ruling, it did
    not countermand its clear opening statement that all of its rulings
    were tentative, and counsel never requested clarification, as he
    might have done.").
      Even where the court's ruling is definitive, nothing in the
    amendment prohibits the court from revisiting its decision when the
    evidence is to be offered. If the court changes its initial ruling,
    or if the opposing party violates the terms of the initial ruling,
    objection must be made when the evidence is offered to preserve the
    claim of error for appeal. The error, if any, in such a situation
    occurs only when the evidence is offered and admitted. United
    States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d
    949, 956 (5th Cir. 1990) ("objection is required to preserve error
    when an opponent, or the court itself, violates a motion in limine
    that was granted"); United States v. Roenigk, 810 F.2d 809 (8th
    Cir. 1987) (claim of error was not preserved where the defendant
    failed to object at trial to secure the benefit of a favorable
    advance ruling).
      A definitive advance ruling is reviewed in light of the facts and
    circumstances before the trial court at the time of the ruling. If
    the relevant facts and circumstances change materially after the
    advance ruling has been made, those facts and circumstances cannot
    be relied upon on appeal unless they have been brought to the
    attention of the trial court by way of a renewed, and timely,
    objection, offer of proof, or motion to strike. See Old Chief v.
    United States, 519 U.S. 172, 182, n.6 (1997) ("It is important that
    a reviewing court evaluate the trial court's decision from its
    perspective when it had to rule and not indulge in review by
    hindsight."). Similarly, if the court decides in an advance ruling
    that proffered evidence is admissible subject to the eventual
    introduction by the proponent of a foundation for the evidence, and
    that foundation is never provided, the opponent cannot claim error
    based on the failure to establish the foundation unless the
    opponent calls that failure to the court's attention by a timely
    motion to strike or other suitable motion. See Huddleston v. United
    States, 485 U.S. 681, 690, n.7 (1988) ("It is, of course, not the
    responsibility of the judge sua sponte to ensure that the
    foundation evidence is offered; the objector must move to strike
    the evidence if at the close of the trial the offeror has failed to
    satisfy the condition.").
      Nothing in the amendment is intended to affect the provisions of
    Fed.R.Civ.P. 72(a) or 28 U.S.C. Sec. 636(b)(1) pertaining to
    nondispositive pretrial rulings by magistrate judges in proceedings
    that are not before a magistrate judge by consent of the parties.
    Fed.R.Civ.P. 72(a) provides that a party who fails to file a
    written objection to a magistrate judge's nondispositive order
    within ten days of receiving a copy "may not thereafter assign as
    error a defect" in the order. 28 U.S.C. Sec. 636(b)(1) provides
    that any party "may serve and file written objections to such
    proposed findings and recommendations as provided by rules of
    court" within ten days of receiving a copy of the order. Several
    courts have held that a party must comply with this statutory
    provision in order to preserve a claim of error. See, e.g., Wells
    v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997) ("[i]n this
    circuit, as in others, a party 'may' file objections within ten
    days or he may not, as he chooses, but he 'shall' do so if he
    wishes further consideration."). When Fed.R.Civ.P. 72(a) or 28
    U.S.C. Sec. 636(b)(1) is operative, its requirement must be
    satisfied in order for a party to preserve a claim of error on
    appeal, even where Evidence Rule 103(a) would not require a
    subsequent objection or offer of proof.
      Nothing in the amendment is intended to affect the rule set forth
    in Luce v. United States, 469 U.S. 38 (1984), and its progeny. The
    amendment provides that an objection or offer of proof need not be
    renewed to preserve a claim of error with respect to a definitive
    pretrial ruling. Luce answers affirmatively a separate question:
    whether a criminal defendant must testify at trial in order to
    preserve a claim of error predicated upon a trial court's decision
    to admit the defendant's prior convictions for impeachment. The
    Luce principle has been extended by many lower courts to other
    situations. See United States v. DiMatteo, 759 F.2d 831 (11th Cir.
    1985) (applying Luce where the defendant's witness would be
    impeached with evidence offered under Rule 608). See also United
    States v. Goldman, 41 F.3d 785, 788 (1st Cir. 1994) ("Although Luce
    involved impeachment by conviction under Rule 609, the reasons
    given by the Supreme Court for requiring the defendant to testify
    apply with full force to the kind of Rule 403 and 404 objections
    that are advanced by Goldman in this case."); Palmieri v. DeFaria,
    88 F.3d 136 (2d Cir. 1996) (where the plaintiff decided to take an
    adverse judgment rather than challenge an advance ruling by putting
    on evidence at trial, the in limine ruling would not be reviewed on
    appeal); United States v. Ortiz, 857 F.2d 900 (2d Cir. 1988) (where
    uncharged misconduct is ruled admissible if the defendant pursues a
    certain defense, the defendant must actually pursue that defense at
    trial in order to preserve a claim of error on appeal); United
    States v. Bond, 87 F.3d 695 (5th Cir. 1996) (where the trial court
    rules in limine that the defendant would waive his fifth amendment
    privilege were he to testify, the defendant must take the stand and
    testify in order to challenge that ruling on appeal).
      The amendment does not purport to answer whether a party who
    objects to evidence that the court finds admissible in a definitive
    ruling, and who then offers the evidence to "remove the sting" of
    its anticipated prejudicial effect, thereby waives the right to
    appeal the trial court's ruling. See, e.g., United States v.
    Fisher, 106 F.3d 622 (5th Cir. 1997) (where the trial judge ruled
    in limine that the government could use a prior conviction to
    impeach the defendant if he testified, the defendant did not waive
    his right to appeal by introducing the conviction on direct
    examination); Judd v. Rodman, 105 F.3d 1339 (11th Cir. 1997) (an
    objection made in limine is sufficient to preserve a claim of error
    when the movant, as a matter of trial strategy, presents the
    objectionable evidence herself on direct examination to minimize
    its prejudicial effect); Gill v. Thomas, 83 F.3d 537, 540 (1st Cir.
    1996) ("by offering the misdemeanor evidence himself, Gill waived
    his opportunity to object and thus did not preserve the issue for
    appeal"); United States v. Williams, 939 F.2d 721 (9th Cir. 1991)
    (objection to impeachment evidence was waived where the defendant
    was impeached on direct examination).
      GAP Report - Proposed Amendment to Rule 103(a). The Committee
    made the following changes to the published draft of the proposed
    amendment to Evidence Rule 103(a):
      1. A minor stylistic change was made in the text, in accordance
    with the suggestion of the Style Subcommittee of the Standing
    Committee on Rules of Practice and Procedure.
      2. The second sentence of the amended portion of the published
    draft was deleted, and the Committee Note was amended to reflect
    the fact that nothing in the amendment is intended to affect the
    rule of Luce v. United States.
      3. The Committee Note was updated to include cases decided after
    the proposed amendment was issued for public comment.
      4. The Committee Note was amended to include a reference to a
    Civil Rule and a statute requiring objections to certain Magistrate
    Judge rulings to be made to the District Court.
      5. The Committee Note was revised to clarify that an advance
    ruling does not encompass subsequent developments at trial that
    might be the subject of an appeal.

-End-



-CITE-
    28 USC APPENDIX Rule 104                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
    Rule 104. Preliminary Questions

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
             NOTES OF THE ADVISORY COMMITTEE ON PROPOSED RULES         
      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 Sec. 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 Sec. 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, Sec. 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 Sec. 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 Sec. 406; Kansas Code of Civil Procedure
    Sec. 60-408; New Jersey Evidence Rule 8(1).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 105                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
    Rule 105. Limited Admissibility

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 355; Kansas Code of Civil Procedure Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 106                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE I. GENERAL PROVISIONS

-HEAD-
    Rule 106. Remainder of or Related Writings or Recorded Statements

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      The rule is an expression of the rule of completeness. McCormick
    Sec. 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 Sec. 56; California Evidence Code
    Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-


-CITE-
    28 USC APPENDIX ARTICLE II. JUDICIAL NOTICE                 01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE II. JUDICIAL NOTICE

-HEAD-
                        ARTICLE II. JUDICIAL NOTICE                    

-End-



-CITE-
    28 USC APPENDIX Rule 201                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE II. JUDICIAL NOTICE

-HEAD-
    Rule 201. Judicial Notice of Adjudicative Facts

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs. 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. Sec.
    327, and other governmental facts, Id. Sec. 328. The California
    draftsmen, with a background of detailed statutory regulation of
    judicial notice, followed a somewhat similar pattern. California
    Evidence Code Secs. 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 Secs. 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. Sec. 556(e). See also Revised Model State Administrative
    Procedure Act (1961), 9C U.L.A. Sec. 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 Sec.
    459; Kansas Rules of Evidence Sec. 60-412; New Jersey Evidence Rule
    12; McCormick Sec. 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 Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

-End-


-CITE-
    28 USC APPENDIX ARTICLE III. PRESUMPTIONS IN
      CIVIL ACTIONS AND PROCEEDINGS                        01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-HEAD-
        ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS    

-End-



-CITE-
    28 USC APPENDIX Rule 301                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-HEAD-
    Rule 301. Presumptions in General in Civil Actions and Proceedings

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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 Sec. 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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 302                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-HEAD-
    Rule 302. Applicability of State Law in Civil Actions and
      Proceedings

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 &#182; 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, Sec.
    2344(c), p. 40, P.F.D. No. 1 (1965).

-End-


-CITE-
    28 USC APPENDIX ARTICLE IV. RELEVANCY AND ITS
      LIMITS                                               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
                   ARTICLE IV. RELEVANCY AND ITS LIMITS               

-End-



-CITE-
    28 USC APPENDIX Rule 401                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 401. Definition of "Relevant Evidence"

-STATUTE-
      "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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 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 Sec. 210, defining relevant evidence in terms of
    tendency to prove a disputed fact.

-End-



-CITE-
    28 USC APPENDIX Rule 402                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 402. Relevant Evidence Generally Admissible; Irrelevant
      Evidence Inadmissible

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs. 350, 351. Provisions that all
    relevant evidence is admissible are found in Uniform Rule 7(f);
    Kansas Code of Civil Procedure Sec. 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. Sec.
    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. Sec. 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. Sec. 3693, replacement
    certificate of honorable discharge from Army not admissible in
    evidence; 10 U.S.C. Sec. 8693, same as to Air Force; 11 U.S.C. Sec.
    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. Sec. 205(a),
    railroad reorganization petition, if dismissed, not admissible in
    evidence; 11 U.S.C. Sec. 403(a), list of creditors filed with
    municipal composition plan not an admission; 13 U.S.C. Sec. 9(a),
    census information confidential, retained copies of reports
    privileged; 47 U.S.C. Sec. 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).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 403                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,
      Confusion, or Waste of Time

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 1849. Cf. McCormick Sec. 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 Sec. 60-445,
    surprise is not included in California Evidence Code Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 404                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 404. Character Evidence Not Admissible To Prove Conduct;
      Exceptions; Other Crimes

-STATUTE-
      (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, or if evidence of a trait of character of the alleged
      victim of the crime is offered by an accused and admitted under
      Rule 404(a)(2), evidence of the same trait of character of the
      accused offered by the prosecution;
        (2) Character of alleged victim. - Evidence of a pertinent
      trait of character of the alleged 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 alleged victim
      offered by the prosecution in a homicide case to rebut evidence
      that the alleged 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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 17, 2000,
    eff. Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs.
    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 Sec. 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 Sec. 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).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      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 Sec.
    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 Sec. 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. Sec. 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).

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Rule 404(a)(1) has been amended to provide that when the accused
    attacks the character of an alleged victim under subdivision (a)(2)
    of this Rule, the door is opened to an attack on the same character
    trait of the accused. Current law does not allow the government to
    introduce negative character evidence as to the accused unless the
    accused introduces evidence of good character. See, e.g., United
    States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (when the accused
    offers proof of self-defense, this permits proof of the alleged
    victim's character trait for peacefulness, but it does not permit
    proof of the accused's character trait for violence).
      The amendment makes clear that the accused cannot attack the
    alleged victim's character and yet remain shielded from the
    disclosure of equally relevant evidence concerning the same
    character trait of the accused. For example, in a murder case with
    a claim of self-defense, the accused, to bolster this defense,
    might offer evidence of the alleged victim's violent disposition.
    If the government has evidence that the accused has a violent
    character, but is not allowed to offer this evidence as part of its
    rebuttal, the jury has only part of the information it needs for an
    informed assessment of the probabilities as to who was the initial
    aggressor. This may be the case even if evidence of the accused's
    prior violent acts is admitted under Rule 404(b), because such
    evidence can be admitted only for limited purposes and not to show
    action in conformity with the accused's character on a specific
    occasion. Thus, the amendment is designed to permit a more balanced
    presentation of character evidence when an accused chooses to
    attack the character of the alleged victim.
      The amendment does not affect the admissibility of evidence of
    specific acts of uncharged misconduct offered for a purpose other
    than proving character under Rule 404(b). Nor does it affect the
    standards for proof of character by evidence of other sexual
    behavior or sexual offenses under Rules 412-415. By its placement
    in Rule 404(a)(1), the amendment covers only proof of character by
    way of reputation or opinion.
      The amendment does not permit proof of the accused's character if
    the accused merely uses character evidence for a purpose other than
    to prove the alleged victim's propensity to act in a certain way.
    See United States v. Burks, 470 F.2d 432, 434-5 (D.C.Cir. 1972)
    (evidence of the alleged victim's violent character, when known by
    the accused, was admissible "on the issue of whether or not the
    defendant reasonably feared he was in danger of imminent great
    bodily harm"). Finally, the amendment does not permit proof of the
    accused's character when the accused attacks the alleged victim's
    character as a witness under Rule 608 or 609.
      The term "alleged" is inserted before each reference to "victim"
    in the Rule, in order to provide consistency with Evidence Rule
    412.
      GAP Report - Proposed Amendment to Rule 404(a). The Committee
    made the following changes to the published draft of the proposed
    amendment to Evidence Rule 404(a):
      1. The term "a pertinent trait of character" was changed to "the
    same trait of character," in order to limit the scope of the
    government's rebuttal. The Committee Note was revised to accord
    with this change in the text.
      2. The word "alleged" was added before each reference in the Rule
    to a "victim" in order to provide consistency with Evidence Rule
    412. The Committee Note was amended to accord with this change in
    the text.
      3. The Committee Note was amended to clarify that rebuttal is not
    permitted under this Rule if the accused proffers evidence of the
    alleged victim's character for a purpose other than to prove the
    alleged victim's propensity to act in a certain manner.

-End-



-CITE-
    28 USC APPENDIX Rule 405                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 405. Methods of Proving Character

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      The Senate makes two language changes in the nature of conforming
    amendments. The Conference adopts the Senate amendments.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 406                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 406. Habit; Routine Practice

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      An oft-quoted paragraph, McCormick, Sec. 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
    Sec. 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 Sec. 162, p. 342. The omission of the requirement
    from the California Evidence Code is said to have effected its
    elimination. Comment, Cal.Ev.Code Sec. 1105.

-End-



-CITE-
    28 USC APPENDIX Rule 407                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 407. Subsequent Remedial Measures

-STATUTE-
      When, after an injury or harm allegedly caused by an event,
    measures are taken that, if taken previously, would have made the
    injury or harm less likely to occur, evidence of the subsequent
    measures is not admissible to prove negligence, culpable conduct, a
    defect in a product, a defect in a product's design, or a need for
    a warning or instruction. 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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Apr. 11,
    1997, eff. Dec. 1, 1997.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 1151; Kansas Code of Civil Procedure Sec. 60-451; New
    Jersey Evidence Rule 51.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      The amendment to Rule 407 makes two changes in the rule. First,
    the words "an injury or harm allegedly caused by" were added to
    clarify that the rule applies only to changes made after the
    occurrence that produced the damages giving rise to the action.
    Evidence of measures taken by the defendant prior to the "event"
    causing "injury or harm" do not fall within the exclusionary scope
    of Rule 407 even if they occurred after the manufacture or design
    of the product. See Chase v. General Motors Corp., 856 F.2d 17,
    21-22 (4th Cir. 1988).
      Second, Rule 407 has been amended to provide that evidence of
    subsequent remedial measures may not be used to prove "a defect in
    a product or its design, or that a warning or instruction should
    have accompanied a product." This amendment adopts the view of a
    majority of the circuits that have interpreted Rule 407 to apply to
    products liability actions. See Raymond v. Raymond Corp., 938 F.2d
    1518, 1522 (1st Cir. 1991); In re Joint Eastern District and
    Southern District Asbestos Litigation v. Armstrong World
    Industries, Inc., 995 F.2d 343 (2d Cir. 1993); Cann v. Ford Motor
    Co., 658 F.2d 54, 60 (2d Cir. 1981), cert. denied, 456 U.S. 960
    (1982); Kelly v. Crown Equipment Co., 970 F.2d 1273, 1275 (3d Cir.
    1992); Werner v. Upjohn, Inc., 628 F.2d 848 (4th Cir. 1980), cert.
    denied, 449 U.S. 1080 (1981); Grenada Steel Industries, Inc. v.
    Alabama Oxygen Co., Inc., 695 F.2d 883 (5th Cir. 1983); Bauman v.
    Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232 (6th Cir.
    1980); Flaminio v. Honda Motor Company, Ltd., 733 F.2d 463, 469
    (7th Cir. 1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636-37 (9th
    Cir. 1986).
      Although this amendment adopts a uniform federal rule, it should
    be noted that evidence of subsequent remedial measures may be
    admissible pursuant to the second sentence of Rule 407. Evidence of
    subsequent measures that is not barred by Rule 407 may still be
    subject to exclusion on Rule 403 grounds when the dangers of
    prejudice or confusion substantially outweigh the probative value
    of the evidence.
      GAP Report on Rule 407. The words "injury or harm" were
    substituted for the word "event" in line 3. The stylization changes
    in the second sentence of the rule were eliminated. The words
    "causing 'injury or harm' " were added to the Committee Note.

-End-



-CITE-
    28 USC APPENDIX Rule 408                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 408. Compromise and Offers to Compromise

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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
    Sec. 251, p. 542.
      For other rules of similar import, see Uniform Rules 52 and 53;
    California Evidence Code Sec. 1152, 1154; Kansas Code of Civil
    Procedure Secs. 60-452, 60-453; New Jersey Evidence Rules 52 and
    53.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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. Sec. 48.105; N. Mex.
    Stats. Anno. (1973 Supp.) Sec. 20-4-408; West's Wis. Stats. Anno.
    (1973 Supp.) Sec. 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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 409                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 409. Payment of Medical and Similar Expenses

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 1152; Kansas Code of Civil Procedure Sec. 60-452; New
    Jersey Evidence Rule 52.

-End-



-CITE-
    28 USC APPENDIX Rule 410                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related
      Statements

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933; Pub. L.
    94-149, Sec. 1(9), Dec. 12, 1975, 89 Stat. 805; Apr. 30, 1979, eff.
    Dec. 1, 1980.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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. Sec. 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 Sec. 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 Sec. 2.2 (1968). See also the narrower provisions of New
    Jersey Evidence Rule 52(2) and the unlimited exclusion provided in
    California Evidence Code Sec. 1153.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

    NOTES OF THE COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277
      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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT       
      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.

                          AMENDMENT BY PUBLIC LAW                      
      1975 - 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."

                     EFFECTIVE DATE OF 1979 AMENDMENT                 
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 411                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 411. Liability Insurance

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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
    Sec. 1155; Kansas Code of Civil Procedure Sec. 60-454; New Jersey
    Evidence Rule 54.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 412                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past
      Sexual Behavior or Alleged Sexual Predisposition

-STATUTE-
      (a) Evidence Generally Inadmissible. - The following evidence is
    not admissible in any civil or criminal proceeding involving
    alleged sexual misconduct except as provided in subdivisions (b)
    and (c):
        (1) Evidence offered to prove that any alleged victim engaged
      in other sexual behavior.
        (2) Evidence offered to prove any alleged victim's sexual
      predisposition.

      (b) Exceptions. - 
        (1) In a criminal case, the following evidence is admissible,
      if otherwise admissible under these rules:
          (A) evidence of specific instances of sexual behavior by the
        alleged victim offered to prove that a person other than the
        accused was the source of semen, injury or other physical
        evidence;
          (B) evidence of specific instances of sexual behavior by the
        alleged victim with respect to the person accused of the sexual
        misconduct offered by the accused to prove consent or by the
        prosecution; and
          (C) evidence the exclusion of which would violate the
        constitutional rights of the defendant.

        (2) In a civil case, evidence offered to prove the sexual
      behavior or sexual predisposition of any alleged victim is
      admissible if it is otherwise admissible under these rules and
      its probative value substantially outweighs the danger of harm to
      any victim and of unfair prejudice to any party. Evidence of an
      alleged victim's reputation is admissible only if it has been
      placed in controversy by the alleged victim.

      (c) Procedure To Determine Admissibility. - 
        (1) A party intending to offer evidence under subdivision (b)
      must - 
          (A) file a written motion at least 14 days before trial
        specifically describing the evidence and stating the purpose
        for which it is offered unless the court, for good cause
        requires a different time for filing or permits filing during
        trial; and
          (B) serve the motion on all parties and notify the alleged
        victim or, when appropriate, the alleged victim's guardian or
        representative.

        (2) Before admitting evidence under this rule the court must
      conduct a hearing in camera and afford the victim and parties a
      right to attend and be heard. The motion, related papers, and the
      record of the hearing must be sealed and remain under seal unless
      the court orders otherwise.

-SOURCE-
    (Added Pub. L. 95-540, Sec. 2(a), Oct. 28, 1978, 92 Stat. 2046;
    amended Pub. L. 100-690, title VII, Sec. 7046(a), Nov. 18, 1988,
    102 Stat. 4400; Apr. 29, 1994, eff. Dec. 1, 1994; Pub. L. 103-322,
    title IV, Sec. 40141(b), Sept. 13, 1994, 108 Stat. 1919.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT       
      Rule 412 has been revised to diminish some of the confusion
    engendered by the original rule and to expand the protection
    afforded alleged victims of sexual misconduct. Rule 412 applies to
    both civil and criminal proceedings. The rule aims to safeguard the
    alleged victim against the invasion of privacy, potential
    embarrassment and sexual stereotyping that is associated with
    public disclosure of intimate sexual details and the infusion of
    sexual innuendo into the factfinding process. By affording victims
    protection in most instances, the rule also encourages victims of
    sexual misconduct to institute and to participate in legal
    proceedings against alleged offenders.
      Rule 412 seeks to achieve these objectives by barring evidence
    relating to the alleged victim's sexual behavior or alleged sexual
    predisposition, whether offered as substantive evidence or for
    impeachment, except in designated circumstances in which the
    probative value of the evidence significantly outweighs possible
    harm to the victim.
      The revised rule applies in all cases involving sexual misconduct
    without regard to whether the alleged victim or person accused is a
    party to the litigation. Rule 412 extends to "pattern" witnesses in
    both criminal and civil cases whose testimony about other instances
    of sexual misconduct by the person accused is otherwise admissible.
    When the case does not involve alleged sexual misconduct, evidence
    relating to a third-party witness' alleged sexual activities is not
    within the ambit of Rule 412. The witness will, however, be
    protected by other rules such as Rules 404 and 608, as well as Rule
    403.
      The terminology "alleged victim" is used because there will
    frequently be a factual dispute as to whether sexual misconduct
    occurred. It does not connote any requirement that the misconduct
    be alleged in the pleadings. Rule 412 does not, however, apply
    unless the person against whom the evidence is offered can
    reasonably be characterized as a "victim of alleged sexual
    misconduct." When this is not the case, as for instance in a
    defamation action involving statements concerning sexual misconduct
    in which the evidence is offered to show that the alleged
    defamatory statements were true or did not damage the plaintiff's
    reputation, neither Rule 404 nor this rule will operate to bar the
    evidence; Rule 401 and 403 will continue to control. Rule 412 will,
    however, apply in a Title VII action in which the plaintiff has
    alleged sexual harassment.
      The reference to a person "accused" is also used in a
    non-technical sense. There is no requirement that there be a
    criminal charge pending against the person or even that the
    misconduct would constitute a criminal offense. Evidence offered to
    prove allegedly false prior claims by the victim is not barred by
    Rule 412. However, this evidence is subject to the requirements of
    Rule 404.
      Subdivision (a). As amended, Rule 412 bars evidence offered to
    prove the victim's sexual behavior and alleged sexual
    predisposition. Evidence, which might otherwise be admissible under
    Rules 402, 404(b), 405, 607, 608, 609, or some other evidence rule,
    must be excluded if Rule 412 so requires. The word "other" is used
    to suggest some flexibility in admitting evidence "intrinsic" to
    the alleged sexual misconduct. Cf. Committee Note to 1991 amendment
    to Rule 404(b).
      Past sexual behavior connotes all activities that involve actual
    physical conduct, i.e. sexual intercourse and sexual contact, or
    that imply sexual intercourse or sexual contact. See, e.g., United
    States v. Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied,
    113 S.Ct. 418 (1992) (use of contraceptives inadmissible since use
    implies sexual activity); United States v. One Feather, 702 F.2d
    736 (8th Cir. 1983) (birth of an illegitimate child inadmissible);
    State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986) (evidence of
    venereal disease inadmissible). In addition, the word "behavior"
    should be construed to include activities of the mind, such as
    fantasies or dreams. See 23 C. Wright & K. Graham, Jr., Federal
    Practice and Procedure, Sec. 5384 at p. 548 (1980) ("While there
    may be some doubt under statutes that require 'conduct,' it would
    seem that the language of Rule 412 is broad enough to encompass the
    behavior of the mind.").
      The rule has been amended to also exclude all other evidence
    relating to an alleged victim of sexual misconduct that is offered
    to prove a sexual predisposition. This amendment is designed to
    exclude evidence that does not directly refer to sexual activities
    or thoughts but that the proponent believes may have a sexual
    connotation for the factfinder. Admission of such evidence would
    contravene Rule 412's objectives of shielding the alleged victim
    from potential embarrassment and safeguarding the victim against
    stereotypical thinking. Consequently, unless the (b)(2) exception
    is satisfied, evidence such as that relating to the alleged
    victim's mode of dress, speech, or life-style will not be
    admissible.
      The introductory phrase in subdivision (a) was deleted because it
    lacked clarity and contained no explicit reference to the other
    provisions of law that were intended to be overridden. The
    conditional clause, "except as provided in subdivisions (b) and
    (c)" is intended to make clear that evidence of the types described
    in subdivision (a) is admissible only under the strictures of those
    sections.
      The reason for extending the rule to all criminal cases is
    obvious. The strong social policy of protecting a victim's privacy
    and encouraging victims to come forward to report criminal acts is
    not confined to cases that involve a charge of sexual assault. The
    need to protect the victim is equally great when a defendant is
    charged with kidnapping, and evidence is offered, either to prove
    motive or as background, that the defendant sexually assaulted the
    victim.
      The reason for extending Rule 412 to civil cases is equally
    obvious. The need to protect alleged victims against invasions of
    privacy, potential embarrassment, and unwarranted sexual
    stereotyping, and the wish to encourage victims to come forward
    when they have been sexually molested do not disappear because the
    context has shifted from a criminal prosecution to a claim for
    damages or injunctive relief. There is a strong social policy in
    not only punishing those who engage in sexual misconduct, but in
    also providing relief to the victim. Thus, Rule 412 applies in any
    civil case in which a person claims to be the victim of sexual
    misconduct, such as actions for sexual battery or sexual
    harassment.
      Subdivision (b). Subdivision (b) spells out the specific
    circumstances in which some evidence may be admissible that would
    otherwise be barred by the general rule expressed in subdivision
    (a). As amended, Rule 412 will be virtually unchanged in criminal
    cases, but will provide protection to any person alleged to be a
    victim of sexual misconduct regardless of the charge actually
    brought against an accused. A new exception has been added for
    civil cases.
      In a criminal case, evidence may be admitted under subdivision
    (b)(1) pursuant to three possible exceptions, provided the evidence
    also satisfies other requirements for admissibility specified in
    the Federal Rules of Evidence, including Rule 403. Subdivisions
    (b)(1)(A) and (b)(1)(B) require proof in the form of specific
    instances of sexual behavior in recognition of the limited
    probative value and dubious reliability of evidence of reputation
    or evidence in the form of an opinion.
      Under subdivision (b)(1)(A), evidence of specific instances of
    sexual behavior with persons other than the person whose sexual
    misconduct is alleged may be admissible if it is offered to prove
    that another person was the source of semen, injury or other
    physical evidence. Where the prosecution has directly or indirectly
    asserted that the physical evidence originated with the accused,
    the defendant must be afforded an opportunity to prove that another
    person was responsible. See United States v. Begay, 937 F.2d 515,
    523 n. 10 (10th Cir. 1991). Evidence offered for the specific
    purpose identified in this subdivision may still be excluded if it
    does not satisfy Rules 401 or 403. See, e.g., United States v.
    Azure, 845 F.2d 1503, 1505-06 (8th Cir. 1988) (10 year old victim's
    injuries indicated recent use of force; court excluded evidence of
    consensual sexual activities with witness who testified at in
    camera hearing that he had never hurt victim and failed to
    establish recent activities).
      Under the exception in subdivision (b)(1)(B), evidence of
    specific instances of sexual behavior with respect to the person
    whose sexual misconduct is alleged is admissible if offered to
    prove consent, or offered by the prosecution. Admissible pursuant
    to this exception might be evidence of prior instances of sexual
    activities between the alleged victim and the accused, as well as
    statements in which the alleged victim expressed an intent to
    engage in sexual intercourse with the accused, or voiced sexual
    fantasies involving the specific accused. In a prosection [sic] for
    child sexual abuse, for example, evidence of uncharged sexual
    activity between the accused and the alleged victim offered by the
    prosecution may be admissible pursuant to Rule 404(b) to show a
    pattern of behavior. Evidence relating to the victim's alleged
    sexual predisposition is not admissible pursuant to this exception.
      Under subdivision (b)(1)(C), evidence of specific instances of
    conduct may not be excluded if the result would be to deny a
    criminal defendant the protections afforded by the Constitution.
    For example, statements in which the victim has expressed an intent
    to have sex with the first person encountered on a particular
    occasion might not be excluded without violating the due process
    right of a rape defendant seeking to prove consent. Recognition of
    this basic principle was expressed in subdivision (b)(1) of the
    original rule. The United States Supreme Court has recognized that
    in various circumstances a defendant may have a right to introduce
    evidence otherwise precluded by an evidence rule under the
    Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227
    (1988) (defendant in rape cases had right to inquire into alleged
    victim's cohabitation with another man to show bias).
      Subdivision (b)(2) governs the admissibility of otherwise
    proscribed evidence in civil cases. It employs a balancing test
    rather than the specific exceptions stated in subdivision (b)(1) in
    recognition of the difficulty of foreseeing future developments in
    the law. Greater flexibility is needed to accommodate evolving
    causes of action such as claims for sexual harassment.
      The balancing test requires the proponent of the evidence,
    whether plaintiff or defendant, to convince the court that the
    probative value of the proffered evidence "substantially outweighs
    the danger of harm to any victim and of unfair prejudice of any
    party." This test for admitting evidence offered to prove sexual
    behavior or sexual propensity in civil cases differs in three
    respects from the general rule governing admissibility set forth in
    Rule 403. First, it reverses the usual procedure spelled out in
    Rule 403 by shifting the burden to the proponent to demonstrate
    admissibility rather than making the opponent justify exclusion of
    the evidence. Second, the standard expressed in subdivision (b)(2)
    is more stringent than in the original rule; it raises the
    threshold for admission by requiring that the probative value of
    the evidence substantially outweigh the specified dangers. Finally,
    the Rule 412 test puts "harm to the victim" on the scale in
    addition to prejudice to the parties.
      Evidence of reputation may be received in a civil case only if
    the alleged victim has put his or her reputation into controversy.
    The victim may do so without making a specific allegation in a
    pleading. Cf. Fed.R.Civ.P. 35(a).
      Subdivision (c). Amended subdivision (c) is more concise and
    understandable than the subdivision it replaces. The requirement of
    a motion before trial is continued in the amended rule, as is the
    provision that a late motion may be permitted for good cause shown.
    In deciding whether to permit late filing, the court may take into
    account the conditions previously included in the rule: namely
    whether the evidence is newly discovered and could not have been
    obtained earlier through the existence of due diligence, and
    whether the issue to which such evidence relates has newly arisen
    in the case. The rule recognizes that in some instances the
    circumstances that justify an application to introduce evidence
    otherwise barred by Rule 412 will not become apparent until trial.
      The amended rule provides that before admitting evidence that
    falls within the prohibition of Rule 412(a), the court must hold a
    hearing in camera at which the alleged victim and any party must be
    afforded the right to be present and an opportunity to be heard.
    All papers connected with the motion and any record of a hearing on
    the motion must be kept and remain under seal during the course of
    trial and appellate proceedings unless otherwise ordered. This is
    to assure that the privacy of the alleged victim is preserved in
    all cases in which the court rules that proffered evidence is not
    admissible, and in which the hearing refers to matters that are not
    received, or are received in another form.
      The procedures set forth in subdivision (c) do not apply to
    discovery of a victim's past sexual conduct or predisposition in
    civil cases, which will be continued to be governed by Fed.R.Civ.P.
    26. In order not to undermine the rationale of Rule 412, however,
    courts should enter appropriate orders pursuant to Fed.R.Civ.P.
    26(c) to protect the victim against unwarranted inquiries and to
    ensure confidentiality. Courts should presumptively issue
    protective orders barring discovery unless the party seeking
    discovery makes a showing that the evidence sought to be discovered
    would be relevant under the facts and theories of the particular
    case, and cannot be obtained except through discovery. In an action
    for sexual harassment, for instance, while some evidence of the
    alleged victim's sexual behavior and/or predisposition in the
    workplace may perhaps be relevant, non-work place conduct will
    usually be irrelevant. Cf. Burns v. McGregor Electronic Industries,
    Inc., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude
    magazine outside work hours is irrelevant to issue of unwelcomeness
    of sexual advances at work). Confidentiality orders should be
    presumptively granted as well.
      One substantive change made in subdivision (c) is the elimination
    of the following sentence: "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." On its face, this
    language would appear to authorize a trial judge to exclude
    evidence of past sexual conduct between an alleged victim and an
    accused or a defendant in a civil case based upon the judge's
    belief that such past acts did not occur. Such an authorization
    raises questions of invasion of the right to a jury trial under the
    Sixth and Seventh Amendments. See 1 S. Saltzburg & M. Martin,
    Federal Rules Of Evidence Manual, 396-97 (5th ed. 1990).
      The Advisory Committee concluded that the amended rule provided
    adequate protection for all persons claiming to be the victims of
    sexual misconduct, and that it was inadvisable to continue to
    include a provision in the rule that has been confusing and that
    raises substantial constitutional issues.
      [The Supreme Court withheld that portion of the proposed
    amendment to Rule 412 transmitted to the Court by the Judicial
    Conference of the United States which would apply that Rule to
    civil cases. This Note was not revised to account for the Court's
    action, because the Note is the commentary of the advisory
    committee. The proposed amendment to Rule 412 was subsequently
    amended by section 40141(b) of Pub. L. 103-322. See below.]

           CONGRESSIONAL MODIFICATION OF PROPOSED 1994 AMENDMENT       
      Section 40141(a) of Pub. L. 103-322 [set out as a note under
    section 2074 of this title] provided that the amendment proposed by
    the Supreme Court in its order of Apr. 29, 1994, affecting Rule 412
    of the Federal Rules of Evidence would take effect on Dec. 1, 1994,
    as otherwise provided by law, and as amended by section 40141(b) of
    Pub. L. 103-322. See 1994 Amendment note below.

                          AMENDMENT BY PUBLIC LAW                      
      1994 - Pub. L. 103-322 amended rule generally. Prior to
    amendment, rule contained provisions relating to the relevance and
    admissibility of a victim's past sexual behavior in criminal sex
    offense cases under chapter 109A of Title 18, Crimes and Criminal
    Procedure.
      1988 - Pub. L. 100-690, Sec. 7046(a)(1), substituted "Sex
    Offense" for "Rape" in catchline.
      Subd. (a). Pub. L. 100-690, Sec. 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, Sec. 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, Sec. 7046(a)(4), substituted
    "an offense under chapter 109A of title 18, United States Code" for
    "rape or assault with intent to commit rape".

                              EFFECTIVE DATE                          
      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]."

-End-



-CITE-
    28 USC APPENDIX Rule 413                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

-STATUTE-
      (a) In a criminal case in which the defendant is accused of an
    offense of sexual assault, evidence of the defendant's commission
    of another offense or offenses of sexual assault is admissible, and
    may be considered for its bearing on any matter to which it is
    relevant.
      (b) In a case in which the Government intends to offer evidence
    under this rule, the attorney for the Government shall disclose the
    evidence to the defendant, including statements of witnesses or a
    summary of the substance of any testimony that is expected to be
    offered, at least fifteen days before the scheduled date of trial
    or at such later time as the court may allow for good cause.
      (c) This rule shall not be construed to limit the admission or
    consideration of evidence under any other rule.
      (d) For purposes of this rule and Rule 415, "offense of sexual
    assault" means a crime under Federal law or the law of a State (as
    defined in section 513 of title 18, United States Code) that
    involved - 
        (1) any conduct proscribed by chapter 109A of title 18, United
      States Code;
        (2) contact, without consent, between any part of the
      defendant's body or an object and the genitals or anus of another
      person;
        (3) contact, without consent, between the genitals or anus of
      the defendant and any part of another person's body;
        (4) deriving sexual pleasure or gratification from the
      infliction of death, bodily injury, or physical pain on another
      person; or
        (5) an attempt or conspiracy to engage in conduct described in
      paragraphs (1)-(4).

-SOURCE-
    (Added Pub. L. 103-322, title XXXII, Sec. 320935(a), Sept. 13,
    1994, 108 Stat. 2135.)


-MISC1-
                              EFFECTIVE DATE                          
      Section 320935(b)-(e) of Pub. L. 103-322, as amended by Pub. L.
    104-208, div. A, title I, Sec. 101(a), [title I, Sec. 120], Sept.
    30, 1996, 110 Stat. 3009, 3009-25, provided that:
      "(b) Implementation. - The amendments made by subsection (a)
    [enacting this rule and rules 414 and 415 of these rules] shall
    become effective pursuant to subsection (d).
      "(c) Recommendations by Judicial Conference. - Not later than 150
    days after the date of enactment of this Act [Sept. 13, 1994], the
    Judicial Conference of the United States shall transmit to Congress
    a report containing recommendations for amending the Federal Rules
    of Evidence as they affect the admission of evidence of a
    defendant's prior sexual assault or child molestation crimes in
    cases involving sexual assault and child molestation. The Rules
    Enabling Act [28 U.S.C. 2072] shall not apply to the
    recommendations made by the Judicial Conference pursuant to this
    section.
      "(d) Congressional Action. - 
        "(1) If the recommendations described in subsection (c) are the
      same as the amendment made by subsection (a), then the amendments
      made by subsection (a) shall become effective 30 days after the
      transmittal of the recommendations.
        "(2) If the recommendations described in subsection (c) are
      different than the amendments made by subsection (a), the
      amendments made by subsection (a) shall become effective 150 days
      after the transmittal of the recommendations unless otherwise
      provided by law.
        "(3) If the Judicial Conference fails to comply with subsection
      (c), the amendments made by subsection (a) shall become effective
      150 days after the date the recommendations were due under
      subsection (c) unless otherwise provided by law.
      "(e) Application. - The amendments made by subsection (a) shall
    apply to proceedings commenced on or after the effective date of
    such amendments [July 9, 1995], including all trials commenced on
    or after the effective date of such amendments."
      [The Judicial Conference transmitted to Congress on Feb. 9, 1995,
    a report containing recommendations described in subsec. (c) that
    were different than the amendments made by subsec. (a). The
    amendments made by subsec. (a) became effective July 9, 1995.]

-End-



-CITE-
    28 USC APPENDIX Rule 414                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 414. Evidence of Similar Crimes in Child Molestation Cases

-STATUTE-
      (a) In a criminal case in which the defendant is accused of an
    offense of child molestation, evidence of the defendant's
    commission of another offense or offenses of child molestation is
    admissible, and may be considered for its bearing on any matter to
    which it is relevant.
      (b) In a case in which the Government intends to offer evidence
    under this rule, the attorney for the Government shall disclose the
    evidence to the defendant, including statements of witnesses or a
    summary of the substance of any testimony that is expected to be
    offered, at least fifteen days before the scheduled date of trial
    or at such later time as the court may allow for good cause.
      (c) This rule shall not be construed to limit the admission or
    consideration of evidence under any other rule.
      (d) For purposes of this rule and Rule 415, "child" means a
    person below the age of fourteen, and "offense of child
    molestation" means a crime under Federal law or the law of a State
    (as defined in section 513 of title 18, United States Code) that
    involved - 
        (1) any conduct proscribed by chapter 109A of title 18, United
      States Code, that was committed in relation to a child;
        (2) any conduct proscribed by chapter 110 of title 18, United
      States Code;
        (3) contact between any part of the defendant's body or an
      object and the genitals or anus of a child;
        (4) contact between the genitals or anus of the defendant and
      any part of the body of a child;
        (5) deriving sexual pleasure or gratification from the
      infliction of death, bodily injury, or physical pain on a child;
      or
        (6) an attempt or conspiracy to engage in conduct described in
      paragraphs (1)-(5).

-SOURCE-
    (Added Pub. L. 103-322, title XXXII, Sec. 320935(a), Sept. 13,
    1994, 108 Stat. 2136.)


-MISC1-
                              EFFECTIVE DATE                          
      Rule effective July 9, 1995, see section 320935(b)-(e) of Pub. L.
    103-322, set out as a note under rule 413 of these rules.

-End-



-CITE-
    28 USC APPENDIX Rule 415                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-
    Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual
      Assault or Child Molestation

-STATUTE-
      (a) In a civil case in which a claim for damages or other relief
    is predicated on a party's alleged commission of conduct
    constituting an offense of sexual assault or child molestation,
    evidence of that party's commission of another offense or offenses
    of sexual assault or child molestation is admissible and may be
    considered as provided in Rule 413 and Rule 414 of these rules.
      (b) A party who intends to offer evidence under this Rule shall
    disclose the evidence to the party against whom it will be offered,
    including statements of witnesses or a summary of the substance of
    any testimony that is expected to be offered, at least fifteen days
    before the scheduled date of trial or at such later time as the
    court may allow for good cause.
      (c) This rule shall not be construed to limit the admission or
    consideration of evidence under any other rule.

-SOURCE-
    (Added Pub. L. 103-322, title XXXII, Sec. 320935(a), Sept. 13,
    1994, 108 Stat. 2137.)


-MISC1-
                              EFFECTIVE DATE                          
      Rule effective July 9, 1995, see section 320935(b)-(e) of Pub. L.
    103-322, set out as a note under rule 413 of these rules.

-End-


-CITE-
    28 USC APPENDIX ARTICLE V. PRIVILEGES                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE V. PRIVILEGES

-HEAD-
                           ARTICLE V. PRIVILEGES                       

-End-



-CITE-
    28 USC APPENDIX Rule 501                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE V. PRIVILEGES

-HEAD-
    Rule 501. General Rule

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.)


-MISC1-
       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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".

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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. Sec. 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. Sec. 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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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. Sec. 1332 or 28 U.S.C. Sec.
    1335, or between citizens of different States and removed under 28
    U.S.C. Sec. 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 Sec. 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.

-End-


-CITE-
    28 USC APPENDIX ARTICLE VI. WITNESSES                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
                           ARTICLE VI. WITNESSES                       

-End-



-CITE-
    28 USC APPENDIX Rule 601                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 601. General Rule of Competency

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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).

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      The amendment to rule 601 parallels the treatment accorded rule
    501 discussed immediately above.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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. Sec. 1332 or 28 U.S.C. Sec.
    1335, or between citizens of different States and removed under 28
    U.S.C. Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 602                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 602. Lack of Personal Knowledge

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      "* * * [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 Sec. 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 Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 603                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 603. Oath or Affirmation

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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. Sec. 1; judges
    and clerks may administer oaths and affirmations, 28 U.S.C. Secs.
    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. Sec. 1621.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 604                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 604. Interpreters

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 605                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 605. Competency of Judge as Witness

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      In view of the mandate of 28 U.S.C. Sec. 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 Sec. 68, p.
    147; Uniform Rule 42; California Evidence Code Sec. 703; Kansas
    Code of Civil Procedure Sec. 60-442; New Jersey Evidence Rule 42.
    Cf. 6 Wigmore Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 606                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 606. Competency of Juror as Witness

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Pub. L.
    94-149, Sec. 1(10), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff.
    Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 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. Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                          AMENDMENT BY PUBLIC LAW                      
      1975 - Subd. (b). Pub. L. 94-149 substituted "which" for "what"
    in last sentence.

-End-



-CITE-
    28 USC APPENDIX Rule 607                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 607. Who May Impeach

-STATUTE-
      The credibility of a witness may be attacked by any party,
    including the party calling the witness.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 38; 3 Wigmore Secs. 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 Sec. 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, Sec. 60; Mass.Laws Annot. 1959, c. 233
    Sec. 23; 20 N.M.Stats. Annot. 1953, Sec. 20-2-4; N.Y. CPLR Sec.
    4514 (McKinney 1963); 12 Vt.Stats. Annot. 1959, Secs. 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 Sec. 785;
    Kansas Code of Civil Procedure Sec. 60-420. See also New Jersey
    Evidence Rule 20.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 608                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 608. Evidence of Character and Conduct of Witness

-STATUTE-
      (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' character for truthfulness, 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 that relate only to character for truthfulness.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Mar. 27, 2003,
    eff. Dec. 1, 2003.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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
    Sec. 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 Sec. 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
    Sec. 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 Sec. 49, p. 105; 4
    Wigmore Sec. 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 Sec. 49;
    4 Wigmore Secs. 1106, 1107. Whether evidence in the form of
    contradiction is an attack upon the character of the witness must
    depend Secs. 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 Sec. 131; 8 Wigmore Sec. 2276
    (McNaughton Rev. 1961). In any event, wholly aside from
    constitutional considerations, the provision represents a sound
    policy.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendment is technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2003 AMENDMENT             
      The Rule has been amended to clarify that the absolute
    prohibition on extrinsic evidence applies only when the sole reason
    for proffering that evidence is to attack or support the witness'
    character for truthfulness. See United States v. Abel, 469 U.S. 45
    (1984); United States v. Fusco, 748 F.2d 996 (5th Cir. 1984) (Rule
    608(b) limits the use of evidence "designed to show that the
    witness has done things, unrelated to the suit being tried, that
    make him more or less believable per se"); Ohio R.Evid. 608(b). On
    occasion the Rule's use of the overbroad term "credibility" has
    been read "to bar extrinsic evidence for bias, competency and
    contradiction impeachment since they too deal with credibility."
    American Bar Association Section of Litigation, Emerging Problems
    Under the Federal Rules of Evidence at 161 (3d ed. 1998). The
    amendment conforms the language of the Rule to its original intent,
    which was to impose an absolute bar on extrinsic evidence only if
    the sole purpose for offering the evidence was to prove the
    witness' character for veracity. See Advisory Committee Note to
    Rule 608(b) (stating that the Rule is "[i]n conformity with Rule
    405, which forecloses use of evidence of specific incidents as
    proof in chief of character unless character is in issue in the
    case . . .").
      By limiting the application of the Rule to proof of a witness'
    character for truthfulness, the amendment leaves the admissibility
    of extrinsic evidence offered for other grounds of impeachment
    (such as contradiction, prior inconsistent statement, bias and
    mental capacity) to Rules 402 and 403. See, e.g., United States v.
    Winchenbach, 197 F.3d 548 (1st Cir. 1999) (admissibility of a prior
    inconsistent statement offered for impeachment is governed by Rules
    402 and 403, not Rule 608(b)); United States v. Tarantino, 846 F.2d
    1384(D.C. Cir. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403); United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403).
      It should be noted that the extrinsic evidence prohibition of
    Rule 608(b) bars any reference to the consequences that a witness
    might have suffered as a result of an alleged bad act. For example,
    Rule 608(b) prohibits counsel from mentioning that a witness was
    suspended or disciplined for the conduct that is the subject of
    impeachment, when that conduct is offered only to prove the
    character of the witness. See United States v. Davis, 183 F.3d 231,
    257 n.12 (3d Cir. 1999) (emphasizing that in attacking the
    defendant's character for truthfulness "the government cannot make
    reference to Davis's forty-four day suspension or that Internal
    Affairs found that he lied about" an incident because "[s]uch
    evidence would not only be hearsay to the extent it contains
    assertion of fact, it would be inadmissible extrinsic evidence
    under Rule 608(b)"). See also Stephen A. Saltzburg, Impeaching the
    Witness: Prior Bad Acts and Extrinsic Evidence, 7 Crim. Just. 28,
    31 (Winter 1993) ("counsel should not be permitted to circumvent
    the no-extrinsic-evidence provision by tucking a third person's
    opinion about prior acts into a question asked of the witness who
    has denied the act.").
      For purposes of consistency the term "credibility" has been
    replaced by the term "character for truthfulness" in the last
    sentence of subdivision (b). The term "credibility" is also used in
    subdivision (a). But the Committee found it unnecessary to
    substitute "character for truthfulness" for "credibility" in Rule
    608(a), because subdivision (a)(1) already serves to limit
    impeachment to proof of such character.
      Rules 609(a) and 610 also use the term "credibility" when the
    intent of those Rules is to regulate impeachment of a witness'
    character for truthfulness. No inference should be derived from the
    fact that the Committee proposed an amendment to Rule 608(b) but
    not to Rules 609 and 610.
      Changes Made After Publication and Comments. The last sentence of
    Rule 608(b) was changed to substitute the term "character for
    truthfulness" for the existing term "credibility." This change was
    made in accordance with public comment suggesting that it would be
    helpful to provide uniform terminology throughout Rule 608(b). A
    stylistic change was also made to the last sentence of Rule 608(b).

-End-



-CITE-
    28 USC APPENDIX Rule 609                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 609. Impeachment by Evidence of Conviction of Crime

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987,
    eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec.
    43; 2 Wright, Federal Practice and Procedure; Criminal Sec. 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 Sec. 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. Sec. 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.
    Sec. 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.
    Sec. 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, Sec. 788(5), p. 142, Cal.Law Rev.Comm'n (1965),
    though not adopted. See California Evidence Code Sec. 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 Sec.
    788. Cf. A.L.I. Model Penal Code, Proposed Official Draft Sec.
    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 Sec. 196; 3
    Id. Secs. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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."

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1990 AMENDMENT       
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 610                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 610. Religious Beliefs or Opinions

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 789. See 3 Wigmore Sec. 936.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 611                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 611. Mode and Order of Interrogation and Presentation

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 5, the
    order of calling witnesses and presenting evidence, 6 Wigmore Sec.
    1867, the use of demonstrative evidence, McCormick Sec. 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 Sec. 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, Sec. 27, p. 51. See also 5 Moore's Federal Practice
    &#182; 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 Sec. Sec.
    774-778. An almost total unwillingness to reverse for infractions
    has been manifested by appellate courts. See cases cited in 3
    Wigmore Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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, Secs. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 612                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 612. Writing Used To Refresh Memory

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      The treatment of writings used to refresh recollection while on
    the stand is in accord with settled doctrine. McCormick Sec. 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 Sec. 762, p. 111. To the same effect is
    McCormick Sec. 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. Sec. 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. Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 613                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 613. Prior Statements of Witnesses

-STATUTE-
      (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).

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 28; 4 Wigmore Secs. 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 Sec. 770. Also, dangers of oversight are
    reduced.
      See McCormick Sec. 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 Sec. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 614                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 614. Calling and Interrogation of Witnesses by Court

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      Subdivision (a). While exercised more frequently in criminal than
    in civil cases, the authority of the judge to call witnesses is
    well established. McCormick Sec. 8, p. 14; Maguire, Weinstein, et
    al., Cases on Evidence 303-304 (5th ed. 1965); 9 Wigmore Sec. 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 Sec. 8, pp. 12-13; Maguire,
    Weinstein, et al., Cases on Evidence 737-739 (5th ed. 1965); 3
    Wigmore Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 615                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VI. WITNESSES

-HEAD-
    Rule 615. Exclusion of Witnesses

-STATUTE-
      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, or (4) a person authorized by
    statute to be present.

-SOURCE-
    (Pub. L. 93-595, Sec. 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, Sec. 7075(a), Nov. 18, 1988, 102 Stat. 4405;
    Apr. 24, 1998, eff. Dec. 1, 1998.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      The efficacy of excluding or sequestering witnesses has long been
    recognized as a means of discouraging and exposing fabrication,
    inaccuracy, and collusion. 6 Wigmore Secs. 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 Sec. 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 Sec. 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 Sec. 1841, n. 4.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendment is technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 1998 AMENDMENT             
      The amendment is in response to: (1) the Victim's Rights and
    Restitution Act of 1990, 42 U.S.C. Sec. 10606, which guarantees,
    within certain limits, the right of a crime victim to attend the
    trial; and (2) the Victim Rights Clarification Act of 1997 (18
    U.S.C. Sec. 3510).

                          AMENDMENT BY PUBLIC LAW                      
      1988 - 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.

-End-


-CITE-
    28 USC APPENDIX ARTICLE VII. OPINIONS AND EXPERT
      TESTIMONY                                            01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
                ARTICLE VII. OPINIONS AND EXPERT TESTIMONY            

-End-



-CITE-
    28 USC APPENDIX Rule 701                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
    Rule 701. Opinion Testimony by Lay Witnesses

-STATUTE-
      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,
    and (c) not based on scientific, technical, or other specialized
    knowledge within the scope of Rule 702.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 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 Sec. 800;
    Kansas Code of Civil Procedure Sec. 60-456(a); New Jersey Evidence
    Rule 56(1).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Rule 701 has been amended to eliminate the risk that the
    reliability requirements set forth in Rule 702 will be evaded
    through the simple expedient of proffering an expert in lay witness
    clothing. Under the amendment, a witness' testimony must be
    scrutinized under the rules regulating expert opinion to the extent
    that the witness is providing testimony based on scientific,
    technical, or other specialized knowledge within the scope of Rule
    702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57
    F.3d 1190 (3d Cir. 1995). By channeling testimony that is actually
    expert testimony to Rule 702, the amendment also ensures that a
    party will not evade the expert witness disclosure requirements set
    forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P. 16 by simply calling an
    expert witness in the guise of a layperson. See Joseph, Emerging
    Expert Issues Under the 1993 Disclosure Amendments to the Federal
    Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996) (noting that
    "there is no good reason to allow what is essentially surprise
    expert testimony," and that "the Court should be vigilant to
    preclude manipulative conduct designed to thwart the expert
    disclosure and discovery process"). See also United States v.
    Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law
    enforcement agents testifying that the defendant's conduct was
    consistent with that of a drug trafficker could not testify as lay
    witnesses; to permit such testimony under Rule 701 "subverts the
    requirements of Federal Rule of Criminal Procedure 16(a)(1)(E)").
      The amendment does not distinguish between expert and lay
    witnesses, but rather between expert and lay testimony. Certainly
    it is possible for the same witness to provide both lay and expert
    testimony in a single case. See, e.g., United States v.
    Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law
    enforcement agents could testify that the defendant was acting
    suspiciously, without being qualified as experts; however, the
    rules on experts were applicable where the agents testified on the
    basis of extensive experience that the defendant was using code
    words to refer to drug quantities and prices). The amendment makes
    clear that any part of a witness' testimony that is based upon
    scientific, technical, or other specialized knowledge within the
    scope of Rule 702 is governed by the standards of Rule 702 and the
    corresponding disclosure requirements of the Civil and Criminal
    Rules.
      The amendment is not intended to affect the "prototypical
    example[s] of the type of evidence contemplated by the adoption of
    Rule 701 relat[ing] to the appearance of persons or things,
    identity, the manner of conduct, competency of a person, degrees of
    light or darkness, sound, size, weight, distance, and an endless
    number of items that cannot be described factually in words apart
    from inferences." Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57
    F.3d 1190, 1196 (3d Cir. 1995).
      For example, most courts have permitted the owner or officer of a
    business to testify to the value or projected profits of the
    business, without the necessity of qualifying the witness as an
    accountant, appraiser, or similar expert. See, e.g., Lightning
    Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of
    discretion in permitting the plaintiff's owner to give lay opinion
    testimony as to damages, as it was based on his knowledge and
    participation in the day-to-day affairs of the business). Such
    opinion testimony is admitted not because of experience, training
    or specialized knowledge within the realm of an expert, but because
    of the particularized knowledge that the witness has by virtue of
    his or her position in the business. The amendment does not purport
    to change this analysis. Similarly, courts have permitted lay
    witnesses to testify that a substance appeared to be a narcotic, so
    long as a foundation of familiarity with the substance is
    established. See, e.g., United States v. Westbrook, 896 F.2d 330
    (8th Cir. 1990) (two lay witnesses who were heavy amphetamine users
    were properly permitted to testify that a substance was
    amphetamine; but it was error to permit another witness to make
    such an identification where she had no experience with
    amphetamines). Such testimony is not based on specialized knowledge
    within the scope of Rule 702, but rather is based upon a
    layperson's personal knowledge. If, however, that witness were to
    describe how a narcotic was manufactured, or to describe the
    intricate workings of a narcotic distribution network, then the
    witness would have to qualify as an expert under Rule 702. United
    States v. Figueroa-Lopez, supra.
      The amendment incorporates the distinctions set forth in State v.
    Brown, 836 S.W.2d 530, 549 (1992), a case involving former
    Tennessee Rule of Evidence 701, a rule that precluded lay witness
    testimony based on "special knowledge." In Brown, the court
    declared that the distinction between lay and expert witness
    testimony is that lay testimony "results from a process of
    reasoning familiar in everyday life," while expert testimony
    "results from a process of reasoning which can be mastered only by
    specialists in the field." The court in Brown noted that a lay
    witness with experience could testify that a substance appeared to
    be blood, but that a witness would have to qualify as an expert
    before he could testify that bruising around the eyes is indicative
    of skull trauma. That is the kind of distinction made by the
    amendment to this Rule.
      GAP Report - Proposed Amendment to Rule 701. The Committee made
    the following changes to the published draft of the proposed
    amendment to Evidence Rule 701:
      1. The words "within the scope of Rule 702" were added at the end
    of the proposed amendment, to emphasize that the Rule does not
    require witnesses to qualify as experts unless their testimony is
    of the type traditionally considered within the purview of Rule
    702. The Committee Note was amended to accord with this textual
    change.
      2. The Committee Note was revised to provide further examples of
    the kind of testimony that could and could not be proffered under
    the limitation imposed by the proposed amendment.

-End-



-CITE-
    28 USC APPENDIX Rule 702                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
    Rule 702. Testimony by Experts

-STATUTE-
      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, if (1) the testimony is based
    upon sufficient facts or data, (2) the testimony is the product of
    reliable principles and methods, and (3) the witness has applied
    the principles and methods reliably to the facts of the case.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17,
    2000, eff. Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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
    Sec. 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.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Rule 702 has been amended in response to Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases
    applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct.
    1167 (1999). In Daubert the Court charged trial judges with the
    responsibility of acting as gatekeepers to exclude unreliable
    expert testimony, and the Court in Kumho clarified that this
    gatekeeper function applies to all expert testimony, not just
    testimony based in science. See also Kumho, 119 S.Ct. at 1178
    (citing the Committee Note to the proposed amendment to Rule 702,
    which had been released for public comment before the date of the
    Kumho decision). The amendment affirms the trial court's role as
    gatekeeper and provides some general standards that the trial court
    must use to assess the reliability and helpfulness of proffered
    expert testimony. Consistently with Kumho, the Rule as amended
    provides that all types of expert testimony present questions of
    admissibility for the trial court in deciding whether the evidence
    is reliable and helpful. Consequently, the admissibility of all
    expert testimony is governed by the principles of Rule 104(a).
    Under that Rule, the proponent has the burden of establishing that
    the pertinent admissibility requirements are met by a preponderance
    of the evidence. See Bourjaily v. United States, 483 U.S. 171
    (1987).
      Daubert set forth a non-exclusive checklist for trial courts to
    use in assessing the reliability of scientific expert testimony.
    The specific factors explicated by the Daubert Court are (1)
    whether the expert's technique or theory can be or has been tested
    - that is, whether the expert's theory can be challenged in some
    objective sense, or whether it is instead simply a subjective,
    conclusory approach that cannot reasonably be assessed for
    reliability; (2) whether the technique or theory has been subject
    to peer review and publication; (3) the known or potential rate of
    error of the technique or theory when applied; (4) the existence
    and maintenance of standards and controls; and (5) whether the
    technique or theory has been generally accepted in the scientific
    community. The Court in Kumho held that these factors might also be
    applicable in assessing the reliability of nonscientific expert
    testimony, depending upon "the particular circumstances of the
    particular case at issue." 119 S.Ct. at 1175.
      No attempt has been made to "codify" these specific factors.
    Daubert itself emphasized that the factors were neither exclusive
    nor dispositive. Other cases have recognized that not all of the
    specific Daubert factors can apply to every type of expert
    testimony. In addition to Kumho, 119 S.Ct. at 1175, see Tyus v.
    Urban Search Management, 102 F.3d 256 (7th Cir. 1996) (noting that
    the factors mentioned by the Court in Daubert do not neatly apply
    to expert testimony from a sociologist). See also Kannankeril v.
    Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997) (holding
    that lack of peer review or publication was not dispositive where
    the expert's opinion was supported by "widely accepted scientific
    knowledge"). The standards set forth in the amendment are broad
    enough to require consideration of any or all of the specific
    Daubert factors where appropriate.
      Courts both before and after Daubert have found other factors
    relevant in determining whether expert testimony is sufficiently
    reliable to be considered by the trier of fact. These factors
    include:
      (1) Whether experts are "proposing to testify about matters
    growing naturally and directly out of research they have conducted
    independent of the litigation, or whether they have developed their
    opinions expressly for purposes of testifying." Daubert v. Merrell
    Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).
      (2) Whether the expert has unjustifiably extrapolated from an
    accepted premise to an unfounded conclusion. See General Elec. Co.
    v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a
    trial court "may conclude that there is simply too great an
    analytical gap between the data and the opinion proffered").
      (3) Whether the expert has adequately accounted for obvious
    alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d
    499 (9th Cir. 1994) (testimony excluded where the expert failed to
    consider other obvious causes for the plaintiff's condition).
    Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the
    possibility of some uneliminated causes presents a question of
    weight, so long as the most obvious causes have been considered and
    reasonably ruled out by the expert).
      (4) Whether the expert "is being as careful as he would be in his
    regular professional work outside his paid litigation consulting."
    Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.
    1997). See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176
    (1999) (Daubert requires the trial court to assure itself that the
    expert "employs in the courtroom the same level of intellectual
    rigor that characterizes the practice of an expert in the relevant
    field").
      (5) Whether the field of expertise claimed by the expert is known
    to reach reliable results for the type of opinion the expert would
    give. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999)
    (Daubert's general acceptance factor does not "help show that an
    expert's testimony is reliable where the discipline itself lacks
    reliability, as, for example, do theories grounded in any so-called
    generally accepted principles of astrology or necromancy."); Moore
    v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc)
    (clinical doctor was properly precluded from testifying to the
    toxicological cause of the plaintiff's respiratory problem, where
    the opinion was not sufficiently grounded in scientific
    methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th
    Cir. 1988) (rejecting testimony based on "clinical ecology" as
    unfounded and unreliable).
      All of these factors remain relevant to the determination of the
    reliability of expert testimony under the Rule as amended. Other
    factors may also be relevant. See Kumho, 119 S.Ct. 1167, 1176
    ("[W]e conclude that the trial judge must have considerable leeway
    in deciding in a particular case how to go about determining
    whether particular expert testimony is reliable."). Yet no single
    factor is necessarily dispositive of the reliability of a
    particular expert's testimony. See, e.g., Heller v. Shaw
    Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) ("not only must
    each stage of the expert's testimony be reliable, but each stage
    must be evaluated practically and flexibly without bright-line
    exclusionary (or inclusionary) rules."); Daubert v. Merrell Dow
    Pharmaceuticals, Inc., 43 F.3d 1311, 1317, n.5 (9th Cir. 1995)
    (noting that some expert disciplines "have the courtroom as a
    principal theatre of operations" and as to these disciplines "the
    fact that the expert has developed an expertise principally for
    purposes of litigation will obviously not be a substantial
    consideration.").
      A review of the caselaw after Daubert shows that the rejection of
    expert testimony is the exception rather than the rule. Daubert did
    not work a "seachange over federal evidence law," and "the trial
    court's role as gatekeeper is not intended to serve as a
    replacement for the adversary system." United States v. 14.38 Acres
    of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078
    (5th Cir. 1996). As the Court in Daubert stated: "Vigorous
    cross-examination, presentation of contrary evidence, and careful
    instruction on the burden of proof are the traditional and
    appropriate means of attacking shaky but admissible evidence." 509
    U.S. at 595. Likewise, this amendment is not intended to provide an
    excuse for an automatic challenge to the testimony of every expert.
    See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999)
    (noting that the trial judge has the discretion "both to avoid
    unnecessary 'reliability' proceedings in ordinary cases where the
    reliability of an expert's methods is properly taken for granted,
    and to require appropriate proceedings in the less usual or more
    complex cases where cause for questioning the expert's reliability
    arises.").
      When a trial court, applying this amendment, rules that an
    expert's testimony is reliable, this does not necessarily mean that
    contradictory expert testimony is unreliable. The amendment is
    broad enough to permit testimony that is the product of competing
    principles or methods in the same field of expertise. See, e.g.,
    Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3d Cir. 1999)
    (expert testimony cannot be excluded simply because the expert uses
    one test rather than another, when both tests are accepted in the
    field and both reach reliable results). As the court stated in In
    re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994),
    proponents "do not have to demonstrate to the judge by a
    preponderance of the evidence that the assessments of their experts
    are correct, they only have to demonstrate by a preponderance of
    evidence that their opinions are reliable. . . . The evidentiary
    requirement of reliability is lower than the merits standard of
    correctness." See also Daubert v. Merrell Dow Pharmaceuticals,
    Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (scientific experts might
    be permitted to testify if they could show that the methods they
    used were also employed by "a recognized minority of scientists in
    their field."); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st
    Cir. 1998) ("Daubert neither requires nor empowers trial courts to
    determine which of several competing scientific theories has the
    best provenance.").
      The Court in Daubert declared that the "focus, of course, must be
    solely on principles and methodology, not on the conclusions they
    generate." 509 U.S. at 595. Yet as the Court later recognized,
    "conclusions and methodology are not entirely distinct from one
    another." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
    Under the amendment, as under Daubert, when an expert purports to
    apply principles and methods in accordance with professional
    standards, and yet reaches a conclusion that other experts in the
    field would not reach, the trial court may fairly suspect that the
    principles and methods have not been faithfully applied. See Lust
    v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir.
    1996). The amendment specifically provides that the trial court
    must scrutinize not only the principles and methods used by the
    expert, but also whether those principles and methods have been
    properly applied to the facts of the case. As the court noted in In
    re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994),
    "any step that renders the analysis unreliable . . . renders the
    expert's testimony inadmissible. This is true whether the step
    completely changes a reliable methodology or merely misapplies that
    methodology."
      If the expert purports to apply principles and methods to the
    facts of the case, it is important that this application be
    conducted reliably. Yet it might also be important in some cases
    for an expert to educate the factfinder about general principles,
    without ever attempting to apply these principles to the specific
    facts of the case. For example, experts might instruct the
    factfinder on the principles of thermodynamics, or bloodclotting,
    or on how financial markets respond to corporate reports, without
    ever knowing about or trying to tie their testimony into the facts
    of the case. The amendment does not alter the venerable practice of
    using expert testimony to educate the factfinder on general
    principles. For this kind of generalized testimony, Rule 702 simply
    requires that: (1) the expert be qualified; (2) the testimony
    address a subject matter on which the factfinder can be assisted by
    an expert; (3) the testimony be reliable; and (4) the testimony
    "fit" the facts of the case.
      As stated earlier, the amendment does not distinguish between
    scientific and other forms of expert testimony. The trial court's
    gatekeeping function applies to testimony by any expert. See Kumho
    Tire Co. v. Carmichael, 119 S.Ct. 1167, 1171 (1999) ("We conclude
    that Daubert's general holding - setting forth the trial judge's
    general 'gatekeeping' obligation - applies not only to testimony
    based on 'scientific' knowledge, but also to testimony based on
    'technical' and 'other specialized' knowledge."). While the
    relevant factors for determining reliability will vary from
    expertise to expertise, the amendment rejects the premise that an
    expert's testimony should be treated more permissively simply
    because it is outside the realm of science. An opinion from an
    expert who is not a scientist should receive the same degree of
    scrutiny for reliability as an opinion from an expert who purports
    to be a scientist. See Watkins v. Telsmith, Inc., 121 F.3d 984, 991
    (5th Cir. 1997) ("[I]t seems exactly backwards that experts who
    purport to rely on general engineering principles and practical
    experience might escape screening by the district court simply by
    stating that their conclusions were not reached by any particular
    method or technique."). Some types of expert testimony will be more
    objectively verifiable, and subject to the expectations of
    falsifiability, peer review, and publication, than others. Some
    types of expert testimony will not rely on anything like a
    scientific method, and so will have to be evaluated by reference to
    other standard principles attendant to the particular area of
    expertise. The trial judge in all cases of proffered expert
    testimony must find that it is properly grounded, well-reasoned,
    and not speculative before it can be admitted. The expert's
    testimony must be grounded in an accepted body of learning or
    experience in the expert's field, and the expert must explain how
    the conclusion is so grounded. See, e.g., American College of Trial
    Lawyers, Standards and Procedures for Determining the Admissibility
    of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994)
    ("[W]hether the testimony concerns economic principles, accounting
    standards, property valuation or other non-scientific subjects, it
    should be evaluated by reference to the 'knowledge and experience'
    of that particular field.").
      The amendment requires that the testimony must be the product of
    reliable principles and methods that are reliably applied to the
    facts of the case. While the terms "principles" and "methods" may
    convey a certain impression when applied to scientific knowledge,
    they remain relevant when applied to testimony based on technical
    or other specialized knowledge. For example, when a law enforcement
    agent testifies regarding the use of code words in a drug
    transaction, the principle used by the agent is that participants
    in such transactions regularly use code words to conceal the nature
    of their activities. The method used by the agent is the
    application of extensive experience to analyze the meaning of the
    conversations. So long as the principles and methods are reliable
    and applied reliably to the facts of the case, this type of
    testimony should be admitted.
      Nothing in this amendment is intended to suggest that experience
    alone - or experience in conjunction with other knowledge, skill,
    training or education - may not provide a sufficient foundation for
    expert testimony. To the contrary, the text of Rule 702 expressly
    contemplates that an expert may be qualified on the basis of
    experience. In certain fields, experience is the predominant, if
    not sole, basis for a great deal of reliable expert testimony. See,
    e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no
    abuse of discretion in admitting the testimony of a handwriting
    examiner who had years of practical experience and extensive
    training, and who explained his methodology in detail); Tassin v.
    Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D.La. 1996) (design
    engineer's testimony can be admissible when the expert's opinions
    "are based on facts, a reasonable investigation, and traditional
    technical/mechanical expertise, and he provides a reasonable link
    between the information and procedures he uses and the conclusions
    he reaches"). See also Kumho Tire Co. v. Carmichael, 119 S.Ct.
    1167, 1178 (1999) (stating that "no one denies that an expert might
    draw a conclusion from a set of observations based on extensive and
    specialized experience.").
      If the witness is relying solely or primarily on experience, then
    the witness must explain how that experience leads to the
    conclusion reached, why that experience is a sufficient basis for
    the opinion, and how that experience is reliably applied to the
    facts. The trial court's gatekeeping function requires more than
    simply "taking the expert's word for it." See Daubert v. Merrell
    Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)
    ("We've been presented with only the experts' qualifications, their
    conclusions and their assurances of reliability. Under Daubert,
    that's not enough."). The more subjective and controversial the
    expert's inquiry, the more likely the testimony should be excluded
    as unreliable. See O'Conner v. Commonwealth Edison Co., 13 F.3d
    1090 (7th Cir. 1994) (expert testimony based on a completely
    subjective methodology held properly excluded). See also Kumho Tire
    Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) ("[I]t will at times
    be useful to ask even of a witness whose expertise is based purely
    on experience, say, a perfume tester able to distinguish among 140
    odors at a sniff, whether his preparation is of a kind that others
    in the field would recognize as acceptable.").
      Subpart (1) of Rule 702 calls for a quantitative rather than
    qualitative analysis. The amendment requires that expert testimony
    be based on sufficient underlying "facts or data." The term "data"
    is intended to encompass the reliable opinions of other experts.
    See the original Advisory Committee Note to Rule 703. The language
    "facts or data" is broad enough to allow an expert to rely on
    hypothetical facts that are supported by the evidence. Id.
      When facts are in dispute, experts sometimes reach different
    conclusions based on competing versions of the facts. The emphasis
    in the amendment on "sufficient facts or data" is not intended to
    authorize a trial court to exclude an expert's testimony on the
    ground that the court believes one version of the facts and not the
    other.
      There has been some confusion over the relationship between Rules
    702 and 703. The amendment makes clear that the sufficiency of the
    basis of an expert's testimony is to be decided under Rule 702.
    Rule 702 sets forth the overarching requirement of reliability, and
    an analysis of the sufficiency of the expert's basis cannot be
    divorced from the ultimate reliability of the expert's opinion. In
    contrast, the "reasonable reliance" requirement of Rule 703 is a
    relatively narrow inquiry. When an expert relies on inadmissible
    information, Rule 703 requires the trial court to determine whether
    that information is of a type reasonably relied on by other experts
    in the field. If so, the expert can rely on the information in
    reaching an opinion. However, the question whether the expert is
    relying on a sufficient basis of information - whether admissible
    information or not - is governed by the requirements of Rule 702.
      The amendment makes no attempt to set forth procedural
    requirements for exercising the trial court's gatekeeping function
    over expert testimony. See Daniel J. Capra, The Daubert Puzzle, 38
    Ga.L.Rev. 699, 766 (1998) ("Trial courts should be allowed
    substantial discretion in dealing with Daubert questions; any
    attempt to codify procedures will likely give rise to unnecessary
    changes in practice and create difficult questions for appellate
    review."). Courts have shown considerable ingenuity and flexibility
    in considering challenges to expert testimony under Daubert, and it
    is contemplated that this will continue under the amended Rule.
    See, e.g., Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184
    (1st Cir. 1997) (discussing the application of Daubert in ruling on
    a motion for summary judgment); In re Paoli R.R. Yard PCB Litig.,
    35 F.3d 717, 736, 739 (3d Cir. 1994) (discussing the use of in
    limine hearings); Claar v. Burlington N.R.R., 29 F.3d 499, 502-05
    (9th Cir. 1994) (discussing the trial court's technique of ordering
    experts to submit serial affidavits explaining the reasoning and
    methods underlying their conclusions).
      The amendment continues the practice of the original Rule in
    referring to a qualified witness as an "expert." This was done to
    provide continuity and to minimize change. The use of the term
    "expert" in the Rule does not, however, mean that a jury should
    actually be informed that a qualified witness is testifying as an
    "expert." Indeed, there is much to be said for a practice that
    prohibits the use of the term "expert" by both the parties and the
    court at trial. Such a practice "ensures that trial courts do not
    inadvertently put their stamp of authority" on a witness's opinion,
    and protects against the jury's being "overwhelmed by the so-called
    'experts'." Hon. Charles Richey, Proposals to Eliminate the
    Prejudicial Effect of the Use of the Word "Expert" Under the
    Federal Rules of Evidence in Criminal and Civil Jury Trials, 154
    F.R.D. 537, 559 (1994) (setting forth limiting instructions and a
    standing order employed to prohibit the use of the term "expert" in
    jury trials).
      GAP Report - Proposed Amendment to Rule 702. The Committee made
    the following changes to the published draft of the proposed
    amendment to Evidence Rule 702:
      1. The word "reliable" was deleted from Subpart (1) of the
    proposed amendment, in order to avoid an overlap with Evidence Rule
    703, and to clarify that an expert opinion need not be excluded
    simply because it is based on hypothetical facts. The Committee
    Note was amended to accord with this textual change.
      2. The Committee Note was amended throughout to include pertinent
    references to the Supreme Court's decision in Kumho Tire Co. v.
    Carmichael, which was rendered after the proposed amendment was
    released for public comment. Other citations were updated as well.
      3. The Committee Note was revised to emphasize that the amendment
    is not intended to limit the right to jury trial, nor to permit a
    challenge to the testimony of every expert, nor to preclude the
    testimony of experience-based experts, nor to prohibit testimony
    based on competing methodologies within a field of expertise.
      4. Language was added to the Committee Note to clarify that no
    single factor is necessarily dispositive of the reliability inquiry
    mandated by Evidence Rule 702.

-End-



-CITE-
    28 USC APPENDIX Rule 703                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
    Rule 703. Bases of Opinion Testimony by Experts

-STATUTE-
      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 in order for the opinion or
    inference to be admitted. Facts or data that are otherwise
    inadmissible shall not be disclosed to the jury by the proponent of
    the opinion or inference unless the court determines that their
    probative value in assisting the jury to evaluate the expert's
    opinion substantially outweighs their prejudicial effect.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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
    Sec. 15. A similar provision is California Evidence Code Sec.
    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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      Rule 703 has been amended to emphasize that when an expert
    reasonably relies on inadmissible information to form an opinion or
    inference, the underlying information is not admissible simply
    because the opinion or inference is admitted. Courts have reached
    different results on how to treat inadmissible information when it
    is reasonably relied upon by an expert in forming an opinion or
    drawing an inference. Compare United States v. Rollins, 862 F.2d
    1282 (7th Cir. 1988) (admitting, as part of the basis of an FBI
    agent's expert opinion on the meaning of code language, the hearsay
    statements of an informant), with United States v. 0.59 Acres of
    Land, 109 F.3d 1493 (9th Cir. 1997) (error to admit hearsay offered
    as the basis of an expert opinion, without a limiting instruction).
    Commentators have also taken differing views. See, e.g., Ronald
    Carlson, Policing the Bases of Modern Expert Testimony, 39
    Vand.L.Rev. 577 (1986) (advocating limits on the jury's
    consideration of otherwise inadmissible evidence used as the basis
    for an expert opinion); Paul Rice, Inadmissible Evidence as a Basis
    for Expert Testimony: A Response to Professor Carlson, 40
    Vand.L.Rev. 583 (1987) (advocating unrestricted use of information
    reasonably relied upon by an expert).
      When information is reasonably relied upon by an expert and yet
    is admissible only for the purpose of assisting the jury in
    evaluating an expert's opinion, a trial court applying this Rule
    must consider the information's probative value in assisting the
    jury to weigh the expert's opinion on the one hand, and the risk of
    prejudice resulting from the jury's potential misuse of the
    information for substantive purposes on the other. The information
    may be disclosed to the jury, upon objection, only if the trial
    court finds that the probative value of the information in
    assisting the jury to evaluate the expert's opinion substantially
    outweighs its prejudicial effect. If the otherwise inadmissible
    information is admitted under this balancing test, the trial judge
    must give a limiting instruction upon request, informing the jury
    that the underlying information must not be used for substantive
    purposes. See Rule 105. In determining the appropriate course, the
    trial court should consider the probable effectiveness or lack of
    effectiveness of a limiting instruction under the particular
    circumstances.
      The amendment governs only the disclosure to the jury of
    information that is reasonably relied on by an expert, when that
    information is not admissible for substantive purposes. It is not
    intended to affect the admissibility of an expert's testimony. Nor
    does the amendment prevent an expert from relying on information
    that is inadmissible for substantive purposes.
      Nothing in this Rule restricts the presentation of underlying
    expert facts or data when offered by an adverse party. See Rule
    705. Of course, an adversary's attack on an expert's basis will
    often open the door to a proponent's rebuttal with information that
    was reasonably relied upon by the expert, even if that information
    would not have been discloseable initially under the balancing test
    provided by this amendment. Moreover, in some circumstances the
    proponent might wish to disclose information that is relied upon by
    the expert in order to "remove the sting" from the opponent's
    anticipated attack, and thereby prevent the jury from drawing an
    unfair negative inference. The trial court should take this
    consideration into account in applying the balancing test provided
    by this amendment.
      This amendment covers facts or data that cannot be admitted for
    any purpose other than to assist the jury to evaluate the expert's
    opinion. The balancing test provided in this amendment is not
    applicable to facts or data that are admissible for any other
    purpose but have not yet been offered for such a purpose at the
    time the expert testifies.
      The amendment provides a presumption against disclosure to the
    jury of information used as the basis of an expert's opinion and
    not admissible for any substantive purpose, when that information
    is offered by the proponent of the expert. In a multi-party case,
    where one party proffers an expert whose testimony is also
    beneficial to other parties, each such party should be deemed a
    "proponent" within the meaning of the amendment.
      GAP Report - Proposed Amendment to Rule 703. The Committee made
    the following changes to the published draft of the proposed
    amendment to Evidence Rule 703:
      1. A minor stylistic change was made in the text, in accordance
    with the suggestion of the Style Subcommittee of the Standing
    Committee on Rules of Practice and Procedure.
      2. The words "in assisting the jury to evaluate the expert's
    opinion" were added to the text, to specify the proper purpose for
    offering the otherwise inadmissible information relied on by an
    expert. The Committee Note was revised to accord with this change
    in the text.
      3. Stylistic changes were made to the Committee Note.
      4. The Committee Note was revised to emphasize that the balancing
    test set forth in the proposal should be used to determine whether
    an expert's basis may be disclosed to the jury either (1) in
    rebuttal or (2) on direct examination to "remove the sting" of an
    opponent's anticipated attack on an expert's basis.

-End-



-CITE-
    28 USC APPENDIX Rule 704                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
    Rule 704. Opinion on Ultimate Issue

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Pub. L.
    98-473, title II, Sec. 406, Oct. 12, 1984, 98 Stat. 2067.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs.
    1920, 1921; McCormick Sec. 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 Sec.
    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 Sec. 12.
      For similar provisions see Uniform Rule 56(4); California
    Evidence Code Sec. 805; Kansas Code of Civil Procedures Sec.
    60-456(d); New Jersey Evidence Rule 56(3).

                          AMENDMENT BY PUBLIC LAW                      
      1984 - Pub. L. 98-473 designated existing provisions as subd.
    (a), inserted "Except as provided in subdivision (b)", and added
    subd. (b).

-End-



-CITE-
    28 USC APPENDIX Rule 705                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
    Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

-STATUTE-
      The expert may testify in terms of opinion or inference and give
    reasons therefor without first testifying to 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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 802; Kansas Code of Civil
    Procedure Secs. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This rule, which relates to the manner of presenting testimony at
    trial, is revised to avoid an arguable conflict with revised Rules
    26(a)(2)(B) and 26(e)(1) of the Federal Rules of Civil Procedure or
    with revised Rule 16 of the Federal Rules of Criminal Procedure,
    which require disclosure in advance of trial of the basis and
    reasons for an expert's opinions.
      If a serious question is raised under Rule 702 or 703 as to the
    admissibility of expert testimony, disclosure of the underlying
    facts or data on which opinions are based may, of course, be needed
    by the court before deciding whether, and to what extent, the
    person should be allowed to testify. This rule does not preclude
    such an inquiry.

-End-



-CITE-
    28 USC APPENDIX Rule 706                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-
    Rule 706. Court Appointed Experts

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 563, 9 Id.
    Sec. 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 Secs. 730-733; Illinois Supreme Court Rule 215(d),
    Ill.Rev.Stat.1969, c. 110A, Sec. 215(d); Burns Indiana Stats. 1956,
    Sec. 9-1702; Wisconsin Stats.Annot.1958, Sec. 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 Secs. 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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-


-CITE-
    28 USC APPENDIX ARTICLE VIII. HEARSAY                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
                           ARTICLE VIII. HEARSAY                       


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           

                  INTRODUCTORY NOTE: THE HEARSAY PROBLEM              
      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 Sec. 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 Sec. 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.

                       CONFRONTATION AND DUE PROCESS                   
      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 Secs. 1200-1340.

-End-



-CITE-
    28 USC APPENDIX Rule 801                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 801. Definitions

-STATUTE-
      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. The
      contents of the statement shall be considered but are not alone
      sufficient to establish the declarant's authority under
      subdivision (C), the agency or employment relationship and scope
      thereof under subdivision (D), or the existence of the conspiracy
      and the participation therein of the declarant and the party
      against whom the statement is offered under subdivision (E).

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Pub. L.
    94-113, Sec. 1, Oct. 16, 1975, 89 Stat. 576; Mar. 2, 1987, eff.
    Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs. 225, 1200; Kansas Code of Civil Procedure Sec.
    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 Sec. 225; 5 Wigmore Sec. 1361, 6 id. Sec. 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 Sec. 1235. See also McCormick
    Sec. 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 Sec. 1238; New Jersey
    Evidence Rule 63(1)(c); N.Y. Code of Criminal Procedure Sec. 393-b.
    Further cases are found in 4 Wigmore Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 1557. See also McCormick
    Sec. 78, pp. 159-161. In accord is New Jersey Evidence Rule
    63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code
    Sec. 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 Sec. 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 Sec. 1223 and New Jersey
    Rule 63(9)(b). Cf. Uniform Rule 63(9)(b).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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 Sec. 1235; McCormick, Evidence, Sec. 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).

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      Rule 801(d)(2) has been amended in order to respond to three
    issues raised by Bourjaily v. United States, 483 U.S. 171 (1987).
    First, the amendment codifies the holding in Bourjaily by stating
    expressly that a court shall consider the contents of a
    coconspirator's statement in determining "the existence of the
    conspiracy and the participation therein of the declarant and the
    party against whom the statement is offered." According to
    Bourjaily, Rule 104(a) requires these preliminary questions to be
    established by a preponderance of the evidence.
      Second, the amendment resolves an issue on which the Court had
    reserved decision. It provides that the contents of the declarant's
    statement do not alone suffice to establish a conspiracy in which
    the declarant and the defendant participated. The court must
    consider in addition the circumstances surrounding the statement,
    such as the identity of the speaker, the context in which the
    statement was made, or evidence corroborating the contents of the
    statement in making its determination as to each preliminary
    question. This amendment is in accordance with existing practice.
    Every court of appeals that has resolved this issue requires some
    evidence in addition to the contents of the statement. See, e.g.,
    United States v. Beckham, 968 F.2d 47, 51 (D.C.Cir. 1992); United
    States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir. 1993), cert.
    denied, 114 S.Ct. 2714 (1994); United States v. Daly, 842 F.2d
    1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988); United
    States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.), cert. denied,
    115 S.Ct. 152 (1994); United States v. Zambrana, 841 F.2d 1320,
    1344-45 (7th Cir. 1988); United States v. Silverman, 861 F.2d 571,
    577 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402
    (9th Cir. 1988); United States v. Hernandez, 829 F.2d 988, 993
    (10th Cir. 1987), cert. denied, 485 U.S. 1013 (1988); United States
    v. Byrom, 910 F.2d 725, 736 (11th Cir. 1990).
      Third, the amendment extends the reasoning of Bourjaily to
    statements offered under subdivisions (C) and (D) of Rule
    801(d)(2). In Bourjaily, the Court rejected treating foundational
    facts pursuant to the law of agency in favor of an evidentiary
    approach governed by Rule 104(a). The Advisory Committee believes
    it appropriate to treat analogously preliminary questions relating
    to the declarant's authority under subdivision (C), and the agency
    or employment relationship and scope thereof under subdivision (D).
      GAP Report on Rule 801. The word "shall" was substituted for the
    word "may" in line 19. The second sentence of the committee note
    was changed accordingly.

                          AMENDMENT BY PUBLIC LAW                      
      1975 - Subd. (d)(1). Pub. L. 94-113 added cl. (C).

                     EFFECTIVE DATE OF 1975 AMENDMENT                 
      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]."

-End-



-CITE-
    28 USC APPENDIX Rule 802                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 802. Hearsay Rule

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1939.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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:

-End-



-CITE-
    28 USC APPENDIX Rule 803                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

-STATUTE-
      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, or by certification that complies with
      Rule 902(11), Rule 902(12), or a statute permitting
      certification, 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.] [Transferred to Rule 807]

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1939; Pub. L.
    94-149, Sec. 1(11), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff.
    Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff.
    Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 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 Sec. 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 Sec.
    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 Sec. 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 Sec. 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 Secs. 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 Sec. 1240 (as to Exception (2) only);
    Kansas Code of Civil Procedure Sec. 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 Secs. 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 Sec. 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
    Sec. 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 Sec. 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 Sec. 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 Sec. 277, p. 593; 3
    Wigmore Sec. 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 Sec.
    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. Sec.
    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 Sec. 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, Sec. 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 Secs.
    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 Sec.
    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. Sec. 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 Sec. 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 Sec. 289,
    p. 609; Morgan, Basic Problems of Evidence 314 (1962); 5 Wigmore
    Sec. 1531; Uniform Rule 63(14); California Evidence Code Sec. 1272;
    Kansas Code of Civil Procedure Sec. 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 Sec. 291. See, for example, 28 U.S.C. Sec. 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. Sec. 78, findings of Secretary of
    Agriculture prima facie evidence of true grade of grain; 7 U.S.C.
    Sec. 210(f), findings of Secretary of Agriculture prima facie
    evidence in action for damages against stockyard owner; 7 U.S.C.
    Sec. 292, order by Secretary of Agriculture prima facie evidence in
    judicial enforcement proceedings against producers association
    monopoly; 7 U.S.C. Sec. 1622(h), Department of Agriculture
    inspection certificates of products shipped in interstate commerce
    prima facie evidence; 8 U.S.C. Sec. 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. Sec. 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. Sec. 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. Sec. 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 Sec. 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 Sec. 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.
    Sec. 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. Sec. 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 Sec. 1678(7), p. 752. The rule takes the opposite position,
    as do Uniform Rule 63(17); California Evidence Code Sec. 1284;
    Kansas Code of Civil Procedure Sec. 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. Sec. 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 Sec.
    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 Sec. 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 Sec. 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 Sec. 1316; Kansas Code of Civil Procedure
    Sec. 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 Secs.
    1495, 1496, citing numerous statutes and decisions. See also
    Regulations, Social Security Administration, 20 C.F.R. Sec.
    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 Sec. 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 Secs.
    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 Sec. 1330; Kansas Code of Civil Procedure
    Sec. 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 Sec. 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. Sec. 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. Sec. 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 Sec. 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
    Sec. 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 Sec. 1702, authorities
    are cited which include other kinds of publications, for example,
    newspaper market reports, telephone directories, and city
    directories. Id. Secs. 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 Sec. 1340; Kansas Code of Civil Procedure Sec.
    60-460(bb); New Jersey Evidence Rule 63(30). Uniform Commercial
    Code Sec. 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 Sec. 296, p. 621;
    Morgan, Basic Problems of Evidence 366 (1962); 6 Wigmore Sec. 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 Sec. 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 Sec. 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 Sec. 1580, p.
    444, and see also Sec. 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 Sec. 1602. As to such items as legitimacy, relationship,
    adoption, birth, and death, the decisions are divided. Id. Sec.
    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 Sec. 21A; 5 Wigmore Sec. 1616. The family has often served
    as the point of beginning for allowing community reputation. 5
    Wigmore Sec. 1488. For comparable provisions see Uniform Rule
    63(26), (27)(c); California Evidence Code Secs. 1313, 1314; Kansas
    Code of Civil Procedure Sec. 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 Sec. 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 Secs. 1320-1322; Kansas Code of Civil Procedure Sec.
    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 Secs. 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 Sec. 1324; Kansas Code of Civil
    Procedure Sec. 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. Sec. 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 Sec. 1300; Kansas Code of Civil Procedure Sec.
    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).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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).

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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. Sec. 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, Sec. 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. Sec. 15.135; N. Mex. Stats. (1973
    Supp.) Sec. 20-4-803(6); West's Wis. Stats. Anno. (1973 Supp.) Sec.
    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. Sec. 78, findings of Secretary of
    Agriculture prima facie evidence of true grade of grain; 42 U.S.C.
    Sec. 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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      The contents of Rule 803(24) and Rule 804(b)(5) have been
    combined and transferred to a new Rule 807. This was done to
    facilitate additions to Rules 803 and 804. No change in meaning is
    intended.
      GAP Report on Rule 803. The words "Transferred to Rule 807" were
    substituted for "Abrogated."

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      The amendment provides that the foundation requirements of Rule
    803(6) can be satisfied under certain circumstances without the
    expense and inconvenience of producing time-consuming foundation
    witnesses. Under current law, courts have generally required
    foundation witnesses to testify. See, e.g., Tongil Co., Ltd. v.
    Hyundai Merchant Marine Corp., 968 F.2d 999 (9th Cir. 1992)
    (reversing a judgment based on business records where a qualified
    person filed an affidavit but did not testify). Protections are
    provided by the authentication requirements of Rule 902(11) for
    domestic records, Rule 902(12) for foreign records in civil cases,
    and 18 U.S.C. Sec. 3505 for foreign records in criminal cases.
      GAP Report - Proposed Amendment to Rule 803(6). The Committee
    made no changes to the published draft of the proposed amendment to
    Evidence Rule 803(6).

                          AMENDMENT BY PUBLIC LAW                      
      1975 - Exception (23). Pub. L. 94-149 inserted a comma
    immediately after "family" in catchline.

-End-



-CITE-
    28 USC APPENDIX Rule 804                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 804. Hearsay Exceptions; Declarant Unavailable

-STATUTE-
      (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.] [Transferred to Rule 807]
        (6) Forfeiture by wrongdoing. - A statement offered against a
      party that has engaged or acquiesced in wrongdoing that was
      intended to, and did, procure the unavailability of the declarant
      as a witness.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1942; Pub. L.
    94-149, Sec. 1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2,
    1987, eff. Oct. 1, 1987; Pub. L. 100-690, title VII, Sec. 7075(b),
    Nov. 18, 1988, 102 Stat. 4405; Apr. 11, 1997, eff. Dec. 1, 1997.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Secs. 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 Sec. 240(a)(1); Kansas Code
    of Civil Procedure Sec. 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 Sec. 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 Secs. 234, 257, 297; Uniform Rule 62(7)(c); California
    Evidence Code Sec. 240(a)(3); Kansas Code of Civil Procedure Sec.
    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 Sec. 234; Uniform Rule 62(7)(d) and (e);
    California Evidence Code Sec. 240(a)(4) and (5); Kansas Code of
    Civil Procedure Sec. 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 Sec. 246, pp. 526-527; 4
    Wigmore Sec. 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 Sec. 231, p. 483. See also
    5 Wigmore Sec. 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 Sec. 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 Sec. 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 Sec. 232, pp. 489-490; 5 Wigmore Sec. 1388.
      Provisions of the same tenor will be found in Uniform Rule
    63(3)(b); California Evidence Code Secs. 1290-1292; Kansas Code of
    Civil Procedure Sec. 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 Sec. 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. Sec.
    52-1-20, or has expanded the area of offenses to include abortions,
    5 Wigmore Sec. 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 Sec. 1242; Kansas Code of Civil Procedure
    Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 256.
      For comparable provisions, see Uniform Rule 63(10): California
    Evidence Code Sec. 1230; Kansas Code of Civil Procedure Sec.
    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 Sec. 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 Sec. 1489. In
    addition, and contrary to the common law, declarant qualifies by
    virtue of intimate association with the family. Id., Sec. 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., Sec. 1491.
      For comparable provisions, see Uniform Rule 63 (23), (24), (25);
    California Evidence Code Secs. 1310, 1311; Kansas Code of Civil
    Procedure Sec. 60-460(u), (v), (w); New Jersey Evidence Rules
    63(23), 63(24), 63(25).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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".

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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. Sec. 51.345; N. Mex. Stats.
    (1973 supp.) Sec. 20-4-804(4); West's Wis. Stats. Anno. (1973
    supp.) Sec. 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.

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      Subdivision (b)(5). The contents of Rule 803(24) and Rule
    804(b)(5) have been combined and transferred to a new Rule 807.
    This was done to facilitate additions to Rules 803 and 804. No
    change in meaning is intended.
      Subdivision (b)(6). Rule 804(b)(6) has been added to provide that
    a party forfeits the right to object on hearsay grounds to the
    admission of a declarant's prior statement when the party's
    deliberate wrongdoing or acquiescence therein procured the
    unavailability of the declarant as a witness. This recognizes the
    need for a prophylactic rule to deal with abhorrent behavior "which
    strikes at the heart of the system of justice itself." United
    States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), cert.
    denied, 467 U.S. 1204 (1984). The wrongdoing need not consist of a
    criminal act. The rule applies to all parties, including the
    government.
      Every circuit that has resolved the question has recognized the
    principle of forfeiture by misconduct, although the tests for
    determining whether there is a forfeiture have varied. See, e.g.,
    United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); United
    States v. Potamitis, 739 F.2d 784, 789 (2d Cir.), cert. denied, 469
    U.S. 918 (1984); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir.
    1982), cert. denied, 460 U.S. 1053 (1983); United States v. Balano,
    618 F.2d 624, 629 (10th Cir. 1979), cert. denied, 449 U.S. 840
    (1980); United States v. Carlson, 547 F.2d 1346, 1358-59 (8th
    Cir.), cert. denied, 431 U.S. 914 (1977). The foregoing cases apply
    a preponderance of the evidence standard. Contra United States v.
    Thevis, 665 F.2d 616, 631 (5th Cir.) (clear and convincing
    standard), cert. denied, 459 U.S. 825 (1982). The usual Rule 104(a)
    preponderance of the evidence standard has been adopted in light of
    the behavior the new Rule 804(b)(6) seeks to discourage.
      GAP Report on Rule 804(b)(5). The words "Transferred to Rule 807"
    were substituted for "Abrogated."
      GAP Report on Rule 804(b)(6). The title of the rule was changed
    to "Forfeiture by wrongdoing." The word "who" in line 24 was
    changed to "that" to indicate that the rule is potentially
    applicable against the government. Two sentences were added to the
    first paragraph of the committee note to clarify that the
    wrongdoing need not be criminal in nature, and to indicate the
    rule's potential applicability to the government. The word
    "forfeiture" was substituted for "waiver" in the note.

                          AMENDMENT BY PUBLIC LAW                      
      1988 - Subd. (a)(5). Pub. L. 100-690 substituted "subdivision"
    for "subdivisions".
      1975 - Pub. L. 94-149, Sec. 1(12), substituted a semicolon for
    the colon in catchline.
      Subd. (b)(3). Pub. L. 94-149, Sec. 1(13), substituted
    "admissible" for "admissable".

-End-



-CITE-
    28 USC APPENDIX Rule 805                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 805. Hearsay Within Hearsay

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 290, p. 611.

-End-



-CITE-
    28 USC APPENDIX Rule 806                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 806. Attacking and Supporting Credibility of Declarant

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 37, p. 69; 3 Wigmore Sec. 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 Sec. 37, p. 69; 3 Wigmore Sec. 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 Sec. 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 &#182;&#182;
    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. Sec. 25-1267.07.
      For similar provisions, see Uniform Rule 65; California Evidence
    Code Sec. 1202; Kansas Code of Civil Procedure Sec. 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 Sec. 1203.

      NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277  
      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].

          NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597      
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT       
      The amendment is technical. No substantive change is intended.
      GAP Report. Restylization changes in the rule were eliminated.

-End-



-CITE-
    28 USC APPENDIX Rule 807                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE VIII. HEARSAY

-HEAD-
    Rule 807. Residual Exception

-STATUTE-
      A statement not specifically covered by Rule 803 or 804 but
    having equivalent circumstantial guarantees of trustworthiness, is
    not excluded by the hearsay rule, 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.

-SOURCE-
    (Added Apr. 11, 1997, eff. Dec. 1, 1997.)


-MISC1-
                   NOTES OF ADVISORY COMMITTEE ON RULES               
      The contents of Rule 803(24) and Rule 804(b)(5) have been
    combined and transferred to a new Rule 807. This was done to
    facilitate additions to Rules 803 and 804. No change in meaning is
    intended.
      GAP Report on Rule 807. Restylization changes were eliminated.

-End-


-CITE-
    28 USC APPENDIX ARTICLE IX. AUTHENTICATION AND
      IDENTIFICATION                                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-
               ARTICLE IX. AUTHENTICATION AND IDENTIFICATION           

-End-



-CITE-
    28 USC APPENDIX Rule 901                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-
    Rule 901. Requirement of Authentication or Identification

-STATUTE-
      (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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      Subdivision (a). Authentication and identification represent a
    special aspect of relevancy. Michael and Adler, Real Proof, 5
    Vand.L.Rev. 344, 362 (1952); McCormick Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
    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 Sec. 189. See also California Evidence Code
    Sec. 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 Secs. 1991-1994. In
    breaking away, the English Common Law Procedure Act of 1854, 17 and
    18 Viet., c. 125, Sec. 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 Secs. 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. Sec. 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 Sec. 1421; similarly, a letter
    may be authenticated by content and circumstances indicating it was
    in reply to a duly authenticated one. McCormick Sec. 192;
    California Evidence Code Sec. 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 Sec. 193; 7 Wigmore Sec.
    2155; Annot., 71 A.L.R. 5, 105 id. 326.
      Example (7). Public records are regularly authenticated by proof
    of custody, without more. McCormick Sec. 191; 7 Wigmore Secs. 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
    Secs. 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, Sec. 41.360(34). See
    also the numerous statutes prescribing periods of less than 30
    years in the case of recorded documents. 7 Wigmore Sec. 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 Sec. 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. Sec. 753(b) and Civil
    Procedure Rule 80(c), and for authentication of depositions in
    Civil Procedure Rule 30(f).

-End-



-CITE-
    28 USC APPENDIX Rule 902                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-
    Rule 902. Self-authentication

-STATUTE-
      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.
        (11) Certified domestic records of regularly conducted
      activity. - The original or a duplicate of a domestic record of
      regularly conducted activity that would be admissible under Rule
      803(6) if accompanied by a written declaration of its custodian
      or other qualified person, in a manner complying with any Act of
      Congress or rule prescribed by the Supreme Court pursuant to
      statutory authority, certifying that the record - 
          (A) was made at or near the time of the occurrence of the
        matters set forth by, or from information transmitted by, a
        person with knowledge of those matters;
          (B) was kept in the course of the regularly conducted
        activity; and
          (C) was made by the regularly conducted activity as a regular
        practice.

      A party intending to offer a record into evidence under this
      paragraph must provide written notice of that intention to all
      adverse parties, and must make the record and declaration
      available for inspection sufficiently in advance of their offer
      into evidence to provide an adverse party with a fair opportunity
      to challenge them.
        (12) Certified foreign records of regularly conducted activity.
      - In a civil case, the original or a duplicate of a foreign
      record of regularly conducted activity that would be admissible
      under Rule 803(6) if accompanied by a written declaration by its
      custodian or other qualified person certifying that the record - 
          (A) was made at or near the time of the occurrence of the
        matters set forth by, or from information transmitted by, a
        person with knowledge of those matters;
          (B) was kept in the course of the regularly conducted
        activity; and
          (C) was made by the regularly conducted activity as a regular
        practice.

      The declaration must be signed in a manner that, if falsely made,
      would subject the maker to criminal penalty under the laws of the
      country where the declaration is signed. A party intending to
      offer a record into evidence under this paragraph must provide
      written notice of that intention to all adverse parties, and must
      make the record and declaration available for inspection
      sufficiently in advance of their offer into evidence to provide
      an adverse party with a fair opportunity to challenge them.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1944; Mar. 2, 1987,
    eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 17, 2000,
    eff. Dec. 1, 2000.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 2161, p. 638; California
    Evidence Code Sec. 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 Sec. 2167; California Evidence Code
    Sec. 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 Sec. 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 Sec.
    2150. Cf. 39 U.S.C. Sec. 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, Sec.
    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, Sec. 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 Sec. 2510a. See also the
    provision of 19 U.S.C. Sec. 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 Sec. 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 Sec. 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. Sec. 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. Sec. 77f(a), signature on SEC registration presumed genuine;
    26 U.S.C. Sec. 6064, signature to tax return prima facie genuine.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      These two sentences were inadvertently eliminated from the 1987
    amendments. The amendment is technical. No substantive change is
    intended.

                 COMMITTEE NOTES ON RULES - 2000 AMENDMENT             
      The amendment adds two new paragraphs to the rule on
    self-authentication. It sets forth a procedure by which parties can
    authenticate certain records of regularly conducted activity, other
    than through the testimony of a foundation witness. See the
    amendment to Rule 803(6). 18 U.S.C. Sec. 3505 currently provides a
    means for certifying foreign records of regularly conducted
    activity in criminal cases, and this amendment is intended to
    establish a similar procedure for domestic records, and for foreign
    records offered in civil cases.
      A declaration that satisfies 28 U.S.C. Sec. 1746 would satisfy
    the declaration requirement of Rule 902(11), as would any
    comparable certification under oath.
      The notice requirement in Rules 902(11) and (12) is intended to
    give the opponent of the evidence a full opportunity to test the
    adequacy of the foundation set forth in the declaration.
      GAP Report - Proposed Amendment to Rule 902. The Committee made
    the following changes to the published draft of the proposed
    amendment to Evidence Rule 902:
      1. Minor stylistic changes were made in the text, in accordance
    with suggestions of the Style Subcommittee of the Standing
    Committee on Rules of Practice and Procedure.
      2. The phrase "in a manner complying with any Act of Congress or
    rule prescribed by the Supreme Court pursuant to statutory
    authority" was added to proposed Rule 902(11), to provide
    consistency with Evidence Rule 902(4). The Committee Note was
    amended to accord with this textual change.
      3. Minor stylistic changes were made in the text to provide a
    uniform construction of the terms "declaration" and "certifying."
      4. The notice provisions in the text were revised to clarify that
    the proponent must make both the declaration and the underlying
    record available for inspection.


-TRANS-
           TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS       
      For termination of Trust Territory of the Pacific Islands, see
    note set out preceding section 1681 of Title 48, Territories and
    Insular Possessions.

-End-



-CITE-
    28 USC APPENDIX Rule 903                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-
    Rule 903. Subscribing Witness' Testimony Unnecessary

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1945.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 188. Uniform Rule
    71; California Evidence Code Sec. 1411; Kansas Code of Civil
    Procedure Sec. 60-468; New Jersey Evidence Rule 71; New York CPLR
    Rule 4537.

-End-


-CITE-
    28 USC APPENDIX ARTICLE X. CONTENTS OF WRITINGS,
      RECORDINGS, AND PHOTOGRAPHS                          01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
       ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS   

-End-



-CITE-
    28 USC APPENDIX Rule 1001                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1001. Definitions

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1945.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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. Sec. 1732(b). Compare 26 U.S.C. Sec. 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. Sec. 399(a), giving original status to
    photographic copies in the National Archives.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      The Committee amended this Rule expressly to include "video
    tapes" in the definition of "photographs."

-End-



-CITE-
    28 USC APPENDIX Rule 1002                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1002. Requirement of Original

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 198; 4 Wigmore Sec. 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. Sec. 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.
    Sec. 399(a), photographic copies in National Archives treated as
    originals.

-End-



-CITE-
    28 USC APPENDIX Rule 1003                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1003. Admissibility of Duplicates

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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).

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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."

-End-



-CITE-
    28 USC APPENDIX Rule 1004                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1004. Admissibility of Other Evidence of Contents

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 207.
      Paragraph (1). Loss or destruction of the original, unless due to
    bad faith of the proponent, is a satisfactory explanation of
    nonproduction. McCormick Sec. 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 Sec. 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 Sec. 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
    Sec. 200, p. 412, n. 1.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendments are technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 1005                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1005. Public Records

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 204; 4 Wigmore Secs. 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. Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 1006                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1006. Summaries

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 1230.

-End-



-CITE-
    28 USC APPENDIX Rule 1007                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1007. Testimony or Written Admission of Party

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947; Mar. 2, 1987,
    eff. Oct. 1, 1987.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 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 Sec. 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).

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 1008                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-
    Rule 1008. Functions of Court and Jury

-STATUTE-
      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.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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 Sec. 60-467(b); New Jersey Evidence Rule 70(2),
    (3).

-End-


-CITE-
    28 USC APPENDIX ARTICLE XI. MISCELLANEOUS RULES             01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE XI. MISCELLANEOUS RULES

-HEAD-
                      ARTICLE XI. MISCELLANEOUS RULES                  

-End-



-CITE-
    28 USC APPENDIX Rule 1101                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE XI. MISCELLANEOUS RULES

-HEAD-
    Rule 1101. Applicability of Rules

-STATUTE-
      (a) Courts and judges. - 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 magistrate judges, 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 magistrate judges.
      (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 misdemeanors and other petty offenses
    before United States magistrate judges; 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.


-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947; Pub. L.
    94-149, Sec. 1(14), Dec. 12, 1975, 89 Stat. 806; Pub. L. 95-598,
    title II, Secs. 251, 252, Nov. 6, 1978, 92 Stat. 2673; Pub. L.
    97-164, title I, Sec. 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, Sec. 7075(c), Nov. 18, 1988, 102 Stat. 4405;
    Apr. 22, 1993, eff. Dec. 1, 1993.)


-MISC1-
               NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES           
      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.
    Sec. 2072, Pub. L. 89-773, Sec. 1, 80 Stat. 1323. The bankruptcy
    authorization is for rules of practice and procedure "under the
    Bankruptcy Act." 28 U.S.C. Sec. 2075, Pub. L. 88-623, Sec. 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. Secs. 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. Sec. 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. Sec. 81 et seq. creating district courts
    therein, Id. Sec. 132, and specifically providing that the term
    "district court of the United States" means the courts so
    constituted. Id. Sec. 451. The District of Columbia is included.
    Id. Sec. 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. Sec. 2072. Likewise Puerto Rico
    is made a district, with a district court, and included in the
    term. Id. Sec. 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. Secs. 1(10), 11(a). These
    courts include the district courts of Guam and the Virgin Islands.
    48 U.S.C. Secs. 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. Sec. 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 &#182;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, Sec. 141.
      Admiralty jurisdiction is expressly conferred. Id. Sec. 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. Sec. 279. Neither these provisions nor Sec. 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 &#182;1.07 (2nd ed. 1967); 1 Barron and Holtzoff, Federal
    Practice and Procedure Sec. 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. Sec. 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 Sec. 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. Secs. 3181-3195. They are essentially
    administrative in character. Traditionally the rules of evidence
    have not applied. 1 Wigmore Sec. 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 Sec. 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. Sec. 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, Sec.
    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. Sec. 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.

       NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650   
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT       
      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.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT       
      The amendments are technical. No substantive change is intended.

           NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT       
      This revision is made to conform the rule to changes in
    terminology made by Rule 58 of the Federal Rules of Criminal
    Procedure and to the changes in the title of United States
    magistrates made by the Judicial Improvements Act of 1990.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Tariff Act of 1930, referred to in subd. (e), is act June 17,
    1930, ch. 497, 46 Stat. 590, as amended, which is classified
    principally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs
    Duties. Part V of title IV of the Tariff Act of 1930 enacted part V
    (Sec. 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
    subd. (e), is act Aug. 5, 1935, ch. 438, 49 Stat. 517, as amended,
    which is classified principally to chapter 5 (Sec. 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 subd. (e), is act June 25, 1938, ch. 675, 52 Stat.
    1040, as amended, which is classified generally to chapter 9 (Sec.
    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 subd. (e), was repealed and reenacted as section 11104(b)-(d) of
    Title 46, Shipping, by Pub. L. 98-89, Secs. 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 subd. (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
    (Sec. 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.


-MISC2-
                          AMENDMENT BY PUBLIC LAW                      
      1988 - Subd. (a). Pub. L. 100-690, Sec. 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, Sec. 7075(c)(2), substituted "courts of appeals"
    for "Courts of Appeals".
      1982 - 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".
      1978 - Subd. (a). Pub. L. 95-598, Sec. 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, Sec. 251(a), struck out ", referees in
    bankruptcy," after "United States magistrates".
      Subd. (b). Pub. L. 95-598, Sec. 251(b), substituted "title 11,
    United States Code" for "the Bankruptcy Act".
      1975 - Subd. (e). Pub. L. 94-149 substituted "admiralty" for
    "admirality".

-CHANGE-
                              CHANGE OF NAME                          
      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.


-MISC3-
                     EFFECTIVE DATE OF 1978 AMENDMENT                 
      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.

                     EFFECTIVE DATE OF 1982 AMENDMENT                 
      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.

-FOOTNOTE-
    (!1) Repealed and reenacted as 46 U.S.C. 11104(b)-(d) by Pub. L.
         98-89, Secs. 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500.


-End-



-CITE-
    28 USC APPENDIX Rule 1102                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE XI. MISCELLANEOUS RULES

-HEAD-
    Rule 1102. Amendments

-STATUTE-
      Amendments to the Federal Rules of Evidence may be made as
    provided in section 2072 of title 28 of the United States Code.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1948; Apr. 30,
    1991, eff. Dec. 1, 1991.)


-MISC1-
           NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT       
      The amendment is technical. No substantive change is intended.

-End-



-CITE-
    28 USC APPENDIX Rule 1103                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    FEDERAL RULES OF EVIDENCE
    ARTICLE XI. MISCELLANEOUS RULES

-HEAD-
    Rule 1103. Title

-STATUTE-
      These rules may be known and cited as the Federal Rules of
    Evidence.

-SOURCE-
    (Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1948.)


-MISC1-
                       SHORT TITLE OF 1978 AMENDMENT                   
      Pub. L. 95-540, Sec. 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'."

-End-


-CITE-
    28 USC APPENDIX RULES OF THE SUPREME COURT OF
      THE UNITED STATES                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES

-HEAD-
              RULES OF THE SUPREME COURT OF THE UNITED STATES          


-MISC1-
      (ADOPTED JANUARY 27, 2003, EFFECTIVE MAY 1, 2003, AS AMENDED TO
                             JANUARY 19, 2004)

                                                                

                             PART I. THE COURT                         
    Rule                                                     
    1.          Clerk.                                                
    2.          Library.                                              
    3.          Term.                                                 
    4.          Sessions and Quorum.                                  

                     PART II. ATTORNEYS AND COUNSELORS                 
    5.          Admission to the Bar.                                 
    6.          Argument Pro Hac Vice.                                
    7.          Prohibition Against Practice.                         
    8.          Disbarment and Disciplinary Action.                   
    9.          Appearance of Counsel.                                

               PART III. JURISDICTION ON WRIT OF CERTIORARI           
    10.         Considerations Governing Review on 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 a Petition for a Writ of Certiorari.       
    15.         Briefs in Opposition; Reply Briefs; Supplemental
                 Briefs.                                              
    16.         Disposition of a Petition for a Writ of Certiorari.   

                        PART IV. OTHER JURISDICTION                    
    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.    

                     PART V. MOTIONS AND APPLICATIONS                 
    21.         Motions to the Court.                                 
    22.         Applications to Individual Justices.                  
    23.         Stays.                                                

              PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT          
    24.         Briefs on the Merits: In General.                     
    25.         Briefs on the Merits: Number of Copies and Time to
                 File.                                                
    26.         Joint Appendix.                                       
    27.         Calendar.                                             
    28.         Oral Argument.                                        

                     PART VII. PRACTICE AND PROCEDURE                 
    29.         Filing and Service of Documents; Special
                 Notifications; Corporate Listing.                    
    30.         Computation and Extension of Time.                    
    31.         Translations.                                         
    32.         Models, Diagrams, Exhibits, and Lodgings.             
    33.         Document Preparation: Booklet Format; 8 1/2 - by
                 11-Inch Paper Format.                                
    34.         Document Preparation: General Requirements.           
    35.         Death, Substitution, and Revivor; Public Officers.    
    36.         Custody of Prisoners in Habeas Corpus Proceedings.    
    37.         Brief for an Amicus Curiae.                           
    38.         Fees.                                                 
    39.         Proceedings In Forma Pauperis.                        
    40.         Veterans, Seamen, and Military Cases.                 

                      PART VIII. DISPOSITION OF CASES                  
    41.         Opinions of the Court.                                
    42.         Interest and Damages.                                 
    43.         Costs.                                                
    44.         Rehearing.                                            
    45.         Process; Mandates.                                    
    46.         Dismissing Cases.                                     

                  PART IX. DEFINITIONS AND EFFECTIVE DATE              
    47.         Reference to "State Court" and "State Law".           
    48.         Effective Date of Rules.                              

-End-


-CITE-
    28 USC APPENDIX PART I. THE COURT                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART I. THE COURT

-HEAD-
                             PART I. THE COURT                         

-End-



-CITE-
    28 USC APPENDIX Rule 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART I. THE COURT

-HEAD-
    Rule 1. Clerk

-STATUTE-
      1. The Clerk receives documents for filing with the Court and has
    authority to reject any submitted filing that does not comply with
    these Rules.
      2. The Clerk maintains the Court's records and will not permit
    any of them to be removed from the Court building except as
    authorized by the Court. Any document 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 proceedings in
    this Court, original records and documents transmitted to this
    Court by any other court will be returned to the court from which
    they were received.
      3. Unless the Court or the Chief Justice orders otherwise, the
    Clerk's office is open from 9 a.m. to 5 p.m., Monday through
    Friday, except on federal legal holidays listed in 5 U.S.C. Sec.
    6103.

-End-



-CITE-
    28 USC APPENDIX Rule 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART I. THE COURT

-HEAD-
    Rule 2. Library

-STATUTE-
      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 and for federal departments and agencies.
      2. The library's hours are 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 Court building,
    except by a Justice or a member of a Justice's staff.

-End-



-CITE-
    28 USC APPENDIX Rule 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART I. THE COURT

-HEAD-
    Rule 3. Term

-STATUTE-
      The Court holds a continuous annual Term commencing on the first
    Monday in October and ending on the day before the first Monday in
    October of the following year. See 28 U.S.C. Sec. 2. At the end of
    each Term, all cases pending on the docket are continued to the
    next Term.

-End-



-CITE-
    28 USC APPENDIX Rule 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART I. THE COURT

-HEAD-
    Rule 4. Sessions and Quorum

-STATUTE-
      1. Open sessions of the Court are held beginning at 10 a.m. on
    the first Monday in October of each year, and thereafter as
    announced by the Court. Unless it orders otherwise, the Court sits
    to hear arguments from 10 a.m. until noon and from 1 p.m. until 3
    p.m.
      2. Six Members of the Court constitute a quorum. See 28 U.S.C.
    Sec. 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. When appropriate, the Court will direct the Clerk or the
    Marshal to announce recesses.

-End-


-CITE-
    28 USC APPENDIX PART II. ATTORNEYS AND
      COUNSELORS                                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART II. ATTORNEYS AND COUNSELORS

-HEAD-
                     PART II. ATTORNEYS AND COUNSELORS                 

-End-



-CITE-
    28 USC APPENDIX Rule 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART II. ATTORNEYS AND COUNSELORS

-HEAD-
    Rule 5. Admission to the Bar

-STATUTE-
      1. To qualify for admission to the Bar of this Court, an
    applicant must have been admitted to practice in the highest court
    of a State, Commonwealth, Territory or Possession, or the District
    of Columbia for a period of at least three years immediately before
    the date of application; must not have been the subject of any
    adverse disciplinary action pronounced or in effect during that
    3-year period; and must appear 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 this Court and furnished by
    the Clerk containing (a) the applicant's personal statement, and
    (b) the statement of two sponsors 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. Both
    sponsors must be members of the Bar of this Court who personally
    know, but are not related to, the applicant.
      3. If the documents submitted demonstrate that the applicant
    possesses the necessary qualifications, and if the applicant has
    signed the oath or affirmation and 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
    wishes 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 sign 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 bearing the
    seal of the Court is $100, payable to the United States Supreme
    Court. The Marshal will deposit such fees in 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 its Bar,
    and for related purposes.
      6. The fee for a duplicate certificate of admission to the Bar
    bearing the seal of the Court is $15, and the fee for a certificate
    of good standing is $10, payable to the United States Supreme
    Court. The proceeds will be maintained by the Marshal as provided
    in paragraph 5 of this Rule.

-End-



-CITE-
    28 USC APPENDIX Rule 6                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART II. ATTORNEYS AND COUNSELORS

-HEAD-
    Rule 6. Argument Pro Hac Vice

-STATUTE-
      1. An attorney not admitted to practice in the highest court of a
    State, Commonwealth, Territory or Possession, or the District of
    Columbia for the requisite three years, but otherwise eligible for
    admission to practice in this Court under Rule 5.1, may be
    permitted to argue pro hac vice.
      2. An attorney qualified to practice in the courts of a foreign
    state may be permitted to argue pro hac vice.
      3. Oral argument pro hac vice is allowed only on motion of the
    counsel of record for the party on whose behalf leave is requested.
    The motion shall state concisely the qualifications of the attorney
    who is to argue pro hac vice. It shall be filed with the Clerk, in
    the form required 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 it shall be accompanied by proof of service as required by Rule
    29.

-End-



-CITE-
    28 USC APPENDIX Rule 7                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART II. ATTORNEYS AND COUNSELORS

-HEAD-
    Rule 7. Prohibition Against Practice

-STATUTE-
      No employee of this Court shall practice as an attorney or
    counselor in any court or before any agency of government while
    employed by the Court; nor shall any person after leaving such
    employment participate in any professional capacity 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 in any
    professional capacity in any case that was pending in this Court
    during the employee's tenure.

-End-



-CITE-
    28 USC APPENDIX Rule 8                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART II. ATTORNEYS AND COUNSELORS

-HEAD-
    Rule 8. Disbarment and Disciplinary Action

-STATUTE-
      1. Whenever 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, the Court
    will enter an order suspending that member from practice before
    this Court and affording the member an opportunity to show cause,
    within 40 days, why a disbarment order should not be entered. Upon
    response, or if no response is timely filed, the Court will enter
    an appropriate order.
      2. 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, the Court may take any appropriate
    disciplinary action against any attorney who is admitted to
    practice before it for conduct unbecoming a member of the Bar or
    for failure to comply with these Rules or any Rule or order of the
    Court.

-End-



-CITE-
    28 USC APPENDIX Rule 9                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART II. ATTORNEYS AND COUNSELORS

-HEAD-
    Rule 9. Appearance of Counsel

-STATUTE-
      1. An attorney seeking to file a document in this Court in a
    representative capacity must first be admitted to practice before
    this Court as provided in Rule 5, except that admission to the Bar
    of this Court is not required for an attorney appointed under the
    Criminal Justice Act of 1964, see 18 U.S.C. Sec. 3006A(d)(6), or
    under any other applicable federal statute. The attorney whose
    name, address, and telephone number appear on the cover of a
    document presented for filing is considered 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 shall be clearly identified.
      2. An attorney representing a party who will not be filing a
    document shall enter a separate notice of appearance as counsel of
    record indicating the name of the party represented. A separate
    notice of appearance shall also be entered whenever an attorney is
    substituted as counsel of record in a particular case.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Criminal Justice Act of 1964, referred to in par. 1, 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.

-End-


-CITE-
    28 USC APPENDIX PART III. JURISDICTION ON WRIT
      OF CERTIORARI                                        01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
               PART III. JURISDICTION ON WRIT OF CERTIORARI           

-End-



-CITE-
    28 USC APPENDIX Rule 10                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 10. Considerations Governing Review on Certiorari

-STATUTE-
      Review on a writ of certiorari is not a matter of right, but of
    judicial discretion. A petition for a writ of certiorari will be
    granted only for compelling reasons. The following, although
    neither controlling nor fully measuring the Court's discretion,
    indicate the character of the reasons the Court considers:
        (a) a United States court of appeals has entered a decision in
      conflict with the decision of another United States court of
      appeals on the same important matter; has decided an important
      federal question in a way that conflicts with a decision by 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 supervisory power;
        (b) a state court of last resort has decided an important
      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) a state court or a United States court of appeals has
      decided an important question of federal law that has not been,
      but should be, settled by this Court, or has decided an important
      federal question in a way that conflicts with relevant decisions
      of this Court.

    A petition for a writ of certiorari is rarely granted when the
    asserted error consists of erroneous factual findings or the
    misapplication of a properly stated rule of law.

-End-



-CITE-
    28 USC APPENDIX Rule 11                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 11. Certiorari to a United States Court of Appeals Before
      Judgment

-STATUTE-
      A petition for a writ of certiorari to review a case pending in a
    United States court of appeals, before judgment is entered 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 determination in this
    Court. See 28 U.S.C. Sec. 2101(e).

-End-



-CITE-
    28 USC APPENDIX Rule 12                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 12. Review on Certiorari: How Sought; Parties

-STATUTE-
      1. Except as provided in paragraph 2 of this Rule, the petitioner
    shall file 40 copies of a petition for a writ of certiorari,
    prepared as required by Rule 33.1, and shall pay the Rule 38(a)
    docket fee.
      2. A petitioner proceeding in forma pauperis under Rule 39 shall
    file an original and 10 copies of a petition for a writ of
    certiorari prepared as required by Rule 33.2, together with an
    original and 10 copies of the motion for leave to proceed in forma
    pauperis. A copy of the motion shall precede and be attached to
    each copy of the petition. An inmate confined in an institution, if
    proceeding in forma pauperis and not represented by counsel, need
    file only an original petition and motion.
      3. Whether prepared under Rule 33.1 or Rule 33.2, the petition
    shall comply in all respects with Rule 14 and shall be submitted
    with proof of service as required by Rule 29. The case then will be
    placed on the docket. It is the petitioner's duty to notify all
    respondents promptly, on a form supplied by the Clerk, of the date
    of filing, the date the case was placed on the docket, and the
    docket number of the case. The notice shall be served as required
    by Rule 29.
      4. 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 not shown on the
    petition as joined therein at the time the petition is filed may
    not later join in that petition. When two or more judgments 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 judgments suffices. A
    petition for a writ of certiorari may not be joined with any other
    pleading, except that any motion for leave to proceed in forma
    pauperis shall be attached.
      5. No more than 30 days after a case has been placed on the
    docket, a respondent seeking to file a conditional cross-petition
    (i.e., a cross-petition that otherwise would be untimely) shall
    file, with proof of service as required by Rule 29, 40 copies of
    the cross-petition prepared as required by Rule 33.1, except that a
    cross-petitioner proceeding in forma pauperis under Rule 39 shall
    comply with Rule 12.2. The cross-petition shall comply in all
    respects with this Rule and Rule 14, except that material already
    reproduced in the appendix to the opening petition need not be
    reproduced again. A cross-petitioning respondent shall pay the Rule
    38(a) docket fee or submit a motion for leave to proceed in forma
    pauperis. The cover of the cross-petition shall indicate clearly
    that it is a conditional cross-petition. The cross-petition then
    will be placed on the docket, subject to the provisions of Rule
    13.4. It is the cross-petitioner's duty to notify all
    cross-respondents promptly, on a form supplied by the Clerk, of the
    date of filing, the date the cross-petition was placed on the
    docket, and 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, except
    that any motion for leave to proceed in forma pauperis shall be
    attached. The time to file a conditional cross-petition will not be
    extended.
      6. All parties to the proceeding in the court whose judgment is
    sought to be reviewed are deemed parties entitled to file documents
    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 have no interest in the outcome of the petition. A
    copy of such 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 notifying the Clerk promptly, with
    service on the other parties, of an intention to remain a party.
    All parties other than the petitioner are considered respondents,
    but any respondent who supports the position of a petitioner shall
    meet the petitioner's time schedule for filing documents, except
    that a response supporting the petition shall be filed within 20
    days after the case is placed on the docket, and that time will not
    be extended. Parties who file no document will not qualify for any
    relief from this Court.
      7. The clerk of the court having possession of the record shall
    keep it until notified by the Clerk of this Court to certify and
    transmit it. In any document filed with this Court, a party may
    cite or quote from the record, even if it has not been 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, have 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 requests otherwise. The record may consist of certified
    copies, but if the lower court is of the view that original
    documents of any kind should be seen by this Court, that court may
    provide by order for the transport, safekeeping, and return of such
    originals.

-End-



-CITE-
    28 USC APPENDIX Rule 13                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 13. Review on Certiorari: Time for Petitioning

-STATUTE-
      1. Unless otherwise provided by law, 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 or a United States court of
    appeals (including the United States Court of Appeals for the Armed
    Forces) is timely when it is filed with the Clerk of this Court
    within 90 days after entry of the judgment. A petition for a writ
    of certiorari seeking review of a judgment of a lower state court
    that is subject to discretionary review by the state court of last
    resort is timely when it is filed with the Clerk within 90 days
    after entry of the order denying discretionary review.
      2. The Clerk will not file any petition for a writ of certiorari
    that is jurisdictionally out of time. See, e.g., 28 U.S.C. Sec.
    2101(c).
      3. The time to file a petition for a writ of certiorari runs from
    the date of entry of the judgment or order sought to be reviewed,
    and not from the issuance date of the mandate (or its equivalent
    under local practice). But if a petition for rehearing is timely
    filed in the lower court by any party, the time to file 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,
    if the petition for rehearing is granted, the subsequent entry of
    judgment.
      4. A cross-petition for a writ of certiorari is timely when it is
    filed with the Clerk as provided in paragraphs 1, 3, and 5 of this
    Rule, or in Rule 12.5. However, a conditional cross-petition (which
    except for Rule 12.5 would be untimely) will not be granted unless
    another party's timely petition for a writ of certiorari is
    granted.
      5. For good cause, a Justice may extend the time to file a
    petition for a writ of certiorari for a period not exceeding 60
    days. An application to extend the time to file shall set out the
    basis for jurisdiction in this Court, identify the judgment sought
    to be reviewed, include a copy of the opinion and any order
    respecting rehearing, and set out specific reasons why an extension
    of time is justified. The application must be filed with the Clerk
    at least 10 days before the date the petition is due, except in
    extraordinary circumstances. For the time and manner of presenting
    the application, see Rules 21, 22, 30, and 33.2. An application to
    extend the time to file a petition for a writ of certiorari is not
    favored.

-End-



-CITE-
    28 USC APPENDIX Rule 14                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 14. Content of a Petition for a Writ of Certiorari

-STATUTE-
      1. A petition for a writ of certiorari shall contain, in the
    order indicated:
        (a) The questions presented for review, expressed concisely in
      relation to the circumstances of the case, without unnecessary
      detail. The questions should be short and should not be
      argumentative or repetitive. If the petitioner or respondent is
      under a death sentence that may be affected by the disposition of
      the petition, the notation "capital case" shall precede the
      questions presented. The questions shall be set out on the first
      page following the cover, and no other information may appear on
      that page. The statement of any question presented is deemed to
      comprise every subsidiary question fairly included therein. Only
      the questions set out 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 caption of the case
      contains the names of all the parties), and a corporate
      disclosure statement as required by Rule 29.6.
        (c) If the petition exceeds five pages, a table of contents and
      a table of cited authorities.
        (d) Citations of the official and unofficial reports of the
      opinions and orders entered in the case by courts or
      administrative agencies.
        (e) A concise statement of the basis for jurisdiction in this
      Court, showing:
          (i) the date the judgment or order sought to be reviewed was
        entered (and, if applicable, a statement that the petition is
        filed under this Court's Rule 11);
          (ii) the date of any order respecting rehearing, and the date
        and terms of any order granting an extension of time to file
        the petition for a writ of certiorari;
          (iii) express reliance on Rule 12.5, when a cross-petition
        for a writ of certiorari is filed under that Rule, and the date
        of docketing of the petition for a writ of certiorari in
        connection with which the cross-petition is filed;
          (iv) the statutory provision believed to confer on this Court
        jurisdiction to review on a writ of certiorari the judgment or
        order in question; and
          (v) if applicable, a statement that the notifications
        required by Rule 29.4(b) or (c) have been made.

        (f) The constitutional provisions, treaties, statutes,
      ordinances, and regulations involved in the case, set out
      verbatim with appropriate citation. If the provisions involved
      are lengthy, their citation alone suffices at this point, and
      their pertinent text shall be set out in the appendix referred to
      in subparagraph 1(i).
        (g) A concise statement of the case setting out the facts
      material to consideration of the questions presented, and also
      containing the following:
          (i) If review of a state-court judgment is sought,
        specification of the stage in the proceedings, both in the
        court of first instance and in the appellate courts, when the
        federal questions sought to be reviewed were raised; the method
        or manner of raising them and the way in which they were passed
        on by those courts; and pertinent quotations of specific
        portions of the record or summary thereof, with specific
        reference to the places in the record where the matter appears
        (e.g., court opinion, ruling on exception, portion of court's
        charge and exception thereto, assignment of error), so as to
        show that the federal question was timely and properly raised
        and that this Court has jurisdiction to review the judgment on
        a writ of certiorari. When the portions of the record relied on
        under this subparagraph are voluminous, they shall be included
        in the appendix referred to in subparagraph 1(i).
          (ii) If review of a judgment of a United States court of
        appeals is sought, the basis for federal jurisdiction in the
        court of first instance.

        (h) A direct and concise argument amplifying the reasons relied
      on for allowance of the writ. See Rule 10.
        (i) An appendix containing, in the order indicated:
          (i) the opinions, orders, findings of fact, and conclusions
        of law, whether written or orally given and transcribed,
        entered in conjunction with the judgment sought to be reviewed;
          (ii) any other relevant opinions, orders, findings of fact,
        and conclusions of law entered in the case by courts or
        administrative agencies, and, if reference thereto is necessary
        to ascertain the grounds of the judgment, 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) material required by subparagraphs 1(f) or 1(g)(i); and
          (vi) any other material the petitioner believes essential to
        understand the petition.

    If the material required by this subparagraph is voluminous, it may
    be presented in a separate volume or volumes with appropriate
    covers.
      2. All contentions in support of a petition for a writ of
    certiorari shall be set out in the body of the petition, as
    provided in subparagraph 1(h) of this Rule. No separate brief in
    support of a petition for a writ of certiorari may be filed, and
    the Clerk will not file any petition for a writ of certiorari to
    which any supporting brief is annexed or appended.
      3. A petition for a writ of certiorari should be stated briefly
    and in plain terms and may not exceed the page limitations
    specified in Rule 33.
      4. The failure of a petitioner to present with accuracy, brevity,
    and clarity whatever is essential to ready and adequate
    understanding of the points requiring consideration is sufficient
    reason for the Court to deny a petition.
      5. If the Clerk determines that a petition submitted timely and
    in good faith is in a form that does not comply with this Rule or
    with Rule 33 or Rule 34, the Clerk will return it with a letter
    indicating the deficiency. A corrected petition received no more
    than 60 days after the date of the Clerk's letter will be deemed
    timely.

-End-



-CITE-
    28 USC APPENDIX Rule 15                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 15. Briefs in Opposition; Reply Briefs; Supplemental Briefs

-STATUTE-
      1. A brief in opposition to a petition for a writ of certiorari
    may be filed by the respondent in any case, but is not mandatory
    except in a capital case, see Rule 14.1(a), or when ordered by the
    Court.
      2. A brief in opposition should be stated briefly and in plain
    terms and may not exceed the page limitations specified in Rule 33.
    In addition to presenting other arguments for denying the petition,
    the brief in opposition should address any perceived misstatement
    of fact or law in the petition that bears on what issues properly
    would be before the Court if certiorari were granted. Counsel are
    admonished that they have an obligation to the Court to point out
    in the brief in opposition, and not later, any perceived
    misstatement made in the petition. Any objection to consideration
    of a question presented based on what occurred in the proceedings
    below, if the objection does not go to jurisdiction, may be deemed
    waived unless called to the Court's attention in the brief in
    opposition.
      3. Any brief in opposition shall be filed within 30 days after
    the case is placed on the docket, unless the time is extended by
    the Court or a Justice, or by the Clerk under Rule 30.4. Forty
    copies shall be filed, except that a respondent proceeding in forma
    pauperis under Rule 39, including an inmate of an institution,
    shall file the number of copies required for a petition by such a
    person under Rule 12.2, together with a motion for leave to proceed
    in forma pauperis, a copy of which shall precede and be attached to
    each copy of the brief in opposition. If the petitioner is
    proceeding in forma pauperis, the respondent may file an original
    and 10 copies of a brief in opposition prepared as required by Rule
    33.2. Whether prepared under Rule 33.1 or Rule 33.2, the brief in
    opposition shall comply with the requirements of Rule 24 governing
    a respondent's brief, except that no summary of the argument is
    required. A brief in opposition may not be joined with any other
    pleading, except that any motion for leave to proceed in forma
    pauperis shall be attached. The brief in opposition shall be served
    as required by Rule 29.
      4. No motion by a respondent to dismiss a petition for a writ of
    certiorari may be filed. Any objections to the jurisdiction of the
    Court to grant a petition for a writ of certiorari shall be
    included in the brief in opposition.
      5. The Clerk will distribute the petition to the Court for its
    consideration upon receiving an express waiver of the right to file
    a brief in opposition, or, if no waiver or brief in opposition is
    filed, upon the expiration of the time allowed for filing. If a
    brief in opposition is timely filed, the Clerk will distribute the
    petition, brief in opposition, and any reply brief to the Court for
    its consideration no less than 10 days after the brief in
    opposition is filed.
      6. Any petitioner may file a reply brief addressed to new points
    raised in the brief in opposition, but distribution and
    consideration by the Court under paragraph 5 of this Rule will not
    be deferred pending its receipt. Forty copies shall be filed,
    except that a petitioner proceeding in forma pauperis under Rule
    39, including an inmate of an institution, shall file the number of
    copies required for a petition by such a person under Rule 12.2.
    The reply brief shall be served as required by Rule 29.
      7. If a cross-petition for a writ of certiorari has been
    docketed, distribution of both petitions will be deferred until the
    cross-petition is due for distribution under this Rule.
      8. 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, new legislation, or other intervening matter not
    available at the time of the party's last filing. A supplemental
    brief shall be restricted to new matter and shall follow, insofar
    as applicable, the form for a brief in opposition prescribed by
    this Rule. Forty copies shall be filed, except that a party
    proceeding in forma pauperis under Rule 39, including an inmate of
    an institution, shall file the number of copies required for a
    petition by such a person under Rule 12.2. The supplemental brief
    shall be served as required by Rule 29.

-End-



-CITE-
    28 USC APPENDIX Rule 16                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-
    Rule 16. Disposition of a Petition for a Writ of Certiorari

-STATUTE-
      1. After considering the documents distributed under Rule 15, the
    Court will enter an appropriate order. The order may be a summary
    disposition on the merits.
      2. Whenever the Court grants a petition for a writ of certiorari,
    the Clerk will prepare, sign, and enter an order to that effect and
    will notify forthwith counsel of record and the court whose
    judgment is to be reviewed. The case then will be scheduled for
    briefing and oral argument. If the record has not previously been
    filed in this Court, the Clerk will request the clerk of the court
    having possession of the record to certify and transmit it. A
    formal writ will not issue unless specially directed.
      3. Whenever the Court denies a petition for a writ of certiorari,
    the Clerk will prepare, sign, and enter an order to that effect and
    will notify forthwith counsel of record and the court whose
    judgment was sought to be reviewed. The order of denial will not be
    suspended pending disposition of a petition for rehearing except by
    order of the Court or a Justice.

-End-


-CITE-
    28 USC APPENDIX PART IV. OTHER JURISDICTION                 01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IV. OTHER JURISDICTION

-HEAD-
                        PART IV. OTHER JURISDICTION                    

-End-



-CITE-
    28 USC APPENDIX Rule 17                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IV. OTHER JURISDICTION

-HEAD-
    Rule 17. Procedure in an Original Action

-STATUTE-
      1. This Rule applies only to an action invoking the Court's
    original jurisdiction under Article III of the Constitution of the
    United States. See also 28 U.S.C. Sec. 1251 and U.S. Const., Amdt.
    11. A petition for an extraordinary writ in aid of the Court's
    appellate jurisdiction shall be filed as provided in Rule 20.
      2. The form of pleadings and motions prescribed by the Federal
    Rules of Civil Procedure is followed. In other respects, those
    Rules and the Federal Rules of Evidence may be taken as guides.
      3. The initial pleading shall be preceded by a motion for leave
    to file, and may be accompanied by a brief in support of the
    motion. Forty copies of each document shall be filed, with proof of
    service. Service shall be as required by Rule 29, 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 initial pleading are filed with the Clerk.
    The Rule 38(a) docket fee shall be paid at that time.
      5. No more than 60 days after receiving the motion for leave to
    file and the initial pleading, an adverse party shall file 40
    copies of any brief in opposition to the motion, with proof of
    service as required by Rule 29. The Clerk will distribute the filed
    documents to the Court for its consideration upon receiving an
    express waiver of the right to file a brief in opposition, or, if
    no waiver or brief is filed, upon the expiration of the time
    allowed for filing. If a brief in opposition is timely filed, the
    Clerk will distribute the filed documents to the Court for its
    consideration no less than 10 days after the brief in opposition is
    filed. A reply brief may be filed, but consideration of the case
    will not be deferred pending its receipt. The Court thereafter may
    grant or deny the motion, set it for oral argument, direct that
    additional documents be filed, or require that other proceedings be
    conducted.
      6. A summons issued out of this Court shall be served on the
    defendant 60 days before the return day specified therein. If the
    defendant does not respond by the return day, the plaintiff may
    proceed ex parte.
      7. Process against a State issued out of this Court shall be
    served on both the Governor and the Attorney General of that State.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Federal Rules of Civil Procedure and Federal Rules of Evidence,
    referred to in par. 2, are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 18                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IV. OTHER JURISDICTION

-HEAD-
    Rule 18. Appeal from a United States District Court

-STATUTE-
      1. When a direct appeal from a decision of a United States
    district court is authorized by law, the appeal is commenced by
    filing a notice of appeal with the clerk of the district court
    within the time provided by law after entry of the judgment sought
    to be reviewed. The time to file may not be extended. The notice of
    appeal shall specify the parties taking the appeal, designate the
    judgment, or part thereof, appealed from and the date of its entry,
    and 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 as required by Rule 29, and proof of
    service shall be filed in the district court together with the
    notice of appeal.
      2. All parties to the proceeding in the district court are deemed
    parties entitled to file documents in this Court, 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. When two or more judgments involving identical or
    closely related questions are sought to be reviewed on appeal from
    the same court, a notice of appeal for each judgment shall be filed
    with the clerk of the district court, but a single jurisdictional
    statement covering all the judgments suffices. Parties who file no
    document will not qualify for any relief from this Court.
      3. No more than 60 days after filing the notice of appeal in the
    district court, the appellant shall file 40 copies of a
    jurisdictional statement and shall pay the Rule 38 docket fee,
    except that an appellant proceeding in forma pauperis under Rule
    39, including an inmate of an institution, shall file the number of
    copies required for a petition by such a person under Rule 12.2,
    together with a motion for leave to proceed in forma pauperis, a
    copy of which shall precede and be attached to each copy of the
    jurisdictional statement. The jurisdictional statement shall
    follow, insofar as applicable, the form for a petition for a writ
    of certiorari prescribed by Rule 14, and shall be served as
    required by Rule 29. The case will then be placed on the docket. It
    is the appellant's duty to notify all appellees promptly, on a form
    supplied by the Clerk, of the date of filing, the date the case was
    placed on the docket, and the docket number of the case. The notice
    shall be served as required by Rule 29. The appendix shall include
    a copy of the notice of appeal showing the date it was filed in the
    district court. For good cause, a Justice may extend the time to
    file a jurisdictional statement for a period not exceeding 60 days.
    An application to extend the time to file a jurisdictional
    statement shall set out the basis for jurisdiction in this Court;
    identify the judgment sought to be reviewed; include a copy of the
    opinion, any order respecting rehearing, and the notice of appeal;
    and set out specific reasons why 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. No more than 30 days after a case has been placed on the
    docket, an appellee seeking to file a conditional cross-appeal
    (i.e., a cross-appeal that otherwise would be untimely) shall file,
    with proof of service as required by Rule 29, a jurisdictional
    statement that complies in all respects (including number of copies
    filed) with paragraph 3 of this Rule, except that material already
    reproduced in the appendix to the opening jurisdictional statement
    need not be reproduced again. A cross-appealing appellee shall pay
    the Rule 38 docket fee or submit a motion for leave to proceed in
    forma pauperis. The cover of the cross-appeal shall indicate
    clearly that it is a conditional cross-appeal. The cross-appeal
    then will be placed on the docket. It is the cross-appellant's duty
    to notify all cross-appellees promptly, on a form supplied by the
    Clerk, of the date of filing, the date the cross-appeal was placed
    on the docket, and the docket number of the cross-appeal. The
    notice shall be served as required by Rule 29. A cross-appeal may
    not be joined with any other pleading, except that any motion for
    leave to proceed in forma pauperis shall be attached. The time to
    file a cross-appeal will not be extended.
      5. After a notice of appeal has been filed in the district court,
    but before the case is placed on this Court's docket, the parties
    may dismiss the appeal by stipulation filed in the district court,
    or the district court may dismiss the appeal on the appellant's
    motion, with notice to all parties. If a notice of appeal has been
    filed, but the case has not been placed on this Court's docket
    within the time prescribed for docketing, the district court may
    dismiss the appeal on the appellee's motion, with notice to all
    parties, and may make any just order with respect to costs. If the
    district court has denied the appellee's motion to dismiss the
    appeal, the appellee may move this Court to docket and dismiss the
    appeal by filing an original and 10 copies of a motion presented in
    conformity with Rules 21 and 33.2. The motion shall be accompanied
    by proof of service as required by Rule 29, and by a certificate
    from the clerk of the district court, certifying that a notice of
    appeal was filed and that the appellee's motion to dismiss was
    denied. The appellant may not thereafter file a jurisdictional
    statement without special leave of the Court, and the Court may
    allow costs against the appellant.
      6. Within 30 days after the case is placed on this Court's
    docket, the appellee may file a motion to dismiss, to affirm, or in
    the alternative to affirm or dismiss. Forty copies of the motion
    shall be filed, except that an appellee proceeding in forma
    pauperis under Rule 39, including an inmate of an institution,
    shall file the number of copies required for a petition by such a
    person under Rule 12.2, together with a motion for leave to proceed
    in forma pauperis, a copy of which shall precede and be attached to
    each copy of the motion to dismiss, to affirm, or in the
    alternative to affirm or dismiss. The motion shall follow, insofar
    as applicable, the form for a brief in opposition prescribed by
    Rule 15, and shall comply in all respects with Rule 21.
      7. The Clerk will distribute the jurisdictional statement to the
    Court for its consideration upon receiving an express waiver of the
    right to file a motion to dismiss or to affirm or, if no waiver or
    motion is filed, upon the expiration of the time allowed for
    filing. If a motion to dismiss or to affirm is timely filed, the
    Clerk will distribute the jurisdictional statement, motion, and any
    brief opposing the motion to the Court for its consideration no
    less than 10 days after the motion is filed.
      8. Any appellant may file a brief opposing a motion to dismiss or
    to affirm, but distribution and consideration by the Court under
    paragraph 7 of this Rule will not be deferred pending its receipt.
    Forty copies shall be filed, except that an appellant proceeding in
    forma pauperis under Rule 39, including an inmate of an
    institution, shall file the number of copies required for a
    petition by such a person under Rule 12.2. The brief shall be
    served as required by Rule 29.
      9. If a cross-appeal has been docketed, distribution of both
    jurisdictional statements will be deferred until the cross-appeal
    is due for distribution under this Rule.
      10. 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. A supplemental brief shall
    be restricted to new matter and shall follow, insofar as
    applicable, the form for a brief in opposition prescribed by Rule
    15. Forty copies shall be filed, except that a party proceeding in
    forma pauperis under Rule 39, including an inmate of an
    institution, shall file the number of copies required for a
    petition by such a person under Rule 12.2. The supplemental brief
    shall be served as required by Rule 29.
      11. The clerk of the district court shall retain possession of
    the record until notified by the Clerk of this Court to certify and
    transmit it. See Rule 12.7.
      12. After considering the documents distributed under this Rule,
    the Court may dispose summarily of the appeal on the merits, note
    probable jurisdiction, or postpone consideration of jurisdiction
    until a hearing of the case on the merits. If not disposed of
    summarily, the case stands 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. If the record has not previously been
    filed in this Court, the Clerk of this Court will request the clerk
    of the court in possession of the record to certify and transmit
    it.
      13. If the Clerk determines that a jurisdictional statement
    submitted timely and in good faith is in a form that does not
    comply with this Rule or with Rule 33 or Rule 34, the Clerk will
    return it with a letter indicating the deficiency. If a corrected
    jurisdictional statement is received no more than 60 days after the
    date of the Clerk's letter, its filing will be deemed timely.

-End-



-CITE-
    28 USC APPENDIX Rule 19                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IV. OTHER JURISDICTION

-HEAD-
    Rule 19. Procedure on a Certified Question

-STATUTE-
      1. A United States court of appeals may certify to this Court a
    question or proposition of law on which it seeks instruction for
    the proper decision of a case. The certificate 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 shall be stated
    separately and with precision. The certificate shall be prepared as
    required by Rule 33.2 and shall be signed by the clerk of the court
    of appeals.
      2. When a question is certified by a United States court of
    appeals, this Court, on its own motion or that of a party, may
    consider and decide the entire matter in controversy. See 28 U.S.C.
    Sec. 1254(2).
      3. When a question is certified, the Clerk will notify the
    parties and docket the case. Counsel shall then enter their
    appearances. After docketing, the Clerk will submit the certificate
    to the Court for a preliminary examination to determine whether the
    case should be briefed, set for argument, or dismissed. No brief
    may be filed until the preliminary examination of the certificate
    is completed.
      4. If the Court orders the case briefed or set for argument, the
    parties will be notified and permitted to file briefs. The Clerk of
    this Court then will request the clerk of the court in possession
    of the record to certify and transmit it. Any portion of the record
    to which the parties wish to direct the Court's particular
    attention should be printed in a joint appendix, prepared in
    conformity with Rule 26 by the appellant or petitioner in the court
    of appeals, but the fact that any part of the record has not been
    printed does not prevent the parties or the Court from relying on
    it.
      5. A brief on the merits in a case involving a certified question
    shall comply with Rules 24, 25, and 33.1, except that the brief for
    the party who is the appellant or petitioner below shall be filed
    within 45 days of the order requiring briefs or setting the case
    for argument.

-End-



-CITE-
    28 USC APPENDIX Rule 20                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IV. OTHER JURISDICTION

-HEAD-
    Rule 20. Procedure on a Petition for an Extraordinary Writ

-STATUTE-
      1. Issuance by the Court of an extraordinary writ authorized by
    28 U.S.C. Sec. 1651(a) is not a matter of right, but of discretion
    sparingly exercised. To justify the granting of any such writ, the
    petition must show that the writ will be in aid of the Court's
    appellate jurisdiction, that exceptional circumstances warrant 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. A petition seeking a writ authorized by 28 U.S.C. Sec.
    1651(a), Sec. 2241, or Sec. 2254(a) shall be prepared in all
    respects as required by Rules 33 and 34. 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 copies of the petition are filed with the Clerk and
    the docket fee is paid, except that a petitioner proceeding in
    forma pauperis under Rule 39, including an inmate of an
    institution, shall file the number of copies required for a
    petition by such a person under Rule 12.2, together with a motion
    for leave to proceed in forma pauperis, a copy of which shall
    precede and be attached to each copy of the petition. The petition
    shall be served as required by Rule 29 (subject to subparagraph
    4(b) of this Rule).
      3. (a) A petition seeking a writ of prohibition, a writ of
    mandamus, or both in the alternative shall state the name and
    office or function of every person against whom relief is sought
    and shall set out with particularity why the relief sought is not
    available in any other court. A copy of the judgment with respect
    to which the writ is sought, including any related opinion, shall
    be appended to the petition together with any other document
    essential to understanding the petition.
      (b) The petition shall be served on every party to the proceeding
    with respect to which relief is sought. Within 30 days after the
    petition is placed on the docket, a party shall file 40 copies of
    any brief or briefs in opposition thereto, which shall comply fully
    with Rule 15. If a party named as a respondent does not wish to
    respond to the petition, that party may so advise the Clerk and all
    other parties by letter. All persons served are deemed respondents
    for all purposes in the proceedings in this Court.
      4. (a) A petition seeking a writ of habeas corpus shall comply
    with the requirements of 28 U.S.C. Secs. 2241 and 2242, and in
    particular with the provision in the last paragraph of Sec. 2242,
    which requires 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 out specifically how and where
    the petitioner has exhausted available remedies in the state courts
    or otherwise comes within the provisions of 28 U.S.C. Sec. 2254(b).
    To justify the granting of a writ of habeas corpus, the petitioner
    must show that exceptional circumstances warrant the exercise of
    the Court's discretionary powers, and that adequate relief cannot
    be obtained in any other form or from any other court. This writ is
    rarely granted.
      (b) Habeas corpus proceedings, except in capital cases, are 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, or in a capital case, 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. Sec. 2241(b), is an adjudication on the merits, and
    therefore does not preclude further application to another court
    for the relief sought.
      5. The Clerk will distribute the documents to the Court for its
    consideration when a brief in opposition under subparagraph 3(b) of
    this Rule has been filed, when a response under subparagraph 4(b)
    has been ordered and filed, when the time to file has expired, or
    when the right to file has been expressly waived.
      6. If the Court orders the case set for argument, the Clerk will
    notify the parties whether additional briefs are required, when
    they shall be filed, and, if the case involves a petition for a
    common-law writ of certiorari, that the parties shall prepare a
    joint appendix in accordance with Rule 26.

-End-


-CITE-
    28 USC APPENDIX PART V. MOTIONS AND APPLICATIONS            01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART V. MOTIONS AND APPLICATIONS

-HEAD-
                     PART V. MOTIONS AND APPLICATIONS                 

-End-



-CITE-
    28 USC APPENDIX Rule 21                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART V. MOTIONS AND APPLICATIONS

-HEAD-
    Rule 21. Motions to the Court

-STATUTE-
      1. Every motion to the Court shall clearly state its purpose and
    the facts on which it is based and may present legal argument in
    support thereof. No separate brief may be filed. A motion should be
    concise and shall comply with any applicable page limits. Rule 22
    governs an application addressed to a single Justice.
      2. (a) A motion in any action within the Court's original
    jurisdiction shall comply with Rule 17.3.
      (b) A motion to dismiss as moot (or a suggestion of mootness), a
    motion for leave to file a brief as amicus curiae, and any motion
    the granting of which would dispose 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 prepared as required by Rule
    33.1, and 40 copies shall be filed, except that a movant proceeding
    in forma pauperis under Rule 39, including an inmate of an
    institution, shall file a motion prepared as required by Rule 33.2,
    and shall file the number of copies required for a petition by such
    a person under Rule 12.2. The motion shall be served as required by
    Rule 29.
      (c) Any other motion to the Court shall be prepared as required
    by Rule 33.2; the moving party shall file an original and 10
    copies. The Court subsequently may order the moving party to
    prepare the motion as required by Rule 33.1; in that event, the
    party shall file 40 copies.
      3. A motion to the Court shall be filed with the Clerk and shall
    be accompanied by proof of service as required by Rule 29. No
    motion may 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 on a motion will not be permitted
    unless the Court so directs.
      4. Any response to a motion shall be filed as promptly as
    possible considering the nature of the relief sought and any
    asserted need for emergency action, and, in any event, within 10
    days of receipt, unless the Court or a Justice, or the Clerk under
    Rule 30.4, orders otherwise. A response to a motion prepared as
    required by Rule 33.1, except a response to a motion for leave to
    file an amicus curiae brief (see Rule 37.5), shall be prepared in
    the same manner if time permits. In an appropriate case, the Court
    may act on a motion without waiting for a response.

-End-



-CITE-
    28 USC APPENDIX Rule 22                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART V. MOTIONS AND APPLICATIONS

-HEAD-
    Rule 22. Applications to Individual Justices

-STATUTE-
      1. An application addressed to an individual Justice shall be
    filed with the Clerk, who will transmit it promptly to the Justice
    concerned if an individual Justice has authority to grant the
    sought relief.
      2. The original and two copies of any application addressed to an
    individual Justice shall be prepared as required by Rule 33.2, and
    shall be accompanied by proof of service as required by Rule 29.
      3. An application shall be addressed to the Justice allotted to
    the Circuit from 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.
      4. A Justice denying an application will note the denial thereon.
    Thereafter, unless action thereon is restricted by law to the
    Circuit Justice or is untimely under Rule 30.2, the party making an
    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 is without
    prejudice, a renewed application is not favored. Renewed
    application is made by a letter to the Clerk, designating the
    Justice to whom the application is to be directed, and accompanied
    by 10 copies of the original application and proof of service as
    required by Rule 29.
      5. A Justice to whom an application for a stay or for bail is
    submitted may refer it to the Court for determination.
      6. The Clerk will advise all parties concerned, by appropriately
    speedy means, of the disposition made of an application.

-End-



-CITE-
    28 USC APPENDIX Rule 23                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART V. MOTIONS AND APPLICATIONS

-HEAD-
    Rule 23. Stays

-STATUTE-
      1. A stay may be granted by a Justice as permitted by law.
      2. A party to a judgment sought to be reviewed may present to a
    Justice an application to stay the enforcement of that judgment.
    See 28 U.S.C. Sec. 2101(f).
      3. An application for a stay shall set out with particularity why
    the relief sought is not available from any other court or judge.
    Except in the most extraordinary circumstances, an application for
    a stay will not be entertained unless the relief requested was
    first sought in the appropriate court or courts below or from a
    judge or judges thereof. An application for a stay shall 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 shall
    set out specific reasons why a stay is justified. The form and
    content of an application for a stay are governed by Rules 22 and
    33.2.
      4. A 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 will 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.

-End-


-CITE-
    28 USC APPENDIX PART VI. BRIEFS ON THE MERITS
      AND ORAL ARGUMENT                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-
              PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT          

-End-



-CITE-
    28 USC APPENDIX Rule 24                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-
    Rule 24. Briefs on the Merits: In General

-STATUTE-
      1. A brief on the merits for a petitioner or an appellant shall
    comply in all respects with Rules 33.1 and 34 and shall contain in
    the order here indicated:
        (a) The questions presented for review under Rule 14.1(a). The
      questions shall be set out on the first page following the cover,
      and no other information may appear on that page. The phrasing of
      the questions presented need not be identical with that 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 under review (unless the caption of the case in this
      Court contains the names of all parties). Any amended corporate
      disclosure statement as required by Rule 29.6 shall be placed
      here.
        (c) If the brief exceeds five pages, a table of contents and a
      table of cited authorities.
        (d) Citations of the official and unofficial reports of the
      opinions and orders entered in the case by courts and
      administrative agencies.
        (e) A concise statement of the basis for jurisdiction in this
      Court, including the statutory provisions and time factors on
      which jurisdiction rests.
        (f) The constitutional provisions, treaties, statutes,
      ordinances, and regulations involved in the case, set out
      verbatim with appropriate citation. If the provisions involved
      are lengthy, their citation alone suffices at this point, and
      their pertinent text, if not already set out in the petition for
      a writ of certiorari, jurisdictional statement, or an appendix to
      either document, shall be set out in an appendix to the brief.
        (g) A concise statement of the case, setting out the facts
      material to the consideration of the questions presented, with
      appropriate references to the joint appendix, e.g., App. 12, or
      to the record, e.g., Record 12.
        (h) A summary of the argument, suitably paragraphed. The
      summary should be a clear and concise condensation of the
      argument made in the body of the brief; 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 presented and citing the authorities and statutes relied on.
        (j) A conclusion specifying with particularity the relief the
      party seeks.

      2. A brief on the merits for a respondent or an appellee shall
    conform to the foregoing requirements, except that items required
    by subparagraphs 1(a), (b), (d), (e), (f), and (g) of this Rule
    need not be included unless the respondent or appellee is
    dissatisfied with their presentation by the opposing party.
      3. A brief on the merits may not exceed the page limitations
    specified in Rule 33.1(g). An appendix to a brief may include only
    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
    applicable to the brief for 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 out in
    any brief shall indicate 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 shall be indicated, e.g., Pl. Exh. 14, Record
    199, 2134.
      6. A brief shall be concise, logically arranged with proper
    headings, and free of irrelevant, immaterial, or scandalous matter.
    The Court may disregard or strike a brief that does not comply with
    this paragraph.

-End-



-CITE-
    28 USC APPENDIX Rule 25                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-
    Rule 25. Briefs on the Merits: Number of Copies and Time to File

-STATUTE-
      1. The petitioner or appellant shall file 40 copies of the brief
    on the merits within 45 days of the order granting the writ of
    certiorari, noting probable jurisdiction, or postponing
    consideration of jurisdiction. Any respondent or appellee who
    supports the petitioner or appellant shall meet the petitioner's or
    appellant's time schedule for filing documents.
      2. The respondent or appellee shall file 40 copies of the brief
    on the merits within 35 days after the brief for the petitioner or
    appellant is filed.
      3. The petitioner or appellant shall file 40 copies of the reply
    brief, if any, within 35 days after the brief for the respondent or
    appellee is filed, but any reply brief must actually be received by
    the Clerk not later than one week before the date of oral argument.
    Any respondent or appellee supporting the petitioner or appellant
    may file a reply brief.
      4. The time periods stated in paragraphs 1 and 2 of this Rule may
    be extended as provided in Rule 30. An application to extend the
    time to file a brief on the merits is not favored. If a case is
    advanced for hearing, the time to file briefs on the merits may be
    abridged as circumstances require pursuant to an order of the Court
    on its own motion or that of a party.
      5. A party wishing to present late authorities, newly enacted
    legislation, or other intervening matter that was not available in
    time to be included in a brief may file 40 copies of a supplemental
    brief, restricted to such 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. After a case has been argued or submitted, the Clerk will not
    file any brief, except that of a party filed by leave of the Court.
      7. The Clerk will not file any brief that is not accompanied by
    proof of service as required by Rule 29.

-End-



-CITE-
    28 USC APPENDIX Rule 26                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-
    Rule 26. Joint Appendix

-STATUTE-
      1. Unless the Clerk has allowed the parties to use the deferred
    method described in paragraph 4 of this Rule, the petitioner or
    appellant, within 45 days after entry of the order granting the
    writ of certiorari, noting probable jurisdiction, or postponing
    consideration of jurisdiction, shall file 40 copies of a joint
    appendix, prepared as required by Rule 33.1. The joint appendix
    shall contain: (1) the relevant docket entries in all the courts
    below; (2) any relevant pleadings, jury instructions, findings,
    conclusions, or opinions; (3) the judgment, order, or decision
    under review; and (4) any other parts of the record that the
    parties particularly wish to bring to the Court's attention. Any of
    the foregoing items already 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, that was prepared as required by
    Rule 33.1, 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 as required
    by Rule 29.
      2. The parties are encouraged to agree on the contents of the
    joint appendix. In the absence of agreement, the petitioner or
    appellant, within 10 days after entry of the order granting the
    writ of certiorari, noting probable jurisdiction, or postponing
    consideration of jurisdiction, shall serve on the respondent or
    appellee a designation of parts of the record to be included in the
    joint appendix. Within 10 days after receiving the designation, a
    respondent or appellee who considers the parts of the record so
    designated insufficient shall serve on 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 Court has permitted the respondent or
    appellee to proceed in forma pauperis, the petitioner or appellant
    may seek by motion to be excused from printing portions of the
    record the petitioner or appellant considers 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,
    and counsel may refer in 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
    immediately shall 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 as required by Rule 29. Unless the parties
    agree otherwise, the cost of producing the joint appendix shall be
    paid initially 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 is taxed as a cost
    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 these costs on that party.
      4. (a) On the parties' request, the Clerk may allow preparation
    of the joint appendix to be deferred until after the briefs have
    been filed. In that event, the petitioner or appellant shall file
    the joint appendix no more than 14 days after receiving the brief
    for 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. Deferral of the joint appendix is not favored.
      (b) If the deferred method is used, the briefs on the merits may
    refer to the pages of the record. In that event, the joint appendix
    shall include in brackets on each page thereof the page number of
    the record where that material may be found. A party wishing to
    refer directly to the pages of the joint appendix may serve and
    file copies of its brief prepared as required by Rule 33.2 within
    the time provided by Rule 25, with appropriate references to the
    pages of the record. In that event, within 10 days after the joint
    appendix is filed, copies of the brief prepared as required by Rule
    33.1 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, 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 shall be prefaced by a table of contents
    showing the parts of the record that it contains, in the order in
    which the parts are set out, with references to the pages of the
    joint appendix at which each part begins. The relevant docket
    entries shall be set out after the table of contents, followed by
    the other parts of the record 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 that is set out. Omissions in the transcript
    or in any other document printed in the joint appendix shall be
    indicated by asterisks. Immaterial formal matters (e.g., captions,
    subscriptions, acknowledgments) 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 is regarded as an exhibit for the purposes of this
    paragraph.
      7. The Court, on its own motion or that of a party, 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, the time limits specified in this Rule may be
    shortened or extended by the Court or a Justice, or by the Clerk
    under Rule 30.4.

-End-



-CITE-
    28 USC APPENDIX Rule 27                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-
    Rule 27. Calendar

-STATUTE-
      1. From time to time, the Clerk will prepare a calendar of cases
    ready for argument. A case ordinarily will not be called for
    argument less than two weeks after the brief on the merits for 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. The Court, on its own motion or that of a party, may order
    that two or more cases involving the same or related questions be
    argued together as one case or on such other terms as the Court may
    prescribe.

-End-



-CITE-
    28 USC APPENDIX Rule 28                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-
    Rule 28. Oral Argument

-STATUTE-
      1. Oral argument should emphasize and clarify the written
    arguments in the briefs on the merits. Counsel should assume that
    all Justices have read the briefs before oral argument. Oral
    argument read from a prepared text is not favored.
      2. The petitioner or appellant shall open and may conclude the
    argument. A cross-writ of certiorari or cross-appeal will be argued
    with the initial writ of certiorari or appeal as one case in the
    time allowed for that one case, and the Court will advise the
    parties who shall open and close.
      3. Unless the Court directs otherwise, each side is allowed
    one-half hour for argument. Counsel is not required to use all the
    allotted time. Any request for additional time to argue shall be
    presented by motion under Rule 21 no more than 15 days after the
    petitioner's or appellant's brief on the merits is filed, and shall
    set out specifically and concisely 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 leave
    of the Court on motion filed no more than 15 days after the
    respondent's or appellee's brief on the merits is filed. Any
    request for divided argument shall be presented by motion under
    Rule 21 and shall set out specifically and concisely why more than
    one attorney should be allowed to argue. Divided argument is not
    favored.
      5. Regardless of the number of counsel participating in oral
    argument, counsel making the opening argument shall 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 a brief has not 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 filed as
    provided in Rule 37 may argue orally on the side of a party, with
    the consent of that party. In the absence of consent, counsel for
    an amicus curiae may seek leave of the Court to argue orally by a
    motion setting out specifically and concisely why oral argument
    would provide assistance to the Court not otherwise available. Such
    a motion will be granted only in the most extraordinary
    circumstances.

-End-


-CITE-
    28 USC APPENDIX PART VII. PRACTICE AND PROCEDURE            01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
                     PART VII. PRACTICE AND PROCEDURE                 

-End-



-CITE-
    28 USC APPENDIX Rule 29                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 29. Filing and Service of Documents; Special Notifications;
      Corporate Listing

-STATUTE-
      1. Any document required or permitted to be presented to the
    Court or to a Justice shall be filed with the Clerk.
      2. A document is timely filed if it is received by the Clerk
    within the time specified for filing; or if it is sent to the Clerk
    through the United States Postal Service by first-class mail
    (including express or priority mail), postage prepaid, and bears a
    postmark, other than a commercial postage meter label, showing that
    the document was mailed on or before the last day for filing; or if
    it is delivered on or before the last day for filing to a
    third-party commercial carrier for delivery to the Clerk within 3
    calendar days. If submitted by an inmate confined in an
    institution, a document is timely filed if it is deposited in the
    institution's internal mail system on or before the last day for
    filing and is accompanied by a notarized statement or declaration
    in compliance with 28 U.S.C. Sec. 1746 setting out the date of
    deposit and stating that first-class postage has been prepaid. If
    the postmark is missing or not legible, or if the third-party
    commercial carrier does not provide the date the document was
    received by the carrier, the Clerk will require the person who sent
    the document to submit a notarized statement or declaration in
    compliance with 28 U.S.C. Sec. 1746 setting out the details of the
    filing and stating that the filing took place on a particular date
    within the permitted time.
      3. Any document required by these Rules to be served may be
    served personally, by mail, or by third-party commercial carrier
    for delivery within 3 calendar days on each party to the proceeding
    at or before the time of filing. If the document has been prepared
    as required by Rule 33.1, three copies shall be served on each
    other party separately represented in the proceeding. If the
    document has been prepared as required by Rule 33.2, service of a
    single copy on each other separately represented party suffices. If
    personal service is made, it shall consist of delivery at the
    office of the counsel of record, either to counsel or to an
    employee therein. If service is by mail or third-party commercial
    carrier, it shall consist of depositing the document with the
    United States Postal Service, with no less than first-class postage
    prepaid, or delivery to the carrier for delivery within 3 calendar
    days, addressed to counsel of record at the proper address. When a
    party is not represented by counsel, service shall be made on the
    party, personally, by mail, or by commercial carrier. Ordinarily,
    service on a party must be by a manner at least as expeditious as
    the manner used to file the document with the Court.
      4. (a) If the United States or any federal department, office,
    agency, officer, or employee is a party to be served, service shall
    be made on the Solicitor General of the United States, Room 5614,
    Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC
    20530-0001. When an agency of the United States that is a party is
    authorized by law to appear before this Court on its own behalf, or
    when an officer or employee of the United States is a party, the
    agency, officer, or employee shall be served in addition to the
    Solicitor General.
      (b) In any proceeding in this Court in which the
    constitutionality of an Act of Congress is drawn into question, and
    neither the United States nor any federal department, office,
    agency, officer, or employee is a party, the initial document filed
    in this Court shall recite that 28 U.S.C. Sec. 2403(a) may apply
    and shall be served on the Solicitor General of the United States,
    Room 5614, Department of Justice, 950 Pennsylvania Ave., N.W.,
    Washington, DC 20530-0001. In such a proceeding from any court of
    the United States, as defined by 28 U.S.C. Sec. 451, the initial
    document also shall state whether that court, pursuant to 28 U.S.C.
    Sec. 2403(a), certified to the Attorney General the fact that the
    constitutionality of an Act of Congress was drawn into question.
    See Rule 14.1(e)(v).
      (c) In any proceeding in this Court in which the
    constitutionality of any statute of a State is drawn into question,
    and neither the State nor any agency, officer, or employee thereof
    is a party, the initial document filed in this Court shall recite
    that 28 U.S.C. Sec. 2403(b) may apply and shall be served on the
    Attorney General of that State. In such a proceeding from any court
    of the United States, as defined by 28 U.S.C. Sec. 451, the initial
    document also shall state whether that court, pursuant to 28 U.S.C.
    Sec. 2403(b), certified to the State Attorney General the fact that
    the constitutionality of a statute of that State was drawn into
    question. See Rule 14.1(e)(v).
      5. Proof of service, when required by these Rules, shall
    accompany the document when it is presented to the Clerk for filing
    and shall be separate from it. Proof of service shall 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. Proof of service may
    consist of any one of the following:
        (a) an acknowledgment of service, signed by counsel of record
      for the party served, and bearing the address and telephone
      number of such counsel;
        (b) a certificate of service, 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 or by an attorney appointed to represent that
      party under the Criminal Justice Act of 1964, see 18 U.S.C. Sec.
      3006A(d)(6), or under any other applicable federal statute; or
        (c) a notarized affidavit or declaration in compliance with 28
      U.S.C. Sec. 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 and not an attorney appointed to represent
      a party under the Criminal Justice Act of 1964, see 18 U.S.C.
      Sec. 3006A(d)(6), or under any other applicable federal statute.

      6. Every document, except a joint appendix or amicus curiae
    brief, filed by or on behalf of a nongovernmental corporation shall
    contain a corporate disclosure statement identifying the parent
    corporations and listing any publicly held company that owns 10% or
    more of the corporation's stock. If there is no parent or publicly
    held company owning 10% or more of the corporation's stock, a
    notation to this effect shall be included in the document. If a
    statement has been included in a document filed earlier in the
    case, reference may be made to the earlier document (except when
    the earlier statement appeared in a document prepared under Rule
    33.2), and only amendments to the statement to make it current need
    be included in the document being filed.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Criminal Justice Act of 1964, referred to in par. 5(b) and
    (c), 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.

-End-



-CITE-
    28 USC APPENDIX Rule 30                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 30. Computation and Extension of Time

-STATUTE-
      1. In the computation of 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 begins to run is not included. The last day of the period
    shall be included, unless it is a Saturday, Sunday, federal legal
    holiday listed in 5 U.S.C. Sec. 6103, or day on which the Court
    building is closed by order of the Court or the Chief Justice, in
    which event the period shall extend until the end of the next day
    that is not a Saturday, Sunday, federal legal holiday, or day on
    which the Court building is closed.
      2. Whenever a Justice or the Clerk is empowered by law or these
    Rules to extend the time to file any document, an application
    seeking an extension shall be filed within the period sought to be
    extended. An application to extend the time to file a petition for
    a writ of certiorari or to file a jurisdictional statement must be
    filed at least 10 days before the specified final filing date as
    computed under these Rules; if filed less than 10 days before the
    final filing date, such application will not be granted except in
    the most extraordinary circumstances.
      3. An application to extend the time to file a petition for a
    writ of certiorari, to file a jurisdictional statement, to file a
    reply brief on the merits, or to file a petition for rehearing
    shall be made to an individual Justice and presented and served on
    all other parties as provided by Rule 22. Once denied, such an
    application may not be renewed.
      4. An application to extend the time to file any document or
    paper other than those specified in paragraph 3 of this Rule may be
    presented in the form of a letter to the Clerk setting out specific
    reasons why an extension of time is justified. The letter shall be
    served on all other parties as required by Rule 29. The application
    may be acted on by the Clerk in the first instance, and any party
    aggrieved by the Clerk's action may request that the application be
    submitted to a Justice or to the Court. The Clerk will report
    action under this paragraph to the Court as instructed.

-End-



-CITE-
    28 USC APPENDIX Rule 31                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 31. Translations

-STATUTE-
      Whenever any record to be transmitted to this Court contains
    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 advise the
    Clerk of this Court immediately so that this Court may order that a
    translation be supplied and, if necessary, printed as part of the
    joint appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 32                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 32. Models, Diagrams, Exhibits, and Lodgings

-STATUTE-
      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, exhibits, and other items placed in the
    custody of the Clerk shall be removed by the parties no more than
    40 days after the case is decided. If this is not done, the Clerk
    will notify counsel to remove the articles forthwith. If they are
    not removed within a reasonable time thereafter, the Clerk will
    destroy them or dispose of them in any other appropriate way.
      3. Any party or amicus curiae desiring to lodge non-record
    material with the Clerk must set out in a letter, served on all
    parties, a description of the material proposed for lodging and the
    reasons why the non-record material may properly be considered by
    the Court. The material proposed for lodging may not be submitted
    until and unless requested by the Clerk.

-End-



-CITE-
    28 USC APPENDIX Rule 33                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 33. Document Preparation: Booklet Format; 8 1/2 - by 11-Inch
      Paper Format

-STATUTE-
      1. Booklet Format: (a) Except for a document expressly permitted
    by these Rules to be submitted on 8 1/2 - by 11-inch paper, see,
    e.g., Rules 21, 22, and 39, every document filed with the Court
    shall be prepared in a 6 1/8 - by 9 1/4 -inch booklet format using
    a standard typesetting process (e.g., hot metal, photocomposition,
    or computer typesetting) to produce text printed in typographic (as
    opposed to typewritten) characters. The process used must produce a
    clear, black image on white paper. The text must be reproduced with
    a clarity that equals or exceeds the output of a laser printer.
      (b) The text of every booklet-format document, including any
    appendix thereto, shall be typeset in Roman 11-point or larger type
    with 2-point or more leading between lines. The typeface should be
    similar to that used in current volumes of the United States
    Reports. Increasing the amount of text by using condensed or
    thinner typefaces, or by reducing the space between letters, is
    strictly prohibited. Type size and face shall be consistent
    throughout. Quotations in excess of 50 words shall be indented. The
    typeface of footnotes shall be 9-point or larger with 2-point or
    more leading between lines. The text of the document must appear on
    both sides of the page.
      (c) Every booklet-format document shall be produced on paper that
    is opaque, unglazed, and not less than 60 pounds in weight, and
    shall have margins of at least three-fourths of an inch on all
    sides. The text field, including footnotes, may not exceed 4 1/8 
    by 7 1/8  inches. The document shall be bound firmly in at least
    two places along the left margin (saddle stitch or perfect binding
    preferred) so as to permit easy opening, and no part of the text
    should be obscured by the binding. Spiral, plastic, metal, or
    string bindings may not be used. Copies of patent documents, except
    opinions, may be duplicated in such size as is necessary in a
    separate appendix.
      (d) Every booklet-format document, shall comply with the page
    limits shown on the chart in subparagraph 1(g) of this Rule. The
    page limits do not include the questions presented, the list of
    parties and the corporate disclosure statement, the table of
    contents, the table of cited authorities, or any appendix. Verbatim
    quotations required under Rule 14.1(f), if set out in the text of a
    brief rather than in the appendix, are also excluded. For good
    cause, the Court or a Justice may grant leave to file a document in
    excess of the page limits, but application for such leave is not
    favored. An application to exceed page limits shall comply with
    Rule 22 and must be received by the Clerk at least 15 days before
    the filing date of the document in question, except in the most
    extraordinary circumstances.
      (e) Every booklet-format document shall have a suitable cover
    consisting of 65-pound weight paper in the color indicated on the
    chart in subparagraph 1(g) of this Rule. If a separate appendix to
    any document is filed, the color of its cover shall be the same as
    that of the cover of the document it supports. The Clerk will
    furnish a color chart upon request. Counsel shall ensure that there
    is adequate contrast between the printing and the color of the
    cover. A document filed by the United States, or by any other
    federal party represented by the Solicitor General, shall have a
    gray cover. A joint appendix, answer to a bill of complaint, motion
    for leave to intervene, and any other document not listed in
    subparagraph 1(g) of this Rule shall have a tan cover.
      (f) Forty copies of a booklet-format document shall be filed.
      (g) Page limits and cover colors for booklet-format documents are
    as follows:


                          Type of Document                Page      Color 
                                                         Limits      of   
                                                                    Cover 
    --------------------------------------------------------------------
         (i)  Petition for a Writ of Certiorari                           
               (Rule 14); Motion for Leave to File a                      
               Bill of Complaint and Brief in Support                     
               (Rule 17.3); Jurisdictional Statement                      
               (Rule 18.3); Petition for an                               
               Extraordinary Writ (Rule 20.2)                             
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                              30          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                     white
        (ii)  Brief in Opposition (Rule 15.3); Brief                      
               in Opposition to Motion for Leave to                       
               File an Original Action (Rule 17.5);                       
               Motion to Dismiss or Affirm (Rule                          
               18.6); Brief in Opposition to Mandamus                     
               or Prohibition (Rule 20.3(b));                             
               Response to a Petition for Habeas                          
               Corpus (Rule 20.4)                                         
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                              30          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                    orange
       (iii)  Reply to Brief in Opposition (Rules                         
               15.6 and 17.5); Brief Opposing a                           
               Motion to Dismiss or Affirm (Rule 18.8)                     
                                                                          
                                                                          
                                                              10          
                                                                          
                                                                          
                                                                       tan
        (iv)  Supplemental Brief (Rules 15.8, 17,                         
               18.10, and 25.5)                                           
                                                              10          
                                                                       tan
         (v)  Brief on the Merits for Petitioner or                       
               Appellant (Rule 24); Exceptions by                         
               Plaintiff to Report of Special Master                      
               (Rule 17)                                                  
                                                                          
                                                                          
                                                                          
                                                              50          
                                                                          
                                                                          
                                                                     light
                                                                      blue
        (vi)  Brief on the Merits for Respondent or                       
               Appellee (Rule 24.2); Brief on the                         
               Merits for Respondent or Appellee                          
               Supporting Petitioner or Appellant                         
               (Rule 12.6); Exceptions by Party Other                     
               Than Plaintiff to Report of Special                        
               Master (Rule 17)                                           
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                              50          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                     light
                                                                   red    
       (vii)  Reply Brief on the Merits (Rule 24.4)                       
                                                              20          
                                                                    yellow
      (viii)  Reply to Plaintiff's Exceptions to                          
               Report of Special Master (Rule 17)                         
                                                                          
                                                              50          
                                                                          
                                                                    orange
        (ix)  Reply to Exceptions by Party Other                          
               Than Plaintiff to Report of Special                        
               Master (Rule 17)                                           
                                                                          
                                                                          
                                                              50          
                                                                          
                                                                          
                                                                    yellow
         (x)  Brief for an Amicus Curiae at the                           
               Petition Stage (Rule 37.2)                                 
                                                              20          
                                                                     cream
        (xi)  Brief for an Amicus Curiae in Support                       
               of the Plaintiff, Petitioner, or                           
               Appellant, or in Support of Neither                        
               Party, on the Merits or in an Original                     
               Action at the Exceptions Stage (Rule                       
               37.3)                                                      
                                                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                              30          
                                                                          
                                                                          
                                                                          
                                                                          
                                                                     light
                                                                     green
       (xii)  Brief for an Amicus Curiae in Support                       
               of the Defendant, Respondent, or                           
               Appellee, on the Merits or in an                           
               Original Action at the Exceptions                          
               Stage (Rule 37.3)                                          
                                                                          
                                                                          
                                                                          
                                                                          
                                                              30          
                                                                          
                                                                          
                                                                          
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      (xiii)  Petition for Rehearing (Rule 44)                            
                                                              10          
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    --------------------------------------------------------------------

      2. 8 1/2 - by 11-Inch Paper Format: (a) The text of every
    document, including any appendix thereto, expressly permitted by
    these Rules to be presented to the Court on 8 1/2 - by 11-inch
    paper shall appear double spaced, except for indented quotations,
    which shall be single spaced, on opaque, unglazed, white paper. The
    document shall be stapled or bound at the upper left-hand corner.
    Copies, if required, shall be produced on the same type of paper
    and shall be legible. The original of any such document (except a
    motion to dismiss or affirm under Rule 18.6) shall be signed by the
    party proceeding pro se or by counsel of record who must be a
    member of the Bar of this Court or an attorney appointed under the
    Criminal Justice Act of 1964, see 18 U.S.C. Sec. 3006A(d)(6), or
    under any other applicable federal statute. Subparagraph 1(g) of
    this Rule does not apply to documents prepared under this
    paragraph.
      (b) Page limits for documents presented on 8 1/2 - by 11-inch
    paper are: 40 pages for a petition for a writ of certiorari,
    jurisdictional statement, petition for an extraordinary writ, brief
    in opposition, or motion to dismiss or affirm; and 15 pages for a
    reply to a brief in opposition, brief opposing a motion to dismiss
    or affirm, supplemental brief, or petition for rehearing. The page
    exclusions specified in subparagraph 1(d) of this Rule apply.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Criminal Justice Act of 1964, referred to in par. 2(a), 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.

-End-



-CITE-
    28 USC APPENDIX Rule 34                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 34. Document Preparation: General Requirements

-STATUTE-
      Every document, whether prepared under Rule 33.1 or Rule 33.2,
    shall comply with the following provisions:
      1. Each document shall bear on its cover, in the order indicated,
    from the top of the page:
        (a) the docket number of the case or, if there is none, a space
      for one;
        (b) the name of this Court;
        (c) the caption of the case as appropriate in this Court;
        (d) the nature of the proceeding and the name of the court from
      which the action is brought (e.g., "On 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");
        (e) the title of the document (e.g., "Petition for Writ of
      Certiorari," "Brief for Respondent," "Joint Appendix");
        (f) the name of the attorney who is counsel of record for the
      party concerned (who must be a member of the Bar of this Court
      except as provided in Rule 33.2), and on whom service is to be
      made, with a notation directly thereunder identifying the
      attorney as counsel of record and setting out counsel's office
      address and telephone number. Only one counsel of record may be
      noted on a single document. The names of other members of the Bar
      of this Court or of the bar of the highest court of a State
      acting as counsel, and, if desired, their addresses, may be
      added, but counsel of record shall be clearly identified. Names
      of persons other than attorneys admitted to a state bar may not
      be listed, unless the party is appearing pro se, in which case
      the party's name, address, and telephone number shall appear. The
      foregoing shall be displayed in an appropriate typographic manner
      and, except for the identification of counsel, may not be set in
      type smaller than standard 11-point, if the document is prepared
      as required by Rule 33.1.

      2. Every document exceeding five pages (other than a joint
    appendix), whether prepared under Rule 33.1 or Rule 33.2, shall
    contain a table of contents and a table of cited authorities (i.e.,
    cases alphabetically arranged, constitutional provisions, statutes,
    treatises, and other materials) with references to the pages in the
    document where such authorities are cited.
      3. The body of every document shall bear at its close the name of
    counsel of record and such other counsel, identified on the cover
    of the document in conformity with subparagraph 1(g) of this Rule,
    as may be desired.

-End-



-CITE-
    28 USC APPENDIX Rule 35                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 35. Death, Substitution, and Revivor; Public Officers

-STATUTE-
      1. If a party dies after the filing of a petition for a writ of
    certiorari to this Court, or after the filing of a notice of
    appeal, the authorized representative of the deceased party may
    appear and, on motion, be substituted as a party. 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, is entitled to have the
    petition for a writ of certiorari or the appeal dismissed, and if a
    petitioner or appellant, is entitled to proceed as in any other
    case of nonappearance by a respondent or appellee. If the
    substitution of a representative of the deceased is not made within
    six months after the death of the party, 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's authorized
    representative is not subject to that court's jurisdiction,
    proceedings will 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. The parties shall notify
    the Clerk in writing of any such successions. Proceedings following
    the substitution shall be in the name of the substituted party, but
    any misnomer not affecting substantial rights of the parties will
    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.

-End-



-CITE-
    28 USC APPENDIX Rule 36                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 36. Custody of Prisoners in Habeas Corpus Proceedings

-STATUTE-
      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 may not
    transfer custody to another person unless the transfer is
    authorized under this Rule.
      2. Upon application by a custodian, the court, Justice, or judge
    who entered 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 on personal recognizance or bail, as may appear
    appropriate to the court, Justice, or judge who entered the
    decision, or to the court of appeals, this Court, or a judge or
    Justice of either court.
      (b) Pending review of a decision ordering release, the prisoner
    shall be enlarged on personal recognizance or bail, unless the
    court, Justice, or judge who entered the decision, or the court of
    appeals, this Court, or a judge or Justice of either court, orders
    otherwise.
      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, this Court, or a
    judge or Justice of either court, the order is modified or an
    independent order respecting custody, enlargement, or surety is
    entered.

-End-



-CITE-
    28 USC APPENDIX Rule 37                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 37. Brief for an Amicus Curiae

-STATUTE-
      1. An amicus curiae brief that brings to the attention of the
    Court relevant matter not already brought to its attention by the
    parties may be of considerable help to the Court. An amicus curiae
    brief that does not serve this purpose burdens the Court, and its
    filing is not favored.
      2. (a) An amicus curiae brief submitted before the Court's
    consideration of a petition for a writ of certiorari, motion for
    leave to file a bill of complaint, jurisdictional statement, or
    petition for an extraordinary writ, may be filed if accompanied by
    the written consent of all parties, or if the Court grants leave to
    file under subparagraph 2(b) of this Rule. The brief shall be
    submitted within the time allowed for filing a brief in opposition
    or for filing a motion to dismiss or affirm. The amicus curiae
    brief shall specify whether consent was granted, and its cover
    shall identify the party supported.
      (b) When a party to the case has withheld consent, a motion for
    leave to file an amicus curiae brief before the Court's
    consideration of a petition for a writ of certiorari, motion for
    leave to file a bill of complaint, jurisdictional statement, or
    petition for an extraordinary writ may be presented to the Court.
    The motion, prepared as required by Rule 33.1 and as one document
    with the brief sought to be filed, shall be submitted within the
    time allowed for filing an amicus curiae brief, and shall indicate
    the party or parties who have withheld consent and state the nature
    of the movant's interest. Such a motion is not favored.
      3. (a) An amicus curiae brief in a case before the Court for oral
    argument may be filed if accompanied by the written consent of all
    parties, or if the Court grants leave to file under subparagraph
    3(b) of this Rule. The brief shall be submitted within the time
    allowed for filing the brief for the party supported, or if in
    support of neither party, within the time allowed for filing the
    petitioner's or appellant's brief. The amicus curiae brief shall
    specify whether consent was granted, and its cover shall identify
    the party supported or indicate whether it suggests affirmance or
    reversal. The Clerk will not file a reply brief for an amicus
    curiae, or a brief for an amicus curiae in support of, or in
    opposition to, a petition for rehearing.
      (b) When a party to a case before the Court for oral argument has
    withheld consent, a motion for leave to file an amicus curiae brief
    may be presented to the Court. The motion, prepared as required by
    Rule 33.1 and as one document with the brief sought to be filed,
    shall be submitted within the time allowed for filing an amicus
    curiae brief, and shall indicate the party or parties who have
    withheld consent and state the nature of the movant's interest.
      4. No motion for leave to file an amicus curiae brief is
    necessary if the brief is presented on behalf of the United States
    by the Solicitor General; on behalf of any agency of the United
    States allowed by law to appear before this Court when submitted by
    the agency's authorized legal representative; on behalf of a State,
    Commonwealth, Territory, or Possession when submitted by its
    Attorney General; or on behalf of a city, county, town, or similar
    entity when submitted by its authorized law officer.
      5. A brief or motion filed under this Rule shall be accompanied
    by proof of service as required by Rule 29, and shall comply with
    the applicable provisions of Rules 21, 24, and 33.1 (except that it
    suffices to set out in the brief the interest of the amicus curiae,
    the summary of the argument, the argument, and the conclusion). A
    motion for leave to file may not exceed five pages. A party served
    with the motion may file an objection thereto, stating concisely
    the reasons for withholding consent; the objection shall be
    prepared as required by Rule 33.2.
      6. Except for briefs presented on behalf of amicus curiae listed
    in Rule 37.4, a brief filed under this Rule shall indicate whether
    counsel for a party authored the brief in whole or in part and
    shall identify every person or entity, other than the amicus
    curiae, its members, or its counsel, who made a monetary
    contribution to the preparation or submission of the brief. The
    disclosure shall be made in the first footnote on the first page of
    text.

-End-



-CITE-
    28 USC APPENDIX Rule 38                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 38. Fees

-STATUTE-
      Under 28 U.S.C. Sec. 1911, the fees charged by the Clerk are:
        (a) for docketing a case on a petition for a writ of certiorari
      or on appeal or for docketing any other proceeding, except a
      certified question or a motion to docket and dismiss an appeal
      under Rule 18.5, $300;
        (b) for filing a petition for rehearing or a motion for leave
      to file a petition for rehearing, $200;
        (c) for reproducing and certifying any record or paper, $1 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 bearing the seal of the Court, $10; and
        (e) for a check paid to the Court, Clerk, or Marshal that is
      returned for lack of funds, $35.

-End-



-CITE-
    28 USC APPENDIX Rule 39                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 39. Proceedings In Forma Pauperis

-STATUTE-
      1. A party seeking to proceed in forma pauperis shall file a
    motion for leave to do so, together with the party's notarized
    affidavit or declaration (in compliance with 28 U.S.C. Sec. 1746)
    in the form prescribed by the Federal Rules of Appellate Procedure,
    Form 4. The motion shall state whether leave to proceed in forma
    pauperis was sought in any other court and, if so, whether leave
    was granted. If the United States district court or the United
    States court of appeals has appointed counsel under the Criminal
    Justice Act of 1964, 18 U.S.C. Sec. 3006A, or under any other
    applicable federal statute, no affidavit or declaration is
    required, but the motion shall cite the statute under which counsel
    was appointed.
      2. If leave to proceed in forma pauperis is sought for the
    purpose of filing a document, the motion, and an affidavit or
    declaration if required, shall be filed together with that document
    and shall comply in every respect with Rule 21. As provided in that
    Rule, it suffices to file an original and 10 copies, unless the
    party is an inmate confined in an institution and is not
    represented by counsel, in which case the original, alone,
    suffices. A copy of the motion, and affidavit or declaration if
    required, shall precede and be attached to each copy of the
    accompanying document.
      3. Except when these Rules expressly provide that a document
    shall be prepared as required by Rule 33.1, every document
    presented by a party proceeding under this Rule shall be prepared
    as required by Rule 33.2 (unless such preparation is impossible).
    Every document shall be legible. While making due allowance for any
    case presented under this Rule by a person appearing pro se, the
    Clerk will not file any document if it does not comply with the
    substance of these Rules or is jurisdictionally out of time.
      4. When the documents required by paragraphs 1 and 2 of this Rule
    are presented to the Clerk, accompanied by proof of service as
    required by Rule 29, they will 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
    shall respond in the same manner and within the same time as in any
    other case of the same nature, except that the filing of an
    original and 10 copies of a response prepared as required by Rule
    33.2, with proof of service as required by Rule 29, suffices. The
    respondent or appellee may challenge the grounds for the motion for
    leave to proceed in forma pauperis in a separate document or in the
    response itself.
      6. Whenever the Court appoints counsel for an indigent party in a
    case set for oral argument, the briefs on the merits submitted by
    that counsel, unless otherwise requested, shall be prepared under
    the Clerk's supervision. The Clerk also will 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, probable
    jurisdiction noted, or consideration of jurisdiction 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, 18 U.S.C. Sec. 3006A, or by any other
    applicable federal statute.
      8. If satisfied that a petition for a writ of certiorari,
    jurisdictional statement, or petition for an extraordinary writ is
    frivolous or malicious, the Court may deny leave to proceed in
    forma pauperis.

-REFTEXT-
                            REFERENCES IN TEXT                        
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 40                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VII. PRACTICE AND PROCEDURE

-HEAD-
    Rule 40. Veterans, Seamen, and Military Cases

-STATUTE-
      1. A veteran suing to establish reemployment rights under any
    provision of law exempting veterans from the payment of fees or
    court costs, may file a motion for leave to proceed on papers
    prepared as required by Rule 33.2. The motion shall ask leave to
    proceed as a veteran and be accompanied by an affidavit or
    declaration setting out the moving party's veteran status. A copy
    of the motion shall precede and be attached to each copy of the
    petition for a writ of certiorari or other substantive document
    filed by the veteran.
      2. A seaman suing under 28 U.S.C. Sec. 1916 may proceed without
    prepayment of fees or costs or furnishing security therefor, but is
    not entitled to proceed under Rule 33.2, except as authorized by
    the Court on separate motion under Rule 39.
      3. An accused person petitioning for a writ of certiorari to
    review a decision of the United States Court of Appeals for the
    Armed Forces under 28 U.S.C. Sec. 1259 may proceed without
    prepayment of fees or costs or furnishing security therefor and
    without filing an affidavit of indigency, but is not entitled to
    proceed on papers prepared as required by Rule 33.2, except as
    authorized by the Court on separate motion under Rule 39.

-End-


-CITE-
    28 USC APPENDIX PART VIII. DISPOSITION OF CASES             01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
                      PART VIII. DISPOSITION OF CASES                  

-End-



-CITE-
    28 USC APPENDIX Rule 41                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
    Rule 41. Opinions of the Court

-STATUTE-
      Opinions of the Court will be released by the Clerk immediately
    upon their announcement from the bench, or as the Court otherwise
    directs. Thereafter, the Clerk will cause the opinions to be issued
    in slip form, and the Reporter of Decisions will prepare them for
    publication in the preliminary prints and bound volumes of the
    United States Reports.

-End-



-CITE-
    28 USC APPENDIX Rule 42                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
    Rule 42. Interest and Damages

-STATUTE-
      1. If a judgment for money in a civil case is affirmed, any
    interest allowed by law is payable from the date the judgment under
    review 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 in cases arising in a state court is allowed at
    the same rate that similar judgments bear interest in the courts of
    the State in which judgment is directed to be entered. Interest in
    cases arising in a court of the United States is allowed at the
    interest rate authorized by law.
      2. When a petition for a writ of certiorari, an appeal, or an
    application for other relief is frivolous, the Court may award the
    respondent or appellee just damages, and single or double costs
    under Rule 43. Damages or costs may be awarded against the
    petitioner, appellant, or applicant, against the party's counsel,
    or against both party and counsel.

-End-



-CITE-
    28 USC APPENDIX Rule 43                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
    Rule 43. Costs

-STATUTE-
      1. If the Court affirms a judgment, the petitioner or appellant
    shall pay costs unless the Court otherwise orders.
      2. If the Court reverses or vacates a judgment, the respondent or
    appellee shall pay costs unless the Court otherwise orders.
      3. The Clerk's fees and the cost 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 are equally
    divided unless the Court otherwise orders, except that if the Court
    decides the whole matter in controversy, as permitted by Rule 19.2,
    costs are allowed as provided in paragraphs 1 and 2 of this Rule.
      5. To the extent permitted by 28 U.S.C. Sec. 2412, costs under
    this Rule are allowed for or against the United States or an
    officer or agent thereof, unless expressly waived or unless the
    Court otherwise orders.
      6. When costs are allowed in this Court, the Clerk will insert an
    itemization of the costs in the body of the mandate or judgment
    sent to the court below. The prevailing side may not submit a bill
    of costs.
      7. In extraordinary circumstances the Court may adjudge double
    costs.

-End-



-CITE-
    28 USC APPENDIX Rule 44                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
    Rule 44. Rehearing

-STATUTE-
      1. Any petition for the rehearing of any judgment or decision of
    the Court on the merits shall be filed within 25 days after entry
    of the judgment or decision, unless the Court or a Justice shortens
    or extends the time. The petitioner shall file 40 copies of the
    rehearing petition and shall pay the filing fee prescribed by Rule
    38(b), except that a petitioner proceeding in forma pauperis under
    Rule 39, including an inmate of an institution, shall file the
    number of copies required for a petition by such a person under
    Rule 12.2. The petition shall state its grounds briefly and
    distinctly and shall be served as required by Rule 29. The petition
    shall be presented together with certification of counsel (or of a
    party unrepresented by counsel) that it is presented in good faith
    and not for delay; one copy of the certificate shall bear the
    signature of counsel (or of a party unrepresented by counsel). A
    copy of the certificate shall follow and be attached to each copy
    of the petition. A petition for rehearing is not subject to oral
    argument and will not be granted except by a majority of the Court,
    at the instance of a Justice who concurred in the judgment or
    decision.
      2. Any petition for the rehearing of an order denying a petition
    for a writ of certiorari or extraordinary writ 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 shall be limited to intervening circumstances of a
    substantial or controlling effect or to other substantial grounds
    not previously presented. The petition shall be presented together
    with certification of counsel (or of a party unrepresented by
    counsel) that it 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 signature of counsel (or
    of a party unrepresented by counsel). The certificate shall be
    found with each copy of the petition. The Clerk will not file a
    petition without a certificate. The petition is not subject to oral
    argument.
      3. The Clerk will not file any response to a petition for
    rehearing unless the Court requests a response. In the absence of
    extraordinary circumstances, the Court will not grant a petition
    for rehearing without first requesting a response.
      4. The Clerk will not file consecutive petitions and petitions
    that are out of time under this Rule.
      5. The Clerk will not file any brief for an amicus curiae in
    support of, or in opposition to, a petition for rehearing.
      6. If the Clerk determines that a petition for rehearing
    submitted timely and in good faith is in a form that does not
    comply with the (!1) Rule or with Rule 33 or Rule 34, the Clerk
    will return it with a letter indicating the deficiency. A corrected
    petition for rehearing received no more than 15 days after the date
    of the Clerk's letter will be deemed timely.


-FOOTNOTE-
    (!1) So in original. Probably should be "this".


-End-



-CITE-
    28 USC APPENDIX Rule 45                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
    Rule 45. Process; Mandates

-STATUTE-
      1. All process of this Court issues in the name of the President
    of the United States.
      2. In a case on review from a state court, the mandate issues 25
    days after entry of the judgment, unless the Court or a Justice
    shortens or extends the time, or unless the parties stipulate that
    it issue sooner. The filing of a petition for rehearing stays the
    mandate until disposition of the petition, unless the Court orders
    otherwise. If the petition is denied, the mandate issues forthwith.
      3. In a case on review from any court of the United States, as
    defined by 28 U.S.C. Sec. 451, a formal mandate does not issue
    unless specially directed; instead, the Clerk of this Court will
    send the clerk of the lower court a copy of the opinion or order of
    this Court and a certified copy of the judgment. The certified copy
    of the judgment, prepared and signed by this Court's Clerk, will
    provide for costs if any are awarded. In all other respects, the
    provisions of paragraph 2 of this Rule apply.

-End-



-CITE-
    28 USC APPENDIX Rule 46                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART VIII. DISPOSITION OF CASES

-HEAD-
    Rule 46. Dismissing Cases

-STATUTE-
      1. At any stage of the proceedings, whenever all parties file
    with the Clerk an agreement in writing that a case be dismissed,
    specifying the terms for payment of costs, and pay to the Clerk any
    fees then due, the Clerk, without further reference to the Court,
    will enter an order of dismissal.
      2. (a) A petitioner or appellant may file a motion to dismiss the
    case, with proof of service as required by Rule 29, tendering to
    the Clerk any fees due and costs payable. No more than 15 days
    after service thereof, an adverse party may file an objection,
    limited to the amount of damages and costs in this Court alleged to
    be payable or to showing that the moving party does not represent
    all petitioners or appellants. The Clerk will not file any
    objection not so limited.
      (b) When the objection asserts that the moving party does not
    represent all the petitioners or appellants, the party moving for
    dismissal may file a reply within 10 days, after which time the
    matter will be submitted to the Court for its determination.
      (c) If no objection is filed - or if upon objection going only to
    the amount of damages and costs in this Court, the party moving for
    dismissal tenders the additional damages and costs in full within
    10 days of the demand therefor - the Clerk, without further
    reference to the Court, will enter an order of dismissal. If, after
    objection as to the amount of damages and costs in this Court, the
    moving party does not respond by a tender within 10 days, the Clerk
    will report the matter to the Court for its determination.
      3. No mandate or other process will issue on a dismissal under
    this Rule without an order of the Court.

-End-


-CITE-
    28 USC APPENDIX PART IX. DEFINITIONS AND
      EFFECTIVE DATE                                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IX. DEFINITIONS AND EFFECTIVE DATE

-HEAD-
                  PART IX. DEFINITIONS AND EFFECTIVE DATE              

-End-



-CITE-
    28 USC APPENDIX Rule 47                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IX. DEFINITIONS AND EFFECTIVE DATE

-HEAD-
    Rule 47. Reference to "State Court" and "State Law"

-STATUTE-
      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. Secs. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 48                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE SUPREME COURT OF THE UNITED STATES
    PART IX. DEFINITIONS AND EFFECTIVE DATE

-HEAD-
    Rule 48. Effective Date of Rules

-STATUTE-
      1. These Rules, adopted January 27, 2003, will be effective May
    1, 2003.
      2. The Rules govern all proceedings after their effective date
    except to the extent that, in the opinion of the Court, their
    application to a pending matter would not be feasible or would work
    an injustice, in which event the former procedure applies.

-End-


-CITE-
    28 USC APPENDIX RULES OF THE UNITED STATES COURT
      OF FEDERAL CLAIMS                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

-HEAD-
            RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS        


-MISC1-
       (REVISED MARCH 19, 2002, EFFECTIVE MAY 1, 2002, AS AMENDED TO
                             JANUARY 19, 2004)

                                                                

-HEAD-
                           GENERAL ORDER NO. 41                       
      IT IS ORDERED this date that the attached rules [set out below]
    are adopted as the Rules of the United States Court of Federal
    Claims effective May 1, 2002. IT IS FURTHER ORDERED that General
    Orders 1 through 39 are revoked effective May 1, 2002.
      March 19, 2002
                    By the Court
                    Lawrence M. Baskir
                    Chief Judge
                              CHANGE OF NAME                          
      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.
                                   RULES                               


-MISC2-
                             TABLE OF CONTENTS                         

                  I. SCOPE OF RULES - ONE FORM OF ACTION              
    Rule                                                     
    1.          Scope and Purpose of Rules.                           
    2.          One Form of Action.                                   

    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
                                AND ORDERS
    3.          Commencement of Action.                               
    3.1.        Transfers and Referrals.                              
    4.          Serving Complaints Upon the United States.            
    4.1.        Serving Orders in Contempt Proceedings.               
    5.          Serving and Filing of Pleadings and Other Papers.     
    5.1.        Proof of Service.                                     
    5.2.        Content of Briefs or Memoranda; Length of Briefs or
                 Memoranda.                                           
    5.3.        Form, Size, and Duplication of all Papers.            
    6.          Time.                                                 
    6.1.        Enlargements of Time.                                 

                        III. PLEADINGS AND MOTIONS                    
    7.          Pleadings Allowed; Form of Motions.                   
    7.1.        Disclosure Statement.                                 
    7.2.        Time for Filing.                                      
    8.          General Rules of Pleading.                            
    9.          Pleading Special Matters.                             
    10.         Form of Pleadings.                                    
    11.         Signing of Pleadings, Motions, and Other Papers;
                 Representations to Court; Sanctions.                 
    12.         Defenses and Objections.                              
    13.         Counterclaim.                                         
    14.         Third-Party Practice.                                 
    15.         Amended and Supplemental Pleadings.                   
    16.         Pretrial Conferences; Scheduling; Management.         

                                IV. PARTIES                            
    17.         Parties Plaintiff and Defendant; Capacity.            
    18.         Joinder of Claims and Remedies.                       
    19.         Joinder of Persons Needed for Just Adjudication.      
    20.         Permissive Joinder of Parties.                        
    21.         Misjoinder and Non-Joinder of Parties.                
    22.         Interpleader. [Not used].                             
    23.         Class Actions.                                        
    23.1.       Derivative Actions by Shareholders.                   
    23.2.       Actions Relating to Unincorporated Associations. [Not
                 used.]                                               
    24.         Intervention.                                         
    25.         Substitution of Parties.                              

                       V. DEPOSITIONS AND DISCOVERY                   
    26.         General Provisions Governing Discovery; Duty of
                 Disclosure.                                          
    27.         Depositions Before Action or Pending Appeal.          
    28.         Persons Before Whom Depositions may be Taken.         
    29.         Stipulations Regarding Discovery Procedure.           
    30.         Depositions Upon Oral Examination.                    
    31.         Depositions Upon Written Questions.                   
    32.         Use of Depositions in Court Proceedings.              
    33.         Interrogatories to Parties.                           
    34.         Production of Documents and Things and Entry Upon
                 Land.                                                
    35.         Physical and Mental Examinations of Persons.          
    36.         Requests for Admission.                               
    37.         Failure to Make Disclosure or Cooperate in Discovery;
                 Sanctions.                                           

                                VI. TRIALS                            
    38.         Jury Trial of Right. [Not used.]                      
    39.         Trial by Jury or by the Court. [Not used.]            
    40.         Setting Cases for Trial.                              
    40.1.       Assignment and Transfer of Cases.                     
    40.2.       Related Cases.                                        
    40.3.       Complaints Against Judges.                            
    41.         Dismissal of Actions.                                 
    42.         Consolidation; Separate Trials.                       
    42.1.       Motions to Consolidate.                               
    43.         Taking of Testimony.                                  
    44.         Proof of Official Record.                             
    44.1.       Determination of Foreign Law.                         
    45.         Subpoena.                                             
    46.         Exceptions Unnecessary.                               
    47.         Selection of Jurors. [Not used.]                      
    48.         Number of Jurors - Participation in Verdict. [Not
                 used.]                                               
    49.         Special Verdicts and Interrogatories. [Not used.]     
    50.         Judgment as a Matter of Law in Jury Trials. [Not
                 used.]                                               
    51.         Instructions to Jury: Objection. [Not used.]          
    52.         Findings by the Court; Judgment on Partial Findings.  
    53.         Masters.                                              

                               VII. JUDGMENT                           
    54.         Judgments; Costs.                                     
    55.         Default.                                              
    56.         Summary Judgment.                                     
    56.1.       Review of Decision on the Basis of Administrative
                 Record.                                              
    56.2.       Remand; Extension or Termination of Stay of
                 Proceedings.                                         
    57.         Declaratory Judgments.                                
    58.         Entry of Judgment.                                    
    58.1.       Notice of Appeal.                                     
    59.         New Trials; Rehearings; Amendment of Judgments;
                 Reconsideration.                                     
    60.         Relief from Judgment or Order.                        
    61.         Harmless Error.                                       
    62.         Stay of Proceedings to Enforce a Judgment.            
    63.         Inability of a Judge to Proceed.                      

                   VIII. PROVISIONAL AND FINAL REMEDIES               
    64.         Seizure of Person or Property. [Not used.]            
    65.         Injunctions.                                          
    65.1.       Security: Proceedings Against Sureties.               
    66.         Receivers Appointed by Federal Courts. [Not used.]    
    67.         Deposit in Court. [Not used.]                         
    68.         Offer of Judgment.                                    
    69.         Execution. [Not used.]                                
    70.         Judgment for Specific Acts; Vesting Title. [Not used.]
    71.         Process in Behalf of and Against Persons Not Parties.
                 [Not used.]                                          

                          IX. SPECIAL PROCEEDINGS                      
    71A.        Condemnation of Property. [Not used.]                 
    72.         Notice of Appeal. [Not used.]                         
    73.         Magistrate Judges; Trial by Consent and Appeal
                 Options. [Not used.]                                 
    74-76.      [Abrogated.]                                          

                            X. COURT AND CLERK                        
    77.         Court and Clerk.                                      
    77.1.       Business Hours, Scheduling and Fees.                  
    77.2.       Authorization to Act on Certain Motions.              
    77.3.       Withdrawal of Papers, Exhibits.                       
    78.         Motions Day. [Not used.]                              
    79.         Books and Records Kept by the Clerk and Entries
                 Therein.                                             
    80.         Record or Transcript as Evidence.                     
    80.1.       Instructions to Reporters.                            

                          XI. GENERAL PROVISIONS                      
    81.         Applicability in General. [Not used.]                 
    82.         Jurisdiction and Venue Unaffected. [Not used.]        
    83.         Rules by Court of Federal Claims; Judge's Directives. 
    83.1.       Attorneys.                                            
    83.2.       Rules of Disciplinary Enforcement.                    
    83.3.       Legal Assistance by Law Students.                     
    83.4.       Advisory Council.                                     
    84.         Forms.                                                
    85.         Title.                                                
    86.         Effective Date.                                       

                                APPENDIX A                            
    CASE MANAGEMENT PROCEDURE.                                        

                                APPENDIX B                            
    VACCINE RULES.                                                    

                                APPENDIX C                            
    PROCEDURE IN PROCUREMENT PROTEST CASES.                           

                                APPENDIX D                            
    PROCEDURE IN CONGRESSIONAL REFERENCE CASES.                       

                                APPENDIX E                            
    PROCEDURE IN CARRIER CASES.                                       

                                APPENDIX F                            
    PROCEDURE IN TAX PARTNERSHIP CASES.                               

                                APPENDIX G                            
    PROCEDURE IN INDIAN CLAIMS COMMISSION CASES.                      

                                APPENDIX H                            
    PROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION.                     

                             APPENDIX OF FORMS                         
    FORM 1.      ADMISSION INSTRUCTIONS.                              
    FORM 2.      COVER SHEET.                                         
    FORM 3A.     REPORTER FORMS.                                      
    FORM 3B.     CERTIFICATE OF REPORTER.                             
    FORM 4.      BILL OF COSTS.                                       
    FORM 5.      EAJA FORM.                                           
    FORM 6.      SUBPOENA.                                            
    FORM 7.      CAPTION OF ALL FILINGS IN VACCINE CASES.             
    FORM 7A.     SUBPOENA IN VACCINE CASES.                           
    FORM 8.      PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES.       
    FORM 9.      APPLICATION FOR ACCESS TO INFORMATION.               
    FORM 10.     APPLICATION FOR ACCESS TO INFORMATION.               
    FORM 11.     SURETY BOND.                                         
    FORM 12.     SUPERSEDEAS BOND.                                    
    FORM 13.     BOND WITH COLLATERAL.                                
                                 * * * * *                            


-HEAD-
            RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS        
      The United States Court of Federal Claims (formerly designated
    United States Claims Court) was created by the Federal Courts
    Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (1982)).
    The court inherited the jurisdiction formerly exercised by the
    United States Court of Claims. Title 28 U.S.C. Sec. 2503(b)
    authorizes the United States Court of Federal Claims to prescribe
    rules of practice and procedure for its proceedings.
      The Federal Rules of Civil Procedure applicable to civil actions
    tried by a United States district court sitting without a jury have
    been incorporated into the following rules to the extent
    appropriate for proceedings in this court.


-MISC3-
                           RULES COMMITTEE NOTE                       
      In this 2002 revision, the court has endeavored to create a set
    of rules that conforms to the Federal Rules of Civil Procedure as
    amended through November 30, 2001, to the extent practicable given
    differences in jurisdiction between the United States district
    courts and the United States Court of Federal Claims. Consistent
    with this objective, interpretation of the court's rules will be
    guided by case law and the Advisory Committee Notes that accompany
    the Federal Rules of Civil Procedure. The court's own Rules
    Committee Notes are intended primarily to state the source of a
    given rule but in some instances also provide interpretive
    guidance.
      Future revisions to these rules will be posted on the court's
    website at www.uscfc.uscourts.gov.

-End-


-CITE-
    28 USC APPENDIX I. SCOPE OF RULES - ONE FORM OF
           ACTION                                          01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
                  I. SCOPE OF RULES - ONE FORM OF ACTION              

-End-



-CITE-
    28 USC APPENDIX Rule 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
    Rule 1. Scope and Purpose of Rules

-STATUTE-
      These rules govern the procedure in the United States Court of
    Federal Claims in all suits. They shall be construed and
    administered to secure the just, speedy, and inexpensive
    determination of every action.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The Rules of the United States Court of Federal Claims are drawn
    under the authority of 28 U.S.C. Secs. 2071(a), (c); 2503(b)
    (generally) and 2521(a) (subpoena and incidental powers). These
    rules may be cited as "RCFC." Rule 1 has been revised to: (i)
    reflect the change in the court's name; (ii) eliminate, as no
    longer necessary, the previous reference to proceedings pending in
    the court on October 1, 1982 - the year of the court's
    establishment; (iii) incorporate the 1993 revision to Rule 1 of the
    Federal Rules of Civil Procedure (FRCP) emphasizing that the rules
    are to be both construed and administered to ensure that civil
    litigation is resolved, not only fairly, but without undue cost and
    delay; (iv) delete (a)(3) for consistency with the federal rules
    (while retaining the substance of this provision in RCFC 83(b),
    which is modeled on FRCP 83(b)); and to move subdivision (b) to the
    preamble, because it is explanatory rather than prescriptive.

-End-



-CITE-
    28 USC APPENDIX Rule 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
    Rule 2. One Form of Action

-STATUTE-
      There shall be one form of action to be known as a "civil
    action."


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 2 is identical to its FRCP counterpart.

-End-


-CITE-
    28 USC APPENDIX II. COMMENCEMENT OF ACTION;
      SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
                                AND ORDERS

-End-



-CITE-
    28 USC APPENDIX Rule 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 3. Commencement of Action

-STATUTE-
      A civil action is commenced by filing a complaint with the court.
    See RCFC 40.2(a).


-MISC1-
                           RULES COMMITTEE NOTE                       
      In the interest of achieving greater uniformity with the
    corresponding federal rule, a number of changes have been made to
    RCFC 3. First, subdivision (a) was fully conformed to the federal
    rule; the reference to RCFC 40.2 calls attention to this court's
    "related case" rule. Second, former subdivision (b), which
    addressed disputes regarding filing dates, was deleted - both in
    the interest of uniformity and in the belief that it was
    inappropriate to include a rule of decision as part of a procedural
    rule. Third, former subdivision (c) (prescribing a cover sheet and
    identifying the number of copies required for filing), was moved to
    RCFC 5.3(d).

-End-



-CITE-
    28 USC APPENDIX Rule 3.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 3.1. Transfers and Referrals

-STATUTE-
      (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, including compliance
      with 28 U.S.C. Sec. 1292(d)(4)(B), 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 RCFC 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 filed in
      the other court, containing the necessary changes in the caption
      and duplicated in conformity with RCFC 5.3, shall be filed with
      the clerk within 28 days after the filing required in subdivision
      (a)(1). 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 shall be made on the United States
      as provided in RCFC 4.
        (3) Procedure. After the filing and service as provided for in
      subdivision (a)(2), 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 RCFC 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. 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 to file a 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 3.1 has no FRCP counterpart. The rule formerly appeared in
    these rules as RCFC 84. The renumbering of RCFC 84 is intended to
    reflect its more logical placement in the organizational structure
    of the court's rules.

-End-



-CITE-
    28 USC APPENDIX Rule 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 4. Serving Complaints Upon the United States

-STATUTE-
      (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).
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The title of the rule is changed to more closely conform to FRCP
    4(i). Other provisions of FRCP 4(i) - those dealing with service
    upon agencies, corporations, or officers of the United States -
    have not been made a part of this court's RCFC 4 because, in this
    court (with the exception of vaccine cases), only the United States
    is properly the named defendant. See RCFC 10(a).

-End-



-CITE-
    28 USC APPENDIX Rule 4.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 4.1. Serving Orders in Contempt Proceedings

-STATUTE-
      An order initiating a contempt proceeding directed at a person
    other than a party shall be served by a United States marshal, a
    deputy United States marshal, or a person specially appointed for
    that purpose, who shall deliver a copy of the order to the person
    named therein. Proof of such service shall be as provided in RCFC
    45(b)(3). All other orders relating to contempt proceedings shall
    be served in the manner prescribed in RCFC 4 (if against an agent
    or attorney of the United States) or in RCFC 5 (if against a
    plaintiff, a plaintiff's representative, or a non-party).


-MISC1-
                           RULES COMMITTEE NOTE                       
      New RCFC 4.1 implements the contempt authority granted to this
    court by Sec. 910 of the Federal Courts Administration Act of 1992,
    Pub. L. No. 102-572, 106 Stat. 4506, 4519-20. That section, now
    codified at 28 U.S.C. Sec. 2521(b), (c) (1994), reads in relevant
    part as follows:
        (b) The United States Court of Federal Claims shall have power
      to punish by fine or imprisonment, at its discretion, such
      contempt of its authority as - 
          (1) misbehavior of any person in its presence or so near
        thereto as to obstruct the administration of justice;
          (2) misbehavior of any of its officers in their official
        transactions; or
          (3) disobedience or resistance to its lawful writ, process,
        order, rule, decree or command.
        (c) The United States Court of Federal Claims shall have
      assistance in the carrying out of its lawful writ, process,
      order, rule, decree, or command as is available to a court of the
      United States. The United States marshal for any district in
      which the Court of Federal Claims is sitting shall, when
      requested by the chief judge of the Court of Federal Claims,
      attend any session of the Court of Federal Claims in such
      district.
      The rule adopts the mode of service specified in FRCP 4.1, which
    requires that service of process, other than a summons, be effected
    upon non-parties through means more formal than mailing. See
    generally FRCP 4.1 Advisory Committee Notes (recognizing a
    distinction in service requirements between parties and
    non-parties); I.A.M. Nat'l Pension Fund v. Wakefield Indus., 699
    F.2d 1254, 1259-62 (D.C. Cir. 1983) (discussing service of contempt
    orders).

-End-



-CITE-
    28 USC APPENDIX Rule 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 5. Serving and Filing of Pleadings and Other Papers

-STATUTE-
      (a) Service: When Required. Except as otherwise provided in these
    rules, every order required by its terms to be served, every
    pleading subsequent to the original complaint unless the court
    otherwise orders, 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) Making Service.
        (1) Service under RCFC 5(a) and 77(d) on a party represented by
      an attorney is made on the attorney unless the court orders
      service on the party.
        (2) Service under RCFC 5(a) is made by:
          (A) Delivering a copy to the person served by:
            (i) handing it to the person;
            (ii) leaving it at the person's office with a clerk or
          other person in charge, or if no one is in charge leaving it
          in a conspicuous place in the office; or
            (iii) if the person has no office or the office is closed,
          leaving it at the person's dwelling house or usual place of
          abode with someone of suitable age and discretion residing
          there.

          (B) Mailing a copy to the last known address of the person
        served. Service by mail is complete on mailing.
          (C) If the person served has no known address, leaving a copy
        with the clerk of the court.
          (D) Delivering a copy by any other means, including
        electronic means, consented to in writing by the person served.
        Service by electronic means is complete on transmission;
        service by other consented means is complete when the person
        making service delivers the copy to the agency designated to
        make delivery.

        (3) Service by electronic means under RCFC 5(b)(2)(D) is not
      effective if the party making service learns that the attempted
      service did not reach the person to be served.

      (c) [Not used.]
      (d) Filing; Certificate of Service. All papers after the
    complaint required to be served upon a party, together with a
    certificate of service, must be filed with the court within a
    reasonable time after the service, but disclosures under RCFC
    26(a)(1) or (2) and the following discovery requests and responses
    must not be filed until they are used in the proceeding or the
    court orders filing: (i) depositions, (ii) interrogatories, (iii)
    requests for documents or to permit entry upon land, and (iv)
    requests for admission, 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 the court. See RCFC
    83.
      (e) Filing with the Court Defined. The filing of papers with the
    court as required by these rules shall be made by filing them with
    the clerk of the court, except that the judge may permit the papers
    to be filed with the judge, in which event the judge shall note
    thereon the filing date and forthwith transmit them to the office
    of the clerk. The court may by an amendment to these rules permit
    papers to be filed, signed, or verified by electronic means that
    are consistent with technical standards, if any, that the Judicial
    Conference of the United States establishes. A paper filed by
    electronic means in compliance with such amendment constitutes a
    written paper for the purpose of applying these rules. The clerk
    shall not refuse to accept for filing any paper presented for that
    purpose solely because it is not presented in proper form as
    required by these rules.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The changes made in RCFC 5 are intended to bring the rule into
    closer conformity with FRCP 5. Thus, in addition to a change in
    sequence, changes in text include the following:
      First, the text of subdivision (b) has been modified to reflect
    the December 1, 2001 changes to the FRCP which significantly affect
    organization and which also make possible consensual service by
    electronic means. In addition, the clause "but filing is not" has
    been deleted from the last sentence of that subdivision. The
    deleted language was not in conformity with the federal rule.
    Filing is not complete on mailing; filing is controlled by
    subdivisions (d) and (e) of this rule.
      Second, subdivision (e) adopts the language of the federal rule
    recognizing the appropriateness of permitting papers to be "filed,
    signed, or verified by electronic means that are consistent with
    technical standards, if any, that the Judicial Conference of the
    United States establishes." It should be noted that no decision has
    yet been made by the court to implement electronic filing. Such a
    decision, when made, will be accomplished through an amendment to
    the rules. Until the issuance of such amendment, the clerk's office
    will not accept electronic filings. Individual chambers, however,
    may allow counsel to transmit "courtesy" copies of filed documents
    by electronic means.
      Third, subdivision (e) also adds the final sentence from FRCP
    5(e) stating that "[t]he clerk shall not refuse to accept for
    filing any paper presented for that purpose solely because it is
    not presented in proper form as required by these rules." The
    addition of this language to the rule is not intended to alter the
    court's practice of treating all non-conforming complaints as filed
    upon receipt in the clerk's office, while referring other
    non-conforming papers received in the clerk's office to a judge for
    instructions as to whether to permit their filing or to require
    counsel's correction of the papers' defects.
      Finally, former subdivision (e) titled, "Proof of Service" does
    not appear in FRCP 5. In order to conform more closely to FRCP 5,
    former subdivision (e) was deleted from this rule and now appears
    as RCFC 5.1.

-End-



-CITE-
    28 USC APPENDIX Rule 5.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 5.1. Proof of Service

-STATUTE-
      (a) 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:
        (1) the day and manner of service;
        (2) the person and/or entity served; and
        (3) the method of service employed, e.g., personal, mail,
      substituted, etc.

      (b) 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 the time of filing, such certificate may be
    filed subsequently.
      (c) 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 5.1 has no FRCP counterpart. The text of this rule formerly
    appeared as subdivision (e) of former RCFC 5.

-End-



-CITE-
    28 USC APPENDIX Rule 5.2                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 5.2. Content of Briefs or Memoranda; Length of Briefs or
      Memoranda

-STATUTE-
      (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 A, the
      first brief or memorandum due shall contain, under proper
      headings and arranged in the following order:
          (A) a table of contents, 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;
          (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 United States Claims Court and
        United States Court of Federal Claims orders and opinions
        published in either the United States Claims Court Reporter or
        the Federal Claims Reporter shall be cited to reporters;
          (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, and is not incorporated into the
        same volume as the brief, there shall be, at the beginning of
        the appendix, 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 shall conform to the requirements set out in
      subdivision (a)(1), except that the items referred to in
      subparagraphs (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).
        (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, a party's initial
      brief or memorandum shall not exceed 40 pages (50 pages for a
      cross-movant) 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'
      (!1) memoranda shall not exceed 20 pages by any process of
      duplication or copying or 30 pages where a response 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).


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 5.2 has no FRCP counterpart. The rule formerly appeared in
    these rules as RCFC 83.1. The renumbering of RCFC 83.1 is intended
    to reflect its more logical placement in the organizational
    structure of the court's rules.
      Several changes have been made to the rule; they include:
      First, the deletion from subdivision (a) of language identifying
    the plaintiff's brief or memorandum as "the first brief or
    memorandum" normally to be filed.
      Second, subparagraphs (A) and (G) of subdivision (a) were revised
    to indicate that any index to a separate appendix should be
    included both at the beginning of the appendix and at the beginning
    of the accompanying brief or memorandum.
      Third, subdivision (b)(4), relating to "a motion for leave to
    exceed the page limitation," was deemed unduly burdensome and was
    therefore stricken.

-FOOTNOTE-
    (!1) So in original.


-End-



-CITE-
    28 USC APPENDIX Rule 5.3                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 5.3. Form, Size, and Duplication of all Papers

-STATUTE-
      (a) General. All papers filed with the clerk shall conform with
    these rules as to methods of duplication, form, size, and number.
      (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, provided that in each instance the
    duplication shall conform to the requirements of subdivision (c) 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. Type size for both text and footnotes shall not be
    smaller than 12 point and margins shall not be less than 1" on all
    sides. 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. Except for submissions of fewer than 50 pages,
    which may be stapled in the upper left-hand margin, all submissions
    must be bound or attached along the entire left margin in book form
    and shall have legible margins when bound or attached. Such pages
    need not be justified on the right margin. All pages, including
    appendices, shall be numbered. Page numbers shall be in large,
    distinct type and shall appear in the center of the bottom margin
    of the page.
      (d) Number of 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 the Appendix of Forms
    (Form 2) utilizing the Cover Sheet Information. Except as provided
    in RCFC 58.1, 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.
      (e) Date. Each paper shall bear the date it is signed on the
    signature page.
      (f) Telephone and Facsimile Numbers. The telephone and facsimile
    numbers (including area code) of the attorney of record must appear
    beneath the signature line of every pleading or other paper.
      (g) Name of Judge. In pleadings and papers other than the
    complaint, the name of the judge assigned to the case shall be
    included under the docket number.


-MISC1-
                           RULES COMMITTEE NOTE                       
      New RCFC 5.3 has no FRCP counterpart. The rule formerly appeared
    in these rules as RCFC 82 and 83. The consolidation and renumbering
    of RCFC 82 and 83 are intended to reflect their more logical
    placement in the organizational structure of the court's rules.
      In addition to the renumbering, the text of former RCFC 82 has
    been modified in several respects: First, subdivision (a) has been
    modified by deleting the last sentence of that subdivision which
    read, "[t]he clerk shall refuse to file any paper which is not in
    substantial conformity with this rule or not in clear type." The
    deletion corresponds to the change made in RCFC 5(e) directing that
    "[t]he clerk shall not refuse to accept for filing any paper
    presented for that purpose solely because it is not presented in
    proper form." However, as noted in the Advisory Committee Note to
    FRCP 5(e), the "clerk may of course advise a party or counsel that
    a particular instrument is not in proper form, and may be directed
    to so inform the court."
      Second, subdivision (c) has been modified to eliminate certain
    redundancies; to fix the type size; and to clarify binding and
    pagination requirements. Appendices will be subject to pagination.
    The binding requirement changes are intended to discourage rubber
    bands, paper clips and other nonsecure binding.
      Third, former subdivision (e), now subdivision (f), has been
    amended to include a requirement listing a facsimile number for the
    attorney of record.
      Fourth, subdivision (d) is an addition to the rule that
    incorporates the "number of copies" requirement that formerly
    appeared as RCFC 83, as well as the requirement formerly found in
    RCFC 3(c) regarding the number of copies to be filed when filing a
    complaint.
      Finally, subdivision (g) is also an added provision. The text of
    this subdivision formerly appeared as part of RCFC 10(a).

-End-



-CITE-
    28 USC APPENDIX Rule 6                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 6. Time

-STATUTE-
      (a) Computation. In computing any period of time prescribed or
    allowed by these rules, by 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 one of the aforementioned days. When the period of time
    prescribed or allowed is less than 11 days, intermediate Saturdays,
    Sundays, and legal holidays shall be excluded in the computation.
    As used in this rule and in RCFC 77(c), "legal holiday" includes
    New Year's Day, Inauguration Day, Birthday of Martin Luther King
    Jr., Washington's Birthday, Memorial Day, Independence Day, Labor
    Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day,
    and any other day appointed as a holiday by the President or the
    Congress of the United States.
      (b) Enlargement. When by these rules or by a notice given
    thereunder or by order of court an act is required or allowed to be
    done at or within a specified time, the court for cause shown may
    at any time in its discretion (1) with or without motion or notice
    order the period enlarged if request therefor is made before the
    expiration of the period originally prescribed or as extended by a
    previous order, or (2) upon motion made after the expiration of the
    specified period permit the act to be done where the failure to act
    was the result of excusable neglect; but it may not extend the time
    for taking any action under RCFC 52(b), 54(d)(1), 59(b), (d), and
    (e), and 60(b), except to the extent and under the conditions
    stated in them.
      (c) [Rescinded in federal rule.]
      (d) [Not used.]
      (e) Additional Time After Service under RCFC 5(b)(2)(B), (C), or
    (D). Whenever a party has the right or is required to do some act
    or take some proceedings within a prescribed period after the
    service of a notice or other paper upon the party, and the notice
    or paper is served upon the party under RCFC 5(b)(2)(B), (C), or
    (D), 3 days shall be added to the prescribed period.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 6 has been changed to conform to FRCP 6. In particular, that
    part of subdivision (b) which specified the content of motions for
    enlargement has been moved to a new RCFC 6.1 "Enlargements of
    Time."

-End-



-CITE-
    28 USC APPENDIX Rule 6.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,
      AND ORDERS                                              

-HEAD-
    Rule 6.1. Enlargements of Time

-STATUTE-
      Every motion for enlargement of time must set forth therein the
    specific number of additional days requested, the day 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 of time must include a
    representation that the moving party has discussed the motion with
    opposing counsel and a statement indicating whether an opposition
    will be filed or, if opposing counsel cannot be consulted, an
    explanation of the efforts that were made to do so.


-MISC1-
                           RULES COMMITTEE NOTE                       
      New RCFC 6.1 has no FRCP counterpart. The text of the new rule
    formerly appeared in these rules as part of RCFC 6(b). However, the
    language in former RCFC 6(b) which addressed the content of the
    reasons offered in support of a motion for enlargement of time has
    been stricken as unnecessary.

-End-


-CITE-
    28 USC APPENDIX III. PLEADINGS AND MOTIONS                  01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
                        III. PLEADINGS AND MOTIONS                    

-End-



-CITE-
    28 USC APPENDIX Rule 7                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 7. Pleadings Allowed; Form of Motions

-STATUTE-
      (a) Pleadings. There shall be a complaint and an answer; 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 RCFC 14. No other pleading shall be allowed,
    except that the court may order a reply to an answer or to a
    third-party answer.
      (b) Motions and Other Papers.
        (1) An application to the court for an order shall be by motion
      which, unless made during a hearing or trial, shall be made in
      writing, shall state with particularity the grounds therefor, and
      shall set forth the relief or order sought. 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 RCFC 5.1, 5.2 and 10(a).
        (3) All motions shall be signed in accordance with RCFC 11. See
      RCFC 5.3(d).

      (c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and
    exceptions for insufficiency of a pleading shall not be used.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor grammatical changes have been introduced.

-End-



-CITE-
    28 USC APPENDIX Rule 7.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 7.1. Disclosure Statement

-STATUTE-
      (a) Who Must File: Nongovernmental Corporate Party. A
    nongovernmental corporate party to an action or proceeding in this
    court must file two copies of a statement that identifies any
    parent corporation and any publicly held corporation that owns 10%
    or more of its stock or states that there is no such corporation.
      (b) Time for Filing; Supplemental Filing. A party must:
        (1) file the RCFC 7.1(a) statement with its first appearance,
      pleading, petition, motion, response, or other request addressed
      to the court, and
        (2) promptly file a supplemental statement upon any change in
      the information that the statement requires.

-SOURCE-
    (As added Sept. 15, 2003.)

-End-



-CITE-
    28 USC APPENDIX Rule 7.2                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 7.2. Time for Filing

-STATUTE-
      (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 RCFC 12(b), 12(c), 56 and 56.1. 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 the
    date of filing and not the 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 RCFC 5.2(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.

-SOURCE-
    (As added Sept. 15, 2003.)


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 7.2 has no FRCP counterpart. The rule formerly appeared in
    these rules as RCFC 83.2 and, following the court's May 1, 2002,
    revision of its rules, as RCFC 7.1. The first renumbering of the
    rule (from RCFC 83.2 to RCFC 7.1) was intended to reflect its more
    logical placement in the organizational structure of the court's
    rules; the second renumbering (from RCFC 7.1 to RCFC 7.2)
    accommodates the court's adoption of FRCP 7.1 effective December 1,
    2002, and preserves the consistency in numbering systems between
    the court's rules and the FRCP.

-End-



-CITE-
    28 USC APPENDIX Rule 8                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 8. General Rules of Pleading

-STATUTE-
      (a) Claims for Relief. A pleading which sets forth a claim for
    relief, whether an original claim, counterclaim, or third-party
    claim, shall contain (1) a short and plain statement of the grounds
    upon which the court's jurisdiction depends, unless the court
    already has jurisdiction and the claim needs no new grounds of
    jurisdiction to support it, (2) a short and plain statement of the
    claim showing that the pleader is entitled to relief, and (3) a
    demand for judgment for the relief the pleader seeks. Relief in the
    alternative or of several different types may be demanded.
      (b) Defenses; Form of Denials. A party shall state in short and
    plain terms the party's defenses to each claim asserted and shall
    admit or deny the averments upon which the adverse party relies. If
    a party is without knowledge or information sufficient to form a
    belief as to the truth of an averment, the party shall so state and
    this has the effect of a denial. Denials shall fairly meet the
    substance of the averments denied. When a pleader intends in good
    faith to deny only a part or a qualification of an averment, the
    pleader shall specify so much of it as is true and material and
    shall deny only the remainder. Unless the pleader intends in good
    faith to controvert all the averments of the preceding pleading,
    the pleader may make denials as specific denials of designated
    averments or paragraphs, or may generally deny all the averments
    except such designated averments or paragraphs as the pleader
    expressly admits; but, when the pleader does so intend to
    controvert all its averments, including averments of the grounds
    upon which the court's jurisdiction depends, the pleader may do so
    by general denial subject to the obligations set forth in RCFC 11.
      (c) Affirmative Defenses. In pleading to a preceding pleading, a
    party shall set forth affirmatively accord and satisfaction,
    arbitration and award, assumption of risk, contributory negligence,
    discharge in bankruptcy, duress, estoppel, failure of
    consideration, fraud, illegality, laches, license, payment,
    release, res judicata, statute of frauds, statute of limitations,
    waiver, and any other matter constituting an avoidance or
    affirmative defense. When a party has mistakenly designated a
    defense as a counterclaim or a counterclaim as a defense, the court
    on terms, if justice so requires, shall treat the pleading as if
    there had been a proper designation.
      (d) Effect of Failure to Deny. Averments in a pleading to which a
    responsive pleading is required, other than those as to the amount
    of damage, are admitted when not denied in the responsive pleading.
    Averments in a pleading to which no responsive pleading is required
    or permitted shall be taken as denied or avoided.
      (e) Pleading to be Concise and Direct; Consistency.
        (1) Each averment of a pleading shall be simple, concise, and
      direct. No technical forms of pleading or motions are required.
        (2) A party may set forth two or more statements of a claim or
      defense alternately or hypothetically, either in one count or
      defense or in separate counts or defenses. When two or more
      statements are made in the alternative and one of them if made
      independently would be sufficient, the pleading is not made
      insufficient by the insufficiency of one or more of the
      alternative statements. A party may also state as many separate
      claims or defenses as the party has regardless of consistency and
      whether based on legal or equitable grounds. All statements shall
      be made subject to the obligations set forth in RCFC 11.

      (f) Construction of Pleadings. All pleadings shall be so
    construed as to do substantial justice.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor changes have been made in subdivisions (b) and (c) to
    conform this rule to FRCP 8. In addition, subdivision (c) was
    amended to require the pleading, as an affirmative defense, of
    assumption of risk and contributory negligence. Although these
    defenses are typically associated with tort claims (i.e., with
    claims outside of this court's jurisdiction), there can be
    circumstances in which reliance on these defenses would be
    appropriate, for example, in congressional reference cases, in some
    aspects of contract litigation, and with respect to counterclaims
    asserted pursuant to 28 U.S.C. Sec. 2508.

-End-



-CITE-
    28 USC APPENDIX Rule 9                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 9. Pleading Special Matters

-STATUTE-
      (a) Capacity. It is not necessary to aver the capacity of a party
    to sue or be sued or the authority of a party to sue or be sued in
    a representative capacity or the legal existence of an organized
    association of persons that is made a party, except to the extent
    required to show the jurisdiction of the court. When a party
    desires to raise an issue as to the legal existence of any party or
    the capacity of any party to sue or be sued or the authority of a
    party to sue or be sued in a representative capacity, the party
    desiring to raise the issue shall do so by specific negative
    averment, which shall include such supporting particulars as are
    peculiarly within the pleader's knowledge.
      (b) Fraud, Mistake, Condition of the Mind. In all averments of
    fraud or mistake, the circumstances constituting fraud or mistake
    shall be stated with particularity. Malice, intent, knowledge, and
    other condition of mind of a person may be averred generally.
      (c) Conditions Precedent. In pleading the performance or
    occurrence of conditions precedent, it is sufficient to aver
    generally that all conditions precedent have been performed or have
    occurred. A denial of performance or occurrence shall be made
    specifically and with particularity.
      (d) Official Document or Act. In pleading an official document or
    official act it is sufficient to aver that the document was issued
    or the act done in compliance with law.
      (e) Judgment. In pleading a judgment or decision of a domestic or
    foreign court, judicial or quasi-judicial tribunal, or of a board
    or officer, it is sufficient to aver the judgment or decision
    without setting forth matter showing jurisdiction to render it.
      (f) Time and Place. For the purpose of testing the sufficiency of
    a pleading, averments of time and place are material and shall be
    considered like all other averments of material matter.
      (g) Special Damage. When items of special damage are claimed,
    they shall be specifically stated.
      (h) 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, address, and
      identification number of the taxpayer or taxpayers appearing on
      the tax return; the date and place the claim for refund was
      filed; and the identification number for each plaintiff, if
      different from the identification number of the taxpayer. A copy
      of the claim for refund shall be annexed to the complaint.
        (7) Inverse Condemnation Suits. In any action for the payment
      of just compensation pursuant to the Fifth Amendment to the
      United States Constitution, identification of the specific
      property interest which plaintiff contends has been taken by the
      United States.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Subdivision (a) (relating to "Capacity") is modified so as to
    conform the text to FRCP 9.
      Subdivision (h)(6) (relating to special requirements applicable
    to complaints in "Tax Refund Suits") is amended by prescribing, as
    additional information to be included as part of a tax refund
    complaint, the following: (i) the taxpayer's or filer's
    identification number and (ii) a copy of the claim for refund.
      Subdivision (h)(7) was added as a means to clarify the nature of
    the property interest asserted to have been taken in an inverse
    condemnation action.

-End-



-CITE-
    28 USC APPENDIX Rule 10                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 10. Form of Pleadings

-STATUTE-
      (a) Caption; Names of Parties. Every pleading shall contain a
    caption setting forth the name of the court, the title of the
    action, the file number, and a designation as in RCFC 7(a). In the
    complaint the title of the action shall include the names of all
    the parties, see RCFC 20(a), the United States being designated as
    the party defendant, 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. (For Notice of Appeal see RCFC 58.1).
      (b) Paragraphs; Separate Statements. All averments of claim or
    defense shall be made in numbered paragraphs, the contents of each
    of which shall be limited as far as practicable to a statement of a
    single set of circumstances; and a paragraph may be referred to by
    number in all succeeding pleadings. Each claim founded upon a
    separate transaction or occurrence and each defense other than
    denials shall be stated in a separate count or defense whenever a
    separation facilitates the clear presentation of the matters set
    forth.
      (c) Adoption by Reference; Exhibits. Statements in a pleading may
    be adopted by reference in a different part of the same pleading or
    in another pleading or in any motion. A copy of any written
    instrument which is an exhibit to a pleading is a part thereof for
    all purposes.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 10 has been changed in minor respects in order to achieve
    closer textual conformity with FRCP 10. The deleted last sentence
    of subdivision (a) was moved to RCFC 5.3.
      The last sentence of former subdivision (c) ("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") was
    omitted as not in conformity with the federal rule, and because it
    was deemed unnecessary.

-End-



-CITE-
    28 USC APPENDIX Rule 11                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 11. Signing of Pleadings, Motions, and Other Papers;
      Representations to Court; Sanctions

-STATUTE-
      (a) Signature. Every pleading, motion, and other paper shall be
    signed by or for the attorney of record in the signing attorney's
    own individual name, or, if the party is not represented by an
    attorney, shall be signed by the party. Each paper shall state the
    signer's address and telephone number, if any. Except when
    otherwise specifically provided by rule or statute, pleadings need
    not be verified or accompanied by affidavit. An unsigned paper
    shall be stricken unless the omission is corrected promptly after
    being called to the attention of the attorney or party.
      (b) Representations to Court. By presenting to the court (whether
    by signing, filing, submitting, or later advocating) a pleading,
    written motion, or other paper, an attorney or unrepresented party
    is certifying that to the best of the person's knowledge,
    information, and belief, formed after an inquiry reasonable under
    the circumstances,
        (1) it is not being presented for any improper purpose, such as
      to harass or to cause unnecessary delay or needless increase in
      the cost of litigation;
        (2) the claims, defenses, and other legal contentions therein
      are warranted by existing law or by a nonfrivolous argument for
      the extension, modification, or reversal of existing law or the
      establishment of new law;
        (3) the allegations and other factual contentions have
      evidentiary support or, if specifically so identified, are likely
      to have evidentiary support after a reasonable opportunity for
      further investigation or discovery; and
        (4) the denials of factual contentions are warranted on the
      evidence or, if specifically so identified, are reasonably based
      on a lack of information or belief.

      (c) Sanctions. If, after notice and a reasonable opportunity to
    respond, the court determines that subdivision (b) has been
    violated, the court may, subject to the conditions stated below,
    impose an appropriate sanction upon the attorneys, law firms, or
    parties that have violated subdivision (b) or are responsible for
    the violation.
        (1) How Initiated.
          (A) By Motion. A motion for sanctions under this rule shall
        be made separately from other motions or requests and shall
        describe the specific conduct alleged to violate subdivision
        (b). It shall be served as provided in RCFC 5, but shall not be
        filed with or presented to the court unless, within 21 days
        after service of the motion (or such other period as the court
        may prescribe), the challenged paper, claim, defense,
        contention, allegation, or denial is not withdrawn or
        appropriately corrected. If warranted, the court may award to
        the party prevailing on the motion the reasonable expenses and
        attorney's fees incurred in presenting or opposing the motion.
        Absent exceptional circumstances, a law firm shall be held
        jointly responsible for violations committed by its partners,
        associates, and employees.
          (B) On Court's Initiative. On its own initiative, the court
        may enter an order describing the specific conduct that appears
        to violate subdivision (b) and directing an attorney, law firm,
        or party to show cause why it has not violated subdivision (b)
        with respect thereto.

        (2) Nature of Sanction; Limitations. A sanction imposed for
      violation of this rule shall be limited to what is sufficient to
      deter repetition of such conduct or comparable conduct by others
      similarly situated. Subject to the limitations in subparagraphs
      (A) and (B), the sanction may consist of, or include, directives
      of a nonmonetary nature, an order to pay a penalty into court,
      or, if imposed on motion and warranted for effective deterrence,
      an order directing payment to the movant of some or all of the
      reasonable attorneys' fees and other expenses incurred as a
      direct result of the violation.
          (A) Monetary sanctions may not be awarded against a
        represented party for a violation of subdivision (b)(2).
          (B) Monetary sanctions may not be awarded on the court's
        initiative unless the court issues its order to show cause
        before a voluntary dismissal or settlement of the claims made
        by or against the party which is, or whose attorneys are, to be
        sanctioned.

        (3) Order. When imposing sanctions, the court shall describe
      the conduct determined to constitute a violation of this rule and
      explain the basis for the sanction imposed.

      (d) Inapplicability to Discovery. Subdivisions (a) through (c) of
    this rule do not apply to disclosures and discovery requests,
    responses, objections, and motions that are subject to the
    provisions of RCFC 26 through 37.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The changes to RCFC 11 reflect the corresponding revision of FRCP
    11 that was introduced in December 1993. For a detailed explanation
    of the reasons for revision of FRCP 11, see 28 U.S.C.A. Rule 11
    Advisory Committee Notes (West Supp. 2001).

-End-



-CITE-
    28 USC APPENDIX Rule 12                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 12. Defenses and Objections - When and How Presented - By
      Pleading or Motion - Motion for Judgment on Pleadings

-STATUTE-
      (a) When Presented.
        (1) The United States shall file its answer to the complaint
      within 60 days after 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.
        (2) Unless a different time is fixed by court order, the
      service of a motion permitted under this rule or RCFC 56 alters
      these periods of time, as follows:
          (A) 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;
          (B) 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) [not used]; (4) insufficiency of process, (5)
    insufficiency of service of process, (6) failure to state a claim
    upon which relief can be granted, (7) failure to join a party under
    RCFC 19. A motion making any of these defenses shall be made before
    pleading if a further pleading is permitted. No defense or
    objection is waived by being joined with one or more other defenses
    or objections in a responsive pleading or motion. If a pleading
    sets forth a claim for relief to which the adverse party is not
    required to serve a responsive pleading, the adverse party may
    assert at the trial any defense in law or fact to that claim for
    relief. If, on a motion asserting the defense numbered (6) to
    dismiss for failure of the pleading to state a claim upon which
    relief can be granted, matters outside the pleading are presented
    to and not excluded by the court, the motion shall be treated as
    one for summary judgment and disposed of as provided in RCFC 56,
    and all parties shall be given reasonable opportunity to present
    all material made pertinent to such a motion by RCFC 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
    RCFC 56, and all parties shall be given reasonable opportunity to
    present all material made pertinent to such a motion by RCFC 56.
      (d) Preliminary Hearings. The defenses specifically enumerated in
    subdivision (b) of this rule, whether made in a pleading or by
    motion, and the motion for judgment mentioned in subdivision (c) of
    this rule shall be heard and determined before trial on application
    of any party, unless the court orders that the hearing and
    determination thereof be deferred until the trial.
      (e) Motion for More Definite Statement. If a pleading to which a
    responsive pleading is permitted is so vague or ambiguous that a
    party cannot reasonably be required to frame a responsive pleading,
    the party may move for a more definite statement before interposing
    a responsive pleading. The motion shall point out the defects
    complained of and the details desired. If the motion is granted and
    the order of the court is not obeyed within 10 days after notice of
    the order or within such other time as the court may fix, the court
    may strike the pleading to which the motion was directed or make
    such order as it deems just.
      (f) Motion to Strike. Upon motion made by a party before
    responding to a pleading or, if no responsive pleading is permitted
    by these rules, upon motion made by a party within 20 days after
    the service of the pleading upon the party or upon the court's own
    initiative at any time, the court may order stricken from any
    pleading any insufficient defense or any redundant, immaterial,
    impertinent, or scandalous matter.
      (g) Consolidation of Defenses in Motion. A party who makes a
    motion under this rule may join with it any other motions herein
    provided for and then available to the party. If a party makes a
    motion under this rule but omits therefrom any defense or objection
    then available to the party which this rule permits to be raised by
    motion, the party shall not thereafter make a motion based on the
    defense or objection so omitted, except a motion as provided in
    subdivision (h)(2) 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; or
      insufficiency of process, or insufficiency of service of process
      is waived (A) if omitted from a motion in the circumstances
      described in subdivision (g), or (B) if it is neither made by
      motion under this rule nor included in a responsive pleading or
      an amendment thereof permitted by RCFC 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 RCFC 19, and an objection of failure to state a legal
      defense to a claim, may be made in any pleading permitted or
      ordered under RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      To more closely parallel FRCP 12, subdivisions (b) and (h) of the
    court's rule are enlarged by adding the defense of "insufficiency
    of service of process" and the defense of "failure to join a party
    indispensable under Rule 19." Further, as an aid to practitioners,
    most of whom are familiar with practice in the district courts, the
    enumeration of defenses in subdivision (b) has been brought into
    conformity with the corresponding subdivision of the Federal Rules
    of Civil Procedure. Finally, subdivision (i) ("Suspension of
    Discovery") is deleted. That subdivision is not part of the
    comparable federal rule, and its subject matter is more
    appropriately dealt with as a case management matter.

-End-



-CITE-
    28 USC APPENDIX Rule 13                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 13. Counterclaim

-STATUTE-
      (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. These rules shall not
    be construed to enlarge beyond the limits now fixed by law the
    right to assert counterclaims or to claim credits against the
    United States or an officer or agency thereof.
      (e) Counterclaim Maturing or Acquired After Pleading. A claim
    which either matured or was acquired by the 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 RCFC 42(b), judgment on a
    counterclaim may be rendered in accordance with the terms of RCFC
    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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Subdivision (d) was changed to add the language of FRCP 13(d) in
    recognition of the fact that there is no statutory bar to
    third-party defendants filing counterclaims against the United
    States. See 41 U.S.C. Sec. 114 and RCFC 14. Other significant
    differences between this version and the federal rule have been
    preserved as necessary in light of the fact that the United States
    is the only defendant in this court.

-End-



-CITE-
    28 USC APPENDIX Rule 14                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 14. Third-Party Practice

-STATUTE-
      (a) Summoned Parties.
        (1) 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.
        (2) The motion for a summons shall be accompanied by an
      appropriate pleading setting forth the claim or contingent claim
      which it is asserting against such third person.
        (3) If the court grants the motion of the United States, the
      clerk shall issue an original and one 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. 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.

      (b) Notice to Interested Parties.
        (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. Such notice shall advise of the pendency of the
      action and of the opportunity to seek intervention and to assert
      an interest in the action.
        (2) A motion made by the plaintiff shall be filed at the time
      the complaint is filed. Copies and service of such a motion shall
      be as provided in RCFC 4 and 5.3(d). A motion made by the United
      States 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.
        (3) The motion for notice shall state the name and address of
      such person, and set forth the interest which such person appears
      to have in the action.
        (4) If the court, on its own motion or on the motion of a
      party, orders any third person to be notified, the clerk shall
      issue an original and one 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. The notice shall indicate that it is
      accompanied by a copy of the pleadings, which shall be attached
      by the moving party.
        (5) 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.
        (6) 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 the 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 (b)(4) and shall forward the same with accompanying
      copies of the pleadings to the Attorney General for service as
      provided in subdivision (b)(5).
        (7) When service of the notice required by subdivision (b)(4)
      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 (b)(5) and (6), and proof of
      such service may be made in the manner authorized by FRCP 4(f).

      (c) Pleadings of Third Parties. Within 42 days after service upon
    a third person of a summons or notice issued pursuant to this rule,
    such person may file an answer, 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
    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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 14 was substantially revised. The order of the rule has been
    changed to distinguish more clearly between the two types of
    actions it permits with respect to entities that are not yet
    parties to the suit. New subdivision (a) deals exclusively with
    summons to persons whom the United States seeks to join formally as
    third parties. The procedures for such summons are now gathered
    under that subdivision. The same has been done with respect to
    motions for notice to inform non-parties of the pendency of the
    action and the opportunity to join as parties. In addition,
    language in the old rule with respect to service of notice by
    publication, as well as the consequences of failing to appear in
    response to such notice, have been stricken. The law in this area
    is unsettled; hence the possibility existed that the manner and
    method of notice prescribed by the rule might not be found
    constitutionally adequate in all potential situations.
      It is important to note that RCFC 14 notice requirements do not
    apply to the procedures for notifying potential intervenors in
    procurement protest cases filed pursuant to 28 U.S.C. Sec. 1491(b).
    RCFC 14 implements the authority set forth in 41 U.S.C. Sec. 114.
    For service of third-party complaints see RCFC 5.

-End-



-CITE-
    28 USC APPENDIX Rule 15                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 15. Amended and Supplemental Pleadings

-STATUTE-
      (a) Amendments. A party may amend the party's pleading once as a
    matter of course at any time before a responsive pleading is served
    or, if the pleading is one to which no responsive pleading is
    permitted and the action has not been placed upon the trial
    calendar, the party may so amend it at any time within 20 days
    after it is served. Otherwise a party may amend the party's
    pleading only by leave of court or by written consent of the
    adverse party; and leave shall be freely given when justice so
    requires. A party shall plead in response to an amended pleading
    within the time remaining for response to the original pleading or
    within 10 days after service of the amended pleading, whichever
    period may be the longer, unless the court otherwise orders.
      (b) Amendments to Conform to the Evidence. When issues not raised
    by the pleadings are tried by express or implied consent of the
    parties, they shall be treated in all respects as if they had been
    raised in the pleadings. Such amendment of the pleadings as may be
    necessary to cause them to conform to the evidence and to raise
    these issues may be made upon motion of any party at any time, even
    after judgment; but failure so to amend does not affect the result
    of the trial of these issues. If evidence is objected to at the
    trial on the ground that it is not within the issues made by the
    pleadings, the court may allow the pleadings to be amended and
    shall do so freely when the presentation of the merits of the
    action will be subserved thereby and the objecting party fails to
    satisfy the court that the admission of such evidence would
    prejudice the party in maintaining the party's action or defense
    upon the merits. The court may grant a continuance to enable the
    objecting party to meet such evidence.
      (c) Relation Back of Amendments. An amendment of a pleading
    relates back to the date of the original pleading when
        (1) relation back is permitted by the law that provides the
      statute of limitations applicable to the action, or
        (2) the claim or defense asserted in the amended pleading arose
      out of the conduct, transaction, or occurrence set forth or
      attempted to be set forth in the original pleading, or
        (3) the amendment changes the party or the naming of the party
      against whom a claim is asserted if the foregoing provision (2)
      is satisfied and 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.

      (d) Supplemental Pleadings. Upon motion of a party the court may,
    upon reasonable notice and upon such terms as are just, permit the
    party to serve a supplemental pleading setting forth transactions
    or occurrences or events which have happened since the date of the
    pleading sought to be supplemented. Permission may be granted even
    though the original pleading is defective in its statement of a
    claim for relief or defense. If the court deems it advisable that
    the adverse party plead to the supplemental pleading, it shall so
    order, specifying the time therefor.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Significant changes were made to FRCP 15 in 1991; minor changes
    were made in 1993. Most notable is the listing of criteria for
    relation back of amendments in subdivision (c). RCFC 15 was
    conformed to the comparable federal rule, with two exceptions:
      First, the language in FRCP subdivision (c)(3), relating to the
    timing of an amendment changing the name of a party, was omitted as
    inapplicable.
      Second, language in subdivision (c) of the federal rule, relating
    to faulty service on federal officers, also was omitted.

-End-



-CITE-
    28 USC APPENDIX Rule 16                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    III. PLEADINGS AND MOTIONS

-HEAD-
    Rule 16. Pretrial Conferences; Scheduling; Management

-STATUTE-
      (a) Pretrial Conferences; Objectives. In any action, the court
    may in its discretion direct the attorneys for the parties and any
    unrepresented parties to appear before it for a conference or
    conferences before trial for such purposes as
        (1) expediting the disposition of the action;
        (2) establishing early and continuing control so that the case
      will not be protracted because of lack of management;
        (3) discouraging wasteful pretrial activities;
        (4) improving the quality of trial through more thorough
      preparation;
        (5) facilitating the settlement of the case; and
        (6) assessing the utility of dispositive motions.

      (b) Scheduling and Planning. Except in actions exempted by the
    judge, the court shall, after receiving the Joint Preliminary
    Status Report from the parties pursuant to Appendix A or after
    consulting with the attorneys for the parties and any unrepresented
    parties by a scheduling conference, telephone, mail or other
    suitable means, enter a scheduling order that limits the time
        (1) to join other parties and to amend the pleadings;
        (2) to file motions; and
        (3) to complete discovery.

    The scheduling order also may include:
        (4) modifications of the times for disclosures under RCFC 26(a)
      and of the extent of discovery to be permitted;
        (5) the date or dates for conferences before trial, a final
      pretrial conference, and trial;
        (6) a direction that the parties file any of the submissions
      set out in Appendix A &#182;&#182; 14, 15, 16 or 17; and
        (7) any other matters appropriate in the circumstances of the
      case. The order shall issue as soon as practicable but in any
      event within 4 days after any preliminary scheduling conference
      or, if no preliminary scheduling conference is held, as soon as
      practicable after the Joint Preliminary Status Report is filed. A
      schedule shall not be modified except upon a showing of good
      cause and by leave of the judge.

      (c) Subjects for Consideration at Pretrial Conferences. At any
    conference under this rule consideration may be given, and the
    court may take appropriate action, with respect to
        (1) the formulation and simplification of the issues, including
      the elimination of frivolous claims or defenses;
        (2) the necessity or desirability of amendments to the
      pleadings;
        (3) the possibility of obtaining admissions of fact and of
      documents which will avoid unnecessary proof, stipulations
      regarding the authenticity of documents, and advance rulings from
      the court on the admissibility of evidence;
        (4) the avoidance of unnecessary proof and of cumulative
      evidence, and limitations or restrictions on the use of testimony
      under Rule 702 of the Federal Rules of Evidence;
        (5) the appropriateness and timing of summary adjudications
      under RCFC 56 and 56.1;
        (6) the control and scheduling of discovery, including orders
      affecting disclosures and discovery pursuant to RCFC 26 and RCFC
      29 through 37;
        (7) the identification of witnesses and documents, the need and
      schedule for filing and exchanging pretrial briefs, and the date
      or dates for further conferences and for trial;
        (8) the advisability of referring matters to a master;
        (9) settlement and the use of special procedures to assist in
      resolving the dispute;
        (10) the form and substance of the pretrial order;
        (11) the disposition of pending motions;
        (12) the need for adopting special procedures for managing
      potentially difficult or protracted actions that may involve
      complex issues, multiple parties, difficult legal questions, or
      unusual proof problems;
        (13) an order for a separate trial pursuant to RCFC 42(b) with
      respect to a claim, counterclaim, or third-party claim, or with
      respect to any particular issue in the case;
        (14) an order directing a party to present evidence early in
      the trial with respect to a manageable issue that could, on the
      evidence, be the basis for a judgment as a matter of law or a
      judgment on partial findings under RCFC 52(c).
        (15) an order establishing a reasonable limit on the time
      allowed for presenting evidence; and
        (16) such other matters as may facilitate the just, speedy and
      inexpensive disposition of the action.

    At least one of the attorneys for each party participating in any
    conference before trial shall have authority to enter into
    stipulations and to make admissions regarding all matters that the
    participants may reasonably anticipate may be discussed. If
    appropriate, the court may require that a party or its
    representative be present or reasonably available by telephone in
    order to consider possible settlement of the dispute.
      (d) Final Pretrial Conference. Any final pretrial conference
    shall be held as close to the time of trial as reasonable under the
    circumstances. The participants at any such conference shall
    formulate a plan for trial, including 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. The
    order following a final pretrial conference shall be modified only
    to prevent manifest injustice.
      (f) Sanctions. If a party or party's attorney fails to obey a
    scheduling or pretrial order, or if no appearance is made on behalf
    of a party at a scheduling or pretrial conference, or if a party or
    party's attorney is substantially unprepared to participate in the
    conference, or if a party or party's attorney fails to participate
    in good faith, the judge, upon motion or the judge's own
    initiative, may make such orders with regard thereto as are just,
    and among others any of the orders provided in RCFC 37(b)(2)(B),
    (C), (D). In lieu of or in addition to any other sanction, the
    judge shall require the party or the attorney representing the
    party or both to pay the reasonable expenses incurred because of
    any noncompliance with this rule, including attorneys' fees, unless
    the judge finds that the noncompliance was substantially justified
    or that other circumstances make an award of expenses unjust.
      (g) Additional Pretrial Procedures. See Appendix A to these rules
    ("Case Management Procedure") for additional provisions controlling
    pretrial procedures.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 16 was completely revised to parallel the structure and
    content of its counterpart in the Federal Rules of Civil Procedure.
    The limited number of changes to the current federal rule reflect
    those deemed necessary to accommodate procedural requirements
    particular to this court. Except for these changes, the rule shown
    conforms fully to the text of FRCP 16.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (c)(4), are
    set out in this Appendix.

-End-


-CITE-
    28 USC APPENDIX IV. PARTIES                                 01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
                                IV. PARTIES                            

-End-



-CITE-
    28 USC APPENDIX Rule 17                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 17. Parties Plaintiff and Defendant; Capacity

-STATUTE-
      (a) Real Party in Interest. Every action shall be prosecuted in
    the name of the real party in interest. An executor, administrator,
    guardian, bailee, trustee of an express trust, a party with whom or
    in whose name a contract has been made for the benefit of another,
    or a party authorized by statute may sue in that person's own name
    without joining the party for whose benefit the action is brought.
    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
    applicable state, except (1) that a partnership or other
    unincorporated association which has no capacity by the 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, and (2) that the
    capacity of a receiver appointed by a court of the United States to
    sue or be sued in a court of the United States is governed by Title
    28, U.S.C., Sections 754 and 959(a).
      (c) Infants or Incompetent Persons. Whenever an infant or
    incompetent person has a representative, such as a general
    guardian, committee, conservator, or other like fiduciary, the
    representative may sue or defend on behalf of the infant or
    incompetent person. An infant or incompetent person who does not
    have a duly appointed representative may sue by a next friend or by
    a guardian ad litem. The court shall appoint a guardian ad litem
    for an infant or incompetent person not otherwise represented in an
    action or shall make such other order as it deems proper for the
    protection of the infant or incompetent person.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 17 was modified in minor respects in order to achieve closer
    conformity with FRCP 17. A difference between the court's rule and
    the corresponding federal rule occurs in subdivision (b).
    Subdivision (b) of the federal rule, subtitled "Capacity to Sue or
    be Sued," provides generally that, in those cases for which no rule
    of decision is provided, "capacity to sue or be sued shall be
    determined by the law of the state in which the district court is
    held." In recognition of this court's nationwide jurisdiction, the
    quoted language was rewritten by substituting "by the law of the
    applicable state" for "by the law of the state in which the
    district court is held."

-End-



-CITE-
    28 USC APPENDIX Rule 18                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 18. Joinder of Claims and Remedies

-STATUTE-
      (a) Joinder of Claims. A party asserting a claim to relief as an
    original claim or counterclaim, may join, either as independent or
    as alternate claims, as many claims as the party has against an
    opposing party. A third party may join, to the extent permitted by
    law, as many claims as the party has against the 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The final sentence added to subdivision (a) was intended to
    recognize both the right of a third party to assert a claim and the
    limitations on that right as set forth in 41 U.S.C. Sec. 114 and
    applicable case law.

-End-



-CITE-
    28 USC APPENDIX Rule 19                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 19. Joinder of Persons Needed for Just Adjudication

-STATUTE-
      (a) Persons to be Joined if Feasible. A person who is subject to
    service of process and whose joinder will not deprive the court of
    jurisdiction over the subject matter of the action shall be joined
    as a party in the action if (1) in the person's absence complete
    relief cannot be accorded among those already parties, or (2) the
    person claims an interest relating to the subject of the action and
    is so situated that the disposition of the action in the person's
    absence may (i) as a practical matter impair or impede the person's
    ability to protect that interest or (ii) leave any of the persons
    already parties subject to a substantial risk of incurring double,
    multiple, or otherwise inconsistent obligations by reason of the
    claimed interest. If the person has not been so joined, the court
    shall order that the person be made a party. If the person should
    join as a plaintiff but refuses to do so, the person may be made an
    involuntary plaintiff.
      (b) Determination by Court Whenever Joinder not Feasible. If a
    person as described in subdivision (a)(1)-(2) hereof cannot be made
    a party, the court shall determine whether in equity and good
    conscience the action should proceed among the parties before it,
    or should be dismissed, the absent person being thus regarded as
    indispensable. The factors to be considered by the court include:
    first, to what extent a judgment rendered in the person's absence
    might be prejudicial to the person or those already parties;
    second, the extent to which, by protective provisions in the
    judgment, by the shaping of relief, or other measures, the
    prejudice can be lessened or avoided; third, whether a judgment
    rendered in the person's absence will be adequate; fourth, whether
    the plaintiff will have an adequate remedy if the action is
    dismissed for nonjoinder.
      (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
    for relief shall state the names, if known to the pleader, of any
    persons as prescribed in subdivision (a)(1)-(2) hereof who are not
    joined, and the reasons why they are not joined.
      (d) Exception of Class Actions. This rule is subject to
    provisions of RCFC 23.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Reference to RCFC 14 was deleted from subdivision (a) and other
    minor changes were made in order to more closely conform to FRCP
    19. Some differences, however, were retained - the most significant
    being the deletion of the last sentence of FRCP 19(a) from this
    court's rule. The last sentence addresses objections to venue
    raised by a joined party. Such objections would not be assertable
    in this court.

-End-



-CITE-
    28 USC APPENDIX Rule 20                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 20. Permissive Joinder of Parties

-STATUTE-
      (a) Permissive Joinder. All persons may join in one action as
    plaintiffs if they assert any right to relief jointly, severally,
    or in the alternative in respect of or arising out of the same
    transaction, occurrence, or series of transactions or occurrences
    and if any question of law or fact common to all these persons will
    arise in the action. A plaintiff need not be interested in
    obtaining all the relief demanded. Judgment may be given for one or
    more of the plaintiffs according to their respective rights to
    relief.
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The authority previously contained in RCFC 20(a)(1)-(2),
    permitting unrestricted joinder of additional plaintiffs to a
    pending multi-party action, proved cumbersome in practice and an
    impediment to sound case management. The joinder of additional
    plaintiffs should proceed by appropriate motion under RCFC 15.
    Accordingly, RCFC 20 was modified so as to more closely parallel
    the text of the corresponding Federal Rule of Civil Procedure.

-End-



-CITE-
    28 USC APPENDIX Rule 21                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 21. Misjoinder and Non-Joinder of Parties

-STATUTE-
      Misjoinder of parties is not ground for dismissal of an action.
    Parties may be dropped or added by order of the court on motion of
    any party or of its own initiative at any stage of the action and
    on such terms as are just. Any claim against a party may be severed
    and proceeded with separately.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The last sentence of the former rule, "To add plaintiffs, see
    RCFC 20(a)(1)-(2)," was eliminated to more closely conform the rule
    to FRCP 21.

-End-



-CITE-
    28 USC APPENDIX Rule 22                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 22. Interpleader. [Not used].


-STATUTE-

-MISC1-
                           RULES COMMITTEE NOTE                       
      The interpleader practice permitted under FRCP 22 is, for the
    most part, incompatible with the jurisdiction exercisable by this
    court. However, in those cases where the United States is in the
    position of a stakeholder facing the risks of double liability,
    RCFC 14 provides the means for summoning a third party.

-End-



-CITE-
    28 USC APPENDIX Rule 23                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 23. Class Actions

-STATUTE-
      (a) Prerequisites to a Class Action. One or more members of a
    class may sue 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 of the representative parties are typical of
    the claims 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 United States has acted or refused to act on grounds
      generally applicable to the class, and
        (2) 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. Matters pertinent to the findings include:
      (A) the interest of members of the class in individually
      controlling the prosecution of separate actions; (B) the extent
      and nature of any litigation concerning the controversy already
      commenced by members of the class; and (C) 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, the court shall direct to
      the potential members of the class the best notice practicable
      under the circumstances, including notice to all individuals who
      can be identified through reasonable effort. The notice shall
      advise that (A) the court will include the individual in the
      class action if the individual so requests by a specified date;
      and (B) the judgment(s), whether favorable or not, will bind the
      member(s) of the class.
        (3) The judgment in an action maintained as a class action
      under subdivisions (b)(1) or (b)(2), whether or not favorable to
      the class, shall include and specify or describe those to whom
      the notice provided in subdivision (c)(2) was directed, and who
      have requested inclusion, 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 RCFC 16, and may be
    altered or amended as may be desirable from time to time.
      (e) Dismissal or Compromise. A class action shall not be
    dismissed or compromised without the approval of the court, and
    notice of the proposed dismissal or compromise shall be given to
    all members of the class in such manner as the court directs.
      (f) Appeals. [Not used.]


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 23 was completely rewritten. Although the court's rule is
    modeled largely on the comparable federal rule, there are
    significant differences between the two rules. In the main, the
    court's rule adopts the criteria for certifying and maintaining a
    class action as set forth in Quinault Allottee Ass'n v. United
    States, 197 Ct. Cl. 134, 453 F.2d 1272 (1972).
      Because the relief available in this court is generally confined
    to individual money claims against the United States, the
    situations justifying the use of a class action are correspondingly
    narrower than those addressed in FRCP 23. Thus, the court's rule
    does not accommodate, inter alia, the factual situations
    redressable through declaratory and injunctive relief contemplated
    under FRCP (b)(1), (2).
      Additionally, unlike the federal rule, the court's rule
    contemplates only opt-in class certifications, not opt-out classes.
    The latter were viewed as inappropriate here because of the need
    for specificity in money judgments against the United States, and
    the fact that the court's injunctive powers - the typical focus of
    an opt-out class - are more limited than those of a district court.
      Finally, the court's rule does not contain a provision comparable
    to FRCP 23(f). That subdivision, which provides that a "court of
    appeals may in its discretion permit an appeal from an order . . .
    granting or denying class certification" has its origin in 28
    U.S.C. Sec. 1292(e), which authorizes the Supreme Court to
    promulgate rules that provide for an appeal of an interlocutory
    decision other than those set out in Section 1292. Because no
    comparable statutory authority exists for this court's promulgation
    of a similar rule, subdivision (f) was omitted. It should be noted,
    however, that the Court of Federal Claims may certify questions to
    the Court of Appeals for the Federal Circuit pursuant to 28 U.S.C.
    Secs. 1292(b) and 1295.

-End-



-CITE-
    28 USC APPENDIX Rule 23.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 23.1. Derivative Actions by Shareholders

-STATUTE-
      In a derivative action brought by one or more shareholders or
    members to enforce a right of a corporation or of an unincorporated
    association, the corporation or association having failed to
    enforce a right which may properly be asserted by it, the complaint
    shall be verified and shall allege (1) that the plaintiff was a
    shareholder or member at the time of the transaction of which the
    plaintiff complains or that the plaintiff's share or membership
    thereafter devolved on the plaintiff by operation of law, and (2)
    that the action is not a collusive one to confer jurisdiction on
    this court which it would not otherwise have. The complaint shall
    also allege with particularity the efforts, if any, made by the
    plaintiff to obtain the action the plaintiff desires from the
    directors or comparable authority and, if necessary, from the
    shareholders or members, and the reasons for the plaintiff's
    failure to obtain the action or for not making the effort. The
    derivative action may not be maintained if it appears that the
    plaintiff does not fairly and adequately represent the interests of
    the shareholders or members similarly situated in enforcing the
    right of the corporation or association. The 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
    shareholders or members in such manner as the court directs.


-MISC1-
                           RULES COMMITTEE NOTE                       
      This is a new rule. This version of RCFC 23.1 is in conformity
    with the corresponding federal rule. The Federal Circuit has ruled
    that, under certain circumstances, this court has jurisdiction to
    hear shareholder derivative suits. First Hartford Corp. Pension
    Plan & Trust v. United States, 194 F.3d 1279 (Fed. Cir. 1999). Cf.
    Branch v. United States, 69 F.3d 1571 (Fed. Cir. 1995); and
    California Housing Sec., Inc. v. United States, 959 F.2d 955 (Fed.
    Cir. 1992).

-End-



-CITE-
    28 USC APPENDIX Rule 23.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 23.2. Actions Relating to Unincorporated Associations [Not
      used.]


-STATUTE-

-MISC1-
                           RULES COMMITTEE NOTE                       
      This rule is procedurally unnecessary in light of the opt-in
    class-action procedures of RCFC 23.

-End-



-CITE-
    28 USC APPENDIX Rule 24                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 24. Intervention

-STATUTE-
      (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 serve a
    motion to intervene upon the parties as provided in RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor changes were made to subdivision (c) of this rule in order
    to more closely conform to FRCP 24.

-End-



-CITE-
    28 USC APPENDIX Rule 25                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IV. PARTIES

-HEAD-
    Rule 25. Substitution of Parties

-STATUTE-
      (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 RCFC 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.]


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 25 omits the text of subdivision (d) of FRCP 25 which
    addresses the substitution of a successor in an action naming a
    public officer who dies or is separated from service while the
    action is pending.

-End-


-CITE-
    28 USC APPENDIX V. DEPOSITIONS AND DISCOVERY                01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
                       V. DEPOSITIONS AND DISCOVERY                   

-End-



-CITE-
    28 USC APPENDIX Rule 26                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

-STATUTE-
      (a) Required Disclosures; Methods to Discover Additional Matter.
        (1) Initial Disclosures. Except in categories of proceedings
      specified in RCFC 26(a)(1)(E), or to the extent otherwise
      stipulated or directed by order, a party must, without awaiting a
      discovery request, provide to other parties:
          (A) the name and, if known, the address and telephone number
        of each individual likely to have discoverable information that
        the disclosing party may use to support its claims or defenses,
        unless solely for impeachment, identifying the subjects of the
        information;
          (B) a copy of, or a description by category and location of,
        all documents, data compilations, and tangible things that are
        in the possession, custody, or control of the party and that
        the disclosing party may use to support its claims or defenses,
        unless solely for impeachment; and
          (C) a computation of any category of damages claimed by the
        disclosing party, making available for inspection and copying
        as under RCFC 34 the documents or other evidentiary material,
        not privileged or protected from disclosure, on which such
        computation is based, including materials bearing on the nature
        and extent of injuries suffered.
          (D) [Not used.]
          (E) The following categories of proceedings are exempt from
        initial disclosure under RCFC 26(a)(1):
            (i) an action for review on an administrative record,
          including procurement protest and military pay cases;
            (ii) [Not used.];
            (iii) an action brought without counsel by a person in
          custody of the United States, a state, or a state
          subdivision;
            (iv, v, vi and vii) [Not used.];
            (viii) an action to enforce an arbitration award; and
            (ix) an action under the National Vaccine Injury
          Compensation Act.

    These disclosures must be made within 14 days after the filing of
    the Joint Preliminary Status Report (see Appendix A &#182; 4)
    unless a different time is set by stipulation or court order, or
    unless a party objects during the Early Meeting of Counsel (see
    Appendix A &#182; 3) that initial disclosures are not appropriate
    in the circumstances of the action and states the objection in the
    Joint Preliminary Status Report. In ruling on the objection, the
    court must determine what disclosures - if any - are to be made,
    and set the time for disclosure. Any party first served or
    otherwise joined after the Joint Preliminary Status Report must
    make these disclosures within 30 days after being served or joined
    unless a different time is set by stipulation or court order. A
    party must make its initial disclosures based on the information
    then reasonably available to it and is not excused from making its
    disclosures because it has not fully completed its investigation of
    the case or because it challenges the sufficiency of another
    party's disclosures or because another party has not made its
    disclosures.
        (2) Disclosure of Expert Testimony.
          (A) In addition to the disclosures required by paragraph (1),
        a party shall disclose to other parties the identity of any
        person who may be used at trial to present evidence under Rules
        702, 703, or 705 of the Federal Rules of Evidence.
          (B) Except as otherwise stipulated or directed by the court,
        this disclosure shall, with respect to a witness who is
        retained or specially employed to provide expert testimony in
        the case or whose duties as an employee of the party regularly
        involve giving expert testimony, be accompanied by a written
        report prepared and signed by the witness. The report shall
        contain a complete statement of all opinions to be expressed
        and the basis and reasons therefor; the data or other
        information considered by the witness in forming the opinions;
        any exhibits to be used as a summary of or support for the
        opinions; the qualifications of the witness, including a list
        of all publications authored by the witness within the
        preceding ten years; the compensation to be paid for the study
        and testimony; and a listing of any other cases in which the
        witness has testified as an expert at trial or by deposition
        within the preceding four years.
          (C) These disclosures shall be made at the times and in the
        sequence directed by the court. In the absence of other
        directions from the court or stipulation by the parties, see
        Appendix A &#182;&#182; 5, 8, the disclosures shall be made at
        least 70 days before the scheduled close of discovery or, if
        the evidence is intended solely to contradict or rebut evidence
        on the same subject matter identified by another party under
        paragraph (2)(B), within 30 days after the disclosure made by
        the other party. The parties shall supplement these disclosures
        when required under subdivision (e)(1).

        (3) Pretrial Disclosures. [Not used. See Appendix A
      &#182;&#182; 13, 15, 16.]
        (4) Form of Disclosures. Unless the court orders otherwise, all
      disclosures under RCFC 26(a)(1) through (3) must be made in
      writing, signed, and served.
        (5) Methods to Discover Additional Matter. 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 under RCFC 34 or
      45(a)(1)(C), 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 in accordance with these rules, the scope of discovery
    is as follows:
        (1) In General. Parties may obtain discovery regarding any
      matter, not privileged, that is relevant to the claim or defense
      of any 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. For good cause, the
      court may order discovery of any matter relevant to the subject
      matter involved in the action. Relevant information need not be
      admissible at the trial if the discovery appears reasonably
      calculated to lead to the discovery of admissible evidence. All
      discovery is subject to the limitations imposed by RCFC
      26(b)(2)(i), (ii), and (iii).
        (2) Limitations. By order, the court may alter the limits in
      these rules on the number of depositions and interrogatories or
      the length of depositions under RCFC 30. By order, the court may
      also limit the number of requests under RCFC 36. The frequency or
      extent of use of the discovery methods otherwise permitted under
      these rules 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 burden or
      expense of the proposed discovery outweighs its likely benefit,
      taking into account the needs of the case, the amount in
      controversy, the parties' resources, the importance of the issues
      at stake in the litigation, and the importance of the proposed
      discovery in resolving the issues. The court may act upon its own
      initiative after reasonable notice or pursuant to a motion under
      RCFC 26(c).
        (3) Trial Preparation: Materials. Subject to the provisions of
      subdivision (b)(4), 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 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 RCFC
    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.
        (4) Trial Preparation: Experts.
          (A) A party may depose any person who has been identified as
        an expert whose opinions may be presented at trial. If a report
        from the expert is required under subdivision (a)(2)(B), the
        deposition shall not be conducted until after the report is
        provided.
          (B) A party may, through interrogatories or by deposition,
        discover facts known or opinions held by an expert who has been
        retained or specially employed by another party in anticipation
        of litigation or preparation for trial and who is not expected
        to be called as a witness at trial only as provided in RCFC
        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 the discovery
        under this subdivision; and (ii) with respect to discovery
        obtained under subdivision (b)(4)(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.

        (5) Claims of Privilege or Protection of Trial Preparation
      Materials. When a party withholds information otherwise
      discoverable under these rules by claiming that it is privileged
      or subject to protection as trial preparation material, the party
      shall make the claim expressly and shall describe the nature of
      the documents, communications, or things not produced or
      disclosed in a manner that, without revealing information itself
      privileged or protected, will enable other parties to assess the
      applicability of the privilege or protection.

      (c) Protective Orders. Upon motion by a party or by the person
    from whom discovery is sought, accompanied by a certification that
    the movant has in good faith conferred or attempted to confer with
    other affected parties in an effort to resolve the dispute without
    court action, 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 disclosure or discovery not be had;
        (2) that the disclosure or 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 disclosure or 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 revealed or be
      revealed only in a designated way; and
        (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 other person provide or permit discovery. The
    provisions of RCFC 37(a)(4) apply to award of expenses incurred in
    relation to the motion.
      (d) Timing and Sequence of Discovery. Except in categories of
    proceedings exempted from initial disclosure under RCFC
    26(a)(1)(E), or when authorized under these rules or by order or
    agreement of the parties, a party may not seek discovery from any
    source before the parties have conferred as required by Appendix A
    &#182; 3. 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, does not operate to delay any other
    party's discovery.
      (e) Supplementation of Disclosures and Responses. A party who has
    made a disclosure under subdivision (a) or responded to a request
    for discovery with a disclosure or response is under a duty to
    supplement or correct the disclosure or response to include
    information thereafter acquired if ordered by the court or in the
    following circumstances:
        (1) A party is under a duty to supplement at appropriate
      intervals its disclosures under subdivision (a) if the party
      learns that in some material respect the information disclosed is
      incomplete or incorrect and if the additional or corrective
      information has not otherwise been made known to the other
      parties during the discovery process or in writing. With respect
      to testimony of an expert from whom a report is required under
      subdivision (a)(2)(B) the duty extends both to information
      contained in the report and to information provided through a
      deposition of the expert.
        (2) A party is under a duty seasonably to amend a prior
      response to an interrogatory, request for production, or request
      for admission if the party learns that the response is in some
      material respect incomplete or incorrect and if the additional or
      corrective information has not otherwise been made known to the
      other parties during the discovery process or in writing.

      (f) Conference of Parties; Planning for Discovery. [Not used. See
    Appendix A &#182; 3.]
      (g) Signing of Disclosures, Discovery Requests, Responses, and
    Objections.
        (1) Every disclosure made pursuant to subdivision (a)(1) or
      Appendix A &#182;&#182; 13, 15, and 16 shall be signed by the
      attorney of record in the attorney's individual name, whose
      address shall be stated. An unrepresented party shall sign the
      disclosure and state the party's address. The signature of the
      attorney or party constitutes a certification that to the best of
      the signer's knowledge, information, and belief, formed after a
      reasonable inquiry, the disclosure is complete and correct as of
      the time it is made.
        (2) Every discovery request, response, or objection made by a
      party represented by an attorney shall be signed by the attorney
      of record in the attorney's individual name, whose address shall
      be stated. An unrepresented party shall sign the request,
      response, or objection and state the party's address. The
      signature of the attorney or party constitutes a certification
      that to the best of the signer's knowledge, information, and
      belief, formed after a reasonable inquiry, the request, response,
      or objection is:
          (A) consistent with these rules and warranted by existing law
        or a good faith argument for the extension, modification, or
        reversal of existing law;
          (B) not interposed for any improper purpose, such as to
        harass or to cause unnecessary delay or needless increase in
        the cost of litigation; and
          (C) 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.
        (3) If without substantial justification 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 disclosure, 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 26 has been revised to parallel the structure and content of
    its counterpart in the Federal Rules of Civil Procedure. The
    limited number of changes to the current federal rule, as amended
    in 2000, reflect those deemed necessary to accommodate the nature
    and jurisdiction of this court. Except for these changes, the rule
    shown conforms fully to the text of FRCP 26. Because the Appendix A
    Early Meeting of Counsel substantially accomplishes the same
    purpose as the FRCP 26(f) conference of counsel, the timing of
    initial disclosures was keyed to the former. Consequently, in lieu
    of the language of FRCP 26(f), cross reference is made to Appendix
    A &#182; 3.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The National Vaccine Injury Compensation Act, referred to in
    subd. (a)(1)(E)(ix), probably means subtitle 2 of title XXI of act
    July 1, 1944, ch. 373, as added by Pub. L. 99-660, title III, Sec.
    311(a), Nov. 14, 1986, 100 Stat. 3758, as amended, which is
    classified generally to part 2 (Sec. 300aa-10 et seq.) of
    subchapter XIX of chapter 6A of Title 42, The Public Health and
    Welfare. For complete classification of this Act to the Code, see
    Tables.
      The Federal Rules of Evidence, referred to in subd. (a)(2)(A),
    are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 27                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 27. Depositions Before Action or Pending Appeal

-STATUTE-
      (a) Before Action.
        (1) Petition. A person who desires to perpetuate testimony
      regarding any matter that may be cognizable in the court may file
      a verified petition. 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 the court 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, [Not used.], 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 petition shall be served upon the
      United States in the same manner as a complaint. See RCFC 4. The
      petitioner may thereafter, by motion served upon counsel for the
      United States (see RCFC 5), request a hearing or the court may,
      sua sponte, by order, set a hearing on the petition.
        (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 RCFC
      34 and 35.
        (4) Use of Deposition. If a deposition to perpetuate testimony
      is taken under these rules, it may be used in any action
      involving the same subject matter subsequently brought in this
      court, in accordance with the provisions of RCFC 32(a).

      (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, 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. In such case the party who
    desires to perpetuate the testimony may make a motion for leave to
    take the depositions, upon the same notice and service thereof as
    if the action was pending in this 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
    RCFC 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 this
    court.
      (c) Perpetuation by Action. [Not used.]


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 27 closely parallels FRCP 27, the only differences being
    those necessary for compatibility with the jurisdiction and other
    rules of the court.

-End-



-CITE-
    28 USC APPENDIX Rule 28                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 28. Persons Before Whom Depositions may be Taken

-STATUTE-
      (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
    RCFC 30, 31 and 32 includes a person appointed by the court or
    designated by the parties under RCFC 29.
      (b) In Foreign Countries. Depositions may be taken in a foreign
    country (1) pursuant to any applicable treaty or convention, or (2)
    pursuant to a letter of request (whether or not captioned a letter
    rogatory), or (3) on notice before a person authorized to
    administer oaths in the place where the examination is held, either
    by the law thereof or by the law of the United States, or (4)
    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. A commission or a
    letter of request 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 of request that the taking of
    the deposition in any other manner is impracticable or
    inconvenient; and both a commission and a letter of request 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 of request may be addressed "To the
    Appropriate Authority in [here name the country]." When a letter of
    request or any other device is used pursuant to any applicable
    treaty or convention, it shall be captioned in the form prescribed
    by that treaty or convention. Evidence obtained in response to a
    letter of request need not be excluded merely because it is not a
    verbatim transcript, because the testimony was not taken under
    oath, or because of any similar departure from the requirements for
    depositions taken within the United States 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 28 parallels in form and content FRCP 28. The single
    difference between the two rules occurs in subdivision (a): the
    court's rule eliminates the reference to other courts by omitting
    the phrasing "in which the action is pending."

-End-



-CITE-
    28 USC APPENDIX Rule 29                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 29. Stipulations Regarding Discovery Procedure

-STATUTE-
      Unless otherwise directed by the court, 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 other procedures governing or limitations placed
    upon discovery, except that stipulations extending the time
    provided in RCFC 33, 34, and 36 for responses to discovery may, if
    they would interfere with any time set for completion of discovery,
    for hearing of a motion, or for trial, be made only with the
    approval of the court.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 29 conforms to FRCP 29.

-End-



-CITE-
    28 USC APPENDIX Rule 30                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 30. Depositions Upon Oral Examination

-STATUTE-
      (a) When Depositions May Be Taken; When Leave Required.
        (1) A party may take the testimony of any person, including a
      party, by deposition upon oral examination without leave of court
      except as provided in paragraph (2). The attendance of witnesses
      may be compelled by subpoena as provided in RCFC 45.
        (2) A party must obtain leave of court, which shall be granted
      to the extent consistent with the principles stated in RCFC
      26(b)(2), if the person to be examined is confined in prison or
      if, without the written stipulation of the parties,
          (A) a proposed deposition would result in more than ten
        depositions being taken under this rule or RCFC 31 by the
        plaintiffs, or by the defendants, or by third-party defendants;
          (B) the person to be examined already has been deposed in the
        case; or
          (C) a party seeks to take a deposition before the time
        specified in RCFC 26(d) unless the notice contains a
        certification, with supporting facts, that the person to be
        examined is expected to leave the United States and be
        unavailable for examination in this country unless deposed
        before that time.

      (b) Notice of Examination: General Requirements; Method of
    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 party taking the deposition shall state in the notice
      the method by which the testimony shall be recorded. Unless the
      court orders otherwise, it may be recorded by sound,
      sound-and-visual, or stenographic means, and the party taking the
      deposition shall bear the cost of the recording. Any party may
      arrange for a transcription to be made from the recording of a
      deposition taken by non-stenographic means.
        (3) With prior notice to the deponent and other parties, any
      party may designate another method to record the deponent's
      testimony in addition to the method specified by the person
      taking the deposition. The additional record or transcript shall
      be made at that party's expense unless the court otherwise
      orders.
        (4) Unless otherwise agreed by the parties, a deposition shall
      be conducted before an officer appointed or designated under RCFC
      28 and shall begin with a statement on the record by the officer
      that includes (A) the officer's name and business address; (B)
      the date, time, and place of the deposition; (C) the name of the
      deponent; (D) the administration of the oath or affirmation to
      the deponent; and (E) an identification of all persons present.
      If the deposition is recorded other than stenographically, the
      officer shall repeat items (A) through (C) at the beginning of
      each unit of recorded tape or other recording medium. The
      appearance or demeanor of deponents or attorneys shall not be
      distorted through camera or sound-recording techniques. At the
      end of the deposition, the officer shall state on the record that
      the deposition is complete and shall set forth any stipulations
      made by counsel concerning the custody of the transcript or
      recording and the exhibits, or concerning other pertinent
      matters.
        (5) The notice to a party deponent may be accompanied by a
      request made in compliance with RCFC 34 for the production of
      documents and tangible things at the taking of the deposition.
      The procedure of RCFC 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 or other
      remote electronic means. For the purposes of this rule and RCFC
      28(a), a deposition taken by such means is taken at the place
      where the deponent is to answer questions.

      (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 except Rules 103 and 615. The officer before whom the
    deposition is to be taken shall put the witness on oath or
    affirmation 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 method authorized by
    subdivision (b)(2) of this rule. All objections made at the time of
    the examination to the qualifications of the officer taking the
    deposition, to the manner of taking it, to the evidence presented,
    to the conduct of any party, or to any other aspect of the
    proceedings shall be noted by the officer upon the record of the
    deposition; but the examination shall proceed, with the testimony
    being 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) Schedule and Duration; Motion to Terminate or Limit
    Examination.
        (1) Any objection during a deposition must be stated concisely
      and in a non-argumentative and non-suggestive manner. A person
      may instruct a deponent not to answer only when necessary to
      preserve a privilege, to enforce a limitation directed by the
      court, or to present a motion under RCFC 30(d)(4).
        (2) Unless otherwise authorized by the court or stipulated by
      the parties, a deposition is limited to one day of seven hours.
      The court must allow additional time consistent with RCFC
      26(b)(2) if needed for a fair examination of the deponent or if
      the deponent or another person, or other circumstance, impedes or
      delays the examination.
        (3) If the court finds that any impediment, delay, or other
      conduct has frustrated the fair examination of the deponent, it
      may impose upon the persons responsible an appropriate sanction,
      including the reasonable costs and attorney's fees incurred by
      any parties as a result thereof.
        (4) At any time during 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 RCFC 26(c). If the
      order made terminates the examination, it may be resumed
      thereafter only upon the order of the court. Upon demand of the
      objecting party or deponent, the taking of the deposition must be
      suspended for the time necessary to make a motion for an order.
      The provisions of RCFC 37(a)(4) apply to the award of expenses
      incurred in relation to the motion.

      (e) Review by Witness; Changes; Signing.
      If requested by the deponent or a party before completion of the
    deposition, the deponent shall have 30 days after being notified by
    the officer that the transcript or recording is available in which
    to review the transcript or recording and, if there are changes in
    form or substance, to sign a statement reciting such changes and
    the reasons given by the deponent for making them. The officer
    shall indicate in the certificate prescribed by subdivision (f)(1)
    whether any review was requested and, if so, shall append any
    changes made by the deponent during the period allowed.
      (f) Certification and Delivery by Officer; Exhibits; Copies.
        (1) The officer must certify that the witness was duly sworn by
      the officer and that the deposition is a true record of the
      testimony given by the witness. This certificate must be in
      writing and accompany the record of the deposition. Unless
      otherwise ordered by the court, the officer must securely seal
      the deposition in an envelope or package indorsed with the title
      of the action and marked "Deposition of [here insert name of
      witness]" and must promptly send it to the attorney who arranged
      for the transcript or recording, who must store it under
      conditions that will protect it against loss, destruction,
      tampering, or deterioration. Documents and things produced for
      inspection during the examination of the witness must, 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) Unless otherwise ordered by the court or agreed by the
      parties, the officer shall retain stenographic notes of any
      deposition taken stenographically or a copy of the recording of
      any deposition taken by another method. Upon payment of
      reasonable charges therefor, the officer shall furnish a copy of
      the transcript or other recording of the deposition to any party
      or to the deponent.
        (3) [Not used.]

      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 30 parallels the structure and content of its counterpart in
    the Federal Rules of Civil Procedure. The limited number of
    differences reflect those necessary for compatibility with the
    jurisdiction and other rules of the court.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (c), are set
    out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 31                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 31. Depositions Upon Written Questions

-STATUTE-
      (a) Serving Questions; Notice.
        (1) A party may take the testimony of any person, including a
      party, by deposition upon written questions without leave of
      court except as provided in paragraph (2). The attendance of
      witnesses may be compelled by the use of subpoena as provided in
      RCFC 45.
        (2) A party must obtain leave of court, which shall be granted
      to the extent consistent with the principles stated in RCFC
      26(b)(2), if the person to be examined is confined in prison or
      if, without the written stipulation of the parties,
          (A) a proposed deposition would result in more than ten
        depositions being taken under this rule or RCFC 30 by the
        plaintiffs, or by the defendants, or by third-party defendants;
          (B) the person to be examined has already been deposed in the
        case; or
          (C) a party seeks to take a deposition before the time
        specified in RCFC 26(d).

        (3) 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 RCFC 30(b)(6).
        (4) Within 14 days after the notice and written questions are
      served, a party may serve cross questions upon all other parties.
      Within 7 days after being served with cross questions, a party
      may serve redirect questions upon all other parties. Within 7
      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 RCFC
    30(c), (e) and (f), to take the testimony of the witness in
    response to the questions and to prepare, certify, and deliver the
    deposition to the party taking it, 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 31 closely parallels the text of FRCP 31. Subdivision (a) is
    identical in wording to the current federal civil rule.
    Subdivisions (b) and (c) are nearly identical, the only differences
    being those necessary to reflect the court's practice of not
    requiring depositions to be filed.

-End-



-CITE-
    28 USC APPENDIX Rule 32                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 32. Use of Depositions in Court Proceedings

-STATUTE-
      (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 RCFC 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 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 the witness is at a
        greater distance than 100 miles from the place of trial or
        hearing, unless the court also finds (i) that the absence of
        the witness was procured by the party offering the deposition
        or (ii) that it is not in the interests of justice, with due
        regard to the importance of presenting the testimony of
        witnesses orally in open court, to allow the deposition to be
        used; or
          (F) 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.

    A deposition taken without leave of court pursuant to a notice
    under RCFC 30(a)(2)(C) shall not be used against a party who
    demonstrates that, when served with the notice, it was unable
    through the exercise of diligence to obtain counsel to represent it
    at the taking of the deposition; nor shall a deposition be used
    against a party who, having received less than 11 days notice of a
    deposition, has promptly upon receiving such notice filed a motion
    for a protective order under RCFC 26(c)(2) requesting that the
    deposition not be held or be held at a different time or place and
    such motion is pending at the time the deposition is held.
        (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 RCFC 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
    RCFC 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) Form of Presentation. Except as otherwise directed by the
    court, a party offering deposition testimony pursuant to this rule
    may offer it in stenographic or nonstenographic form, but, if in
    nonstenographic form, the party shall also provide the court with a
    transcript of the portions so offered.
      (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 RCFC 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, or otherwise dealt with by the
      officer under RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 32 is identical to FRCP 32, except for (i) omission of the
    last sentence in subdivision (c), applicable only in jury trials,
    (ii) deletion of the word "filed" in subdivision (d)(4), because
    this court does not require that depositions be routinely filed,
    and (iii) revisions of subparagraphs (a)(3)(B) and (E) to require
    application and notice for the use of depositions of a witness who
    is at a greater distance than 100 miles from the place of hearing.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a)(1), (4)
    are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 33                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 33. Interrogatories to Parties

-STATUTE-
      (a) Availability. Without leave of court or written stipulation,
    any party may serve upon any other party written interrogatories,
    not exceeding 25 in number including all discrete subparts, 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. Leave to serve additional
    interrogatories shall be granted to the extent consistent with the
    principles of RCFC 26(b)(2). Without leave of court or written
    stipulation, interrogatories may not be served before the time
    specified in RCFC 26(d).
      (b) Answers and Objections.
        (1) Each interrogatory shall be answered separately and fully
      in writing under oath, unless it is objected to, in which event
      the objecting party shall state the reasons for objection and
      shall answer to the extent the interrogatory is not
      objectionable.
        (2) The answers are to be signed by the person making them, and
      the objections signed by the attorney making them.
        (3) 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. A shorter or
      longer time may be directed by the court or, in the absence of
      such an order, agreed to in writing by the parties subject to
      RCFC 29.
        (4) All grounds for an objection to an interrogatory shall be
      stated with specificity. Any ground not stated in a timely
      objection is waived unless the party's failure to object is
      excused by the court for good cause shown.
        (5) The party submitting the interrogatories may move for an
      order under RCFC 37(a) with respect to any objection to or other
      failure to answer an interrogatory.

      (c) Scope; Use at Trial. Interrogatories may relate to any
    matters which can be inquired into under RCFC 26(b)(1), 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 pretrial conference or other later
    time.
      (d) 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 33 is identical to FRCP 33.

-End-



-CITE-
    28 USC APPENDIX Rule 34                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 34. Production of Documents and Things and Entry Upon Land for
      Inspection and Other Purposes

-STATUTE-
      (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 RCFC 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 RCFC 26(b).
      (b) Procedure. The request shall set forth, either by individual
    item or by category, the items to be inspected, and describe each
    with reasonable particularity. The request shall specify a
    reasonable time, place, and manner of making the inspection and
    performing the related acts. Without leave of court or written
    stipulation, a request may not be served before the time specified
    in RCFC 26(d).
      The party upon whom the request is served shall serve a written
    response within 30 days after the service of the request. A shorter
    or longer time may be directed by the court or, in the absence of
    such an order, agreed to by the parties, subject to RCFC 29. 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 and inspection permitted
    of the remaining parts. The party submitting the request may move
    for an order under RCFC 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 RCFC 45.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 34 is identical to FRCP 34.

-End-



-CITE-
    28 USC APPENDIX Rule 35                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 35. Physical and Mental Examinations of Persons

-STATUTE-
      (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 RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 35 is identical to FRCP 35, except for the omission of the
    words, "in which the action is pending," in subdivision a.

-End-



-CITE-
    28 USC APPENDIX Rule 36                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 36. Requests for Admission

-STATUTE-
      (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 RCFC
    26(b)(1) 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. Without leave of court or written stipulation, requests
    for admission may not be served before the time specified in RCFC
    26(d).
      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 or as the parties may agree to in writing,
    subject to RCFC 29, 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. 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 RCFC 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 RCFC 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 RCFC 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 by the party for any other purpose nor may it be used
    against the party in any other proceeding.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 36 is identical to FRCP 36.

-End-



-CITE-
    28 USC APPENDIX Rule 37                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    V. DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 37. Failure to Make Disclosure or Cooperate in Discovery;
      Sanctions

-STATUTE-
      (a) Motion for Order Compelling Disclosure or Discovery. A party,
    upon reasonable notice to other parties and all persons affected
    thereby, may apply for an order compelling disclosure or discovery
    as follows:
        (1) Appropriate Court. [Not used.]
        (2) Motion.
          (A) If a party fails to make a disclosure required by RCFC
        26(a), any other party may move to compel disclosure and for
        appropriate sanctions. The motion must include a certification
        that the movant has in good faith conferred or attempted to
        confer with the party not making the disclosure in an effort to
        secure the disclosure without court action.
          (B) If a deponent fails to answer a question propounded or
        submitted under RCFC 30 or 31, or a corporation or other entity
        fails to make a designation under RCFC 30(b)(6) or 31(a), or a
        party fails to answer an interrogatory submitted under RCFC 33,
        or if a party, in response to a request for inspection
        submitted under RCFC 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. The motion must
        include a certification that the movant has in good faith
        conferred or attempted to confer with the person or party
        failing to make the discovery in an effort to secure the
        information or material without court action. When taking a
        deposition on oral examination, the proponent of the question
        may complete or adjourn the examination before applying for an
        order.

        (3) Evasive or Incomplete Disclosure, Answer, or Response. For
      purposes of this subdivision an evasive or incomplete disclosure,
      answer, or response is to be treated as a failure to disclose,
      answer, or respond.
        (4) Expenses and Sanctions.
          (A) If the motion is granted or if the disclosure or
        requested discovery is provided after the motion was filed, the
        court shall, after affording an opportunity to be heard,
        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 making the motion, including attorney's fees,
        unless the court finds that the motion was filed without the
        movant's first making a good faith effort to obtain the
        disclosure or discovery without court action, or that the
        opposing party's nondisclosure, response, or objection was
        substantially justified, or that other circumstances make an
        award of expenses unjust.
          (B) If the motion is denied, the court may enter any
        protective order authorized under RCFC 26(c) and shall, after
        affording an opportunity to be heard, require the moving party
        or the attorney filing 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.
          (C) If the motion is granted in part and denied in part, the
        court may enter any protective order authorized under RCFC
        26(c) and may, after affording an opportunity to be heard,
        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 Concerning Deponents. 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 Concerning Parties. If a party or an officer,
      director, or managing agent of a party or a person designated
      under RCFC 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 RCFC 35, or
      if a party fails to obey an order entered under RCFC 16(b), 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
        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
        RCFC 35(a) requiring the 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) Failure to Disclose; False or Misleading Disclosure; Refusal
    to Admit.
        (1) A party that without substantial justification fails to
      disclose information required by RCFC 26(a) or 26(e)(1), or to
      amend a prior response to discovery as required by RCFC 26(e)(2),
      is not, unless such failure is harmless, permitted to use as
      evidence at a trial, at a hearing, or on a motion any witness or
      information not so disclosed. In addition to or in lieu of this
      sanction, the court, on motion and after affording an opportunity
      to be heard, may impose other appropriate sanctions. In addition
      to requiring payment of reasonable expenses, including attorney's
      fees, caused by the failure, these sanctions may include any of
      the actions authorized under RCFC 37(b)(2)(A), (B), and (C).
        (2) If a party fails to admit the genuineness of any document
      or the truth of any matter as requested under RCFC 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 (A) the request was held objectionable
      pursuant to RCFC 36(a), or (B) the admission sought was of no
      substantial importance, or (C) the party failing to admit had
      reasonable ground to believe that the party might prevail on the
      matter, or (D) 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 RCFC 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 RCFC
    33, after proper service of the interrogatories, or (3) to serve a
    written response to a request for inspection submitted under RCFC
    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 subparagraphs (A), (B) and (C) of subdivision
    (b)(2) of this rule. Any motion specifying a failure under clause
    (2) or (3) of this subdivision shall include a certification that
    the movant has in good faith conferred or attempted to confer with
    the party failing to answer or respond in an effort to obtain such
    answer or response without court action. 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 a pending motion for a
    protective order as provided by RCFC 26(c).
      (e) [Abrogated in federal rule.]
      (f) [Repealed.]
      (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 development and submission of a proposed discovery plan as
    required by Appendix A &#182; 3, 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 37 parallels the structure and content of FRCP 37. The
    limited number of differences reflect those necessary for
    compatibility with the jurisdiction and other rules of the court.

-End-


-CITE-
    28 USC APPENDIX VI. TRIALS                                  01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
                                VI. TRIALS                            

-End-



-CITE-
    28 USC APPENDIX Rule 38                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 38. Jury Trial of Right [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 39                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 39. Trial by Jury or by the Court [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 40                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 40. Setting Cases for Trial

-STATUTE-
      Setting a case 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The text of RCFC 40 parallels, but is not identical to, FRCP 40.
    Like its federal rules counterpart, however, the purpose of the
    rule is to identify the responsibility of the judge in scheduling a
    matter for trial. The changes made to the text of the rule are
    minor and intended to clarify the rule's essential purpose, i.e.,
    that it is the judge's responsibility to determine the date and
    place of trial in accordance with 28 U.S.C. Secs. 173, 798(a), and
    2503(c).

-End-



-CITE-
    28 USC APPENDIX Rule 40.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 40.1. Assignment and Transfer of Cases

-STATUTE-
      (a) 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 (or reassigned) forthwith
    to a judge at random.
      (b) To promote docket efficiency, to conform to the requirements
    of any case management plan, or for the efficient administration of
    justice, a case may be transferred by order of the assigned judge
    to another judge upon the agreement of both judges. A motion to
    transfer may be initiated by a party. See RCFC 40.2.
      (c) The chief judge may reassign any case if the chief judge
    deems such action necessary for the efficient administration of
    justice.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 40.1 has no FRCP counterpart. The substance of the rule
    formerly appeared in these rules as part of paragraph (1) of RCFC
    77(f). The renumbering of RCFC 77(f) reflects its more logical
    placement in the structure of the court's rules.
      The new language introduced by the rule - subdivision (b) -
    represents a codification of internal procedures.

-End-



-CITE-
    28 USC APPENDIX Rule 40.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 40.2. Related Cases

-STATUTE-
      (a) Directly-Related Cases.
        (1) At the time a complaint is filed, the filing attorney (or
      pro se plaintiff) shall file and serve on all parties who have
      appeared a Notice of Directly-Related Case(s). Cases are deemed
      directly related when an earlier-filed case and the action being
      filed:
          (A) involve the same parties and are based on the same or
        similar claims; or
          (B) involve the same contract, property or patent.

        (2) Where a Notice of Directly-Related Cases is filed along
      with the new complaint, the clerk shall assign the case to the
      judge to whom the earliest-filed directly-related case is
      assigned. If the judge to whom the related case is assigned
      determines that the case in question is not in fact directly
      related, the judge will return the case to the clerk for random
      assignment.
        (3) Where the existence of directly-related cases becomes
      apparent only after initial assignment, the Notice of
      Directly-Related Cases shall be filed in all related cases,
      captioned in the name of the earliest-filed case. Solely for the
      purpose of filing this notice, counsel in the later-filed case
      may appear in the earlier-filed case. The Notice may be
      accompanied by a motion to transfer and a suggestion for
      consolidation under RCFC 42.1. The judge in the earliest-filed
      case, after consultation with the judge in the later-filed case,
      will grant or deny the motion to transfer.
        (4) Content of the Notice of Directly-Related Case(s). The
      notice of related case shall contain: the title and case number
      of the related case; a brief statement of the relationship of the
      actions according to the criteria set forth in subdivision (a);
      and a statement addressing whether assignment to a single judge
      or other action, including consolidation, is or is not likely to
      conserve judicial resources and promote an efficient
      determination of the actions.

      (b) Indirectly-Related Cases.
        (1) Whenever it appears to a party that there are two or more
      cases before the court that present common issues of fact and
      that transfer, consolidation, or the adoption of a coordinated
      discovery schedule would significantly promote the efficient
      administration of justice, the party may file a Notice of
      Indirectly-Related Cases. The notice shall be captioned in the
      name of the earliest-filed case which is related. Solely for
      purposes of filing the notice, counsel may appear in an
      earlier-filed case.
        (2) The notice shall list the name and docket number of all
      indirectly-related cases and shall detail the reasons supporting
      the proposed action. Counsel shall serve all parties in the
      related cases. The clerk shall file the notice in those cases and
      furnish a courtesy copy of the notice to the chief judge. Solely
      for the purpose of responding to the notice, counsel in the
      related cases may appear in the earliest-filed case to file a
      response to the notice. The response shall be filed within 21
      days of service and captioned in the name of the earliest-filed
      case. Responses shall be served on counsel in all cases. The
      clerk shall file copies of the responses in each of the cases and
      shall furnish courtesy copies to the chief judge.
        (3) The presiding judge of the earliest-filed case shall call a
      meeting of all of the presiding judges to determine what, if any,
      action is appropriate. The parties to each action shall be
      notified of any resulting decision.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 40.2 has no FRCP counterpart. The subject of the rule -
    Related Cases - previously appeared in these rules as RCFC 77(f)
    (as revised by General Order No. 36). The renumbering of the rule
    reflects its more logical placement in the structure of the court's
    rules.
      Unlike the predecessor rule, RCFC 40.2 recognizes two types of
    related cases: directly-related cases and indirectly-related cases.
    Directly-related cases retain the definition that applied under
    former RCFC 77(f). Thus, cases that "involve the same parties and
    are based on the same or similar claims" or "involve the same
    contract, property, or patent" are deemed to be directly related.
    Cases that are directly related share an identity of parties and/or
    subject matter that, for the sake of consistency in outcome,
    warrant their assignment to a single judge. Indirectly-related
    cases, by contrast, share only "common issues of fact." In the
    interests of efficiency and the conservation of resources, such
    cases may warrant consolidated management during their pretrial
    stage.
      In addition to recognizing two forms of related cases, RCFC 40.2
    also prescribes the notice procedures that are to be followed for
    the identification of such cases to the court and interested
    counsel.

-End-



-CITE-
    28 USC APPENDIX Rule 40.3                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 40.3. Complaints Against Judges

-STATUTE-
      (a) The Judicial Conduct and Disability Act of 1980, 28 U.S.C.
    Sec. 372(c)(18), directs the United States Court of Federal Claims
    to prescribe rules for the filing of complaints against judges of
    the court who have engaged in conduct prejudicial to the effective
    and expeditious administration of the business of the court or who
    are unable to discharge all the duties of the office by reason of
    mental or physical disability.
      (b) A copy of these rules, titled "Rules of the United States
    Court of Federal Claims Governing Complaints of Judicial Misconduct
    and Disability," is available upon request from the Office of the
    Clerk of the United States Court of Federal Claims, 717 Madison
    Place, NW, Washington, DC 20005. Pursuant to these rules, written
    complaints may be filed with the clerk.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 40.3 has no FRCP counterpart. However, the notice provided
    by the rule is in accordance with the recommendations of the
    Judicial Conference of the United States, urging that such notice
    be made part of the court's rules.
      The rule replaces former Appendix B ("Procedures for Processing
    Complaints of Judicial Misconduct") and its supplementing order,
    General Order No. 34 dated June 3, 1993. Inclusion of the rule as a
    subpart of RCFC 40 is intended to further a more coherent
    organizational structure for the court's rules.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Judicial Conduct and Disability Act of 1980, referred to in
    subd. (a), probably means the Judicial Councils Reform and Judicial
    Conduct and Disability Act of 1980, Pub. L. 96-458, Oct. 15, 1980,
    94 Stat. 2035. For complete classification of this Act to the Code,
    see Short Title of 1980 Amendments note set out under section 1 of
    this title and Tables.

-End-



-CITE-
    28 USC APPENDIX Rule 41                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 41. Dismissal of Actions

-STATUTE-
      (a) Voluntary Dismissal: Effect Thereof.
        (1) By Plaintiff; by Stipulation. Subject to the provisions of
      RCFC 23, 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 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 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 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 this
    subdivision 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 RCFC 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 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 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor changes were made to more closely conform the rule to FRCP
    41. Substantively, however, the rule remains unchanged.

-End-



-CITE-
    28 USC APPENDIX Rule 42                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 42. Consolidation; Separate Trials

-STATUTE-
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 42 remains unchanged. Thus, as before, the rule parallels in
    part FRCP 42 and, in addition, includes subdivision (c) ("Separate
    Determination of Liability") permitting the liability phase of a
    lawsuit to be separated from, and decided independently of, the
    quantum phase.

-End-



-CITE-
    28 USC APPENDIX Rule 42.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 42.1. Motions to Consolidate

-STATUTE-
      Motions to consolidate shall be directed to the judge to whom the
    relevant cases are assigned. In the event the relevant cases are
    assigned to different judges, a motion to transfer may be made
    pursuant to RCFC 40.1, with a suggestion of the appropriateness of
    consolidation.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 42.1 has no FRCP counterpart. It identifies the procedure
    applicable to motions for the consolidation of actions pending
    before different judges.

-End-



-CITE-
    28 USC APPENDIX Rule 43                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 43. Taking of Testimony

-STATUTE-
      (a) Form. In every trial the testimony of witnesses shall be
    taken in open court, unless a federal law, these rules, the Federal
    Rules of Evidence, or other rules adopted by the Supreme Court
    provide otherwise. The court may, for good cause shown in
    compelling circumstances and upon appropriate safeguards, permit
    presentation of testimony in open court by contemporaneous
    transmission from a different location.
      (b), (c) [Abrogated in federal rule.]
      (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
    deposition.
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The rule is identical to FRCP 43.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a), are set
    out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 44                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 44. Proof of Official Record

-STATUTE-
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 44 is identical to FRCP 44.

-End-



-CITE-
    28 USC APPENDIX Rule 44.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 44.1. Determination of Foreign Law

-STATUTE-
      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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The rule is identical to FRCP 44.1.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in text, are set out
    in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 45                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 45. Subpoena

-STATUTE-
      (a) Form (See Appendix of Forms, Forms 6 and 7A); 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 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) [Not used.]
        (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, authorized to sign
      filings under RCFC 83.1, may also issue and sign a subpoena on
      behalf of the Court of Federal Claims.

      (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. Sec. 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 RCFC 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. Sec. 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 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).


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 45 conforms to FRCP 45 to the extent feasible given the
    court's nationwide jurisdiction.

-End-



-CITE-
    28 USC APPENDIX Rule 46                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 46. Exceptions Unnecessary

-STATUTE-
      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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The rule is identical to the corresponding FRCP.

-End-



-CITE-
    28 USC APPENDIX Rule 47                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 47. Selection of Jurors [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 48                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 48. Number of Jurors - Participation in Verdict [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 49                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 49. Special Verdicts and Interrogatories [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 50                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative
      Motion for New Trial; Conditional Rulings [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 51                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 51. Instructions to Jury: Objection [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 52                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 52. Findings by the Court; Judgment on Partial Findings

-STATUTE-
      (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 RCFC 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 (!1) 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
    RCFC 12 or 56 or any other motion except as provided in subdivision
    (c) of this rule.

      (b) Amendment. On a party's motion filed no 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 accompany a motion for a new trial under RCFC 59. The
    sufficiency of the evidence to support the findings may be
    questioned whether or not the party raising the question objected
    to the findings, moved to amend them, or moved for partial
    findings.
      (c) Judgment on Partial Findings. If during a trial a party has
    been fully heard on 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 with respect to a claim or defense 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The principal change in RCFC 52 relates to the enlargement of
    subdivision (c) to include, among issues subject to judgment on
    partial findings, the adjudication of issues critical to the legal
    sufficiency of a "defense." The amendment makes clear that
    judgments as a matter of law may be entered against both plaintiffs
    and defendants and with respect to issues or defenses that may not
    be wholly dispositive of a claim or defense.

-FOOTNOTE-
    (!1) So in original.


-End-



-CITE-
    28 USC APPENDIX Rule 53                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VI. TRIALS

-HEAD-
    Rule 53. Masters

-STATUTE-
      (a) Appointment and Compensation. The chief judge, at the request
    of the presiding judge, may appoint a special master. 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 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 RCFC 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 RCFC 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. 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) 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) In Jury Actions. [Not used.]
        (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) Application to Magistrate Judge. [Not used.]


-MISC1-
                           RULES COMMITTEE NOTE                       
      Subdivision (a) recognizes that the chief judge has the power to
    appoint special masters pursuant to 28 U.S.C. Sec. 798. Paragraph
    (2) of subdivision (d) recognizes the court's power to utilize
    contempt procedures in appropriate circumstances.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (c), are set
    out in this Appendix.

-End-


-CITE-
    28 USC APPENDIX VII. JUDGMENT                               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
                               VII. JUDGMENT                           

-End-



-CITE-
    28 USC APPENDIX Rule 54                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 54. Judgments; Costs

-STATUTE-
      (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, 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; Attorneys' Fees.
        (1) Costs Other than Attorneys' Fees. Costs other than
      attorneys' fees may be awarded to the prevailing party to the
      extent permitted by law. See 28 U.S.C. Sec. 2412(a).
          (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 the Appendix of Forms (Form 4) within 30 days after
        the date of final judgment, as defined in 28 U.S.C. Sec.
        2412(d)(2)(G). In any case where any costs other than the fee
        for filing the action are being requested, the bill of costs
        shall be supported by affidavit and accompanied by a memorandum
        setting forth the grounds and authorities supporting the
        request. Any vouchers, receipts or invoices supporting the cost
        being requested shall be attached as exhibits.
          (B) Objections to Bill of Costs. (i) An adverse party may
        object to the Bill of Costs or to any item claimed therein by
        filing objections within 28 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. (ii) A
        party may request the court to review the clerk's action by
        filing a motion within 14 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 RCFC 68 or is dismissed pursuant to RCFC 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.

        (2) Attorneys' Fees.
          (A) Claims for attorneys' fees and related nontaxable
        expenses shall be made by motion unless the substantive law
        governing the action provides for the recovery of such fees as
        an element of damages to be proved at trial. See Appendix of
        Forms, Form 5.
          (B) Unless otherwise provided by statute or order of the
        court, the motion must be filed no later than 30 days after the
        date of final judgment, as defined in 28 U.S.C. Sec.
        2412(d)(2)(G); must specify the judgment and the statute, rule,
        or other grounds entitling the moving party to the award; and
        must state the amount sought. If directed by the court, the
        motion shall also disclose the terms of any agreement with
        respect to fees to be paid for the services for which claim is
        made.
          (C) The court may determine issues of liability for fees
        before receiving submissions bearing on issues of evaluation of
        services for which liability is imposed by the court. The court
        shall find the facts and state its conclusions of law as
        provided in RCFC 52(a).
          (D) The responding party shall have 28 days from the service
        of the motion pursuant to subdivision (d)(2)(A) to file a
        response, to which plaintiff may reply within 14 days after
        service of the response. After the filing of a motion, 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. In addition, the court may refer
        issues relating to the value of services to a special master
        under RCFC 53 without regard to the provisions of subdivision
        (b) thereof.
          (E) The provisions of subdivisions (d)(2)(A) through (D) do
        not apply to claims for fees and expenses as sanctions for
        violations of these rules or under 28 U.S.C. Sec. 1927.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 54(d) was revised in several respects. The subdivision was
    modified to conform its structure to FRCP 54(d). In addition, the
    subdivision, as re-written, departs from its FRCP counterpart in
    several respects:
      First, because the allowance of attorneys' fees and costs in this
    court is almost always determined under the provisions of 28 U.S.C.
    Sec. 2412 (a) & (d) (the Equal Access to Justice Act), it was
    deemed advisable to reflect this fact in paragraph (d)(2) rather
    than to retain the broader, but potentially misleading, language
    that appears in FRCP 54(d)(1). See Neal & Co. v. United States, 121
    F.3d 683 (Fed. Cir. 1997).
      Second, Subdivision (d)(1) was enlarged beyond the scope of its
    FRCP counterpart by the incorporation of RCFC 77.4 ("Taxation of
    Costs").
      Third, Subdivision (d)(2) brings together relevant sections of
    its FRCP counterpart and former RCFC 81(e) ("Application for
    Attorneys' Fees").
      Finally, the time periods for objecting to a Bill of Costs and
    for requesting review of the clerk's action are enlarged.

-End-



-CITE-
    28 USC APPENDIX Rule 55                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 55. Default

-STATUTE-
      (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. No judgment by default shall be entered unless the
    claimant establishes a claim or right to relief by evidence
    satisfactory to the court. 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.
      (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 RCFC 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 RCFC 54(c).


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 55 recognizes the distinction between entry of default and
    entry of judgment for default. Substantial changes were made. The
    language in former subdivision (b)(1), permitting entry of default
    judgment by the clerk, is omitted. Additionally, the protection
    previously afforded only to the United States - prohibiting entry
    of default judgments absent a showing by the claimant of a right to
    relief by evidence satisfactory to the court - is expanded to
    include all parties. Judgment requires proof and involvement of the
    court.

-End-



-CITE-
    28 USC APPENDIX Rule 56                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 56. Summary Judgment

-STATUTE-
      (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 the 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) 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.
      (h) 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 titled 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, a response to the requested findings by indicating,
      immediately below each finding, whether it agrees or disagrees
      with the finding as stated. If the opposing party does not agree
      with the proposed finding, it shall note the basis for its
      objection and may draft a proposed revision of the finding
      directly below the challenged finding. The opposing party may
      also file proposed findings of uncontroverted fact as to any
      relevant matters not covered by the moving party's statement.
      Such additional statements of proposed findings shall be set
      forth with the proposed findings applicable to any cross-motion,
      but in the absence of a cross-motion shall be set forth in a
      separate document. Responses to such additional proposed findings
      shall be filed in a format which conforms to the instructions
      noted above.
        (3) The parties may dispense with the documents called for in
      subdivision (h)(1)-(2) 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 controverted by
      affidavit or other written or oral evidence.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The subdivision structure of RCFC 56 was reordered to more
    closely conform to FRCP 56. In addition, the subdivision outlining
    the procedures for filing a RCFC 56 motion was changed to eliminate
    the Statement of Genuine Issues and to require parties to express
    their views on any particular fact by noting them on a single page,
    which may include a redraft of the challenged finding.

-End-



-CITE-
    28 USC APPENDIX Rule 56.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 56.1. Review of Decision on the Basis of Administrative Record

-STATUTE-
      (a) Standards. RCFC 56(a)-(b) applies, with the exception that
    any supplementation of the administrative record shall be by
    stipulation or by court order.
      (b) Procedures.
        (1) The moving or cross-moving party shall file, together with
      its motion, a separate document titled 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 opposition
      or cross-motion, a separate document titled Counter-Statement of
      Facts. This document shall indicate immediately below each
      statement of fact whether it agrees or disagrees with the fact as
      stated. 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 in
      like format.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 56.1 has no FRCP counterpart. In the interests of procedural
    clarity, the text of subdivision (a) was modified to reflect
    current practice with respect to supplementation of the
    administrative record and subdivision (b)(2) was modified to make
    explicit an opposing party's right to file an opposition as well as
    a cross-motion. In addition, the rule was conformed to RCFC 56
    practice, in that the statement of facts and counterstatement of
    facts are presented in a single document. In other respects, RCFC
    56.1 remains unchanged.

-End-



-CITE-
    28 USC APPENDIX Rule 56.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 56.2. Remand; Extension or Termination of Stay of Proceedings
      on Remand; Disposition of Case

-STATUTE-
      (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, (B) fix the duration of the remand
      period, not to exceed 6 months, and (C) specify the extent to
      which court proceedings shall be stayed during the remand period.
        (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 RCFC 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), rendered a decision
      on the matter remanded, the party to whom opportunity was
      afforded to obtain further administrative consideration shall, by
      motion pursuant to RCFC 6, request an extension of the stay of
      proceedings, or, by motion pursuant to RCFC 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), 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), 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 RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 56.2 has no FRCP counterpart. The rule formerly appeared in
    these rules as RCFC 60.1. The renumbering of RCFC 60.1 is intended
    to reflect its more logical placement in the organizational
    structure of the court's rules.

-End-



-CITE-
    28 USC APPENDIX Rule 57                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 57. Declaratory Judgments

-STATUTE-
      The procedure for obtaining a declaratory judgment pursuant to 28
    U.S.C. Secs. 1491(b)(2) 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The reference to 28 U.S.C. Sec. 1491(a) was amended to reflect
    the corresponding change in that statute. The court's authority to
    render declaratory judgments in the context of procurement protests
    is found in 28 U.S.C. Sec. 1491(b)(2).

-End-



-CITE-
    28 USC APPENDIX Rule 58                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 58. Entry of Judgment

-STATUTE-
      (a) Separate Document.
        (1) Every judgment and amended judgment must be set forth on a
      separate document, but a separate document is not required for an
      order disposing of a motion:
          (A) [Not Used]
          (B) to amend or make additional findings of fact under RCFC
        52(b);
          (C) for attorney fees under RCFC 54;
          (D) for a new trial, or to alter or amend the judgment, under
        RCFC 59; or
          (E) for relief under RCFC 60.

        (2) Subject to RCFC 54(b):
          (A) unless the court orders otherwise, the clerk must,
        without awaiting the court's direction, promptly prepare, sign,
        and enter the judgment when:
            (i) [Not Used]
            (ii) the court awards only costs or a sum certain, or
            (iii) the court denies all relief;

          (B) the court must promptly approve the form of the judgment,
        which the clerk must promptly enter, when:
            (i) [Not Used]
            (ii) the court grants other relief not described in RCFC
          58(a)(2).

      (b) Time of Entry. Judgment is entered for purposes of these
    rules:
        (1) if RCFC 58(a)(1) does not require a separate document, when
      it is entered in the civil docket under RCFC 79(a), and
        (2) if Rule (!1) RCFC 58(a)(1) requires a separate document,
      when it is entered in the civil docket under RCFC 79(a) and when
      the earlier of these events occurs:

          (A) when it is set forth on a separate document, or
          (B) when 60 days have run from entry on the civil docket
        under RCFC 79(a).

      (c) Cost or Fee Awards.
        (1) Entry of judgment may not be delayed, nor the time for
      appeal extended, in order to tax costs or award fees except as
      provided in RCFC 58(c)(2).
        (2) When a timely motion for attorney fees is made under RCFC
      54(d)(2) the court may act before a notice of appeal has been
      filed and has become effective to order that the motion have the
      same effect under Federal Rule of Appellate Procedure 4(a)(4) as
      a timely motion under RCFC 59.

      (d) Request for Entry. A party may request that judgment be set
    forth on a separate document as required by RCFC 58(a)(1).

-SOURCE-
    (As amended Sept. 15, 2003.)


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 58 is essentially identical to the text of FRCP 58 as
    amended to December 1, 2002.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in subd.
    (c)(2), are set out in this Appendix.

-FOOTNOTE-
    (!1) So in original. "Rule" probably should not appear.


-End-



-CITE-
    28 USC APPENDIX Rule 58.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 58.1. Notice of Appeal

-STATUTE-
      Review of a decision of this court shall be obtained by filing
    with the clerk an original and the requisite number of copies of a
    notice of appeal (but not fewer than four) within the time and
    manner prescribed for appeals to United States courts of appeal as
    provided for in Rule 3 of the Federal Rules of Appellate Procedure,
    together with the fee provided in RCFC 77.1(c)(2) of the Rules of
    the United States Court of Federal Claims.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Although the rule has no FRCP counterpart, it is a necessary
    component of the court's rules because it prescribes the time and
    manner for the filing of an appeal from a decision of this court.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in text,
    are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 59                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 59. New Trials; Rehearings; Amendment of Judgments;
      Reconsideration

-STATUTE-
      (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 to the United States.

      (b) Time for Motion and Response. Except as provided in
    subdivision (a)(2), a motion for a new trial, or for amendment or
    reconsideration of a judgment, shall be filed no later than 10 days
    after the entry of the judgment. When such a motion is based on
    affidavits, they shall be filed with the motion. No response to any
    motion under this rule may be filed, unless requested by the court.
    The court will not rule in favor of any motion under this rule
    without first requesting by order a response to the motion.
      (c) [Not used.]
      (d) On Court's Initiative; Notice; Specifying Grounds. No later
    than 10 days after entry of judgment the court, on its own, may
    order a new trial for any reason that would justify granting one on
    a party's motion. After giving the parties notice and an
    opportunity to be heard, the court may grant a timely motion for a
    new trial for a reason not stated in the motion. When granting a
    new trial on its own initiative or for a reason not stated in a
    motion, the court shall specify the grounds in its order.
      (e) Motion to Alter or Amend a Judgment. Any motion to alter or
    amend a judgment shall be filed no later than 10 days after entry
    of the judgment.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor changes in wording were made to more closely conform to
    FRCP 59. Subdivision (c) was deleted to reflect the difference in
    Court of Federal Claims practice, set out in subdivision (b), which
    directs that a response to a RCFC 59 motion is only required when
    directed by the court, even if the motion is accompanied by an
    affidavit. Other differences were retained, including the
    distinction between final and non-final orders, which can be the
    subject of motions for reconsideration at any time before final
    judgment.

-End-



-CITE-
    28 USC APPENDIX Rule 60                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 60. Relief from Judgment or Order

-STATUTE-
      (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 RCFC 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 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor changes in wording were made to more closely conform to
    FRCP 60. Necessary differences were retained.

-End-



-CITE-
    28 USC APPENDIX Rule 61                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 61. Harmless Error

-STATUTE-
      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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The rule as written is identical to FRCP 61.

-End-



-CITE-
    28 USC APPENDIX Rule 62                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 62. Stay of Proceedings to Enforce a Judgment

-STATUTE-
      (a) Automatic Stay; Exceptions - Injunctions 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 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 RCFC 59, or of a motion for relief from a judgment or
    order made pursuant to RCFC 60, or of a motion for amendment to the
    findings or for additional findings made pursuant to RCFC 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) Stay According to State Law. [Not used.]
      (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 RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor changes in text were made to subdivision (a) in order to
    more closely conform the rule to FRCP 62. However, certain
    necessary differences were retained.

-End-



-CITE-
    28 USC APPENDIX Rule 63                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VII. JUDGMENT

-HEAD-
    Rule 63. Inability of a Judge to Proceed

-STATUTE-
      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 again without undue burden. The successor judge may also
    recall any other witness.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Subdivisions (b) and (c) were deleted as unnecessary. The
    substance of each is covered in 28 U.S.C. Sec. 455 and in the Codes
    of Conduct for Judges and Judicial Employees. The rule as rewritten
    is essentially identical to FRCP 63.

-End-


-CITE-
    28 USC APPENDIX VIII. PROVISIONAL AND FINAL
      REMEDIES                                             01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
                   VIII. PROVISIONAL AND FINAL REMEDIES               

-End-



-CITE-
    28 USC APPENDIX Rule 64                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 64. Seizure of Person or Property [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 65                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 65. Injunctions

-STATUTE-
      (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 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 attorney's 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 RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Minor textual changes were made to subdivision (b) in order to
    more closely conform to its FRCP counterpart. Additionally,
    subdivision (f) (titled "Procedures") has been relocated to
    Appendix C. (Appendix C supersedes former General Order No. 38,
    dated May 7, 1998, which described the court's standard practices
    in procurement protest cases filed pursuant to 28 U.S.C. Sec.
    1491(b).)

-End-



-CITE-
    28 USC APPENDIX Rule 65.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 65.1. Security: Proceedings Against Sureties

-STATUTE-
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Subdivision (a) is identical to FRCP 65.1. Subdivision (b)
    (titled "Sureties"), although unique to this court, provides
    information useful to the court's practitioners and is therefore
    being retained.

-End-



-CITE-
    28 USC APPENDIX Rule 66                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 66. Receivers Appointed by Federal Courts [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 67                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 67. Deposit in Court [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 68                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 68. Offer of Judgment

-STATUTE-
      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 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      A minor change in wording was made in order to more closely
    conform to FRCP 68.

-End-



-CITE-
    28 USC APPENDIX Rule 69                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 69. Execution [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 70                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 70. Judgment for Specific Acts; Vesting Title [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 71                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    VIII. PROVISIONAL AND FINAL REMEDIES

-HEAD-
    Rule 71. Process in Behalf of and Against Persons Not Parties [Not
      used.]
-STATUTE-


-End-


-CITE-
    28 USC APPENDIX IX. SPECIAL PROCEEDINGS                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IX. SPECIAL PROCEEDINGS

-HEAD-
                          IX. SPECIAL PROCEEDINGS                      

-End-



-CITE-
    28 USC APPENDIX Rule 71A                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 71A. Condemnation of Property [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 72                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 72. Notice of Appeal [Not used.]


-STATUTE-

-MISC1-
                           RULES COMMITTEE NOTE                       
      Chapter IX of the Federal Rules of Civil Procedure, titled
    "Special Proceedings," (comprising FRCP 71A - FRCP 73) has not been
    included in the main body of the court's rules. Instead, rules
    relating to the court's special proceedings appear in the
    appendices to the rules.

-End-



-CITE-
    28 USC APPENDIX Rule 73                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 73. Magistrate Judges; Trial by Consent and Appeal Options
      [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 74-76                                  01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    IX. SPECIAL PROCEEDINGS

-HEAD-
    Rule 74-76. [Abrogated.]
-STATUTE-


-End-


-CITE-
    28 USC APPENDIX X. COURT AND CLERK                          01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
                            X. COURT AND CLERK                        

-End-



-CITE-
    28 USC APPENDIX Rule 77                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 77. Court and Clerk

-STATUTE-
      (a) Court Always Open. The court 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.
      (b) Trials and Hearings; Proceedings in Chambers.
        (1) Proceedings Generally. 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 or at any other place designated by order.
        (2) Trials or Hearings in Foreign Countries. Upon motion of a
      party or upon the judge's own initiative, and upon a
      determination by the judge to whom the case is assigned that the
      interests of economy, efficiency, and justice will be served, the
      chief judge of the Court of Federal Claims may issue an order
      authorizing a judge of the court to conduct proceedings,
      including evidentiary hearings and trials, in a foreign country
      whose laws do not prohibit such proceedings.

      (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 the following
    holidays: New Year's Day, Inauguration Day, Birthday of Martin
    Luther King, Jr., Washington's Birthday, Memorial Day, Independence
    Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,
    Christmas Day, and any other day designated as a holiday by the
    President or the Congress of the United States. 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.
      (d) 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 RCFC 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 RCFC 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      In order to more closely parallel the structure and content of
    FRCP 77, RCFC 77 has been modified as follows:
      Former subdivisions (a) (referring to the court's "Name"), (b)
    (referring to the court's "Seal"), (d) (captioned "Citations") and
    (e) (identifying the court's judicial power as being exercisable by
    a single judge, except in congressional reference cases), have been
    deleted as unnecessary.
      Subdivision (b) (formerly subdivision (h) of this rule) is
    changed in two respects. First, in order better to reflect its
    content, the subdivision is retitled to read "Trials and Hearings;
    Proceedings in Chambers" (in lieu of "Trials and Hearings; Orders
    in Chambers"). Second, the subdivision has been divided into
    paragraphs (1) and (2). Paragraph (1), captioned "Proceedings
    Generally," retains the rule's earlier language; paragraph (2),
    captioned "Trials or Hearings in Foreign Countries," is new.
    Paragraph (2) was added to recognize the court's authority under 28
    U.S.C. Sec. 798(b) to conduct trials or hearings in foreign
    countries.
      Former subdivision (f) (titled "Assignment of Cases") was
    renumbered as RCFC 40.1.
      Former subdivision (g) (titled "Signing of Orders for Absent
    Judges") was renumbered as RCFC 77.2(b).
      Former subdivisions (l) & (k) (titled, respectively, "Scheduling
    Courtrooms" and "Fee Schedule"), were renumbered as RCFC 77.1.
      Finally, former subdivision (m) was deleted in order to recognize
    the right of certain court employees to participate in pro bono
    legal work under the guidelines prescribed for that purpose by the
    Codes of Conduct for Judicial Employees.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in subd.
    (d), are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 77.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 77.1. Business Hours, Scheduling and Fees

-STATUTE-
      (a) Business Hours. The Office of the Clerk is open during 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 box is located inside 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) 219-9562.
      (b) Scheduling. 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. All conferences, oral arguments,
    trials, and other recorded appearances shall be scheduled by the
    judge by order filed with the clerk.
      (c) 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:


    Admission to practice and certificate      $50.00                   
     thereof                                                            
    (Calligraphied certificate                 $25.00)                  
    Duplicate certificate of admission or      $15.00                   
     certificate of good standing                                       
    Filing complaint                           $150.00                  
    Filing intervening complaint               $150.00                  
    Certifying any document or paper           $7.00                    
    Reproducing any record, entry or other     $.50 per page            
     paper for a maximum of 50 pages                                    
    Filing Notice of Appeal                    $105.00 (includes $5.00  
                                                notice of appeal and    
                                                $100.00 Court of Appeals
                                                fees)                   
    Receipt of monthly listing of court        $15.00                   
     orders and opinions                                                
    Record search (per name or item            $20.00                   
     searched)                                                          
    --------------------------------------------------------------------

      Such other fees as authorized by the Judicial Conference of the
    United States.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Former RCFC 77.1 was deleted in its entirety. Current RCFC 77.1
    reflects portions of the text of former subdivisions (c) as well as
    subdivisions (h) and (i) of RCFC 77.

-End-



-CITE-
    28 USC APPENDIX Rule 77.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 77.2. Authorization to Act on Certain Motions

-STATUTE-
      (a) Clerk Authorization. Any motion for enlargement of time to
    answer or respond to the complaint or, for substitution of counsel,
    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.
      In acting on motions for enlargement of time under this
    subdivision of the rule, the total enlargement of time allowed by
    the clerk with respect to any matter shall not exceed 60 days.
      (b) 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 to another judge designated by the assigned judge.


-MISC1-
                           RULES COMMITTEE NOTE                       
      This rule has no FRCP counterpart. The rule was changed in
    several respects. First, former subdivisions (a) and (b) were
    combined into a new subdivision (a). Second, language in former
    subdivision (a) relating to the "permanent withdrawal of papers"
    was deleted to reflect corresponding changes in RCFC 77.3 that
    abolish the practice of permitting the withdrawal of papers from
    the clerk's office. Third, former subdivisions (c) and (d) were
    deleted as unnecessary. Finally, new subdivision (b) reflects text
    transferred from former subdivision (g) of RCFC 77.

-End-



-CITE-
    28 USC APPENDIX Rule 77.3                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 77.3. Withdrawal of Papers, Exhibits

-STATUTE-
      (a) Withdrawal for Trial. The reporter engaged to transcribe the
    evidence may temporarily withdraw all papers and exhibits for use
    during any trial session. All exhibits admitted into evidence or
    designated to accompany the transcript shall remain in the
    reporter's custody until the transcript of the court session is
    filed with the clerk.
      (b) Withdrawal of Papers and Exhibits. No papers or exhibits
    filed with the court shall be temporarily or permanently withdrawn
    from the office or custody of the clerk except by order of the
    court. No such order will be entered except in extraordinary
    circumstances. In the event of such withdrawal, a record of the
    filing and the order of withdrawal shall be preserved.
      (c) Disposition of Physical Exhibits. All physical exhibits,
    including models, diagrams, depositions, transcripts, briefs,
    tables, and charts shall be removed from the clerk's custody by the
    party by whom they were produced or offered within sixty (60) days
    after the entry of final judgment by this court, or, in the event
    of an appeal, within ninety (90) days after the receipt and filing
    of a mandate or other process or certificate showing the
    disposition of the case by the appellate court; otherwise, such
    exhibits shall be deemed abandoned and shall be destroyed or
    otherwise disposed of by the clerk.
      (d) Sealed Materials. Unless otherwise specified by order, no
    earlier than five years after the entry of final judgment by this
    court, or, in the event of appeal, within five years after the
    receipt and filing of a mandate or other process or certificate
    showing disposition of the case by the appellate court, the clerk
    may notify the parties that materials maintained under seal shall
    be unsealed, absent timely notice of objection by either party.


-MISC1-
                           RULES COMMITTEE NOTE                       
      This rule has no FRCP counterpart. The rule has been amended in
    several respects:
      First, former subdivision (a) was deleted, thereby eliminating
    the practice of permitting temporary withdrawal of exhibits and
    papers by the parties. The need to accommodate the copying of
    extensive parts of a record should be addressed directly through
    arrangements made by the clerk.
      Subdivision (a), formerly subdivision (b), was amended to clarify
    that the reporter is to retain custody of the transcript and
    exhibits until they are filed with the clerk.
      New subdivision (b), formerly subdivision (c), clarifies that no
    withdrawal of papers or exhibits from the clerk's office may occur
    in the absence of a court order, and then only in extraordinary
    circumstances. The fact of withdrawal shall be preserved in the
    court's docketing entries.
      New subdivision (c), formerly subdivision (d), was rewritten to
    clarify the practice with respect to the disposition of physical
    exhibits and to make clear the parties' obligation to retrieve such
    exhibits, to avoid their loss through routine disposal. The
    reference to in camera materials was omitted, because such
    materials are not filed with the Office of the Clerk.
      New subdivision (d) establishes a procedure for handling
    materials filed under seal, requiring the parties affirmatively to
    indicate a desire to maintain filings in closed cases under seal.

-End-



-CITE-
    28 USC APPENDIX Rule 78                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 78. Motions Day [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 79                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 79. Books and Records Kept by the Clerk and Entries Therein

-STATUTE-
      (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,
    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) 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.
      (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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The word "civil" was added to subdivision (a) to more closely
    conform the rule to FRCP 79. RCFC 79 as it now reads is essentially
    identical to FRCP 79.

-End-



-CITE-
    28 USC APPENDIX Rule 80                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 80. Record or Transcript as Evidence

-STATUTE-
      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 duly certified by the person who
    reported the testimony.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Former subdivisions (a), (b) and (c) were deleted and minor
    changes were made to former subdivision (d) in order to more
    closely conform the rule to FRCP 80.

-End-



-CITE-
    28 USC APPENDIX Rule 80.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    X. COURT AND CLERK

-HEAD-
    Rule 80.1. Instructions to Reporters

-STATUTE-
      (a) Record of Proceedings. The court will furnish a reporter to
    take down the trial proceedings and transcribe the same in any
    trial.
      (b) Reporter; Control. The reporter shall be under the
    jurisdiction and control of the judge.
      (c) 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 Appendix of Forms, Form 3.
      (d) 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.
      (e) 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.
      (f) 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.
      (g) Certificate of Reporter. The reporter shall append to the
    transcript of the testimony a certificate similar to Appendix of
    Forms (Forms 3A and 3B). The certificate shall be signed by the
    reporter.
      (h) index.(!1) 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.

      (i) 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 80.1 has no FRCP counterpart. The rule's principal text
    formerly appeared in these rules as Appendix A. The incorporation
    of former Appendix A into the main body of the rules reflects a
    more logical placement of its subject matter in the organizational
    structure of the court's rules. Additionally, as part of this
    rule's relocation, Forms A and B of former Appendix A (pertaining
    to reporter certifications) were assigned to the new Appendix of
    Forms. They appear there as Forms 3A and 3B.
      Other changes introduced in this rule include the following:
      Subdivision (a) of the rule formerly appeared in these rules as
    paragraph (b)(1) of RCFC 39. The changes introduced in new
    subdivision (a) were deemed necessary in order to eliminate
    uncertainty as to the court's authority to furnish a reporter for
    trials scheduled outside of the United States.
      Subdivision (b) of the rule formerly appeared as paragraph (b)(2)
    of RCFC 39.
      Subdivision (i) of the rule formerly appeared as paragraph (b)(3)
    of RCFC 39. Additionally, subdivision (i) reflects the change in
    the court's name.

-FOOTNOTE-
    (!1) So in original. Probably should be capitalized.


-End-


-CITE-
    28 USC APPENDIX XI. GENERAL PROVISIONS                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
                          XI. GENERAL PROVISIONS                      

-End-



-CITE-
    28 USC APPENDIX Rule 81                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 81. Applicability in General [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 82                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 82. Jurisdiction and Venue Unaffected [Not used.]
-STATUTE-


-End-



-CITE-
    28 USC APPENDIX Rule 83                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 83. Rules by Court of Federal Claims; Judge's Directives

-STATUTE-
      (a) Rules. The United States Court of Federal Claims, acting by a
    majority of its judges, may, after giving appropriate public notice
    and an opportunity for comment, make and amend rules governing its
    practice. Such rules, to the extent permitted by this court's
    jurisdiction, shall be consistent with the Federal Rules of Civil
    Procedure and to any uniform numbering system prescribed by the
    Judicial Conference of the United States. A rule takes effect on
    the date specified by the court and remains in effect unless
    amended by the court. Copies of rules and amendments shall be made
    available to the public.
      (b) Procedures When There is no Controlling Law. A judge may
    regulate practice in any manner consistent with federal law or
    rules adopted under 28 U.S.C. Secs. 2072, or 2503(b). No sanction
    or other disadvantage may be imposed for non-compliance with any
    requirement not in federal law, federal rules, or these rules,
    unless the alleged violator has been furnished in the particular
    case with actual notice of the requirement.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 83 is modeled after FRCP 83. The rule recognizes the court's
    rule-making authority as set forth at 28 U.S.C. Sec. 2503, as well
    as the individual judge's authority to regulate practice in an
    individual case, so long as that practice is consistent with
    federal law and rules.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Civil Procedure, referred to in subd. (a),
    are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 83.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 83.1. Attorneys

-STATUTE-
      (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, provided that any attorney admitted to practice before the
    highest court of any state, territory, possession or the District
    of Columbia may participate pro hac vice in any proceeding at the
    request of and in the presence of the attorney of record for a
    party to the proceeding, or otherwise with the approval of the
    court. All attorneys who were members in good standing of the bar
    of the United States Court of Claims are eligible to practice
    herein. See RCFC 83.1(c)(2) concerning authorization to sign
    filings.
      (b) Admission to Practice.
        (1) Qualifications; Oath. Any person of good moral character
      who has been admitted to practice before the Supreme Court of the
      United States, the United States Court of Appeals for the Federal
      Circuit, or the highest court of any state, territory,
      possession, or the District of Columbia, and is in good standing
      therein, may be admitted to practice before this court upon oral
      motion or by verified application, as provided in this rule, and
      upon taking or subscribing to the following oath: I, ________, do
      solemnly swear (or affirm) that I will support the Constitution
      of the United States and that I will conduct myself in an upright
      manner as an attorney of this court.
        (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. Motions for
        admission will be heard the first Thursday of each month which
        is not a legal holiday as defined by RCFC 6(a). Where the first
        Thursday of the month falls on a legal holiday, admissions will
        be held on the second Thursday of the month. 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. 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. Applicants who for
        special reasons are unable to appear for admission on the first
        Thursday of the month should contact the Office of the Clerk to
        make appropriate arrangements.
          (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). 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), 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 showing that the applicant is possessed of
      the qualifications described in subdivision (b)(1). See Appendix
      of Forms, Form 1. 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) indicating 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, affirming 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 application, and that the applicant's
      personal and professional character and standing are good; and
      (C) an oath in the form prescribed in subdivision (b)(1) 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. Sec. 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 RCFC 77.1 (c)(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) 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 attorney who is a member
      of the bar of this court 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 the following after the name
      of the attorney of record: "by [the signing attorney's full
      name]." Authorization to sign filings shall not relieve the
      attorney of record from the provisions of RCFC 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, telephone, and facsimile number.
      For the United States the attorney who is to appear as the
      attorney of record shall, promptly after service of the
      complaint, 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) Unrepresented Party. 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 unrepresented parties.

      (d) Honorary Membership. Honorary membership in the bar of the
    court may be granted from time to time to distinguished
    professionals of the United States or of other nations who are
    knowledgeable in the affairs of law and government in their
    respective countries. After nomination by the chief judge and
    approval by the court, the candidate for honorary membership will
    be presented at the bar in person. A certificate of honorary
    membership in the bar will be presented to the person so honored.


-MISC1-
                           RULES COMMITTEE NOTE                       
      This rule has no FRCP counterpart. Former RCFC 83.1 ("Content of
    Briefs or Memoranda; Length of Briefs or Memoranda") has been
    renumbered as RCFC 5.2. The renumbering of RCFC 83.1 was intended
    to reflect its more logical placement in the organizational
    structure of this court's rules.
      The substance of the rule reflects the text of former RCFC 81, as
    modified. Paragraph (2) of subdivision (c) (formerly paragraph
    (d)(2) of RCFC 81) was amended to formalize the court's practice of
    allowing joint filings to be signed by one counsel, on behalf of
    both counsel, when authorized to do so by opposing counsel. Also,
    subdivision (e) of former RCFC 81 (relating to attorneys' fees and
    expenses) was not retained as part of this rule but was, instead,
    incorporated into RCFC 54(d)(2).
      In addition, former General Order No. 15, "Honorary Bar
    Membership," was slightly modified and moved to new subdivision
    83.1(d).

-End-



-CITE-
    28 USC APPENDIX Rule 83.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 83.2. Rules of Disciplinary Enforcement.

-STATUTE-
      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 83.1(a) and
    (b)(5), promulgates the following Rules of Disciplinary Enforcement
    superseding all of its other rules pertaining to disciplinary
    enforcement heretofore promulgated.
      (a) Attorneys Convicted of Crimes.
        (1) 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.
        (2) 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.
        (3) 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.
        (4) 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 rule, 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.
        (5) 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.
        (6) An attorney suspended under the provisions of this rule
      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.

      (b) Discipline Imposed by Other Courts; Disbarment on Consent or
    Representation in Other Courts.
        (1) 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.
        (2) 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.
        (3) 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: a copy of the
      judgment or order from the other court or a copy of the
      communication indicating disbarment on consent or resignation;
      and 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 paragraph (5), and that
      the imposition of the identical discipline by the court would be
      unwarranted and the reasons therefor.
        (4) 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.
        (5) Upon the expiration of 30 days from service of the notice
      issued pursuant to the provisions of paragraph (3), 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:
          (A) that the procedure was so lacking in notice or
        opportunity to be heard as to constitute a deprivation of due
        process;
          (B) or 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;
          (C) or that the imposition of the same discipline by the
        court would result in grave injustice;
          (D) or 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.
        (6) 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.
        (7) The court may at any stage appoint counsel to prosecute the
      disciplinary proceedings.

      (c) Standards for Professional Conduct.
        (1) For misconduct defined in this rule 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.
        (2) 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.

      (d) Disciplinary Proceedings
        (1) 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 or special master of the court, whether by
      complaint or otherwise, and the applicable procedure is not
      otherwise mandated by this rule, the judge or special master
      shall refer the matter to the chief judge for determination
      whether the matter should be referred to a disciplinary judge for
      a formal disciplinary proceeding or the formulation of such other
      recommendation as may be appropriate.
        (2) Should the disciplinary judge conclude after 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 disciplinary judge should be awaited before further action
      by the court is considered or for any other valid reason, the
      disciplinary judge shall file with the court a recommendation for
      disposition of the matter, whether by dismissal, admonition,
      deferral, or otherwise setting forth the reasons therefor.
        (3) To initiate formal disciplinary proceedings, the
      disciplinary judge shall file 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.
        (4) 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 disciplinary judge shall
      set the matter for prompt hearing.

      (e) Disbarment on Consent While Under Disciplinary Investigation
    or Prosecution
        (1) 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:
          (A) 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;
          (B) 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;
          (C) the attorney acknowledges that the material facts so
        alleged are true; and
          (D) 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.

        (2) Upon receipt of the required affidavit, the court shall
      enter an order disbarring the attorney.
        (3) The order disbarring the attorney on consent shall be a
      matter of public record. However, the affidavit required under
      the provisions of this rule shall not be publicly disclosed or
      made available for use in any other proceeding except upon order
      of the court.

      (f) Reinstatement.
        (1) 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 subdivision (a) of this rule.
        (2) 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.
        (3) Hearing on Application. Petitions for reinstatement by a
      disbarred or suspended attorney under this rule shall be filed
      with the Clerk, and directed to the chief judge of the court.
      Such petitions shall demonstrate by clear and convincing evidence
      that the petitioner has the moral qualifications, competency and
      learning in the law before the court and that the petitioner's
      resumption to 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. Upon receipt of
      the petition, the chief judge shall promptly assign the petition
      to one or more judges of the court for prompt action. The judge
      or judges assigned to the matter shall within 30 days after
      referral issue an order of reinstatement based upon the petition
      or, schedule a hearing at which the petitioner shall have the
      burden of demonstrating the elements listed above.
        (4) Deposit for Costs of Proceeding. The court may direct that
      petitions for reinstatement under this rule 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.
        (5) 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.
        (6) 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.

      (g) 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
    83.1(a) or(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.
      (h) Service of Papers and Other Notices.
        (1) 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.
        (2) Service of any other papers or notices required by this
      rule 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.

      (i) Appointment of Counsel.
      The court may 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 rule, 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.
      (j) Payment of Fees and Costs.
      At the conclusion of any disciplinary investigation or
    prosecution, if any, under this rule, 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 subdivision (j).
      (k) Duties of the Clerk.
        (1) 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 of the convicting court 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.
        (2) 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.
        (3) 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 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.
        (4) The clerk shall 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.
        (5) The clerk shall utilize a portion of the fee for admission
      required by RCFC 77.1(c) to defray the payment of fees and costs
      under subdivision (i) of this rule and any other costs incurred
      by the administration of this rule.

      (l ) Jurisdiction.
      Nothing contained in this rule 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Former RCFC 83.2 has been renumbered RCFC 7.1. New RCFC 83.2
    formerly appeared in these rules as Appendix F. The incorporation
    of former Appendix F into the main body of the court's rules
    reflects a more logical placement of its subject matter in the
    organizational structure of the court's rules.

-End-



-CITE-
    28 USC APPENDIX Rule 83.3                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 83.3. Legal Assistance by Law Students

-STATUTE-
      (a) Appearance. Subject to the provisions of this rule, an
    eligible law student may enter an appearance in this court on
    behalf of any party provided the party on whose behalf the student
    appears has consented thereto in writing and a "supervising
    attorney," as defined in this rule, has also indicated approval of
    that appearance in writing. In each case, the written consent and
    approval shall be filed with the clerk.
      (b) Activities.
        (1) Appearance on Briefs and Other Written Pleadings,
      Participation in Oral Argument and Other Activities. A law
      student who has entered an appearance in a case pursuant to
      paragraph (a) may:
          (A) Appear on the brief(s) and other written pleadings,
        provided the supervising attorney has read, approved, and
        co-signed the brief(s);
          (B) Participate in all proceedings ordered by a judge or
        special master provided the supervising attorney is present at
        such proceedings;
          (C) Engage in all other activities on behalf of the client in
        all ways that a licensed attorney may, subject to the general
        direction of the supervising attorney. However, a student may
        make no binding commitments on behalf of a client absent prior
        approval of both the client and the supervising attorney. In
        any matter in which testimony is taken, including depositions,
        the student must be accompanied by the supervising attorney.
        Documents or papers filed with the court must be read,
        approved, and co-signed by the supervising attorney.

        (2) Limitations on Activities. The court retains the authority
      to establish exceptions to the activities in paragraph (1), and
      also to limit a student's participation in any individual case.

      (c) Eligibility. In order to be eligible to make an appearance
    pursuant to this rule, the law student must:
        (1) Be a law student in good standing, enrolled in a law school
      approved by the American Bar Association;
        (2) Have completed legal studies amounting to at least two
      semesters, or the equivalent if the school is on some basis other
      than a semester basis;
        (3) Have knowledge of the Rules of the United States Court of
      Federal Claims, the Federal Rules of Evidence, and the American
      Bar Association Model Rules of Professional Conduct;
        (4) Be enrolled for credit in a clinical program at an
      accredited law school that maintains malpractice insurance for
      its activities and conducts its activities under the direction of
      a faculty member of such law school;
        (5) Be certified by the dean of the law school as being of good
      character and sufficient legal ability, and as being adequately
      trained, in accordance with paragraphs (1)-(4) above, to fulfill
      the responsibilities of a legal intern to both the client and the
      court. Such certification must be filed with the clerk and may be
      withdrawn at any time by the dean upon written notice to the
      clerk;
        (6) Be certified by the chief judge to practice pursuant to
      this rule. This certification may be withdrawn at any time by the
      chief judge or, in a given case, by the judge or special master
      before whom the law student has entered an appearance, without
      notice of hearing and without any showing of cause; and
        (7) Neither ask for nor receive any fee or compensation of any
      kind from the client on whose behalf service is rendered.
      However, this rule shall not prevent a lawyer, legal aid bureau,
      law school, or the Government from paying compensation to the
      eligible law student, nor shall it prevent any of them from
      making such charges for its services as may otherwise be proper,
      nor shall it prevent any clinical program from receiving
      otherwise proper fees and expenses under RCFC 54(d)(2).

      (d) Supervising Attorneys. A supervising attorney referred to in
    this rule shall be deemed the attorney of record pursuant to RCFC
    83.1(c) and must:
        (1) Be a member in good standing of the bar of this court;
        (2) Be an attorney whose service as a supervising attorney for
      the clinical program is approved by the dean of the law school in
      which the law student is enrolled;
        (3) Be certified by this court as a student supervisor;
        (4) Assist and counsel the student in activities allowed under
      this rule and review such activities with the student, all to the
      extent appropriate under the circumstances, for the proper
      practical training of the student and the protection of the
      client;
        (5) Assist the student in his or her preparation of the case to
      the extent the supervising attorney considers necessary and be
      available for consultation with represented clients;
        (6) Be present with the student in any proceedings before a
      judge or special master;
        (7) Co-sign all pleadings and other documents filed with the
      court;
        (8) Be responsible to supplement oral or written work of the
      student as necessary to ensure proper representation of the
      client;
        (9) Assume full professional responsibility for the student's
      guidance in any work undertaken and for the quality of the
      student's work; and
        (10) Agree to notify the dean of the appropriate law school of
      any alleged failure on the part of the student to abide by the
      letter and spirit of this rule.


-MISC1-
                           RULES COMMITTEE NOTE                       
      RCFC 83.3 replaces former General Order No. 35, adopted on
    September 3, 1993. The only changes are stylistic or to correct
    cross-references.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (c)(3), are
    set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 83.4                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 83.4. Advisory Council

-STATUTE-
      (a) Membership. The United States Court of Federal Claims
    Advisory Council is established to advise the court on matters
    pertaining to the administration of the court and its relationship
    to the bar and the public. The Council shall consist of no fewer
    than 20 members of the bar of the court and shall include
    representatives of all of the court's practice areas. Members shall
    serve three year terms. The chief judge shall fill any vacancies.
    The chief judge shall designate one or more of the judges as a
    liaison member between the court and the Council.
      (b) Organization. The Council shall meet at such times and places
    as agreed upon by the members. All members of the Council,
    including the chief judge and the court's liaison member[s], may
    attend meetings and participate in discussions. The chief judge
    shall designate a chairperson. The council members may designate
    other officers, and committees and take all other steps appropriate
    to the conduct of the council's business. Each member, except the
    liaison member[s], shall be entitled to vote on matters before the
    Council. The chief judge shall provide facilities at the court to
    accommodate meetings of the Council.
      (c) Function. 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 to the chief judge. The Council shall promptly consider and
    make a recommendation on any matter referred to it by the court.
    The court may consider any recommendation of the Council and take
    such action as it deems appropriate.


-MISC1-
                           RULES COMMITTEE NOTE                       
      New RCFC 83.4 replaces General Order No. 7, which established the
    Advisory Council on April 5, 1983. In addition to minor stylistic
    and formatting changes, the new rule changes the number of members
    allowed on the Council and makes the chief judge responsible for
    designating the chairperson.

-End-



-CITE-
    28 USC APPENDIX Rule 84                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 84. Forms

-STATUTE-
      Forms referenced in these rules are set forth in the Appendix of
    Forms.

-End-



-CITE-
    28 USC APPENDIX Rule 85                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 85. Title

-STATUTE-
      These rules may be known and cited as the Rules of the United
    States Court of Federal Claims.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The rule has been changed to reflect the change in the court's
    name. These rules may be cited as "RCFC."

-End-



-CITE-
    28 USC APPENDIX Rule 86                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    XI. GENERAL PROVISIONS

-HEAD-
    Rule 86. Effective Date

-STATUTE-
      These rules as revised are effective on May 1, 2002. 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.


-MISC1-
                           RULES COMMITTEE NOTE                       
      The rule reflects the effective date of the most recent revisions
    to the court's rules. In addition, the rule adopts the practice of
    the federal civil rules to presume application of rule changes to
    pending cases.
      Future revisions to these rules will be posted on the court's
    website at www.uscfc.uscourts.gov.

-End-


-CITE-
    28 USC APPENDIX App. A                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX A

-HEAD-
    App. A
-MISC1-
                                APPENDIX A                            
                         CASE MANAGEMENT PROCEDURE                     
                                I. PURPOSE                            
      1. These case management procedures are intended to promote
    cooperation among counsel, assist in the early identification of
    issues, minimize the cost and delay of litigation and enhance the
    potential for settlement. (As used in this appendix, "counsel"
    shall be construed to include unrepresented parties.)
      2. Uniformity of practice within the court also is an important
    goal of these procedures. For the purpose of promoting the
    efficient administration of justice, a judge may modify these
    procedures as appropriate, or the parties may suggest the
    modification of these procedures to meet the needs of a particular
    case.
                       II. EARLY MEETING OF COUNSEL                   
      3. Subsequent to the filing of defendant's answer or, if
    applicable, a reply to a counterclaim, and, in any event, within
    sufficient time to permit the parties to file a Joint Preliminary
    Status Report in accordance with paragraph 4, plaintiff's counsel
    shall communicate with defense counsel, and counsel shall confer:
        (a) To initiate preparation of the Joint Preliminary Status
      Report pursuant to paragraphs 4-6.
        (b) To identify each party's factual and legal contentions.
        (c) To discuss each party's discovery needs and discovery
      schedule, including the initial disclosures required by RCFC
      26(a)(1) and additional 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. Informal discovery is encouraged.
      The parties are encouraged to cooperate in the conduct of
      discovery and to make additional voluntary disclosures through
      informal discovery.
        (d) To discuss the expected means of resolving the dispute,
      i.e., whether by trial or dispositive motion.
        (e) To discuss settlement of the action, including use of
      alternative dispute resolution. See Appendix H.

    Participating counsel shall be counsel of record and such other
    attorneys as necessary so that participating counsel for each party
    are knowledgeable about the case and the identity of witnesses and
    location of documents.
                   III. JOINT PRELIMINARY STATUS REPORT               
      4. No later than 49 days after defendant's answer or plaintiff's
    reply to a counterclaim is served, 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 factual and legal issues?
        (i) What is the likelihood of settlement? Is alternative
      dispute resolution contemplated?
        (j) Do the parties anticipate proceeding to trial? Does any
      party, or do the parties jointly, request expedited trial
      scheduling 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) Are there special issues regarding electronic case
      management needs?
        (l ) Is there other information of which the court should be
      aware at this time?

      5. If discovery is required, the Joint Preliminary Status Report
    should set forth a proposed discovery plan, including proposed
    deadlines. The parties should propose a deadline for fact
    discovery, for the disclosure of any experts' reports, and for
    depositions or other discovery of experts. See RCFC 26(a)(2)
    concerning disclosure of experts and discovery planning.
      6. Unless otherwise ordered, 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.
        IV. PRELIMINARY SCHEDULING CONFERENCE AND SCHEDULING ORDER    
      7. Preliminary Scheduling Conference. After the filing of the
    Joint Preliminary Status Report the judge will ordinarily conduct
    the preliminary scheduling conference contemplated by RCFC 16(b) to
    acquaint the court with the issues in the case, to discuss any
    special problems that may exist, and to establish a schedule for
    further proceedings. In the interest of justice and judicial
    economy, a Preliminary Scheduling Conference will not be scheduled
    if, in the court's discretion, further discussion of the matters
    presented in the Joint Preliminary Status Report would not be
    useful.
      8. Scheduling Order. After the preliminary scheduling conference
    or, if none is held, after the filing of the Joint Preliminary
    Status Report, the judge shall promptly enter the scheduling order
    called for by RCFC 16(b).
                               V. DISCOVERY                           
      9. 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. 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.
      10. Discovery Motions. A motion to compel or protect from
    discovery shall contain a statement that the movant has in good
    faith conferred or attempted to confer to resolve the matters in
    dispute.
                      VI. POST-DISCOVERY PROCEEDINGS                  
      11. Post-Discovery Conference. Upon completion of all discovery
    (including discovery of any experts), the court will hold a
    post-discovery conference to determine how the case will proceed.
    The attorneys appearing at the post-discovery conference shall be
    the attorneys who are expected to try the case and are thoroughly
    familiar with it. At the conference, counsel will be called upon to
    (i) address the factual and legal issues in dispute, (ii) discuss
    the evidence and decisional law that each side offers in support of
    its position, and (iii) identify the best means of resolving the
    dispute, i.e., whether by summary judgment, trial, or by an
    alternative method of dispute resolution.
      12. Scheduling Order. See generally RCFC 16 and 56. Promptly
    after the post-discovery conference, the judge shall enter a
    scheduling order to address further proceedings. For cases that
    will proceed by summary judgment in accordance with RCFC 56, the
    order shall establish a schedule for the filing of summary judgment
    motions and briefs. For cases to be resolved by trial, the order
    may set (1) the time and place of trial, (2) the time and place of
    the final pretrial conference and (3) the date by which the
    memoranda and disclosures called for by paragraphs 14-18 are due.
      13. Meeting of Counsel. For cases to be resolved by trial,
    counsel for the parties shall meet no later than 63 days before the
    pretrial conference and accomplish the following.
        (a) Exhibits. Exchange a list of all exhibits (including
      summaries, see Fed. R. Evid. 1006) to be used at trial for
      case-in-chief or rebuttal purposes, except those to be used
      exclusively for impeachment. Each exhibit on the list shall be
      identified by an exhibit number and description. Unless
      previously exchanged, counsel for the parties shall exchange a
      copy of each exhibit listed. In the case of exhibits to be
      offered as summaries under Fed. R. Evid. 1006, the offering party
      shall provide opposing counsel with a statement with respect to
      each summary exhibit describing the source(s) for the items or
      figures listed (e.g., ledgers, journals, payrolls, invoices,
      checks, time cards, etc.), the location(s) of the source(s), the
      time when the source(s) may be examined or audited by the
      opposing party, the name and address of the person(s) who
      prepared each summary and who will be made available to the
      opposing party during any examination or audit of the source
      material to provide information and explanations necessary for
      verification of the information in the summary. Failure to list
      an exhibit shall result, absent agreement of the parties or a
      showing of a compelling reason for the failure, in an exclusion
      of the exhibit at trial. See also RCFC 26(a)(1), (2) and (3).
        (b) Witnesses. Exchange a final list of names, addresses, and
      telephone numbers of witnesses, including expert witnesses, who
      may be called at trial for case-in-chief or rebuttal purposes,
      except those to be used exclusively for impeachment. Failure of a
      party to list a witness 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.
        (c) Confer:
          (1) To disclose to opposing counsel the intention to file a
        motion for leave to file transcript of deposition for
        introduction at trial;
          (2) To resolve, if possible, any objections to the admission
        of testimony (including deposition testimony) or exhibits;
          (3) To disclose to opposing counsel all contentions as to
        applicable facts and law, unless previously disclosed;
          (4) 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;
          (5) To consider agreement to submitting the case to the court
        for resolution (including any factual disputes) on the basis of
        a submitted documentary record by the parties. See also RCFC
        43(e); and
          (6) To exhaust all possibilities of settlement.

      14. Memorandum of Contentions of Fact and Law.
        (a) Plaintiff's Memorandum. No later than 49 days before the
      pretrial conference, plaintiff shall file a Memorandum of
      Contentions of Fact and Law. The memorandum shall contain the
      following:
          (1) A full but concise statement of the facts plaintiff
        expects to prove and a discussion of plaintiff's position with
        respect to the facts on which defendant is expected to rely.
          (2) A statement of the issues of fact and law to be resolved
        by the court. The 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.
          (3) A discussion of the legal principles plaintiff contends
        are applicable, as well as plaintiff's response to defendant's
        anticipated legal position. Any objection to a witness or
        exhibit listed under paragraph 13 shall be made in the
        Memorandum of Contentions of Fact and Law, or in a separate
        motion filed on the same date.
          (4) If plaintiff believes that bifurcation of issues for
        trial is appropriate, the memorandum shall contain a request
        therefor, together with a statement of reasons.

        (b) Defendant's Memorandum. No later than 21 days before the
      pretrial conference, defendant shall file its responsive
      memorandum with the same form and contents as plaintiff's.
        (c) Responses. The parties will cooperate in the exchanges
      specified in paragraph 13. Consequently, any responses to matters
      expected to be raised by the opposing party should be included in
      each party's Memorandum of Contentions of Fact and Law. 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.
        (d) Proposed Findings of Fact and Conclusions of Law. The judge
      may, in lieu of the memoranda of contentions of fact and law,
      order the filing of proposed findings of fact and conclusions of
      law, including, at the judge's direction, annotations to the
      exhibits or witnesses on which the party will rely to prove the
      findings.

      15. 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 for case-in-chief or
      rebuttal purposes, except those to be used exclusively for
      impeachment. The witness list shall separately identify those
      whom the party expects to present and those whom the party may
      call if the need arises. 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.
        (b) Any party intending to present substantive evidence by way
      of deposition testimony, other than as provided by Federal Rule
      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(s) the party
      intends to use at trial. See RCFC 32(a)(2) & (3). If the motion
      is granted, only those portions of the transcript may be filed.

      16. 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 for
    case-in-chief or rebuttal purposes (including summaries to be
    offered pursuant to Fed. R. Evid. 1006), other than those to be
    used exclusively for impeachment. The exhibit list shall separately
    identify those exhibits which the party expects to offer and those
    which the party may offer if the need arises.
      17. Stipulations. The parties are encouraged before or after the
    pretrial conference to file a stipulation setting forth all matters
    as to which they agree.
                            VII. OTHER MATTERS                        
      18. Joint Exhibits. Prior to the final pretrial conference, the
    parties should review the exhibit lists filed with the court and
    consolidate as many exhibits as possible into a set of joint
    exhibits for use at trial. All joint exhibits shall be identified
    in a joint exhibit list that identifies each exhibit by a joint
    exhibit number and description.
      19. Post-Trial Briefing. The judge may order the filing of
    post-trial briefs, which may include, at the judge's direction,
    either a statement of facts or proposed findings of fact, together
    with citations to the record. Post-trial briefing is not a matter
    of right.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Appendix A represents the court's standard pretrial order. The
    case management procedures contained in Appendix A reflect those
    procedures which, in the collective experience of the court and the
    members of its bar, are considered most beneficial in securing the
    prompt and expeditious resolution of claims and disputes. Some
    important changes have been introduced. Chief among these are
    procedures calling for a preliminary scheduling conference to be
    set following the filing of the Joint Preliminary Status Report,
    and a post-discovery conference following the completion of
    discovery. The expectation reflected in these conference procedures
    is that early and ongoing involvement of the court during the
    pretrial development of a case can contribute both to a prompt
    identification of the issues and to a narrowing of the scope of the
    dispute.
      The promulgation of Appendix A as a synthesis of the views of the
    bench and the bar is intended to encourage standardization in
    pretrial practice procedures. Appendix A recognizes, however, that
    the pretrial procedures to be followed in any particular case
    ultimately depend upon the needs of that case. Hence, Appendix A
    permits modifications of its procedures, either at a judge's
    initiative (or at the parties' suggestion), when such modification
    will promote "the efficient administration of justice."

-End-


-CITE-
    28 USC APPENDIX App. B                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX B

-HEAD-
    App. B
-MISC1-
                                APPENDIX B                            
        VACCINE RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS    
              I. SCOPE OF RULES; COMMENCEMENT OF PROCEEDINGS          
    Rule 1. Scope of Rules.
      These rules govern all proceedings before the United States Court
    of Federal Claims pursuant to the National Vaccine Injury
    Compensation Program established by 42 U.S.C. Secs. 300aa-10 et
    seq. (1994) (Vaccine Act). These rules govern both proceedings
    before the Office of Special Masters, as well as any subsequent
    proceedings before a judge of the Court of Federal Claims. These
    rules are to be cited as the Vaccine Rules. In all matters not
    specifically provided for by the Vaccine Rules, the special master
    or the court may regulate the applicable practice, consistent with
    these rules and with the purpose of the Vaccine Act, to decide
    cases promptly and efficiently. In proceedings before the Office of
    Special Masters, the Rules of the United States Court of Federal
    Claims (RCFC) apply only to the extent referenced in the Vaccine
    Rules. In proceedings before a judge, the RCFC will apply except to
    the extent that such rules are inconsistent with the Vaccine Rules.

    Rule 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. Sec. 300aa-11(c) and the Vaccine
    Rules, in the United States Court of Federal Claims. Petitioner
    shall forward an original and two 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 $150 filing fee.
      (c) Service upon Respondent.
        (1) (!1) Effective, January 27, 2003, Vaccine Rule 2(c)(1) is
      superseded by 45 CFR 4.6. Petitioner shall serve one copy of the
      petition and accompanying documents upon the Secretary of health
      (!2) and Human Services, by first class or certified mail, c/o
      Director, Division of Vaccine Injury Compensation, Office of
      Special Programs, health (!2) Resources and Services
      Administration, 5600 Fishers Lane, Room 16C-17, 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. Sec. 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. Sec. 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. Sec. 300aa-11(c), every petition
      shall be accompanied by the following:
          (A) 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 any 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.
          (B) All available physician and hospital records relating to
        (A) the vaccination itself; (B) the injury or death, including,
        if applicable, any autopsy reports or death certificate; (C)
        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 vaccinee was
        younger than five years old when vaccinated, (D) 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
        vaccination.
          (C) 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.
                 II. PROCEEDINGS BEFORE THE SPECIAL MASTER             
    Rule 3. Role of 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 for the efficient administration of
    justice, the chief special master may reassign a case to another
    special master.

    Rule 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,
    respondent's counsel shall immediately notify petitioner's counsel
    regarding the perceived omissions. 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.

    Rule 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. At the conclusion of this conference, the special
    master may issue a scheduling order outlining the necessary
    proceedings for resolving the issues presented in the case.

    Rule 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.

    Rule 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 by RCFC 26-37 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 RCFC Appendix of Forms (Form
    7A).

    Rule 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) 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 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. Upon order by the special master, 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 80.1 and RCFC Appendix of Forms (Forms 3A and
    3B).
      (c) 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, or oral testimony,
    which may be given in person or via telephone, videoconference, or
    videotape. Sworn written testimony may be submitted in lieu of oral
    testimony.
      (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) 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.
      (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.

    Rule 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 suspension may be
    granted, totaling not more than 150 additional days, in the special
    master's discretion.
      (b) Effect. Such periods of suspension shall be excluded for
    purposes of the time limitations of 42 U.S.C. Sec. 300aa-12(d)(3)
    and Vaccine Rules 4(b) and 10.

    Rule 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.
    Sec. 300aa-15(a)(3) and (4), and combine that ruling with the
    decision under Vaccine Rule 13.
      (c) Reconsideration. Within 21 days of the issuance of the
    special master's decision, if neither a judgment nor a motion for
    review of the special master's decision has yet been filed, either
    party may file a motion for reconsideration of the special master's
    decision. The special master may seek the non-moving party's
    response to such a motion, determining the method of and time
    schedule for any such response. The special master will not rule in
    favor of such a motion without first requesting a response to it.
    The special master shall have discretion to grant or deny such
    motion, in the interest of justice.
        (1) If granted. If the special master elects to grant the
      motion for reconsideration, the special master shall do so by
      filing an order withdrawing the decision in question. The
      withdrawn decision then becomes void for all purposes, and the
      special master must subsequently enter a superseding decision. An
      order withdrawing the decision may be filed only if neither a
      judgment nor a motion for review has yet been filed.
        (2) If not granted. The filing of a motion for reconsideration
      will not negate the running of the 30-day period for filing a
      motion for review of the special master's decision. If the
      special master denies such a motion, or during any period in
      which the special master has not yet acted upon such a motion,
      the 30-day period for the filing of a motion for review of the
      special master's decision shall continue to run and either side
      may file a motion for review.
                   III. JUDGMENT AND FURTHER PROCEEDINGS               
    Rule 11. Judgment
      (a) In the Absence of Motion for Review. In the absence of the
    filing of a motion for review pursuant to Vaccine Rule 23 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.

    Rule 12. Election.
      (a) General. When no motion for review of a decision pursuant to
    Vaccine Rule 10 is filed by either party pursuant to Vaccine Rule
    23, 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. Sec. 300aa-15(f)(2). If such a
    motion has not been filed by 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,
    18, and 23.

    Rule 13. Attorneys' Fees and Costs.
      Any request for attorneys' fees and costs pursuant to 42 U.S.C.
    Sec. 300aa-15(e) shall be filed no later than six months 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, 18, and 23.
                          IV. GENERAL PROVISIONS                      
    Rule 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 and
    the court. 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 83.1(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 83.1(c) shall apply.
      (d) Unrepresented Party. An individual may represent himself or
    herself or a member of the individual's immediate family as a
    party. Any other party, however, must be represented by an attorney
    who is admitted to practice before the Court of Federal Claims. The
    term "counsel" or "attorney" in the Vaccine Rules shall include
    unrepresented parties.

    Rule 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.

    Rule 16. Caption of All Filings.
      The petition and other filings shall be captioned with the
    appropriate title (the petition should leave blank the spaces for
    the special master's name and the case number; all filings
    thereafter must include the case number and the name of the
    assigned special master). See Appendix of Forms, Form 7.

    Rule 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 or the court shall be forwarded to the
    clerk of the court at the address noted in Vaccine Rule 2. A
    document is filed when actually received and marked filed by the
    clerk, not when mailed. All matters shall be brought to the
    attention of the special master or the court through formal 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 unrepresented party 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. See RCFC 5.
      (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 two
    copies of each paper to be filed with the clerk, except that for
    filings of 50 pages or more, an original and one copy will suffice.

    Rule 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 subdivision (b) of this rule. A transcript prepared
    pursuant to Vaccine Rule 8(b) shall be considered a filing for
    purposes of this rule.
      (b) Decisions of special masters and judges. When a decision of a
    special master or of the court is filed with the clerk, each party
    will be afforded 14 days in which to object to the public
    disclosure of any information furnished by that party - 
        (1) that is trade secret or commercial or financial information
      and is privileged or confidential, or
        (2) that are medical files and similar files the disclosure of
      which would constitute a clearly unwarranted invasion of privacy.

    If the party furnishing information objects to disclosure, that
    information shall be redacted prior to public disclosure of the
    decision. In the absence of objection, the entire decision will be
    made public.
    Rule 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
    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
    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. Service by mail is complete upon
    mailing, but filing is not. For legal holidays, see RCFC 6(a).
      (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 or the court orders otherwise.

    Rule 20. Motions.
      (a) Motions. A motion, 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 or the court, 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. A
    party desiring oral argument on a motion shall so request in the
    motion or response.

    Rule 21. Dismissal of Petitions.
      (a) Voluntary Dismissal; Effect Thereof. A petition may be
    dismissed by the petitioner without order of the special master or
    the court (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 or
    the court, be deemed to operate as an adjudication upon the merits
    when filed by a petitioner who has previously dismissed the same
    claim.
      (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 comply with the Vaccine Rules or any order, the special master
    or the court may dismiss a petition or any claim therein.
                 V. REVIEW OF DECISIONS OF SPECIAL MASTERS             
    Rule 22. [Abrogated.]
    Rule 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.

    Rule 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 5.2.

    Rule 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 5.2.
      (b) If both parties file motions for review, each party may file
    a response to the other party's motion.

    Rule 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. The assignment shall be made pursuant to RCFC 40.1.

    Rule 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.

    Rule 28. Time for Review.
      The judge shall complete the review within 120 days of the last
    date for the filing of a response under Vaccine Rule 25, 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.

    Rule 28A. Remand Procedure.
      If the judge remands a case to a special master, the master,
    after completing the remand assignment, shall file a "decision on
    remand" resolving the case, unless the order of remand directs
    otherwise. The clerk shall promptly notify the judge who remanded
    the case of the filing of this decision on remand. Unless specified
    otherwise in the judge's order remanding the case, this decision
    shall be considered a separate decision for purposes of Vaccine
    Rules 11, 18, and 23, i.e., judgment automatically will be entered
    in conformance with the master's decision unless a new motion for
    review is filed pursuant to Vaccine Rule 23. If a party seeks
    review of such decision, the clerk shall assign the case to the
    judge who remanded the case.

    Rule 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, the petitioner
    may file a notice to continue or withdraw the petition. Such a
    notice shall be filed within 30 days after the expiration of the
    420-day period.

    Rule 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.

    Rule 31. Reconsideration.
      If a party files a motion for reconsideration of a judge's
    decision within 10 days of entry of the judgment, RCFC 59 shall
    apply.

    Rule 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 notice of appeal (petition
    for review) within 60 days of the date of the entry of judgment.

    Rule 33. Election.
      After review by the Court of Federal Claims and entry of
    judgment, an election as described in Vaccine Rule 12 shall be made
    within 90 days following the entry of judgment. However, if an
    appeal is taken to the United States Court of Appeals for the
    Federal Circuit pursuant to Vaccine Rule 32, the 90-day period for
    the election shall not run from the original date of judgment, but
    rather from the date of the appellate court's mandate or any
    subsequent judgment of the Court of Federal Claims on remand,
    whichever occurs later.

    Rule 34. Attorneys' Fee and Costs.
      Any request for attorneys' fees and costs, in a case where
    judgment followed a review by a judge, will be processed pursuant
    to Vaccine Rule 13.

    Rule 35. [Abrogated.]
                         VI. RELIEF FROM JUDGMENT                     
    Rule 36. Relief from Judgment.
      (a) General. Following the entry of judgment by the Court of
    Federal Claims, if a party files a motion pursuant to RCFC 59 or
    60, the clerk of the court shall refer such motion as follows. If
    the petition has previously been before a judge of the court upon
    review pursuant to Vaccine Rule 23, then the motion shall be
    referred to that judge. If the petition has not previously been
    before a judge of the court upon review pursuant to Vaccine Rule
    23, then the motion shall be referred to the Office of Special
    Masters.
      (b) Review of a Special Master's Ruling. When a motion pursuant
    to RCFC 59 or 60 is referred to a special master pursuant to
    subdivision (a) of this rule, that master shall file a written
    ruling upon such motion. That ruling shall become the final ruling
    of the court on the motion, unless a party files a motion for
    review of that ruling, accompanied by a memorandum of objections to
    the ruling, within 30 days of the date of the ruling. If such a
    review motion is filed, the case will be submitted to a judge of
    the court, who will review the special master's ruling, setting
    such ruling aside only if it is found to be arbitrary, capricious,
    an abuse of discretion, or otherwise not in accordance with law.
    The non-moving party may file a memorandum response within 30 days
    of the filing of the review motion. Memorandums for each party
    shall be limited to 20 pages and must conform to the provisions of
    RCFC 5.2.
      (c) If Judgment is Altered. If the original judgment is modified
    pursuant to RCFC 59 or 60 or otherwise, and the petitioner is to
    receive any award for damages calculated with respect to the "date
    of judgment," such damages shall be calculated based upon the date
    of the original judgment, unless the ruling of the special master
    or court directs otherwise.

-SOURCE-
    (As amended Jan. 13, 2003.)


-MISC1-
                           RULES COMMITTEE NOTE                       
      Appendix B sets forth rules applicable to proceedings involving
    claims for the compensation under the National Vaccine Injury
    Compensation Program, 42 U.S.C. Secs. 300aa-10 - 300aa-34 (1994).

-FOOTNOTE-
    (!1) In original, the sentence "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." appeared as
         strike-through type following the par. (1) designation.

    (!2) So in original. Probably should be "Health".


-End-


-CITE-
    28 USC APPENDIX App. C                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX C

-HEAD-
    App. C
-MISC1-
                                APPENDIX C                            
     PROCEDURE IN PROCUREMENT PROTEST CASES PURSUANT TO 28 U.S.C. SEC.
                                  1491(B)
                              I. INTRODUCTION                          
      1. This Appendix describes standard practices in protest cases
    filed pursuant to 28 U.S.C. Sec. 1491(b) and supplements the Rules
    of the United States Court of Federal Claims, which are otherwise
    fully applicable to these cases.
                II. REQUIREMENT FOR PRE-FILING NOTIFICATION            
      2. In order to expedite proceedings, prior to the filing of a
    protest case pursuant to 28 U.S.C. Sec. 1491(b), plaintiff's
    counsel shall (except in exceptional circumstances to be described
    in moving papers) provide at least 24-hours advance notice of
    filing the case to the:
        (a) Department of Justice, Commercial Litigation Branch, Civil
      Division - (202) 514-7300;
        (b) Clerk, United States Court of Federal Claims - (202)
      219-9657;
        (c) procuring agency contracting officer by facsimile
      transmission, only; and
        (d) apparently successful bidder/offeror (in cases where there
      has been an award and the plaintiff has received notice of the
      identity of the awardee).

    Such notice shall be provided during conventional business hours.
    The pre-filing notice is intended to permit the Department of
    Justice to assign an attorney to the case who can be prepared to
    address relevant issues on a timely basis and to permit the court
    to insure the availability of appropriate court resources. Failure
    to provide pre-filing notification will not preclude the filing of
    the case, but is likely to delay the initial processing of the case
    including the scheduling of the initial status conference. See
    paragraph 8, below. Plaintiff's counsel shall apprise the above
    entities of any material change in respect to the timing of, or
    intent to file, a protest. Plaintiffs are encouraged to provide
    earlier notice if possible as a courtesy to the court and to
    government counsel.
      3. The pre-filing notice plaintiff provided pursuant to paragraph
    2, above, should include the following information:
        (a) The name of the procuring agency and the number of the
      solicitation in the contested procurement;
        (b) The name and telephone number of the contracting officer
      responsible for the procurement;
        (c) Whether plaintiff contemplates requesting temporary or
      preliminary injunctive relief pursuant to RCFC 65;
        (d) Whether the plaintiff has discussed the need for temporary
      or preliminary injunctive relief with Department of Justice
      counsel and the response, if any;
        (e) Whether the action was preceded by the filing of a protest
      before the General Accounting Office (GAO) (if so, provide the
      "B-" number of the protest and indicate whether a decision was
      issued); and
        (f) Whether plaintiff contemplates the need for the court to
      enter a protective order.
                          III. FILING UNDER SEAL                      
      4. In the event plaintiff believes its complaint, or any
    pleadings filed at the same time, contain confidential or
    proprietary information and plaintiff seeks to protect that
    information from public scrutiny, plaintiff must file a motion for
    leave to file the complaint under seal, which shall be filed at the
    same time the complaint is filed. When a complaint or related
    papers are filed with an accompanying motion for leave to file
    under seal, the pleadings will be treated as though filed under
    seal while the motion is pending.
      5. In filing documents under seal, a party shall follow the
    procedures described in RCFC 5.3(d).
      6. Complaints (and other pleadings filed at the same time) that
    are filed under seal shall be marked or highlighted in such a way
    that confidential or proprietary information is indicated and shall
    be accompanied by a redacted version of the pleading (a version
    that omits confidential or proprietary information), which will be
    available for public scrutiny. Failure to file the redacted copy
    may result in denial of the motion for leave to file under seal.
      7. To the extent the complaint or any pleadings filed at the same
    time contain classified information, the filing must conform to the
    requirements of the classifying agency.
                       IV. INITIAL STATUS CONFERENCE                   
      8. The court will schedule an initial status conference with the
    parties to address relevant issues including, but not limited to,
    the following:
        (a) Identification of interested parties;
        (b) In post-award cases, admission of the successful offeror as
      an intervenor;
        (c) Requests for temporary or preliminary injunctive relief, if
      filed. See subdivision 15, below;
        (d) The content of a protective order, if requested by one or
      more of the parties and the requirement for redacted copies;
        (e) The content and time for filing of the administrative
      record;
        (f) Whether it may be appropriate to supplement the
      administrative record; and
        (g) The nature of and schedule for further proceedings.

    This initial status conference will be held as soon as practicable
    after the filing of the complaint.
                           V. INJUNCTIVE RELIEF                       
      9. The court's practice is to expedite protest cases to the
    extent practicable and to conduct hearings on motions for
    preliminary injunctions at the earliest practicable time.
    Accordingly, when a plaintiff seeks a preliminary injunction, it
    may not need to request a temporary restraining order.
      10. 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 previously filed. The
    application shall be accompanied by affidavits, supporting
    memoranda, and other documents upon which plaintiff intends to
    rely. The application also shall be accompanied by a statement that
    plaintiff's counsel has hand delivered or provided for hand
    delivery, or transmitted by facsimile, copies of the foregoing
    documents to the Department of Justice, Commercial Litigation
    Branch, 8th Floor, 1100 L. St. N.W. Washington, D.C. 20530.
      11. If the name of the apparently successful bidder/offeror is
    known (in cases where there has been an award and the plaintiff has
    received notice of the identity of the awardee), a copy of the
    foregoing documents shall be provided by hand, facsimile, or
    overnight delivery to the apparently successful bidder/offeror. The
    plaintiff shall state in its application whether the documents have
    been so provided. If the name of the awardee is unknown, the
    plaintiff shall so state.
      12. The apparently successful bidder/offeror may enter a notice
    of appearance at any hearing on the application for a temporary
    restraining order/preliminary injunction if it advises the court of
    its intention to move to intervene pursuant to RCFC 24(a)(2) or has
    moved to intervene before the hearing.
      13. The clerk will promptly inform the parties of the judge to
    whom the case has been assigned and the time and place of any
    hearing.
      14. Except in an emergency, the court will not consider ex parte
    applications for a temporary restraining order.
      15. In cases in which the plaintiff seeks temporary or
    preliminary injunctive relief, counsel should be prepared to
    discuss the following matters at the initial status conference:
        (a) Whether and to what extent, absent temporary or preliminary
      injunctive relief, the court's ability to afford effective final
      relief is likely to be prejudiced;
        (b) If a temporary restraining order has been requested,
      whether the plaintiff has discussed this request in advance with
      Department of Justice counsel and the response;
        (c) If a temporary restraining order has been requested,
      whether the government will agree to withhold award or suspend
      performance pending a hearing on the motion for preliminary
      injunction;
        (d) If a preliminary injunction has been requested, whether the
      government will agree to withhold award or suspend performance
      pending a final decision on the merits;
        (e) An appropriate schedule for completion of the briefing on
      any motion for a preliminary injunction;
        (f) The security requirements of RCFC 65(c) (See Appendix of
      Forms, Forms 11-13); and
        (g) Whether the hearing on the preliminary injunction should be
      consolidated with a final hearing on the merits.
                           VI. PROTECTIVE ORDERS                       
    16. Preliminary Matters.
      (a) The principal vehicle relied upon by the court to insure the
    protection of sensitive information is the protective order. The
    protective order defines the procedures to be followed to identify
    protected information, prepare redacted versions of such
    information, and dispose of protected information at the conclusion
    of the case.
      (b) Information a party identifies as protected may be disclosed
    only to parties who have been "admitted" to the protective order.
      (c) Once a protective order is issued by the court, individuals
    who seek access to protected information, must file an appropriate
    application. If admitted to the protective order, the individual
    becomes subject to the terms of the order. It is the responsibility
    of those admitted to the protective order to take the necessary
    steps to insure that the information is protected, consistent with
    the terms of the protective order, while it is under their control
    (this includes oversight of support personnel who may have access
    to protected information).
      (d) The court, procuring agency, and Department of Justice
    personnel are automatically admitted to protective orders when
    issued and are subject to their terms.

    17. Issuance of a Protective Order
      (a) Motions for protective orders must meet the requirements of
    RCFC 10. The court may issue a protective order at its discretion.
      (b) A sample protective order is found at Appendix of Forms, Form
    8. The parties are cautioned that individual judges and the parties
    themselves may want to amend the sample protective order to meet
    the needs of specific cases or their individual preferences. It is
    the specific protective order issued in a case that governs the
    treatment of protected information in that case.

    18. Application for Admission to the Protective Order
      (a) Each party seeking access to protected information upon
    behalf of an individual must file with the court, an appropriate
    "Application for Admission to the Protective Order." Separate
    applications for individual outside and in-house counsel, and for
    consultants or experts retained by counsel for a party, are
    contained in the Appendix of Forms (Forms 9 and 10). These forms
    may also be amended by the court in response to individual case
    needs.
      (b) Admission to the protective order will be based upon the
    contents of the application form submitted by an individual
    representing a party.
      (c) Objections to an Application for Admission to a protective
    order must be filed with the court within two days of a party's
    receipt of an application.
      (d) In considering objections to Applications for Admission to a
    Protective Order, the court will consider such factors as the
    nature and sensitivity of the information at issue, a party's need
    for access to the data in order to effectively represent its
    client, the overall number of applications received and other
    concerns that may affect the risk of inadvertent disclosure.
      (e) Admission to a protective order will be made by the court in
    the form of an order.

    19. Designation of Protected Information and Preparation of
    Redacted Pleadings.
      After a protective order is entered the designation of protected
    information and the preparation and filing of redacted documents
    shall be governed by the terms of the protective order.

    20. Disposition of Material Containing Protected Information.
      The specific procedures to be followed in disposing of protected
    information at the conclusion of the case shall be as described in
    the protective order.
         VII. THE CONTENT AND FILING OF THE ADMINISTRATIVE RECORD     
    21. The United States will be required to identify and provide (or
    make available for inspection) the administrative record in a
    protest case by the date(s) established at the initial status
    conference. The filing of all or a part of the administrative
    record shall be accompanied by a Notice of Filing.
    22. Early production of relevant core documents may expedite final
    resolution of the case. The core documents relevant to a protest
    case may include, as appropriate the:
        (a) agency's procurement request, purchase request, or
      statement of requirements;
        (b) agency's source selection plan;
        (c) bid abstract or prospectus of bid;
        (d) Commerce Business Daily or other public announcement of the
      procurement;
        (e) solicitation, including any instructions to offerors,
      evaluation factors, solicitation amendments, and requests for
      best and final offers;
        (f) documents and information provided to bidders during any
      pre-bid or pre-proposal conference;
        (g) agency's responses to any questions about or requests for
      clarification of the solicitation;
        (h) agency's estimates of the cost of performance;
        (i) correspondence between the agency and the protester,
      awardee, or other interested parties relating to the procurement;
        (j) records of any discussions, meetings, or telephone
      conferences between the agency and the protester, awardee, or
      other interested parties relating to the procurement;
        (k) records of the results of any bid opening or oral motion
      auction in which the protester, awardee or other interested
      parties participated;
        (l ) protester's, awardee's, and other interested parties'
      offers, proposals, or other responses to the solicitation;
        (m) agency's competitive range determination, including
      supporting documentation;
        (n) agency's evaluations of the protester's, awardee's, or
      other interested parties' offers, proposals or other responses to
      the solicitation, including supporting documentation;
        (o ) agency's source selection decision, including supporting
      documentation;
        (p) pre-award audits, if any, or surveys of the offerors;
        (q) notification of contract award and executed contract;
        (r) documents relating to any pre- or post-award debriefing;
        (s) documents relating to any stay, suspension, or termination
      of award or performance pending resolution of the bid protest;
        (t) justifications, approvals, determinations and findings, if
      any, prepared for the procurement by the agency pursuant to
      statute or regulation; and
        (u) the record of any previous administrative or judicial
      proceedings relating to the procurement, including the record of
      any other protest of the procurement.

    23. Because a protest case cannot be efficiently processed until
    production of the administrative record, the court expects the
    United States to produce the core documents and the remainder of
    the administrative record as promptly as circumstances will permit.
    (See RCFC 5.3 (d) which is applicable to administrative records,
    unless waived by the court.) Materials that otherwise qualify as
    part of the administrative record are not excluded from it merely
    because they are only in electronic form.
    24. Any additional documents within the administrative record shall
    be produced at such time as may be agreed to by the parties or
    ordered by the court.
                        VIII. ADMISSION OF COUNSEL                    
    25. In those procurement protest cases in which counsel for the
    plaintiff is not a member of the bar of the court and does not have
    sufficient time to gain admission prior to the filing of the
    action, the clerk shall accept for filing any proper complaint and
    accompanying pleadings under 28 U.S.C. Sec. 1491(b) from such
    counsel, conditioned upon counsel's prompt pursuit of admission to
    practice before the United States Court of Federal Claims pursuant
    to RCFC 83.1. Failure to do so within 30 days of the initiation of
    the action may result in dismissal of the action, and possible
    referral for disciplinary action.


-MISC1-
                           RULES COMMITTEE NOTE                       
      This appendix sets forth the procedures applicable to the court's
    procurement protest jurisdiction. In the main, these procedures
    reflect those that formerly appeared as General Order No. 38,
    issued on May 7, 1998. In addition, however, Appendix C now also
    incorporates - in paragraphs 10 through 14 - those provisions of
    former RCFC 65(f) (titled "Procedures") which enumerated
    requirements particular to applications for temporary restraining
    orders and/or motions for preliminary injunction.
      Papers and exhibits are often filed under seal in procurement
    protests. Procedures for unsealing are addressed at RCFC 77.3(d).
    The standards for granting access to protected information are
    addressed in decisions such as U.S. Steel Corp. v. United States,
    730 F.2d 1465 (Fed. Cir. 1984) and Matsushita Elec. Indus. Co. v.
    United States, 929 F.2d 1577 (Fed. Cir. 1991).

-End-


-CITE-
    28 USC APPENDIX App. D                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX D

-HEAD-
    App. D
-MISC1-
                                APPENDIX D                            
                PROCEDURE IN CONGRESSIONAL REFERENCE CASES            
      1. Purpose. The Federal Courts Improvement Act of 1982, amended
    28 U.S.C. Secs. 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 RCFC 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 RCFC5.3(d),
    8 and 9.
      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. Each hearing
    officer and each review panel, acting by majority vote, 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.
      6. 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 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.
      7. 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.
      8. Review panel consideration and report.
      (a) The findings and conclusions of the hearing officer, together
    with the record of the case, shall be transmitted to the review
    panel.
      (b) 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.
      (c) When neither party has filed a notice of intention to except,
    the review panel shall nevertheless review the report. If the
    review panel is considering a material modification of the findings
    or conclusions of the hearing officer, the presiding officer by
    order shall so notify the parties and shall establish a schedule
    for the parties to file briefs and requests for oral argument
    before the panel.
      (d) 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's conclusions shall not be set aside unless justice
    shall so require. No case shall be returned to the hearing officer
    unless so ordered by the review panel.
      (e) After conclusion of its review, including any briefing and
    argument, the review panel, by majority vote, shall adopt or modify
    the findings and the conclusions of the hearing officer and shall
    file its report with the clerk, for service on the parties.
      9. 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. The
    chief judge will entertain no appeals or requests for review of any
    rulings or actions by a hearing officer or a review panel.
      10. 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.
      11. 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.
      12. Filing Fees. Filing fees as set by RCFC 77.1 are required in
    congressional reference cases.

-SOURCE-
    (As amended Sept. 15, 2003.)


-MISC1-
                           RULES COMMITTEE NOTE                       
      Appendix D provides the procedures applicable to congressional
    reference cases. Revisions effective May 1, 2002 include the
    deletion from former &#182; 3 of authority for the filing of a
    "preliminary complaint" (a change that reflects the corresponding
    deletion of such authority from the court's basic rules) and the
    deletion, as unnecessary, of former &#182; 6, titled "Captions."
      Revisions effective September 15, 2003, reorganize &#182; 8
    (former &#182; 9) into five subparagraphs. Subparagraph (c)
    clarifies the review panel's responsibility in the absence of
    exceptions to a hearing officer's report and identifies the
    procedures required where modification of such a report is being
    considered by the review panel. Subparagraph (d) sets out standards
    for review applicable whether or not exceptions have been taken,
    including language formerly appearing in &#182; 7. The restriction
    on the role of the chief judge in the appeal and review process has
    been relocated to the end of &#182; 9.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Courts Improvement Act of 1982, referred to in par.
    (1), is Pub. L. 97-164, Apr. 2, 1982, 96 Stat. 25. For complete
    classification of this Act to the Code, see Short Title of 1982
    Amendments note set out under section 1 of this title and Tables.

-End-


-CITE-
    28 USC APPENDIX App. E                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX E

-HEAD-
    App. E
-MISC1-
                                APPENDIX E                            
                        PROCEDURE IN CARRIER CASES                    
    Rule 1. Carrier's Request For Admission of Facts
      (a) Time for Filing Request. In every suit filed by a 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.
      (b) Form and Content of Request. The request shall conform to the
    following requirements:
        (1) 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 legible and that
      the words and figures shown therein shall be large enough type to
      be read without difficulty.
        (2) Copies; Filing; Service. If the request accompanies the
      complaint, copies and service of such request shall be as
      provided in RCFC 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 RCFC 5, and 83, except that 5
      copies shall be served on the defendant in lieu of a copy.
        (3) Signature of Attorney. The request shall be signed by the
      attorney of record for the plaintiff.
        (4) 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.
        (5) 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
      subdivisions (b)(7) and (b)(8), 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.
        (6) 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 Services Administration (GSA) 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 (A) court decisions involving the same issue, or (B)
      the tariffs, contract terms 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.
        (7) 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:
          (A) 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
        GSA made a deduction following its determination of an
        overpayment on the bill in dispute.
          (B) Detail for Each Bill of Lading. For each bill of lading
        in dispute, covered by each bill referred to in paragraph (A),
        the following facts:
            (i) the number and symbol of each bill of lading;
            (ii) the date of the shipment;
            (iii) the origin and the destination of the shipment;
            (iv) a description of the commodity or commodities shipped,
          including a description of the packing where this affects the
          rate;
            (v) car number and initial;
            (vi) the weight of the shipment, including the minimum
          carload weight when greater than the actual weight;
            (vii) 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;
            (viii) the rates claimed for each article in the shipment
          and for any accessorial services;
            (ix) the total freight charges on each bill of lading;
            (x) amounts refunded by carrier, if any, and the dates
          thereof;
            (xi) 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;
            (xii) the total amount paid the carrier;
            (xiii) the balance due;
            (xiv) 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 government rate
          quotation;
            (xv) the government file reference number as obtained from
          GSA notice of overcharge, the Certificate of Indebtedness, or
          other document issued by 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;
            (xvi) if the shipment in dispute consists in whole or in
          part of a through transit movement: a. 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; b. 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; c. 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, d. 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
            (xvii) 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

          (C) 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.

        (8) 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:
        (Name) (Title)
        (Name of Carrier)

      I 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
      ________ v. United States, No. ____ 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
      ____________ this ____ day of ______, 20__.
      (Signature of auditor, comptroller, or principal accounting
      officer.)
        (9) 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:
          (A) 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 GSA made a deduction
        following its determination of an overpayment on the bill in
        dispute.
          (B) Detail: Each Transportation Request or Warrant. For each
        transportation request or warrant in dispute, covered by each
        bill referred to in subparagraph (A) the following facts:
            (i) the symbol and number of each transportation request or
          warrant in dispute;
            (ii) the date of service;
            (iii) the origin and destination of the travel;
            (iv) the class or type of service;
            (v) whether the travel was one way or round trip;
            (vi) the number of the special movement, if any;
            (vii) the route of travel;
            (viii) the number of persons that traveled;
            (ix) the gross per capita fare;
            (x) the assessable passenger charges;
            (xi) the amount paid, and by what government office and
          where located;
            (xii) amounts refunded by carrier, if any, and the dates
          thereof, and the government office to which refunded and
          where located;
            (xiii) 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;
            (xiv) the total amount paid, and by what government office
          and where located;
            (xv) the balance due;
            (xvi) the tariff reference and item or special rate
          authority;
            (xvii) the government file reference; and
            (xviii) 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.

        (10) Certification and Signature of Carrier: Passengers. The
      schedule covering the transportation of passengers shall be
      certified in the same manner as provided in Rule 1(b)(8), 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.

      (c) 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.

    Rule 2. Defendant's Response
      (a) 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 RCFC 5.
      (b) 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 RCFC 5. The
    response shall be signed by defendant's attorney of record and
    shall comply with the terms of Rule 1(b)(1).
      (c) 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.
      (d) 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.
      (e) 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, government rate 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.
      (f) Schedule: Defendant's Basis for Applicable Charges. If the
    defendant claims that the tariffs, government rate 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,
    government rate quotations, or other authority relied on by
    defendant in support of its contention. The schedule shall also
    comply with the terms of subdivision (b)(7)(C).
      (g) 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.
      (h) 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.
      (i) 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. Secs. 11705
    and 14705 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.

    Rule 3. Acceptance of Response; Pretrial; Judgment
      (a) 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.
      (b) 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.
      (c) 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.

    Rule 4. Cases Within Primary Jurisdiction of The Surface
    Transportation Board
      (a) Referral to Surface Transportation Board. 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 Surface Transportation Board
    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
    Surface Transportation Board has construed the cited tariffs in
    prior decisions or has clarified the facts underlying them, citing
    the pertinent decisions, if any.
      (b) 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 Surface
    Transportation Board 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.
      (c) Referral to Surface Transportation Board - Plaintiff's
    Motion. 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 Surface
    Transportation Board 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 Rule 4(a).
      (d) Defendant's Response to Plaintiff's Motion for Referral.
    Defendant's response to plaintiff's motion shall conform to the
    requirements of Rule 4(b).
      (e) 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.
      (f) Failure To File Referral Motion in Specified Time. 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 Surface Transportation Board may be deemed good
    cause for denying any such motion thereafter filed.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Appendix E formerly appeared in these rules as Appendix C.
    Additionally, substantive changes have been made:
      First, the word "common" has been stricken from the term "common
    carrier." The term "common carrier" is no longer used in the
    Interstate Commerce Act 49 U.S.C. Sec. 13102. Since deregulation
    occurred, see ICC Termination Act of 1995, Pub. L. No. 104-88, Sec.
    103, 109 Stat. 803, 852, carriers are no longer required to file
    tariffs other than for household goods and noncontiguous domestic
    trade. Certificates of Public Convenience and Necessity are no
    longer required and thus there are no "common carriers," as the
    term formerly was used, as a reference to a public utility, fully
    regulated status.
      Second, in subdivision (a)(2)(F), titled "Nature of Dispute;
    Statement of Issues" the term "General Accounting Office" was
    replaced with "General Services Administration." The GSA Board of
    Contract Appeals replaced the General Accounting Office as
    reviewing authority in GSA transportation audit billing appeals
    pursuant to the Legislative Branch Appropriations Act of 1996,
    effective June 30, 1996, and delegations of authority granted
    thereunder. Also, in subdivision (a)(2)(F)(2), the term "contract
    terms" was added as authority relied upon by plaintiffs in their
    statement of issues because, with no tariff filing requirement,
    individual movements by contract are more common.
      Third, all references to a "Sec. 22 quotation" were replaced with
    "government rate quotation." Section 22 (49 U.S.C. Sec. 22 (1887))
    rates were replaced by "government rates" under 49 U.S.C. Sec.
    10721 (rail) and Sec. 13712 (all other modes), and as such, lower
    rates are not limited strictly for the use of the government.
      Fourth, in subdivision (a)(2)(I)(ii)(a), the word "government"
    was struck in reference to a transportation request or warrant in
    dispute. Under the provisions of 41 CFR Sec. 102-118.175,
    Government Bills of Lading will no longer be used for domestic
    traffic and under 41 CFR Sec. 102-118.180, Government
    Transportation Requests will no longer be mandatory.
      Fifth, in subdivision (b)(9), titled, "Relation to Pleadings,
    Time for Filing Answer or Counterclaim," the statutory reference
    was updated.
      Finally, all references to the "Interstate Commerce Commission"
    were stricken and replaced with the "Surface Transportation Board."
    While carriers are no longer subject to full regulation, the
    "reasonableness requirement" on "through routes," "divisions of
    joint rates," and rates "made collectively by [any group of]
    carriers under agreements approved by the Surface Transportation
    Board," remains intact and is subject to that body's review.

-End-


-CITE-
    28 USC APPENDIX App. F                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX F

-HEAD-
    App. F
-MISC1-
                                APPENDIX F                            
                    PROCEDURE IN TAX PARTNERSHIP CASES                
    Rule 1. General
      (a) Applicability. This Appendix sets forth the special
    provisions that apply to actions for readjustment of partnership
    items under Section 6226 of the Internal Revenue Code (Code) and
    actions for adjustment of partnership items under Code Section
    6228. Except as otherwise provided in this Appendix, the Rules of
    the United States Court of Federal Claims (RCFC), to the extent
    pertinent, are applicable to such partnership actions.
      (b) Definitions. As used in this Appendix - 
      (1) the term "partnership" means a partnership as defined in Code
    Section 6231(a)(1);
      (2) a "partnership action" is either an "action for readjustment
    of partnership items" under Code Section 6226 or an "action for
    adjustment of partnership items" under Code Section 6228;
      (3) the term "partnership item" means any item described in Code
    Section 6231(a)(3);
      (4) the term "tax matters partner" means the person who is the
    tax matters partner under Code Section 6231(a)(7) or appointed tax
    matters partner by the court under Rule 9 of this Appendix, and who
    under this Appendix is responsible for keeping each partner fully
    informed of the partnership action (see Code Sections 6223(g) and
    6230(1));
      (5) a "notice of final partnership administrative adjustment" is
    the notice described in Code Section 6223(a)(2);
      (6) the term "administrative adjustment request" means a request
    for an administrative adjustment of partnership items filed by the
    tax matters partner on behalf of the partnership under Code Section
    6227(b);
      (7) the term "partner" means a person who was a partner as
    defined in Code Section 6231(a)(2) at any time during any
    partnership taxable year at issue in a partnership action;
      (8) the term "notice partner" means a person who is a notice
    partner under Code Section 6231(a)(8);
      (9) the term "5-percent group" means a 5-percent group as defined
    in Code Section 6231(a)(11);
      (10) the term "deposit" means the deposit required by Code
    Section 6226(e)(1); and
      (11) the term "Notice of Assignment" means the notice mailed to
    the parties by the clerk of the court after the filing of a
    complaint that advises the parties of the name of the judge to whom
    the proceeding is assigned.
      (c) Jurisdictional Requirements. The court does not have
    jurisdiction over a partnership action under this Appendix unless
    the following conditions are satisfied:
      (1) Actions for readjustment of partnership items:
        (A) the Commissioner of Internal Revenue (Commissioner) has
      issued a notice of final partnership administrative adjustment
      (see Code Section 6226(a) and (b));
        (B) a complaint for readjustment of partnership items is filed
      with the court by the tax matters partner within the period
      specified in Code Section 6226(a), or by a notice partner (or 5
      percent group) subject to the conditions and within the period
      specified in Code Section 6226(b); and
        (C) the partner or partners filing the complaint make a deposit
      as required by Code Section 6226(e).

      (2) Actions for adjustment of partnership items:
        (A) the Commissioner has not allowed all or some of the
      adjustments requested in an administrative adjustment request
      (see Code Section 6228(a)); and
        (B) a complaint for adjustment of partnership items is filed
      with the court by the tax matters partner subject to the
      conditions and within the period specified in Code Section
      6228(a)(2) and (3).

      (d) Form and Style of Papers: All papers filed in a partnership
    action shall be prepared in the form and style set forth in RCFC
    5.2 and l0(a), except that the caption shall state the name of the
    partnership and the full name and surname of any partner filing the
    complaint and shall indicate whether such partner is the tax
    matters partner, as for example, "ABC Partnership, Mary Doe, Tax
    Matters Partner, Complainant" or "ABC Partnership, Richard Roe, A
    Partner Other Than the Tax Matters Partner, Complainant."

    Rule 2. Commencement of Partnership Action
      (a) Commencement of Action. A partnership action shall be
    commenced by filing a complaint with the court. See RCFC 3,
    relating to commencement of case; RCFC 5.2 and 10, relating to form
    of pleadings; and RCFC 5.2(d), relating to number of copies to be
    filed.
      (b) Contents of Complaint. Each complaint shall be titled either
    "Complaint for Readjustment of Partnership Items under Code Section
    6226" or "Complaint for Adjustment of Partnership Items under Code
    Section 6228." Each such complaint shall contain the allegations
    described in subdivision (c) of this Rule and the allegations
    described in subdivision (d) or (e) of this Rule.
      (c) All Complaints: All complaints in partnership actions shall
    contain the following:
        (1) the name and address of the complainant;
        (2) the name, employer identification number, and principal
      place of business of the partnership and of each partner filing
      the complaint at the time the complaint is filed;
        (3) the city and state of the office of the Internal Revenue
      Service with which the partnership's return for the period in
      controversy was filed.

    A claim for reasonable litigation costs shall not be included in
    the complaint in a partnership action. For the requirements as to
    claims for reasonable litigation costs, see RCFC 54(d)(1).
      (d) Complaint for Readjustment of Partnership Items: In addition
    to including the information specified in subdivision (c) of this
    Rule, a complaint for readjustment of partnership items shall also
    contain the following information.
        (1) All complaints. All complaints for readjustment of
      partnership items shall contain:
          (A) the date of the notice of final partnership
        administrative adjustment and the city and state of the office
        of the Internal Revenue Service that issued the notice;
          (B) the year or years or other periods for which the notice
        of final partnership administrative adjustment was issued;
          (C) clear and concise statements of each and every error that
        the complainant alleges to have been committed by the
        Commissioner in the notice of final partnership administrative
        adjustment. The assignments of error shall include issues, if
        any, in respect to which the burden of proof is on the United
        States. Any issues not raised in the assignments of error, or
        in the assignments of error in any amendment to the complaint,
        shall be deemed to be conceded. Each assignment of error shall
        be set forth in a separately lettered subdivision;
          (D) clear and concise lettered statements of the facts on
        which the complainant bases the assignments of error, except
        with respect to those assignments of error, if any, as to which
        the burden of proof is on the United States;
          (E) the amount of the deposit made by each partner filing the
        complaint;
          (F) the date and place of the making of each deposit;
          (G) a prayer setting forth relief sought by the complainant;
          (H) the signature, mailing address, and telephone number of
        each complainant or of each complainant's counsel. See RCFC
        83.1 regarding attorneys of record; and
          (I) a copy of the notice of final partnership administrative
        adjustment, which shall be appended to the complaint, and with
        which there shall be included so much of any statement
        accompanying the notice as is material to the issues raised by
        the assignments of error. If the notice of final partnership
        administrative adjustment or any accompanying statement
        incorporates by reference any prior notices, or other material
        furnished by the Internal Revenue Service, such parts thereof
        as are material to the assignments of error likewise shall be
        appended to the complaint.

        (2) Complaints by Tax Matters Partner: In addition to including
      the information specified in paragraph (1) of this subdivision, a
      complaint filed by the tax matters partner during the time period
      specified in Code Section 6226(b) shall also contain a separate
      numbered paragraph stating that the pleader is the tax matters
      partner.
        (3) Complaints by Other Partners: In addition to including the
      information specified in paragraph (1) of this subdivision, a
      complaint filed by a notice partner or by a 5-percent group
      during the time period specified in Code Section 6226(b) shall
      also contain:
          (A) a separate numbered paragraph stating that the pleader is
        a notice partner or a representative of a 5-percent group (see
        Code Section 6226(b)(1));
          (B) a separate numbered paragraph setting forth facts
        establishing that the pleader satisfies the requirements of
        Code Section 6226(d);
          (C) a separate numbered paragraph stating the name and
        current address of the tax matters partner; and
          (D) a separate numbered paragraph stating that the tax
        matters partner has not filed a complaint for readjustment of
        partnership items within the period specified in Code Section
        6226(a).

      Under subdivision (d)(1)(H) of this Rule, the representative of a
    five-percent group may sign a complaint on behalf of all members of
    the group. In such circumstances, the complaint shall contain a
    separate-numbered paragraph stating that the representative has
    been duly authorized to sign on behalf of all members of the group.
      (e) Complaint for Adjustment of Partnership Items: In addition to
    including the information specified in subdivision (c) of this
    Rule, a complaint for adjustment of partnership items shall also
    contain:
        (1) a statement that the complainant is the tax matters
      partner;
        (2) the date that the administrative adjustment request was
      filed and other proper allegations showing jurisdiction in the
      court in accordance with the requirements of Code Section
      6228(a)(1) and (2);
        (3) the year or years or other periods to which the
      administrative adjustment relates;
        (4) the city and state of the office of the Internal Revenue
      Service with which the administrative adjustment request was
      filed;
        (5) a clear and concise statement describing each partnership
      item on the partnership return that is sought to be changed, and
      the basis for each such requested change. Each such statement
      shall be set forth in a separately lettered paragraph;
        (6) clear and concise lettered statements of the facts on which
      the complainant relies in support of such requested changes in
      treatment of partnership items;
        (7) a prayer setting forth relief sought by the complainant;
        (8) the signature, mailing address, and telephone number of the
      complainant or the complainant's counsel (see RCFC 83.1 regarding
      attorneys of record); and
        (9) a copy of the administrative adjustment request appended to
      the complaint.

      (f) Notice of Filing:
        (1) Complaints by the Tax Matters Partner: Within 5 days after
      receiving the Notice of Assignment from the court, the tax
      matters partner shall serve notice of the filing of the complaint
      on each partner in the partnership as required by Code Section
      6223(g). Said notice shall include the docket number assigned to
      the case by the court and the date of the Notice of
      Assignment..(!1)

        (2) Complaints by Other Partners: Within 5 days after receiving
      the Notice of Assignment from the court, the complainant shall
      serve a copy of the complaint on the tax matters partner, and at
      the same time notify the tax matters partner of the docket number
      assigned to the case by the court and of the date of the Notice
      of Assignment. Within 5 days after receiving a copy of the
      complaint and of the aforementioned notification from the
      complainant, the tax matters partner shall serve notice of the
      filing of the complaint on each partner in the partnership as
      required by Code Section 6223(g). Said notice shall include the
      docket number assigned to the case by the court and the date of
      the Notice of Assignment.

      (g) Copy of Complaint To Be Provided to All Partners. Upon
    request by any partner in the partnership as referred to in Code
    Section 6231(a)(2)(A), the tax matters partner shall, within 10
    days of receipt of such request, make available to such partner a
    copy of any complaint filed by the tax matters partner or by any
    other partner.
      (h) Joinder of Parties.
      (1) Permissive Joinder. A separate complaint shall be filed with
    respect to each notice of final partnership administrative
    adjustment or each administrative adjustment request issued to
    separate partnerships. However, a single complaint for readjustment
    of partnership items or complaint for adjustment of partnership
    items may be filed seeking readjustments or adjustments of
    partnership items with respect to more than one final partnership
    administrative adjustment or administrative adjustment request if
    the notices or requests pertain to the same partnership. A
    complaint may include a request that the proceeding be assigned to
    the judge to whom one or more pending cases (whether relating to
    the same partnership or to another partnership) are assigned, if
    the other case or cases present common or related issues of law or
    fact. For the procedures to be followed by partners who wish to
    intervene or participate in a partnership proceeding, see Rule 4
    below.
      (2) Severance or Other Orders. With respect to a case based upon
    multiple notices of final partnership administrative adjustment or
    administrative adjustment requests, the court may order a severance
    and a separate case to be maintained with respect to one or more of
    such notices or requests whenever it appears to the court that
    proceeding separately is in furtherance of convenience, or will
    avoid prejudice, or when separate trials will be conducive to
    expedition or economy.

    Rule 3. Other Pleadings
      (a) Answer: The United States shall file an answer or shall move
    with respect to the complaint within the periods specified in and
    in accordance with the provisions of RCFC 12.
      (b) Reply: For provisions relating to the filing of a reply, see
    RCFC 7(a).

    Rule 4. Intervention and Participation
      (a) Tax Matters Partner: The tax matters partner may intervene in
    an action for readjustment of partnership items brought by another
    partner or partners by filing a notice of election to intervene
    with the court. Such notice shall state that the intervenor is the
    tax matters partner and shall be filed within 45 days from the date
    of the Notice of Assignment. See Code Section 6226(b)(2) and
    paragraph 2(d)(3) of this Appendix.
      (b) Other Partners: Any other partner who satisfies the
    requirements of Code Section 6226(d) or 6228(a)(4)(B) may
    participate in the action by filing a notice of election to
    participate with the court. Such notice shall set forth facts
    establishing that such partner satisfies the requirements of Code
    Section 6226(d) in the case of an action for readjustment of
    partnership items, or Code Section 6228(a)(4)(B) in the case of an
    action for adjustment of partnership items, and shall be filed
    within 45 days from the date of the Notice of Assignment. A single
    notice may be filed by two or more partners; however, each such
    partner must satisfy all requirements of this paragraph in order
    for the notice to be treated as filed by or for that partner.
      (c) Enlargement of Time: The court may grant leave to file a
    notice of election to intervene or a notice of election to
    participate out of time upon a showing of sufficient cause.
      (d) Pleading: No assignment of error, allegation of fact, or
    other statement in the nature of a pleading shall be included in
    the notice of election to intervene or notice of election to
    participate.
      (e) Amendments to the Complaint: A party other than the
    complainant who is authorized to raise issues not raised in the
    complaint may do so by filing an amendment to the complaint. Such
    an amendment may be filed, without leave of court, at any time
    before service of the response to the complaint by the United
    States. Otherwise, such an amendment may be filed only by leave of
    court. See RCFC 15(a) for time for responding to amendments to the
    complaint.

    Rule 5. Service of Papers
      (a) Complaints: All complaints shall be served by the clerk on
    the United States.
      (b) Papers Issued by Court: All papers issued by the court shall
    be served by the clerk on the United States, the tax matters
    partner (whether or not the tax matters partner is a participating
    partner), and all other participating partners.
      (c) All Other Papers: All other papers required to be served (see
    RCFC 5) shall be served by the parties filing such papers. Whenever
    a paper (other than a complaint) is required to be filed with the
    court, the original paper shall be filed with the court with
    certificates by the filing party or the filing party's counsel that
    service of the paper has been made on each of the parties set forth
    in subdivision (b) of this Rule or on such other parties' counsel.

    Rule 6. Parties
      (a) In General: For purposes of this Appendix, the United States,
    the partner who filed the complaint, the tax matters partner, and
    each person who satisfies the requirements of Code Section 6226(c)
    and (d) or 6228(a)(4) shall be treated as parties to the action.
      (b) Participating Partners: Participating partners are the
    partner who filed the complaint and such other partners who have
    filed either a notice of election to intervene or a notice of
    election to participate in accordance with the provisions of RCFC
    4. See Code Sections 6226(c) and 6228(a)(4)(A). For purposes of the
    court's procedural rules other than those set forth in this
    Appendix, only participating partners, as defined in this
    subdivision, and the United States shall be considered to be
    parties.

    Rule 7. Settlement Agreements
      (a) Consent By the Tax Matters Partner to Entry of Decision: A
    stipulation consenting to entry of decision executed by the tax
    matters partner and filed with the court shall bind all parties.
    The signature of the tax matters partner constitutes a certificate
    by the tax matters partner that no party objects to entry of the
    decision. See Rule 10 below.
      (b) Settlement Agreements Entered Into By All Participating
    Partners or No Objection by Participating Partners:
      (1) After expiration of the time within which to file a notice of
    election to intervene or to participate under Rule 4(a) or (b), the
    United States shall move for entry of decision, and shall submit a
    proposed form of decision with such motion, if:
        (A) all of the participating partners have entered into a
      settlement agreement with the defendant, or all of such partners
      do not object to the granting of the defendant's motion for entry
      of decision, and
        (B) the tax matters partner (if a participating partner) agrees
      to the proposed decision in the case but does not certify that no
      party objects to the granting of the defendant's motion for entry
      of decision.

      (2) Within 3 days from the date on which the defendant's motion
    for entry of decision is filed with the court, the defendant shall
    serve on the tax matters partner a certificate showing the date on
    which the defendant's motion was filed with the court.
      (3) Within 3 days after receiving the defendant's certificate,
    the tax matters partner shall serve on all other parties to the
    action, other than the participating partners, a copy of the
    defendant's motion for entry of decision, a copy of the proposed
    decision, a copy of the defendant's certificate showing the date on
    which the defendant's motion was filed with the court, and a copy
    of this paragraph of Rule 7.
      (4) If any party objects to the granting of the defendant's
    motion for entry of decision, then that party shall, within 60 days
    from the date on which the defendant's motion was filed with the
    court, file a motion for leave to file a notice of election to
    intervene or to participate, accompanied by a separate notice of
    election to intervene or to participate, as the case may be. If no
    such motion is filed with the court within such period, or if the
    court should deny such motion, then the court may enter the
    proposed decision as its decision in the partnership action. See
    Code Sections 6226(f) and 6228(a)(5).
      (c) Other Settlement Agreements: If a settlement agreement is not
    within the scope of subdivision (b) of this Rule, then:
      (1) in the case of a participating partner, the defendant shall
    promptly file with the court a notice of settlement agreement that
    identifies the participating partner or partners who have entered
    into the settlement agreement; and
      (2) in the case of any partner who enters into a settlement
    agreement, the defendant shall, within 7 days after the settlement
    agreement is executed by both the partner and the defendant, serve
    on the tax matters partner a statement which sets forth:
        (A) the identity of the party or parties to the settlement
      agreement and the date of the agreement;
        (B) the year or years to which the settlement agreement
      relates; and
        (C) the terms of settlement as to each partnership item and the
      allocation of such items among the partners.

      Within 7 days after receiving the statement required by this
    subdivision, the tax matters partner shall serve a copy of the
    statement on all parties to the action.

    Rule 8. Action For Adjustment of Partnership Items Treated As
    Action For Readjustment of Partnership Items
      (a) Amendment of complaint: If, after the filing of a complaint
    for adjustment of partnership items (see Code Section 6228(a)) and
    Rule 2(a) above, but before hearing of such complaint, the
    Commissioner mails to the tax matters partner a notice of final
    partnership administrative adjustment for the partnership taxable
    year to which the complaint relates, such complaint shall be
    treated as a complaint in an action for readjustment of the
    partnership items to which such notice relates. The complainant,
    within 90 days after the date on which the notice of final
    partnership administrative adjustment is mailed to the tax matters
    partner, shall file an amendment to the complaint, setting forth
    every error which the complainant alleges to have been committed by
    the Commissioner in the notice of final partnership administrative
    adjustment, and the facts on which the complainant bases the
    assignments of error. A copy of the notice of final partnership
    administrative adjustment shall be appended to the amendment to the
    complaint. On or before the day the amendment to the complaint is
    delivered to the court, or, if the amendment is mailed to the
    court, on or before the day of mailing, the tax matters partner
    shall serve notice of the filing of the amendment to complaint on
    each partner in the partnership as required by Code Section
    6223(g).
      (b) Participation: Any partner who has filed a timely notice of
    election to participate in the action for adjustment of partnership
    items shall be deemed to have elected to participate in the action
    for readjustment of partnership items and need not file another
    notice of election to do so. Any other partner may participate in
    the action by filing a notice of election to participate within 45
    days from the date of filing of the amendment to complaint. See
    Rule 4 above.

    Rule 9. Appointment and Removal of the Tax Matters Partner
      (a) Appointment of Tax Matters Partner: If, at the time of
    commencement of a partnership action by a partner other than the
    tax matters partner, the tax matters partner is not identified in
    the complaint, the court will take such action as may be necessary
    to establish the identity of the tax matters partner or to effect
    the appointment of a tax matters partner.
      (b) Removal of Tax Matters Partner: After notice and opportunity
    to be heard, the court may for cause remove a partner as the tax
    matters partner. If the tax matters partner is removed by the
    court, or if a partner's status as the tax matters partner is
    terminated for reason other than removal by the court, the court
    may appoint another partner as the tax matters partner if the
    partnership fails to designate a successor tax matters partner
    within such period as the court may direct.

    Rule 10. Decisions
      A decision entered by the court in a partnership action shall be
    binding on all parties. For the definition of parties, see Rule 6
    above.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Section 6226 of the Internal Revenue Code grants this court
    jurisdiction, along with the United States Tax Court and the United
    States district courts, to consider petitions for readjustment of
    partnership items as set forth in a final partnership
    administrative adjustment. Appendix F provides the procedural rules
    for such cases. In the interests of uniformity, the rules contained
    in Appendix F parallel the rules applicable to these cases in the
    United States Tax Court.

           -FOOTNOTE-
               

    (!1) So in original.


-End-


-CITE-
    28 USC APPENDIX App. G                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX G

-HEAD-
    App. G
-MISC1-
                                APPENDIX G                            
                PROCEDURE IN INDIAN CLAIMS COMMISSION CASES            
      Attorneys claiming fees and expenses in cases transferred to the
    former United States Court of Claims from the Indian Claims
    Commission pursuant to 25 U.S.C. Sec. 70v (1976) (amended 1977),
    and thereafter assigned to this court pursuant to P.L. No. 97-164,
    Sec. 149, 96 Stat. 25, 46, wherein money judgments are entered
    shall file the appropriate motion or motions within 30 days of the
    entry of the money judgment. Defendant shall file its response
    within 28 days and a reply may be filed within 14 days. Absent the
    filing of such a timely motion, a docket entry will be made closing
    the case. Said motions shall state that copies thereof have been
    provided to the tribal counsel, other head officer of the
    plaintiff, if there be one, or if there is neither of the
    foregoing, then to the agency superintendent under whose
    jurisdiction the plaintiff may be.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Appendix G formerly appeared in these rules as General Order No.
    4 issued December 29, 1982. Although Appendix G remains the same in
    substance as General Order No. 4, some of the earlier language was
    deleted as unnecessary.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 149 of Pub. L. 97-164, 96 Stat. 46, referred to in text,
    amended former section 70v-3 of Title 25, Indians.

-End-


-CITE-
    28 USC APPENDIX App. H                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
    APPENDIX H

-HEAD-
    App. H
-MISC1-
                                APPENDIX H                            
               PROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION           
      1. General. The United States Court of Federal Claims recognizes
    a variety of voluntary, non-binding alternative dispute resolution
    (ADR) tools for use in appropriate cases. ADR techniques include
    but are not limited to mediation, mini-trials, early neutral
    evaluation, and non-binding arbitration. These processes may be
    conducted either by a settlement judge or a third party neutral.
      2. Terms.
      (a) Settlement Judge: A judge of the court, other than the
    presiding judge. Appointment of a settlement judge permits the
    parties to engage in a frank, in-depth discussion of the strengths
    and weaknesses of each party's case before a judicial officer
    without the inhibitions that might exist before the presiding
    judge. A settlement judge may act both as a mediator and as a
    neutral evaluator. This process should be employed early enough in
    the litigation to avoid needless expense and delay. Use of a
    settlement judge permits the parties to gain the benefit of a
    judicial perspective without jeopardizing their ability to gain a
    resolution of their case by the presiding judge should settlement
    efforts fail.
      (b) Presiding Judge. The judge regularly assigned to the case.
      (c) Third-party Neutrals. In consultation with the bar, the court
    will maintain a list of qualified individuals who have indicated
    their willingness and demonstrated their ability to serve as
    neutral evaluators and mediators. Parties may select neutrals who
    are not on the court's list.
      (d) Mediation. A flexible and voluntary dispute-resolution
    procedure in which a settlement judge or a third-party neutral, the
    mediator, facilitates negotiations to reach a mutually agreeable
    resolution. The mediation process involves one or more sessions in
    which counsel, litigants, and the mediator participate, and may
    continue over a period of time. The mediator can help the parties
    improve communication, clarify interests, and probe the strengths
    and weaknesses of their own and their opponents' positions. The
    mediator can also identify areas of agreement and help generate
    options that lead to a settlement.
      (e) Early neutral evaluation. Using the services of a third-party
    neutral or settlement judge knowledgeable in the subject-matter of
    the litigation to assess the strengths and weaknesses of the
    parties' positions. In this manner, the parties may gain a more
    realistic view of their prospects for success, thus narrowing the
    issues and facilitating settlement.
      (f) Mini-trials. A flexible, abbreviated procedure in which the
    parties present their case, or a portion of it, to a third-party
    neutral or settlement judge.
      3. Procedures. RCFC 16 and Appendix A paragraphs 3 and 4(i) set
    out the parties' obligations with respect to consideration of ADR.
    At any point in the litigation, however, the parties can notify the
    court of their desire to pursue ADR. There is no single format for
    ADR. Any procedures agreed to by the parties and adopted by the
    settlement judge or third party neutral may be used. Certain basic
    ground rules will be observed, however, as follows:
      (a) ADR is voluntary. A party's good faith determination that ADR
    is not appropriate in a particular case should be respected by
    other parties and the court.
      (b) When the parties have indicated their agreement to ADR to the
    presiding judge, the presiding judge, if in agreement, will forward
    the request to the Clerk of the Court for assignment to a
    settlement judge or third-party neutral as selected by the parties.
      (c) In the event the parties agree to use ADR, the settlement
    judge or third party neutral and the parties will develop
    procedures appropriate to that case. The settlement judge or
    third-party neutral and the parties will develop a written
    statement, to be executed by the settlement judge or neutral,
    outlining the terms of the settlement process, including an
    indication of assent to confidentiality by all parties. Neither
    this statement nor any other materials developed for use solely
    within the ADR process will be filed with the court.
      (d) There will be no transcript of any ADR proceeding. All ADR
    proceedings, including documents generated solely for the
    proceedings and communications within the scope of the proceedings,
    are confidential and will not be provided to a judge of the court
    who is not the settlement judge in the dispute. Information which
    is otherwise discoverable or admissible does not lose that
    characteristic merely because of its use in the ADR proceedings.
      (e) Participation in ADR constitutes agreement by the parties not
    to subpoena or seek in any way the testimony of the settlement
    judge in any subsequent proceeding.
      (f) During the ADR process, the matter will remain on the docket
    of the presiding judge. At the conclusion of the ADR process, the
    settlement judge or the third party neutral will notify the
    presiding judge and the clerk of the court only of the outcome,
    i.e., whether the matter has been settled.


-MISC1-
                           RULES COMMITTEE NOTE                       
      Appendix H "Procedure For Alternate Dispute Resolution," revises
    and replaces the alternate dispute resolution procedures first
    adopted by the court in General Order No. 13, dated April 15, 1987
    and later amended through Amended General Order No. 13, dated
    November 8, 1996. The adoption of Appendix H as a permanent part of
    the court's rules reflects the court's recognition of the
    increasing usefulness of alternative dispute resolution procedures
    in the resolution of claims against the United States.

-HEAD-
    Form 1


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.001" width=576 height=579 alt="Image of item"><p>

    Form 1


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.002" width=576 height=579 alt="Image of item"><p>

    Form 2


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.003" width=576 height=579 alt="Image of item"><p>

    Form 2


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.004" width=576 height=579 alt="Image of item"><p>

    Form 2


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.005" width=576 height=579 alt="Image of item"><p>

    Form 3A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.006" width=576 height=579 alt="Image of item"><p>

    Form 3B


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.007" width=576 height=579 alt="Image of item"><p>

    Form 4


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.008" width=576 height=579 alt="Image of item"><p>

    Form 5


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.009" width=576 height=579 alt="Image of item"><p>

    Form 5


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.010" width=576 height=579 alt="Image of item"><p>

    Form 6


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.011" width=576 height=579 alt="Image of item"><p>

    Form 6


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.012" width=576 height=579 alt="Image of item"><p>

    Form 7


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.013" width=576 height=579 alt="Image of item"><p>

    Form 7A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.014" width=576 height=579 alt="Image of item"><p>

    Form 7A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.015" width=576 height=579 alt="Image of item"><p>

    Form 8


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.016" width=576 height=579 alt="Image of item"><p>

    Form 8


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.017" width=576 height=579 alt="Image of item"><p>

    Form 8


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.018" width=576 height=579 alt="Image of item"><p>

    Form 8


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.019" width=576 height=579 alt="Image of item"><p>

    Form 9


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.020" width=576 height=579 alt="Image of item"><p>

    Form 9


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.021" width=576 height=579 alt="Image of item"><p>

    Form 9


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.022" width=576 height=579 alt="Image of item"><p>

    Form 10


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-CITE-
    28 USC APPENDIX TITLE 28, APPENDIX -
    RULES OF THE COURT OF INTERNATIONAL TRADE                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
        RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS
        APPENDIX H
TITLE 28, APPENDIX - RULES OF THE COURT OF        INTERNATIONAL TRADE       

-End-


-CITE-
    28 USC APPENDIX RULES OF THE UNITED STATES COURT
      OF INTERNATIONAL TRADE                               01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE

-HEAD-
          RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE      


-MISC1-
       (EFFECTIVE NOVEMBER 1, 1980, AS AMENDED TO JANUARY 19, 2004)   

                                                                

               TITLE I - SCOPE OF RULES - ONE FORM OF ACTION           
    Rule                                                     
    1.          Scope of Rules.                                       
    2.          One Form of Action.                                   

    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                  SUMMONS, PLEADINGS, MOTIONS AND ORDERS
    3.          Commencement of Action.                               
                  (a)  Commencement.                                  
                  (b)  Filing Fee.                                    
                  (c)  Complaint Fee.                                 
                  (d)  Information Statement.                         
                  (e)  Amendment of Summons.                          
                  (f)  Notice to Interested Parties.                  
                  (g)  Precedence of Action.                          
                  (h)  Special Rule for Actions Described in 28 U.S.C.
                        Sec. 1581(c).                                 
                  (i)  Disclosure Statement.                          
    3.1.        Actions Transferred to the Court of International
                 Trade from a Binational Panel or Committee Pursuant
                 to 19 U.S.C. Sec. 1516a(g)(12)(B) or (D).            
                  (a)  Filing of Request for Transfer.                
                  (b)  Notice to Interested Parties.                  
                  (c)  Intervention of Right.                         
                  (d)  Documents in an Action Transferred Under 19
                        U.S.C. Sec. 1516a(g)(12).                     
                  (e)  Pleadings.                                     
                  (f)  Additional Provisions Governing Judgment Upon
                        an Agency Record.                             
                  (g)  Applicability of Other Court Rules.            
    4.          Service of Summons and Complaint.                     
                  (a)  Summons; Service by the Clerk.                 
                  (b)  Summons and Complaint; Service by Plaintiff.   
                  (c)  Service.                                       
                  (d)  Waiver of Service; Duty to Save Costs of
                        Service; Request to Waive.                    
                  (e)  Service Upon Individuals Within a Judicial
                        District of the United States.                
                  (f)  Service Upon Individuals in a Foreign Country. 
                  (g)  Service Upon Infants and Incompetent Persons.  
                  (h)  Service Upon Corporations and Associations.    
                  (i)  Service Upon the United States, and Its
                        Agencies, Corporations, or Officers.          
                  (j)  Service Upon Foreign, State, or Local
                        Governments.                                  
                  (k)  Territorial Limits of Effective Service.       
                  (l)  Proof of Service.                              
                  (m)  Time Limit For Service.                        
    4.1         Service Of Other Process.                             
    5.          Service and Filing of Pleadings and Other Papers.     
                  (a)  Service: When Required.                        
                  (b)  Same: How Made.                                
                  (c)  Same: Numerous Defendants.                     
                  (d)  Filing: When Required.                         
                  (e)  Filing with the Court Defined.                 
                  (f)  Filing of Summons and Complaint by Mail.       
                  (g)  Proof of Service.                              
                  (h)  Filings Containing Business Proprietary
                        Information in an Action Described in 28
                        U.S.C. Sec. 1581(c).                          
                  (i)  Electronic Filing.                             
    6.          Time.                                                 
                  (a)  Computation.                                   
                  (b)  Extension.                                     
                  (c)  Additional Time After Service by Mail.         

                     TITLE III - PLEADINGS AND MOTIONS                 
    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 and Other Papers;
                 Sanctions.                                           
                  (a)  Signature.                                     
                  (b)  Representation To Court.                       
                  (c)  Sanctions.                                     
                  (d)  Inapplicability to Discovery.                  
    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.          
                  (i)  Demand for a Complaint.                        
    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.                                     
    16.1.       Court-Annexed Mediation.                              

                            TITLE IV - PARTIES                        
    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.                
    22.         Interpleader.                                         
    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.                                       

                    TITLE V - DEPOSITIONS AND DISCOVERY                
    26.         General Provisions Governing Discovery; Duty of
                 Disclosure.                                          
                  (a)  Required Disclosures; Methods to Discover
                        Additional Matter.                            
                  (b)  Discovery Scope and Limits.                    
                  (c)  Protective Orders.                             
                  (d)  Timing and Sequence of Discovery.              
                  (e)  Supplementation of Disclosures and Responses.  
                  (f)  Conference of Parties; Planning for Discovery. 
                  (g)  Signing of Disclosures, Discovery Requests,
                        Responses, and Objections.                    
    26.1.       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.         
                  (a)  Within the United States.                      
                  (b)  In Foreign Countries.                          
                  (c)  Disqualification for Interest.                 
    29.         Stipulations Regarding Discovery Procedure.           
    30.         Depositions Upon Oral Examination.                    
                  (a)  When Depositions May Be Taken; When Leave
                        Required.                                     
                  (b)  Notice of Examination: General Requirements;
                        Method of Recording; Production of Documents
                        and Things; Deposition of Organization;
                        Deposition by Telephone.                      
                  (c)  Examination and Cross-Examination; Record of
                        Examination; Oath; Objections.                
                  (d)  Schedule and Duration; Motion to Terminate or
                        Limit Examination.                            
                  (e)  Review by Witness; Changes; Signing.           
                  (f)  Certification and Delivery by Officer;
                        Exhibits; Copies.                             
                  (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)  Form of Presentation.                          
                  (d)  Effect of Errors and Irregularities in
                        Depositions.                                  
    33.         Interrogatories to Parties.                           
                  (a)  Availability.                                  
                  (b)  Answers and Objections.                        
                  (c)  Scope: Use at Trial.                           
                  (d)  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 Disclosure or Cooperate in Discovery;
                 Sanctions.                                           
                  (a)  Motion for Order Compelling Disclosure or
                        Discovery.                                    
                  (b)  Failure To Comply With Order: Sanctions.       
                  (c)  Failure to Disclose; False or Misleading
                        Disclosure; Refusal to Admit.                 
                  (d)  Failure of Party To Attend at Own Deposition or
                        Serve Answers to Interrogatories or Respond to
                        Request for Inspection.                       
                  (e)  [Abrogated.]                                   
                  (f)  Failure to Participate in the Framing of a
                        Discovery Plan.                               

                             TITLE VI - TRIALS                         
    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)  Dismissal of Counterclaim, Cross-Claim, or
                        Third-Party Claim.                            
                  (d)  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.                                        

                           TITLE VII - JUDGMENT                       
    54.         Judgments; Costs.                                     
                  (a)  Definition - Form.                             
                  (b)  Judgment Upon Multiple Claims or Involving
                        Multiple Parties.                             
                  (c)  Demand for Judgment.                           
                  (d)  Costs; Attorneys' Fees.                        
    54.1.       Attorney's Fees and Expenses.                         
                  (a)  Time for Filing.                               
                  (b)  Content of Application.                        
                  (c)  Response and Reply.                            
    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)  Motion and Proceedings Thereon.                
                  (d)  Case Not Fully Adjudicated on Motion.          
                  (e)  Form of Affidavits - Further Testimony -
                        Defense Required.                             
                  (f)  When Affidavits Are Unavailable.               
                  (g)  Affidavits Made in Bad Faith.                  
                  (h)  Annexation of Statement.                       
    56.1.       Judgment Upon an Agency Record for an Action Other
                 Than That Described in 28 U.S.C. Sec. 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. Sec. 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 Judgment, Decree or Final Order.             
                  (a)  Judgments.                                     
                  (b)  Separate Document.                             
                  (c)  Time of Entry.                                 
                  (d)  Cost or Fee Awards.                            
                  (e)  Request for Entry.                             
    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 Court's Initiative.                         
                  (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.                             

    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
    63.         Inability of a Judge to Proceed.                      
    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.         Offer of Judgment.                                    
    69.         Execution.                                            
                  (a)  In General.                                    
                  (b)  Against Certain Public Officers.               

                  TITLE IX - FILING OF OFFICIAL DOCUMENTS              
    70.         [Reserved].                                           
    71.         Process in Behalf of and Against Persons not Parties. 
    72.         [Reserved].                                           
    73.         Time for Filing Documents - Notice of Filing.         
                  (a)  Time.                                          
                  (b)  Notice.                                        
    73.1.       Documents in an Action Described in 28 U.S.C. Sec.
                 1581(a) or (b).                                      
    73.2.       Documents in an Action Described in 28 U.S.C. Sec.
                 1581(c) or (f).                                      
                  (a)  Actions Described in 28 U.S.C. Sec. 1581(c).   
                  (b)  Alternative Procedure in an Action Described in
                        28 U.S.C. Sec. 1581(c).                       
                  (c)  Confidential or Privileged Information in an
                        Action Described in 28 U.S.C. Sec. 1581(c).   
                  (d)  Documents in an Action Described in 28 U.S.C.
                        Sec. 1581(f).                                 
                  (e)  Documents Filed-Copies.                        
                  (f)  Filing of the Record With the Clerk of the
                        Court-What Constitutes.                       
    73.3.       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.                        

                            TITLE X - ATTORNEYS                        
    74.         Admission to Practice.                                
                  (a)  Qualifications.                                
                  (b)  Procedure.                                     
                  (c)  Admission of Foreign Attorneys.                
                  (d)  Pro Hac Vice Applications.                     
                  (e)  Attorney Discipline.                           
    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.                                        

                      TITLE XI - THE COURT AND CLERK                  
    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.                            
    82.1.       [Reserved].                                           

                        TITLE XII - COURT CALENDARS                    
    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.]                                           
    86.1.       Judge's Directive.                                    
    86.2.       Contempt.                                             
    87.         Forms.                                                
    88.         Title.                                                
    89.         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.                  
                  (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.                  
                  (m)  Effective Date of Amendments.                  
                  (n)  Effective Date of Amendment.                   
                  (o)  Effective Date of Amendments.                  
                  (p)  Effective Date of Amendments.                  
                  (q)  Effective Date of Amendments.                  
                  (r)  Effective Date of Amendments.                  
                  (s)  Effective Date of Amendments.                  
                  (t)  Effective Date of Amendments.                  
                  (u)  Effective Date of Amendments.                  
                  (v)  Effective Date of Amendments.                  
                  (w)  Effective Date of Amendments.                  

                             APPENDIX OF FORMS                         

-End-


-CITE-
    28 USC APPENDIX TITLE I - SCOPE OF RULES - ONE
           FORM OF ACTION                                  01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
               TITLE I - SCOPE OF RULES - ONE FORM OF ACTION           

-End-



-CITE-
    28 USC APPENDIX Rule 1                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
    Rule 1. Scope of Rules

-STATUTE-
      These rules govern the procedure in the United States Court of
    International Trade. They shall be construed and administered 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Oct. 5, 1994, eff.
    Jan. 1, 1995.)

-End-



-CITE-
    28 USC APPENDIX Rule 2                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE I - SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-
    Rule 2. One Form of Action

-STATUTE-
      There shall be one form of action to be known as a "civil
    action." (!1)


           -FOOTNOTE-
               

    (!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.


-End-


-CITE-
    28 USC APPENDIX TITLE II - COMMENCEMENT OF
           ACTION; AMENDMENT OF SUMMONS;
           SERVICE OF SUMMONS, PLEADINGS,
           MOTIONS AND ORDERS                              01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                  SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-End-



-CITE-
    28 USC APPENDIX Rule 3                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    Rule 3. Commencement of Action

-STATUTE-
      (a) Commencement. A civil action is commenced by filing with the
    clerk of the court:
      (1) A summons in an action described in 28 U.S.C. Sec. 1581(a) or
    (b);
      (2) A summons, and within 30 days thereafter a complaint, in an
    action described in 28 U.S.C. Sec. 1581(c) to contest a
    determination listed in section 516A(a)(2) or (3) of the Tariff Act
    of 1930; or
      (3) A summons and complaint concurrently in all other actions.
      (b) Filing Fee. When an action is commenced, a $150 filing fee
    shall be paid to the clerk of the court, except that
        (1) a $120 filing fee shall be paid when the action is one
      described in 28 U.S.C. Sec. 1581(a), and
        (2) a $25 filing fee shall be paid when the action is one
      described in 28 U.S.C. Sec. 1581(d)(1).

      (c) Complaint Fee. When a complaint is filed in an action
    described in 28 U.S.C. Sec. 1581(a), a $30 fee shall be paid to the
    clerk of the court.
      (d) Information Statement. When an action is commenced, the party
    commencing the action shall file the original and a sufficient
    number of copies for service (when service is to be made by the
    Office of the Clerk) of a completed Information Statement on the
    form shown in Form 5 in the Appendix of Forms.
      (e) 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.
      (f) Notice to Interested Parties. In an action described in 28
    U.S.C. Sec. 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.
    Sec. 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.
      (g) 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. Sec. 1581(c) to contest a
    determination under section 516A of the Tariff Act of 1930;
      (4) An action described in 28 U.S.C. Sec. 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. Sec. 1581(b) to contest a
    decision of the Secretary of the Treasury under section 516 of the
    Tariff Act of 1930.
      (6) Any other action which the court determines, based upon
    motion and for good cause shown, warrants expedited treatment.
      (h) Special Rule for Actions Described in 28 U.S.C. Sec. 1581(c).
    When an action is commenced under 28 U.S.C. Sec. 1581(c) to contest
    a determination listed in section 516A(a)(2) or (3) of the Tariff
    Act of 1930 by the administering authority and such a determination
    by the Commission, a party shall file a separate summons and
    complaint with respect to each agency. Also, in an action described
    in 28 U.S.C. Sec. 1581(c), when the plaintiff files the summons,
    attorneys for the plaintiff are required to comply with the
    procedures set forth in Rule 71(c) by filing of a Business
    Proprietary Information Certification where appropriate.
      (i) Disclosure Statement. A disclosure statement as provided by
    Form 13 shall be filed by every party to an action, including
    parties seeking or permitted to intervene, and for each amicus
    curiae. The disclosure statement must be filed with the entry of
    appearance (or with the summons if no separate notice of appearance
    is required). If any of the information required changes after the
    disclosure statement is filed, and before a final judgment is
    issued, the party or amicus curiae must promptly file an amended
    disclosure statement.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 21, 1986, eff.
    Oct. 1, 1986; Dec. 3, 1986, eff. Mar. 1, 1987; Sept. 25, 1992, eff.
    Jan. 1, 1993; Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 1997,
    eff. Nov. 1, 1997; May 27, 1998, eff. Sept. 1, 1998; Jan. 25, 2000,
    eff. May 1, 2000; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001,
    eff. Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      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 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. Sec. 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).
      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.
      Internal inconsistencies exist within the provisions of the
    Customs Courts Act of 1980 with respect to the method of commencing
    customhouse broker license actions, the kind of action described in
    28 U.S.C. Sec. 1581(g). These actions are included among those
    actions which, pursuant to 28 U.S.C. Sec. 2632(a), are 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 customhouse broker license
    actions appears in 19 U.S.C. Sec. 1641(e), 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] or his
    designee."
      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.
    Sec. 2632(a) by filing a summons and complaint notwithstanding the
    fact that plaintiff had complied with the requirements of 19 U.S.C.
    Sec. 1641(e) by filing a petition.)
      Although this rule requires that the two agencies subject to suit
    under 28 U.S.C. Sec. 1581(c) are in the first instance the subject
    of separate summonses and complaints, it does not prohibit
    consolidation of actions against the two agencies upon an adequate
    showing of grounds for consolidation.
      A party seeking to commence judicial review of an antidumping,
    countervailing duty, or injury determination regarding a class or
    kind of merchandise from a signatory to the North American Free
    Trade Agreement should be aware of the additional notice
    requirements of 19 U.S.C. Sec. 1516a(g)(3) and (4) and the separate
    filing requirements of 19 U.S.C. Sec. 1516a(a)(5).
      Rule 3(g) lists five types of actions to which the court will
    give precedence over other actions as a matter of course, and
    allows the court to give precedence to any other action when a
    party can demonstrate, upon motion and a showing of good cause,
    that expedited treatment is warranted. In addition to Rule 3(g),
    other rules that may bear on scheduling include Rule 16 (Post
    Assignment Conferences; Scheduling; Management), Rule 40 (Request
    for Trial) and Rule 78 (Motion Part).

-REFTEXT-
                            REFERENCES IN TEXT                        
      Sections 515, 516, and 516A of the Tariff Act of 1930, referred
    to in subds. (a)(2), (f), (g)(3) to (5), and (h), are classified to
    sections 1515, 1516, 1516a, respectively, of Title 19, Customs
    Duties.

-End-



-CITE-
    28 USC APPENDIX Rule 3.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    Rule 3.1. Actions Transferred to the Court of International Trade
      from a Binational Panel or Committee Pursuant to 19 U.S.C. Sec.
      1516a(g)(12)(B) or (D)

-STATUTE-
      (a) Filing of Request for Transfer.
      (1) A copy of the request for transfer to the court under 19
    U.S.C. Sec. 1516a(g)(12)(B) or (D) shall be filed with the clerk of
    the court simultaneously with the filing of the request for
    transfer with the United States Secretary (as defined in 19 U.S.C.
    Sec. 1516a(f)(6)).
      (2) When the filing of the request for transfer is made by mail,
    the mailing shall be by certified or registered mail, return
    receipt requested, properly addressed to the clerk of the court,
    with the proper postage affixed.
      (b) Notice to Interested Parties. On the same day as the filing
    of a request for transfer, the party requesting transfer shall
    serve a copy of the request, by certified or registered mail,
    return receipt requested, upon every interested party who was a
    party to the panel or committee review, except if the time period
    for filing the Notice of Appearance under NAFTA Article 1904 Panel
    Rule 40 or NAFTA Extraordinary Challenge Committee Rule 40 has not
    expired, then service shall be upon every interested party who was
    a party to the administrative proceeding.
      (c) Intervention of Right.
      (1) In an action transferred to the court under 19 U.S.C. Sec.
    1516a(g)(12), any person who filed a Notice of Appearance under
    NAFTA Article 1904 Panel Rule 40 or NAFTA Extraordinary Challenge
    Committee Rule 40 shall be deemed an intervenor in the action if
    otherwise entitled to intervene as of right under Rule 24 of these
    rules.
      (2) In an action transferred to the court under 19 U.S.C. Sec.
    1516a(g)(12) in which a complaint or a Request for an Extraordinary
    Challenge Committee was filed under NAFTA Article 1904 Panel Rule
    39 or NAFTA Extraordinary Challenge Committee Rule 5 and in which
    the time for filing a Notice of Appearance under NAFTA Article 1904
    Panel Rule 40 or NAFTA Extraordinary Challenge Committee Rule 40
    has not expired, anyone otherwise entitled to intervene under Rule
    24 of these rules shall be permitted to intervene. A motion to
    intervene shall be filed within the amount of unexpired time that
    remained for filing a Notice of Appearance in the panel or
    committee proceedings, or 10 days after the date of filing of the
    request for transfer, whichever is later. Any time periods in which
    the panel or committee proceedings were stayed shall not be counted
    in computing the time for filing a motion to intervene.
      (d) Documents in an Action Transferred Under 19 U.S.C. Sec.
    1516a(g)(12).
      (1) Within 30 days after the date of filing of the request for
    transfer, the United States Secretary shall transfer to the clerk
    of the court copies of all documents filed in the binational panel
    review or extraordinary challenge committee review and of all
    orders and decisions issued by the panel or committee.
      (2) If the request for transfer is filed before the Record for
    Review under NAFTA Article 1904 Panel Rule 41 is filed, the
    administering authority or the International Trade Commission
    shall, within 40 days after the date of filing of the request for
    transfer, file with the clerk of the court the items described in
    either subdivision (a) or (b) of Rule 73.2 of these rules.
      (3) The transfer and filing of documents under paragraphs (1) and
    (2) of this subdivision (d) shall be in accordance with subdivision
    (c) of Rule 73.2 of these rules. Any documents that were filed
    under seal pursuant to NAFTA Article 1904 Panel Rule 56 or NAFTA
    Extraordinary Challenge Committee Rule 30 shall be treated in the
    same manner as a document, comment, or information that is accorded
    confidential or privileged status by the agency whose action is
    being contested.
      (e) Pleadings. Notwithstanding Rule 7(a) of these rules, in an
    action transferred to the court under 19 U.S.C. Sec. 1516a(g)(12)
    in which the plaintiff has filed a complaint under NAFTA Article
    1904 Panel Rule 39, the plaintiff shall not file a new complaint in
    the action before the court, except that
      (1) if the time for amending a complaint in the panel proceedings
    had not expired or was stayed prior to the filing of the request
    for transfer, the plaintiff may file an amended complaint within
    the additional time that remained for filing an amended complaint
    in the panel proceedings, and
      (2) in all actions, the plaintiff may amend the complaint within
    10 days of the date of filing of the request for transfer to allege
    counts or requests for relief that could not have been alleged
    before the panel.
      (f) Additional Provisions Governing Judgment Upon an Agency
    Record.
      (1) Except as otherwise provided in this subdivision, the
    provisions of Rule 56.2 of these rules shall govern actions
    transferred under 19 U.S.C. Sec. 1516a(g)(12).
      (2) In an action transferred to the court under 19 U.S.C. Sec.
    1516a(g)(12) in which a complaint was filed under NAFTA Article
    1904 Panel Rule 39, any proposed judicial protective order shall be
    filed within 21 days after the date of filing of the request for
    transfer. The procedure for filing the proposed judicial protective
    order shall be in accordance with Rule 56.2(a) of these rules.
      (3) In an action transferred to the court under 19 U.S.C. Sec.
    1516a(g)(12), the proposed briefing schedule filed under Rule
    56.2(a) of these rules shall indicate whether briefs were filed in
    the panel or extraordinary challenge committee proceedings.
        (A) If briefs were filed in the panel or extraordinary
      challenge committee proceedings, the proposed briefing schedule
      shall indicate whether the parties (i) agree that those briefs
      should be deemed the equivalent of the motion and briefs provided
      for in Rule 56.2(d) of these rules, (ii) see any reason for the
      filing of additional briefs, and (iii) agree to time periods for
      filing any additional briefs.
        (B) If briefs were not filed in the panel or extraordinary
      challenge proceedings, or if the briefs were filed but the
      parties agree that new briefs should be filed in the court, the
      proposed briefing schedule shall indicate whether the parties (i)
      agree to the time periods set forth in Rule 56.2(d) of these
      rules, (ii) agree to time periods other than the periods set
      forth in Rule 56.2(d) of these rules, or (iii) cannot agree upon
      a time period. If the parties agree that new briefs should be
      filed, the proposed briefing schedule shall indicate the parties'
      views as to whether any briefs originally submitted to the panel
      or extraordinary challenge committee should be stricken from the
      record.

    In the event the parties cannot agree upon any of the matters
    covered by subparagraphs (A) and (B), the parties shall indicate
    the areas of disagreement and shall set forth the reasons for their
    respective positions.
      (g) Applicability of Other Court Rules. Unless a provision of
    this rule or an order of the court otherwise provides, the rules of
    this court shall govern actions transferred under 19 U.S.C. Sec.
    1516a(g)(12).

-SOURCE-
    (Added Nov. 29, 1995, eff. Mar. 31, 1996; amended Sept. 30, 2003,
    eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Rule 3.1(d) makes reference to former Rule 71(c). Pursuant to the
    renumbering of the Rules, the former Rule 71 now will be identified
    as Rule 73.2.

-End-



-CITE-
    28 USC APPENDIX Rule 4                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    Rule 4. Service of Summons and Complaint

-STATUTE-
      (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. Sec. 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 director for
    the customs port 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. Sec. 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. Sec. 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) Service of a summons and complaint may be effected by any
    person who is not a party and who is at least 18 years of age. At
    the request of the plaintiff, however, the court may direct that
    service be effected by a United States marshal, deputy United
    States marshal, or other person or officer specially appointed by
    the court for that purpose. Such an appointment must be made when
    the plaintiff is authorized to proceed in forma pauperis pursuant
    to 28 U.S.C. Sec. 1915.
      (2) In an action commenced under 28 U.S.C. Sec. 1581(d), the
    court is authorized to serve the summons and complaint where the
    action was commenced pro se and the plaintiff has failed to make
    service.
      (d) Waiver of Service; Duty to Save Costs of Service; Request to
    Waive.
      (1) A defendant who waives service of a summons does not thereby
    waive any objection to the jurisdiction of the court over the
    person of the defendant.
      (2) An individual, corporation, or association that is subject to
    service under subdivision (e), (f), or (h) and that receives notice
    of an action in the manner provided in this paragraph has a duty to
    avoid unnecessary costs of serving the summons. To avoid costs, the
    plaintiff may notify such a defendant of the commencement of the
    action and request that the defendant waive service of a summons.
    The notice and request
        (A) shall be in writing and shall be addressed directly to the
      defendant, if an individual, or else to an officer or managing or
      general agent (or other agent authorized by appointment or law to
      receive service of process) of a defendant subject to service
      under subdivision (h);
        (B) shall be dispatched through first-class mail or other
      reliable means;
        (C) shall be accompanied by a copy of the complaint;
        (D) shall inform the defendant, by means of a text
      substantially in the form as set forth in Forms 1A and 1B of the
      Appendix of Forms, of the consequences of compliance and of a
      failure to comply with the request;
        (E) shall set forth the date on which the request is sent;
        (F) shall allow the defendant a reasonable time to return the
      waiver, which shall be at least 30 days from the date on which
      the request is sent, or 60 days from that date if the defendant
      is addressed outside any judicial district of the United States;
      and
        (G) shall provide the defendant with an extra copy of the
      notice and request, as well as a prepaid means of compliance in
      writing. If a defendant located within the United States fails to
      comply with a request for waiver made by a plaintiff located
      within the United States, the court shall impose the costs
      subsequently incurred in effecting service on the defendant
      unless good cause for the failure be shown.

      (3) A defendant that, before being served with process, timely
    returns a waiver so requested is not required to serve an answer to
    the complaint until 60 days after the date on which the request for
    waiver of service was sent, or 90 days after that date if the
    defendant was addressed outside any judicial district of the United
    States.
      (4) When the plaintiff files a waiver of service with the court,
    the action shall proceed, except as provided in paragraph (3), as
    if a summons and complaint had been served at the time of filing
    the waiver, and no proof of service shall be required.
      (5) The costs to be imposed on a defendant under paragraph (2)
    for failure to comply with a request to waive service of a summons
    shall include the costs subsequently incurred in effecting service
    under subdivision (e), (f), or (h), together with the costs,
    including a reasonable attorney's fee, of any motion required to
    collect the costs of service.
      (e) Service Upon Individuals Within a Judicial District of the
    United States. Unless otherwise provided by federal law, service
    upon an individual from whom a waiver has not been obtained and
    filed, other than an infant or an incompetent person, may be
    effected in any judicial district of the United States:
        (1) pursuant to the law of the state in which service is
      effected, for the service of a summons upon the defendant in an
      action brought in the courts of general jurisdiction of the
      state; or
        (2) by delivering a copy of the summons and complaint to the
      individual personally or by leaving copies thereof at the
      individual's dwelling house or usual place of abode with some
      person of suitable age and discretion then residing therein or by
      delivering a copy of the summons and of the complaint to an agent
      authorized by appointment or by law to receive service of
      process.

      (f) Service Upon Individuals in a Foreign Country. Unless
    otherwise provided by federal law, service upon an individual from
    whom a waiver has not been obtained and filed, other than an infant
    or an incompetent person, may be effected in a place not within any
    judicial district of the United States:
        (1) by any internationally agreed means reasonably calculated
      to give notice, such as those means authorized by the Hague
      Convention on the Service Abroad of Judicial and Extrajudicial
      Documents; or
        (2) if there is no internationally agreed means of service or
      the applicable international agreement allows other means of
      service, provided that service is reasonably calculated to give
      notice;
          (A) in the manner prescribed by the law of the foreign
        country for service in that country in an action in any of its
        courts of general jurisdiction; or
          (B) as directed by the foreign authority in response to a
        letter rogatory or letter of request; or
          (C) unless prohibited by the law of the foreign country, by
            (i) delivery to the individual personally of a copy of the
          summons and the complaint; or
            (ii) any form of mail requiring a signed receipt, to be
          addressed and dispatched by the clerk of the court to the
          party to be served; or

        (3) by other means not prohibited by international agreement as
      may be directed by the court.

      (g) Service Upon Infants and Incompetent Persons. Service upon an
    infant or an incompetent person in a judicial district of the
    United States shall be effected in the manner prescribed by the law
    of the state in which the service is made for the service of
    summons or other like process upon any such defendant in an action
    brought in the courts of general jurisdiction of that state.
    Service upon an infant or an incompetent person in a place not
    within any judicial district of the United States shall be effected
    in the manner prescribed by paragraph (2)(A) or (2)(B) of
    subdivision (f) or by such means as the court may direct.
      (h) Service Upon Corporations and Associations. Unless otherwise
    provided by federal law, service upon a domestic or foreign
    corporation or upon a partnership or other unincorporated
    association that is subject to suit under a common name, and from
    which a waiver of service has not been obtained and filed, shall be
    effected:
        (1) in a judicial district of the United States in the manner
      prescribed for individuals by subdivision (e)(1), or by
      delivering a copy of the summons and the complaint to an officer,
      a managing or general agent, or to any other agent authorized by
      appointment or by law to receive service of process and, if the
      agent is one authorized by statute to receive service and the
      statute so requires, by also mailing a copy to the defendant or
        (2) in a place not within any judicial district of the United
      States in any manner prescribed for individuals by subdivision
      (f) except personal delivery as provided in paragraph (2)(C)(i)
      thereof.

      (i) Service Upon the United States, and Its Agencies,
    Corporations, or Officers.
      (1) Service upon the United States shall be effected 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.
      (2) Service upon an officer or agency of the United States shall
    be effected 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 subdivision (h).
      (j) Service Upon Foreign, State, or Local Governments.
      (1) Service upon a foreign state or a political subdivision,
    agency, or instrumentality thereof shall be effected pursuant to 28
    U.S.C. Sec. 1608.
      (2) Service upon a state, municipal corporation, or other
    governmental organization subject to suit shall be effected by
    delivering a copy of the summons and of the complaint to its chief
    executive officer or by serving the summons and complaint in the
    manner prescribed by the law of that state for the service of
    summons or other like process upon any such defendant.
      (k) Territorial Limits of Effective Service.
      (1) Service of a summons or filing a waiver of service is
    effective to establish jurisdiction over the person of a defendant
        (A) who could be subjected to the jurisdiction of a court of
      general jurisdiction in the state in which service is made, or
        (B) who is a party joined under Rule 14 or 19 and is served at
      a place within a judicial district of the United States, or
        (C) who is subject to the federal interpleader jurisdiction
      under 28 U.S.C. Sec. 1335, or
        (D) when authorized by a statute of the United States.

      (2) If the exercise of jurisdiction is consistent with the
    Constitution and laws of the United States, serving a summons or
    filing a waiver of service is also effective, with respect to
    claims arising under federal law, to establish personal
    jurisdiction over the person of any defendant who is not subject to
    the jurisdiction of the courts of general jurisdiction of any
    state.
      (l) Proof of Service. If service is not waived, the person
    effecting service shall make proof thereof to the court. If service
    is made by a person other than a United States marshal or deputy
    United States marshal, the person shall make affidavit thereof.
    Proof of service in a place not within any judicial district of the
    United States shall, if effected under paragraph (1) of subdivision
    (f), be made pursuant to the applicable treaty or convention, and
    shall, if effected under paragraph (2) or (3) thereof, include a
    receipt signed by the addressee or other evidence of delivery to
    the addressee satisfactory to the court. Failure to make proof of
    service does not affect the validity of the service. The court may
    allow proof of service to be amended.
      (m) Time Limit For Service. If service of the summons and
    complaint is not made upon a defendant within 120 days after the
    filing of the complaint, the court, upon motion or its own
    initiative after notice to the plaintiff, shall dismiss the action
    without prejudice as to that defendant or direct that service be
    effected within a specified time; provided that if the plaintiff
    shows good cause for the failure, the court shall extend the time
    for service for an appropriate period. This subdivision does not
    apply to service in a foreign country pursuant to subdivision (f)
    or (j)(1).

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; July 21, 1986, eff. Oct. 1, 1986; July 28, 1988, eff.
    Nov. 1, 1988; Oct. 5, 1994, eff. Jan. 1, 1995; Dec. 18, 2001, eff.
    Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      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. Sec. 1581(a) or (b), and only those actions
    described in 28 U.S.C. Sec. 1581 (c) which contest a determination
    listed in section 516A(a)(2) or (3) of the Tariff Act of 1930. In
    all other actions, including those actions described in 28 U.S.C.
    Sec. 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.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 516A of the Tariff Act of 1930, referred to in subd.
    (a)(4), is classified to section 1516a of Title 19, Customs Duties.


-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of functions, personnel, assets, and liabilities of
    the United States Customs Service of the Department of the
    Treasury, including functions of the Secretary of the Treasury
    relating thereto, to the Secretary of Homeland Security, and for
    treatment of related references, see sections 203(1), 551(d),
    552(d), and 557 of Title 6, Domestic Security, and the Department
    of Homeland Security Reorganization Plan of November 25, 2002, as
    modified, set out as a note under section 542 of Title 6.

-End-



-CITE-
    28 USC APPENDIX Rule 4.1                                    01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    Rule 4.1. Service Of Other Process.

-STATUTE-
      Process other than a summons as provided in Rule 4 or subpoena as
    provided in Rule 45 shall be served by a United States marshal, a
    deputy United States marshal, or a person specially appointed for
    that purpose, who shall make proof of service as provided in Rule
    4(l).

-SOURCE-
    (Added Oct. 5, 1994, eff. Jan. 1, 1995; amended Sept. 30, 2003,
    eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 5                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    Rule 5. Service and Filing of Pleadings and Other Papers

-STATUTE-
      (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) 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 a 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 of a
    copy within this rule means: handing it to the attorney or to the
    party; or leaving it at the attorney's or party's office with a
    clerk or other person in charge thereof; or, if there is no one in
    charge, leaving it in a conspicuous place therein; or, if the
    office is closed or the person to be served has no office, leaving
    it at the person's dwelling house or usual place of abode with some
    person of suitable age and discretion then residing therein.
    Service by mail is complete upon mailing.
      (c) Same: Numerous Defendants. In any action in which there are
    unusually large numbers of defendants, the court, upon motion or
    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 pleading 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 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, but disclosures under Rule 26(a)(1) or (2) and the following
    discovery requests and responses must not be filed until they are
    used in the proceeding or the court orders filing: (i) depositions,
    (ii) interrogatories, (iii) requests for documents or to permit
    entry upon land, and (iv) requests for admission.
      (e) Filing with the Court Defined. The filing of papers with the
    court 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 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 10278-0001; 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; or by
    electronic filing as provided by Rule 5(i). As may be provided for
    in these rules or by order of the court, papers may be filed,
    signed or verified by electronic means that are consistent with
    technical standards, if any, that the Judicial Conference of the
    United States establishes.
      Filing is completed when received, except that a paper mailed by
    certified or registered 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. A paper
    filed by electronic means in compliance with this provision
    constitutes a written paper for purposes of applying these rules.
      Upon receipt, the clerk shall, as appropriate, date-stamp or
    otherwise record the date that any paper is submitted for filing,
    whether or not that paper is accepted for filing. In unassigned
    actions, the clerk shall not accept for filing any paper which does
    not comply with the rules of the court unless such noncompliance is
    purely a matter of form. If the rejection of the paper may have
    jurisdictional consequences, that rejection shall be at the
    direction of the chief judge. In assigned actions, rejection by the
    clerk shall be at the direction of the judge to whom the action is
    assigned.
      A party aggrieved by the clerk's refusal to accept a paper for
    filing may move to compel acceptance. If a paper initially rejected
    by the clerk later is accepted for filing, the date on which the
    paper initially was stamped shall be considered the date of filing,
    although the date may be subject to amendment pursuant to this
    rule.
      (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 certified or
    registered 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.
      (h) Filings Containing Business Proprietary Information in an
    Action Described in 28 U.S.C. Sec. 1581(c). In an action described
    in 28 U.S.C. Sec. 1581(c), a paper containing business proprietary
    information shall identify that information by enclosing it in
    brackets. A party shall file and serve a paper in accordance with
    any deadline established by these rules or by order of the court. A
    non-confidential version in which the business proprietary
    information is deleted shall accompany a confidential version of a
    paper. However, when the original paper includes the statement
    "Bracketing of Business Proprietary Information not Final for One
    Business Day after Date of Filing" on the cover of every document
    containing business proprietary information and on each page
    containing business proprietary information, then a party may file
    and serve the non-confidential version within one day of the filing
    of that paper, together with a complete revision of the original
    filing, if necessary, that is identical to the original in all
    respects except for any bracketing corrections. When the original
    states that the bracketing is not final for one business day after
    the date of filing, recipients of the paper may not, until the
    bracketing is finalized, disclose the contents of the paper to
    anyone not authorized to receive business proprietary information
    in the action.
      (i) Electronic Filing. Papers include both tangible documents as
    well as any electronically generated medium according to technical
    specifications that may be adopted by the court. Papers that
    contain confidential or business proprietary information may not be
    electronically filed unless the specifications adopted by the court
    specifically authorize and provide for filing such information
    electronically.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988; Oct. 3, 1990, eff.
    Jan. 1, 1991; Nov. 29, 1995, eff. Mar. 31, 1996; Nov. 14, 1997,
    eff. Jan. 1, 1998; May 27, 1998, eff. Sept. 1, 1998; Dec. 18, 2001,
    eff. Apr. 1, 2002.)


-MISC1-
                             PRACTICE COMMENT                         
      When the clerk concludes that exigencies so require, the clerk
    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. Certified or
    registered 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(g), and the person served is an attorney, the
    statement shall identify the name of the party represented by the
    attorney served.
      Rule 5(e) of the Federal Rules of Civil Procedure provides that
    "the clerk shall not refuse to accept for filing any paper
    presented for that purpose solely because it is not presented in
    proper form as required by these rules or any local rules or
    practices." By contrast, Rule 5 contains no such limitation.
    Instead, the responsibilities and limitations of the Clerk of the
    United States Court of International Trade with respect to the
    acceptance or rejection of a paper submitted for filing are
    contained in Rule 5(e), which has no counterpart within the Federal
    Rules of Civil Procedure.
      Rule 5(h) applies a "one day lag rule" to a submission containing
    business proprietary information. Practitioners should note that
    this rule does not act to extend any deadline set forth in these
    rules or by order of the court. Its only effect on the timing of a
    submission is to provide one day for a party to prepare a
    non-confidential version of its submission and to prepare any
    correction in the bracketing of business proprietary information.
    In making special provision for filings in an action brought under
    28 U.S.C. Sec. 1581(c), this rule likewise does not excuse those
    filings from other requirements, such as those in Rule 81(h),
    applicable to a submission containing confidential information.
      Included among, but not limited to, the kinds of papers the clerk
    may refuse to accept for filing are a reply to a response to a
    non-dispositive motion without leave of court; a pleading that is
    not accompanied by the appropriate filing fee; discovery documents
    presented contrary to Rule 5(d); papers that are not signed as
    required by Rule 11; papers presented by an attorney who is not the
    attorney of record; and papers presented after the running of
    periods prescribed by the rules or orders of the court.

-End-



-CITE-
    28 USC APPENDIX Rule 6                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE II - COMMENCEMENT OF ACTION; AMENDMENT OF SUMMONS; SERVICE OF
                SUMMONS, PLEADINGS, MOTIONS AND ORDERS

-HEAD-
    Rule 6. Time

-STATUTE-
      (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.

-SOURCE-
    (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.)

-FOOTNOTE-
    (!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.


-End-


-CITE-
    28 USC APPENDIX TITLE III - PLEADINGS AND
           MOTIONS                                         01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
                     TITLE III - PLEADINGS AND MOTIONS                 

-End-



-CITE-
    28 USC APPENDIX Rule 7                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 7. Pleadings Allowed; Consultation; Oral Argument; Response
      Time; Show Cause Order; Form of Motions

-STATUTE-
      (a) Pleadings. There shall be a complaint and, except for an
    action described in 28 U.S.C. Sec. 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, 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 disclosure or 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.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; Oct. 3, 1990, eff. Jan. 1, 1991; Sept. 25, 1992, eff.
    Jan. 1, 1993; Dec. 18, 2001, eff. Apr. 1, 2002; Sept. 30, 2003,
    eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 8                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 8. General Rules of Pleading

-STATUTE-
      (a) Claims for Relief. A pleading which sets forth a claim for
    relief, whether an original claim, counterclaim, cross-claim, or
    third-party claim, shall contain (1) a short and plain statement of
    the grounds upon which the court's jurisdiction depends, unless the
    court already has jurisdiction and the claim needs no new grounds
    of jurisdiction to support it, (2) a short and plain statement of
    the claim showing that the pleader is entitled to relief, and (3) a
    demand for judgment for the relief the pleader seeks. Relief in the
    alternative or of several different types may be demanded.
      (b) 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. Sec.
    1581(a) shall aver the new ground in accordance with this rule and,
    as provided in 28 U.S.C. Sec. 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 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.
      (g) Construction of Pleadings. All pleadings shall be so
    construed as to do substantial justice.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
    Jan. 1, 1993; Dec. 18, 2001, eff. Apr. 1, 2002.)


-MISC1-
                             PRACTICE COMMENT                         
      For an action described in 28 U.S.C. Sec. 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.

-End-



-CITE-
    28 USC APPENDIX Rule 9                                      01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 9. Pleading Special Matters

-STATUTE-
      (a) Capacity. It is not necessary to aver the capacity of a party
    to sue or be sued or the authority of a party to sue or be sued in
    a representative capacity or the legal existence of an organized
    association of persons that is made a party, except to the extent
    required to show the jurisdiction of the court. When a party
    desires to raise an issue as to the legal existence of any party or
    the capacity of any party to sue or be sued or the authority of a
    party to sue or be sued in a representative capacity, the party
    desiring to raise the issue shall do so by specific negative
    averment, which shall include such supporting particulars as are
    peculiarly within the pleader's knowledge.
      (b) Fraud, Mistake, Condition of the Mind. In all averments of
    fraud or mistake, the circumstances constituting fraud or mistake
    shall be stated with particularity. Malice, intent, knowledge, and
    other condition of mind of a person may be averred generally.
      (c) Conditions Precedent. In pleading the performance or
    occurrence of conditions precedent, it is sufficient to aver
    generally that all conditions precedent have been performed or have
    occurred. A denial of performance or occurrence shall be made
    specifically and with particularity.
      (d) Official Document or Act. In pleading an official document or
    official act, it is sufficient to aver that the document was issued
    or the act done in compliance with law.
      (e) Judgment. In pleading a judgment or decision of a domestic or
    foreign court, judicial or quasi-judicial tribunal, or of a board
    or officer, it is sufficient to aver the judgment or decision
    without setting forth matter showing jurisdiction to render it.
      (f) Time and Place. For the purpose of testing the sufficiency of
    a pleading, averments of time and place are material and shall be
    considered like all other averments of material matter.
      (g) Special Damage. When items of special damage are claimed,
    they shall be specifically stated.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 10                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 10. Form of Pleadings

-STATUTE-
      (a) Caption; Names of Parties. Every pleading shall contain a
    caption setting forth the name of 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.

-SOURCE-
    (As amended Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 11                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 11. Signing of Pleadings, Motions and Other Papers; Sanctions

-STATUTE-
      (a) Signature. Every pleading, written motion, and other paper
    shall be signed by at least one attorney of record in the
    attorney's individual name, or, if the party is not represented by
    an attorney, shall be signed by the party. Every pleading, motion,
    or 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. Each paper
    shall state the signer's address and telephone number, if any.
    Except when otherwise specifically provided by rule or statute,
    pleadings or other papers need not be verified or accompanied by
    affidavit. An unsigned paper shall be stricken unless omission of
    the signature is corrected promptly after being called to the
    attention of the pleader or movant attorney or party.
      (b) Representation To Court. By presenting to the court (whether
    by signing, filing, submitting, or later advocating) a pleading,
    written motion, or other paper, an attorney or unrepresented party
    is certifying that to the best of the person's knowledge,
    information, and belief, formed after any inquiry reasonable under
    the circumstances. - 
        (1) it is not being presented for any improper purpose, such as
      to harass or to cause unnecessary delay or needless increase in
      the cost of litigation;
        (2) the claims, defenses, and other legal contentions therein
      are warranted by existing law or by a non-frivolous argument for
      the extension, modification, or reversal of existing law or the
      establishment of new law;
        (3) the allegations and other factual contentions have
      evidentiary support or, if specifically so identified, are likely
      to have evidentiary support after a reasonable opportunity for
      further investigation or discovery; and
        (4) the denials of factual contentions are warranted on the
      evidence or, if specifically so identified, are reasonably based
      on a lack of information or belief.

      (c) Sanctions. If, after notice and a reasonable opportunity to
    respond, the court determines that subdivision (b) has been
    violated, the court may, subject to the conditions stated below,
    impose an appropriate sanction upon the attorneys, law firms, or
    parties that have violated subdivision (b) or are responsible for
    the violation.
        (1) How Initiated.
        (A) By Motion. A motion for sanctions under this rule shall be
      made separately from other motions or requests and shall describe
      the specific conduct alleged to violate subdivision (b). It shall
      be served as provided in Rule 5, but shall not be filed with or
      presented to the court unless, within 21 days after service of
      the motion (or such other period as the court may prescribe), the
      challenged paper, claim, defense, contention, allegation, or
      denial is not withdrawn or appropriately corrected. If warranted,
      the court may award to the party prevailing on the motion the
      reasonable expenses and attorney's fees incurred in presenting or
      opposing the motion. Absent exceptional circumstances, a law firm
      shall be held jointly responsible for violations committed by its
      partners, associates, and employees.
        (B) On Court's Initiative. On its own initiative, the court may
      enter an order describing the specific conduct that appears to
      violate subdivision (b) and directing an attorney, law firm, or
      party to show cause why it has not violated subdivision (b) with
      respect thereto.
        (2) Nature of Sanction; Limitations. A sanction imposed for
      violation of this rule shall be limited to what is sufficient to
      deter repetition of such conduct or comparable conduct by others
      similarly situated. Subject to the limitations in subparagraphs
      (A) and (B), the sanction may consist of, or include, directives
      of a nonmonetary nature, an order to pay a penalty into court,
      or, if imposed on motion and warranted for effective deterrence,
      an order directing payment to the movant of some or all of the
      reasonable attorney's fees and other expenses incurred as a
      direct result of the violation.
          (A) Monetary sanctions may not be awarded against a
        represented party for a violation of subdivision (b)(2).
          (B) Monetary sanctions may not be awarded on the court's
        initiative unless the court issues its order to show cause
        before a voluntary dismissal or settlement of the claims made
        by or against the party which is, or whose attorneys are, to be
        sanctioned.

        (3) Order. When imposing sanctions, the court shall describe
      the conduct determined to constitute a violation of this rule and
      explain the basis for the sanction imposed.

      (d) Inapplicability to Discovery. Subdivisions (a) through (c) of
    this rule do not apply to disclosures and discovery requests,
    responses, objections, and motions that are subject to the
    provisions of Rules 26 through 37.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Oct. 5, 1994, eff. Jan. 1, 1995; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 12                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 12. Defenses and Objections; When and How Presented; By
      Pleading or Motion; Motion for Judgment on the Pleadings

-STATUTE-
      (a) When Presented.
      (1) Unless a different time is prescribed in a statute of the
    United States,
        (A) 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,
          (i) in an action described in 28 U.S.C. Sec. 1581(c), no
        answer shall be served or filed, and
          (ii) in an action described in 28 U.S.C. Sec. 1581(f),
        involving 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 being served with the
        summons and complaint. For good cause shown, the court in any
        action may order a different period of time.

        (B) Any other defendant shall serve an answer within 20 days
      after being served with the summons and complaint, or
        (C) If service of the summons has been timely waived on request
      under Rule 4(d), within 60 days after the date when the request
      for waiver was sent, or within 90 days after that date if the
      defendant was addressed outside any judicial district of the
      United States.

      (2) A party other than the United States or an officer or agency
    thereof served with a pleading stating a cross-claim against the
    party shall serve an answer thereto within 20 days after being
    served. The plaintiff shall serve a reply to a counterclaim in the
    answer within 20 days after service of the answer, or, if a reply
    is ordered by the court, within 20 days after service of the order,
    unless the order otherwise directs.
      (3) Unless a different time is fixed by court order, the service
    of a motion permitted under this rule alters these periods of time
    as follows:
        (A) if the court denies the motion or postpones its disposition
      until the trial on the merits, the responsive pleading shall be
      served within 10 days after notice of the court's action; or
        (B) if the court grants a motion for a more definite statement,
      the responsive pleading shall be served within 10 days after
      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.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992,
    eff. Jan. 1, 1993; Oct. 5, 1994, eff. Jan. 1, 1995; Dec. 18, 2001,
    eff. Apr. 1, 2002.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 777(c)(2) of the Tariff Act of 1930, referred to in subd.
    (a)(1)(A)(ii), is classified to section 1677f(c)(2) of Title 19,
    Customs Duties.

-End-



-CITE-
    28 USC APPENDIX Rule 13                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 13. Counterclaim and Cross-Claim

-STATUTE-
      (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.
      (i) Demand for a Complaint.
      (1) Notwithstanding the pendency of the civil action on a Reserve
    or Suspension Calendar, in a civil action described in 28 U.S.C.
    Sec. 1581(a) or (b), for good cause shown, a defendant who wishes
    to proceed expeditiously in the action may file a motion demanding
    that the plaintiff file a complaint.
      (2) The motion shall include, among other information, (A) a
    statement of the reasons for wanting to proceed at this time, (B) a
    proposed timetable for requiring the plaintiff to file a complaint
    if different from the time provided for in this rule and the
    reasons for a different time, and, in a suspended action, other
    scheduling information that the defendant believes necessary to
    enable the court to formulate an order removing a suspended action
    from a Suspension Calendar, and (C) a description of any
    counterclaim known to the defendant at the time the motion is filed
    that the defendant intends to assert in its answer.
      (3) If an order granting a motion for a demand for a complaint is
    entered, plaintiff shall file its complaint within 30 days after
    the date of service of the order if plaintiff wishes to continue
    the action.
      (4) If an order granting a motion for a demand for a complaint is
    entered and plaintiff does not voluntarily dismiss the action or
    fails to file a complaint, the clerk shall enter an order of
    dismissal without further direction from the court.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Oct. 5, 1994, eff.
    Jan. 1, 1995.)

-End-



-CITE-
    28 USC APPENDIX Rule 14                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 14. Third-Party Practice

-STATUTE-
      (a) When Defendant May Bring in Third Party. At any time after
    commencement of the action a defending party, as a third-party
    plaintiff, may cause a summons and complaint to be served upon a
    person not a party to the action who is or may be liable to the
    third-party plaintiff for all or part of the plaintiff's claim
    against the third-party plaintiff. The third-party plaintiff need
    not obtain leave to make the service if the third-party plaintiff
    files the third-party complaint not later than 10 days after
    serving the original answer. Otherwise the third-party plaintiff
    must obtain leave on motion upon notice to all parties to the
    action. The person served with the summons and third-party
    complaint, hereinafter called the third-party defendant, shall make
    any defenses to the third-party plaintiff's claim as provided in
    Rule 12, and any counterclaims against the third-party plaintiff
    and cross-claims against other third-party defendants as provided
    in Rule 13. The third-party defendant may assert against the
    plaintiff any defenses which the third-party plaintiff has to the
    plaintiff's claim. The third-party defendant may also assert any
    claim against the plaintiff, 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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 15                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 15. Amended and Supplemental Pleadings

-STATUTE-
      (a) Amendments. A party may amend the party's pleading once as a
    matter of course at any time before a responsive pleading is served
    or, if the pleading is one to which no responsive pleading is
    permitted and the action has not been 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.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 16                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 16. Postassignment Conferences; Scheduling; Management

-STATUTE-
      (a) Postassignment Conferences; Objectives. In any action, the
    court may, in its discretion 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 as provided in Rule 56.2 or
    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) modifications of the times for disclosures under Rule 26(a)
      and 26(c)(1) and of the extent of discovery to be permitted;
        (5) 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
        (6) 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, and limitations or restrictions on the use of testimony
      under Rule 702 of the Federal Rules of Evidence;
        (5) the appropriateness and timing of summary adjudication
      under Rule 56;
        (6) the control and scheduling of discovery, including orders
      affecting disclosure and discovery pursuant to Rule 26 and Rules
      29 through 37;
        (7) the identification of witnesses and documents, the need and
      schedule for filing and exchanging briefs, and the date or dates
      for further conferences and for submission of the action for
      final disposition;
        (8) the advisability of referring matters to a master;
        (9) the possibility of settlement or the use of extrajudicial
      procedures to resolve the dispute;
        (10) the form and substance of the scheduling or postassignment
      conference order;
        (11) the disposition of pending motions;
        (12) the need for adopting special procedures for managing
      potentially difficult or protracted actions that may involve
      complex issues, multiple parties, difficult legal questions, or
      unusual proof problems;
        (13) an order for a separate trial pursuant to Rule 42(b) with
      respect to a claim, counterclaim, cross-claim, or third-party
      claim, or with respect to any particular issue in the case;
        (14) an order directing a party or parties to present evidence
      early in the trial with respect to a manageable issue that could,
      on the evidence, be the basis for a judgment as a matter of law
      under Rule 50(a) or a judgment on partial findings under Rule
      52(c);
        (15) an order establishing a reasonable limit on the time
      allowed for presenting evidence;
        (16) access to confidential or privileged information,
      including business proprietary information, contained in an
      administrative record, which is the subject of the action; and
        (17) 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. If
    appropriate, the court may require that a party or its
    representative be present or reasonably available by telephone in
    order to consider possible settlement of the dispute.
      (d) Final 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). In lieu of or in addition to any other
    sanction, the judge shall require the party or the attorney
    representing the party or both to pay the reasonable expenses
    incurred because of any noncompliance with this rule, including
    attorney's fees, unless the judge finds that the noncompliance was
    substantially justified or that other circumstances make an award
    of expenses unjust.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 2000,
    eff. Jan. 1, 2001; Dec. 18, 2001, eff. Apr. 1, 2002; Sept. 30,
    2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      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.
      A party may seek expedited consideration under Rule 3(g). For
    possible applicability of other scheduling rules, see practice
    comment to Rule 3(g).

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (c)(4), are
    set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 16.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE III - PLEADINGS AND MOTIONS

-HEAD-
    Rule 16.1. Court-Annexed Mediation

-STATUTE-
      At any time during the pendency of an action before the United
    States Court of International Trade, any judge or three judge panel
    of the court may refer the action for mediation. The matter will be
    referred to a judge of the court who is not assigned to the action
    to be mediated, who has consented to served (!1) as a Judge
    Mediator in the action, and who is not otherwise disqualified to
    serve in accordance with Title 28 U.S.C. Sec. 455 and the Canons of
    Judicial Ethics.

      At any time, but not less than thirty (30) days prior to the
    scheduled date for the filing of: a motion for summary judgment; a
    motion pursuant to USCIT Rules 56.1 or 56.2; or trial (whichever
    first occurs), any party may move for the referral to mediation of
    an action pending before the court.
      The USCIT Guidelines for Mediation set forth in full the
    procedures to be followed in actions referred to mediation. The
    Judge Mediator and all parties and counsel participating in a
    session of mediation are bound by the confidentiality provisions
    set forth within the Guidelines. The Guidelines shall have the same
    force and effect as the provisions of this Rule.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)

-FOOTNOTE-
    (!1) So in original. Probably should be "serve".


-End-


-CITE-
    28 USC APPENDIX TITLE IV - PARTIES                          01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
                            TITLE IV - PARTIES                        

-End-



-CITE-
    28 USC APPENDIX Rule 17                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 17. Parties Plaintiff and Defendant; Capacity

-STATUTE-
      (a) Real Party in Interest. Every action shall be prosecuted in
    the name of the real party in interest. An executor, administrator,
    guardian, bailee, trustee of an express trust, a party with whom or
    in whose name a contract has been made for the benefit of another,
    or a party authorized by statute may sue in that person's own name
    without joining the party for whose benefit the action is brought;
    and when a statute of the United States so provides, an action for
    the use or benefit of another shall be brought in the name of the
    United States. No action shall be dismissed on the ground that it
    is not prosecuted in the name of the real party in interest until a
    reasonable time has been allowed after objection for ratification
    of commencement of the action by, or joinder or substitution of,
    the real party in interest; and such ratification, joinder, or
    substitution shall have the same effect as if the action had been
    commenced in the name of the real party in interest.
      (b) Capacity To Sue or Be Sued. The capacity of an individual,
    other than one acting in a representative capacity, to sue or be
    sued shall be determined by the law of the individual's domicile.
    The capacity of a corporation to sue or be sued shall be determined
    by the law under which it was organized. In all other cases,
    capacity to sue or be sued shall be determined by the law of the
    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. Secs. 754 and 959(a).
      (c) Infants or Incompetent Persons. Whenever an infant or
    incompetent person has a representative, such as a general
    guardian, committee, conservator, or other like fiduciary, the
    representative may sue or defend on behalf of the infant or
    incompetent person. An infant or incompetent person who does not
    have a duly appointed representative may sue by a next friend or by
    a guardian ad litem. The court shall appoint a guardian ad litem
    for an infant or incompetent person not otherwise represented in an
    action or shall make such other order as it deems proper for the
    protection of the infant or incompetent person.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 18                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 18. Joinder of Claims and Remedies

-STATUTE-
      (a) Joinder of Claims. A party asserting a claim to relief as an
    original claim, counterclaim, cross-claim, or third-party claim,
    may join, either as independent or as alternate claims, as many
    claims, legal or equitable, as the party has against an opposing
    party, except that in an action described in 28 U.S.C. Sec.
    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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 19                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 19. Joinder of Persons Needed for Just Adjudication

-STATUTE-
      (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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 20                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 20. Permissive Joinder of Parties

-STATUTE-
      (a) Permissive Joinder. All persons may join in one action as
    plaintiffs if they assert any right to relief jointly, severally,
    or in the alternative in respect of or arising out of the same
    transaction, occurrence, or series of transactions or occurrences
    and if any question of law or fact common to all these persons will
    arise in the action. All persons may be joined in one action as
    defendants if there is asserted against them jointly, severally, or
    in the alternative, any right to relief in respect of or arising
    out of the same transaction, occurrence, or series of transactions
    or occurrences, and if any question of law or fact common to all
    defendants will arise in the action. A plaintiff or defendant need
    not be interested in obtaining or defending against all the relief
    demanded. Judgment may be given for one or more of the plaintiffs
    according to their respective rights to relief, and against one or
    more defendants according to their respective liabilities.
      (b) Separate Trials. The court may make such orders as will
    prevent a party from being embarrassed, delayed, or put to expense
    by the inclusion of a party against whom the party asserts no claim
    and who asserts no claim against the party, and may order separate
    trials or make other orders to prevent delay or prejudice.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 21                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 21. Misjoinder and Non-joinder of Parties

-STATUTE-
      Misjoinder of parties is not ground for dismissal of an action.
    Parties may be dropped or added by order of the court on motion of
    any party or 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.

-SOURCE-
    (As amended Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 22                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 22. Interpleader

-STATUTE-
      (1) Persons having claims against the plaintiff may be joined as
    defendants and required to interplead when their claims are such
    that the plaintiff is or may be exposed to double or multiple
    liability. It is not ground for objection to the joinder that the
    claims of the several claimants or the titles on which their claims
    depend do not have a common origin or are not identical but are
    adverse to and independent of one another, or that the plaintiff
    avers that the plaintiff is not liable in whole or in part to any
    or all of the claimants. A defendant exposed to similar liability
    may obtain such interpleader by way of a cross-claim or
    counterclaim. The provisions of this rule supplement and do not in
    any way limit the joinder of parties permitted in Rule 20.
      (2) The remedy herein provided is in addition to and in no way
    supersedes or limits the remedy provided by Title 28 U.S.C. Secs.
    1335, 1397, and 2361. Actions under those provisions shall be
    conducted in accordance with these rules.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 23                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 23. Class Actions

-STATUTE-
      (a) Prerequisites to a Class Action. One or more members of a
    class may sue or be sued as representative parties on behalf of all
    only if (1) the class is so numerous that joinder of all members is
    impracticable, (2) there are questions of law or fact common to the
    class, (3) the claims or defenses of the representative parties are
    typical of the claims or defenses of the class, and (4) the
    representative parties will fairly and adequately protect the
    interests of the class.
      (b) Class Actions Maintainable. An action may be maintained as a
    class action if the prerequisites of subdivision (a) are satisfied,
    and in addition:
      (1) the prosecution of separate actions by or against individual
    members of the class would create a risk of (A) inconsistent or
    varying adjudications with respect to individual members of the
    class which would establish incompatible standards of conduct for
    the party opposing the class, or (B) adjudications with respect to
    individual members of the class which would as a practical matter
    be dispositive of the interests of the other members not parties to
    the adjudications or substantially impair or impede their ability
    to protect their interests; or
      (2) the party opposing the class has acted or refused to act on
    grounds generally applicable to the class, thereby making
    appropriate final injunctive relief or corresponding declaratory
    relief with respect to the class as a whole; or
      (3) the court finds that the questions of law or fact common to
    the members of the class predominate over any questions affecting
    only individual members, and that a class action is superior to
    other available methods for the fair and efficient adjudication of
    the controversy. The matters pertinent to the findings include: (A)
    the interest of members of the class in individually controlling
    the prosecution or defense of separate actions; (B) the extent and
    nature of any litigation concerning the controversy already
    commenced by or against members of the class; (C) the desirability
    or undesirability of concentrating the litigation of the claims in
    the particular forum; (D) the difficulties likely to be encountered
    in the management of a class action.
      (c) Determination by Order Whether Class Action To Be Maintained
    - Notice - Judgment - Actions Conducted Partially as Class Actions.
      (1) As soon as practicable after the commencement of an action
    brought as a class action, the court shall determine by order
    whether it is to be so maintained. An order under this subdivision
    may be conditional, and may be altered or amended before the
    decision on the merits.
      (2) In any class action maintained under subdivision (b)(3) 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 23.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 23.1. Actions Relating to Unincorporated Associations

-STATUTE-
      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).

-End-



-CITE-
    28 USC APPENDIX Rule 24                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 24. Intervention

-STATUTE-
      (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. Sec. 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(f), 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.
    Also, in an action described in 28 U.S.C. Sec. 1581(c), at the time
    a party's application for intervention is made, attorneys for that
    party are required to comply with the procedures set forth in Rule
    73.2(c) by filing of a Business Proprietary Information
    Certification where appropriate.
      (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. Sec.
    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. Sec. 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. Sec. 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.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993; Jan. 25, 2000,
    eff. May 1, 2000; Aug. 29, 2000, eff. Jan. 1, 2001; Sept. 30, 2003,
    eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      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. Sec. 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. Sec. 2631(j).
      Pursuant to the renumbering of the Rules, the former Rule 71 now
    will be identified as Rule 73.2.

-End-



-CITE-
    28 USC APPENDIX Rule 25                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IV - PARTIES

-HEAD-
    Rule 25. Substitution of Parties

-STATUTE-
      (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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-


-CITE-
    28 USC APPENDIX TITLE V - DEPOSITIONS AND
           DISCOVERY                                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
                    TITLE V - DEPOSITIONS AND DISCOVERY                

-End-



-CITE-
    28 USC APPENDIX Rule 26                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 26. General Provisions Governing Discovery; Duty of Disclosure

-STATUTE-
      (a) Required Disclosures; Methods to Discover Additional Matter.
        (1) Initial Disclosures. Except in categories of proceedings
      specified in Rule 26(a)(1)(E), or to the extent otherwise
      stipulated or directed by order, a party must, without awaiting a
      discovery request, provide to other parties:
          (A) the name and, if known, the address and telephone number
        of each individual likely to have discoverable information that
        the disclosing party may use to support its claims or defenses,
        unless solely for impeachment, identifying the subjects of the
        information;
          (B) a copy of, or a description by category and location of,
        all documents, data compilations, and tangible things that are
        in the possession, custody, or control of the party and that
        the disclosing party may use to support its claims or defenses,
        unless solely for impeachment;
          (C) a computation of any category of damages claimed by the
        disclosing party, making available for inspection and copying
        as under Rule 34 the documents or other evidentiary material,
        not privileged or protected from disclosure, on which such
        computation is based, including materials bearing on the nature
        and extent of injuries suffered; and
          (D) for inspection and copying as under Rule 34 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.
          (E) The following categories of proceedings are exempt from
        initial disclosure under Rule 26(a)(1):
            (i) an action for review on an administrative record;
            (ii) an action brought without counsel by a person in
          custody of the United States, a state, or a state
          subdivision;
            (iii) an action to enforce or quash an administrative
          summons or subpoena;
            (iv) an action by the United States to recover benefit
          payments;
            (v) a proceeding ancillary to proceedings in other courts;
          and
            (vi) an action to enforce an arbitration award.

      These disclosures must be made at or within 14 days after the
      Rule 26(f) conference unless a different time is set by
      stipulation or court order, or unless a party objects during the
      conference that initial disclosures are not appropriate in the
      circumstances of the action and states the objection in the Rule
      26(f) discovery plan. In ruling on the objection, the court must
      determine what disclosures-if any-are to be made, and set the
      time for disclosure. Any party first served or otherwise joined
      after the Rule 26(f) conference must make these disclosures
      within 30 days after being served or joined unless a different
      time is set by stipulation or court order. A party must make its
      initial disclosures based on the information then reasonably
      available to it and is not excused from making its disclosures
      because it has not fully completed its investigation of the case
      or because it challenges the sufficiency of another party's
      disclosures or because another party has not made its
      disclosures.
        (2) Disclosure of Expert Testimony.
          (A) In addition to the disclosures required by paragraph (1),
        a party shall disclose to other parties the identity of any
        person who may be used at trial to present evidence under Rules
        702, 703, or 705 of the Federal Rules of Evidence.
          (B) Except as otherwise stipulated or directed by the court,
        this disclosure shall be accompanied by a written report
        prepared and signed by the witness. The report shall contain a
        complete statement of all opinions to be expressed and the
        basis and reasons therefor; the data or other information
        considered by the witness in forming the opinions; any exhibits
        to be used as a summary of or support for the opinions; the
        qualifications of the witness, including a list of all
        publications authored by the witness within the preceding ten
        years; the compensation to be paid for the study and testimony;
        and a listing of any other cases in which the witness has
        testified as an expert at trial or by deposition within the
        preceding four years.
          (C) These disclosures shall be made at the times and in the
        sequence directed by the court. In the absence of other
        directions from the court or stipulation by the parties, the
        disclosures shall be made at least 90 days before the trial
        date or the date the case is to be ready for trial or, if the
        evidence is intended solely to contradict or rebut evidence on
        the same subject matter identified by another party under
        paragraph (2)(B), within 30 days after the disclosure made by
        the other party. The parties shall supplement these disclosures
        when required under subdivision (e)(1).

        (3) Pretrial Disclosures. In addition to the disclosures
      required by Rule 26(a)(1) and (2), a party must provide to other
      parties and promptly file with the court the following
      information regarding the evidence that it may present at trial
      other than solely for impeachment:
          (A) the name and, if not previously provided, the address and
        telephone number of each witness, separately identifying those
        whom the party expects to present and those whom the party may
        call if the need arises;
          (B) the designation of those witnesses whose testimony is
        expected to be presented by means of a deposition and, if not
        taken stenographically, a transcript of the pertinent portions
        of the deposition testimony; and
          (C) an appropriate identification of each document or other
        exhibit, including summaries of other evidence, separately
        identifying those which the party expects to offer and those
        which the party may offer if the need arises.

    Unless otherwise directed by the court, these disclosures shall be
    made at least 30 days before trial. Within 14 days thereafter,
    unless a different time is specified by the court, a party may
    serve and promptly file a list disclosing (i) any objections to the
    use under Rule 32(a) of a deposition designated by another party
    under Rule 26(a)(3)(B), and (ii) any objection, together with the
    grounds therefor, that may be made to the admissibility of
    materials identified under Rule 26(a)(3)(C). Objections not so
    disclosed, other than objections under Rules 402 and 403 of the
    Federal Rules of Evidence, shall be deemed waived unless excused by
    the court for good cause shown.
        (4) Form of Disclosures. Unless the court orders otherwise, all
      disclosures under Rule 26(a)(1) through (3) must be made in
      writing, signed and served.
        (5) Methods to Discover Additional Matter. 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 under Rule 34 or
      45(a)(1)(C), 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 in accordance with these rules, the scope of discovery
    is as follows:
        (1) In General. Parties may obtain discovery regarding any
      matter not privileged, that is relevant to the claim or defense
      of any 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. For good cause, the
      court may order the discovery of any matter relevant to the
      subject matter involved in the action. Relevant information need
      not be admissible at the trial if the discovery appears
      reasonably calculated to lead to the discovery of admissible
      evidence. All discovery is subject to the limitations imposed by
      Rule 26(b)(2)(i), (ii) and (iii).
        (2) Limitations. By order, the court may alter the limits in
      these rules on the number of depositions and may also limit the
      length of depositions under Rule 30 and the number of requests
      under Rule 36. The frequency or extent of use of the discovery
      methods otherwise permitted under these rules 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 burden or expense of the proposed discovery
      outweighs its likely benefit, taking into account the needs of
      the case, the amount in controversy, the parties' resources, the
      importance of the issues at stake in the litigation, and the
      importance of the proposed discovery in resolving the issues. The
      court may act upon its own initiative after reasonable notice or
      pursuant to a motion under Rule 26(c).
        (3) Trial Preparation: Materials. Subject to the provisions of
      subdivision (b)(4) 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 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)(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.
        (4) Trial Preparation: Experts.
          (A) A party may depose any person who has been identified as
        an expert whose opinions may be presented at trial. If a report
        from the expert is required under subdivision (a)(2)(B), the
        deposition shall not be conducted until after the report is
        provided.
          (B) A party may, through interrogatories or by deposition,
        discover facts known or opinions held by an expert of a party
        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
        this subdivision; and (ii) with respect to discovery obtained
        under subdivision (b)(4)(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.

        (5) Claims of Privilege or Protection of Trial Preparation
      Materials. When a party withholds information otherwise
      discoverable under these rules by claiming that it is privileged
      or subject to protection as trial preparation material, the party
      shall make the claim expressly and shall describe the nature of
      the documents, communications, or things not produced or
      disclosed in a manner that, without revealing information itself
      privileged or protected, will enable other parties to assess the
      applicability of the privilege or protection.

      (c) Protective Orders. Upon motion by a party or by the person
    from whom discovery is sought, accompanied by a certification that
    the movant has in good faith conferred or attempted to confer with
    other affected parties in an effort to resolve the dispute without
    court action, 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 disclosure or discovery not be had;
        (2) that the disclosure or 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 disclosure or 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 revealed or be
      revealed only in a designated way; and
        (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 other 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) Timing and Sequence of Discovery. Except in categories of
    proceedings exempted from initial disclosure under Rule
    26(a)(1)(E), or when authorized under these rules or by order or
    agreement of the parties, a party may not seek discovery from any
    source before the parties have conferred as required by Rule 26(f).
    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, does not operate to delay any other party's discovery.
      (e) Supplementation of Disclosures and Responses. A party who has
    made a disclosure under subdivision (a) or responded to a request
    for discovery with a disclosure or response is under a duty to
    supplement or correct the disclosure or response to include
    information thereafter acquired if ordered by the court or in the
    following circumstances:
        (1) A party is under a duty to supplement at appropriate
      intervals its disclosures under subdivision (a) if the party
      learns that in some material respect the information disclosed is
      incomplete or incorrect and if the additional or corrective
      information has not otherwise been made known to the other
      parties during the discovery process or in writing. With respect
      to testimony of an expert from whom a report is required under
      subdivision (a)(2)(B) the duty extends both to information
      contained in the report and to information provided through a
      deposition of the expert, and any additions or other changes to
      this information shall be disclosed by the time the party's
      disclosures under Rule 26(a)(3) are due.
        (2) A party is under a duty seasonably to amend a prior
      response to an interrogatory, request for production, or request
      for admission if the party learns that the response is in some
      material respect incomplete or incorrect and if the additional or
      corrective information has not otherwise been made known to the
      other parties during the discovery process or in writing.

      (f) Conference of Parties; Planning for Discovery. Except in
    categories of proceedings exempted from initial disclosure under
    Rule 26(a)(1)(E), or when otherwise ordered, the parties must, as
    soon as practicable after the filing of a complaint, and in any
    event at least 21 days before a scheduling conference is held or a
    scheduling order is due under Rule 16(b), confer to consider the
    nature and basis of their claims and defenses and the possibilities
    for a prompt settlement or resolution of the case, to make or
    arrange for disclosures required by Rule 26(a)(1), and to develop a
    proposed discovery plan that indicates the parties' views and
    proposals concerning:
        (1) what changes should be made in the timing, form, or
      requirement for disclosures under Rule 26(a), including a
      statement as to when disclosures under Rule 26(a)(1) were made or
      will be made;
        (2) the subjects on which discovery may be needed, when
      discovery should be completed, and whether discovery should be
      conducted in phases or be limited to or focused upon particular
      issues;
        (3) what changes should be made in the limitations on discovery
      imposed under these rules, and what other limitations should be
      imposed; and
        (4) any other orders that should be entered by the court under
      Rule 26(c) or under Rule 16(b) and (c).

    The attorneys of record and all unrepresented parties that have
    appeared in the case are jointly responsible for arranging and
    being present or represented at the conference, for attempting in
    good faith to agree on the proposed discovery plan, and for
    submitting to the court within 14 days after the conference a
    written report outlining the plan. The court may order that the
    parties or attorneys attend the conference in person. If necessary
    to comply with its expedited schedule for Rule 16(b) conferences,
    the court may (i) require that the conference between the parties
    occur fewer than 21 days before the scheduling conference is held
    or a scheduling order is due under Rule 16(b), and (ii) require
    that the written report outlining the discovery plan be filed fewer
    than 14 days after the conference between the parties, or excuse
    the parties from submitting a written report and permit them to
    report orally on their discovery plan at the Rule 16(b) conference.
      (g) Signing of Disclosures, Discovery Requests, Responses, and
    Objections.
      (1) Every disclosure made pursuant to subdivision (a)(1) or
    subdivision (a)(3) shall be signed by at least one attorney of
    record in the attorney's individual name, whose address shall be
    stated. An unrepresented party shall sign the disclosure and state
    the party's address. The signature of the attorney or party
    constitutes a certification that to the best of the signer's
    knowledge, information, and belief, formed after a reasonable
    inquiry, the disclosure is complete and correct as of the time it
    is made.
      (2) Every discovery request, response, or objection 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
    shall be stated. An unrepresented party shall sign the request,
    response, or objection and state the party's address. The signature
    of the attorney or party constitutes a certification that to the
    best of the signer's knowledge, information, and belief, formed
    after a reasonable inquiry, the request, response, or objection is:
        (A) consistent with these rules and warranted by existing law
      or a good faith argument for the extension, modification, or
      reversal of existing law:
        (B) not interposed for any improper purpose, such as to harass
      or to cause unnecessary delay or needless increase in the cost of
      litigation; and
        (C) 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.
      (3) If without substantial justification 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 disclosure, 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001, eff.
    Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Rule 26(a)(2) requires disclosure of certain information
    concerning expert witnesses. Practitioners who are familiar with
    Fed. R. Civ. P. 26(a)(2) should note that Rule 26(a)(2) is more
    expansive. The Federal Rule only applies to a witness who is
    retained or specially employed to testify as an expert, including
    any employee of a party whose duties "regularly involve giving
    expert testimony." The CIT rule makes no distinction among experts,
    whether they are outside experts specially retained by a party,
    in-house employees whose duties regularly involve giving expert
    testimony, or employees who do not routinely testify as experts,
    but do so in a specific case.
      Rule 26(f) requires the parties to confer "as soon as practicable
    after the filing of a complaint, and in any event at least 21 days
    before a scheduling conference is held or a scheduling order is due
    under Rule 16(b) . . . ." However, time permitting, parties may
    frequently find it more practical to confer after the answer has
    been filed.
      Pursuant to the renumbering of the Rules, the former Rule 26(h)
    now will be identified as Rule 26.1.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a)(2)(A),
    (3), are set out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 26.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 26.1. Costs

-STATUTE-
      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.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 26(h)
    now will be identified as Rule 26.1.

-End-



-CITE-
    28 USC APPENDIX Rule 27                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 27. Depositions Before Action or Pending Appeal

-STATUTE-
      (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: (1) 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, (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 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 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 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, 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 court.
      (c) Perpetuation by Action. This rule does not limit the power of
    this court to entertain an action to perpetuate testimony.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Aug. 29, 2000, eff.
    Jan. 1, 2001; Sept. 30, 2003, eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 28                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 28. Persons Before Whom Depositions May Be Taken

-STATUTE-
      (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. Depositions may be taken in a foreign
    country (1) pursuant to any applicable treaty or convention, or (2)
    pursuant to a letter of request (whether or not captioned a letter
    rogatory), or (3) on notice before a person authorized to
    administer oaths in the place where the examination is held, either
    by the law thereof or by the law of the United States, or (4)
    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. A commission or a
    letter of request shall be issued on application and notice and on
    terms that are just and appropriate. It is not a requisite to the
    issuance of a commission or a letter of request that the taking of
    the deposition in any other manner is impracticable or
    inconvenient; and both a commission and a letter of request 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 of request may be addressed "To the
    Appropriate Authority in [here name the country]." When a letter of
    request or any other device is used pursuant to any applicable
    treaty or convention, it shall be captioned in the form prescribed
    by that treaty or convention. Evidence obtained in response to a
    letter of request need not be excluded merely because it is not a
    verbatim transcript, because the testimony was not taken under
    oath, or because of any similar departure from the requirements for
    depositions taken within the United States 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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Nov. 29, 1995, eff.
    Mar. 31, 1996; Nov. 14, 1997, eff. Jan. 1, 1998; Aug. 29, 2000,
    eff. Jan. 1, 2001.)

-End-



-CITE-
    28 USC APPENDIX Rule 29                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 29. Stipulations Regarding Discovery Procedure

-STATUTE-
      Unless otherwise directed by the court, 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 governing or limitations placed upon
    discovery, except that stipulations extending the time provided in
    Rules 33, 34, and 36 for responses to discovery may, if they would
    interfere with any time set for completion of discovery, for
    hearing of a motion, or for trial, be made only with the approval
    of the court.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Aug. 29, 2000, eff.
    Jan. 1, 2001.)

-End-



-CITE-
    28 USC APPENDIX Rule 30                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 30. Depositions Upon Oral Examination

-STATUTE-
      (a) When Depositions May Be Taken; When Leave Required.
      (1) A Party may take the testimony of any person, including a
    party, by deposition upon oral examination without leave of court
    except as provided in paragraph (2). The attendance of witnesses
    may be compelled by subpoena as provided in Rule 45.
      (2) A party must obtain leave of court, which shall be granted to
    the extent consistent with the principles stated in Rule 26(b)(2),
    if the person to be examined is confined in prison or if, without
    the written stipulation of the parties,
        (A) a proposed deposition would result in more than ten
      depositions being taken under this rule or Rule 31 by the
      plaintiffs, or by the defendants, or by third-party defendants;
        (B) the person to be examined already has been deposed in the
      case; or
        (C) a party seeks to take a deposition before the time
      specified in Rule 26(d) unless the notice contains a
      certification, with supporting facts, that the person to be
      examined is expected to leave the United States and be
      unavailable for examination in this country unless deposed before
      that time.

      (b) Notice of Examination: General Requirements; Method of
    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 party taking the deposition shall state in the notice the
    method by which the testimony shall be recorded. Unless the court
    orders otherwise, it may be recorded by sound, sound-and-visual, or
    stenographic means, and the party taking the deposition shall bear
    the cost of the recording. Any party may arrange for a
    transcription to be made from the recording of a deposition taken
    by non-stenographic means.
      (3) With prior notice to the deponent and other parties, any
    party may designate another method to record the deponent's
    testimony in addition to the method specified by the person taking
    the deposition. The additional record or transcript shall be made
    at that party's expense unless the court otherwise orders.
      (4) Unless otherwise agreed by the parties, a deposition shall be
    conducted before an officer appointed or designated under Rule 28
    and shall begin with a statement on the record by the officer that
    includes (A) the officer's name and business address; (B) the date,
    time, and place of the deposition; (C) the name of the deponent;
    (D) the administration of the oath or affirmation to the deponent;
    and (E) an identification of all persons present. If the deposition
    is recorded other than stenographically, the officer shall repeat
    items (A) through (C) at the beginning of each unit of recorded
    tape or other recording medium. The appearance or demeanor of
    deponents or attorneys shall not be distorted through camera or
    sound-recording techniques. At the end of the deposition, the
    officer shall state on the record that the deposition is complete
    and shall set forth any stipulations made by counsel concerning the
    custody of the transcript or recording and the exhibits, or
    concerning other pertinent matters.
      (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 or other
    remote electronic means.
      (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 except Rules 103 and 615. The officer
    before whom the deposition is to be taken shall put the witness on
    oath or affirmation 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 method authorized by
    subdivision (b)(2) of this rule. All objections made at the time of
    the examination to the qualifications of the officer taking the
    deposition, to the manner of taking it, to the evidence presented,
    to the conduct of any party, or to any other aspect of the
    proceedings shall be noted by the officer upon the record of the
    deposition; but the examination shall proceed, with the testimony
    being 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) Schedule and Duration; Motion to Terminate or Limit
    Examination.
      (1) Any objection during a deposition must be stated concisely
    and in a non-argumentative and non-suggestive manner. A person may
    instruct a deponent not to answer only when necessary to preserve a
    privilege, to enforce a limitation on evidence directed by the
    court, or to present a motion under Rule 30(d)(4).
      (2) Unless otherwise authorized by the court or stipulated by the
    parties, a deposition is limited to one day of seven hours. The
    court must allow additional time consistent with Rule 26(b)(2) if
    needed for a fair examination of the deponent or if the deponent or
    another person or other circumstance, impedes or delays the
    examination.
      (3) If the court finds that any impediment, delay, or other
    conduct has frustrated the fair examination of the deponent, it may
    impose upon the persons responsible an appropriate sanction,
    including the reasonable costs and attorney's fees incurred by any
    parties as a result thereof.
      (4) At any time during a 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 the order
    made terminates the examination, it may be resumed thereafter only
    upon the order of the court. Upon demand of the objecting party or
    deponent, the taking of the deposition must 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) Review by Witness; Changes; Signing. If requested by the
    deponent or a party before completion of the deposition, the
    deponent shall have 30 days after being notified by the officer
    that the transcript or recording is available in which to review
    the transcript or recording and, if there are changes in form or
    substance, to sign a statement reciting such changes and the
    reasons given by the deponent for making them. The officer shall
    indicate in the certificate prescribed by subdivision (f)(1)
    whether any review was requested and, if so, shall append any
    changes made by the deponent during the period allowed.
      (f) Certification and Delivery by Officer; Exhibits; Copies.
      (1) The officer must certify that the witness was duly sworn by
    the officer and that the deposition is a true record of the
    testimony given by the witness. This certificate must be in writing
    and accompany the record of the deposition. Unless otherwise
    ordered by the court, the officer must securely seal the deposition
    in an envelope or package indorsed with the title of the action and
    marked "Deposition of [here insert name of witness]" and must
    promptly send it to the attorney who arranged for the transcript or
    recording, who must store it under conditions that will protect it
    against loss, destruction, tampering, or deterioration. Documents
    and things produced for inspection during the examination of the
    witness, must, 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) Unless otherwise ordered by the court or agreed by the
    parties, the officer shall retain stenographic notes of any
    deposition taken stenographically or a copy of the recording of any
    deposition taken by another method. Upon payment of reasonable
    charges therefor, the officer shall furnish a copy of the
    transcript or other recording of the deposition to any party or to
    the deponent.
      (3) The party taking the deposition shall give prompt notice of
    its filing, or its receipt by such party, 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 2000,
    eff. Jan. 1, 2001; Dec. 18, 2001, eff. Apr. 1, 2002.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (c), are set
    out in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 31                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 31. Deposition Upon Written Questions

-STATUTE-
      (a) Serving Questions; Notice.
      (1) A party may take the testimony of any person, including a
    party, by deposition upon written questions without leave of court
    except as provided in paragraph (2). The attendance of witnesses
    may be compelled by the use of subpoena as provided in Rule 45.
      (2) A party must obtain leave of court, which shall be granted to
    the extent consistent with the principles stated in Rule 26(b)(2),
    if the person to be examined is confined in prison or if, without
    the written stipulation of the parties,
        (A) a proposed deposition would result in more than ten
      depositions being taken under this rule or Rule 30 by the
      plaintiffs, or by the defendants, or by third-party defendants;
        (B) the person to be examined has already been deposed in the
      case; or
        (C) a party seeks to take a deposition before the time
      specified in Rule 26(d).

      (3) 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).
      (4) Within 14 days after the notice and written questions are
    served, a party may serve cross-questions upon all other parties.
    Within 7 days after being served with cross-questions, a party may
    serve redirect questions upon all other parties. Within 7 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, or received
    by the party taking it, that party shall promptly give notice
    thereof to all other parties.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Nov. 29, 1995, eff. Mar. 31, 1996; Aug. 29, 2000,
    eff. Jan. 1, 2001.)

-End-



-CITE-
    28 USC APPENDIX Rule 32                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 32. Use of Depositions in Court Proceedings (!1)

-STATUTE-


-STATUTE-
      (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; (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.
    A deposition taken without leave of court pursuant to a notice
    under Rule 30(a)(2)(C) shall not be used against a party who
    demonstrates that, when served with the notice, it was unable
    through the exercise of diligence to obtain counsel to represent it
    at the taking of the deposition; nor shall a deposition be used
    against a party who, having received less than 11 days notice of a
    deposition, has promptly upon receiving such notice filed a motion
    for a protective order under Rule 26(c)(2) requesting that the
    deposition not be held or be held at a different time or place and
    such motion is pending at the time the deposition is held.
      (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) Form of Presentation. Except as otherwise directed by the
    court, a party offering deposition testimony pursuant to this rule
    may offer it in stenographic or non-stenographic form, but, if in
    nonstenographic form, the party shall also provide the court with a
    transcript of the portions so offered. On request of any party in a
    case tried before a jury, deposition testimony offered other than
    for impeachment purposes shall be presented in nonstenographic
    form, if available, unless the court for good cause orders
    otherwise.
      (d) 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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Aug. 29, 2000, eff.
    Jan. 1, 2001.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a), are set
    out in this Appendix.

           -FOOTNOTE-
               

    (!1) As provided in 28 U.S.C. Sec. 2641(a), the Federal Rules of
         Evidence apply to all actions in this court, except as
         provided in 28 U.S.C. Secs. 2639 and 2641(b), or the rules of
         the court.


-End-



-CITE-
    28 USC APPENDIX Rule 33                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 33. Interrogatories to Parties

-STATUTE-
      (a) Availability. 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. Without leave of court or written stipulation,
    interrogatories may not be served before the time specified in Rule
    26(d).
      (b) Answers and Objections.
      (1) Each interrogatory shall be answered separately and fully in
    writing under oath, unless it is objected to, in which event the
    objecting party shall state the reasons for objection and shall
    answer to the extent the interrogatory is not objectionable.
      (2) The answers are to be signed by the person making them, and
    the objections signed by the attorney making them.
      (3) 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. A shorter or longer
    time may be directed by the court or, in the absence of such an
    order, agreed to in writing by the parties subject to Rule 29.
      (4) All grounds for an objection to an interrogatory shall be
    stated with specificity. Any ground not stated in a timely
    objection is waived unless the party's failure to object is excused
    by the court for good cause shown.
      (5) 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.
      (c) Scope: Use at Trial. Interrogatories may relate to any
    matters which can be inquired into under Rule 26(b)(1), 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.
      (d) 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Aug. 29, 2000, eff.
    Jan. 1, 2001.)

-End-



-CITE-
    28 USC APPENDIX Rule 34                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 34. Production of Documents and Things and Entry Upon Land for
      Inspection and Other Purposes

-STATUTE-
      (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 shall set forth, either by individual
    item or by category, the items to be inspected and describe each
    with reasonable particularity. The request shall specify a
    reasonable time, place, and manner of making the inspection and
    performing the related acts. Without leave of court or written
    stipulation, a request may not be served before the time specified
    in Rule 26(d).
      The party upon whom the request is served shall serve a written
    response within 30 days after the service of the request. A shorter
    or longer time may be directed by the court or, in the absence of
    such an order, agreed to in writing by the parties, subject to Rule
    29. 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 and inspection
    permitted of the remaining parts. 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993; Aug. 29, 2000,
    eff. Jan. 1, 2001.)

-End-



-CITE-
    28 USC APPENDIX Rule 35                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 35. Physical and Mental Examinations of Persons

-STATUTE-
      (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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 36                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 36. Requests for Admission

-STATUTE-
      (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)(1) 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. Without leave of court or written stipulation, requests
    for admission may not be served before the time specified in Rule
    26(d).
      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 or as the parties may agree to in writing,
    subject to Rule 29, 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. 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Aug. 29, 2000, eff. Jan. 1, 2001; Sept. 30, 2003,
    eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 37                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE V - DEPOSITIONS AND DISCOVERY

-HEAD-
    Rule 37. Failure To Make Disclosure or Cooperate in Discovery;
      Sanctions

-STATUTE-
      (a) Motion for Order Compelling Disclosure or Discovery. A party,
    upon reasonable notice to other parties and all persons affected
    thereby, may apply for an order compelling disclosure or discovery
    as follows:
        (1) Motion.
        (A) If a party fails to make a disclosure required by Rule
      26(a), any other party may move to compel disclosure and for
      appropriate sanctions. The motion must include a certification
      that the movant has in good faith conferred or attempted to
      confer with the party not making the disclosure in an effort to
      secure the disclosure without court action.
        (B) 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. The motion must include a certification that
      the movant has in good faith conferred or attempted to confer
      with the person or party failing to make the discovery in an
      effort to secure the information or material without court
      action. When taking a deposition on oral examination, the
      proponent of the question may complete or adjourn the examination
      before applying for an order.
        (2) Evasive or Incomplete Disclosure, Answer, or Response. For
      purposes of this subdivision an evasive or incomplete disclosure,
      answer, or response is to be treated as a failure to disclose,
      answer, or respond.
        (3) Expenses and Sanctions.
        (A) If the motion is granted or if the disclosure or requested
      discovery is provided after the motion was filed, the court
      shall, after affording an opportunity to be heard, 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 making the
      motion, including attorney's fees, unless the court finds that
      the motion was filed without the movant's first making a good
      faith effort to obtain the disclosure or discovery without court
      action, or that the opposing party's nondisclosure, response, or
      objection was substantially justified or that other circumstances
      make an award of expenses unjust.
        (B) If the motion is denied, the court may enter any protective
      order authorized under Rule 26(c) and shall, after affording an
      opportunity to be heard, require the moving party or the attorney
      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.
        (C) If the motion is granted in part and denied in part, the
      court may enter any protective order authorized under Rule 26(c)
      and may, after affording an opportunity to be heard, 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: Sanctions. 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)(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:
      (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) Failure to Disclose; False or Misleading Disclosure; Refusal
    to Admit.
      (1) A party that without substantial justification fails to
    disclose information required by Rule 26(a) or 26(e)(1), or to
    amend a prior response to discovery as required by Rule 26(e)(2),
    is not, unless such failure is harmless, permitted to use as
    evidence at a trial, at a hearing, or in a motion any witness or
    information not so disclosed. In addition to or in lieu of this
    sanction, the court, on motion and after affording an opportunity
    to be heard, may impose other appropriate sanctions. In addition to
    requiring payment of reasonable expenses, including attorney's
    fees, caused by the failure, these sanctions may include any of the
    actions authorized under Rule 37(b)(1), (2) and (3) and may include
    informing the jury of the failure to make the disclosure.
      (2) 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 (A) the request was held objectionable
    pursuant to Rule 36(a), or (B) the admission sought was of no
    substantial importance, or (C) the party failing to admit had
    reasonable ground to believe that the party might prevail on the
    matter, or (D) 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 subdivisions (b)(1),
    (b)(2) and (b)(3) of this rule. Any motion specifying a failure
    under clause (2) or (3) of this subdivision shall include a
    certification that the movant has in good faith conferred or
    attempted to confer with the party failing to answer or respond in
    an effort to obtain such answer or response without court action.
    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) [Abrogated]
      (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 development and submission of a proposed discovery plan as
    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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-


-CITE-
    28 USC APPENDIX TITLE VI - TRIALS                           01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
                             TITLE VI - TRIALS                         

-End-



-CITE-
    28 USC APPENDIX Rule 38                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 38. Jury Trial of Right

-STATUTE-
      (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 (1) 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 the issue, and (2) filing the demand as
    required by Rule 5(d). 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 this rule 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 39                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 39. Trial by Jury or by the Court

-STATUTE-
      (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.

-End-



-CITE-
    28 USC APPENDIX Rule 40                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 40. Request for Trial

-STATUTE-
      (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.

-SOURCE-
    (As amended Oct. 3, 1990, eff. Jan. 1, 1991.)


-MISC1-
                             PRACTICE COMMENT                         
      To implement the authority conferred upon the chief judge by 28
    U.S.C. Secs. 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, 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.
      A party may seek expedited consideration under Rule 3(g). For
    possible applicability of other scheduling rules, see practice
    comment to Rule 3(g).

    JAMES L. WATSON UNITED STATES COURT OF INTERNATIONAL TRADE BUILDING
      Courthouse at One Federal Plaza, New York, New York, to be known
    and designated as the James L. Watson United States Court of
    International Trade Building, see Pub. L. 108-70, set out as a note
    under Rule 77 of these rules.

-End-



-CITE-
    28 USC APPENDIX Rule 41                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 41. Dismissal of Actions

-STATUTE-
      (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) Actions commenced pursuant to 28 U.S.C. Sec. 1581(c) by the
    filing of a summons only are subject to dismissal for failure to
    file a complaint at the expiration of the applicable period of time
    prescribed by 19 U.S.C. Sec. 1516a.
      (3) Whenever it appears that there is a failure of the plaintiff
    to prosecute, the court may upon its own initiative after notice,
    or upon motion of a defendant, order the action or any claim
    dismissed for lack of prosecution.
      (4) For failure of the plaintiff to comply with these rules or
    with any order of the court, a defendant may move that the action
    or any claim against the defendant be dismissed.
      (5) Unless the court in its order for dismissal otherwise
    specifies, a dismissal under this subdivision and any dismissal not
    provided for in this rule, operates as an adjudication on 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 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.
      (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.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992,
    eff. Jan. 1, 1993; Oct. 5, 1994, eff. Jan. 1, 1995; Jan. 25, 2000,
    eff. May 1, 2000; Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 42                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 42. Consolidation; Separate Trials

-STATUTE-
      (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.

-SOURCE-
    (As amended Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 43                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 43. Taking of Testimony (!1)

-STATUTE-


-STATUTE-
      (a) Form. In every trial, the testimony of witnesses shall be
    taken in open court, unless a federal law, these rules, the Federal
    Rules of Evidence, or other rules adopted by the Supreme Court
    provide otherwise. The court may, for good cause shown in
    compelling circumstances and upon appropriate safeguards, permit
    presentation of testimony in open court by contemporaneous
    transmission from a different location.
      (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. Sec.
    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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Nov. 14, 1997, eff. Jan. 1, 1998.)


-MISC1-
                             PRACTICE COMMENT                         
      The availability of contemporaneous transmission per Rule 43(a)
    is in addition to other provisions of law and rules regarding the
    receipt of testimony and evidence in the court. See, e.g., 28
    U.S.C. Secs. 256 (trials outside New York), 2639(c) (special
    evidence rules), and 2641 (confrontation of witnesses, inspection
    of evidence). These provisions may be factors in determining
    whether the court will permit the reception of testimony from a
    different location.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in subd. (a), are set
    out in this Appendix.

           -FOOTNOTE-
               

    (!1) As provided in 28 U.S.C. Sec. 2641(a), the Federal Rules of
         Evidence apply to all actions in this court, except as
         provided in 28 U.S.C. Secs. 2639 and 2641(b), or the rules of
         the court.


-End-



-CITE-
    28 USC APPENDIX Rule 44                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 44. Proof of Official Record

-STATUTE-
      (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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 44.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 44.1. Determination of Foreign Law

-STATUTE-
      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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Evidence, referred to in text, are set out
    in this Appendix.

-End-



-CITE-
    28 USC APPENDIX Rule 45                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 45. Subpoena

-STATUTE-
      (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. Sec. 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).

-SOURCE-
    (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.)

-End-



-CITE-
    28 USC APPENDIX Rule 46                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 46. Exceptions Unnecessary

-STATUTE-
      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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 47                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 47. Jurors

-STATUTE-
      (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. Sec. 1870.
      (c) Excuse. The court may for good cause excuse a juror from
    service during trial or deliberation.

-SOURCE-
    (As amended July 21, 1986, eff. Oct. 1, 1986; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 48                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 48. Number of Jurors - Participation in Verdict

-STATUTE-
      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.

-SOURCE-
    (As amended July 21, 1986, eff. Oct. 1, 1986; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 49                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 49. Special Verdicts and Interrogatories

-STATUTE-
      (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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 50                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 50. Judgment as a Matter of Law in Actions Tried by Jury;
      Alternative Motion for New Trial; Conditional Rulings

-STATUTE-
      (a) Judgment as a Matter of Law.
      (1) If during a trial by jury a party has been fully heard on an
    issue and there is no legally sufficient evidentiary basis for a
    reasonable jury to find for that party on that issue, the court may
    determine the issue against that party and may grant a motion for
    judgment as a matter of law against that party with respect to a
    claim or defense that cannot under the controlling law be
    maintained or defeated 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 30 days after the 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 30 days after the 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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 25, 1992, eff.
    Jan. 1, 1993; Oct. 5, 1994, eff. Jan. 1, 1995.)


-MISC1-
                             PRACTICE COMMENT                         
      Rule 50 has been amended to conform to the new Rule 50 under the
    Federal Rules of Civil Procedure, which went into effect on
    December 1, 1991. The time for filing a motion for a new trial in
    the court, 30 days, is governed by 28 U.S.C. Sec. 2646. To avoid
    confusion and inefficiency, Rule 50(b) provides the same 30-day
    filing period for any motion filed thereunder. In contrast, Rule
    50(b) of the Federal Rules of Civil Procedure, provides a 10-day
    period. However, motions for new trials in courts in which the
    Federal Rules of Civil Procedure apply are not subject to 28 U.S.C.
    Sec. 2646. The same comment is applicable to Rule 50(c)(2).

-End-



-CITE-
    28 USC APPENDIX Rule 51                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 51. Instructions to Jury; Objection

-STATUTE-
      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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 52                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 52. Findings by the Court; Judgment on Partial Findings

-STATUTE-
      (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 this
    court to judge 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.
      (b) Amendment. Upon motion of a party, or upon its own motion,
    made not later than 30 days after the date of entry of the
    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 an objection in this court 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 on 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 with respect to a claim or defense
    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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; June 19, 1985, eff.
    Oct. 1, 1985; Sept. 25, 1992, eff. Jan. 1, 1993; Oct. 5, 1994, eff.
    Jan. 1, 1995.)

-End-



-CITE-
    28 USC APPENDIX Rule 53                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VI - TRIALS

-HEAD-
    Rule 53. Masters

-STATUTE-
      (a) Appointment and Compensation. The court, with the concurrence
    of a majority of all the judges, may appoint one or more standing
    masters, and a judge, to whom an action is assigned, may appoint a
    special master therein. As used in these rules, the word "master"
    includes a referee, an auditor, an examiner, a commissioner, 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. 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.
      (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 subject 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 7. 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993; Aug. 29, 2000,
    eff. Jan. 1, 2001.)

-End-


-CITE-
    28 USC APPENDIX TITLE VII - JUDGMENT                        01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
                           TITLE VII - JUDGMENT                       

-End-



-CITE-
    28 USC APPENDIX Rule 54                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 54. Judgments; Costs

-STATUTE-
      (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; Attorneys' Fees.
        (1) Costs other than Attorneys' Fees. Except when express
      provision therefor is made either in a statute of the United
      States or in these rules, costs, other than attorneys' fees 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. Such 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.
        (2) Attorneys' Fees.
          (A) Claims for attorney's fees and related non-taxable
        expenses shall be made by motion unless the substantive law
        governing the action provides for the recovery of such fees as
        an element of damages to be proved at trial.
          (B) Unless otherwise provided by statute or order of the
        court, the motion must be filed no later than 14 days after
        entry of judgment; must specify the judgment and the statute,
        rule, or other grounds entitling the moving party to the award;
        and must state the amount or provide a fair estimate of the
        amount sought. If directed by the court, the motion shall also
        disclose the terms of any agreement with respect to fees to be
        paid for the services for which claim is made.
          (C) On request of a party or class member, the court shall
        afford an opportunity for adversary submissions with respect to
        the motion in accordance with Rule 43(c) or Rule 78. The court
        may determine issues of liability for fees before receiving
        submissions bearing on issues of evaluation of services for
        which liability is imposed by the court. The court shall find
        the facts and state its conclusions of law as provided in Rule
        52(a).
          (D) By court rules, the court may establish special
        procedures by which issues relating to such fees may be
        resolved without extensive evidentiary hearings.
          (E) The provisions of subparagraphs (1) through (4) do not
        apply to claims for fees and expenses as sanctions for
        violations of these rules or under 28 U.S.C. Sec. 1927.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Oct. 5, 1994, eff.
    Jan. 1, 1995; Sept. 30, 2003, eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 54.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 54.1. Attorney's Fees and Expenses

-STATUTE-
      (a) Time for Filing. The court may award attorney's fees and
    expenses where authorized by law. Applications must be filed within
    30 days after the date of entry by the court of a final judgment.
      (b) Content of Application. Each application for attorney's fees
    and expenses as provided for in subdivision (a) shall contain a
    citation to the authority which authorizes an award, and shall
    indicate the manner in which the prerequisites for an award have
    been fulfilled. In addition, each application shall contain a
    statement, under oath, which specifies:
        (1) the nature of each service rendered;
        (2) the amount of time expended in rendering each type of
      service; and
        (3) the customary charge for each type of service rendered.

      (c) Response and Reply. The responding party shall have 30 days
    from the date of service of the application to file a response. No
    other papers or briefs shall be allowed, except as the court, upon
    its own initiative, shall direct.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      An application for attorney's fees and expenses shall be
    substantially in the form set forth in Form 15 of the Appendix of
    Forms.
      Pursuant to the renumbering of the Rules, the former Rule 68 now
    will be identified as Rule 54.1. This Rule sets forth the
    procedures to be followed by a party seeking attorney's fees and
    other expenses under the Equal Access to Justice Act, 28 U.S.C.
    Sec. 2412(d).

-End-



-CITE-
    28 USC APPENDIX Rule 55                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 55. Default

-STATUTE-
      (a) Entry. When a party against whom a judgment for affirmative
    relief is sought has failed to plead or otherwise defend as
    prescribed 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:
      In all cases the party entitled to a judgment by default shall
    apply to the court therefor.
      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
    court upon request of the plaintiff and upon affidavit of the
    amount due shall enter judgment for that amount against the
    defendant, if the defendant has been defaulted for failure to
    appear and is not an infant or incompetent person.
      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
    10-days written notice of the application for judgment. 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 as prescribed by 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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988.)

-End-



-CITE-
    28 USC APPENDIX Rule 56                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 56. Summary Judgment

-STATUTE-
      (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 the initial time within
    which to file an answer 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 after the filing of a complaint, 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. A hearing upon a motion may
    be requested as prescribed by Rule 7(c). 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.
      (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, except
    that all papers and documents which are part of the official record
    of the action pursuant to Title IX of these rules may be referred
    to in an affidavit without attaching copies, and shall be
    considered by the court without additional certification. 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.
      (h) Annexation of Statement. Upon any motion for summary
    judgment, there shall be annexed to the motion a separate, short
    and concise statement of the material facts as to which the moving
    party contends there is no genuine issue to be tried. The papers
    opposing a motion for summary judgment shall include a separate,
    short and concise statement of the material facts as to which it is
    contended that there exists a genuine issue to be tried. All
    material facts set forth in the statement required to be served by
    the moving party will be deemed to be admitted unless controverted
    by the statement required to be served by the opposing party.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Jan. 25, 2000, eff. May 1, 2000.)

-End-



-CITE-
    28 USC APPENDIX Rule 56.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 56.1. Judgment Upon an Agency Record for an Action Other Than
      That Described in 28 U.S.C. Sec. 1581(c)

-STATUTE-
      (a) Motion for Judgment. After issue is joined in any action in
    which a party believes that the determination of the court is to be
    made solely upon the basis of the record made before an agency,
    that party may move for judgment in its favor upon all or any part
    of the agency determination.
      (b) Cross-Motions. When a motion for judgment upon an agency
    record is filed by a party, an opposing party shall not file a
    cross-motion for judgment upon an agency record. If the court
    determines that judgment ought to be entered in favor of an
    opposing party, it may enter judgment in favor of that party,
    notwithstanding the absence of a cross-motion.
      (c) Briefs.
      (1) In addition to the other requirements prescribed by these
    rules, the briefs submitted on the motion, either contesting or
    supporting the agency determination, shall include a statement
    setting forth in separate numbered paragraphs:
        (A) The administrative determination sought to be reviewed with
      appropriate reference to the Federal Register; and
        (B) The issues of law presented together with the reasons for
      contesting or supporting the administrative determination,
      specifying how the determination may be arbitrary, capricious, an
      abuse of discretion, not otherwise in accordance with law,
      unsupported by substantial evidence; or, how the determination
      may be unwarranted by the facts to the extent that the agency may
      or may not have considered facts which, as a matter of law,
      should or should not have been properly considered.

      (2) The brief shall include the authorities relied upon and the
    conclusions of law deemed warranted by the authorities. All
    references to the administrative record shall be made by citing the
    portions of the record to the factual or legal issues raised.
    Citations shall be by page number of the transcript, if any, and by
    specific identification of exhibits together with the relevant page
    number.
      (d) Time to Respond. A response to a motion for judgment upon an
    agency record shall be served within 30 days after service of the
    motion. The moving party shall have 10 days after service of the
    response to the motion to serve a reply. No other papers or briefs
    shall be allowed, except by leave of court.
      (e) Hearing. Upon motion of a party, or upon its own initiative,
    the court may direct oral argument on a motion for judgment upon an
    agency record at a time and place designated as prescribed in Rule
    77(c).
      (f) Partial Judgment. After considering a motion filed under this
    rule, the court may grant judgment in whole or in part in favor of
    any party.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Sept. 25, 1992, eff.
    Jan. 1, 1993.)


-MISC1-
                             PRACTICE COMMENT                         
      An action in which the determination of the court is to be made
    solely upon the basis of a record made before an agency shall be
    submitted for determination pursuant to this rule unless the court
    otherwise directs.
      As required by Rule 81(l), a reply brief in an action submitted
    for determination pursuant to this rule shall be confined to
    rebutting matters contained in the brief of the responding party.

-End-



-CITE-
    28 USC APPENDIX Rule 56.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 56.2. Judgment upon an Agency Record for an Action Described
      in 28 U.S.C. Sec. 1581(c)

-STATUTE-
      (a) Proposed Briefing Schedule and Joint Status Report. The judge
    may modify the following procedures as appropriate in the
    circumstances of the action, or the parties may suggest
    modification of these procedures.
      Retention of or access to business proprietary information in the
    administrative record is governed by Rule 71(c).
      Any motion to intervene as of right shall be filed within the
    time and in the manner prescribed by Rule 24.
      Any motion for a preliminary injunction to enjoin the liquidation
    of entries that are the subject of the action shall be filed by a
    party to the action within 30 days after the date of service of the
    complaint, or at such later time, for good cause shown.
    Notwithstanding the first sentence of this paragraph, an intervenor
    shall file a motion for a preliminary injunction no earlier than
    the date of filing of its motion to intervene and no later than 30
    days after the date of service of the order granting intervention,
    or at such later time, but only for good cause shown. Prior to the
    filing of the motion, the moving party shall consult with all other
    parties to the action in accordance with Rule 7(b).
      No later than 30 days after the filing of the record with the
    court, the parties, including proposed intervenors, shall file with
    the clerk (1) a Joint Status Report, and (2) a proposed briefing
    schedule. The Joint Status Report shall be signed by counsel for
    all parties and shall set forth answers to the following questions,
    although separate views may be set forth on any point on which the
    parties cannot agree:
        1. Does the court have jurisdiction over the action?
        2. Should the case be consolidated with any other case, or
      should any portion of the case be severed, and the reasons
      therefor?
        3. Should further proceedings in this case be deferred pending
      consideration of another case before the court or any other
      tribunal and the reasons therefor?
        4. Is there any other information of which the court should be
      aware at this time?

      The proposed briefing schedule shall indicate whether the parties
    (1) agree to the time periods set forth in Rule 56.2(d), (2) agree
    to time periods other than the periods set forth in Rule 56.2(d),
    or (3) cannot agree upon a time period. In the event the parties
    cannot agree upon a time period, the parties shall indicate the
    areas of disagreement and shall set forth the reasons for their
    respective positions.
      After the Joint Status Report and proposed briefing schedule are
    filed, the judge promptly shall enter a scheduling order.
      (b) Cross-Motions. When a motion for judgment upon an agency
    record is filed by a party, an opposing party shall not file a
    cross-motion for judgment upon an agency record. If the court
    determines that judgment should be entered in favor of an opposing
    party, it may enter judgment in favor of that party,
    notwithstanding the absence of a cross-motion.
      (c) Briefs.
      (1) In addition to the other requirements prescribed by these
    rules, the briefs submitted on the motion, either contesting or
    supporting the agency determination, shall include a statement
    setting forth in numbered paragraphs:
        (A) the administrative determination sought to be reviewed with
      appropriate reference to the Federal Register; and
        (B) the issues of law presented together with the reasons for
      contesting or supporting the administrative determination,
      specifying how the determination may be arbitrary, capricious, an
      abuse of discretion, not otherwise in accordance with law,
      unsupported by substantial evidence; or, how the determination
      may be unwarranted by the facts to the extent that the agency may
      or may not have considered facts which, as a matter of law,
      should have been properly considered.

      (2) The brief shall include the authorities relied upon and the
    conclusions of law deemed warranted by the authorities. All
    references to the administrative record shall be made by citing the
    portions of the record relevant to the factual or legal issues
    raised. Citations shall be by page number of the transcript, if
    any, and by specific identification of exhibits together with the
    relevant page number. The brief also shall include a table of
    contents and a table of authorities.
      (3) Within three days of the date of filing of a brief, the party
    submitting the brief shall file an appendix containing a copy of
    those portions of the administrative record cited in the brief.
      (d) Time to Respond. Unless the scheduling order otherwise
    provides, a motion for judgment upon an agency record shall be
    served within 60 days after the date of service of the scheduling
    order. Responsive briefs shall be served within 60 days after the
    date of service of the brief of the moving party. The moving party
    shall have 25 days after service of the response to the motion to
    serve a reply. No other papers or briefs shall be allowed, except
    by leave of court.
      (e) Hearing. Upon motion of a party, subject to the time
    limitations set forth in Rule 7(c), or upon its own initiative, the
    court may direct oral argument on a motion for judgment upon an
    agency record at a time and place designated in Rule 77(c). The
    moving party, after consultation with all other parties to the
    action, shall request a hearing date that is not more than 30 days
    after the date of service of the reply memorandum, except for good
    cause shown as to why the hearing should be scheduled on a later
    date.
      (f) Partial Judgment. After considering a motion filed under this
    rule, the court may grant judgment in whole or in part in favor of
    any party.
      (g) Voluntary Dismissal - Time Limitation. In an action described
    in 28 U.S.C. Sec. 1581(c), a plaintiff desiring to voluntarily
    dismiss its action in accordance with Rule 41(a)(1)(A), shall file
    a notice of dismissal within 30 days after the date of service of
    the complaint. In the event plaintiff desires to dismiss its action
    more than 30 days after the date of service of the complaint, a
    stipulation of dismissal shall be filed in accordance with Rule
    41(a)(1)(B), or if circumstances warrant intervention by the court,
    in accordance with Rule 41(a)(2).

-SOURCE-
    (Added Sept. 25, 1992, eff. Jan. 1, 1993; and amended Oct. 5, 1994,
    eff. Jan. 1, 1995; May 27, 1998, eff. Sept. 1, 1998; Jan. 25, 2000,
    eff. May 1, 2000.)


-MISC1-
                             PRACTICE COMMENT                         
      Provided its requirements are followed, Rule 5(h) allows for the
    filing of a non-confidential version of a brief provided for in
    this rule, and a confidential version correcting the designation of
    business proprietary information in the original submission, one
    business day after the original filings under this rule.

-End-



-CITE-
    28 USC APPENDIX Rule 57                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 57. Declaratory Judgments

-STATUTE-
      The procedure for obtaining a declaratory judgment pursuant to
    Title 28 U.S.C. Sec. 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 prescribed by 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 declaratory judgment.

-SOURCE-
    (As amended Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 58                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 58. Entry of Judgment, Decree or Final Order

-STATUTE-
      (a) Judgments. Subject to the provisions of Rule 54(b), a
    judgment, decree or final order shall be entered upon every final
    decision from which an appeal lies.
      (b) Separate Document.
        (1) Every judgment and amended judgment must be set forth on a
      separate document, but a separate document is not required for an
      order disposing of a motion:
          (A) for judgment under Rule 50(b);
          (B) to amend or make additional findings or (!1) fact under
        Rule 52(b);

          (C) for attorney fees under Rule 54;
          (D) for a new trial, or to alter or amend the judgment, under
        Rule 59; or
          (E) for relief under Rule 60.

        (2) Subject to Rule 54(b):
          (A) unless the court orders otherwise, the clerk must,
        without awaiting the court's direction, promptly prepare, sign,
        and enter the judgment when:
            (i) the jury returns a general verdict,
            (ii) the court awards only costs or a sum certain, or
            (iii) the court denies all relief;

          (B) the court must promptly approve the form of the judgment,
        which the clerk must promptly enter, when:
            (i) the jury returns a special verdict or a general verdict
          accompanied by interrogatories, or
            (ii) the court grants other relief not described in Rule
          58(a)(2).

      (c) Time of Entry. Judgment is entered for purposes of these
    rules:
        (1) if Rule 58(b)(1) does not require a separate document, when
      it is entered in the civil docket under Rule 79(a), and
        (2) if Rule 58(b)(1) requires a separate document, when it is
      entered in the civil docket under Rule 79(a) and when the earlier
      of these events occurs:
          (A) when it is set forth on a separate document, or
          (B) when 150 days have run from entry in the civil docket
        under Rule 79(a).

      (d) Cost or Fee Awards.
        (1) Entry of judgment may not be delayed, nor the time for
      appeal extended, in order to tax costs or award fees, except as
      provided in Rule 58(d)(2).
        (2) When a timely motion for attorney fees is made under Rule
      54(d)(2), the court may act before a notice of appeal has been
      filed and has become effective to order that the motion have the
      same effect under Federal Rule of Appellate Procedure 4(a)(4) as
      a timely motion under Rule 59.

      (e) Request for Entry. A party may request that judgment be set
    forth on a separate document as required by Rule 58(b)(1).

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Dec. 18, 2001, eff.
    Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in subd.
    (d)(2), are set out in this Appendix.

-FOOTNOTE-
    (!1) So in original. Probably should be "of".


-End-



-CITE-
    28 USC APPENDIX Rule 58.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 58.1. Stipulated Judgment on Agreed Statement of Facts -
      General Requirements

-STATUTE-
      An action described in 28 U.S.C. Sec. 1581(a) or (b) may be
    stipulated for judgment, at any time without brief or complaint or
    formal amendment of any pleading, by filing with the clerk of the
    court a stipulation for judgment on agreed statement of facts,
    signed by the parties or their attorneys, together with a proposed
    stipulated judgment. The proposed stipulated judgment on agreed
    statement of facts shall be substantially in the form set forth in
    USCIT Form 9 of the Appendix of Forms.

-SOURCE-
    (Added Nov. 4, 1981, eff. Jan. 1, 1982; and amended Oct. 5, 1994,
    eff. Jan. 1, 1995.)

-End-



-CITE-
    28 USC APPENDIX Rule 59                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 59. New Trials; Rehearings; Amendment of Judgments

-STATUTE-
      (a) Grounds. A new trial or rehearing 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 or in an action finally determined, 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 or rehearing shall
    be served and filed not later than 30 days after the entry of the
    judgment or order.
      (c) Time for Serving Affidavits. When a motion for a new trial or
    rehearing 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 by order of the
    court for good cause shown or by the parties by written
    stipulation. The court may permit reply affidavits.
      (d) On Court's Initiative. Not later than 30 days after the entry
    of judgment or order the court on its own initiative may order a
    new trial or rehearing for any reason that would justify granting
    one on a party's motion. 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 served, for a reason not
    stated in the motion. When granting a new trial on its own
    initiative or for a reason not stated in a motion, the court shall
    specify the grounds in its order.
      (e) Motion To Alter or Amend a Judgment. A motion to alter or
    amend a judgment shall be served not later than 30 days after the
    entry of the judgment.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Oct. 3, 1990, eff.
    Jan. 1, 1991; Dec. 18, 2001, eff. Apr. 1, 2002.)


-MISC1-
                             PRACTICE COMMENT                         
      Rule 59(b) provides for a 30-day period within which to move for
    a new trial or rehearing. In contrast, Rule 59(b) of the Federal
    Rules of Civil Procedure provides for a 10-day period. The
    lengthier period is required by 28 U.S.C. Sec. 2646, a statute not
    applicable to the district courts.

-End-



-CITE-
    28 USC APPENDIX Rule 60                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 60. Relief From Judgment or Order

-STATUTE-
      (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 on its own
    initiative or on motion of any party and after such notice, if any,
    as the court orders. After an appeal is filed, such mistakes may be
    corrected with leave of the appellate court.
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
    Evidence; Fraud, Etc. On motion of a party or upon its own
    initiative 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 or rehearing 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 the 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. Sec. 1655, 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff.
    Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 61                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 61. Harmless Error

-STATUTE-
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 62                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VII - JUDGMENT

-HEAD-
    Rule 62. Stay of Proceedings To Enforce a Judgment

-STATUTE-
      (a) Automatic Stay - Exceptions - Injunctions. Except as stated
    herein or as otherwise ordered by the court, no execution shall
    issue upon a judgment nor shall proceedings be taken for its
    enforcement until the expiration of 30 days after its entry. Unless
    otherwise ordered by the court, an interlocutory or final judgment
    in an action for an injunction 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 Rehearing, 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 a
    judgment or any proceedings to enforce a judgment pending the
    disposition of a motion for a new trial or rehearing 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 three-judge panel, no such order
    shall be made except (1) by such court sitting in open court or (2)
    by the assent of all 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
    exception 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 to such stay as would be accorded the judgment
    debtor had the action been maintained in the courts of that state.
      (g) Stay of Judgment as to Multiple Claims or Multiple Parties.
    When the 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff.
    Oct. 1, 1986; July 28, 1988, eff. Nov. 1, 1988.)


-MISC1-
                             PRACTICE COMMENT                         
      The court-ordered exception to the 30-day automatic stay under
    subdivision (a) is intended to permit timely enforcement of
    judgments in cases involving perishable merchandise, or where time
    is otherwise shown to be of the essence.

-End-


-CITE-
    28 USC APPENDIX TITLE VIII - PROVISIONAL AND
           FINAL REMEDIES AND SPECIAL
           PROCEEDINGS                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-End-



-CITE-
    28 USC APPENDIX Rule 63                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 63. Inability of a Judge to Proceed

-STATUTE-
      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 action 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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Sept. 30, 2003, eff.
    Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule
    77(e)(5) now will be identified as Rule 63, and the former Rule 63
    now will be identified as Rule 86.2. New Rule 63 conforms to Rule
    63 of the Federal Rules of Civil Procedure.

-End-



-CITE-
    28 USC APPENDIX Rule 64                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 64. Seizure of Person or Property

-STATUTE-
      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 appropriate state law 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
    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 the remedy by the appropriate state procedure
    is ancillary to an action or must be obtained by an independent
    action.

-End-



-CITE-
    28 USC APPENDIX Rule 65                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 65. Injunctions

-STATUTE-
      (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.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 65.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 65.1. Security; Proceedings Against Sureties

-STATUTE-
      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. The bond, stipulation, or other undertaking
    must be secured by a corporate surety holding a certificate of
    authority from the Secretary of the Treasury. Except as otherwise
    provided by law, where the amount has been fixed by a judge, all
    bonds, stipulations, or other undertakings, shall be approved by
    the judge.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 28, 1988, eff.
    Nov. 1, 1988; Dec. 18, 2001, eff. Apr. 1, 2002.)


-MISC1-
                             PRACTICE COMMENT                         
      Circular No. 570, "Companies Holding Certificates of Authority as
    Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring
    Companies", is published annually, as of July 1, in the Federal
    Register, under Fiscal Service, Bureau of Government Financial
    Operations. Interim changes in the circular are published in the
    Federal Register as they occur. Copies of the circular may be
    obtained from: Audit Staff, Bureau of Government Financial
    Operations, Department of the Treasury, Washington, D.C. 20226,
    Telephone: (202) 634-5010.

-End-



-CITE-
    28 USC APPENDIX Rule 66                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 66. Receivers Appointed by Federal Courts

-STATUTE-
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 67                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 67. Deposit in Court

-STATUTE-
      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. Secs. 2041, 2042 and 2043; 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.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; July 21, 1986, eff.
    Oct. 1, 1986; Dec. 18, 2001, eff. Apr. 1, 2002.)

-End-



-CITE-
    28 USC APPENDIX Rule 67.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 67.1. Deposit in Court Pursuant to Rule 67

-STATUTE-
      (a) Order for Deposit - Interest Bearing Account. Whenever a
    party seeks a court order for money to be deposited by the clerk in
    an interest-bearing account, the party shall file, by delivery or
    by mailing by certified mail, return receipt requested, the
    proposed order with the clerk or financial deputy who will inspect
    the proposed order for proper form and content and compliance with
    this rule prior to signature by the judge for whom the order is
    prepared. The proposed order shall be substantially in the form set
    forth in Form 16-1, 16-2, 16-3, 16-4 or 16-5 of the Appendix of
    Forms.
      (b) Orders Directing Investment of Funds by Clerk. Any order
    obtained by a party or parties in an action that directs the clerk
    to invest in an interest-bearing account or instrument funds
    deposited in the registry of the court pursuant to 28 U.S.C. Sec.
    2041 shall include the following:
        (1) the amount to be invested;
        (2) the name of the depository approved by the Treasurer of the
      United States as a depository in which funds may be deposited;
        (3) a designation of the type of account or instrument in which
      the funds shall be invested;
        (4) wording which directs the clerk to deduct from the income
      earned on the investment a fee, consistent with that authorized
      by the Judicial Conference of the United States and set by the
      Director of the Administrative Office, whenever such income
      becomes available for deduction from the investment so held and
      without further order of the court.

-SOURCE-
    (Added Oct. 3, 1990, eff. Jan. 1, 1991; amended Mar. 1, 1991, eff.
    Mar. 1, 1991; Sept. 30, 2003, eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 68                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 68. Offer of Judgment

-STATUTE-
      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.

-SOURCE-
    (Added Oct. 3, 1984, eff. Jan. 1, 1985; amended Sept. 30, 2003,
    eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 68 now
    will be identified as Rule 54.1. New Rule 68 conforms to Rule 68 of
    the Federal Rules of Civil Procedure.

-End-



-CITE-
    28 USC APPENDIX Rule 69                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE VIII - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS

-HEAD-
    Rule 69. Execution

-STATUTE-
      (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 execution 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 execution is sought.
      (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. Sec. 2006, and when the
    court has given the certificate of probable cause for the officer's
    act as provided in that statute, execution shall not issue against
    the officer or the officer's property but the final judgment shall
    be satisfied as provided in such statute.

-SOURCE-
    (As amended July 28, 1988, eff. Nov. 1, 1988; Dec. 18, 2001, eff.
    Apr. 1, 2002.)

-End-


-CITE-
    28 USC APPENDIX TITLE IX - FILING OF OFFICIAL
           DOCUMENTS                                       01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
                  TITLE IX - FILING OF OFFICIAL DOCUMENTS              

-End-



-CITE-
    28 USC APPENDIX Rule 70                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 70. [Reserved]

-STATUTE-

-SOURCE-
    (As amended Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 70 now
    will be identified as Rule 73.1.

-End-



-CITE-
    28 USC APPENDIX Rule 71                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 71. Process in Behalf of and Against Persons not Parties

-STATUTE-
      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.

-SOURCE-
    (As amended Oct. 3, 1990, eff. Jan. 1, 1991; Nov. 14, 1997, eff.
    Jan. 1, 1998; Jan. 25, 2000, eff. May 1, 2000; Sept. 30, 2003, eff.
    Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 71 now
    will be identified as Rule 73.2. New Rule 71 conforms to Rule 71 of
    the Federal Rules of Civil Procedure.

-End-



-CITE-
    28 USC APPENDIX Rule 72                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 72. [Reserved]

-STATUTE-

-SOURCE-
    (As amended Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 72 now
    will be identified as Rule 73.3. New Rule 72 is "Reserved."

-End-



-CITE-
    28 USC APPENDIX Rule 73                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 73. Time for Filing Documents - Notice of Filing

-STATUTE-
      (a) Time. Upon motion of a party for good cause shown, or upon
    its own initiative, the court may shorten or extend the times for
    filing prescribed in Rules 73.1, 73.2, or 73.3.
      (b) Notice. The clerk shall give notice to all parties of the
    date on which the record is filed.

-SOURCE-
    (As amended Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rules 70, 71
    and 72 now will be identified as Rules 73.1, 73.2 and 73.3,
    respectively.

-End-



-CITE-
    28 USC APPENDIX Rule 73.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 73.1. Documents in an Action Described in 28 U.S.C. Sec.
      1581(a) or (b)

-STATUTE-
      Upon service of the summons on the Secretary of Homeland
    Security, the appropriate customs officer shall forthwith transmit
    the following items, if they exist, to the clerk of the court, as
    part of the official record of the civil action:
        (1) consumption or other entry and the entry summary;
        (2) commercial invoice;
        (3) special customs invoice;
        (4) copy of protest or petition;
        (5) copy of denial, in whole or in part, of the protest or
      petition;
        (6) importer's exhibits;
        (7) official and other representative samples;
        (8) any official laboratory reports; and
        (9) copy of any bond relating to the entry.

      If any of the items do not exist in a particular action, an
    affirmative statement to that effect shall be transmitted to the
    clerk of the court as part of the official record.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 70 now
    will be identified as Rule 73.1. New Rule 70 is "Reserved."

-End-



-CITE-
    28 USC APPENDIX Rule 73.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 73.2. Documents in an Action Described in 28 U.S.C. Sec.
      1581(c) or (f)

-STATUTE-
      (a) Actions Described in 28 U.S.C. Sec. 1581(c). Unless the
    alternative procedure prescribed by subdivision (b) of this rule is
    followed, in an action described in 28 U.S.C. Sec. 1581(c), within
    40 days after the date of service of the complaint on the
    administering authority established to administer title VII of the
    Tariff Act of 1930 or the United States International Trade
    Commission, the administering authority or the Commission shall
    file with the clerk of the court the items specified in paragraphs
    (1) and (2) of this subdivision (a), if they exist, and the
    certified list specified in paragraph (3) of this subdivision (a),
    as part of the official record of the civil action.
        (1) A copy of all information presented to or obtained by the
      administering authority or the Commission during the course of
      the administrative proceedings, including all governmental
      memoranda pertaining to the case and the record of ex parte
      meetings required to be maintained by section 777(a)(3) of the
      Tariff Act of 1930.
        (2) A copy of the determination and the facts and conclusions
      of law upon which such determination was based, all transcripts
      or records of conferences or hearings, and all notices published
      in the Federal Register.
        (3) A certified list of all items specified in paragraphs (1)
      and (2) of this subdivision.

      (b) Alternative Procedure in an Action Described in 28 U.S.C.
    Sec. 1581(c). As an alternative to the procedures prescribed in
    subdivision (a) of this rule in an action described in 28 U.S.C.
    Sec. 1581(c):
        (1) Within 40 days after the date of service of the complaint
      upon the administering authority or the International Trade
      Commission, the administering authority or the Commission may
      file with the clerk of the court a certified list of all items
      described in subdivisions (a)(1) and (a)(2) of this rule, along
      with a copy of the determination and the facts and conclusions of
      law upon which such determination was based. The Commission shall
      in addition file a copy of its staff report of information
      received in the investigation. If either agency uses this
      alternative procedure, it shall serve on the parties notice of
      that fact in conjunction with service of the certified list.
        (2) The agency shall retain the remainder of the record. All
      parts of the record shall be a part of the record on review for
      all purposes.
        (3) At any time, the court may order any part of the record
      retained by the agency to be filed. A motion by a party to have
      the agency file a retained part of the record shall set forth
      reasons why the submission of appendices required by Rule 56.2(c)
      is insufficient to fairly present the relevant portions of the
      record to the court.

      (c) Confidential or Privileged Information in an Action Described
    in 28 U.S.C. Sec. 1581(c)
        (1) In an action described in 28 U.S.C. Sec. 1581(c), any
      document, comment, or information that is accorded confidential
      or privileged status by the agency whose action is being
      contested and that is required to be filed with the clerk of the
      court, shall be filed under seal. Any such document, comment, or
      information shall be accompanied by a non-confidential
      description of the nature of the material being transmitted. For
      the purposes of this rule and Rule 81(h), the term "confidential
      information" includes business proprietary information as defined
      in 19 U.S.C. Sec. 1677f(c).
        (2) An attorney or consultant may retain or otherwise have
      access to business proprietary information in the administrative
      record in an action described in 28 U.S.C. Sec. 1581(c) if: (i)
      the attorney or consultant timely files with the court a Business
      Proprietary Information Certification which shall be
      substantially in the form set forth in Form 17 of the Appendix of
      Forms making each of the certifications therein required or (ii)
      the court issues an order granting the attorney or consultant
      access to such information. Upon meeting either of these
      requirements, the attorney or consultant shall retain or have
      access to business proprietary information pursuant to the terms
      of the Appendix on Access to Business Proprietary Information.
        (3) A Business Proprietary Information Certification for an
      attorney or consultant representing or retained on behalf of a
      party or applicant for intervention is timely if it is filed: (i)
      at the time the summons or application for intervention is filed,
      as applicable or (ii) at any other time if the party or applicant
      for intervention is, at the time of filing, represented by an
      attorney who retains or has access to business proprietary
      information pursuant to this rule.
        (4) When an attorney or consultant has access to business
      proprietary information in an action pursuant to subdivision (2)
      and (i) the attorney terminates the attorney's appearance in the
      action, (ii) the consultant ceases to be retained for purposes of
      the action, (iii) the time period for appealing a final judgment
      in the action has expired without the filing of a notice of
      appeal or (iv) all appeals of the action have concluded, the
      attorney or consultant shall promptly file with the court and
      serve upon parties a Notice of Termination of Access to Business
      Proprietary Information which shall be substantially in the form
      set forth in Form 18 of the Appendix of Forms, certifying that
      the attorney or consultant meets the requirements therein. Such
      notice shall also be mailed to: Secretary, United States
      International Trade Commission, when a determination of that
      Commission is contested; and to APO Unit, United States
      Department of Commerce, when a determination of that Department
      is contested.
        (5) If filed fewer than 31 days after the date of service of
      the complaint, any Certification under subdivision (2) or other
      request for access to business proprietary information, in
      addition to being served upon all parties to the action, shall be
      served on any interested party described in Rule 3(f) that has
      not become a party to the action as of the time of service.

      (d) Documents in an Action Described in 28 U.S.C. Sec. 1581(f).
    In an action described in 28 U.S.C. Sec. 1581(f), within 15 days
    after the date of service of the summons and complaint on the
    administering authority or the International Trade Commission, the
    administering authority or the Commission shall file, with the
    clerk of the court, under seal, the confidential information
    involved, together with pertinent parts of the record, which shall
    be accompanied by a nonconfidential description of the nature of
    the information being filed, as part of the official court record
    of the action.
      (e) Documents Filed-Copies. Certified copies of the original
    papers in the agency proceeding may be filed.
      (f) Filing of the Record With the Clerk of the Court-What
    Constitutes. The filing of the record shall be as prescribed by
    subdivision (a) of this rule, unless the alternative procedure
    prescribed by subdivision (b) of this rule is followed. In the
    latter event, the filing of the certified list and the part of the
    record filed pursuant to subdivision (b) shall constitute filing of
    the record.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      The court has established Security Procedures for Safeguarding
    Confidential Information in the Custody and Control of the Clerk.
    These procedures apply to confidential information or privileged
    information received by the court and may include: trade secrets,
    commercial or financial information, and information provided to
    the United States by foreign governments or foreign businesses or
    persons. These procedures do not pertain to national security
    information.
      Section 11(a) of Security Procedures regulates the transmittal of
    confidential information to and from the clerk by governmental
    agencies and private parties. A copy of Section 11(a) is available
    upon request from, and is posted in the Office of the Clerk.
      Pursuant to the renumbering of the Rules, the former Rule 71 now
    will be identified as Rule 73.2. New Rule 71 conforms to Rule 71 of
    the Federal Rules of Civil Procedure.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Tariff Act of 1930, referred to in subd. (a), is act June 17,
    1930, ch. 497, 46 Stat. 590, as amended. Title VII of the Tariff
    Act of 1930 is classified generally to subtitle IV (Sec. 1671 et
    seq.) of chapter 4 of Title 19, Customs Duties. Section 777(a)(3)
    of the Tariff Act of 1930 is classified to section 1677f(a)(3) of
    Title 19. For complete classification of this Act to the Code, see
    section 1654 of Title 19 and Tables.

-End-



-CITE-
    28 USC APPENDIX Rule 73.3                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE IX - FILING OF OFFICIAL DOCUMENTS

-HEAD-
    Rule 73.3. Documents in All Other Actions Based Upon the Agency
      Record

-STATUTE-
      (a) Documents Furnished in All Other Actions Based Upon the
    Agency Record. Unless the alternative procedure prescribed by
    subdivision (b) of this rule is followed, in all actions in which
    judicial review is upon the basis of the record made before an
    agency, other than those actions described in Rules 70 and 71,
    within 40 days after the service of the summons and complaint upon
    the agency, the agency shall file with the clerk of the court the
    items specified in paragraphs (1), (2) and (3) of this subdivision
    (a), if they exist, and the certified list specified in paragraph
    (4) of this subdivision (a), as part of the official record of the
    civil action.
        (1) A copy of the contested determination and the findings or
      report upon which such determination was based.
        (2) A copy of any reported hearings or conferences conducted by
      the agency.
        (3) Any documents, comments, or other papers filed by the
      public, interested parties, or governments with respect to the
      agency's action. The agency shall identify and file under seal
      any document, comment, or other information obtained on a
      confidential basis, including a non-confidential description of
      the nature of such confidential document, comment or information.
        (4) A certified list of all items specified in paragraphs (1),
      (2) and (3) of this subdivision (a).

      (b) Stipulations. The parties may stipulate that fewer documents,
    comments, or other information than those specified in subdivision
    (a) of this rule shall be filed with the clerk of the court. The
    agency shall retain the remainder of the record. All parts of the
    record shall be part of the record on review for all purposes. Upon
    request to the agency by a party, or by the court, at any time, any
    part of the record retained by the agency shall be filed by the
    agency with the clerk of the court forthwith, notwithstanding any
    prior stipulation or designation under this subdivision.
      (c) Documents Filed-Copies. Certified copies of the original
    papers in the agency proceeding may be filed.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 72 now
    will be identified as Rule 73.3. New Rule 72 is "Reserved."

-End-


-CITE-
    28 USC APPENDIX TITLE X - ATTORNEYS                         01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE X - ATTORNEYS

-HEAD-
                            TITLE X - ATTORNEYS                        

-End-



-CITE-
    28 USC APPENDIX Rule 74                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE X - ATTORNEYS

-HEAD-
    Rule 74. Admission to Practice (!1)

-STATUTE-


-STATUTE-
      (a) Qualifications. An attorney of good moral character who has
    been admitted to practice before the Supreme Court of the United
    States, the highest court of any state, the District of Columbia, a
    territory or possession, any United States court of appeals, or any
    United States district court, and is in good standing therein, may
    be admitted to practice before this court.
      (b) Procedure.
      (1) An applicant for admission shall file with the clerk a
    completed application, on the form shown in Form 10 of the Appendix
    of Forms, to be provided by the clerk.
      (2) The applicant shall be admitted either (A) upon oral motion
    by a member of the bar of this court or of the Supreme Court of the
    United States, before a judge of this court who will administer the
    following oath:
        I, ______, do solemnly swear (or affirm) that I will faithfully
      conduct myself as an attorney and counselor at law of this court
      uprightly and according to law, and that I will support the
      Constitution of the United States, so help me God.

    or (B) upon the filing of a certificate of a judge or of the clerk
    of any of the courts specified in subdivision (a) of this rule
    stating that the applicant is a member of the bar of such court and
    is in good standing therein.
      (3) The applicant shall pay to the clerk a fee of $50, and shall
    be entitled to a certificate of admission. The clerk, as trustee,
    shall deposit the fee in a special account in a bank designated by
    the court and shall make expenditures from the special account as
    directed by the court.
      (c) Admission of Foreign Attorneys. An attorney, barrister, or
    advocate who is qualified to practice at the bar of the court of
    any foreign state which extends a like privilege to members of the
    bar of this court may be specially admitted for purposes limited to
    a particular action. The applicant shall not, however, be
    authorized to act as attorney of record. In the case of such an
    applicant, the oath shall not be required and there shall be no
    fee. Such admission shall be granted only on motion of a member of
    the bar of this court.
      (d) Pro Hac Vice Applications. An attorney who is eligible for
    admission to practice under subdivision (a) of this rule, and who
    has been retained to appear in a particular action by a legal
    services program may, upon written application and in the
    discretion of the court, be permitted to specially appear and
    participate in the particular action. A pro hac vice applicant
    shall state under penalty of perjury (i) the attorney's residence
    and office address, (ii) the court to which the applicant has been
    admitted to practice and the date of admission thereof, (iii) that
    the applicant is in good standing and eligible to practice in said
    court, (iv) that the applicant is not currently suspended or
    disbarred in any other court, and (v) if the applicant has
    concurrently or within the year preceding the current application
    made any pro hac vice application to this court, the title and the
    number of each action wherein such application was made, the date
    of the application, and whether or not the application was granted.
    If the pro hac vice application is granted, the attorney is subject
    to the jurisdiction of the court with respect to the attorney's
    conduct to the same extent as a member of the bar of this court,
    and no application fee is required.
      (e) Attorney Discipline.
        (1) Definitions. For purposes of this Rule:
          (A) "serious crime" is any felony or lesser crime that
        reflects adversely on the attorney's honesty, trustworthiness,
        or fitness as an attorney in other respects, or any crime, a
        necessary element of which, as determined by the statutory or
        common law definition of the crime, involves interference with
        the administration of justice, false swearing,
        misrepresentation, fraud, deceit, bribery, extortion,
        misappropriation, theft, or an attempt, conspiracy or
        solicitation of another to commit a "serious crime;"
          (B) "discipline" shall include:
            (i) disbarment, suspension, probation, public reprimand,
          private admonition or transfer to inactive status, and
            (ii) by stipulation or upon order of the court, assessment
          of the costs of the proceedings, including, but not limited
          to, the fees and expenses of disciplinary counsel and staff,
          costs of investigations, service of process, witness fees and
          stenographic services.

          (C) "misconduct" shall include:
            (i) acts or omissions, individually or in concert with any
          other person or persons, that violate or attempt to violate
          the rules of the bar of the state in which an attorney is
          licensed to practice. If the attorney is licensed to practice
          in more than one jurisdiction, the rules to be applied shall
          be those of the admitting jurisdiction in which the attorney
          principally practices; provided, however, that if particular
          conduct clearly has its predominant effect in another
          jurisdiction in which the attorney is licensed to practice,
          the rules of that jurisdiction shall be applied to that
          conduct.
            (ii) violation of subdivision (e)(3)(A) of this rule.

        (2) Disciplinary Proceedings For Misconduct.
          (A) Upon filing of a complaint alleging that an attorney
        admitted to practice before the court has engaged in
        misconduct, the clerk shall refer the matter to the chief judge
        who may:
            (i) determine that the complaint merits no further action;
            (ii) forward a copy of the complaint to the attorney and
          request a response within a time certain;
            (iii) initiate formal disciplinary proceedings; or
            (iv) take other appropriate action.

          Failure to file a response to the complaint shall constitute
        an admission of its factual allegations. Where the attorney
        files a response to the complaint, the chief judge may take any
        of the actions in section (4)(A)(i), (iii), or (iv).
          (B) To initiate formal disciplinary proceedings, the chief
        judge shall enter an order directing the attorney to show cause
        within 30 days after service of the order why the attorney
        should not be disciplined. If the attorney fails to respond
        timely to the order to show cause, the chief judge shall enter
        a further order imposing appropriate discipline.
          (C) If the attorney files a response to the order to show
        cause, the chief judge shall assign the matter to a single
        judge (other than a complainant judge) for an evidentiary
        hearing. If the attorney fails to appear when specifically so
        ordered by the judge in a disciplinary proceeding, the attorney
        shall be deemed to have admitted the factual allegations which
        were to be the subject of such hearing and/or stipulated to any
        motion or recommendation to be considered at such hearing.
        Disciplinary proceedings for misconduct shall be conducted as
        in any civil action before the court. The court's decision
        shall be based upon clear and convincing evidence and supported
        by written findings of fact and conclusions of law.
          (D) Disciplinary proceedings for misconduct shall be public
        in any action which the chief judge assigns to a single judge,
        provided however, that prior to such assignment, the chief
        judge may, for good cause shown, authorize the clerk to
        produce, disclose, release, inform, report or testify regarding
        any information, reports, investigations, documents, evidence
        or transcripts in the clerk's possession. In order to protect
        the interests of a complainant, witness, third-party, or the
        attorney, the chief judge, or the single judge to whom any
        action has been assigned may, upon application of any person
        and for good cause shown, issue a protective order prohibiting
        the disclosure of specific information otherwise privileged or
        confidential.

        (3) Attorneys Convicted of Crimes.
          (A) Upon filing of a certified copy of a judgment of
        conviction demonstrating that an attorney admitted to practice
        before the court has been convicted of a serious crime in
        another court, the clerk of the court shall serve a notice to
        the attorney containing:
            (i) a copy of the judgment of conviction; and
            (ii) an order directing the attorney to show cause within
          30 days after service of the notice why the attorney should
          not be suspended by the court.

          The clerk shall serve the notice regardless of the
        circumstances of the conviction or the pendency of an appeal.
        If the attorney fails timely to file a response to the notice,
        the clerk shall promptly enter an order of suspension, pending
        further action by the court. If the attorney files a response
        to the notice, the clerk shall refer the matter to the chief
        judge for assignment to a single judge.
          (B) For purposes of any hearing requested on an attorney's
        response to the notice from the clerk, a certified copy of a
        judgment of conviction constitutes conclusive evidence that the
        attorney committed the crime and the sole issue in any hearing
        shall be the nature and extent of the discipline to be imposed
        by the court, provided that a final order of discipline shall
        not be entered until all appeals from the conviction are
        concluded.

        (4) Discipline Imposed By Other Courts.
          (A) Upon any change in an attorney's status or public
        disciplinary action taken in any other jurisdiction in which an
        attorney is admitted to practice, an attorney admitted to
        practice before the court shall promptly inform the clerk of
        the court of such action. Failure to so inform the clerk shall
        constitute misconduct.
          (B) Upon 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, resigned with
        charges pending before the bar of another court, or transferred
        to inactive status, the clerk of the court shall serve a notice
        to the attorney containing:
            (i) a copy of the judgment or order; and
            (ii) an order requiring the attorney to show cause within
          30 days after service of the notice why the court should not
          impose the identical discipline.

        If the attorney fails timely to file a response to the notice,
        the clerk shall enter an order imposing the identical
        discipline in the court. If the attorney files a response to
        the notice from the clerk, the clerk shall refer the matter to
        the chief judge for assignment to a single judge for formal
        disciplinary proceedings.
          (C) A final adjudication in another court that an attorney
        has committed misconduct shall conclusively establish the
        misconduct. However, if the attorney's response demonstrates
        that:
            (i) the procedure in the other court was so lacking in
          notice or opportunity to be heard as to constitute a
          deprivation of due process;
            (ii) 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;
            (iii) the imposition of the same discipline by the court
          would result in injustice; or
            (iv) the misconduct established is deemed by the court to
          warrant different discipline,

        the court shall enter an appropriate order. If the discipline
        imposed in the other court has been stayed, any reciprocal
        discipline imposed in the court shall likewise be deferred
        until the stay is lifted or expires.

        (5) Appointment of Disciplinary Counsel. Whenever it becomes
      necessary to investigate, prosecute or defend disciplinary
      proceedings under this rule, the chief judge or the judge to whom
      the case is assigned, may appoint one or more members of the bar
      of the court to serve as counsel. Once appointed, counsel may not
      resign except upon leave of court. Upon good cause shown,
      disciplinary counsel may cause subpoenas to issue, returnable
      before the judge presiding over the disciplinary matter.
        (6) Readmission/Reinstatement.
          (A) Upon filing of a petition for readmission by a disbarred
        attorney or reinstatement by a suspended attorney, the clerk
        shall refer the matter to the chief judge for consideration or
        for assignment to a single judge for hearing and determination.
        The petition must demonstrate by clear and convincing evidence
        that:
            (i) the attorney has the requisite character and fitness to
          practice law; and
            (ii) the relief requested will not be detrimental to the
          integrity and standing of the bar of the court or the
          administration of justice, or subversive to the public
          interest.

        The court may provide for readmission or reinstatement upon
        appropriate terms and conditions.
          (B) No petition for readmission or reinstatement shall be
        filed within one year following an adverse decision upon a
        petition for readmission or reinstatement filed by or on behalf
        of the same attorney.

        (7) Service of Disciplinary Notices and Orders. The clerk shall
      serve notices or orders issued under this rule by mailing a copy
      by certified mail, restricted to the addressee, return receipt
      requested, and by first class mail, to the last known address of
      the attorney. Every attorney admitted to practice before the
      court shall timely inform the clerk of the court of any change of
      address.
        (8) Duties of the Clerk. Whenever it appears that an attorney
      who has been disciplined for misconduct by the court is admitted
      to practice law before another court, the clerk shall serve the
      clerk of such other court a certified copy of the order of
      discipline, as well as the last known office and residence
      address of the attorney. The clerk shall likewise notify the
      National Lawyer Regulatory Data Bank of the American Bar
      Association whenever an attorney admitted to practice before this
      court has been disciplined.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; July 28, 1988, eff. Nov. 1, 1988; Mar. 25, 1998, eff.
    July 1, 1998; Sept. 30, 2003, eff. Jan. 1, 2004.)

           -FOOTNOTE-
               

    (!1) An attorney admitted to practice before the United States
         Customs Court shall be deemed to be admitted to practice
         before the United States Court of International Trade.


-End-



-CITE-
    28 USC APPENDIX Rule 75                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE X - ATTORNEYS

-HEAD-
    Rule 75. Practice - Appearance - Substitution of Attorneys -
      Withdrawal of Attorney - Notification of Changes

-STATUTE-
      (a) Practice. Only an attorney admitted to the bar of the court
    may practice before the court, except that individuals may
    represent themselves in an action. An attorney who is employed or
    retained by the United States, or an agency or officer thereof, may
    enter an appearance, file pleadings, and practice in this court in
    cases in which the United States or the agency is a party.
      (b) Appearances.
      (1) Except for an individual (not a corporation, partnership,
    organization or other legal entity) appearing pro se, each party
    and amicus curiae must appear through an attorney authorized to
    practice before the court. When a summons contains the name,
    address and telephone number of an attorney, the attorney shall be
    recognized as the attorney of record and no separate notice of
    appearance shall be required of the attorney. Provided, however,
    that an attorney representing the United States, or an agency or
    officer thereof, who is not otherwise admitted to practice before
    the court, shall serve a separate notice of appearance as
    prescribed by paragraph (2) of this subdivision (b).
      (2) In all other instances, an attorney authorized to appear in
    an action shall serve a separate notice of appearance for each
    action. The notice shall be substantially in the form as set forth
    in Form 11 of the Appendix of Forms. An appearance may be made by
    an individual attorney or a firm of attorneys. If the appearance is
    made by a firm of attorneys the individual attorney responsible for
    the litigation shall be designated.
      (c) Substitution of Attorneys. A party who desires to substitute
    an attorney may do so by serving a notice of substitution upon the
    prior attorney of record and the other parties. The notice shall be
    substantially in the form as set forth in Form 12 of the Appendix
    of Forms. If the prior attorney of record wishes to be heard by the
    court on the substitution, that attorney may, by motion, request
    such relief as the attorney deems appropriate.
      (d) Withdrawal of Attorney. An attorney of record may withdraw an
    appearance only by order of the court, upon motion served upon the
    attorney's client and the other parties.
      (e) Notification of Changes. Whenever there is any change in the
    name of an attorney of record, the attorney's address or telephone
    number, a new notice of appearance for each action shall be
    promptly served upon the other parties and filed with the court.
    The notice shall be substantially in the form as set forth in Form
    11 of the Appendix of Forms. Unless and until an attorney of record
    files a new notice of appearance as prescribed in this subdivision,
    service of all papers shall be made upon the attorney of record at
    the last known address.

-SOURCE-
    (As amended July 21, 1986, eff. Oct. 1, 1986; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993; Aug. 29, 2000,
    eff. Jan. 1, 2001.)


-MISC1-
                             PRACTICE COMMENT                         
      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.

-End-



-CITE-
    28 USC APPENDIX Rule 76                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE X - ATTORNEYS

-HEAD-
    Rule 76. Amicus Curiae

-STATUTE-
      The filing of a brief by an amicus curiae may be allowed upon a
    motion made as prescribed by Rule 7, or at the request of the
    court. The brief may be conditionally filed with the motion. The
    motion for leave shall identify the interest of the applicant and
    shall state the reasons why an amicus curiae is desirable. An
    amicus curiae shall file its brief within the time allowed the
    party whose position the amicus curiae brief will support unless
    the court for cause shown shall grant leave for later filing. In
    that event the court shall specify within what period an opposing
    party may answer. A motion of an amicus curiae to participate in
    the oral argument will be granted only for extraordinary reasons.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982.)


-MISC1-
                             PRACTICE COMMENT                         
      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. Sec. 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.

-End-


-CITE-
    28 USC APPENDIX TITLE XI - THE COURT AND CLERK              01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
                      TITLE XI - THE COURT AND CLERK                  

-End-



-CITE-
    28 USC APPENDIX Rule 77                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 77. Sessions of the Court

-STATUTE-
      (a) Court Always Open. The court shall be deemed always open and
    in continuous session for transacting judicial business on all
    business days throughout the year. Emergency matters may be
    presented to and heard by the court at any time.
      (b) Trials and Proceedings; 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 with or without the
    attendance of the clerk or other court officials.
      (c) Place of Trials or Hearings.
      (1) In New York City. The judge to whom an action is assigned may
    designate the date of any trial or hearing to be held in, or
    continued to, New York City.
      (2) Other Than New York City. The chief judge may, as authorized
    by 28 U.S.C. Secs. 253(b) and 256(a), designate the place and date
    of any trial or hearing to be held at, or continued to, any place
    other than New York City within the jurisdiction of the United
    States.
      (3) Foreign Countries. The chief judge may, as authorized by 28
    U.S.C. Sec. 256(b), authorize a judge to preside at any evidentiary
    hearing in a foreign country.
      (d) Photography, Tape Recording and Broadcasting.
      The taking of photographs, or the use of recording devices in the
    courtroom or its environs, or radio or television broadcasting from
    the courtroom or its environs, in connection with judicial
    proceedings is prohibited. A judge may, however, permit (1) the use
    of electronic or photographic means for the presentation of
    evidence or the perpetuation of a record, and (2) the broadcasting,
    televising, recording, or photographing of investitive, ceremonial,
    or naturalization proceedings.
      Environs as used in this rule, shall include: (1) the entire
    United States Court of International Trade Courthouse at One
    Federal Plaza, New York, New York; and (2) any place within the
    jurisdiction of the United States where a judge may preside at a
    trial or hearing pursuant to 28 U.S.C. Sec. 256(a).
      (e) Assignment and Reassignment of Actions.
      (1) Assignment to Single Judge. All actions shall be assigned by
    the chief judge to a single judge, except as prescribed in
    paragraph (2) of this subdivision (d).
      (2) Assignment to Three-Judge Panel. An action may be assigned by
    the chief judge to a three-judge panel either upon motion, or upon
    the chief judge's own initiative, when the chief judge finds that
    the action raises an issue of the constitutionality of an Act of
    Congress, a proclamation of the President, or an Executive order;
    or has broad or significant implications in the administration or
    interpretation of the law.
      (3) Time of Assignment. An action shall be assigned by the chief
    judge at any time upon the chief judge's own initiative or upon
    motion for good cause shown.
      (4) Reassignment. An action may be reassigned by the chief judge
    upon the death, resignation, retirement, illness or
    disqualification of the judge to whom it was assigned, or upon
    other special circumstances warranting reassignment.
      (f) Judge and Court; Defined. The word "judge" as used in these
    rules means the single judge or three-judge panel to whom an action
    is assigned or a matter is referred. The word "court" as used in
    these rules means, unless the context of a particular rule clearly
    indicates otherwise, the single judge or three-judge panel to whom
    an action is assigned or a matter is referred.

-SOURCE-
    (As amended Apr. 28, 1987, eff. June 1, 1987; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993; Dec. 18, 2001,
    eff. Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      To implement the authority conferred upon the chief judge by 28
    U.S.C. Secs. 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.
      Pursuant to the renumbering of the Rules, the former Rule
    77(e)(5) now will be identified as Rule 63, and the former Rule 63
    now will be identified as Rule 86.2. New Rule 63 conforms to Rule
    63 of the Federal Rules of Civil Procedure.

    JAMES L. WATSON UNITED STATES COURT OF INTERNATIONAL TRADE BUILDING
      Pub. L. 108-70, Aug. 14, 2003, 117 Stat. 886, provided that:

      "SECTION 1. DESIGNATION.
      "The building located at 1 Federal Plaza in New York, New York,
    shall be known and designated as the 'James L. Watson United States
    Court of International Trade Building'.

      "SEC. 2. REFERENCES.
      "Any reference in a law, map, regulation, document, paper, or
    other record of the United States to the building referred to in
    section 1 shall be deemed to be a reference to the 'James L. Watson
    United States Court of International Trade Building'."

-End-



-CITE-
    28 USC APPENDIX Rule 77.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 77.1. Judicial Conference

-STATUTE-
      (a) Purpose. The chief judge is authorized to summon annually the
    judges of the court to a judicial conference, at a time and place
    the chief judge designates, for the purpose of considering the
    business of the court and improvements in the administration of
    justice in the court. The chief judge shall preside at the
    conference.
      (b) Composition. All members of the bar of this court may be
    members of the conference and participate in its discussions and
    deliberations.
      (c) Registration Fee. A registration fee shall be paid by
    attendees of the conference, and shall be applied to the payment of
    the expenses of the conference, as approved by the chief judge.

-SOURCE-
    (Added July 21, 1986, eff. Oct. 1, 1986.)

-End-



-CITE-
    28 USC APPENDIX Rule 78                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 78. Motion Part

-STATUTE-
      (a) Motion Part - Establishment. A Motion Part is established for
    hearing and determining all motions in actions which have not been
    assigned to a judge or proceedings which are not otherwise provided
    for in these rules.
      (b) Motion Part - Referral. The clerk shall refer motions ready
    for disposition to the Motion Part judge for hearing and
    determination. The Motion Part judge shall: determine the motion;
    or refer the motion to another judge who previously determined a
    related motion in the action; or refer the matter to the chief
    judge with a recommendation that the action be assigned to a judge.
      (c) Motion Part - Emergency Matters.
      (1) An emergency matter is one which because of special
    circumstances requires extraordinary priority and immediate
    disposition.
      (2) The Motion Part judge will be available, on call, to hear and
    determine an emergency matter at any time.
      (3) The clerk shall refer to the Motion Part judge any emergency
    matter arising in an unassigned action, or in an assigned action
    when the assigned judge is unavailable.
      (4) The Motion Part judge shall dispose of the emergency matter
    only to the extent necessary to meet the emergency, and the action
    shall otherwise be continued for disposition by the judge to whom
    the action has been or will be assigned.
      (5) If the Motion Part judge decides that an emergency matter
    should not be determined, for lack of emergency or other reason, he
    shall refer the matter for determination in the ordinary course.


-MISC1-
                             PRACTICE COMMENT                         
      A party may seek expedited consideration under Rule 3(g). For
    possible applicability of other scheduling rules, see practice
    comment to Rule 3(g).

-End-



-CITE-
    28 USC APPENDIX Rule 79                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 79. Books and Records Kept by the Clerk and Entries Therein

-STATUTE-
      (a) Civil Docket. The clerk shall keep a book known as a "Civil
    Docket," on one or more looseleaf sheets for each action, and shall
    enter therein each action filed with the court. Actions shall be
    assigned consecutive file numbers. The file number of each action
    shall be noted on the sheet of the Civil Docket whereon the first
    entry of the action is made. All papers filed with the clerk and
    all judgments and orders shall be entered chronologically in the
    Civil Docket on the sheet 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 and the substance of each
    judgment or order. 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 sheet assigned to that action.
      (b) Judgments and Orders. The clerk shall keep as a permanent
    record a "Judgment and Order Book" in which there shall be filed,
    in serially-numbered chronological sequence in looseleaf binders, a
    correct copy of every final judgment or appealable order, together
    with all opinions, decisions, or findings of fact and conclusions
    of law upon which it is based, and any other order which the court
    may direct to be kept. Every such final judgment or appealable
    order shall, from time to time but no less frequently than
    annually, be permanently bound.
      (c) Notice of Orders or Judgments.
      (1) Immediately upon the entry of an order the clerk shall serve
    a notice of the entry, together with a copy of the order and any
    accompanying memorandum, by delivery or 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 delivery or
    mailing. Any party may in addition serve a notice of such entry in
    the manner provided in Rule 5 for the service of papers.
      (2) Immediately upon the entry of a judgment the clerk shall
    serve a notice of the entry, together with a copy of the judgment,
    opinion, decision, or findings of fact and conclusions of law upon
    which it is based, by delivery or mail in the manner provided for
    in Rule 5 upon each party who is not in default for failure to
    appear, and, if appropriate, the port director of the customs port
    in which the action arose, and shall make a note in the docket of
    the delivery or mailing. Any party may in addition serve a notice
    of such entry in the manner provided in Rule 5 for the service of
    papers.
      (3) 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
    or by the rules of the United States Court of Appeals for the
    Federal Circuit.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Sept. 25, 1992, eff.
    Jan. 1, 1993; Aug. 29, 2000, eff. Jan. 1, 2001; Sept. 30, 2003,
    eff. Jan. 1, 2004.)

-End-



-CITE-
    28 USC APPENDIX Rule 80                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 80. Papers, Exhibits and Other Material

-STATUTE-
      (a) Custody and Control. All papers, exhibits and other material
    filed with or transmitted to the court shall be retained by the
    clerk of the court, under the clerk's custody and control except
    when required by the court. When requested by an attorney for a
    party, papers, exhibits and other material may be transmitted by
    the clerk to an appropriate customs officer. Notice of the request
    shall be given to all other parties by the party filing the
    request.
      (b) Inspection. Any person may inspect all papers, exhibits and
    other material in an action except where restricted by statute or
    by order of the court. Unless otherwise directed by the court,
    entry papers, invoices and laboratory reports shall be available
    only to the party to whose merchandise the papers, invoices and
    reports relate, or to the attorney of record for that party, or to
    an attorney for the United States, or an officer of the United
    States Customs Service.
      (c) Withdrawal.
      (1) Any person may withdraw the papers, exhibits and other
    material, which that person is authorized to inspect as prescribed
    in subdivision (b) of this rule, to a designated place in the
    court. The papers, exhibits and other material shall be returned to
    the office of the clerk no later than the close of business on the
    day of withdrawal. Upon request of a party, the clerk may permit
    papers, exhibits and other material to be withdrawn to a designated
    place in the offices of the Attorney-in-Charge, International Trade
    Field Office, Commercial Litigation Branch, Department of Justice,
    for not more than 30 days, provided that they shall be returned
    immediately to the office of the clerk upon notice from the clerk.
      (2) Whenever any person withdraws papers, exhibits and other
    material, that person shall sign and leave with the clerk a receipt
    describing what has been withdrawn.
      (d) Return and Removal. When a judgment or order of the court has
    become final, papers, exhibits, and other material transmitted to
    the court pursuant to 28 U.S.C. Sec. 2635, shall be returned by the
    clerk, together with a copy of the judgment or order, to the agency
    from which they were transmitted. All exhibits shall be removed
    from the custody of the clerk by the party who filed them within 60
    days after the judgment or order of the court has become final. A
    party who fails to comply with this requirement shall be notified
    by the clerk that, if the exhibits are not removed within 30 days
    after the date of the notice, the clerk may dispose of them as the
    clerk may see fit. Any expense or cost pertaining to the removal of
    exhibits as prescribed by this rule shall be borne by the party who
    filed them.
      (e) Reporting of Proceedings. Each session of the court and every
    other proceeding designated by order of the court or by one of the
    judges shall be recorded verbatim by shorthand, mechanical means,
    electronic sound recording, or any other method, as prescribed by
    regulations promulgated by the Judicial Conference of the United
    States and subject to the discretion and approval of the judge.
    Proceedings to be recorded include: all proceedings in open court
    unless the parties, with the approval of the judge, shall agree
    specifically to the contrary; and such other proceedings as a judge
    may direct, or as may be required by rule or order of the court, or
    as may be requested by any party to the proceeding. The court
    reporter or other individual designated to produce the record shall
    attach an official certificate to the original shorthand notes or
    other original records so taken and promptly file them with the
    clerk of the court who shall preserve them in the public records of
    the court for not less than ten years.
      (f) Transcript of Proceedings. The court reporter or other
    individual designated to produce the record shall transcribe and
    certify such parts of the record of proceedings as may be required
    by rule or order of the court or direction of a judge. Upon the
    request of any party to the proceeding which has been so recorded,
    who has agreed to pay the fee therefor, or of a judge of the court,
    the court reporter or other individual designated to produce the
    record shall promptly transcribe the original records of the
    requested parts of the proceedings and attach to the transcript an
    official certificate, and deliver the certified transcript to the
    clerk of the court for the public records of the court. The
    certified transcript in the Office of the Clerk shall be open
    during office hours to inspection by any person without charge,
    except where restricted by statute or order of the court.
      (g) Fees.
      Except as otherwise provided by these rules, the clerk shall
    collect in advance from the parties such fees for services as are
    consistent with the "Judicial Conference Schedule of Additional
    Fees for the United States District Courts."
      (1) Reproductions. Reproductions of original records may be given
    to any person who is authorized to inspect original records as
    prescribed in subdivision (b) of this rule.
      (2) Transcripts. The clerk of the court may require any party
    requesting a transcript to prepay the estimated fee in advance
    except for transcripts that are to be paid for by the United
    States.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Jan. 1, 1983; July 28,
    1988, eff. Nov. 1, 1988.)


-MISC1-
                             PRACTICE COMMENT                         
      From time to time, the Judicial Conference of the United States
    establishes fees for services performed by the clerk. The rates
    applicable at any time are available, upon request, from and are
    posted in the Office of the Clerk.


-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of functions, personnel, assets, and liabilities of
    the United States Customs Service of the Department of the
    Treasury, including functions of the Secretary of the Treasury
    relating thereto, to the Secretary of Homeland Security, and for
    treatment of related references, see sections 203(1), 551(d),
    552(d), and 557 of Title 6, Domestic Security, and the Department
    of Homeland Security Reorganization Plan of November 25, 2002, as
    modified, set out as a note under section 542 of Title 6.

-End-



-CITE-
    28 USC APPENDIX Rule 81                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 81. Papers Filed; Conformity; Form, Size, Copies

-STATUTE-
      (a) Conformity Required. All papers filed with the court shall be
    produced, duplicated, and filed in conformity with these rules as
    to means of production, methods of duplication, form and size, and
    number of copies.
      (b) Means of Production. All papers shall be plainly and legibly
    typewritten or otherwise produced by any duplicating or copying
    process.
      (c) Caption and Signing. All papers shall bear a caption in
    conformity with Rule 7 and shall be signed in conformity with Rule
    11.
      (d) Numbering of Pages. The pages of each paper shall be numbered
    consecutively, commencing with the number 1.
      (e) Designation of Originals. When multiple copies of a paper are
    filed, one shall be designated as the original by the party.
      (f) Pleadings and Other Papers. Unless otherwise provided by
    these rules, all papers shall be filed in duplicate, only the
    original of which need be signed. Pleadings and other papers shall
    be 8 1/2  by 11 inches in size, with typed matter not exceeding 6
    1/2  x 9 1/2  inches, and with type size of 12 points or larger,
    including type used in footnotes. Pages shall be numbered on the
    bottom portion thereof and bound or attached on the top margin.
    Typed matter shall be double spaced except footnotes, which may be
    single spaced, quoted material which may be indented and single
    spaced, and titles, schedules, tables, graphs, columns of figures,
    and other interspersed material which are more readable in a form
    other than double spaced.
      (g) Status of Action. Papers filed after an action has been
    commenced shall identify, with respect to each action affected by
    the papers, the court number assigned to the action, the court
    calendar on which the action is listed; and, if the action has been
    assigned, the name of the judge to whom the action has been
    assigned or reassigned.
      (h) Confidential Information.
      (1) If a party deems it necessary to refer in a pleading, motion,
    brief or other paper to confidential or privileged information, two
    sets of the pleadings, motions, briefs or other papers shall be
    filed.
        (A) Confidential Set. One set of the pleadings, motions, briefs
      or other papers shall be labeled "Confidential" on the cover page
      and be filed with the clerk of the court. In addition, each page
      containing confidential material shall bear a legend so
      indicating; however, in an action where Rule 73.2(c) is
      applicable, the label "Business Proprietary" may be used instead.
        (B) Nonconfidential Set. The second set of pleadings, motions,
      briefs or other papers shall be labeled "Nonconfidential" on the
      cover page and be filed with the clerk of the court. In addition,
      each page of the "nonconfidential" set from which confidential or
      privileged information has been deleted shall bear a legend so
      stating.

      (2) Each party to the action shall be served with one copy of the
    "nonconfidential" pleading, motion, brief or other paper, and, when
    permitted by an applicable protective order, one copy of the
    "confidential" pleading, motion, brief or other paper, in
    accordance with Rule 5.
      (3) Non-Availability to the Public. The "confidential" set of
    pleadings, motions, briefs or other papers filed with the court
    shall be available only to authorized court personnel and shall not
    be made available to the public.
      (i) Briefs - Trial and Pretrial Memoranda. Briefs, trial and
    pretrial memoranda shall be filed in duplicate and shall be 8 1/2 
    by 11 inches in size. Pages shall be numbered on the bottom portion
    thereof and bound or attached on the left margin. Typed matter
    shall be double spaced, except quoted material which may be
    indented and single spaced, and except titles, schedules, tables,
    graphs, columns of figures, and other interspersed material which
    are more readable in a form other than double spaced.
      (j) Content - Moving Party's Brief. The brief of the moving party
    shall contain under proper headings and arranged in the following
    order:
      (1) a table of contents;
      (2) a table of statutes, regulations, and cases cited, giving the
    volume and page in the official editions where they may be found,
    and arranging the cases in alphabetical order;
      (3) in an action involving a specific importation, a brief
    description of the merchandise, country of origin and of
    exportation, date of exportation, date of entry, and port of entry;
      (4)(A) in actions involving classification, the verbatim
    paragraph or paragraphs or item or items of the tariff statute
    under which the merchandise was assessed, and the verbatim
    paragraph or paragraphs or item or items under which it is claimed
    that the merchandise is properly dutiable, together with any other
    verbatim pertinent statutory provisions or regulations; (B) in
    actions involving valuation, the statutory basis of appraisement
    and the unit of value at which the merchandise was appraised, and
    the claimed statutory basis of value and unit of value, together
    with the verbatim pertinent statutory provisions;
      (5) the questions presented for decision, including all
    subsidiary questions involved; when a brief is filed under Rule
    56.2, the issues shall be presented in accordance with Rule
    56.2(c)(1)(B), and need not be restated under this paragraph (5);
      (6) a concise statement of facts relevant to the issues with a
    specific citation to the page or pages in the record or exhibits
    supporting each such material fact;
      (7) a summary of argument, which shall be succinct, but accurate
    and clear, condensation of the contentions made in the body of the
    brief;
      (8) an argument, exhibiting clearly the contentions of the party
    with respect to the issues presented, and the reasons therefor,
    with citations to the authorities, statutes, exhibits, and pages of
    the record relied upon;
      (9) a short conclusion stating the relief sought.
      (k) Content - Respondent's Brief. The brief of the respondent
    shall conform to the requirements prescribed in subdivision (j) of
    this rule, except that no statement of the facts need be made
    beyond what may be deemed necessary to correct any inaccuracies or
    omissions in the moving party's brief, and except that items (3),
    (4) and (5) need not be included unless the respondent is
    dissatisfied with their presentation by the moving party.
      (l) Content - Reply Brief. A reply brief shall be confined to
    rebutting matters contained in the brief of the respondent.
      (m) General. Briefs must be compact, concise, logically arranged,
    and free from burdensome, irrelevant, immaterial and scandalous
    matter. Briefs not complying with this rule may be disregarded by
    the court.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Nov. 29, 1995, eff.
    Mar. 31, 1996; Jan. 25, 2000, eff. May 1, 2000; Dec. 18, 2001, eff.
    Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      All decisions of the United States Court of International Trade
    are published in: slip opinion form; the Customs Bulletin; and the
    official reports of the United States Court of International Trade.
    Certain decisions will also be published in the Federal Supplement
    or the Federal Rules Decisions. Decisions are also available on the
    LEXIS and WESTLAW electronic databases and those issued beginning
    in 1999 may be viewed on the website of the United States Court of
    International Trade, www.cit.uscourts.gov.
      The rules of citation for papers filed in the court are as
    follows:

    1. Slip Opinions
        When citing a slip opinion, one should cite the slip opinion
      number, together with the volume number of the official reports,
      if available, and full date of publication. This form is used
      until the opinion appears in full in the United States Court of
      International Trade Reports (CIT).

      Examples
        Timken Co. v. United States, 26 CIT __, Slip Op. 02-30 (Mar.
      20, 2002);
        OR, LEXIS or WESTLAW citation,
        Arbon Steel & Service Co. v. United States, Slip Op. 02-8, 2002
      Ct. Int'l Trade LEXIS 7 (CIT Jan. 24, 2002).
        Arbon Steel & Service Co. v. United States, Slip Op. 02-8, 2002
      WL 100627 (CIT Jan. 24, 2002).

    2. Published Opinions
        After an opinion appears in the official CIT reports, Federal
      Supplement (F.Supp. or F.Supp.2d), or Federal Rules Decisions
      (F.R.D.), the slip opinion is no longer used, and the citation is
      to the official reports, and unofficial reports, if available,
      together with the year of publication. One should not cite the
      Customs Bulletin and Decisions in any event.

      Example
        JCM, Ltd. v. United States, 23 CIT 121 (1999).
        If the opinion is also published in F.Supp., F.Supp.2d or
      F.R.D., citation of these reporters should follow the citation of
      the official reports.

      Examples
        Ludvig Svensson (U.S.) Inc. v. United States, 23 CIT 573, 62
      F.Supp.2d 1171 (1999);
        NOT, 23 CIT 573, Slip Op. 99-82, 62 F.Supp.2d 1171 (1999).

    3. Customs Court Opinions
        The form of citation for opinions of the United States Customs
      Court remains the same.

      Examples
        Labay Int'l, Inc. v. United States, 83 Cust. Ct. 152, C.D. 4834
      (1979);
        OR, if there is a F.Supp. or F.R.D. cite,
        Alberta Gas Chems., Inc. v. United States, 84 Cust. Ct. 217,
      C.R.D. 80-1, 483 F.Supp. 303 (1980).

    4. Abstracts
        Abstracts of decisions not supported by an opinion should be
      numbered, published, and cited. These abstracts include decisions
      and judgments on agreed statements of facts, on motions for
      summary judgments, and on motions for judgments on the pleadings
      in only classification and valuation cases.

      Examples
        Uniroyal, Inc. v. United States, 84 Cust. Ct. 275, Abs. P80/59
      (1980);
        Nichimen Co. v. United States, 1 CIT 234, Abs. R81/20 (1981).

    5. Decisions of the Board of General Appraisers
        Citation of the decisions of the Board of General Appraisers
      should be as follows:

      Example
        In re Pickhardt & Kuttroff, T.D. 20,728, 1 Treas. Dec. 373
      (1897).

    6. Court of Customs Appeals Opinions
        Citation of the opinions of the Court of Customs Appeals (Ct.
      Cust. App.) should be as follows:

      Example
        Kahlen v. United States, 2 Ct. Cust. App. 206 (1911).

    7. Court of Customs and Patent Appeals
        Citation of opinions of the Court of Customs and Patent Appeals
      (CCPA) should be as follows:

      Examples
        Coro, Inc. v. United States, 41 CCPA 215, C.A.D. 554 (1954);
        OR, if there is an F.2d cite,
        United States v. Mabay Chem. Corp., 65 CCPA 53, C.A.D. 1206,
      576 F.2d 368 (1978).

    8. Court of Appeals for the Federal Circuit
        Customs and trade cases adjudged in the United States Court of
      Appeals for the Federal Circuit should be cited by F.2d or F.3d,
      if therein, otherwise cite to official reporter. Decisions are
      also available on the LEXIS and WESTLAW electronic databases.

      Examples
        Ciba-Geigy Corp. v. United States, 223 F.3d 1367 (Fed. Cir.
      2000).
        OR, if the F.3d is not available,
        American Silicon Techs. v. United States, Appeal No. 02-1033
      (Fed. Cir. Oct. 22, 2001);
        NOT, American Silicon Techs. v. United States, Appeal No.
      02-1033, Slip Op. (C.A.F.C. Oct. 22, 2001).

    9. Statutes
        Citation of statutes of the United States should include both
      the popular name of the act and the title and section of the
      United States Code.
        a) Citation of a statute as it appears in a sentence in text.

      Example
        Plaintiff moves for certification pursuant to section 222(3) of
      the Trade Act of 1974, 19 U.S.C. Sec. 2272(3) (1982).

        b) Citation standing alone.

      Example
        Trade Act of 1974, Sec. 222(3), 19 U.S.C. Sec. 2272(3) (1982).

    10. Rules
        Citation of the rules of this court and its predecessor court,
      the Customs Court, should be as follows:
        a) Rules of the United States Court of International Trade

      Example
        USCIT R. 56

        b) Rules of the United States Customs Court

      Example
        Cust. Ct. R. 4.6

    11. Miscellaneous
      Ellipsis (. . .)
        Pursuant to rule 5.3 of A Uniform System of Citation, when a
      word or words are omitted from quoted material it should be
      indicated by an ellipsis (. . .), and not asterisks (* * *).

    12. Code of Federal Regulations
        Cite final federal administrative rules and regulations to the
      Code of Federal Regulations, which is abbreviated "C.F.R."

      Example:
        19 C.F.R. Sec. 353.58 (1994).

    13. Federal Register
        Cite determinations in antidumping and countervailing duty
      matters to the Federal Register.

      Examples:
        Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products
      from Brazil, 63 Fed. Reg. 56,623 (Dep't Commerce Oct. 22, 1998)
      (initiation of countervailing duty investigation).
        Certain Hot-Rolled Steel Products from Brazil and Russia, 64
      Fed. Reg. 46,951 (ITC Aug. 27, 1999) (final determination).

    14. International Trade Administration - Unpublished Decision
    Memoranda
        Federal Register notices with unpublished decision memoranda
      are available on the official ITA website. These unpublished
      memoranda are also available on both LEXIS and WESTLAW databases.
      LEXIS includes decision memoranda as addendums to the Federal
      Register Notice, and WESTLAW links to decision memoranda from the
      Federal Register Notice.

      Example:
        Decision Memorandum, A-201-802, ARP 9-98 (Mar. 15, 2000),
      available at http://ia.ita.doc.gov/frn/summary/2000mar.htm;

    15. International Trade Commission Decisions
        When citing International Trade Commission decisions, cite by
      product name and country, ITC Publication number, number of the
      case or investigation, and month and year of issue in
      parentheses. Recent ITC decisions are available on the official
      ITC website and also on both LEXIS and WESTLAW databases.

      Examples:
        Melamine Institutional Dinnerware from China, Indonesia, and
      Taiwan, USITC Pub. 3016, Inv. Nos. 731-TA-741-743 (Feb. 1997);
        Automotive Replacement Glass Windshields from China, USITC Pub.
      No. 3494, No. 731-TA-922 (Mar. 2002), available at
      http://www.usitc.gov/webpubs.htm;
        Uranium from Kazakhstan, USITC Pub. 3213, Inv. No. 731-TA-539-A
      (July 1999), available at 1999 ITC LEXIS 467.

    16. Customs Rulings
        When citing U.S. Customs Headquarters Rulings or National
      Commodity Specialist Division in New York Rulings cite by HQ or
      NY number and month, day and year in parentheses. Include
      citation to LEXIS or WESTLAW if available.

      Examples:
        HQ 963396 (Mar. 28, 2000);
        NYRL 810328 (Sept. 8, 1999);
        HQ 963396 (Mar. 28, 2000), available at 2000 WL 683703.
      For further rules of citation, reference may be made to The
    Bluebook: A Uniform System of Citation (Columbia L. Rev. et al.
    ed., 17th ed. Harvard Rev. Assn. 2000) [Bluebook]. For punctuation,
    capitalization, abbreviations, and other matters of style,
    reference may be made to the U.S. Government Printing Office Style
    Manual. Assistance in citing recent decisions of this Court may be
    obtained from the court librarian (212) 264-2816.
      The court has established Security Procedures for Safeguarding
    Confidential Information in the Custody and Control of the Clerk.
    These procedures apply to confidential information or privileged
    information received by the court and may include: trade secrets,
    commercial or financial information, and information provided to
    the United States by foreign governments or foreign businesses or
    persons. These procedures do not pertain to national security
    information.
      Section 11(a) of the Security Procedures regulates the
    transmittal of confidential information to and from the clerk by
    government agencies and private parties. A copy of Section 11(a) is
    available upon request from, and is posted in, the Office of the
    Clerk.
      Compliance with Rule 81 is encouraged because it will facilitate
    review of papers by the court. Pursuant to Rule 5(e), the clerk may
    refuse to accept any paper presented for filing because it does not
    comply with the procedural requirements of the rules or practice of
    the court. Additionally, a judge may reject nonconforming papers or
    take other appropriate action if it is determined that such action
    is warranted.
      For an action under 28 U.S.C. Sec. 1581(c), Rule 5(h) contains
    requirements for designating of business proprietary information
    and the form of notification required when a party desires to delay
    filing a non-confidential version of a submission by one business
    day.
      Rule 81(h) makes reference to former Rule 71(c). Pursuant to the
    renumbering of the Rules, the former Rule 71 now will be identified
    as Rule 73.2.

-End-



-CITE-
    28 USC APPENDIX Rule 82                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 82. Clerk's Office and Orders by the Clerk

-STATUTE-
      (a) Business Hours and Address. The office of the clerk shall be
    open between 8:30 a.m. and 5:00 p.m. on all days except Saturdays,
    Sundays, and legal holidays,(!1) at:

         Office of the Clerk of the Court
         United States Court of International Trade
         One Federal Plaza
         New York, NY 10278-0001
         (212) 264-2800

      (b) Motions, Orders and Judgments. The clerk may dispose of the
    following types of motions and sign the following types of orders
    and judgments without submission to the court, but the clerk's
    action may be suspended, altered or rescinded by the court for good
    cause shown:
      (1) Motions on consent in unassigned cases extending the time
    within which to plead, move or respond.
      (2) Motions on consent in unassigned cases for the discontinuance
    or dismissal of the action.
      (3) Orders of dismissal upon notice as prescribed by Rules
    41(a)(1) and 41(b)(3).
      (4) Orders of dismissal for lack of prosecution as prescribed by
    Rules 83(c) and 85(d).
      (5) Consent motions to intervene as of right made within the
    30-day period provided in Rule 24(a).
      (6) Orders of dismissal for failure to file a complaint as
    prescribed by Rule 13(i)(4).
      (7) Orders of dismissal for failure to file a complaint as
    prescribed by Rule 41(b)(2).
      (8) Disciplinary orders to show cause as prescribed by Rule
    74(e)(3)(A)(ii) and (4)(B)(ii).
      (c) Clerk - Definition. The words "clerk" or "clerk of the court"
    as used in these rules include a deputy clerk designated by the
    clerk to perform services of the kind provided for in these rules.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; Oct. 3, 1984, eff.
    Jan. 1, 1985; June 19, 1985, eff. Oct. 1, 1985; July 28, 1988, eff.
    Nov. 1, 1988; Sept. 25, 1992, eff. Jan. 1, 1993; Oct. 5, 1994, eff.
    Jan. 1, 1995; Nov. 29, 1995, eff. Mar. 31, 1996; Nov. 14, 1997,
    eff. Jan. 1, 1998; Aug. 29, 2000, eff. Jan. 1, 2001; Dec. 18, 2001,
    eff. Apr. 1, 2002; Sept. 30, 2003, eff. Jan. 1, 2004.)

-FOOTNOTE-
    (!1) As used in these rules, "legal holidays" include: New Year's
         Day, January 1; Martin Luther King Jr.'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.


-End-



-CITE-
    28 USC APPENDIX Rule 82.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XI - THE COURT AND CLERK

-HEAD-
    Rule 82.1. [Reserved]

-STATUTE-

-SOURCE-
    (Added Dec. 18, 2001, eff. Apr. 1, 2002; and amended Sept. 30,
    2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 82.1
    now will be identified as Rule 86.1. New Rule 82.1 is "Reserved."

-End-


-CITE-
    28 USC APPENDIX TITLE XII - COURT CALENDARS                 01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
                        TITLE XII - COURT CALENDARS                    

-End-



-CITE-
    28 USC APPENDIX Rule 83                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 83. Reserve Calendar

-STATUTE-
      (a) Reserve Calendar. A Reserve Calendar is established on which
    an action described in 28 U.S.C. Sec. 1581(a) or (b) is commenced
    by the filing of a summons shall be placed when the action is
    commenced. An action may remain on the Reserve Calendar for an
    18-month period. The applicable 18-month period shall run from the
    last day of the month in which the action is commenced until the
    last day of the 18th month thereafter.
      (b) Removal. An action may be removed from the Reserve Calendar
    upon (1) assignment, (2) filing of a complaint, (3) granting of a
    motion for consolidation pursuant to Rule 42, (4) granting of a
    motion for suspension under a test case pursuant to Rule 84, or (5)
    filing of a stipulation for judgment on agreed statement of facts
    pursuant to Rule 58.1.
      (c) Dismissal for Lack of Prosecution. An action not removed from
    the Reserve Calendar within the 18-month period shall be dismissed
    for lack of prosecution and the clerk shall enter an order of
    dismissal without further direction from the court unless a motion
    is pending. If a pending motion is denied and less than 10 days
    remain in which the action may remain on the Reserve Calendar, the
    action shall remain on the Reserve Calendar for 10 days from the
    date of entry of the order denying the motion.
      (d) Extension of Time. For good cause shown why the action was
    not removed within the 18-month period, the court may grant an
    extension of time for the action to remain on the Reserve Calendar.
    A motion for an extension of time shall be made at least 30 days
    prior to the expiration of the 18-month period.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 84                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 84. Suspension Calendar

-STATUTE-
      (a) Suspension Calendar. A Suspension Calendar is established on
    which an action described in 28 U.S.C. Secs. 1581(a) and (b) may be
    suspended, by order of the court, pending the final determination
    of a test case.
      (b) Test Case Defined. A test case is an action, selected from a
    number of other pending actions all involving a significant issue
    of fact or question of law that is the same, and which is intended
    to proceed first to final determination to serve as a test of the
    right to recovery in the other actions. A test case may be so
    designated by order of the court upon a motion for test case
    designation after issue is joined.
      (c) Motion for Test Case Designation. A party who intends that an
    action be designated a test case shall: (1) consult with all other
    parties to the action in accordance with Rule 7(b), and (2) serve
    upon the other parties, and file with the court a motion requesting
    such designation. The motion for test case designation shall
    include a statement that the party: (1) intends to actively
    prosecute the test case once designated, and (2) has other actions
    pending before the court that involve the same significant issue of
    fact or question of law as is involved in the test case and that it
    will promptly suspend under the test case. In any instance in which
    the consent of all other parties has not been obtained, a
    non-consenting party shall serve and file its response within 10
    days after service of the motion for test case designation, setting
    forth its reasons for opposing.
      (d) Suspension Criteria. An action may be suspended under a test
    case if the action involves a significant issue of fact or a
    question of law which is the same as a significant issue of fact or
    question of law involved in the test case.
      (e) Motion for Suspension. A motion for suspension shall include,
    in addition to the requirements of Rule 7, (1) the title and court
    number of the action for which suspension is requested, (2) the
    title and court number of the test case, and (3) a statement of the
    significant issue of fact or question of law alleged to be the same
    in both actions.
      (f) Time. A motion for suspension may be made at any time, and
    may be joined with a motion for designation of a test case as
    prescribed by subdivision (c) of this rule.
      (g) Effect of Suspension. An order suspending an action shall
    stay all further proceedings and filing of papers in the suspended
    action unless the court otherwise directs.
      (h) Removal From Suspension. A suspended action may be removed
    from the Suspension Calendar only upon a motion for removal. A
    motion for removal may be granted solely for the purpose of moving
    the action toward final disposition. An order granting a motion for
    removal shall specify the terms, conditions and period of time
    within which the action shall be finally disposed.

-SOURCE-
    (As amended Sept. 25, 1992, eff. Jan. 1, 1993; Aug. 29, 2000, eff.
    Jan. 1, 2001.)

-End-



-CITE-
    28 USC APPENDIX Rule 85                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 85. Suspension Disposition Calendar

-STATUTE-
      (a) Suspension Disposition Calendar. A Suspension Disposition
    Calendar is established on which an action which was suspended
    under a test case shall be placed after the test case is finally
    determined, dismissed or discontinued.
      (b) Time - Notice. The court shall notify the parties when a test
    case has finally been determined, dismissed or discontinued. After
    consultation with the parties, the court shall then enter an order
    providing for a period of time for the removal of an action from
    the Suspension Disposition Calendar.
      (c) Removal. An action may be removed from the Suspension
    Disposition Calendar upon: (1) filing of a complaint, (2) filing of
    a demand for an answer when a complaint previously was filed, (3)
    granting of a motion for consolidation pursuant to Rule 42, (4)
    granting of a motion for suspension under another test case
    pursuant to Rule 84, (5) filing of a stipulation for judgment on
    agreed statement of facts pursuant to Rule 58.1, (6) granting of a
    dispositive motion, (7) filing of a request for trial, or (8)
    granting of a motion for removal.
      (d) Dismissal for Lack of Prosecution. An action not removed from
    the Suspension Disposition Calendar within the established period
    shall be dismissed for lack of prosecution, and the clerk shall
    enter an order of dismissal without further direction of the court,
    unless a motion is pending. If a pending motion is denied and less
    than 10 days remain in which the action may remain on the
    Suspension Disposition Calendar, the action shall remain on the
    Suspension Disposition Calendar for 10 days from the date of entry
    of the order denying the motion.
      (e) Extension of Time. For good cause shown why the action was
    not removed within the period established by the court for the
    Suspension Disposition Calendar, the court may grant an extension
    of time for the action to remain on the Suspension Disposition
    Calendar. A motion for an extension of time shall be made at least
    30 days prior to the expiration of the established period.

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 86                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 86. [Reserved]

-STATUTE-

-SOURCE-
    (As amended Oct. 3, 1984, eff. Jan. 1, 1985; Sept. 25, 1992, eff.
    Jan. 1, 1993.)

-End-



-CITE-
    28 USC APPENDIX Rule 86.1                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 86.1. Judge's Directive

-STATUTE-
      A judge may regulate practice in any manner consistent with
    federal law and the rules of the court adopted under 28 U.S.C. Sec.
    2633(b). No sanction or other disadvantage may be imposed for
    noncompliance with any requirement not in federal law or these
    rules unless the alleged violator has been furnished in the
    particular case with actual notice of the requirement.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 82.1
    now will be identified as Rule 86.1. New Rule 82.1 is "Reserved."

-End-



-CITE-
    28 USC APPENDIX Rule 86.2                                   01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 86.2. Contempt

-STATUTE-
      A proceeding to adjudicate a person in civil contempt of court,
    including a case provided for in Rule 37(b), shall be commenced by
    the service of a motion or order to show cause. The affidavit upon
    which the motion or order to show cause is based shall set out with
    particularity the misconduct complained of, the claim, if any, for
    damages occasioned thereby, and such evidence as to the amount of
    damages as may be available to the moving party. A reasonable
    counsel fee, necessitated by the contempt proceeding, may be
    included as an item of damage. Where the alleged contemnor has
    appeared in the action by an attorney, the notice of motion or
    order to show cause and the papers upon which it is based may be
    served upon the contemnor's attorney; otherwise service shall be
    made personally, in the manner provided for the service of a
    complaint. If an order to show cause is sought, such order, may
    upon necessity shown therefor, embody a direction to a United
    States marshal to arrest the alleged contemnor and hold him in bail
    in an amount fixed by the order, conditioned for the contemnor's
    appearance at the hearing, and further conditioned that the alleged
    contemnor will be thereafter amenable to all orders of the court
    for surrender.
      If the alleged contemnor puts in issue the alleged misconduct or
    the damages thereby occasioned, the alleged contemnor shall, upon
    demand therefor, be entitled to have oral evidence taken thereon,
    either before the court or before a master appointed by the court.
    When by law such alleged contemnor is entitled to a trial by jury,
    the alleged contemnor shall make written demand therefor on or
    before the return day or adjourned day of the application;
    otherwise the alleged contemnor will be deemed to have waived a
    trial by jury.
      In the event the alleged contemnor is found to be in contempt of
    court, an order shall be made and entered (1) reciting or referring
    to the verdict or findings of fact upon which the adjudication is
    based; (2) setting forth the amount of the damages to which the
    complainant is entitled; (3) fixing the fine, if any, imposed by
    the court, which fine shall include the damages found, and naming
    the person to whom such fine shall be payable; (4) stating any
    other conditions, the performance whereof will operate to purge the
    contempt; and (5) directing the arrest of the contemnor by a United
    States marshal, and confinement until the performance of the
    condition fixed in the order and the payment of the fine, or until
    the contemnor be otherwise discharged pursuant to law. The order
    shall specify the place of confinement. No party shall be required
    to pay or to advance to the marshal any expenses for the upkeep of
    the prisoner. Upon such an order, no person shall be detained in
    prison by reason of nonpayment of the fine for a period exceeding 6
    months. A certified copy of the order committing the contemnor
    shall be sufficient warrant to the marshal for the arrest and
    confinement. The aggrieved party shall also have the same remedies
    against the property of the contemnor as if the order awarding the
    fine were a final judgment.
      In the event the alleged contemnor shall be found not guilty of
    the charges, the alleged contemnor shall be discharged from the
    proceeding.

-SOURCE-
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)


-MISC1-
                             PRACTICE COMMENT                         
      Pursuant to the renumbering of the Rules, the former Rule 63 now
    will be identified as Rule 86.2.

-End-



-CITE-
    28 USC APPENDIX Rule 87                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 87. Forms

-STATUTE-
      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.

-SOURCE-
    (Added Oct. 3, 1984, eff. Jan. 1, 1985.)

-End-



-CITE-
    28 USC APPENDIX Rule 88                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 88. Title

-STATUTE-
      These rules may be known and cited as the Rules of the United
    States Court of International Trade.

-SOURCE-
    (Added Oct. 3, 1984, eff. Jan. 1, 1985.)

-End-



-CITE-
    28 USC APPENDIX Rule 89                                     01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    TITLE XII - COURT CALENDARS

-HEAD-
    Rule 89. Effective Date

-STATUTE-
      (a) Effective Date of Original Rules. These rules shall take
    effect on November 1, 1980, the effective date of the Customs
    Courts Act of 1980. They govern all proceedings in actions
    commenced thereafter and 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 an injustice, in which event the former procedure applies.
    However, when a party is required or has been requested prior to
    the effective date of these rules to perform an act, pursuant to
    the Rules of the United States Customs Court in effect prior to the
    effective date of these rules, the act may still be performed in
    accordance with the rules in effect prior to the effective date of
    these rules.
      (b) Effective Date of Amendments. The amendments adopted by the
    court on November 4, 1981, shall take effect on January 1, 1982.
    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 amendment adopted by the
    court on December 29, 1982, shall take effect on January 1, 1983.
    It 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 amendment takes effect would not
    be feasible or would work injustice, in which event the former
    procedure applies.
      (d) Effective Date of Amendments.
      (1) The amendments adopted by the court on October 3, 1984, shall
    take effect on January 1, 1985. They govern all proceedings in
    actions brought after they take effect and also all further
    proceedings in actions then pending, except as provided for in
    paragraph (2) of this subdivision.
      (2)(A) Rule 16 shall apply to all actions assigned on or after
    the effective date of these amendments and may apply to any action
    assigned before the effective date at the discretion of the judge
    to whom the action is assigned.
      (B) As to pending actions, the amendments apply, except to the
    extent that in the opinion of the court their application 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
    court on June 19, 1985, shall take effect on October 1, 1985. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (f) Effective Date of Amendments. The amendments adopted by the
    court on July 21, 1986, shall take effect on October 1, 1986. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (g) Effective Date of Amendments. The amendments adopted by the
    court on December 3, 1986, shall take effect on March 1, 1987. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (h) Effective Date of Amendments. The amendments adopted by the
    court on April 28, 1987, shall take effect on June 1, 1987. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (i) Effective Date of Amendments. The amendments adopted by the
    court on July 28, 1988, shall take effect on November 1, 1988. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (j) Effective Date of Amendments. The amendments adopted by the
    court on October 3, 1990, shall take effect on January 1, 1991.
    They govern all proceedings in actions brought after they take
    effect and also all further proceedings in actions then pending,
    except to the extent 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.
      (k) Effective Date of Amendments. The amendments adopted by the
    court on March 1, 1991, shall take effect on March 1, 1991. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (l) Effective Date of Amendments. The amendments adopted by the
    court on September 25, 1992, shall take effect on January 1, 1993.
    They govern all proceedings in actions brought after they take
    effect and also all further proceedings in actions then pending,
    except to the extent 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.
      (m) Effective Date of Amendments. The amendments adopted by the
    court on October 5, 1994, shall take effect on January 1, 1995.
    They govern all proceedings in actions brought after they take
    effect and also all further proceedings in actions then pending,
    except to the extent 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.
      (n) Effective Date of Amendment. The amendment to the court's
    Schedule of Fees adopted June 1, 1995 shall take effect on June 1,
    1995. It shall govern all proceedings in actions brought after it
    takes effect and also all further proceedings in actions then
    pending, except to the extent in the opinion of the court its
    application in a particular action pending when the amendment takes
    effect would not be feasible or would work injustice, in which
    event the former schedule applies.
      (o) Effective Date of Amendments. The amendments adopted by the
    court on November 29, 1995 shall take effect on March 31, 1996.
    They govern all proceedings in actions brought after they take
    effect and also all further proceedings in actions then pending,
    except to the extent 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.
      (p) Effective Date of Amendments. The amendments adopted by the
    court on August 29, 1997 shall take effect on November 1, 1997.
    They govern all proceedings in actions brought on or after they
    take effect.
      (q) Effective Date of Amendments. The amendments adopted by the
    court on November 14, 1997 shall take effect on January 1, 1998.
    They govern all proceedings in actions brought after they take
    effect and also all further proceedings in actions then pending,
    except to the extent 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.
      (r) Effective Date of Amendments. The amendments adopted by the
    court on March 25, 1998 shall take effect on July 1, 1998. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (s) Effective Date of Amendments. The amendments adopted by the
    court on May 27, 1998 shall take effect on September 1, 1998. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (t) Effective Date of Amendments. The amendments adopted by the
    court on January 25, 2000 shall take effect on May 1, 2000. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (u) Effective Date of Amendments. The amendments adopted by the
    court on August 29, 2000 shall take effect on January 1, 2001. They
    govern all proceedings in actions brought after they take effect
    and also all further proceedings in actions then pending, except to
    the extent 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.
      (v) Effective Date of Amendments.
      (1) The amendments adopted by the court on December 18, 2001
    shall take effect on April 1, 2002. They govern all proceedings in
    actions brought after they take effect and also all further
    proceedings in actions then pending, except as provided for in
    paragraph (2) of this subdivision, and except to the extent 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.
      (2) The amendments to Rule 26 shall apply to all pending actions
    on the effective date, except those commenced under 28 U.S.C. Sec.
    1581(a) or (b) in which case the provisions of the Rule shall apply
    only to those actions in which a complaint is filed after the
    effective date.
      (w) Effective Date of Amendments. The amendments adopted by the
    court on September 30, 2003 shall take effect on January 1, 2004.
    They govern all proceedings in actions brought after they take
    effect and also all further proceedings in actions then pending,
    except to the extent 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.

-SOURCE-
    (Added Nov. 4, 1981, eff. Jan. 1, 1982; and amended Dec. 29, 1982,
    eff. Jan. 1, 1983; Oct. 3, 1984, eff. Jan. 1, 1985; June 19, 1985,
    eff. Oct. 1, 1985; July 21, 1986, eff. Oct. 1, 1986; Dec. 3, 1986,
    eff. Mar. 1, 1987; Apr. 28, 1987, eff. June 1, 1987; July 28, 1988,
    eff. Nov. 1, 1988; Oct. 3, 1990, eff. Jan. 1, 1991; Mar. 1, 1991,
    eff. Mar. 1, 1991; Sept. 25, 1992, eff. Jan. 1, 1993; Oct. 5, 1994,
    eff. Jan. 1, 1995; June 1, 1995, eff. June 1, 1995; Nov. 29, 1995,
    eff. Mar. 31, 1996; Aug. 29, 1997, eff. Nov. 1, 1997; Nov. 14,
    1997, eff. Jan. 1, 1998; Mar. 25, 1998, eff. July 1, 1998; May 27,
    1998, eff. Sept. 1, 1998; Jan. 25, 2000, eff. May 1, 2000; Aug. 29,
    2000, eff. Jan. 1, 2001; Dec. 18, 2001, eff. Apr. 1, 2002; Sept.
    30, 2003, eff. Jan. 1, 2004.)

-End-


-CITE-
    28 USC APPENDIX                                            01/19/04

-EXPCITE-
    TITLE 28 - APPENDIX
    RULES OF THE UNITED STATES COURT OF INTERNATIONAL TRADE
    APPENDIX OF FORMS

-HEAD-
    
-MISC1-
                             APPENDIX OF FORMS                         
    General Instructions
    Specific Instructions
    Complaint Allegations


     Forms                                                  Rule        
    --------------------------------------------------------------------
          1    Summons in 28 U.S.C. Sec. 1581(a)    3(a)(1)             
         1A    Notice of Lawsuit and Request        4(d)(2)             
                for Waiver of Service of Summons                        
         1B    Waiver of Service of Summons         4(d)(2)             
          2    Summons in 28 U.S.C. Sec. 1581(b)    3(a)(1)             
          3    Summons in 28 U.S.C. Sec. 1581(c)    3(a)(2)             
          4    General Summons                      3(a)                
          5    Information Statement                3(b)                
          6    Request for Trial                    40(a)               
          7    Notice of Dismissal                  41(a)(1)(A)         
         7A    Notice of Dismissal                  41(a)(1)(A)         
          8    Stipulation of Dismissal             41(a)(1)(B)         
         8A    Stipulation of Dismissal             41(a)(1)(B)         
          9    Stipulated Judgment on Agreed        58.1                
                Statement of Facts                                      
         10    Application for Admission            74(b)               
         11    Notice of Appearance                 75(b)(2)            
         12    Notice of Substitution of            75(c)               
                Attorney                                                
         13    Disclosure of Corporate              Practice Comments   
                Affiliations and Financial           to Rules 3, 24, 76 
                Interest                                                
         14    Reserved.                                                
         15    Application for Fees and Other       54.1                
                Expenses Pursuant to the Equal                          
                Access to Justice Act                                   
       16-1    Order [For Day-of-Deposit to         67.1                
                Day-of-Withdrawal]                                      
       16-2    Order [For Money Market or           67.1                
                Management]                                             
       16-3    Order [For Certificate of            67.1                
                Deposit]                                                
       16-4    Order [For Treasury Bills]           67.1                
       16-5    Order [For Return of Money]          67.1                
         17    Business Proprietary Information     73.2(c)             
                Certification                                           
         18    Notice of Termination of Access      73.2(c)             
                to Business Proprietary                                 
                Information                                             
         19    Report of Parties' Planning          26(f)               
                Conference                                              
         20    Subpoena                             45                  
        M-1    Order of Referral to Mediation       16.1                
        M-2    Order of Report of Mediation         16.1                
    --------------------------------------------------------------------

                           GENERAL INSTRUCTIONS                       
      1. The forms contained in this Appendix of Forms are intended for
    use as samples, except for those forms which, when required, are to
    be obtained from the office of the clerk, viz., Forms 5, 10 and 13.
      2. No attempt is made to furnish a manual of forms; and the forms
    are limited in number. For other forms, reference may be made when
    appropriate to the Appendix of Forms to the Federal Rules of Civil
    Procedure.
      3. Except when otherwise indicated, each pleading and other paper
    must have a caption similar to that of the summons, with the
    designation of the particular paper substituted for the word,
    "Summons."
      4. In the caption of the summons and of the complaint, all
    parties must be named; but in other pleadings and papers, it is
    sufficient to name the first party on either side, with an
    appropriate indication of other parties.
      5. A motion must contain a designation below the caption
    indicating the nature of the motion, e.g., "DEFENDANT'S MOTION FOR
    SUMMARY JUDGMENT." A response to a motion, or a reply to a response
    when allowed, must contain a similar designation.
      6. Papers filed after an action is commenced must set out to the
    right of the caption: the court number assigned to the action; the
    court calendar (Reserve, Suspension, or Suspension Disposition
    Calendar) on which the action is listed; and, if the action has
    been assigned, the name of the judge to whom it is assigned.
      7. Each pleading or other paper is to be signed in the attorney's
    individual name by at least one attorney of record. The attorney's
    name is to be followed by the attorney's mailing address and
    telephone number. If the attorney of record is a firm of attorneys,
    the firm name, and the name of the individual attorney responsible
    for the litigation, must appear on every pleading or other paper. A
    party represented by more than one attorney of record must
    designate only one attorney of record to serve, file and receive
    service of pleadings and other papers on behalf of the party. If an
    individual is not represented by an attorney, the signature,
    mailing address, and telephone number of the individual are
    required in place of those of an attorney.
      8. When a summons, pleading or other paper includes a schedule of
    actions, the schedule must:
          a. not list both assigned and unassigned actions;
          b. not include actions assigned to more than one judge;
          c. list the actions in numerical order;
          d. indicate the court calendar, if any, in which the action
            is pending; and
          e. list the protest or customs numbers in numerical order.

-SOURCE-
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 23, 1993, eff.
    July 23, 1993.)

-HEAD-
                           SPECIFIC INSTRUCTIONS                       
    Form 1
      This form of summons is to be used only in those actions
    described in 28 U.S.C. Sec. 1581(a).
      The summons must be filed together with a $120 filing fee, a
    completed Information Statement (Form 5), and a completed
    Disclosure of Corporate Affiliation and Financial Interest (Form
    13).
      The summons form (copies of which may be obtained from the office
    of the clerk) consists of three pages. The first page is to be
    completed with the required information pertaining to the denied
    protest. The second page is to be completed with the required
    information pertaining to the administrative decision contested in
    the action. The third page is to be completed with a schedule of
    protests, listed in numerical order, when more than one denied
    protest is included in the action.
      When the action includes protests denied at one port of entry,
    the original and four copies of the summons must be filed. When the
    action includes protests denied at more than one port of entry, an
    additional copy of the summons must be filed at the same time for
    the protests denied at each such additional port of entry.

-SOURCE-
    (As amended July 23, 1993, eff. July 23, 1993.)
    Form 1A
      A Notice of Lawsuit and Request for Waiver of Service of Summons
    which, as previously prescribed by Rule 4(d), shall be addressed
    directly to a defendant and sent by first-class mail or other
    reliable means. The defendant shall be allowed a reasonable period
    of time to return the waiver (Form 1B).
      Plaintiff shall provide the defendant with a stamped and
    addressed return envelope. Plaintiff also shall provide the
    defendant with a copy of the waiver for defendant's records.
      Upon receipt of the signed waiver, plaintiff shall file the
    waiver with the court.
      If the waiver is timely returned by the defendant, that
    defendant, if located within any judicial district in the United
    States, is not required to serve an answer until 60 days after the
    date on which the request for the waiver was sent.
    (Added Oct. 5, 1994, eff. Jan. 1, 1995.)
    Form 1B
      A Waiver of Service of Summons which, as prescribed by Rule 4(d),
    shall be returned to a plaintiff who has requested a defendant to
    waive service.
      If a defendant, after being notified of an action and asked to
    waive service, fails to do so, that defendant will be required to
    bear the cost of service unless good cause can be shown for its
    failure to sign and return the waiver.
      If the waiver is timely returned by the defendant, that
    defendant, if located within any judicial district of the United
    States, is not required to serve an answer until 60 days after the
    date on which the request for the waiver was sent.
    (Added Oct. 5, 1994, eff. Jan. 1, 1995.)
    Form 2
      This form of summons is to be used only in those actions
    described in 28 U.S.C. Sec. 1581(b).
      The summons must be filed together with a $150 filing fee, a
    completed Information Statement (Form 5), and a completed
    Disclosure of Corporate Affiliation and Financial Interest (Form
    13).
      The summons form (copies of which may be obtained from the office
    of the clerk) consists of two pages. The first page is to be
    completed with the required information pertaining to the entry
    involved in the action. The second page is to be completed with the
    required information pertaining to the administrative decisions
    contested in the action.
      When one action includes entries involving one consignee and one
    port of entry, the original and five copies of the summons must be
    filed. When the action includes entries involving more than one
    consignee or more than one port of entry, an additional copy of the
    summons must be filed at the same time for each such additional
    consignee and each such additional port of entry.
    (As amended July 23, 1993, eff. July 23, 1993; Dec. 18, 2001, eff.
    Apr. 1, 2002.)
    Form 3
      This form of summons is to be used only in those actions
    described in 28 U.S.C. Sec. 1581(c). It is to be used both: (1)
    when the action is commenced by filing a summons only (i.e., to
    contest a determination listed in section 516A(a)(2) or (3) of the
    Tariff Act of 1930); and (2) when the action is commenced by filing
    concurrently a summons and a complaint (i.e., to contest a
    determination listed in section 516A(a)(1) of the Tariff Act of
    1930).
      The summons must be filed together with a $150 filing fee, a
    completed Information Statement (Form 5), and a completed
    Disclosure of Corporate Affiliation and Financial Interest (Form
    13).
      When the clerk of the court is required to make service of the
    summons (i.e., those actions commenced by filing a summons only),
    the original and one copy of the summons must be filed with an
    additional copy for each defendant to be served; and the back of
    the summons must list the complete name and mailing address of each
    defendant to be served.
      When the plaintiff is required to make service of the summons
    (i.e., those actions commenced by filing concurrently a summons and
    a complaint), the original and one copy of the summons must be
    filed with proof of service. Before making service of the summons,
    plaintiff must obtain a court number from the office of the clerk
    and endorse the number on the summons. For this purpose, a court
    number may be assigned to the action and obtained by telephone
    request, but in no event shall a court number be obtained from the
    office of the clerk more than 24 hours prior to the service of the
    summons.
    (As amended July 21, 1986, eff. Oct. 1, 1986; July 23, 1993, eff.
    July 23, 1993; Aug. 29, 2000, eff. Jan. 1, 2001.)
    Form 4
      This form of summons is to be used in all actions other than
    those actions in which the form of summons to be used is Form 1, 2,
    or 3.
      The original and one copy of the summons must be filed with proof
    of service, a $150 filing fee, except that a $25 filing fee shall
    be paid when the action is one described in 28 U.S.C. Sec.
    1581(d)(1), a completed Information Statement (Form 5), and a
    completed Disclosure of Corporate Affiliation and Financial
    Interest (Form 13). Before making service of the summons, plaintiff
    must obtain a court number from the office of the clerk and endorse
    the number on the summons. For this purpose, a court number may be
    assigned to the action and obtained by telephone request, but in no
    event shall a court number be obtained from the office of the clerk
    more than 24 hours prior to the service of the summons.
    (As amended July 23, 1993, eff. July 23, 1993; Dec. 18, 2001, eff.
    Apr. 1, 2002.)
    Form 5
      The Information Statement, which must be filed when an action is
    commenced, is a form available from the office of the clerk. The
    original and a sufficient number of copies for service (when
    service is to be made by the Office of the Clerk) of the completed
    Information Statement must be filed.
    (As amended Aug. 29, 2000, eff. Jan. 1, 2001.)
    Form 6
      The original and one copy of a Request for Trial must be filed
    after service as prescribed in Rule 40(a).
      After receipt of a Request for Trial and any opposition to the
    request, the court will designate the date and place for trial. As
    prescribed in Rule 77(c), the judge to whom the action is assigned
    will designate the date of the trial to be held at, or continued
    to, New York City; and the chief judge will designate the place and
    date of the trial to be held at, or continued to, any place other
    than New York City.
      After receipt of a request for a trial at a place other than New
    York City and any opposition to the request, the chief judge may
    issue an order. The order, which will set the place and date of,
    and designate a judge to preside at, the trial will be issued to
    the parties by the clerk of the court at least 15 days before the
    scheduled date, or such shorter time as the chief judge may deem
    reasonable.
    (As amended July 23, 1993, eff. July 23, 1993.)
    Form 7
      In an action commenced under 28 U.S.C. Sec. 1581(a), 1581(b) or
    1582, a Notice of Dismissal which, as prescribed by Rule
    41(a)(1)(A), may be filed by plaintiff at any time before service
    of an answer or motion for summary judgment, must be substantially
    in the form set forth in Form 7, and must include for each action
    noticed for dismissal: the court number; and the name of the
    plaintiff. In addition, in an action commenced under section
    1581(a) or (b), the plaintiff is to include the protest number and
    the entry number, if applicable. In an action commenced under
    section 1582, the plaintiff also shall include the claim number, if
    applicable.
      A Notice of Dismissal may include, on an attached schedule, more
    than one action.
    (As amended July 23, 1993, eff. July 23, 1993; Dec. 18, 2001, eff.
    Apr. 1, 2002.)
    Form 7A
      In an action commenced other than under 28 U.S.C. Sec. 1581(a),
    1581(b) or 1582, a Notice of Dismissal which, as prescribed by Rule
    41(a)(1)(A), may be filed by plaintiff at any time before service
    of an answer or motion for summary judgment, must be substantially
    in the form set forth in Form 7A, and must include for each action
    noticed for dismissal the court number and the name of the
    plaintiff.
    (As added Dec. 18, 2001, eff. Apr. 1, 2002.)
    Form 8
      In an action commenced under 28 U.S.C. Sec. 1581(a), 1581(b) or
    1582, a Stipulation of Dismissal which, as prescribed by Rule
    41(a)(1)(B), may be filed by plaintiff, must be substantially in
    the form set forth in Form 8, and must include for each action
    stipulated for dismissal: the court number; and the name of the
    plaintiff. In addition, in an action commenced under section
    1581(a) or (b), the plaintiff is to include the protest number and
    the entry number, if applicable. In an action commenced under
    section 1582, the plaintiff also shall include the claim number, if
    applicable.
      A Stipulation of Dismissal may include, on an attached schedule,
    more than one action.
    (As amended July 23, 1993, eff. July 23, 1993; Dec. 18, 2001, eff.
    Apr. 1, 2002.)
    Form 8A
      In an action commenced other than under 28 U.S.C. Sec. 1581(a),
    1581(b) or 1582, a Stipulation of Dismissal which, as prescribed by
    Rule 41(a)(1)(B), may be filed by plaintiff, must be substantially
    in the form set forth in Form 8, and must include for each action
    stipulated for dismissal the court number and the name of the
    plaintiff.
    (As added Dec. 18, 2001, eff. Apr. 1, 2002.)
    Form 9
      As prescribed in Rule 58.1, an action described in 28 U.S.C. Sec.
    1581(a) or (b) may be stipulated for judgment on an agreed
    statement of facts.
      The proposed stipulated judgment on agreed statement of facts
    shall be substantially in the form set forth in Form 9, with
    appropriate additions and deletions if the action does not involve
    valuation or classification. The proposed stipulated judgment on
    agreed statement of facts shall be filled out in accordance with
    the Endnotes found following Form 9.
    (As amended Nov. 4, 1981, eff. Jan. 1, 1982; July 23, 1993, eff.
    July 23, 1993.)
    Form 10
      An Application for Admission to Practice, which is prescribed by
    Rule 74(b)(1), shall be completed and filed with the clerk of the
    court. The application shall be substantially in the form set forth
    in Form 10. The application shall include the name, the residential
    address, and the office address of the applicant, and the name and
    address of the applicant's employer.
      The application must be filed with a $50 admission fee. In
    addition to the fee, the applicant must file (1) the statement of
    the sponsoring attorney, who is a member of the bar of this court
    or of the bar of the Supreme Court of the United States, or in the
    alternative (2) a certificate of a judge or a clerk of any of the
    courts specified in Rule 75(a). This certificate shall state that
    the applicant is a member in good standing of the bar of that
    court.
    (Added July 23, 1993, eff. July 23, 1993; amended Mar. 25, 1998,
    eff. July 1, 1998.)
    Form 11
      A Notice of Appearance which, as prescribed by Rule 75(b)(2),
    shall be served by an attorney authorized to appear in the action.
    The attorney shall serve a separate notice for each action. The
    notice shall be served in all instances except those specified in
    Rule 75(b)(1). The notice shall be substantially in the form set
    forth in Form 11.
      An appearance may be made by an individual attorney or by a firm
    of attorneys. If an appearance is made by a firm of attorneys, the
    individual attorney responsible for the litigation shall be
    designated. The notice should include the name of the attorney, and
    the name, address and telephone number of the firm.
      Whenever there is any change in the name of an attorney of
    record, the attorney's address or telephone number, a new notice of
    appearance for each action shall be promptly served upon the other
    parties and filed with the court. The notice shall be substantially
    in the form as set forth in Form 11.
    (Added July 23, 1993, eff. July 23, 1993.)
    Form 12
      A Notice of Substitution of Attorney which, as prescribed by Rule
    75(c), must be served by the party desiring to substitute an
    attorney. The service must be to the prior attorney of record and
    to all other parties. The notice shall be substantially in the form
    set forth in Form 12.
      The notice should include the name of the substituted attorney,
    the prior attorney of record, and shall be signed by the
    substituting party. The notice also shall include a notice of
    appearance by the substituted attorney.
    (Added July 23, 1993, eff. July 23, 1993.)
    Form 13
      A Disclosure of Corporate Affiliation and Financial Interest
    which, as prescribed by 28 U.S.C. Sec. 455, must be made when a
    corporation is a party to any action and the corporation is a
    subsidiary or affiliate of any publicly-owned American or foreign
    corporation not named in the action. The attorney of record must
    notify the clerk of the court in writing of the identity of the
    parent or affiliate corporation and the relationship of the party
    and the parent or affiliate corporation.
      A Disclosure must be made in all actions described in 28 U.S.C.
    Sec. 1581. In an action described in 28 U.S.C. Sec. 1581(a) or (b),
    the attorney of record for the plaintiff also shall notify the
    clerk of the court in writing of the identity of the ultimate
    consignee or real party in interest if different from the named
    plaintiff.
      A Disclosure must be made when a trade association is a party to
    the action. The attorney for the trade association shall notify the
    clerk of the court in writing of the identity of each
    publicly-owned American or foreign member of the trade association.
      If any trade association or corporate party seeks to intervene or
    appear as amicus curiae, the entity's attorney is also required to
    comply with the notification requirements set forth above.
      The required disclosure notification shall be made on Form 13.
    The form will be provided by the office of the clerk of the court
    when the first pleading or other paper is filed by a party or when
    a motion to intervene or appear as amicus curaie is filed.
    (Added July 23, 1993, eff. July 23, 1993.)
    Form 14
      Reserved.
    (As added July 23, 1993, eff. July 23, 1993; and amended Oct. 5,
    1994, eff. Jan. 1, 1995.)
    Form 15
      An Application for Attorney's Fees and Other Expenses Pursuant to
    the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d) and Rule
    54.1, must be filed within 30 days after the date of entry by the
    court of a final judgment.
      The Application for Attorney's Fees and Expenses shall be
    substantially in the form set forth in Form 15. As prescribed by
    Rule 54.1, the application shall contain a citation to the
    authority which authorizes an award. The application shall indicate
    the manner in which the prerequisites for an award have been
    fulfilled. Each application shall also contain a statement, under
    oath, which specifies (1) the nature of each service rendered; (2)
    the amount of time expended in rendering each type of service; and
    (3) the customary charge for each type of service rendered.
    (Added July 23, 1993, eff. July 23, 1993; and amended Sept. 30,
    2003, eff. Jan. 1, 2004.)
    Forms 16-1 through 16-5
      An Order of Deposit and Investment directing the clerk to deposit
    money in an interest-bearing account, which as prescribed by Rule
    67.1, shall be filed by delivery or by certified mail, return
    receipt requested, with the clerk or financial deputy who will
    inspect the proposed order for proper form and content prior to
    signature by the judge for whom the proposed order was prepared.
    The proposed order shall be substantially in the form set forth in
    Form 16-1, 16-2, 16-3, 16-4, or 16-5.
      Any proposed order that directs the clerk to invest in an
    interest-bearing account or instrument funds deposited in the
    registry of the court pursuant to 28 U.S.C. Sec. 2401 also shall
    contain all information in accordance with Rule 67.1(b).
    (Added July 23, 1993, eff. July 23, 1993; and amended Sept. 30,
    2003, eff. Jan. 1, 2004.)
    Form 17
      As provided in Rule 73.2(c), the filing of a properly executed
    Business Proprietary Information Certification with the court
    entitles an attorney representing a party in an action brought
    pursuant to 28 U.S.C. Sec. 1581(c) to have access to business
    proprietary information in the administrative record. Further, as
    also provided in Rule 73.2(c), the filing of a properly executed
    Business Proprietary Information Certification (including the
    required additional certifications as detailed in Form 17) entitles
    a non-attorney consultant to have access to business proprietary
    information in such an action. The Business Proprietary Information
    Certification shall be substantially in the form set forth in Form
    17. Assuming that the properly executed Certification is timely
    filed, obtaining the consent of the other parties is not necessary
    for individuals who were subject to the administrative protective
    order in the underlying proceeding. Form 17 and the provisions
    referred to in the form are designed specifically for use in an
    action brought pursuant to 28 U.S.C. Sec. 1581(c), and are not
    intended for use in other actions.
    (Added Jan. 25, 2000, eff. May 1, 2000; and amended Sept. 30, 2003,
    eff. Jan. 1, 2004.)
    Form 18
      As provided in Rule 73.2(c), in an action brought pursuant to 28
    U.S.C. Sec. 1581(c) in which a party has access to business
    proprietary information, a Notification of Termination of Access to
    Business Proprietary Information Pursuant to Rule 73.2(c) is to be
    utilized to inform the court and the other parties of the attorneys
    and consultants whose access to business proprietary information
    has been terminated. As also provided in Rule 73.2(c), the removal
    of parties from access to business proprietary information is, to
    the extent practicable, to be a matter of notice. Use of a standard
    form is intended to facilitate that process and further ease the
    burden on any parties who are subject to the terms of Rule 73.2(c)
    and the Appendix on Access to Business Proprietary Information
    Pursuant to Rule 73.2(c). The Notification of Termination of Access
    to Business Proprietary Information Pursuant to Rule 73.2(c) shall
    be substantially in the form set forth in Form 18.
    (Added Jan. 25, 2000, eff. May 1, 2000; and amended Sept. 30, 2003,
    eff. Jan. 1, 2004.)
    Form 19
      Rule 26(f) requires the parties to confer "as soon as practicable
    after the filing of a complaint, and in any event at least 21 days
    before a scheduling conference is held or a scheduling order is due
    under Rule 16(b)..., and submi[t] to the court within 14 days after
    the conference a written report...." Form 19 illustrates the type
    of report the parties are expected to submit to the court, and it
    can be used as a checklist of items to be discussed at the
    conference.
    (Added Sept. 30, 2003, eff. Jan. 1, 2004.)

-HEAD-
                           COMPLAINT ALLEGATIONS                       
      The forms of allegations set out below are intended to indicate
    the allegations which should be included in the particular civil
    actions.
    Actions Described in 28 U.S.C. Sec. 1581(a) or (b)
      (a) General: The complaint in a civil action should set forth:
      (1) a statement of the basis of the court's jurisdiction;
      (2) a statement of plaintiff's standing in the action;
      (3) a statement that the protest was timely filed;
      (4) a statement, when appropriate, that all liquidated duties
    have been paid;
      (5) a description of the merchandise involved;
      (6) a specification of the contested customs decision or
    decisions; and
      (7) a demand for judgment for the relief which plaintiff seeks.
      (b) Value: If the contested customs decision involves the value
    of merchandise, the complaint should also set forth:
      (1) the date and country of exportation;
      (2) a statement of the appraised value or values;
      (3) a statement of the claimed statutory basis or bases of value;
      (4) a statement of the amount or amounts of the unit value
    claimed to be the correct value or values, or a statement of how
    the claimed value may be computed; and
      (5) concise allegations of plaintiff's contentions of fact and
    law in support of the above.
      (c) Classification: If the contested customs decision involves
    the classification of merchandise, the complaint should also set
    forth:
      (1) the item number of the Tariff Schedules of the United States,
    or the heading or subheading of the Harmonized Tariff Schedules of
    the United States, including all modifications and amendments
    thereof, under which the merchandise was classified, and the rate
    of duty imposed;
      (2) the tariff description and the item number of the Tariff
    Schedules of the United States, or the heading or subheading of the
    Harmonized Tariff Schedules of the United States, including all
    modifications and amendments thereof, under which the merchandise
    is claimed to be properly subject to classification, and the rate
    of duty claimed to be applicable; and
      (3) concise allegations of plaintiff's contentions of fact and
    law in support of the above.
      (d) Other: If the contested customs decision involves any other
    administrative decision, the complaint should also set forth:
      (1) a statement of the nature of the alleged error in the
    decision; and
      (2) concise allegations of plaintiff's contentions of fact and
    law in support of plaintiff's position.

-SOURCE-
    (As amended July 23, 1993, eff. July 23, 1993.)

-HEAD-
    Form 1

-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f1p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f1p2.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f1p3.gif" width=576 height=579 alt="Image of item"><p>

    Form 1A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f1A.gif" width=576 height=579 alt="Image of item"><p>

    (ADDED OCT. 5, 1994, EFF. JAN. 1, 1995; AMENDED NOV. 14, 1997, EFF.
                              JAN. 1, 1998.)
    Practice Comment
      The waiver of service provision under Rule 4(d) does not apply to the
    United States government. Practitioners also should be aware that failure
    to waive service in the appropriate circumstances may result in assessment
    of the costs of service of a summons and complaint.
    
    Form 1B


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f1Bp1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f1Bp2.gif" width=576 height=579 alt="Image of item"><p>

    Form 2


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f2p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f2p2.gif" width=576 height=579 alt="Image of item"><p>

    Form 3


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f3p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f3p2.gif" width=576 height=579 alt="Image of item"><p>

    Form 4


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f4.gif" width=576 height=579 alt="Image of item"><p>

    Form 5


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af5p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af5p2.gif" width=576 height=579 alt="Image of item"><p>

    Form 6


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f6.gif" width=576 height=579 alt="Image of item"><p>

    Form 7


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.032" width=576 height=579 alt="Image of item"><p>

    Form 7


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.033" width=576 height=579 alt="Image of item"><p>

    Form 7A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.034" width=576 height=579 alt="Image of item"><p>

    Form 7A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.035" width=576 height=579 alt="Image of item"><p>

    Form 8


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.036" width=576 height=579 alt="Image of item"><p>

    Form 8


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.037" width=576 height=579 alt="Image of item"><p>

    Form 8A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.038" width=576 height=579 alt="Image of item"><p>

    Form 8A


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.039" width=576 height=579 alt="Image of item"><p>

    Form 9


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f9p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f9p2.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f9p3.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f9p4.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f9p5.gif" width=576 height=579 alt="Image of item"><p>

    Form 10


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28f10p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28f10p2.gif" width=576 height=579 alt="Image of item"><p>

     (AS AMENDED NOV. 29, 1995, EFF. JAN. 1, 1996; MAR. 25, 1998, EFF.
                              JULY 1, 1998.)
    Form 11


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f11.gif" width=576 height=579 alt="Image of item"><p>

    Form 12


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f12.gif" width=576 height=579 alt="Image of item"><p>

    Form 13

-MISC1-
    Form 14


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.040" width=576 height=579 alt="Image of item"><p>

    Form 13


-MISC1-
<p><img src="http://uscode.house.gov/images/current/88912.041" width=576 height=579 alt="Image of item"><p>

    Form 15


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f15p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/t28f15p2.gif" width=576 height=579 alt="Image of item"><p>

    Form 16


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f16p1.gif" width=576 height=579 alt="Image of item"><p>

    Form 16-1


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f16p2.gif" width=576 height=579 alt="Image of item"><p>

    Form 16-2


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f16p3.gif" width=576 height=579 alt="Image of item"><p>

    Form 16-3


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f16p4.gif" width=576 height=579 alt="Image of item"><p>

    Form 16-4


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f16p5.gif" width=576 height=579 alt="Image of item"><p>

    Form 16-5


-MISC1-
<p><img src="http://uscode.house.gov/images/current/t28f16p6.gif" width=576 height=579 alt="Image of item"><p>

    Form 17


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af17p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af17p2.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af17p3.gif" width=576 height=579 alt="Image of item"><p>

    Form 18


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af18p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af18p2.gif" width=576 height=579 alt="Image of item"><p>

    Form 19


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af19p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af19p2.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af19p3.gif" width=576 height=579 alt="Image of item"><p>

    Form 20


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af20p1.gif" width=576 height=579 alt="Image of item"><p>


<p><img src="http://uscode.house.gov/images/current/28af20p2.gif" width=576 height=579 alt="Image of item"><p>

    Form M-1


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af20p3.gif" width=576 height=579 alt="Image of item"><p>

    Form M-2


-MISC1-
<p><img src="http://uscode.house.gov/images/current/28af20p4.gif" width=576 height=579 alt="Image of item"><p>


-End-