Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings(a) Findings and Conclusions. (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58 (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action. (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion. (4) Effect of a Master's Findings. A master's findings, to the extent adopted by the court, must be considered the court's findings. (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings. (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses’ credibility. (b) Amended or Additional Findings. On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings—or make additional findings—and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. (c) Judgment on Partial Findings. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). Notes (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29, 1985, eff. Aug. 1, 1985; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.) Notes of Advisory Committee on Rules—1937 See [former] Equity Rule 701/2, as amended Nov. 25, 1935 (Findings of Fact and Conclusions of Law), and U.S.C., Title 28, [former] §764 (Opinion, findings, and conclusions in action against United States) which are substantially continued in this rule. The provisions of U.S.C., Title 28, [former] §§773 (Trial of issues of fact; by court) and [former] 875 (Review in cases tried without a jury) are superseded insofar as they provide a different method of finding facts and a different method of appellate review. The rule stated in the third sentence of Subdivision (a) accords with the decisions on the scope of the review in modern federal equity practice. It is applicable to all classes of findings in cases tried without a jury whether the finding is of a fact concerning which there was conflict of testimony, or of a fact deduced or inferred from uncontradicted testimony. See Silver King Coalition Mines, Co. v. Silver King Consolidated Mining Co., 204 Fed. 166 (C.C.A.8th, 1913), cert. den. 229 U.S. 624 (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) §364; California, Code Civ.Proc. (Deering, 1937) §§632, 634; Colorado, 1 Stat.Ann. (1935) Code Civ.Proc. §§232, 291 (in actions before referees or for possession of and damages to land); Connecticut, Gen.Stats. §§5660, 5664; Idaho, 1 Code Ann. (1932) §§7–302 through 7–305; Massachusetts (equity cases), 2 Gen.Laws (Ter.Ed., 1932) ch. 214, §23; Minnesota, 2 Stat. (Mason, 1927) §9311; Nevada, 4 Comp.Laws (Hillyer, 1929) §8783–8784; New Jersey, Sup.Ct. Rule 113, 2 N.J.Misc. 1197, 1239 (1924); New Mexico, Stat.Ann. (Courtright, 1929) §105–813; North Carolina, Code (1935) §569; North Dakota, 2 Comp.Laws Ann. (1913) §7641; Oregon, 2 Code Ann. (1930) §2–502; South Carolina, Code (Michie, 1932) §649; South Dakota, 1 Comp.Laws (1929) §§2525–2526; Utah, Rev.Stat.Ann. (1933) §104–26–2, 104–26–3; Vermont (where jury trial waived), Pub. Laws (1933) §2069; Washington, 2 Rev.Stat.Ann. (Remington, 1932) §367; Wisconsin, Stat. (1935) §270.33. The parties may waive this requirement for findings in California, Idaho, North Dakota, Nevada, New Mexico, Utah, and South Dakota. In the following states the review of findings of fact in all non-jury cases, including jury waived cases, is assimilated to the equity review: Alabama, Code Ann. (Michie, 1928) §§9498, 8599; California, Code Civ.Proc. (Deering, 1937) §956a; but see 20 Calif.Law Rev. 171 (1932); Colorado, Johnson v. Kountze, 21 Colo. 486, 43 Pac. 445 (1895), semble; Illinois, Baker v. Hinricks, 359 Ill. 138, 194 N.E. 284 (1934), Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 195 N.E. 420, 98 A.L.R. 169 (1935); Minnesota, State Bank of Gibbon v. Walter, 167 Minn. 37, 38, 208 N.W. 423 (1926), Waldron v. Page, 191 Minn. 302, 253 N.W. 894 (1934); New Jersey, N.J.Comp.Stat. (2 Cum.Supp. 1911–1924) Title 163, §303, as interpreted in Bussy v. Hatch, 95 N.J.L. 56, 111 A. 546 (1920); New York, York Mortgage Corporation v. Clotar Const. Corp., 254 N.Y. 128, 133, 172 N.E. 265 (1930); North Dakota, Comp.Laws Ann. (1913) §7846, as amended by N.D.Laws 1933, ch. 208, Milnor Holding Co. v. Holt, 63 N.D. 362, 370, 248 N.W. 315 (1933); Oklahoma, Wichita Mining and Improvement Co. v. Hale, 20 Okla. 159, 167, 94 Pac. 530 (1908); South Dakota, Randall v. Burk Township, 4 S.D. 337, 57 N.W. 4 (1893); Texas, Custard v. Flowers, 14 S.W.2d 109 (1929); Utah, Rev.Stat.Ann. (1933) §104–41–5; Vermont, Roberge v. Troy, 105 Vt. 134, 163 Atl. 770 (1933); Washington, 2 Rev.Stat.Ann. (Remington, 1932) §§309–316; McCullough v. Puget Sound Realty Associates, 76 Wash. 700, 136 Pac. 1146 (1913), but see Cornwall v. Anderson, 85 Wash. 369, 148 Pac. 1 (1915); West Virginia, Kinsey v. Carr, 60 W.Va. 449, 55 S.E. 1004 (1906), semble; Wisconsin, Stat. (1935) §251.09; Campbell v. Sutliff, 193 Wis. 370, 214 N.W. 374 (1927), Gessler v. Erwin Co., 182 Wis. 315, 193 N.W. 363 (1924). For examples of an assimilation of the review of findings of fact in cases tried without a jury to the review at law as made in several states, see Clark and Stone, Review of Findings of Fact, 4 U. of Chi.L.Rev. 190, 215 (1937). 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 §2587, at 740 (1971) (language of the Rule is clear), with 5A J. Moore, Federal Practice  52.04, 2687–88 (2d ed. 1982) (Rule as written supports broader review of findings based on non-demeanor testimony). The Supreme Court has not clearly resolved the issue. See, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 1958 (1984); Pullman Standard v. Swint, 456 U.S. 273, 293 (1982); United States v. General Motors Corp., 384 U.S. 127, 141 n. 16 (1966); United States v. United States Gypsum Co., 333 U.S. 364, 394 –96 (1948). The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial court's assessment of credibility of the witnesses but on an evaluation of documentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial court's findings. These considerations are outweighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority. 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. Committee Notes on Rules—2007 Amendment The language of Rule 52 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 52(a) said that findings are unnecessary on decisions of motions “except as provided in subdivision (c) of this rule.” Amended Rule 52(a)(3) says that findings are unnecessary “unless these rules provide otherwise.” This change reflects provisions in other rules that require Rule 52 findings on deciding motions. Rules 23(e), 23(h), and 54(d)(2)(C) are examples. Amended Rule 52(a)(5) includes provisions that appeared in former Rule 52(a) and 52(b). Rule 52(a) provided that requests for findings are not necessary for purposes of review. It applied both in an action tried on the facts without a jury and also in granting or refusing an interlocutory injunction. Rule 52(b), applicable to findings “made in actions tried without a jury,” provided that the sufficiency of the evidence might 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.” Former Rule 52(b) did not explicitly apply to decisions granting or refusing an interlocutory injunction. Amended Rule 52(a)(5) makes explicit the application of this part of former Rule 52(b) to interlocutory injunction decisions. Former Rule 52(c) provided for judgment on partial findings, and referred to it as “judgment as a matter of law.” Amended Rule 52(c) refers only to “judgment,” to avoid any confusion with a Rule 50 judgment as a matter of law in a jury case. The standards that govern judgment as a matter of law in a jury case have no bearing on a decision under Rule 52(c). Committee Notes on Rules—2009 Amendment Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period. Changes Made after Publication and Comment. The 30-day period proposed in the August 2007 publication is shortened to 28 days.


Rule 82. Jurisdiction and Venue UnaffectedThese rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is governed by 28 U.S.C § 1390.Notes(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 23, 2001, eff. Dec. 1, 2001; Apr. 30, 2007, eff. Dec. 1, 2007; Apr. 28, 2016, eff. Dec 1, 2016.)Notes of Advisory Committee on Rules—1937These 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 AmendmentThe change in nomenclature conforms to the official designation of district courts in Title 28, U.S.C., §132(a).Notes of Advisory Committee on Rules—1966 AmendmentTitle 28, U.S.C. §1391(b) provides: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.” This provision cannot appropriately be applied to what were formerly suits in admiralty. The rationale of decisions holding it inapplicable rests largely on the use of the term “civil action”; i.e., a suit in admiralty is not a “civil action” within the statute. By virtue of the amendment to Rule 1, the provisions of Rule 2 convert suits in admiralty into civil actions. The added sentence is necessary to avoid an undesirable change in existing law with respect to venue.Committee Notes on Rules—2001 AmendmentThe final sentence of Rule 82 is amended to delete the reference to 28 U.S.C. §1393, which has been repealed.Style CommentThe 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.Committee Notes on Rules—2007 AmendmentThe language of Rule 82 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.Committee Notes on Rules—2016 AmendmentRule 82 is amended to reflect the enactment of 28 U.S.C . § 1390 and the repeal of § 1392.


Rule 2. One Form of ActionThere is one form of action—the civil action. Notes (As amended Apr. 30, 2007, eff. Dec. 1, 2007.) Notes of Advisory Committee on Rules—1937 1. This rule modifies U.S.C., Title 28, [former] §384 (Suits in equity, when not sustainable). U.S.C., Title 28, §§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 §723b [see 2072] (Rules in actions at law; Supreme Court authorized to make) are continued insofar as they are not inconsistent with §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] §§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) §62; N.Y.C.P.A. (1937) §8; Calif.Code Civ.Proc. (Deering, 1937) §307; 2 Minn.Stat. (Mason, 1927) §9164; 2 Wash.Rev.Stat.Ann. (Remington, 1932) §§153, 255. Committee Notes on Rules—2007 Amendment The language of Rule 2 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.


Rule 36. Requests for Admission(a) Scope and Procedure. (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. (2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court. (4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. (5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial. (6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses. (b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding. Notes (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.) 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, §182 and Rule 18 (Ill.Rev.Stat. (1937) ch. 110, §259.18); 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, §69; Mich.Court Rules Ann. (Searl, 1933) Rule 42; N.J.Comp.Stat. (2 Cum.Supp. 1911–1924) N.Y.C.P.A. (1937) §§322, 323; Wis.Stat. (1935) §327.22. 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  36.04 (2d ed. 1966); cf. 2A Barron & Holtzoff, Federal Practice and Procedure 317 (Wright ed. 1961), but an admission on a matter of opinion may facilitate proof or narrow the issues or both. An admission of a matter involving the application of law to fact may, in a given case, even more clearly narrow the issues. For example, an admission that an employee acted in the scope of his employment may remove a major issue from the trial. In McSparran v. Hanigan, supra, plaintiff admitted that “the premises on which said accident occurred, were occupied or under the control” of one of the defendants, 225 F.Supp. at 636. This admission, involving law as well as fact, removed one of the issues from the lawsuit and thereby reduced the proof required at trial. The amended provision does not authorize requests for admissions of law unrelated to the facts of the case. Requests for admission involving the application of law to fact may create disputes between the parties which are best resolved in the presence of the judge after much or all of the other discovery has been completed. Power is therefore expressly conferred upon the court to defer decision until a pretrial conference is held or until a designated time prior to trial. On the other hand, the court should not automatically defer decision; in many instances, the importance of the admission lies in enabling the requesting party to avoid the burdensome accumulation of proof prior to the pretrial conference. Courts have also divided on whether an answering party may properly object to request for admission as to matters which that party regards as “in dispute.” Compare, e.g., Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910, 917 (2d Cir. 1959); Driver v. Gindy Mfg. Corp., 24 F.R.D. 473 (E.D.Pa. 1959); with e.g., McGonigle v. Baxter, 27 F.R.D. 504 (E.D.Pa. 1961); United States v. Ehbauer, 13 F.R.D. 462 (W.D.Mo. 1952). The proper response in such cases is an answer. The very purpose of the request is to ascertain whether the answering party is prepared to admit or regards the matter as presenting a genuine issue for trial. In his answer, the party may deny, or he may give his reason for inability to admit or deny the existence of a genuine issue. The party runs no risk of sanctions if the matter is genuinely in issue, since Rule 37(c) provides a sanction of costs only when there are no good reasons for a failure to admit. On the other hand, requests to admit may be so voluminous and so framed that the answering party finds the task of identifying what is in dispute and what is not unduly burdensome. If so, the responding party may obtain a protective order under Rule 26(c). Some of the decisions sustaining objections on “disputability” grounds could have been justified by the burdensome character of the requests. See, e.g., Syracuse Broadcasting Corp. v. Newhouse, supra. Another sharp split of authority exists on the question whether a party may base his answer on lack of information or knowledge without seeking out additional information. One line of cases has held that a party may answer on the basis of such knowledge as he has at the time he answers. E.g., Jackson Buff Corp. v. Marcelle, 20 F.R.D. 139 (E.D.N.Y. 1957); Sladek v. General Motors Corp., 16 F.R.D. 104 (S.D.Iowa 1954). A larger group of cases, supported by commentators, has taken the view that if the responding party lacks knowledge, he must inform himself in reasonable fashion. E.g., Hise v. Lockwood Grader Corp., 153 F.Supp. 276 (D.Nebr. 1957); E. H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D.Pa. 1954); Finman, supra, 71 Yale L.J. 371, 404–409; 4 Moore's Federal Practice  36.04 (2d ed. 1966); 2A Barron & Holtzoff, Federal Practice and Procedure 509 (Wright ed. 1961). The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not have the burden of “proving” the other side's case. The revised rule requires only that the answering party make reasonable inquiry and secure such knowledge and information as are readily obtainable by him. In most instances, the investigation will be necessary either to his own case or to preparation for rebuttal. Even when it is not, the information may be close enough at hand to be “readily obtainable.” Rule 36 requires only that the party state that he has taken these steps. The sanction for failure of a party to inform himself before he answers lies in the award of costs after trial, as provided in Rule 37(c). The requirement that the answer to a request for admission be sworn is deleted, in favor of a provision that the answer be signed by the party or by his attorney. The provisions of Rule 36 make it clear that admissions function very much as pleadings do. Thus, when a party admits in part and denies in part, his admission is for purposes of the pending action only and may not be used against him in any other proceeding. The broadening of the rule to encompass mixed questions of law and fact reinforces this feature. Rule 36 does not lack a sanction for false answers; Rule 37(c) furnishes an appropriate deterrent. The existing language describing the available grounds for objection to a request for admission is eliminated as neither necessary nor helpful. The statement that objection may be made to any request, which is “improper” adds nothing to the provisions that the party serve an answer or objection addressed to each matter and that he state his reasons for any objection. None of the other discovery rules set forth grounds for objection, except so far as all are subject to the general provisions of Rule 26. Changes are made in the sequence of procedures in Rule 36 so that they conform to the new procedures in Rules 33 and 34. The major changes are as follows: (1) The normal time for response to a request for admissions is lengthened from 10 to 30 days, conforming more closely to prevailing practice. A defendant need not respond, however, in less than 45 days after service of the summons and complaint upon him. The court may lengthen or shorten the time when special situations require it. (2) The present requirement that the plaintiff wait 10 days to serve requests without leave of court is eliminated. The revised provision accords with those in Rules 33 and 34. (3) The requirement that the objecting party move automatically for a hearing on his objection is eliminated, and the burden is on the requesting party to move for an order. The change in the burden of going forward does not modify present law on burden of persuasion. The award of expenses incurred in relation to the motion is made subject to the comprehensive provisions of Rule 37(a)(4). (4) A problem peculiar to Rule 36 arises if the responding party serves answers that are not in conformity with the requirements of the rule—for example, a denial is not “specific,” or the explanation of inability to admit or deny is not “in detail.” Rule 36 now makes no provision for court scrutiny of such answers before trial, and it seems to contemplate that defective answers bring about admissions just as effectively as if no answer had been served. Some cases have so held. E.g., Southern Ry. Co. v. Crosby, 201 F.2d 878 (4th Cir. 1953); United States v. Laney, 96 F.Supp. 482 (E.D.S.C. 1951). Giving a defective answer the automatic effect of an admission may cause unfair surprise. A responding party who purported to deny or to be unable to admit or deny will for the first time at trial confront the contention that he has made a binding admission. Since it is not always easy to know whether a denial is “specific” or an explanation is “in detail,” neither party can know how the court will rule at trial and whether proof must be prepared. Some courts, therefore, have entertained motions to rule on defective answers. They have at times ordered that amended answers be served, when the defects were technical, and at other times have declared that the matter was admitted. E.g., Woods v. Stewart, 171 F.2d 544 (5th Cir. 1948); SEC v. Kaye, Real & Co., 122 F.Supp. 639 (S.D.N.Y. 1954); Seib's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113 (W.D.Ark. 1952). The rule as revised conforms to the latter practice. Subdivision (b). The rule does not now indicate the extent to which a party is bound by his admission. Some courts view admissions as the equivalent of sworn testimony E.g., Ark.-Tenn Distributing Corp. v. Breidt, 209 F.2d 359 (3d Cir. 1954); United States v. Lemons, 125 F.Supp. 686 (W.D.Ark. 1954); 4 Moore's Federal Practice  36.08 (2d ed. 1966 Supp.). At least in some jurisdictions a party may rebut his own testimony, e.g., Alamo v. Del Rosario, 98 F.2d 328 (D.C.Cir. 1938), and by analogy an admission made pursuant to Rule 36 may likewise be thought rebuttable. The courts in Ark-Tenn and Lemons, supra, reasoned in this way, although the results reached may be supported on different grounds. In McSparran v. Hanigan, 225 F.Supp. 628, 636–637 (E.D.Pa. 1963), the court held that an admission is conclusively binding, though noting the confusion created by prior decisions. The new provisions give an admission a conclusively binding effect, for purposes only of the pending action, unless the admission is withdrawn or amended. In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party. Louisell, Modern California Discovery §8.07 (1963); 2A Barron & Holtzoff, Federal Practice and Procedure §838 (Wright ed. 1961). Unless the party securing an admission can depend on its binding effect, he cannot safely avoid the expense of preparing to prove the very matters on which he has secured the admission, and the purpose of the rule is defeated. Field & McKusick, Maine Civil Practice §36.4 (1959); Finman, supra, 71 Yale L.J. 371, 418–426; Comment, 56 Nw.U.L.Rev. 679, 682–683 (1961). Provision is made for withdrawal or amendment of an admission. This provision emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice. Cf. Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2d Cir. 1966). 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). Committee Notes on Rules—2007 Amendment The language of Rule 36 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. The final sentence of the first paragraph of former Rule 36(a) was a redundant cross-reference to the discovery moratorium provisions of Rule 26(d). Rule 26(d) is now familiar, obviating any need to carry forward the redundant cross-reference. The redundant reminder of Rule 37(c) in the second paragraph was likewise omitted. Changes Made After Publication and Comment. See Note to Rule 1, supra.