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FEDERAL RULES OF CIVIL PROCEDURE
I.
SCOPE OF RULES
ONE FORM OF ACTION
Rule1 Scope and
Purpose of Rules
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.
Rule 2 One Form of Action
There shall be one form of
action to be known as civil action.
II. COMMENCEMENT OF ACTION; SERVICE OF
PROCESS, PLEADINGS, MOTIONS, AND ORDERS
Rule 3 Commencement of Action
A civil action is commenced by filing a
complaint with the court.
Rule 4
Summons
(a) Form. The summons shall be
signed by the clerk, bear the seal of the court,
identify the court and
the parties, be
directed to the defendant, and state the name and
address of the plaintiff's attorney
or,
if unrepresented, of the plaintiff. It shall also
state the time within which the defendant must
appear and defend, and notify the
defendant that failure to do so will result in a
judgment by default
against
the
defendant
for
the
relief
demanded
in
the
complaint.
The
court
may
allow
a
summons
to
be
amended.
(b)
Issuance. Upon or after filing the complaint, the
plaintiff may present a summons to the clerk for
signature and seal. If the summons is
in proper form, the clerk shall sign, seal, and
issue it to the
plaintiff for service
on the defendant. A summons, or a copy of the
summons if addressed to multiple
defendants, shall be issued for each
defendant to be served.
(c) Service
with Complaint; by Whom Made.
(1) A summons shall be served together
with a copy of the complaint. The plaintiff is
responsible
for
service
of
a
summons
and
complaint
within
the
time
allowed
under
subdivision
(m)
and
shall
furnish
the
person
effecting
service
with
the
necessary
copies
of
the
summons
and complaint.
(2)
Service may be effected by any person who is not a
party and who is at least 18 years of age.
At
the
request
of
the
plaintiff,
however,
the
court
may
direct
that
service
be
effected
by
a
United
States
marshal, deputy United States marshal,
or other person or officer specially appointed by
the court for
the
purpose.
Such
an
appointment
must
be
made
when
the
plaintiff
is
authorized
to
proceed
in
forma
pauperis
pursuant to28
U.S.C.
§
1915 or is
authorized to proceed as a seaman under 28 U.S.C.
§
1916
(d) Waiver
of Service; Duty to Save Costs of Service; Request
to Waive.
(1) A defendant who waives
service of a summons does not thereby waive any
objection to
the venue or to the
jurisdiction of the court over the person of the
defendant.
(2)
An
individual,
corporation,
or
association
that
is
subject
to
service
under
subdivision
(e), (f), or (h)
and that receives notice of an action in the
manner provided in this
paragraph has a
duty to avoid unnecessary costs of serving the
summons. To avoid costs,
the plaintiff
may notify such a defendant of the commencement of
the action and request
that the
defendant waive service of a summons. The notice
and request.
(A) shall be in writing
and shall be addressed directly to the defendant,
if
an
individual,
or
else
to
an
officer
or
managing
or
general
agent
(or
other
agent authorized by
appointment or law to receive service of process)
of a
defendant subject to service under
subdivision (h)
(B) shall be
dispatched through first-class mail or other
reliable means;
(C) shall be
accompanied by a copy of the complaint and shall
identify the
court in which it has been
filed;
(D)
shall
inform
the
defendant,
by
means
of
a
text
prescribed
in
an
official
form
promulgated
pursuant
to
Rule
84,
of
the
consequences
of
compliance
and
of
a failure to comply with the request;
(E) shall set forth the date on which
request is sent; (F) shall allow the
defendant a reasonable time to return
the waiver, which shall be at least
30
days
from
the
date
on
which
the
request
is
sent,
or
60
days
from
that
date
if the defendant is
addressed outside any judicial district of the
United
States; and
(G)
shall
provide
the
defendant
with
an
extra
copy
of
the
notice
and
request,
as well as a
prepaid means of compliance in writing.
If
a
defendant
located
within
the
United
States
fails
to
comply
with
a
request
for waiver made by a plaintiff located
within the United States, the court
shall impose the costs subsequently
incurred in effecting service on the
defendant unless good cause for the
failure be shown.
(3)
A
defendant
that,
before
being
served
with
process,
timely
returns
a
waiver
so
requested
is
not required to serve an answer to the complaint
until 60 days after the date on which
the request for waiver of service was
sent, or 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 proofs of service shall be
required.
(5) The costs to be imposed
on a defendant under paragraph (2) for failure to
comply with
a request to waive service
of a summons shall include the costs subsequently
incurred in
effecting service under
subdivision (e), (f), or (h), together with the
costs, including
a reasonable
attorney's fee, of any motion required to collect
the costs of service.
(e)
Service Upon
Individuals
Within a Judicial District
of
the United States. Unless otherwise
provided
by federal law, service upon
an individual from whom a waiver has not been
obtained and filed, other
than an
infant or an incompetent person, may be effected
in any judicial district of the United States:
(1) pursuant to the law of the state in
which the district court is located, or in which
service is effected, for the service of
a summons upon the defendant in an action brought
in the courts of general jurisdiction
of the State; or
(2) by delivering a
copy of the summons and of the complaint to the
individual personally
or by leaving
copies thereof at the individual's dwelling house
or usual place of abode
with some
person of suitable age and discretion then
residing therein or by delivering
a
copy of the summons and of the complaint to an
agent authorized by appointment or by
law to receive service of process.
(f) Service Upon Individuals in a
Foreign Country. Unless otherwise provided by
federal law, service
upon
an
individual
from
whom
a
waiver
has
not
been
obtained
and
filed,
other
than
an
infant
or
an
incompetent
person, may be effected in a place not
within any judicial district of the United States:
(1)
by
any
internationally
agreed
means
reasonably
calculated
to
give
notice,
such
as
those
means
authorized
by
the
Hague
Convention
on
the
Service
Abroad
of
Judicial
and
Extrajudicial
Documents; or
(2)
if
there
is
no
internationally
agreed
means
of
service
or
the
applicable
international
agreement
allows other means of service, provided that
service is reasonably calculated
to
give notice:
(A) in the manner
prescribed by the law of the foreign country for
service
in that country in an action in
any of its courts of general jurisdiction;
or
(B) as directed by the
foreign authority in response to a letter rogatory
or letter of request; or
(C) unless prohibited by the law of the
foreign country, by
(i) delivery to
the individual personally of a copy of the
summons and the complaint; or
(ii) any form of mail requiring a
signed receipt, to be
addressed
and
dispatched
by
the
clerk
of
the
court
to
the
party
to be
served; or
(3) by other means not
prohibited by international agreement as may be
directed by the
court.
(g)
Service Upon Infants and Incompetent Person.
Service upon an infant or an incompetent person in
a
judicial
district
of
the
United
States
shall
be
effected
in
the
manner
prescribed
by
the
law
of
the
state
in which the service is made for the
service of summons or like process upon any such
defendant in an
action
brought
in
the
courts
of
general
jurisdiction
of
that
state.
Service
upon
an
infant
or
an
incompetent
person in a
place not within any judicial district of the
United States shall be effected in the manner
prescribed by paragraph (2)(A) or
(2)(B) of subdivision (f) or by such means as the
court may direct.
(h) Service Upon
Corporations and Associations. Unless otherwise
provided by federal law, service upon
a
domestic
or
foreign
corporation
or
upon
a
partnership
or
other
unincorporated
association
that
is
subject
to
suit under a common name, and from which a waiver
of service has not been obtained and filed, shall
be effected:
(1) in a
judicial district of the United States in the
manner prescribed for individuals
by
subdivision (e)(1), or by delivering a copy of the
summons and of the complaint to an
officer, a managing or general agent,
or to any other agent authorized by appointment or
by law to receive service of process
and, if the agent is one authorized by statute to
receive service and the statute so
requires, by also mailing a copy to the defendant,
or
(2)
in
a
place
not
within
any
judicial
district
of
the
United
States
in
any
manner
prescribed
for individuals
by subdivision (f) except personal delivery as
provided in paragraph
(2)(C)(i)
thereof.
(i) 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.
§
1608
(2)
Service
upon
a
state,
municipal
corporation,
or
other
governmental
organization
subject
to suit, shall be
effected by delivering a copy of the summons and
of the complaint to
its
chief
executive
officer
or
by
serving
the
summons
and
complaint
in
the
manner
prescribed
by the law of that state for the
service of summons or other like process upon any
such
defendant.
(k)
Territorial Limits of Effective Service.
(1)
Service
of
a
summons
or
filing
a
waiver
of
service
is
effective
to
establish
jurisdiction
over the person of a defendant
(A) who could be subjected to the
jurisdiction of a court of general
jurisdiction in the state in which the
district court is located, or
(B) who
is a party joined under Rule 14 or Rule 19 and is
served at a place
within a judicial
district of the United States and not more than
100 miles
from the place from which the
summons issues, or
(C)
who
is
subject
to
the
federal
interpleader
jurisdiction
under
28
U.S.C.
§
1335, or
(D) when authorized by a statute of the
United States.
(2) If the exercise of
jurisdiction is consistent with the Constitution
and laws of the
United States, serving
a summons or filing a waiver of service is also
effective, with
respect to claims
arising under federal law, to establish personal
jurisdiction over the
person of any
defendant who is not subject to the jurisdiction
of the courts of general
jurisdiction
of any state.
(l) Proof of Service. If
service is not waived, the person effecting
service shall make proof thereof
to the
court. If service is made by a person other than a
United States marshal or deputy United States
marshal, the person shall make
affidavit thereof. Proof of service in a place not
within any judicial
district
of
the
United
States
shall,
if
effected
under
paragraph
(1)
of
subdivision
(f),
be
made
pursuant
to
the
applicable
treaty
or
convention,
and
shall,
if
effected
under
paragraph
(2)
or
(3)
thereof,
include
a receipt signed by
the addressee or other evidence of delivery to the
addressee satisfactory to the
court.
Failure
to
make
proof
of
service
does
not
affect
the
validity
of
the
service.
The
court
may
allow
proof of service to be amended.
(m) Time Limit for Service. If service
of the summons and complaint is not made upon a
defendant within
120
days
after
the
filing
of
the
complaint,
the
court,
upon
motion
or
on
its
own
initiative
after
notice
to
the
plaintiff,
shall
dismiss
the
action
without
prejudice
as
to
that
defendant
or
direct
that
service
be effected within a
specified time; provided that if the plaintiff
shows good cause for the failure,
the
court shall extend the time for service for an
appropriate period. This subdivision does not
apply
to service in a foreign country
pursuant to subdivision (f) or (j)(1).
(n) Seizure of Property; Service of
Summons Not Feasible.
(1) If a statute
of the United States so provides, the court may
assert jurisdiction over
property.
Notice to claimants of the property shall than be
sent in the manner provided
by the
statute or by service of a summons under this
rule.
(2) Upon a showing that personal
jurisdiction over a defendant cannot, in the
district
where the action is brought,
be obtained with reasonable efforts by service of
summons
in any manner authorized by
this rule, the court may assert jurisdiction over
any of the
defendant's
assets
found
within
the
district
by
seizing
the
assets
under
the
circumstances
and
in the manner provided by
the law of the state in
which the district court is located.
Rule 4.1. Service of Other Process
(a) Generally. Process other than a
summons as provided in Rule 4 or subpoena as
provided in Rule 45
shall
be
served
by
a
United
States
marshal,
a
deputy
United
States
marshal,
or
a
person
specially
appointed
for that purpose,
who shall make proof of service as provided in
Rule 4 (1). The process may be served
anywhere within the territorial limits
of the state in which the district court is
located, and, when
authorized by a
statute of the United States, beyond the
territorial limits of that state.
(b)
Enforcement of Orders: Commitment for Civil
Contempt. An order of civil commitment of a person
held
to
be
in
contempt
of
a
decree
or
injunction
issued
to
enforce
the
laws
of
the
United
States
may
be
served
and
enforced in any district. Other orders in civil
contempt proceedings shall be served in the state
in which the court issuing the order to
be enforced is located or elsewhere within the
United States
if not more than 100
miles from the place at which the order to be
enforced was issued.
Rule 5 Service
and Filing of Pleadings and Other Papers
(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) Same: How Made. Whenever under
these rules service is required or permitted to be
made upon a party
represented by an
attorney the service shall be made upon the
attorney unless service upon the party
is ordered by the court. Service upon
the attorney or upon a party shall be made by
delivering a copy
to the attorney or
party or by mailing it to the attorney or party at
the attorney's or party's last
known
address or, if no address is known, by leaving it
with the clerk of the court. Delivery of a copy
within this rule means: handing it to
the attorney or to the party; or leaving it at the
attorney's or
party's office with a
clerk or other person in
charge
thereof; or, if there
is no
one
in charge, leaving
it in a conspicuous place therein; or,
if the office is closed or the person to be served
has no office,
leaving it at the
person's dwelling house or usual place of abode
with some person of suitable age and
discretion then residing therein.
Service by mail is complete upon mailing.
(c) Same: Numerous Defendants. In any
action in which there are unusually large numbers
of defendants,
the
court,
upon
motion
or
of
its
own
initiative,
may
order
that
service
of
the
pleadings
of
the
defendants
and replies
thereto need not be made as between the defendants
and that any cross-claim, counterclaim,
or
matter
constituting
an
avoidance
or
affirmative
defense
contained
therein
shall
be
deemed
to
be
denied
or avoided by all other parties and
that the filing of any such pleading and service
thereof upon the
plaintiff constitutes
due notice of it to the parties. A copy of every
such order shall be served upon
the
parties in such manner and form as the court
directs.
(d) Filing; Certificate of
Service. All papers after the complaint required
to be served upon a party,
together
with
a
certificate
of
service,
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.
Prospective
amendment:
Amendment of
Rule 5, effective December 1, 2001. By order dated
April 23, 2001, the Supreme Court of
the
United
States
approved
the
following
amendments
to
Rule
5,
effective
December
1,
2001,
and
authorized
their
transmission to Congress in accordance with 28
USCS
§
2072
Rule 5. Service and Filing of Pleadings
and Other Papers
(b) Making Service.
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