美国联邦民事诉讼规则(内含中文名目)

第

1102

条修改

第

1103

条标题

2

）原件无法获得

< br>（

3

）原件在对

c

）关于特权的规则

（

d

）不适用

（

（

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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.

(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.

Rule 6 Time

.-

(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 of 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 by Mail. 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

by

mail,

3

days

shall

be

added

to

the

prescribed

period.

Prospective amendment:

Amendment of Rule 6, effective December 1, 2001. By order dated April 23, 2001, the Supreme Court of

the

United

States

approved

the

following

amendments

to

Rule

6,

effective

December

1,

2001,

and

authorized

their transmission to Congress in accordance with 28 USCS

§

2072

Rule 6. 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.

.-

III. PLEADINGS AND MOTIONS

Rule 7 Pleadings Allowed : Form of Motions

(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.

Rule 8 General Rules of Pleading

(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.

Rule 9 Pleading Special Matters

(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

Rule

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.

§

1292(a)(3).

Rule 10 Form of Pleadings

(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.

Rule 11 Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(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 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.

Rule 12 Defenses and Objections

–

When

and How

Presented

–

By Pleading or Motion- Motion for Judgment

on the Pleadings

(a) When Presented.

(1) Unless a different time is prescribed in a statute of the United States, a defendant

shall serve an answer