Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/frcivp.asc

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/* The Federal Rules of Civil Procedure are the basis of many
state's procedural rules. They are also taught to law students as
their "civil procedure" law. We divide this into 6 parts.*/

FEDERAL RULES OF CIVIL PROCEDURE


I. SCOPE OF RULES - ONE FORM OF ACTION


RULE 1. SCOPE 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 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. PROCESS

(a) Summons: Issuance. Upon the filing of the complaint the clerk
shall forthwith issue a summons and deliver the summons to the
plaintiff or the plaintiff's attorney, who shall be responsible
for prompt service of the summons and a copy of the complaint.
Upon request of the plaintiff separate or additional summons
shall issue against any defendants.

(b) Same: Form. The summons shall be signed by the clerk, be
under the seal of the court, contain the name of the court and
the names of the parties, be directed to the defendant, state the
name and address of the plaintiff's attorney, if any, otherwise
the plaintiff's address, and the time within which these rules
require the defendant to appear and defend, and shall notify the
defendant that in case of the defendant's failure to do so
judgment by default will be rendered against the defendant for
the relief demanded in the complaint. When, under Rule 4(e),
service is made pursuant to a statute or rule of court of a
state, the summons, or notice, or order in lieu of summons shall
correspond as nearly as may be to that required by the statute or
rule.


(c) Service.

(1) Process, other than a subpoena or a summons and complaint,
shall be served by a United States marshal or deputy United
States marshal, or by a person specially appointed for that
purpose.

(2)(A) A summons and complaint shall, except as provided in
subparagraphs (B) and (C) of this paragraph, be served by any
person who is not a party and is not less than 18 years of age.
(B) A summons and complaint shall, at the request of the party
seeking service or such party's attorney, be served by a United
States marshal or deputy United States marshal, or by a person
specially appointed by the court for that purpose, only-

(i) on behalf of a party authorized to proceed in forma pauperis
pursuant to Title 28, U.S.C. [sec.] 1915, or of a seaman
authorized to proceed under Title 28, U.S.C. [sec.] 1916,

(ii) on behalf of the United States or an officer or agency of
the United States, or

(iii) pursuant to an order issued by the court stating that a
United States marshal or deputy United States marshal, or a
person specially appointed for that purpose, is required to serve
the summons and complaint in order that service be properly
effected in that particular action.

(C) A summons and complaint may be served upon a defendant of any
class referred to in paragraph (1) or (3) of subdivision (d) of
this rule-

(i) pursuant to the law of the State in which the district court
is held for the service of summons or other like process upon
such defendant in an action brought in the courts of general
jurisdiction of that State, or

(ii) by mailing a copy of the summons and of the complaint (by
first-class mail, postage prepaid) to the person to be served,
together with two copies of a notice and acknowledgment
conforming substantially to form 18-A and a return envelope,
postage prepaid, addressed to the sender. If no acknowledgment of
service under this subdivision of this rule is received by the
sender within 20 days after the date of mailing, service of such
summons and complaint shall be made under subparagraph (A) or (B)
of this paragraph in the manner prescribed by subdivision (d)(1)
or (d)(3).

(D) Unless good cause is shown for not doing so the court shall
order the payment of the costs of personal service by the person
served if such person does not complete and return within 20 days
after mailing, the notice and acknowledgment of receipt of
summons.

(E) The notice and acknowledgment of receipt of summons and
complaint shall be executed under oath or affirmation.

(3) The court shall freely make special appointments to serve
summonses and complaints under paragraph (2)(B) of this
subdivision of this rule and all other process under paragraph
(1) of this subdivision of this rule.

(d) Summons and Complaint: Person to be Served. The summons and
complaint shall be served together. The plaintiff shall furnish
the person making service with such copies as are necessary.
Service shall be made as follows:

(1) Upon an individual other than an infant or an incompetent
person, 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.

(2) Upon an infant or an incompetent person, by serving the
summons and complaint in the manner prescribed by the law of the
state in which the service is made for the service of summons or
other like process upon any such defendant in an action brought
in the courts of general jurisdiction of that state.

(3) Upon a domestic or foreign corporation or upon a partnership
or other unincorporated association which is subject to suit
under a common name, 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.

(4) Upon the United States, 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
and by 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 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 such officer or agency.

(5) Upon an officer or agency of the United States, by serving
the United States and by sending a copy of the summons and of the
complaint by registered or certified mail to such officer or
agency. If the agency is a corporation the copy shall be
delivered as provided in paragraph (3) of this subdivision of
this rule.

(6) Upon a state or municipal corporation or other governmental
organization thereof subject to suit, by delivering a copy of the
summons and of the complaint of the chief executive officer
thereof 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.

(e) Summons: Service Upon Party Not Inhabitant of or Found Within
State. Whenever a statute of the United States or an order of
court thereunder provides for service of a summons, or of a
notice, or of an order in lieu of summons upon a party not an
inhabitant of or found within the state in which the district
court is held, service may be made under the circumstances and in
the manner prescribed by the statute or order, or, if there is no
provision therein prescribing the manner of service, in a manner
stated in this rule. Whenever a statute or rule of court of the
state in which the district court is held provides (1) for
service of a summons, or of a notice, or of an order in lieu of
summons upon a party not an inhabitant of or found within the
state, or (2) for service upon or notice to such a party to
appear and respond or defend in an action by reason of the
attachment or garnishment or similar seizure of the party's
property located within the state, service may in either case be
made under the circumstances and in the manner prescribed in the
statute or rule.

(f) Territorial Limits of Effective Service. All process other
than a subpoena may be served anywhere within the territorial
limits of the state in which the district court is held, and,
when authorized by a statute of the United States or by these
rules, beyond the territorial limits of that state. In addition,
persons who are brought in as parties pursuant to Rule 14, or as
additional parties to a pending action or a counterclaim or
cross-claim therein pursuant to Rule 19, may be served in the
manner stated in paragraphs (1)-(6) of subdivision (d) of this
rule at all places outside the state but within the United States
that are not more than 100 miles from the place in which the
action is commenced, or to which it is assigned or transferred
for trial; and persons required to respond to an order of
commitment for civil contempt may be served at the same places. A
subpoena may be served within the territorial limits provided in
Rule 45.

(g) Return. The person serving the process shall make proof of
service thereof to the court promptly and in any event within the
time during which the person served must respond to the process.
If service is made by a person other than a United States marshal
or deputy United States marshal, such person shall make affidavit
thereof. If service is made under subdivision (c)(2)(C)(ii) of
this rule, return shall be made by the sender's filing with the
court the acknowledgment received pursuant to such subdivision.
Failure to make proof of service does not affect the validity of
the service.

(h) Amendment. At any time in its discretion and upon such terms
as it deems just, the court may allow any process or proof of
service thereof to be amended, unless it clearly appears that
material prejudice would result to the substantial rights of the
party against whom the process issued.

(i) Alternative Provisions for Service in a Foreign Country.

(1) Manner. When the federal or state law referred to in
subdivision (e) of this rule authorizes service upon a party not
an inhabitant of or found within the state in which the district
court is held, and service is to be effected upon the party in a
foreign country, it is also sufficient if service of the summons
and complaint is made: (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, when
service in either case is reasonably calculated to give actual
notice; or (C) upon an individual, by delivery to the individual
personally, and upon a corporation or partnership or association,
by delivery to an officer, a managing or general agent; or (D) by
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 (E) as directed by order of the court. Service under (C) or
(E) above may be made by any person who is not a party and is not
less than 18 years of age or who is designated by order of the
district court or by the foreign court. On request, the clerk
shall deliver the summons to the plaintiff for transmission to
the person or the foreign court or officer who will make the
service.

(2) Return. Proof of service may be made as prescribed by
subdivision (g) of this rule, or by the law of the foreign
country, or by order of the court. When service is made pursuant
to subparagraph (1)(D) of this subdivision, proof of service
shall include a receipt signed by the addressee or other evidence
of delivery to the addressee satisfactory to the court.

(j) Summons: Time Limit for Service. If a service of the summons
and complaint is not made upon a defendant within 120 days after
the filing of the complaint and the party on whose behalf such
service was required cannot show good cause why such service was
not made within that period, the action shall be dismissed as to
that defendant without prejudice upon the court's own initiative
with notice to such party or upon motion. This submission shall not
apply to service in a foreign country pursuant to subdivision (i)
of this rule.


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, shall be filed with the court within a reasonable time
after service, but the court may on motion of a party or on its own
initiative order that depositions upon oral examination and
interrogatories, requests for documents, requests for admission,
and answers and responses thereto not be filed unless on order of
the court or for use in the proceeding.

(e) Filing With the Court Defined. The filing of papers with the
court as required by these rules shall be made by filing them with
the clerk of the court, except that the judge may permit the papers
to be filed with the judge, in which event the judge shall note
thereon the filing date and forthwith transmit them to the office
of the clerk. Papers may be filed by facsimile transmission if
permitted by rules of the district court, provided that the rules
are authorized by and consistent with standards established by the
Judicial Conference of the United States. 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.

Note. Amended April 30, 1991, effective December 1, 1991.


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 or the Congress of the
United States, or by the state in which the district court is held.

(b) Enlargement. When by these rules or by a notice given
thereunder or by order of court an act is required or allowed to be
done at or within a specified time, the court for cause shown may
at any time in its discretion (1) with or without motion or notice
order the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) upon motion made after the expiration of the
specified period permit the act to be done where the failure to act
was the result of excusable neglect; but it may not extend the time
for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b),
(d) and (e), 60 (b), and 74(a), except to the extent and under the
conditions stated in them.

(c) [Rescinded. February 28, 1966, effective 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.


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 quasijudicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it.

(f) Time and Place. For the purpose of testing the sufficiency of
a pleading, averments of time and place are material and shall be
considered like all other averments of material matter.

(g) Special Damage. When items of special damage are claimed, they
shall be specifically stated.

(h) Admiralty and Maritime Claims. A pleading or count setting
forth a claim for relief within the admiralty and maritime
jurisdiction that is also within the jurisdiction of the district
court on some other ground may contain a statement identifying the
claim as an admiralty or maritime claim for the purposes of Rules
14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty
and Maritime Claims. If the claim is cognizable only in admiralty,
it is an admiralty or maritime claim for those purposes whether so
identified or not. The amendment of a pleading to add or withdraw
an identifying statement is governed by the principles of Rule 15.
The reference in Title 28, U.S.C. [sec.] 1292(a)(3), to admiralty
cases shall be construed to mean admiralty and maritime claims
within the meaning of this subdivision (h).


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; SANCTIONS

Every pleading, motion, and other paper of a party represented by
an attorney shall be signed by at least one attorney of record in
the attorney's individual name, whose address shall be stated. A
party who is not represented by an attorney shall sign the party's
pleading, motion, or other paper and state the party's address.
Except when otherwise specifically provided by rule or statute,
pleadings need not be verified or accompanied by affidavit. The
rule in equity that the averments of an answer under oath must be
overcome by the testimony of two witnesses or of one witness
sustained by corroborating circumstances is abolished. The
signature of an attorney or party constitutes a certificate by the
signer that the signer has read the pleading, motion, or other
paper; that to the best of the signer's knowledge, information, and
belief formed after reasonable inquiry it is well grounded in fact
and is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, and that it
is not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the omission
is called to the attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of this rule, the
court, upon motion or upon its own initiative, shall impose upon
the person who signed it, a represented party, or both, an
appropriate sanction, which may include an order to pay to the
other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or other
paper, including a reasonable attorney's fee.


RULE 12. DEFENSES AND OBJECTIONS - WHEN AND HOW PRESENTED - BY
PLEADING OR MOTION - MOTION FOR JUDGMENT ON THE PLEADINGS

(a) When Presented. A defendant shall serve an answer within 20
days after the service of the summons and complaint upon that
defendant, except when service is made under Rule 4(e) and a
different time is prescribed in the order of court under the
statute of the United States or in the statute or rule of court of
the state. A party served with a pleading stating a cross-claim
against that party shall serve an answer thereto within 20 days
after the service upon that party. The plaintiff shall serve a
reply to a counterclaim in the answer within 20 days after service
of the answer, or, if a reply is ordered by the court, within 20
days after service of the order, unless the order otherwise
directs. The United States or an officer or agency thereof shall
serve an answer to the complaint or to a cross-claim, or a reply to
a counterclaim, within 60 days after the service upon the United
States attorney of the pleading in which the claim is asserted. The
service of a motion permitted under this rule alters these periods
of time as follows, unless a different time is fixed by order of
the court: (1) if the court denies the motion or postpones its
disposition until the trial on the merits, the responsive pleading
shall be served within 10 days after notice of the court's action;
(2) if the court grants a motion for a more definite statement the
responsive pleading shall be served within 10 days after the
service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may
at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter, (2) lack of jurisdiction over
the person, (3) improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a claim
upon which relief can be granted, (7) failure to join a party under
Rule 19. A motion making any of these defenses shall be made before
pleading if a further pleading is permitted. No defense or
objection is waived by being joined with one or more other defenses
or objections in a responsive pleading or motion. If a pleading
sets forth a claim for relief to which the adverse party is not
required to serve a responsive pleading, the adverse party may
assert at the trial any defense in law or fact to that claim for
relief. If, on the motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56.

(c) Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings. If, on a motion for
judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.

(d) Preliminary Hearings. The defenses specifically enumerated
(1)-(7) in subdivision (b) of this rule, whether made in a pleading
or by motion, and the motion for judgment mentioned in subdivision
(c) of this rule shall be heard and determined before trial on
application of any party, unless the court orders that the hearing
and determination thereof be deferred until the trial.

(e) Motion for More Definite Statement. If a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a
party cannot reasonably be required to frame a responsive pleading,
the party may move for a more definite statement before interposing
a responsive pleading. The motion shall point out the defects
complained of and the details desired. If the motion is granted and
the order of the court is not obeyed within 10 days after notice of
the order or within such other time as the court may fix, the court
may strike the pleading to which the motion was directed or make
such order as it deems just.

(f) Motion to Strike. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is permitted by these
rules, upon motion made by a party within 20 days after the service
of the pleading upon the party or upon the court's own initiative
at any time, the court may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.

(g) Consolidation of Defenses in Motion. A party who makes a motion
under this rule may join with it any other motions herein provided
for and then available to the party. If a party makes a motion
under this rule but omits therefrom any defense or objection then
available to the party which this rule permits to be raised by
motion, the party shall not thereafter make a motion based on the
defense or objection so omitted, except a motion as provided in
subdivision (h)(2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service of
process is waived (A) if omitted from a motion in the circumstances
described in subdivision (g), or (B) if it is neither made by
motion under this rule nor included in a responsive pleading or an
amendment thereof permitted by Rule 15(a) to be made as a matter of
course.

(2) A defense of failure to state a claim upon which relief can be
granted, a defense of failure to join a party indispensable under
Rule 19, and an objection of failure to state a legal defense to a
claim may be made in any pleading permitted or ordered under Rule
7(a), or by a motion for judgment on the pleadings, or at the trial
on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court
shall dismiss the action.


RULE 13. COUNTERCLAIM AND CROSS-CLAIM

(a) Compulsory Counterclaims. A pleading shall state as a
counterclaim any claim which at the time of serving the pleading
the pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the
opposing party's claim and does not require for its adjudication
the presence of third parties of whom the court cannot acquire
jurisdiction. But the pleader need not state the claim if (1) at
the time the action was commenced the claim was the subject of
another pending action, or (2) the opposing party brought suit upon
the claim by attachment or other process by which the court did not
acquire jurisdiction to render a personal judgment on that claim,
and the pleader is not stating any counterclaim under this Rule 13.

(b) Permissive Counterclaims. A pleading may state as a
counterclaim any claim against an opposing party not arising out of
the transaction or occurrence that is the subject matter of the
opposing party's claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or
may not diminish or defeat the recovery sought by the opposing
party. It may claim relief exceeding in amount or different in kind
from that sought in the pleading of the opposing party.

(d) Counterclaim Against the United States. These rules shall not
be construed to enlarge beyond the limits now fixed by law the
right to assert counterclaims or to claim credits against the
United States or an officer or agency thereof.

(e) Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the pleader after serving a
pleading may, with the permission of the court, be presented as a
counterclaim by supplemental pleading.

(f) Omitted Counterclaim. When a pleader fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect,
or when justice requires, the pleader may by leave of court set up
the counterclaim by amendment.

(g) Cross-Claim Against Co-Party. A pleading may state as a
cross-claim any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter either
of the original action or of a counterclaim therein or relating to
any property that is the subject matter of the original action.
Such cross-claim may include a claim that the party against whom it
is asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant.

(h) Joinder of Additional Parties. Persons other than those made
parties to the original action may be made parties to a
counterclaim or cross-claim in accordance with the provisions of
Rules 19 and 20.

(i) Separate Trials; Separate Judgments. If the court orders
separate trials as provided in Rule 42(b), judgment on a
counterclaim or cross-claim may be rendered in accordance with the
terms of Rule 54(b) when the court has jurisdiction so to do, even
if the claims of the opposing party have been dismissed or
otherwise disposed of.


RULE 14. THIRD PARTY PRACTICE

(a) When Defendant May Bring in Third Party. At any time after
commencement of the action a defending party, as a third-party
plaintiff, may cause a summons and complaint to be served upon a
person not a party to the action who is or may be liable to the
third-party plaintiff for all or part of the plaintiff's claim
against the third-party plaintiff. The third-party plaintiff need
not obtain leave to make the service if the third-party plaintiff
files the third-party complaint not later than 10 days after
serving the original answer. Otherwise the third-party plaintiff
must obtain leave on motion upon notice to all parties to the
action. The person served with the summons and third-party
complaint, hereinafter called the third-party defendant, shall make
any defenses to the third-party plaintiff's claim as provided in
Rule 12 and any counterclaims against the third-party plaintiff and
cross-claims against other third-party defendants as provided in
Rule 13. The third-party defendant may assert against the plaintiff
any defenses which the third-party plaintiff has to the plaintiff's
claim. The third-party defendant may also assert any claim against
the plaintiff arising out of the transaction or occurrence that is
the subject matter of the plaintiff's claim against the third-party
plaintiff. The plaintiff may assert any claim against the
third-party defendant arising out of the transaction or occurrence
that is the subject matter of the plaintiff's claim against the
third-party plaintiff, and the third-party defendant thereupon
shall assert any defenses as provided in Rule 12 and any
counterclaims and cross-claims as provided in Rule 13. Any party
may move to strike the third-party claim, or for its severance or
separate trial. A third-party defendant may proceed under this rule
against any person not a party to the action who is or may be
liable to the third-party defendant for all or part of the claim
made in the action against the third-party defendant. The
third-party complaint, if within the admiralty and maritime
jurisdiction, may be in rem against a vessel, cargo, or other
property subject to admiralty or maritime process in rem, in which
case references in this rule to the summons include the warrant of
arrest, and references to the third-party plaintiff or defendant
include, where appropriate, the claimant of the property arrested.