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- /* We continue with the Federal Rules of Civil Procedure.*/
-
- (b) When Plaintiff May Bring in Third Party. When a counterclaim
- is asserted against a plaintiff, the plaintiff may cause a third
- party to be brought in under circumstances which under this rule
- would entitle a defendant to do so.
-
- (c) Admiralty and Maritime Claims. When a plaintiff asserts an
- admiralty or maritime claim within the meaning of Rule 9(h), the
- defendant or claimant, as a third-party plaintiff, may bring in a
- third-party defendant who may be wholly or partly liable, either
- to the plaintiff or to the third-party plaintiff, by way of
- remedy over, contribution, or otherwise on account of the same
- transaction, occurrence, or series of transactions or
- occurrences. In such a case the third-party plaintiff may also
- demand judgment against the third-party defendant in favor of the
- plaintiff, in which event the third-party defendant shall make
- any defenses to the claim of the plaintiff as well as to that of
- the third-party plaintiff in the manner provided in Rule 12 and
- the action shall proceed as if the plaintiff had commenced it
- against the third-party defendant as well as the third-party
- plaintiff.
-
-
- RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS
-
- (a) Amendments. A party may amend the party's pleading once as a
- matter of course at any time before a responsive pleading is
- served or, if the pleading is one to which no responsive pleading
- is permitted and the action has not been placed upon the trial
- calendar, the party may so amend it at any time within 20 days
- after it is served. Otherwise a party may amend the party's
- pleading only by leave of court or by written consent of the
- adverse party; and leave shall be freely given when justice so
- requires. A party shall plead in response to an amended pleading
- within the time remaining for response to the original pleading
- or within 10 days after service of the amended pleading,
- whichever period may be the longer, unless the court otherwise
- orders.
-
- (b) Amendments to Conform to the Evidence. When issues not raised
- by the pleadings are tried by express or implied consent of the
- parties, they shall be treated in all respects as if they had
- been raised in the pleadings. Such amendment of the pleadings as
- may be necessary to cause them to conform to the evidence and to
- raise these issues may be made upon motion of any party at any
- time, even after judgment; but failure so to amend does not
- affect the result of the trial of these issues. If evidence is
- objected to at the trial on the ground that it is not within the
- issues made by the pleadings, the court may allow the pleadings
- to be amended and shall do so freely when the presentation of the
- merits of the action will be subserved thereby and the objecting
- party fails to satisfy the court that the admission of such
- evidence would prejudice the party in maintaining the party's
- action or defense upon the merits. The court may grant a
- continuance to enable the objecting party to meet such evidence.
-
-
- (c) Relation Back of Amendments. An amendment of a pleading
- relates back to the date of the original pleading when
-
- (1) relation back is permitted by the law that provides the
- statute of limitations applicable to the action, or
-
- (2) the claim or defense asserted in the amended pleading arose
- out of the conduct, transaction, or occurrence set forth or
- attempted to be set forth in the original pleading, or
-
- (3) the amendment changes the party or the naming of the party
- against whom a claim is asserted if the foregoing provision (2)
- is satisfied and, within the period provided by Rule 4(m) for
- service of the summons and complaint, the party to be brought in
- by amendment (A) has received such notice of the institution of
- the action that the party will not be prejudiced in maintaining a
- defense on the merits, and (B) knew or should have known that,
- but for a mistake concerning the identity of the proper party,
- the action would have been brought against the party.
-
- The delivery or mailing of process to the United States Attorney,
- or United States Attorney's designee, or the Attorney General of
- the United States, or an agency or officer who would have been a
- proper defendant if named, satisfies the requirement of
- subparagraphs (A) and (B) of this paragraph (3) with respect to
- the United States or any agency or officer thereof to be brought
- into the action as a defendant.
-
- (d) Supplemental Pleadings. Upon motion of a party the court may,
- upon reasonable notice and upon such terms as are just, permit
- the party to serve a supplemental pleading setting forth
- transactions or occurrences or events which have happened since
- the date of the pleading sought to be supplemented. Permission
- may be granted even though the original pleading is defective in
- its statement of a claim for relief or defense. If the court
- deems it advisable that the adverse party plead to the
- supplemental pleading, it shall so order, specifying the time
- therefor.
-
- Note. Amended April 30, 1991, effective December 1, 1991.
-
-
- RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT
-
- (a) Pretrial Conferences; Objectives. In any action, the court
- may in its discretion direct the attorneys for the parties and
- any unrepresented parties to appear before it for a conference or
- conferences before trial for such purposes as
-
- (1) expediting the disposition of the action;
-
- (2) establishing early and continuing control so that the case
- will not be protracted because of lack of management;
-
- (3) discouraging wasteful pretrial activities;
-
- (4) improving the quality of the trial through more thorough
- preparation, and;
-
- (5) facilitating the settlement of the case.
-
- (b) Scheduling and Planning. Except in categories of actions
- exempted by district court rule as inappropriate, the judge, or a
- magistrate when authorized by district court rule, shall, after
- consulting with the attorneys for the parties and any
- unrepresented parties, by a scheduling conference, telephone,
- mail, or other suitable means, enter a scheduling order that
- limits the time
-
- (1) to join other parties and to amend the pleadings;
-
- (2) to file and hear motions; and
-
- (3) to complete discovery.
-
- The scheduling order also may include
-
- (4) the date or dates for conferences before trial, a final
- pretrial conference, and trial; and
-
- (5) any other matters appropriate in the circumstances of the
- case.
-
- The order shall issue as soon as practicable but in no event more
- than 120 days after filing of the complaint. A schedule shall not
- be modified except by leave of the judge or a magistrate when
- authorized by district court rule upon a showing of good cause.
-
- (c) Subjects to be Discussed at Pretrial Conferences. The
- participants at any conference under this rule may consider and
- take action with respect to
-
- (1) the formulation and simplification of the issues, including
- the elimination of frivolous claims or defenses;
-
- (2) the necessity or desirability of amendments to the pleadings;
-
- (3) the possibility of obtaining admissions of fact and of
- documents which will avoid unnecessary proof, stipulations
- regarding the authenticity of documents, and advance rulings from
- the court on the admissibility of evidence;
-
- (4) the avoidance of unnecessary proof and of cumulative
- evidence;
-
- (5) the identification of witnesses and documents, the need and
- schedule for filing and exchanging pretrial briefs, and the date
- or dates for further conferences and for trial;
-
- (6) the advisability of referring matters to a magistrate or
- master;
-
- (7) the possibility of settlement or the use of extrajudicial
- procedures to resolve the dispute;
-
- (8) the form and substance of the pretrial order;
-
- (9) the disposition of pending motions;
-
- (10) the need for adopting special procedures for managing
- potentially difficult or protracted actions that may involve
- complex issues, multiple parties, difficult legal questions, or
- unusual proof problems; and
-
- (11) such other matters as may aid in the disposition of the
- action.
-
- At least one of the attorneys for each party participating in any
- conference before trial shall have authority to enter into
- stipulations and to make admissions regarding all matters that
- the participants may reasonably anticipate may be discussed.
-
- (d) Final Pretrial Conference. Any final pretrial conference
- shall be held as close to the time of trial as reasonable under
- the circumstances. The participants at any such conference shall
- formulate a plan for trial, including a program for facilitating
- the admission of evidence. The conference shall be attended by at
- least one of the attorneys who will conduct the trial for each of
- the parties and by any unrepresented parties.
-
- (e) Pretrial Orders. After any conference held pursuant to this
- rule, an order shall be entered reciting the action taken. This
- order shall control the subsequent course of the action unless
- modified by a subsequent order. The order following a final
- pretrial conference shall be modified only to prevent manifest
- injustice.
-
- (f) Sanctions. If a party or party's attorney fails to obey a
- scheduling or pretrial order, or if no appearance is made on
- behalf of a party at a scheduling or pretrial conference, or if a
- party or party's attorney is substantially unprepared to
- participate in the conference, or if a party or party's attorney
- fails to participate in good faith, the judge, upon motion or the
- judge's own initiative, may make such orders with regard thereto
- as are just, and among others any of the orders provided in Rule
- 37(b)(2)(B), (C), (D). In lieu of or in addition to any other
- sanction, the judge shall require the party or the attorney
- representing the party or both to pay the reasonable expenses
- incurred because of any noncompliance with this rule, including
- attorney's fees, unless the judge finds that the noncompliance
- was substantially justified or that other circumstances make an
- award of expenses unjust.
-
-
- IV. PARTIES
-
-
- RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY
-
- (a) Real Party in Interest. Every action shall be prosecuted in
- the name of the real party in interest. An executor,
- administrator, guardian, bailee, trustee of an express trust, a
- party with whom or in whose name a contract has been made for the
- benefit of another, or a party authorized by statute may sue in
- that person's own name without joining the party for whose
- benefit the action is brought; and when a statute of the United
- States so provides, an action for the use or benefit of another
- shall be brought in the name of the United States. No action
- shall be dismissed on the ground that it is not prosecuted in the
- name of the real party in interest until a reasonable time has
- been allowed after objection for ratification of commencement of
- the action by, or joinder or substitution of, the real party in
- interest; and such ratification, joinder, or substitution shall
- have the same effect as if the action had been commenced in the
- name of the real party in interest.
-
- (b) Capacity to Sue or be Sued. The capacity of an individual,
- other than one acting in a representative capacity, to sue or be
- sued shall be determined by the law of the individual's domicile.
- The capacity of a corporation to sue or be sued shall be
- determined by the law under which it was organized. In all other
- cases capacity to sue or be sued shall be determined by the law
- of the state in which the district court is held, except (1) that
- a partnership or other unincorporated association, which has no
- such capacity by the law of such state, may sue or be sued in its
- common name for the purpose of enforcing for or against it a
- substantive right existing under the Constitution or laws of the
- United States, and (2) that the capacity of a receiver appointed
- by a court of the United States to sue or be sued in a court of
- the United States is governed by Title 28, U.S.C. [sec.] 754 and
- 959(a).
-
- (c) Infants or Incompetent Persons. Whenever an infant or
- incompetent person has a representative, such as a general
- guardian, committee, conservator, or other like fiduciary, the
- representative may sue or defend on behalf of the infant or
- incompetent person. An infant or incompetent person who does not
- have a duly appointed representative may sue by next friend or by
- a guardian ad litem. The court shall appoint a guardian ad litem
- for an infant or incompetent person not otherwise represented in
- an action or shall make such other order as it deems proper for
- the protection of the infant or incompetent person.
-
-
- RULE 18. JOINDER OF CLAIMS AND REMEDIES
-
- (a) Joinder of Claims. A party asserting a claim to relief as an
- original claim, counterclaim, cross-claim, or third-party claim,
- may join, either as independent or as alternate claims, as many
- claims, legal, equitable, or maritime, as the party has against
- an opposing party.
-
- (b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim
- is one heretofore cognizable only after another claim has been
- prosecuted to a conclusion, the two claims may be joined in a
- single action; but the court shall grant relief in that action
- only in accordance with the relative substantive rights of the
- parties. In particular, a plaintiff may state a claim for money
- and a claim to have set aside a conveyance fraudulent as to that
- plaintiff,without first having obtained a judgment establishing
- the claim for money.
-
-
- RULE 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
-
- (a) Persons to be Joined if Feasible. A person who is subject to
- service of process and whose joinder will not deprive the court
- of jurisdiction over the subject matter of the action shall be
- joined as a party in the action if (1) in the person's absence
- complete relief cannot be accorded among those already parties,
- or (2) the person claims an interest relating to the subject of
- the action and is so situated that the disposition of the action
- in the person's absence may (i) as a practical matter impair or
- impede the person's ability to protect that interest or (ii)
- leave any of the persons already parties subject to a substantial
- risk of incurring double, multiple, or otherwise inconsistent
- obligations by reason of the claimed interest. If the person has
- not been so joined, the court shall order that the person be made
- a party. If the person should join as a plaintiff but refuses to
- do so, the person may be made a defendant, or, in a proper case,
- an involuntary plaintiff. If the joined party objects to venue
- and joinder of that party would render the venue of the action
- improper, that party shall be dismissed from the action.
-
- (b) Determination by Court Whenever Joinder not Feasible. If a
- person as described in subdivision (a)(1)-(2) hereof cannot be
- made a party, the court shall determine whether in equity and
- good conscience the action should proceed among the parties
- before it, or should be dismissed, the absent person being thus
- regarded as indispensable. The factors to be considered by the
- court include: first, to what extent a judgment rendered in the
- person's absence might be prejudicial to the person or those
- already parties; second, the extent to which, by protective
- provisions in the judgment, by the shaping of relief, or other
- measures, the prejudice can be lessened or avoided; third,
- whether a judgment rendered in the person's absence will be
- adequate; fourth, whether the plaintiff will have an adequate
- remedy if the action is dismissed for nonjoinder.
-
- (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
- for relief shall state the names, if known to the pleader, of any
- persons as described in subdivision (a)(1)-(2) hereof who are not
- joined, and the reasons why they are not joined.
-
- (d) Exception of Class Actions. This rule is subject to the
- provisions of Rule 23.
-
-
- RULE 20. PERMISSIVE JOINDER OF PARTIES
-
- (a) Permissive Joinder. All persons may join in one action as
- plaintiffs if they assert any right to relief jointly, severally,
- or in the alternative in respect of or arising out of the same
- transaction, occurrence, or series of transactions or occurrences
- and if any question of law or fact common to all these persons
- will arise in the action. All persons (and any vessel, cargo or
- other property subject to admiralty process in rem) may be joined
- in one action as defendants if there is asserted against them
- jointly, severally, or in the alternative, any right to relief in
- respect of or arising out of the same transaction, occurrence, or
- series of transactions or occurrences and if any question of law
- or fact common to all defendants will arise in the action. A
- plaintiff or defendant need not be interested in obtaining or
- defending against all the relief demanded. Judgment may be given
- for one or more of the plaintiff's according to their respective
- rights to relief, and against one or more defendants according to
- their respective
- liabilities.
-
- (b) Separate Trials. The court may make such orders as will
- prevent a party from being embarrassed, delayed, or put to
- expense by the inclusion of a party against whom the party
- asserts no claim and who asserts no claim against the party, and
- may order separate trials or make other orders to prevent delay
- or prejudice.
-
-
- RULE 21. MISJOINDER AND NON-JOINDER OF PARTIES
-
- Misjoinder of parties is not ground for dismissal of an action.
- Parties may be dropped or added by order of the court on motion
- of any party or of its own initiative at any stage of the action
- and on such terms as are just. Any claim against a party may be
- severed and proceeded with separately.
-
-
- RULE 22. INTERPLEADER
-
- (1) Persons having claims against the plaintiff may be joined as
- defendants and required to interplead when their claims are such
- that the plaintiff is or may be exposed to double or multiple
- liability. It is not ground for objection to the joinder that the
- claims of the several claimants or the titles on which their
- claims depend do not have a common origin or are not identical
- but are adverse to and independent of one another, or that the
- plaintiff avers that the plaintiff is not liable in whole or in
- part to any or all of the claimants. A defendant exposed to
- similar liability may obtain such interpleader by way of
- cross-claim or counterclaim. The provisions of this rule
- supplement and do not in any way limit the joinder of parties
- permitted in Rule 20.
-
- (2) The remedy herein provided is in addition to and in no way
- supersedes or limits the remedy provided by Title 28, U.S.C.
- [sec.] 1335, 1397, and 2361. Actions under those provisions
- shall be conducted in accordance with these rules.
-
-
- RULE 23. CLASS ACTIONS
-
- (a) Prerequisites to a Class Action. One or more members of a
- class may sue or be sued as representative parties on behalf of
- all only if (1) the class is so numerous that joinder of all
- members is impracticable, (2) there are questions of law or fact
- common to the class, (3) the claims or defenses of the
- representative parties are typical of the claims or defenses of
- the class, and (4) the representative parties will fairly and
- adequately protect the interests of the class.
-
- (b) Class Actions Maintainable. An action may be maintained as a
- class action if the prerequisites of subdivision (a) are
- satisfied, and in addition:
-
- (1) the prosecution of separate actions by or against individual
- members of the class would create a risk of
-
- (A) inconsistent or varying adjudications with respect to
- individual members of the class which would establish
- incompatible standards of conduct for the party opposing the
- class, or
-
- (B) adjudications with respect to individual members of the class
- which would as a practical matter be dispositive of the interests
- of the other members not parties to the adjudications or
- substantially impair or impede their ability to protect their
- interests; or
-
- (2) the party opposing the class has acted or refused to act on
- grounds generally applicable to the class, thereby making
- appropriate final injunctive relief or corresponding declaratory
- relief with respect to the class as a whole; or
-
- (3) the court finds that the questions of law or fact common to
- the members of the class predominate over any questions affecting
- only individual members, and that a class action is superior to
- other available methods for the fair and efficient adjudication
- of the controversy. The matters pertinent to the findings
- include: (A) the interest of members of the class in individually
- controlling the prosecution or defense of separate actions; (B)
- the extent and nature of any litigation concerning the
- controversy already commenced by or against members of the class;
- (C) the desirability or undesirability of concentrating the
- litigation of the claims in the particular forum; (D) the
- difficulties likely to be encountered in the management of a
- class action.
-
- (c) Determination by Order Whether Class Action to be Maintained;
- Notice; Judgment; Actions Conducted Partially as Class Actions.
-
- (1) As soon as practicable after the commencement of an action
- brought as a class action, the court shall determine by order
- whether it is to be so maintained. An order under this
- subdivision may be conditional, and may be altered or amended
- before the decision on the merits.
-
- (2) In any class action maintained under subdivision (b)(3), the
- court shall direct to the members of the class the best notice
- practicable under the circumstances, including individual notice
- to all members who can be identified through reasonable effort.
- The notice shall advise each member that (A) the court will
- exclude the member from the class if the member so requests by a
- specified date; (B) the judgment, whether favorable or not, will
- include all members who do not request exclusion; and (C) any
- member who does not request exclusion may, if the member desires,
- enter an appearance through counsel.
-
- (3) The judgment in an action maintained as a class action under
- subdivision (b)(1) or (b)(2), whether or not favorable to the
- class, shall include and describe those whom the court finds to
- be members of the class. The judgment in an action maintained as
- a class action under subdivision (b)(3), whether or not favorable
- to the class, shall include and specify or describe those to whom
- the notice provided in subdivision (c)(2) was directed, and who
- have not requested exclusion, and whom the court finds to be
- members of the class.
-
- (4) When appropriate (A) an action may be brought or maintained
- as a class action with respect to particular issues, or (B) a
- class may be divided into subclasses and each subclass treated as
- a class, and the provisions of this rule shall then be construed
- and applied accordingly.
-
- (d) Orders in Conduct of Actions. In the conduct of actions to
- which this rule applies, the court may make appropriate orders:
- (1) determining the course of proceedings or prescribing measures
- to prevent undue repetition or complication in the presentation
- of evidence or argument; (2) requiring, for the protection of the
- members of the class or otherwise for the fair conduct of the
- action, that notice be given in such manner as the court may
- direct to some or all of the members of any step in the action,
- or of the proposed extent of the judgment, or of the opportunity
- of members to signify whether they consider the representation
- fair and adequate, to intervene and present claims or defenses,
- or otherwise to come into the action; (3) imposing conditions on
- the representative parties or on intervenors; (4) requiring that
- the pleadings be amended to eliminate therefrom allegations as to
- representation of absent persons, and that the action proceed
- accordingly; (5) dealing with similar procedural matters. The
- orders may be combined with an order under Rule 16, and may be
- altered or amended as may be desirable from time to time.
-
- (e) Dismissal or Compromise. A class action shall not be
- dismissed or compromised without the approval of the court, and
- notice of the proposed dismissal or compromise shall be given to
- all members of the class in such manner as the court directs.
-
-
- RULE 23.1. DERIVATIVE ACTIONS BY SHAREHOLDERS
-
- In a derivative action brought by one or more shareholders or
- members to enforce a right of a corporation or of an
- unincorporated association, the corporation or association having
- failed to enforce a right which may properly be asserted by it,
- the complaint shall be verified and shall allege (1) that the
- plaintiff was a shareholder or member at the time of the
- transaction of which the plaintiff complains or that the
- plaintiff's share or membership thereafter devolved on the
- plaintiff by operation of law, and (2) that the action is not a
- collusive one to confer jurisdiction on a court of the United
- States which it would not otherwise have. The complaint shall
- also allege with particularity the efforts, if any, made by the
- plaintiff to obtain the action the plaintiff desires
- from the directors or comparable authority and, if necessary,
- from the shareholders or members, and the reasons for the
- plaintiff's failure to obtain the action or for not making the
- effort. The derivative action may not be maintained if it appears
- that the plaintiff does not fairly and adequately represent the
- interests of the shareholders or members similarly situated in
- enforcing the right of the corporation or association. The action
- shall not be dismissed or compromised without the approval of the
- court, and notice of the proposed dismissal or compromise shall
- be given to shareholders or members in such manner as the court
- directs.
-
-
- RULE 23.2. ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS
-
- An action brought by or against the members of an unincorporated
- association as a class by naming certain members as
- representative parties may be maintained only if it appears that
- the representative parties will fairly and adequately protect the
- interests of the association and its members. In the conduct of
- the action the court may make appropriate orders corresponding
- with those described in Rule 23(d), and the procedure for
- dismissal or compromise of the action shall correspond with that
- provided in Rule 23(e).
-
-
- RULE 24. INTERVENTION
-
- (a) Intervention of Right. Upon timely application anyone shall
- be permitted to intervene in an action: (1) when a statute of the
- United States confers an unconditional right to intervene; or (2)
- when the applicant claims an interest relating to the property or
- transaction which is the subject of the action and the applicant
- is so situated that the disposition of the action may as a
- practical matter impair or impede the applicant's ability to
- protect that interest, unless the applicant's interest is
- adequately represented by existing parties.
-
- (b) Permissive Intervention. Upon timely application anyone may
- be permitted to intervene in an action: (1) when a statute of the
- United States confers a conditional right to intervene; or (2)
- when an applicant's claim or defense and the main action have a
- question of law or fact in common. When a party to an action
- relies for ground of claim or defense upon any statute or
- executive order administered by a federal or state governmental
- officer or agency or upon any regulation, order, requirement or
- agreement issued or made pursuant to the statute or executive
- order, the officer or agency upon timely application may be
- permitted to intervene in the action. In exercising its
- discretion the court shall consider whether the intervention will
- unduly delay or prejudice the adjudication of the rights of the
- original parties.
-
- (c) Procedure. A person desiring to intervene shall serve a
- motion to intervene upon the parties as provided in Rule 5. The
- motion shall state the grounds therefor and shall be accompanied
- by a pleading setting forth the claim or defense for which
- intervention is sought. The same procedure shall be followed when
- a statute of the United States gives a right to intervene. When
- the constitutionality of an act of Congress affecting the public
- interest is drawn in question in any action in which the United
- States or an officer, agency, or employee thereof is not a party,
- the court shall notify the Attorney General of the United States
- as provided in Title 28, U.S.C. [sec.] 2403. When the
- constitutionality of any statute of a State affecting the public
- interest is drawn in question in any action in which that State
- or any agency, officer, or employee thereof is not a party, the
- court shall notify the attorney general of the State as provided
- in Title 28, U.S.C. [sec.] 2403. A party challenging the
- constitutionality of legislation should call the attention of the
- court to its consequential duty, but failure to do so is not a
- waiver of any constitutional right otherwise timely asserted.
-
- Note. Amended April 30, 1991, effective December 1, 1991.
-
-
- RULE 25. SUBSTITUTION OF PARTIES
-
- (a) Death.
-
- (1) If a party dies and the claim is not thereby extinguished,
- the court may order substitution of the proper parties. The
- motion for substitution may be made by any party or by the
- successors or representatives of the deceased party and, together
- with the notice of hearing, shall be served on the parties as
- provided in Rule 5 and upon persons not parties in the manner
- provided in Rule 4 for the service of a summons, and may be
- served in any judicial district. Unless the motion for
- substitution is made not later than 90 days after the death is
- suggested upon the record by service of a statement of the fact
- of the death as provided herein for the service of the motion,
- the action shall be dismissed as to the deceased party.
-
- (2) In the event of the death of one or more of the plaintiffs or
- of one or more of the defendants in an action in which the right
- sought to be enforced survives only to the surviving plaintiffs
- or only against the surviving defendants, the action does not
- abate. The death shall be suggested upon the record and the
- action shall proceed in favor of or against the surviving
- parties.
-
- (b) Incompetency. If a party becomes incompetent, the court upon
- motion served as provided in subdivision (a) of this rule may
- allow the action to be continued by or against the party's
- representative.
-
- (c) Transfer of Interest. In case of any transfer of interest,
- the action may be continued by or against the original party,
- unless the court upon motion directs the person to whom the
- interest is transferred to be substituted in the action or joined
- with the original party. Service of the motion shall be made as
- provided in subdivision (a) of this rule.
-
- (d) Public Officers; Death or Separation from Office.
-
- (1) When a public officer is a party to an action in an official
- capacity and during its pendency dies, resigns, or otherwise
- ceases to hold office, the action does not abate and the
- officer's successor is automatically substituted as a party.
- Proceedings following the substitution shall be in the name of
- the substituted party, but any misnomer not affecting the
- substantial rights of the parties shall be disregarded. An order
- of substitution may be entered at any time, but the omission to
- enter such an order shall not affect the substitution.
-
- (2) A public officer who sues or is sued in an official capacity
- may be described as a party by the officer's official title
- rather than by name; but the court may require the officer's name
- to be added.
-
-
- V. DEPOSITIONS AND DISCOVERY
-
-
- RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
-
- (a) Discovery Methods. Parties may obtain discovery by one or
- more of the following methods: depositions upon oral examination
- or written questions; written interrogatories; production of
- documents or things or permission to enter upon land or other
- property, for inspection and other purposes; physical and mental
- examinations; and requests for admission.
-
- /* As provided within these rules, District Courts may make rules
- applicable within their district. Discovery is one of the areas
- in which local rules often provide for procedures quite different
- than those mentioned in the FRCP. */
-
- (b) Discovery Scope and Limits. Unless otherwise limited by order
- of the court in accordance with these rules, the scope of
- discovery is as follows:
-
- (1) In General. Parties may obtain discovery regarding any
- matter, not privileged, which is relevant to the subject matter
- involved in the pending action, whether it relates to the claim
- or defense of the party seeking discovery or to the claim or
- defense of any other party, including the existence, description,
- nature, custody, condition and location of any books, documents,
- or other tangible things and the identity and location of persons
- having knowledge of any discoverable matter. It is not ground for
- objection that the information sought will be inadmissible at the
- trial if the information sought appears reasonably calculated to
- lead to the discovery of admissible evidence.
-
- The frequency or extent of use of the discovery methods set forth
- in subdivision (a) shall be limited by the court if it determines
- that: (i) the discovery sought is unreasonably cumulative or
- duplicative, or is obtainable from some other source that is more
- convenient, less burdensome, or less expensive; (ii) the party
- seeking discovery has had ample opportunity by discovery in the
- action to obtain the information sought; or (iii) the discovery
- is unduly burdensome or expensive, taking into account the needs
- of the case, the amount in controversy, limitations on the
- parties' resources, and the importance of the issues at stake in
- the litigation. The court may act upon its own initiative after
- reasonable notice or pursuant to a motion under subdivision (c).
-
- (2) Insurance Agreements. A party may obtain discovery of the
- existence and contents of any insurance agreement under which any
- person carrying on an insurance business may be liable to satisfy
- part or all of a judgment which may be entered in the action or
- to indemnify or reimburse for payments made to satisfy the
- judgment. Information concerning the insurance agreement is not
- by reason of disclosure admissible in evidence at trial. For
- purposes of this paragraph, an application for insurance shall
- not be treated as part of an insurance agreement.
-
- /* So that the parties know insurance limits as quickly as
- possible and the "demand for limits" game can begin. */
-
-
- (3) Trial Preparation: Materials. Subject to the provisions of
- subdivision (b)(4) of this rule, a party may obtain discovery of
- documents and tangible things otherwise discoverable under
- subdivision (b)(1) of this rule and prepared in anticipation of
- litigation or for the trial by or for another party or by or for
- that other party's representative (including the other party's
- attorney, consultant, surety, indemnitor, insurer, or agent) only
- upon a showing that the party seeking discovery has substantial
- need of the materials in the preparation of the party's case and
- that the party is unable without undue hardship to obtain the
- substantial equivalent of the materials by other means. In
- ordering discovery of such materials when the required showing
- has been made, the court shall protect against disclosure of the
- mental impressions, conclusions, opinions, or legal theories of
- an attorney or other representative of a party concerning the
- litigation.
-
- A party may obtain without the required showing a statement
- concerning the action or its subject matter previously made by
- that party. Upon request, a person not a party may obtain without
- the required showing a statement concerning the action or its
- subject matter previously made by that person. If the request is
- refused, the person may move for a court order. The provisions of
- Rule 37(a)(4) apply to the award of expenses incurred in
- relation to the motion. For purposes of this paragraph, a
- statement previously made is (A) a written statement signed or
- otherwise adopted or approved by the person making it, or (B) a
- stenographic, mechanical, electrical, or other recording, or a
- transcription thereof, which is a substantially verbatim recital
- of an oral statement by the person making it and
- contemporaneously recorded.
-
- (4) Trial Preparation: Experts. Discovery of facts known and
- opinions held by experts, otherwise discoverable under the
- provisions of subdivision (b)(1) of this rule and acquired or
- developed in anticipation of litigation or for trial, may be
- obtained only as follows:
-
- (A)(i) A party may through interrogatories require any other
- party to identify each person whom the other party expects to
- call as an expert witness at trial, to state the subject matter
- on which the expert is expected to testify, and to state the
- substance of the facts and opinions to which the expert is
- expected to testify and a summary of the grounds for each
- opinion. (ii) Upon motion, the court may order further discovery
- by other means, subject to such restrictions as to scope and such
- provisions, pursuant to subdivision (b)(4)(C) of this rule,
- concerning fees and expenses as the court may deem appropriate.
-
- (B) A party may discover facts known or opinions held by an
- expert who has been retained or specially employed by another
- party in anticipation of litigation or preparation for trial and
- who is not expected to be called as a witness at trial, only as
- provided in Rule 35(b) or upon a showing of exceptional
- circumstances under which it is impracticable for the party
- seeking discovery to obtain facts or opinions on the same subject
- by other means.
-
- (C) Unless manifest injustice would result, (i) the court shall
- require that the party seeking discovery pay the expert a
- reasonable fee for time spent in responding to discovery under
- subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii)
- with respect to discovery obtained under subdivision
- (b)(4)(A)(ii) of this rule the court may require, and with
- respect to discovery obtained under subdivision (b)(4)(B) of this
- rule the court shall require, the party seeking discovery to pay
- the other party a fair portion of the fees and expenses
- reasonably incurred by the latter party in obtaining facts and
- opinions from the expert.
-
- (c) Protective Orders. Upon motion by a party or by the person
- from whom discovery is sought, and for good cause shown, the
- court in which the action is pending or alternatively, on matters
- relating to a deposition, the court in the district where the
- deposition is to be taken may make any order which justice
- requires to protect a party or person from annoyance,
- embarrassment, oppression, or undue burden or expense, including
- one or more of the following: (1) that the discovery not be had;
- (2) that the discovery may be had only on specified terms and
- conditions, including a designation of the time or place; (3)
- that the discovery may be had only by a method of
- discovery other than that selected by the party seeking
- discovery; (4) that certain matters not be inquired into, or that
- the scope of the discovery be limited to certain matters; (5)
- that discovery be conducted with no one present except persons
- designated by the court; (6) that a deposition after being sealed
- be opened only by order of the court; (7) that a trade secret or
- other confidential research, development, or commercial
- information not be disclosed or be disclosed only in a designated
- way; (8) that the parties simultaneously file specified documents
- or information enclosed in sealed envelopes to be opened as
- directed by the court.
-
- If the motion for a protective order is denied in whole or in
- part, the court may, on such terms and conditions as are just,
- order that any party or person provide or permit discovery. The
- provisions of Rule 37(a)(4) apply to the award of expenses
- incurred in relation to the motion.
-
- (d) Sequence and Timing of Discovery. Unless the court upon
- motion, for the convenience of parties and witnesses and in the
- interests of justice, orders otherwise, methods of discovery may
- be used in any sequence and the fact that a party is conducting
- discovery, whether by deposition or otherwise, shall not operate
- to delay any other party's discovery.
-
- (e) Supplementation of Responses. A party who has responded to a
- request for discovery with a response that was complete when made
- is under no duty to supplement the response to include
- information thereafter acquired, except as follows:
-
- (1) A party is under a duty seasonably to supplement the response
- with respect to any question directly addressed to (A) the
- identity and location of persons having knowledge of discoverable
- matters, and (B) the identity of each person expected to be
- called as an expert witness at trial, the subject matter on which
- the person is expected to testify, and the substance of the
- person's testimony.
-
-
- (2) A party is under a duty seasonably to amend a prior response
- if the party obtains information upon the basis of which (A) the
- party knows that the response was incorrect when made, or (B) the
- party knows that the response though correct when made is no
- longer true and the circumstances are such that a failure to
- amend the response is in substance a knowing concealment.
-
- /* Two exceptions to the rule of no supplementation. */
-
- (3) A duty to supplement responses may be imposed by order of the
- court, agreement of the parties, or at any time prior to trial
- through new requests for supplementation of prior responses.
-
- (f) Discovery Conference. At any time after commencement of an
- action the court may direct the attorneys for the parties to
- appear before it for a conference on the subject of discovery.
- The court shall do so upon motion by the attorney for any party
- if the motion includes:
-
- (1) A statement of the issues as they then appear;
-
- (2) A proposed plan and schedule of discovery;
-
- (3) Any limitations proposed to be placed on discovery;
-
- (4) Any other proposed orders with respect to discovery; and
-
- (5) A statement showing that the attorney making the motion has
- made a reasonable effort to reach agreement with opposing
- attorneys on the matters set forth in the motion. Each party and
- each party's attorney are under a duty to participate in good
- faith in the framing of a discovery plan if a plan is proposed by
- the attorney for any party. Notice of the motion shall be served
- on all parties. Objections or additions to matters set forth in
- the motion shall be served not later than 10 days after service
- of the motion.
-
- Following the discovery conference, the court shall enter an
- order tentatively identifying the issues for discovery purposes,
- establishing a plan and schedule for discovery, setting
- limitations on discovery, if any; and determining such other
- matters, including the allocation of expenses, as are necessary
- for the proper management of discovery in the action. An order
- may be altered or amended whenever justice so requires.
-
- Subject to the right of a party who properly moves for a
- discovery conference to prompt convening of the conference, the
- court may combine the discovery conference with a pretrial
- conference authorized by Rule 16.
-
- (g) Signing of Discovery Requests, Responses, and Objections.
- Every request for discovery or response or objection thereto made
- by a party represented by an attorney shall be signed by at least
- one attorney of record in the attorney's individual name, whose
- address shall be stated. A party who is not represented by an
- attorney shall sign the request, response, or objection and state
- the party's address. The signature of the attorney or party
- constitutes a certification that the signer has read the request,
- response, or objection, and that to the best of the signer's
- knowledge, information, and belief formed after a reasonable
- inquiry it is:
-
- (1) consistent with these rules and warranted by existing law or
- a good faith argument for the extension, modification, or
- reversal of existing law; (2) not interposed for any improper
- purpose, such as to harass or to cause unnecessary delay or
- needless increase in the cost of litigation; and (3) not
- unreasonable or unduly burdensome or expensive, given the needs
- of the case, the discovery already had in the case, the amount in
- controversy, and the importance of the issues at stake in the
- litigation. If a request, response, or objection is not signed,
- it shall be stricken unless it is signed promptly after the
- omission is called to the attention of the party making the
- request, response, or objection, and a party shall not be
- obligated to take any action with respect to it until it is
- signed.
-
- If a certification is made in violation of the rule, the court,
- upon motion or upon its own initiative, shall impose upon the
- person who made the certification, the party on whose behalf the
- request, response, or objection is made, or both, an appropriate
- sanction, which may include an order to pay the amount of the
- reasonable expenses incurred because of the violation, including
- a reasonable attorney's fee.
-
-