Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/frcp6.asc

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/* The final part of the FRCP. */

A party objecting to the recommended disposition of the matter
shall promptly arrange for the transcription of the record, or
portions of it as all parties may agree upon or the magistrate
deems sufficient, unless the district judge otherwise directs.
Within 10 days after being served with a copy of the recommended
disposition, a party may serve and file specific, written
objections to the proposed findings and recommendations. A party
may respond to another party's objections within 10 days after
being served with a copy thereof. The district judge to whom the
case is assigned shall make a de novo determination upon the
record, or after additional evidence, of any portion of the
magistrate's disposition to which specific written objection has
been made in accordance with this rule. The district judge may
accept, reject, or modify the recommended decision, receive
further evidence, or recommit the matter to the magistrate with
instructions.

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


RULE 73. MAGISTRATES; TRIAL BY CONSENT AND APPEAL OPTIONS

(a) Powers; Procedure. When specially designated to exercise such
jurisdiction by local rule or order of the district court and
when all parties consent thereto, a magistrate may exercise the
authority provided by Title 28, U.S.C. [sec.] 636(c) and may
conduct any or all proceedings, including a jury or nonjury
trial, in a civil case. A record of the proceedings shall be made
in accordance with the requirements of Title 28, U.S.C. [sec.]
636(c)(7).

(b) Consent. When a magistrate has been designated to exercise
civil trial jurisdiction, the clerk shall give written notice to
the parties of their opportunity to consent to the exercise by a
magistrate of civil jurisdiction over the case, as authorized by
Title 28, U.S.C. [sec.] 636(c). If, within the period specified
by local rule, the parties agree to a magistrate's exercise of
such authority, they shall execute and file a joint form of
consent or separate forms of consent setting forth such election.

No district judge, magistrate, or other court official shall
attempt to persuade or induce a party to consent to a reference
of a civil matter to a magistrate under this rule, nor shall a
district judge or magistrate be informed of a party's response to
the clerk's notification, unless all parties have consented to
the referral of the matter to a magistrate.


The district judge, for good cause shown on the judge's motion,
or under extraordinary circumstances shown by a party, may vacate
a reference of a civil matter to a magistrate under this
subdivision.


(c) Normal Appeal Route. In accordance with Title 28, U.S.C.
[sec.] 636(c)(3), unless the parties otherwise agree to the
optional appeal route provided for in subdivision (d) of this
rule, appeal from a judgment entered upon direction of a
magistrate in proceedings under this rule will lie to the court
of appeals as it would from a judgment of the district court.

(d) Optional Appeal Route. In accordance with Title 28, U.S.C.
[sec.] 636(c)(4), at the time of reference to a magistrate, the
parties may consent to appeal on the record to a judge of the
district court and thereafter, by petition only, to the court of
appeals.


RULE 74. METHOD OF APPEAL FROM MAGISTRATE TO DISTRICT JUDGE UNDER
TITLE 28, U.S.C. [sec.] 636(c)(4) AND RULE 73(d)

(a) When Taken. When the parties have elected under Rule 73(d) to
proceed by appeal to a district judge from an appealable decision
made by a magistrate under the consent provisions of Title 28,
U.S.C. [sec.] 636(c)(4), an appeal may be taken from the decision
of a magistrate by filing with the clerk of the district court a
notice of appeal within 30 days of the date of entry of the
judgment appealed from; but if the United States or an officer or
agency thereof is a party, the notice of appeal may be filed by
any party within 60 days of such entry. If a timely notice of
appeal is filed by a party, any other party may file a notice of
appeal within 14 days thereafter, or within the time otherwise
prescribed by this subdivision, whichever period last expires.

The running of the time for filing a notice of appeal is
terminated as to all parties by the timely filing of any of the
following motions with the magistrate by any party, and the full
time for appeal from the judgment entered by the magistrate
commences to run anew from entry of any of the following orders:
(1) granting or denying a motion for judgment under Rule 50(b);
(2) granting or denying a motion under Rule 52(b) to amend or
make additional findings of fact, whether or not an alteration of
the judgment would be required if the motion is granted; (3)
granting or denying a motion under Rule 59 to alter or amend the
judgment; (4) denying a motion for a new trial under Rule 59.

An interlocutory decision or order by a magistrate which, if made
by a judge of the district court, could be appealed under any
provision of law, may be appealed to a judge of the district
court by filing a notice of appeal within 15 days after entry of
the decision or order, provided the parties have elected to
appeal to a judge of the district court under Rule 73(d). An
appeal of such interlocutory decision or order shall not stay the
proceedings before the magistrate unless the magistrate or judge
shall so order.

Upon a showing of excusable neglect, the magistrate may extend
the time for filing a notice of appeal upon motion filed not
later than 20 days after the expiration of the time otherwise
prescribed by this rule.

(b) Notice of Appeal; Service. The notice of appeal shall specify
the party or parties taking the appeal, designate the judgment,
order or part thereof appealed from, and state that the appeal is
to a judge of the district court. The clerk shall mail copies of
the notice to all other parties and note the date of mailing in
the civil docket.

(c) Stay Pending Appeal. Upon a showing that the magistrate has
refused or otherwise failed to stay the judgment pending appeal
to the district judge under Rule 73(d), the appellant may make
application for a stay to the district judge with reasonable
notice to all parties. The stay may be conditioned upon the
filing in the district court of a bond or other appropriate
security.

(d) Dismissal. For failure to comply with these rules or any
local rule or order, the district judge may take such action as
is deemed appropriate, including dismissal of the appeal. The
district judge also may dismiss the appeal upon the filing of a
stipulation signed by all parties, or upon motion and notice by
the appellant.


RULE 75. PROCEEDINGS ON APPEAL FROM MAGISTRATE TO DISTRICT JUDGE
UNDER RULE 73(d)

(a) Applicability. In proceedings under Title 28, U.S.C. [sec.]
636(c), when the parties have previously elected under Rule 73(d)
to appeal to a district judge rather than to the court of
appeals, this rule shall govern the proceedings on appeal.

(b) Record on Appeal.

(1) Composition. The original papers and exhibits filed with the
clerk of the district court, the transcript of the proceedings,
if any, and the docket entries shall constitute the record on
appeal.  In lieu of this record the parties, within 10 days after
the filing of the notice of appeal, may file a joint statement of
the case showing how the issues presented by the appeal arose and
were decided by the magistrate, and setting forth only so many of
the facts averred and proved or sought to be proved as are
essential to a decision of the issues presented.

(2) Transcript. Within 10 days after filing the notice of appeal
the appellant shall make arrangements for the production of a
transcript of such parts of the proceedings as the appellant
deems necessary. Unless the entire transcript is to be included,
the appellant, within the time provided above, shall serve on the
appellee and file with the court a description of the parts of
the transcript which the appellant intends to present on the
appeal. If the appellee deems a transcript of other parts of the
proceedings to be necessary, within 10 days after the service of
the statement of the appellant, the appellee shall serve on the
appellant and file with the court a designation of additional
parts to be included. The appellant shall promptly make
arrangements for the inclusion of all such parts unless the
magistrate, upon motion, exempts the appellant from providing
certain parts, in which case the appellee may provide for their
transcription.

(3) Statement in Lieu of Transcript. If no record of the
proceedings is available for transcription, the parties shall,
within 10 days after the filing of the notice of appeal, file a
statement of the evidence from the best available means to be
submitted in lieu of the transcript. If the parties cannot agree
they shall submit a statement of their differences to the
magistrate for settlement.

(c) Time for Filing Briefs. Unless a local rule or court order
otherwise provides, the following time limits for filing briefs
shall apply.

(1) The appellant shall serve and file the appellant's brief
within 20 days after the filing of the transcript, statement of
the case, or statement of the evidence.

(2) The appellee shall serve and file the appellee's brief within
20 days after service of the brief of the appellant.

(3) The appellant may serve and file a reply brief within 10 days
after service of the brief of the appellee.

(4) If the appellee has filed a cross-appeal, the appellee may
file a reply brief limited to the issues on the cross-appeal
within 10 days after service of the reply brief of the appellant.

(d) Length and Form of Briefs. Briefs may be typewritten. The
length and form of briefs shall be governed by local rule.

(e) Oral Argument. The opportunity for the parties to be heard on
oral argument shall be governed by local rule.


RULE 76. JUDGMENT OF THE DISTRICT JUDGE ON THE APPEAL UNDER RULE
73(d) AND COSTS

(a) Entry of Judgment. When the parties have elected under Rule
73(d) to appeal from a judgment of the magistrate to a district
judge, the clerk shall prepare, sign, and enter judgment in
accordance with the order or decision of the district judge
following an appeal from a judgment of the magistrate, unless the
district judge directs otherwise. The clerk shall mail to all
parties a copy of the order or decision of the district judge.

(b) Stay of Judgments. The decision of the district judge shall
be stayed for 10 days during which time a party may petition the
district judge for rehearing, and a timely petition shall stay
the decision of the district judge pending disposition of a
petition for rehearing. Upon the motion of a party, the decision
of the district judge may be stayed in order to allow a party to
petition the court of appeals for leave to appeal.

(c) Costs. Except as otherwise provided by law or ordered by the
district judge, costs shall be taxed against the losing party; if
a judgment of the magistrate is affirmed in part or reversed in
part, or is vacated, costs shall be allowed only as ordered by
the district judge. The cost of the transcript, if necessary for
the determination of the appeal, and the premiums paid for bonds
to preserve rights pending appeal shall be taxed as costs by the
clerk.


X. DISTRICT COURTS AND CLERKS


RULE 77. DISTRICT COURTS AND CLERKS

(a) District Courts Always Open. The district courts shall be
deemed always open for the purpose of filing any pleading or
other proper paper, of issuing and returning mesne and final
process, and of making and directing all interlocutory motions,
orders, and rules.

(b) Trials and Hearings; Orders in Chambers. All trials upon the
merits shall be conducted in open court and so far as convenient
in a regular court room. All other acts or proceedings may be
done or conducted by a judge in chambers, without the attendance
of the clerk or other court officials and at any place either
within or without the district; but no hearing, other than one ex
parte, shall be conducted outside the district without the
consent of all parties affected thereby.

(c) Clerk's Office and Orders by Clerk. The clerk's office with
the clerk or a deputy in attendance shall be open during business
hours on all days except Saturdays, Sundays, and legal holidays,
but a district court may provide by local rule or order that its
clerk's office shall be open for specified hours on Saturdays or
particular legal holidays other than 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, and Christmas Day. All motions and applications
in the clerk's office for issuing mesne process, for issuing
final process to enforce and execute judgments, for entering
defaults or judgments by default, and for other proceedings which
do not require allowance or order of the court are grantable of
course by the clerk; but the clerk's action may be suspended or
altered or rescinded by the court upon cause shown.

(d)  Notice of Orders or Judgments. Immediately upon the entry of
an order or judgment the clerk shall serve a notice of the entry
by mail in the manner provided for in Rule 5 upon each party who
is not in default for failure to appear, and shall make a note in
the docket of the mailing. Any party may in addition serve a
notice of such entry in the manner provided in Rule 5 for the
service of papers. Lack of notice of the entry by the clerk does
not affect the time of appeal or relieve or authorize the court
to relieve a party for failure to appeal within the time allowed,
except as permitted in Rule 4(a) of the Federal Rules of
Appellate Procedure.

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


RULE 78. MOTION DAY

Unless local conditions make it impracticable, each district
court shall establish regular times and places, at intervals
sufficiently frequent for the prompt dispatch of business, at
which motions requiring notice and hearing may be heard and
disposed of; but the judge at any time or place and on such
notice, if any, as the judge considers reasonable may make orders
for the advancement, conduct, and hearing of actions.

To expedite its business, the court may make provision by rule or
order for the submission and determination of motions without
oral hearing upon brief written statements of reasons in support
and opposition.


RULE 79. BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIES THEREIN

(a) Civil Docket. The clerk shall keep a book known as "civil
docket" of such form and style as may be prescribed by the
Director of the Administrative Office of the United States Courts
with the approval of the Judicial Conference of the United
States, and shall enter therein each civil action to which these
rules are made applicable. Actions shall be assigned consecutive
file numbers. The file number of each action shall be noted on
the folio of the docket whereon the first entry of the action is
made. All papers filed with the clerk, all process issued and
returns made thereon, all appearances, orders, verdicts, and
judgments shall be entered chronologically in the civil docket on
the folio assigned to the action and shall be marked with its
file number. These entries shall be brief but shall show the
nature of each paper filed or writ issued and the substance of
each order or judgment of the court and of the returns showing
execution of process. The entry of an order or judgment shall
show the date the entry is made. When in an action trial by jury
has been properly demanded or ordered the clerk shall enter the
word "jury" on the folio assigned to that action.

(b) Civil Judgments and Orders. The clerk shall keep, in such
form and manner as the Director of the Administrative Office of
the United States Courts with the approval of the Judicial
Conference of the United States may prescribe, a correct copy of
every final judgment or appealable order, or order affecting
title to or lien upon real or personal property, and any other
order which the court may direct to be kept.

(c) Indices; Calendars. Suitable indices of the civil docket and
of every civil judgment and order referred to in subdivision (b)
of this rule shall be kept by the clerk under the direction of
the court. There shall be prepared under the direction of the
court calendars of all actions ready for trial, which shall
distinguish "jury actions" from "court actions."

(d) Other Books and Records of the Clerk. The clerk shall also
keep such other books and records as may be required from time to
time by the Director of the Administrative Office of the United
States Courts with the approval of the Judicial Conference of the
United States.


RULE 80. STENOGRAPHER; STENOGRAPHIC REPORT OR TRANSCRIPT AS
EVIDENCE

(a) [Abrogated]

(b) [Abrogated]

(c) Stenographic Report or Transcript as Evidence. Whenever the
testimony of a witness at a trial or hearing which was
stenographically reported is admissible in evidence at a later
trial, it may be proved by the transcript thereof duly certified
by the person who reported the testimony.


XI.    GENERAL PROVISIONS


RULE 81. APPLICABILITY IN GENERAL

(a) To What Proceedings Applicable.

(1) These rules do not apply to prize proceedings in admiralty
governed by Title 10, U.S.C. [sec.] 7651-7681. They do not apply
to proceedings in bankruptcy or proceedings in copyright under
Title 17, U.S.C., except in so far as they may be made applicable
thereto by rules promulgated by Supreme Court of the United
States. They do not apply to mental health proceedings in the
United States District Court for the District of Columbia.

(2) These rules are applicable to proceedings for admission to
citizenship, habeas corpus, and quo warranto, to the extent that
the practice in such proceedings is not set forth in statutes of
 the United States and has heretofore conformed to the practice
of civil actions. The writ of habeas corpus, or order to show
cause, shall be directed to the person having custody of the
person detained. It shall be returned within 3 days unless for
good cause shown additional time is allowed which in cases
brought under 28 U.S.C. [sec.] 2254 shall not exceed 40 days, and
in all other cases shall not exceed 20 days.

(3) In proceedings under Title 9, U.S.C., relating to
arbitration, or under the Act of May 20, 1926, ch. 347, [sec.] 9
(44 Stat.585), U.S.C., Title 45, [sec.] 159, relating to boards
of arbitration of railway labor disputes, these rules apply only
to the extent that matters of procedure are not provided for in
those statutes. These rules apply to proceedings to compel the
giving of testimony or production of documents in accordance with
a subpoena issued by an officer or agency of the United States
under any statute of the United States except as otherwise
provided by statute or by rules of the district court or by order
of the court in the proceedings.

(4) These rules do not alter the method prescribed by the Act of
February 18, 1922, c. 57, [sec.] 2 (42 Stat. 388), U.S.C., Title
7, [sec.] 292; or by the Act of June 10, 1930, c. 436, [sec.] 7
(46 Stat. 534), as amended, U.S.C., Title 7, [sec.] 499g(c), for
instituting proceedings in the United States district courts to
review orders of the Secretary of Agriculture; or prescribed by
the Act of June 25, 1934, c. 742, [sec.] 2 (48 Stat. 1214),
U.S.C., Title 15, [sec.] 522, for instituting proceedings to
review orders of the Secretary of the Interior; or prescribed by
the Act of February 22, 1935, c. 18, [sec.] 5 (49 Stat.31),
U.S.C., Title 15, [sec.] 715d(c), as extended, for instituting
proceedings to review orders of petroleum control boards; but the
conduct of such proceedings in the district courts shall be made
to conform to these rules so far as applicable.

(5) These rules do not alter the practice in the United States
district courts prescribed in the Act of July 5, 1935, c. 372,
[sec.] 9 and 10 (49 Stat. 453), as amended, U.S.C., Title 29,
[sec.] 159 and 160, for beginning and conducting proceedings to
enforce orders of the National Labor Relations Board; and in
respects not covered by those statutes, the practice in the
district courts shall conform to these rules so far as
applicable.

(6) These rules apply to proceedings for enforcement or review of
compensation orders under the Longshoremen's and Harbor Workers'
Compensation Act, Act of March 4, 1927, c. 509, [sec.] 18, 21 (44
Stat. 1434, 1436), as amended, U.S.C., Title 33, [sec.] 918, 921,
except to the extent that matters of procedure are provided for
in that Act. The provisions for service by publication and for
answer in proceedings to cancel certificates of citizenship under
the Act of June 27, 1952, c. 477, Title III, c. 2, [sec.] 340 (66
Stat. 260), U.S.C., Title 8, [sec.] 1451, remain in effect.

(7)    [Abrogated]

(b) Scire Facias and Mandamus. The writs of scire facias and
mandamus are abolished. Relief heretofore available by mandamus or
scire facias may be obtained by appropriate action or by
appropriate motion under the practice prescribed in these rules.

(c) Removed Actions. These rules apply to civil actions removed
to the United States district courts from the state courts and
govern procedure after removal. Repleading is not necessary
unless the court so orders. In a removed action in which the
defendant has not answered, the defendant shall answer or present
the other defenses or objections available under these rules
within 20 days after the receipt through service or otherwise of
a copy of the initial pleading setting forth the claim for relief
upon which the action or proceeding is based, or within 20 days
after the service of summons upon such initial pleading, then
filed, or within 5 days after the filing of the petition for
removal, whichever period is longest. If at the time of removal
all necessary pleadings have been served, a party entitled to
trial by jury under Rule 38 shall be accorded it, if the party's
demand therefor is served within 10 days after the petition for
removal is filed if the party is the petitioner, or if not the
petitioner within 10 days after service on the party of the
notice of filing the petition. A party who, prior to removal, has
made an express demand for trial by jury in accordance with state
law, need not make a demand after removal. If state law
applicable in the court from which the case is removed does not
require the parties to make express demands in order to
claim trial by jury, they need not make demands after removal
unless the court directs that they do so within a specified time
if they desire to claim trial by jury. The court may make this
direction on its own motion and shall do so as a matter of course
at the request of any party. The failure of a party to make
demand as directed constitutes a waiver by that party of trial by
jury.

(d) [Abrogated]

(e) Law Applicable. Whenever in these rules the law of the state
in which the district court is held is made applicable, the law
applied in the District of Columbia governs proceedings in the
United States District Court for the District of Columbia. When
the word "state" is used, it includes, if appropriate, the
District of Columbia. When the term "statute of the United
States" is used, it includes, so far as concerns proceedings in
the United States District Court for the District of Columbia,
any Act of Congress locally applicable to and in force in the
District of Columbia. When the law of a state is referred to, the
word "law" includes the statutes of that state and the state
judicial decisions construing them.

(f) References to Officer of the United States. Under any rule in
which reference is made to an officer or agency of the United
States, the term "officer" includes a district director of
internal revenue, a former district director or collector of
internal revenue, or the personal representative of a deceased
district director or collector of internal revenue.


RULE 82. JURISDICTION AND VENUE UNAFFECTED

These rules shall not be construed to extend or limit the
jurisdiction of the United States district courts or the venue of
actions therein. An admiralty or maritime claim within the
meaning of Rule 9(h) shall not be treated as a civil action for
the purposes of Title 28, U.S.C. [sec.] 1391-93.


RULE 83. RULES BY DISTRICT COURTS

Each district court by action of a majority of the judges thereof
may from time to time, after giving appropriate public notice and
an opportunity to comment, make and amend rules governing its
practice not inconsistent with these rules. A local rule so
adopted shall take effect upon the date specified by the district
court and shall remain in effect unless amended by the district
court or abrogated by the judicial council of the circuit in
which the district is located. Copies of rules and amendments so
made by any district court shall upon their promulgation be
furnished to the judicial council and the Administrative Office
of the United States Courts and be made available to the public.
In all cases not  provided for by rule, the district judges and
magistrates may regulate their practice in any manner not
inconsistent with these rules or those of the district in which
they act.


RULE 84. FORMS

The forms contained in the Appendix of Forms [not included
herein] are sufficient under the rules and are intended to
indicate the simplicity and brevity of statement which the rules
contemplate.


RULE 85. TITLE

These rules may be known and cited as the Federal Rules of Civil
Procedure.


RULE 86. EFFECTIVE DATE

(a) [Effective Date of Original Rules]. These rules will take
effect on the day which is 3 months subsequent to the adjournment
of the second regular session of the 75th Congress, but if that
day is prior to September 1, 1938, then these rules will take
effect on September 1, 1938. They govern all proceedings in
actions brought after they take effect and also all further
proceedings in actions then pending, except to the extent that in
the opinion of the court their application in a particular action
pending when the rules take effect would not be feasible or would
work injustice, in which event the former procedure applies.

(b) Effective Date of Amendments. The amendments adopted by the
Supreme Court on December 27, 1946, and transmitted to the
Attorney General on January 2, 1947, shall take effect on the day
which is three months subsequent to the adjournment of the first
regular session of the 80th Congress, but, if that day is prior
to September 1, 1947, then these amendments shall take effect on
September 1, 1947. They govern all proceedings in actions brought
after they take effect and also all further proceedings in
actions then pending, except to the extent that in the opinion of
the court their application in a particular action pending when
the amendments take effect would not be feasible or would work
injustice, in which event the former procedure applies.

(c)  Effective Date of Amendments. The amendments adopted by the
Supreme Court on December 29, 1948, and transmitted to the
Attorney General on December 31, 1948, shall take effect on the
day following the adjournment of the first regular session of the
81st Congress.

(d) Effective Date of Amendments. The amendments adopted by the
Supreme Court on April 17, 1961, and transmitted to the Congress
on April 18, 1961, shall take effect on July 19, 1961. They
govern all proceedings in actions brought after they take effect
and also all further proceedings in actions then pending, except
to the extent that in the opinion of the court their application
in a particular action pending when the amendments take effect
would not be feasible or would work injustice, in which event the
formerprocedure applies.

(e) Effective Date of Amendments. The amendments adopted by the
Supreme Court on January 21, 1963, and transmitted to the
Congress on January 21, 1963, shall take effect on July 1, 1963.
They govern all proceedings in actions brought after they take
effect and also all further proceedings in actions then pending,
except to the extent that in the opinion of the court their
application in a particular action pending when the amendments
take effect would not be feasible or would work injustice, in
which event the former procedure applies.