(2) By the Court. In all other cases the party entitled to a
judgment by default shall apply to the court therefor; but no
judgment by default shall be entered against an infant or
incompetent person unless represented in the action by a general
guardian, committee, conservator, or other such representative
who has appeared therein. If the party against whom judgment by
default is sought has appeared in the action, the party (or, if
appearing by representative, the party's representative) shall be
served with written notice of the application for judgment at
least 3 day prior to the hearing on such application. If, in
order to enable the court to enter judgment or to carry it into
effect, it is necessary to take an account or to determine the
amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the
court may conduct such hearings or order such references as it
deems necessary and proper and shall accord a right of trial by
jury to the parties when and as required by any statute of the
United States.
(c) Setting Aside Default. For good cause shown the court may set
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule 60(b).
(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions
of this rule apply whether the party entitled to the judgment by
default is a plaintiff, a third-party plaintiff, or a party who
has pleaded a cross-claim or counterclaim. In all cases a
judgment by default is subject to the limitations of Rule 54(c).
(e) Judgment Against the United States. No judgment by default
shall be entered against the United States or an officer or
agency thereof unless the claimant establishes a claim or right
to relief by evidence satisfactory to the court.
RULE 56. SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment
may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for
summary judgment by the adverse party, move with or without
supporting affidavits for a summary judgment in the party's favor
upon all or any part thereof.
(b) For Defending Party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory
judgment is sought may, at any time, move with or without
supporting affidavits for a summary judgment in the party's favor
as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at
least 10 days before the time fixed for the hearing. The adverse
party prior to the day of hearing may serve opposing affidavits.
The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file,together with the affidavits, if any, show that there is no
genui ne issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. A summary judgment,
interlocutory in character, may be rendered on the issue of
liability alone although there is a genuine issue as to the
amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under this
rule judgment is not rendered upon the whole case or for all the
relief asked and a trial is necessary, the court at the hearing
of the motion, by examining the pleadings and the evidence before
it and by interrogating counsel, shall if practicable ascertain
what material facts exist without substantial controversy and
what material facts are actually and in good faith controverted.
It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and
directing such further proceedings in the action as are just. Upon
the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The
court may permit affidavits to be supplemented or opposed by
depositions, answers to interrogatories, or further affidavits.
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party's pleading, but
the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse party does not
so respond, summary judgment, if appropriate, shall be entered
against the adverse party.
/* This is particularly important for cases involving conspiracy.
A party cannot rest on its pleadings as to factual matters. */
(f) When Affidavits are Unavailable. Should it appear from the
affidavits of a party opposing the motion that the party cannot
for reasons stated present by affidavit facts essential to
justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery
to be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or
solely for the purpose of delay, the court shall forthwith order
the party employing them to pay to the other party the amount of
the reasonable expenses which the filing of the affidavits caused
the other party to incur, including reasonable attorney's fees,
and any offending party or attorney may be adjudged guilty of
contempt.
RULE 57. DECLARATORY JUDGMENTS
The procedure for obtaining a declaratory judgment pursuant to
Title 28 U.S.C. [sec.] 2201, shall be in accordance with these
rules, and the right to trial by jury may be demanded under the
circumstances and in the manner provided in Rules 38 and 39. The
existence of another adequate remedy does not preclude a judgment
for declaratory relief in cases where it is appropriate. The
court may order a speedy hearing of an action for a declaratory
judgment and may advance it on the calendar.
RULE 58. ENTRY OF JUDGMENT
Subject to the provisions of Rule 54(b): (1) upon a general
verdict of a jury, or upon a decision by the court that a party
shall recover only a sum certain or costs or that all relief
shall be denied, the clerk, unless the court otherwise orders,
shall forthwith prepare, sign, and enter the judgment without
awaiting any direction by the court; (2) upon a decision by the
court granting other relief, or upon a special verdict or a
general verdict accompanied by answers to interrogatories, the
court shall promptly approve the form of the judgment, and the
clerk shall thereupon enter it. Every judgment shall be set forth
on a separate document. A judgment is effective only when so set
forth and when entered as provided in Rule 79(a). Entry of the
judgment shall not be delayed for the taxing of costs. Attorneys
shall not submit forms of judgment except upon direction of the
court, and these directions shall not be given as a matter of
course.
RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS
(a) Grounds. A new trial may be granted to all or any of the
parties and on all or part of the issues (1) in an action in
which there has been a trial by jury, for any of the reasons for
which new trials have heretofore been granted in actions at law
in the courts of the United States; and (2) in an action tried
without a jury, for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the
United States. On a motion for a new trial in an action tried
without a jury, the court may open the judgment if one has been
entered, take additional testimony, amend findings of fact and
conclusions of law or make new findings and conclusions, and
direct the entry of a new judgment.
(b) Time for Motion. A motion for a new trial shall be served not
later than 10 days after the entry of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is
based upon affidavits they shall be served with the motion. The
opposing party has 10 days after such service within which to
serve opposing affidavits, which period may be extended for an
additional period not exceeding 20 days either by the court for
good cause shown or by the parties by written stipulation. The
court may permit reply affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of
judgment the court of its own initiative may order a new trial
for any reason for which it might have granted a new trial on
motion of a party. After giving the parties notice and an
opportunity to be heard on the matter, the court may grant a
motion for a new trial, timely served, for a reason not stated in
the motion. In either case, the court shall specify in the order
the grounds therefor.
(e) Motion to Alter or Amend a Judgment. A motion to alter or
amend the judgment shall be served not later than 10 days after
entry of the judgment.
RULE 60. RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time
of its own initiative or on the motion of any party and after
such notice, if any, as the court orders. During the pendency of
an appeal, such mistakes may be so corrected before the appeal is
docketed in the appellate court, and thereafter while the appeal
is pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, etc. On motion and upon such terms as are just,
the court may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than
one year after the judgment, order, or proceeding was entered or
taken. A motion under this subdivision (b) does not affect the
finality of a judgment or suspend its operation. This rule does
not limit the power of a court to entertain an independent action
to relieve a party from a judgment, order, or proceeding, or to
grant relief to a defendant not actually personally notified as
provided in Title 28, U.S.C. [sec.] 1655, or to set aside a
judgment for fraud upon the court. Writs of coram nobis, coram
vobis, audita querela, and bills of review and bills in the
nature of a bill of review, are abolished, and the
procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action.
RULE 61. HARMLESS ERROR
No error in either the admission or the exclusion of evidence and
no error or defect in any ruling or order or in anything done or
omitted by the court or by any of the parties is ground for
granting a new trial or for setting aside a verdict or for
vacating, modifying or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage
of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.
RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(a) Automatic Stay; Exceptions-Injunctions, Receiverships, and
Patent Accountings. Except as stated herein, no execution shall
issue upon a judgment nor shall proceedings be taken for its
enforcement until the expiration of 10 days after its entry.
Unless otherwise ordered by the court, an interlocutory or final
judgment in an action for an injunction or in a receivership
action, or a judgment or order directing an accounting in an
action for infringement of letters patent, shall not be stayed
during the period after its entry and until an appeal is taken or
during the pendency of an appeal. The provisions of subdivision
(c) of this rule govern the suspending, modifying, restoring, or
granting of an injunction during the pendency of an appeal.
(b) Stay on Motion for New Trial or for Judgment. In its
discretion and on such conditions for the security of the adverse
party as are proper, the court may stay the execution of or any
proceedings to enforce a judgment pending the disposition of a
motion for a new trial or to alter or amend a judgment made
pursuant to Rule 59, or of a motion for relief from a judgment or
order made pursuant to Rule 60, or of a motion for judgment in
accordance with a motion for a directed verdict made pursuant to
Rule 50, or of a motion for amendment to the findings or for
additional findings made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an appeal is taken from an
interlocutory or final judgment granting, dissolving, or denying
an injunction, the court in its discretion may suspend, modify,
restore, or grant an injunction during the pendency of the appeal
upon such terms as to bond or otherwise as it considers proper
for the security of the rights of the adverse party. If the
judgment appealed from is rendered by a district court of three
judges specially constituted pursuant to a statute of the United
States, no such order shall be made except (1) by such court
sitting in open court or (2) by the assent of all the judges of
such court evidenced by their signatures to the order.
(d) Stay Upon Appeal. When an appeal is taken the appellant by
giving a supersedeas bond may obtain a stay subject to the
exceptions contained in subdivision (a) of this rule. The bond
may be given at or after the time of filing the notice of appeal
or of procuring the order allowing the appeal, as the case may
be. The stay is effective when the supersedeas bond is approved
by the court.
(e) Stay in Favor of the United States or Agency Thereof. When an
appeal is taken by the United States or an officer or agency
thereof or by direction of any department of the Government of
the United States and the operation or enforcement of the
judgment is stayed, no bond, obligation, or other security shall
be required from the appellant.
(f) Stay According to State Law. In any state in which a judgment
is a lien upon the property of the judgment debtor and in which
the judgment debtor is entitled to a stay of execution, a
judgment debtor is entitled, in the district court held therein,
to such stay as would be accorded the judgment debtor had the
action been maintained in the courts of that state.
(g) Power of Appellate Court Not Limited. The provisions in this
rule do not limit any power of an appellate court or of a judge
or justice thereof to stay proceedings during the pendency of an
appeal or to suspend, modify, restore, or grant an injunction
during the pendency of an appeal or to make any order appropriate
to preserve the status quo or the effectiveness of the judgment
subsequently to be entered.
(h) Stay of Judgment as to Multiple Claims or Multiple Parties.
When a court has ordered a final judgment under the conditions
stated in Rule 54(b), the court may stay enforcement of that
judgment until the entering of a subsequent judgment or judgments
and may prescribe such conditions as are necessary to secure the
benefit thereof to the party in whose favor the judgment is
entered.
RULE 63. INABILITY OF A JUDGE TO PROCEED
If a trial or hearing has been commenced and the judge is unable
to proceed, any other judge may proceed with it upon certifying
familiarity with the record and determining that the proceedings
in the case may be completed without prejudice to the parties. In
a hearing or trial without a jury, the successor judge shall at
the request of a party recall any witness whose testimony is
material and disputed and who is available to testify again
without undue burden. The successor judge may also recall any
other witness.
Note. Amended April 30, 1991, effective December 1, 1991.
VIII. PROVISIONAL AND FINAL REMEDIES
RULE 64. SEIZURE OF PERSON OR PROPERTY
At the commencement of and during the course of an action, all
remedies providing for seizure of person or property for the
purpose of securing satisfaction of the judgment ultimately to be
entered in the action are available under the circumstances and
in the manner provided by the law of the state in which the
district court is held, existing at the time the remedy is
sought, subject to the following qualifications: (1) any existing
statute of the United States governs to the extent to which it is
applicable; (2) the action in which any of the foregoing remedies
is used shall be commenced and prosecuted or, if removed from a
state court, shall be prosecuted after removal, pursuant to these
rules. The remedies thus available include arrest, attachment,
garnishment, replevin, sequestration, and other corresponding or
equivalent remedies, however designated and regardless of whether
by state procedure the remedy is ancillary to an action or must
be obtained by an independent action.
RULE 65. INJUNCTIONS
(a) Preliminary Injunction.
(1) Notice. No preliminary injunction shall be issued without
notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits. Before or
after the commencement of the hearing of an application for a
preliminary injunction, the court may order the trial of the
action on the merits to be advanced and consolidated with the
hearing of the application. Even when this consolidation is not
ordered, any evidence received upon an application for a
preliminary injunction which would be admissible upon the trial
on the merits becomes part of the record on the trial and need
not be repeated upon the trial. This subdivision (a)(2) shall be
so construed and applied as to save to the parties any rights
they may have to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration. A
temporary restraining order may be granted without written or
oral notice to the adverse party or that party's attorney only if
(1) it clearly appears from specific facts shown by affidavit or
by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before the adverse
party or that party's attorney can be heard in opposition, and
(2) the applicant's attorney certifies to the court in writing
the efforts, if any, which have been made to give the notice and
the reasons supporting the claim that notice should not be
required. Every temporary restraining order granted without
notice shall be indorsed with the date and hour of issuance;
shall be filed forthwith in the clerk's office and entered of
record; shall define the injury and state why it is irreparable
and why the order was granted without notice; and shall expire by
its terms within such time after entry, not to exceed 10 days, as
the court fixes, unless within the time so fixed the order, for
good cause shown, is extended for a like period or unless the
party against whom the order is directed consents that it may be
extended for a longer period. The reasons for the extension shall
be entered of record. In case a temporary restraining order is
granted without notice, the motion for a preliminary injunction
shall be set down for hearing at the earliest possible time and
takes precedence of all matters except older matters of the same
character; and when the motion comes on for hearing the party who
obtained the temporary restraining order shall proceed with the
application for a preliminary injunction and, if the party does
not do so, the court shall dissolve the temporary restraining
order. On 2 days' notice to the party who obtained the temporary
restraining order without notice or on such shorter notice to
that party as the court may prescribe, the adverse party may
appear and move its dissolution or modification and in that event
the court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require.
(c) Security. No restraining order or preliminary injunction
shall issue except upon the giving of security by the applicant,
in such sum as the court deems proper, for the payment of such
costs and damages as may be incurred or suffered by any party who
is found to have been wrongfully enjoined or restrained. No such
security shall be required of the United States or of an officer
or agency thereof. The provisions of Rule 65.1 apply to a surety
upon a bond or undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order. Every
order granting an injunction and every restraining order shall
set forth the reasons for its issuance; shall be specific in
terms; shall describe in reasonable detail, and not by reference
to the complaint or other document, the act or acts sought to be
restrained; and is binding only upon the parties to the action,
their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or
otherwise.
(e) Employer and Employee; Interpleader; Constitutional Cases.
These rules do not modify any statute of the United States
relating to temporary restraining orders and preliminary
injunctions in actions affecting employer and employee; or the
provisions of Title 28, U.S.C., [sec.] 2361, relating to
preliminary injunctions in actions of interpleader or in the
nature of interpleader; or Title 28, U.S.C., [sec.] 2284,
relating to actions required by Act of Congress to be heard and
determined by a district court of three judges.
RULE 65.1. SECURITY: PROCEEDINGS AGAINST SURETIES
Whenever these rules, including the Supplemental Rules for
Certain Admiralty and Maritime Claims, require or permit the
giving of security by a party, and security is given in the form
of a bond or stipulation or other undertaking with one or more
sureties, each surety submits to the jurisdiction of the court
and irrevocably appoints the clerk of the court as the surety's
agent upon whom any papers affecting the surety's liability on
the bond or undertaking may be served. The surety's liability may
be enforced on motion without the necessity of an independent
action. The motion and such notice of the motion as the court
prescribes may be served on the clerk of the court, who shall
forthwith mail copies to the sureties if their addresses are
known.
RULE 66. RECEIVERS APPOINTED BY FEDERAL COURTS
An action wherein a receiver has been appointed shall not be
dismissed except by order of the court. The practice in the
administration of estates by receivers or by other similar
officers appointed by the court shall be in accordance with the
practice heretofore followed in the courts of the United States
or as provided in rules promulgated by the district courts. In
all other respects the action in which the appointment of a
receiver is sought or which is brought by or against a receiver
is governed by these rules.
RULE 67. DEPOSIT IN COURT
In an action in which any part of the relief sought is a judgment
for a sum of money or the disposition of a sum of money or the
disposition of any other thing capable of delivery, a party, upon
notice to every other party, and by leave of court, may deposit
with the court all or any part of such sum or thing, whether or
not that party claims all or any part of the sum or thing. The
party making the deposit shall serve the order permitting deposit
on the clerk of the court. Money paid into court under this rule
shall be deposited and withdrawn in accordance with the
provisions of Title 28, U.S.C., [sec.] 2041, and 2042; the Act of
June 26, 1934, c. 756, [sec.] 23, as amended (48 Stat. 1236, 58
Stat. 845), U.S.C., Title 31, [sec.] 725v; or any like statute.
The fund shall be deposited in an interest-bearing account or
invested in an interest-bearing instrument approved by the court.
RULE 68. OFFER OF JUDGMENT
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an
offer to allow judgment to be taken against the defending party
for the money or property or to the effect specified in the
offer, with costs then accrued. If within 10 days after the
service of the offer the adverse party serves written notice that
the offer is accepted, either party may then file the offer and
notice of acceptance together with proof of service thereof and
thereupon the clerk shall enter judgment. An offer not accepted
shall be deemed withdrawn and evidence thereof is not admissible
except in a proceeding to determine costs. If the judgment
finally obtained by the offeree is not more favorable than the
offer, the offeree must pay the costs incurred after the making
of the offer. The fact that an offer is made but not accepted
does not preclude a subsequent offer. When the liability of one
party to another has been determined by verdict or order or
judgment, but the amount or extent of the liability remains to be
determined by further proceedings, the party adjudged liable may
make an offer of judgment, which shall have the same effect as an
offer made before trial if it is served within a reasonable time
not less than 10 days prior to the commencement of hearings to
determine the amount or extent of liability.
RULE 69. EXECUTION
(a) In General. Process to enforce a judgment for the payment of
money shall be a writ of execution, unless the court directs
otherwise. The procedure on execution, in proceedings
supplementary to and in aid of a judgment, and in proceedings on
and in aid of execution shall be in accordance with the practice
and procedure of the state in which the district court is held,
existing at the time the remedy is sought, except that any
statute of the United States governs to the extent that it is
applicable. In aid of the judgment or execution, the judgment
creditor or a successor in interest when that interest appears of
record, may obtain discovery from any person, including the
judgment debtor, in the manner provided in these rules or in the
manner provided by the practice of the state in which the
district court is held.
(b) Against Certain Public Officers. When a judgment has been
entered against a collector or other officer of revenue under the
circumstances stated in Title 28, U.S.C., [sec.] 2006, or against
an officer of Congress in an action mentioned in the Act of March
3, 1875, ch. 130, [sec.] 8 (18 Stat. 401), U.S.C., Title 2,
[sec.] 118, and when the court has given the certificate of
probable cause for the officer's act as provided in those
statutes, execution shall not issue against the officer or the
officer's property but the final judgment shall be satisfied as
provided in such statutes.
RULE 70. JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE
If a judgment directs a party to execute a conveyance of land or
to deliver deeds or other documents or to perform any other
specific act and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of
the disobedient party by some other person appointed by the court
and the act when so done has like effect as if done by the party.
On application of the party entitled to performance, the clerk
shall issue a writ of attachment or sequestration against the
property of the disobedient party to compel obedience to the
judgment. The court may also in proper cases adjudge the party in
contempt. If real or personal property is within the district,
the court in lieu of directing a conveyance thereof may enter a
judgment divesting the title of any party and vesting it in
others and such judgment has the effect of a conveyance executed
in due form of law. When any order or judgment is for the
delivery of possession, the party in whose favor it is entered is
entitled to a writ of execution or assistance upon application to
the clerk.
RULE 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES
When an order is made in favor of a person who is not a party to
the action, that person may enforce obedience to the order by the
same process as if a party; and, when obedience to an order may
be lawfully enforced against a person who is not a party, that
person is liable to the same process for enforcing obedience to
the order as if a party.
IX. SPECIAL PROCEEDINGS
RULE 71A. CONDEMNATION OF PROPERTY
(a) Applicability of Other Rules. The Rules of Civil Procedure
for the United States District Courts govern the procedure for
the condemnation of real and personal property under the power of
eminent domain, except as otherwise provided in this rule.
(b) Joinder of Properties. The plaintiff may join in the same
action one or more separate pieces of property, whether in the
same or different ownership and whether or not sought for the
same use.
(c) Complaint.
(1) Caption. The complaint shall contain a caption as provided in
Rule 10(a), except that the plaintiff shall name as defendants
the property, designated generally by kind, quantity, and
location, and at least one of the owners of some part of or
interest in the property.
(2) Contents. The complaint shall contain a short and plain
statement of the authority for the taking, the use for which the
property is to be taken, a description of the property sufficient
for its identification, the interests to be acquired, and as to
each separate piece of property a designation of the defendants
who have been joined as owners thereof or of some interest
therein. Upon the commencement of the action, the plaintiff need
join as defendants only the persons having or claiming an
interest in the property whose names are then known, but prior to
any hearing involving the compensation to be paid for a piece of
property, the plaintiff shall add as defendants all persons
having or claiming an interest in that property whose names can
be ascertained by a reasonably diligent search of the records,
considering the character and value of the property involved and
the interests to be acquired, and also those whose names have
otherwise been learned. All others may be made defendants under
the designation "Unknown Owners." Process shall be served as
provided in subdivision (d) of this rule upon all defendants,
whether named as defendants at the time of the commencement of
the action or subsequently added, and a defendant may answer as
provided in subdivision (e) of this rule. The court meanwhile may
order such distribution of a deposit as the facts warrant.
(3) Filing. In addition to filing the complaint with the court,
the plaintiff shall furnish to the clerk at least one copy
thereof for the use of the defendants and additional copies at
the request of the clerk or of a defendant.
(d) Process.
(1) Notice; Delivery. Upon the filing of the complaint the
plaintiff shall forthwith deliver to the clerk joint or several
notices directed to the defendants named or designated in the
complaint. Additional notices directed to defendants subsequently
added shall be so delivered. The delivery of the notice and its
service have the same effect as the delivery and service of the
summons under Rule 4.
(2) Same; Form. Each notice shall state the court, the title of
the action, the name of the defendant to whom it is directed,
that the action is to condemn property, a description of the
defendant's property sufficient for its identification, the
interest to be taken, the authority for the taking, the uses for
which the property is to be taken, that the defendant may serve
upon the plaintiff's attorney an answer within 20 days after
service of the notice, and that the failure so to serve an answer
constitutes a consent to the taking and to the authority of the
court to proceed to hear the action and to fix the compensation.
The notice shall conclude with the name of the plaintiff's
attorney and an address within the district in which action is
brought where the attorney may be served. The notice need contain
a description of no other property than that to be taken from the
defendants to whom it is directed.
(3) Service of Notice.
(i) Personal Service. Personal service of the notice (but without
copies of the complaint) shall be made in accordance with Rule
4(c) and (d) upon a defendant who resides within the United
States or its territories or insular possessions and whose
residence is known.
(ii) Service by Publication. Upon the filing of a certificate of
the plaintiff's attorney stating that the attorney believes a
defendant cannot be personally served, because after diligent
inquiry within the state in which the complaint is filed the
defendant's place of residence cannot be ascertained by the
plaintiff or, if ascertained, that it is beyond the territorial
limits of personal service as provided in this rule, service of
the notice shall be made on this defendant by publication in a
newspaper published in the county where the property is located,
or if there is no such newspaper, then in a newspaper having a
general circulation where the property is located, once a week
for not less than three successive weeks. Prior to the last
publication, a copy of the notice shall also be mailed to a
defendant who cannot be personally served as provided in this
rule but whose place of residence is then known. Unknown owners
may be served by publication in like manner by a notice addressed
to "Unknown Owners."
Service by publication is complete upon the date of the last
publication. Proof of publication and mailing shall be made by
certificate of the plaintiff's attorney, to which shall be
attached a printed copy of the published notice with the name and
dates of the newspaper marked thereon.
(4) Return; Amendment. Proof of service of the notice shall be
made and amendment of the notice or proof of its service allowed
in the manner provided for the return and amendment of the
summons under Rule 4(g) and (h).
(e) Appearance or Answer. If a defendant has no objection or
defense to the taking of the defendant's property, the defendant
may serve a notice of appearance designating the property in
which the defendant claims to be interested. Thereafter, the
defendant shall receive notice of all proceedings affecting it.
If a defendant has any objection or defense to the taking of the
property, the defendant shall serve an answer within 20 days
after the service of notice upon the defendant. The answer shall
identify the property in which the defendant claims to have an
interest, state the nature and extent of the interest claimed,
and state all the defendant's objections and defenses to the
taking of the property. A defendant waives all defenses and
objections not so presented, but at the trial of the issue of
just compensation, whether or not the defendant has previously
appeared or answered, the defendant may present evidence as to
the amount of the compensation to be paid for the property, and
the defendant may share in the distribution of the award. No
other pleading or motion asserting any additional defense or
objection shall be allowed.
(f) Amendment of Pleadings. Without leave of court, the plaintiff
may amend the complaint at any time before the trial of the issue
of compensation and as many times as desired, but no amendment
shall be made which will result in a dismissal forbidden by
subdivision (i) of this rule. The plaintiff need not serve a copy
of an amendment, but shall serve notice of the filing, as
provided in Rule 5(b), upon any party affected thereby who has
appeared and, in the manner provided in subdivision (d) of this
rule, upon any party affected thereby who has not appeared. The
plaintiff shall furnish to the clerk of the court for the use of
the defendants at least one copy of each amendment and shall
furnish additional copies on the request of the clerk or of a
defendant. Within the time allowed by subdivision (e) of this
rule a defendant may serve an answer to the amended pleading, in
the form and manner and with the same effect as there provided.
(g) Substitution of Parties. If a defendant dies or becomes
incompetent or transfers an interest after the defendant's
joinder, the court may order substitution of the proper party
upon motion and notice of hearing. If the motion and notice of
hearing are to be served upon a person not already a party,
service shall be made as provided in subdivision (d)(3) of this
rule.
(h) Trial. If the action involves the exercise of the power of
eminent domain under the law of the United States, any tribunal
specially constituted by an Act of Congress governing the case
for the trial of the issue of just compensation shall be the
tribunal for the determination of that issue; but if there is no
such specially constituted tribunal any party may have a trial by
jury of the issue of just compensation by filing a demand
therefor within the time allowed for answer or within such
further time as the court may fix, unless the court in its
discretion orders that, because of the character, location, or
quantity of the property to be condemned, or for other reasons in
the interest of justice, the issue of compensation shall be
determined by a commission of three persons appointed by it.
In the event that a commission is appointed the court may direct
that not more than two additional persons serve as alternate
commissioners to hear the case and replace commissioners who,
prior to the time when a decision is filed, are found by the
court to be unable or disqualified to perform their duties. An
alternate who does not replace a regular commissioner shall be
discharged after the commission renders its final decision.
Before appointing the members of the commission and alternates
the court shall advise the parties of the identity and
qualifications of each prospective commissioner and alternate and
may permit the parties to examine each such designee. The parties
shall not be permitted or required by the court to suggest
nominees. Each party shall have the right to object for valid
cause to the appointment of any person as a commissioner or
alternate. If a commission is appointed it shall have the powers
of a master provided in subdivision (c) of Rule 53 and
proceedings before it shall be governed by the provisions of
paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action
and report shall be determined by a majority and its findings and
report shall have the effect, and be dealt with by the court in
accordance with the practice, prescribed in paragraph (2) of
subdivision (e) of Rule 53. Trial of all issues shall otherwise be
by the court.
(i) Dismissal of Action.
(1) As of Right. If no hearing has begun to determine the
compensation to be paid for a piece of property and the plaintiff
has not acquired the title or a lesser interest in or taken
possession, the plaintiff may dismiss the action as to that
property, without an order of the court, by filing a notice of
dismissal setting forth a brief description of the property as to
which the action is dismissed.
(2) By Stipulation. Before the entry of any judgment vesting the
plaintiff with title or a lesser interest in or possession of
property, the action may be dismissed in whole or in part,
without an order of the court, as to any property by filing a
stipulation of dismissal by the plaintiff and the defendant
affected thereby; and, if the parties so stipulate, the court may
vacate any judgment that has been entered.
(3) By Order of the Court. At any time before compensation for a
piece of property has been determined and paid and after motion
and hearing, the court may dismiss the action as to that
property, except that it shall not dismiss the action as to any
part of the property of which the plaintiff has taken possession
or in which the plaintiff has taken title or a lesser interest,
but shall award just compensation for the possession, title or
lesser interest so taken. The court at any time may drop a
defendant unnecessarily or improperly joined.
(4) Effect. Except as otherwise provided in the notice, or
stipulation of dismissal, or order of the court, any dismissal is
without prejudice.
(j) Deposit and Its Distribution. The plaintiff shall deposit
with the court any money required by law as a condition to the
exercise of the power of eminent domain; and, although not so
required, may make a deposit when permitted by statute. In such
cases the court and attorneys shall expedite the proceedings for
the distribution of the money so deposited and for the
ascertainment and payment of just compensation. If the
compensation finally awarded to any defendant exceeds the amount
which has been paid to that defendant on distribution of the
deposit, the court shall enter judgment against the plaintiff and
in favor of that defendant for the deficiency. If the
compensation finally awarded to any defendant is less than the
amount which has been paid to that defendant, the court shall
enter judgment against that defendant and in favor of the
plaintiff for the overpayment.
(k) Condemnation Under a State's Power of Eminent Domain. The
practice as herein prescribed governs in actions involving the
exercise of the power of eminent domain under the law of a state,
provided that if the state law makes provision for trial of any
issue by jury, or for trial of the issue of compensation by jury
or commission or both, that provision shall be followed.
(l) Costs. Costs are not subject to Rule 54(d).
RULE 72. MAGISTRATES, PRETRIAL ORDERS
(a) Nondispositive Matters. A magistrate to whom a pretrial
matter not dispositive of a claim or defense of a party is
referred to hear and determine shall promptly conduct such
proceedings as are required and when appropriate enter into the
record a written order setting forth the disposition of the
matter. Within 10 days after being served with a copy of the
magistrate's order, a party may serve and file objections to the
order; a party may not thereafter assign as error a defect in the
magistrate's order to which objection was not timely made. The
district judge to whom the case is assigned shall consider such
objections and shall modify or set aside any portion of the
magistrate's order found to be clearly erroneous or contrary to
law.
(b) Dispositive Motions and Prisoner Petitions. A magistrate
assigned without consent of the parties to hear a pretrial matter
dispositive of a claim or defense of a party or a prisoner
petition challenging the conditions of confinement shall promptly
conduct such proceedings as are required. A record shall be made
of all evidentiary proceedings before the magistrate, and a
record may be made of such other proceedings as the magistrate
deems necessary. The magistrate shall enter into the record a
recommendation for disposition of the matter, including proposed
findings of fact when appropriate. The clerk shall forthwith mail
copies to all parties.
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