Volusia Association of Paralegals
Spring Seminar
May 18, 2002
FEDERAL RULES
OF
CIVIL PROCEDURE
DANIEL R. BISCHOF
Cobb Cole & Bell
150 Magnolia Avenue
P.O. Box 2491
Daytona Beach, FL 32115-2491
Tel: (386) 255-8171
Fax: (386) 248-0323
SEMINAR OUTLINE
Example 1 Obi Wan Kenobi and Anakin Skywalker sue Queen Amidala and Jar Jar Binks. Queen Amidala then sues Obi Wan Kenobi regarding the same transaction. Queen Amidala also sues Boba Fett regarding the same transaction. Queen Amidala then sues Jar Jar Binks regarding the same transaction.
Claim / Counter-claim / Cross-claim / Third-party claim
I. Federal Rules of Civil Procedure: Complaint Trial
A. Overview of the Federal System
1. What is the federal court system?
a. Subject Matter Jurisdiction
Example 2 Scooby Doo and Shaggy are citizens of Alabama. Fred is a citizen of Alaska. Velma is a citizen of Arizona. Phantom Menace Corp., an Arkansas-incorporated corporation that has a principal place of business in Arizona.
Suit 1 Scooby wants to sue Shaggy.
Suit 2 Scooby and Shaggy want to sue the Phantom Menace Corp.
Suit 3 Fred and Velma want to sue the Phantom Menace Corp.
Suit 4 Scooby wants to sue Fred; he has a claim for $75,000.00
Suit 5 Scooby and Shaggy want to sue the Phantom Menace Corp.; each have claims for $40,000.00.
Suit 6 Scooby and Shaggy each have ½ interest in property worth $80,000.00. They want to sue the Phantom Menace Corp. over it.
b. Supplemental Jurisdiction: 28 U.S.C. § 1367
Example 3 Austin Powers brings a case in Florida federal court against Mini-Me for employment discrimination under Title VII and for violating the Florida Civil Rights Act. Austin Powers is a citizen of California, and Mini-Me is a citizen of Florida. The claim is for $75,000.00. Any problems?
c. Removal Jurisdiction: 28 U.S.C. § 1441
d. Personal Jurisdiction
e. How are the courts divided?
f. Venue: 28 U.S.C. § 1391
Example 4 Spiderman is a citizen of Georgia. Spiderman files suit in federal court against Mary Jane, a resident of the southern district of Florida, and Aunt May, a resident of the central district of Florida. Where can Spiderman file suit?
Example 5 Spiderman is a citizen of Georgia Spiderman files suit in federal court against Mary Jane, a resident of the southern district of Florida, and the Green Goblin, a resident of the eastern district of Illinois. Where can Spiderman file suit?
2. What are the FRCP? Where can I find them?
a. http://www law cornell.edu/rules/frcp/overview.htm
b. Florida Rules of Court - Federal
3. How do the FRCP relate to other laws? B. Parties
B. Parties
1. FRCP 17(a)
2. FRCP 17(b)
3. FRCP 17(c): minors, incompetents
4. Joinder of Parties
a. Compulsory: FRCP 19
(1) Necessary: FRCP 19(a)
(2) Indispensable: FRCP 19(b)
b. Permissive: FRCP 20
c. Intervention: FRCP 24
d. Third-Party Practice: FRCP 14
e. Interpleader: FRCP 22
Example 6 The Force Insurance Co. issued a life insurance policy on the life of Princess Leia. The beneficiary was listed as Han Solo. A year before Leia's death, she divorced Han and married Chewbacca, but she never amended the policy. Both Han and Chewie now claim the insurance policy proceeds.
C. Pleadings, Generally ( FRCP 7-11)
1. FRCP 7: pleadings allowed: complaint, counterclaim, crossclaim, answer/reply to each
2. FRCP 10: Form
3. FRCP 8(a): elements of a claim for relief
4. FRCP 8(e): plead concisely and directly
5. FRCP 9(b): fraud and mistake must be pled with particularity
6. FRCP 11: signature
D. Commencement of Action
l. Complaint: FRCP 3
2. Summons: FRCP 4
Example 7 Agent K files a lawsuit against Agent J. Men in Black Process Servers try to take the complaint to Agent J's house, but he's not home, so they stick it to the door? Any problems?
3. Answer
a. FRCP 8(b): admissions and denials
b. FRCP 8(c): affirmative defenses
c. FRCP 12: defenses and objections
Example 8 Lilo sues Stitch in federal district court without the assistance of an attorney. Stitch hires counsel who can't understand the 15 pages of 9-point type, single-spaced rambling of Lilo. Stitch's attorney should file what kind of motion?
4. Counterclaims: FRCP 13
5. Cross-claims: FRCP 13(g)
E. Motions, Scheduling, Timing
1. Serving and Filing Pleadings: FRCP 5
2. Timing: FRCP 6
Example 9 Daphne filed suit against Fred on May 6, 2002. When is Fred's answer due?
3. Scheduling: FRCP 16
F. Depositions, Discovery, Summary Judgment
1. Initial Disclosures: FRCP 26
2. Depositions: FRCP 27-28, 30-32
3. Interrogatories: FRCP 33
4. Request to Produce: FRCP 34
5. Request for Physical or Mental Examination: FRCP 35
6. Requests for Admission: FRCP 36
8. Motion to Compel: FRCP 37
9. Motion for Summary Judgment: FRCP 56
II. Recent Changes to Federal Rules of Civil Procedure
A. Effective Dec. 1, 2001, several of the Federal Rules of Civil Procedure were amended.
B. Rule 5 Provides that service may be made (1) personally, (2) leaving it at person's office , (4) by mail, (5) by leaving with the clerk of court, or (6) by other means, such as electronically.
C. Rule 6 Adds 3 days on when computing time for documents served (1) by mail, (2) by leaving with the clerk of court, or (3) by other means, such as electronically.
D. Rule 65 Applies Rule 65 to copyright impoundment proceedings.
E. Rule 77 Requires clerk, upon entry of an order or judgment, to provide notice of same to non-defaulting parties.
F. Rule 81 Applies the civil procedure rules to bankruptcy proceedings (to the extent provided by the Federal Rules of Bankruptcy Procedure), but not to proceedings in admiralty.
G. Rule 82 Directs that the rules do not extend or limit the jurisdiction or venue of U.S. district courts.
III. Local Rules of Note
A. Generally
1. Each district has its own special rules that supplement the FRCP
2. You should at least read them over once when you file a pleading or schedule in that district, especially if you are unfamiliar with those local rules.
3. The local rules can be found in Florida Rules of Court - Federal, website
a. Middle district: http://www.flmd.uscourts.gov
4. Each district also has its own rule of admission.
B. Middle District of Florida - a few rules
l. Structure
2. Forms of Pleadings
a. Format: RMD 1.05
b. Special pleading rules: RMD 1.06
3. Motions: RMD 3.01
4. Depositions: RMD 3.02
5. Written Interrogatories: RMD 3.03
6. Case Management: RMD 3.05
7. Computation of Time: RMD 4.20
PROPOSED AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE (1)
Rule 5. Service and Filing of Pleadings and Other Papers
* * * * *
(b) Same: How Made. Whenever under these rules
service is required or permitted to be made upon a party
represented by an attorney the service shall be made upon the
attorney unless service upon the party is ordered by the court.
Service upon the attorney or upon a party shall be made by
delivering a copy to the party or attorney or by mailing it to
the party or attorney at the attorney's or party's last known
address or, if no address is known, by leaving it with the clerk
of the court. Delivery of a copy within this rule means:
handing it to the attorney or to the party; or leaving it at the
attorney's or party's office with a clerk or other person in
charge thereof; or, if there is no one in charge, leaving it in
a conspicuous place therein; or, if the office is closed or the
person to be served has no office, leaving it at the person's
dwelling house or usual place of abode with some person of
suitable age and discretion then residing therein. Service by
mail is complete upon mailing.
(b) Making Service.
(1) Service under Rules 5(a) and 77(d) on a party
represented by an attorney is made on the attorney
unless the court orders service on the party.
(2) Service under Rule 5(a) is made by:
(A) Delivering a copy to the person served by:
(i) handing it to the person;
(ii) leaving it at the person's office with a
clerk or other person in charge, or if no one is
in charge leaving it in a conspicuous place in
the office; or
(iii) if the person has no office or the office is
closed, leaving it at the person's dwelling
house or usual place of abode with someone
of suitable age and discretion residing there.
(B) Mailing a copy to the last known address of
the person served. Service by mail is complete on
mailing.
(C) If the person served has no known address,
leaving a copy with the clerk of the court.
(D) Delivering a copy by any other means,
including electronic means, consented to in
writing by the person served. Service by
electronic means is complete on transmission;
service by other consented means is complete
when the person making service delivers the copy
to the agency designated to make delivery. If
authorized by local rule a party may make service
under this subparagraph (D) through the court's
transmission facilities.
(3) Service by electronic means under Rule 5(b)(2)(D)
is not effective if the party making service learns that
the attempted service did not reach the person to be
served.
* * * * *
Committee Note
Rule 5(b) is restyled.
Rule 5(b)(1) makes it clear that the provision for service on a party's attorney applies only to service made under Rules 5(a) and 77(d). Service under Rules 4, 4.1, 45(b), and 71A(d)(3) -as well as rules that invoke those rules - must be made as provided in those rules.
Subparagraphs (A), (B), and (C) of Rule 5(b)(2) carry forward the method-of-service provisions of former Rule 5(b).
Subparagraph (D) of Rule 5(b)(2) is new. It authorizes service by electronic means or any other means, but only if consent is obtained from the person served. The consent must be express, and cannot be implied from conduct. Early experience with electronic filing as authorized by Rule 5(d) is positive, supporting service by electronic means as well. Consent is required, however, because it is not yet possible to assume universal entry into the world of electronic communication. Subparagraph (D) also authorizes service by nonelectronic means. The Rule 5(b)(2)(B) provision making mail service complete on mailing is extended in subparagraph (D) to make service by electronic means complete on transmission; transmission is effected when the sender does the last act that must be performed by the sender. Service by other agencies is complete on delivery to the designated agency.
Finally, subparagraph (D) authorizes adoption of local rules providing for service through the court. Electronic case filing systems will come to include the capacity to make service by using the court's facilities to transmit all documents filed in the case. It may prove most efficient to establish an environment in which a party can file with the court, making use of the court's transmission facilities to serve the filed paper on all other parties. Transmission might be by such means as direct transmission of the paper, or by transmission of a notice of filing that includes an electronic link for direct access to the paper. Because service is under subparagraph (D), consent must be obtained from the persons served.
Consent to service under Rule 5(b)(2)(D) must be in writing, which can be provided by electronic means. Parties are encouraged to specify the scope and duration of the consent. The specification should include at least the persons to whom service should be made, the appropriate address or location for such service - such as the email address or facsimile machine number, and the format to be used for attachments. A district court may establish a registry or other facility that allows advance consent to service by specified means for future actions.
Rule 6(e) is amended to allow additional time to respond when service is made under Rule 5(b)(2)(D). The additional time does not relieve a party who consents to service under Rule 5(b)(2)(D) of the responsibilities to monitor the facility designated for receiving service and to provide prompt notice of any address change.
Paragraph (3) addresses a question that may arise from a literal reading of the provision that service by electronic means is complete on transmission. Electronic communication is rapidly improving, but lawyers report continuing failures of transmission, particularly with respect to attachments. Ordinarily the risk of non-receipt falls on the person being served, who has consented to this form of service. But the risk should not extend to situations in which the person attempting service learns that the attempted service in fact did not reach the person to be served. Given actual knowledge that the attempt failed, service is not effected. The person attempting service must either try again or show circumstances that justify dispensing with service.
Paragraph (3) does not address the similar questions that may arise when a person attempting service learns that service by means other than electronic means in fact did not reach the person to be served. Case law provides few illustrations of circumstances in which a person attempting service actually knows that the attempt failed but seeks to act as if service had been made. This negative history suggests there is no need to address these problems in Rule 5(b)(3). This silence does not imply any view on these issues, nor on the circumstances that justify various forms of judicial action even though service has not been made.
Changes Made After Publication and Comments
Rule 5(b)(2)(D) was changed to require that consent be "in writing."
Rule 5(b)(3) is new. The published proposal did not address the
question of failed service in the text of the rule. Instead, the
Committee Note included this statement: "As with other modes of
service, however, actual notice that the transmission was not received
defeats the presumption of receipt that arises from the provision that
service is complete on transmission. The sender must take additional
steps to effect service. Service by other agencies is complete on
delivery to the designated agency." The addition of paragraph (3)
was prompted by consideration of the draft Appellate Rule 25(c) that
was prepared for the meeting of the Appellate Rules Advisory
Committee. This draft provided: "Service by electronic means is
complete on transmission, unless the party making service is notified
that the paper was not received." Although Appellate Rule 25(c) is
being prepared for publication and comment, while Civil Rule 5(b)
has been published and otherwise is ready to recommend for
adoption, it seemed desirable to achieve some parallel between the
two rules.
The draft Rule 5(b)(3) submitted for consideration by the Advisory Committee covered all means of service except for leaving a copy with the clerk of the court when the person to be served has no known address. It was not limited to electronic service for fear that a provision limited to electronic service might generate unintended negative implications as to service by other means, particularly mail. This concern was strengthened by a small number of opinions that say that service by mail is effective, because complete on mailing, even when the person making service has prompt actual notice that the mail was not delivered. The Advisory Committee voted to limit Rule 5(b)(3) to service by electronic means because this means of service is relatively new, and seems likely to miscarry more frequently than service by post. It was suggested during the Advisory Committee meeting that the question of negative implication could be addressed in the Committee Note. There was little discussion of this possibility. The Committee Note submitted above includes a "no negative implications" paragraph prepared by the Reporter for consideration by the Standing Committee.
The Advisory Committee did not consider at all a question that was framed during the later meeting of the Appellate Rules Advisory Committee. As approved by the Advisory Committee, Rule 5(b)(3) defeats service by electronic means "if the party making service learns that the attempted service did not reach the person to be served." It says nothing about the time relevant to learning of the failure. The omission may seem glaring. Curing the omission, however, requires selection of a time. As revised, proposed Appellate Rule 25(c) requires that the party making service learn of the failure within three calendar days. The Appellate Rules Advisory Committee will have the luxury of public comment and another year to consider the desirability of this short period. If Civil Rule 5(b) is to be recommended for adoption now, no such luxury is available. This issue deserves careful consideration by the Standing Committee.
Several changes are made in the Committee Note. (1) It requires that consent "be express, and cannot be implied from conduct." This addition reflects a more general concern stimulated by a reported ruling that an e-mail address on a firm's letterhead implied consent to email service. (2) The paragraph discussing service through the court's facilities is expanded by describing alternative methods, including an "electronic link." (3) There is a new paragraph that states that the requirement of written consent can be satisfied by electronic means, and that suggests matters that should be addressed by the consent. (4) A paragraph is added to note the additional response time provided by amended Rule 6(e). (5) The final two paragraphs address newly added Rule 5(b)(3). The first explains the rule that electronic service is not effective if the person making service learns that it did not reach the person to be served. The second paragraph seeks to defeat any negative implications that might arise from limiting Rule 5(b)(3) to electronic service, not mail, not other means consented to such as commercial express service, and not service on another person on behalf of the person to be served.
Rule 6(e)
The Advisory Committee recommended that no change be made in Civil Rule 6(e) to reflect the provisions of Civil Rule 5(b)(2)(D) that, with the consent of the person to be served, would allow service by electronic or other means. Absent change, service by these means would not affect the time for acting in response to the paper served. Comment was requested, however, on the alternative that would allow an additional 3 days to respond. The alternative Rule 6(e) amendments are cast in a form that permits ready incorporation in the Bankruptcy Rules. Several of the comments suggest that the added three days should be provided. Electronic transmission is not always instantaneous, and may fail for any of a number of reasons. It may take three days to arrange for transmission in readable form. Providing added time to respond will not discourage people from asking for consent to electronic transmission, and may encourage people to give consent. The more who consent, the quicker will come the improvements that will make electronic service ever more attractive. Consistency with the Bankruptcy Rules will be a good thing, and the Bankruptcy Rules Advisory Committee believes the additional three days should be allowed.
Rule 6. Time
* * * * *
(e) Additional Time After Service by Mail under
Rule 5(b)(2)(B), (C), or (D). Whenever a party has the
right or is required to do some act or take some
proceedings within a prescribed period after the service of
a notice or other paper upon the party and the notice or
paper is served upon the party by mail under
Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the
prescribed period.
Committee Note
The additional three days provided by Rule 6(e) is extended to the
means of service authorized by the new paragraph (D) added to
Rule 5(b), including - with the consent of the person served -
service by electronic or other means. The three-day addition is
provided as well for service on a person with no known address by
leaving a copy with the clerk of the court.
Changes Made After Publication and Comments
Proposed Rule 6(e) is the same as the "alternative proposal" that
was published in August 1999.
Rule 77. District Courts and Clerks
* * * * *
(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(b) upon each
party who is not in default for failure to appear, and shall make a
note in the docket of the mailing service. Any party may in
addition serve a notice of such entry in the manner provided in
Rule 5(b) for the service of papers.
* * * * *
Committee Note
Rule 77(d) is amended to reflect changes in Rule 5(b). A few
courts have experimented with serving Rule 77(d) notices by
electronic means on parties who consent to this procedure. The
success of these experiments warrants express authorization. Because
service is made in the manner provided in Rule 5(b), party consent is
required for service by electronic or other means described in
Rule 5(b)(2)(D). The same provision is made for a party who wishes
to ensure actual communication of the Rule 77(d) notice by also
serving notice.
Changes Made After Publication and Comments
Rule 77(d) was amended to correct an oversight in the published
version. The clerk is to note "service," not "mailing," on the docket.
B. Abrogate Copyright Rules; Amend Rules 65(g), 81(a)(1)
The proposals published in August 1999 include a package that
would abrogate the obsolete Copyright Rules of Practice adopted
under the 1909 Copyright Act. A new Rule 65(f) would be added,
confirming the common practice that has substituted Rule 65
preliminary relief procedures for the widely ignored Copyright Rules.
Rule 81(a)(1) would be amended to delete the obsolete references to
the Copyright Rules, and also to improve the expression of the
relationship between the Civil Rules and the Bankruptcy Rules. Such
little public comment as was provided on these changes was
favorable. The Advisory Committee discussion is summarized at
page 9 of the draft Minutes.
Rule 65. Injunctions
* * * * *
(f) Copyright Impoundment. This rule applies to
copyright impoundment proceedings.
Committee Note
New subdivision (f) is added in conjunction with abrogation of
the antiquated Copyright Rules of Practice adopted for proceedings
under the 1909 Copyright Act. Courts have naturally turned to Rule
65 in response to the apparent inconsistency of the former Copyright
Rules with the discretionary impoundment procedure adopted in
1976, 17 U.S.C. º 503(a). Rule 65 procedures also have assuaged
well-founded doubts whether the Copyright Rules satisfy more
contemporary requirements of due process. See, e.g., Religious
Technology Center v. Netcom On-Line Communications Servs., Inc.,
923 F.Supp. 1231, 1260-1265 (N.D.Cal.1995); Paramount Pictures
Corp. v. Doe, 821 F.Supp. 82 (E.D.N.Y.1993); WPOW Inc. v. MRLJ
Enterprises, 584 F.Supp. 132 (D.D.C.1984).
A common question has arisen from the experience that notice of
a proposed impoundment may enable an infringer to defeat the
court's capacity to grant effective relief. Impoundment may be
ordered on an ex parte basis under subdivision (b) if the applicant
makes a strong showing of the reasons why notice is likely to defeat
effective relief. Such no-notice procedures are authorized in
trademark infringement proceedings, see 15 U.S.C. º I I 16(d), and
courts have provided clear illustrations of the kinds of showings that
support ex parte relief. See Matter of Vuitton et Fils S.A., 606 F.2d
1 (2d Cir.1979); Vuitton v. White, 945 F.2d 569 (3d Cir.1991). In
applying the tests for no-notice relief, the court should ask whether
impoundment is necessary, or whether adequate protection can be had
by a less intrusive form of no-notice relief shaped as a temporary
restraining order.
This new subdivision (f) does not limit use of trademark
procedures in cases that combine trademark and copyright claims.
Some observers believe that trademark procedures should be adopted
for all copyright cases, a proposal better considered by Congressional
processes than by rulemaking processes.
Changes Made After Publication and Comments
No change has been made.
Rule 81. Applicability in General
(a) To What Proceedings to which the Rules
Applyicable.
(1) These rules do not apply to prize proceedings in
admiralty governed by Title 10, U.S.C., §§ 7651-
7681. They do not apply to proceedings in bankruptcy
to the extent provided the Federal Rules of
Bankruptcy Procedure or to proceedings in copyright
under Title 17, U.S.C., except in so far as they may be
made applicable thereto by rules promulgated by the
Supreme Court of the United States. They do not
apply to mental health proceedings in the United
States District for the District of Columbia.
* * * * *
Committee Note
Former Copyright Rule 1 made the Civil Rules applicable to
copyright proceedings except to the extent the Civil Rules were
inconsistent with Copyright Rules. Abrogation of the Copyright
Rules leaves the Civil Rules fully applicable to copyright
proceedings. Rule 81(a)(1) is amended to reflect this change.
The District of Columbia Court Reform and Criminal Procedure
Act of 1970, Pub.L. 91-358, 84 Stat. 473, transferred mental health
proceedings formerly held in the United States District Court for the
District of Columbia to local District of Columbia courts. The
provision that the Civil Rules do not apply to these proceedings is
deleted as superfluous.
The reference to incorporation of the Civil Rules in the Federal
Rules of Bankruptcy Procedure has been restyled.
Changes Made After Publication and Comments
The Committee Note was amended to correct the inadvertent
omission of a negative. As revised, it correctly reflects the language
that is stricken from the rule.
RULES IF PRACTICE AS AMENDED
Rule 1
Proceedings in actions brought under section 25 of the
Act of March 4, 1909, entitled "An Act to amend and
consolidate the acts respecting copyright", including
proceedings relating to the perfecting of appeals, shall be
governed by the Rules of Civil Procedure, in so far as they
are not inconsistent with these rules:
Rule 3
Upon the instruction of any action, suit or proceeding,
or at any time thereafter, and before the entry of final
judgement or decree therein, the plaintiff or complainant,
or his authorized agent or attorney, may file with the clerk
of any court given jurisdiction under section 34 of the Act
of March 4, 1909, an affidavit stating upon the best of his
knowledge, information and belief, the number and
location, as near as may be of the alleged infringing
copies, records, plates, molds, matrices, etc., or other
means for making the copies alleged to infringe the
copyright, and the value of the same, and with such
affidavit shall file with the clerk a bond executed by at
least two sureties and approved by the court or a
commissioner thereof.
Rule 4
Such bond shall bind the sureties in a specified sum,
to be fixed by the court, but not less than twice the
reasonable value of such infringing copies, plates, records,
molds, matrices, or other means for making such
infringing copies, and be conditioned for the prompt
prosecution of the action, suit or proceeding; for the
return of said articles to the defendant, if they or any of
them are adjudged not to be infringements, or if the action
abates, or is discontinued before they are returned to the
defendant; and for the payment to the defendant of any
damages which the court may award to him against the
plaintiff or complainant. Upon the filing of said affidavit
and bond, and the approval of said bond, the clerk shall
issue a writ directed tot he marshal of the district where
the said infringing copies, plates, records, molds,
matrices, etc., or other means of making such infringing
copies shall be stated in said affidavit to be located, and
generally to any marshal of the United States, directing
the said marshal to forthwith seize and hold the same
subject to the order of the court issuing said writ, or of the
court of the district in which the seizure shall be made.
Rule 5
The marshal shall thereupon seize said articles or any
smaller or larger part thereof he may then or thereafter
find, using such force as may be reasonably necessary in
the premises, and serve on the defendant a copy of the
affidavit, writ, and bond by delivering the same to him
personally, if he can be found within the district, or if he
can not be found, to his agent, ir any, or to the person
from whose possession the articles are taken, or if the
owner, agent, or such person can not be found within the
district, by leaving said copy at the usual place of abode
of such owner or agent, with a person of suitable age and
discretion, or at the place where said articles are found,
and shall make immediate return of such seizure, or
attempt seizure, to the court. He shall also attach to
said articles a tag or label stating the fact of such seizure
and warning all persons from in any interfering
therewith.
Rule 6
A marshal who has seized alleged infringing articles,
shall retain them in his possession, keeping them in a
secure place, subject to the order of the court.
Rule 7
Within three days after the articles are seized, and a
copy of the affidavit, writ and bond are served as
hereinbefore provided, the defendant shall serve upon the
clerk a notice that he excepts to the amount of the penalty
of the bond, or to the sureties of the plaintiff or
complainant, or both, otherwise he shall be deemed to
have waived all objection to the amount of the penalty of
the bond and the sufficiency of the sureties thereon. If the
court sustain the exceptions it may order a new bond to be
executed by the plaintiff or complainant, or in default
thereof within a time to be named by the court, the
property to be returned to the defendant.
Rule 8
Within ten days after service of such notice, the
attorney of the plaintiff or complainant shall serve upon
the defendant or his attorney a notice of the justification
of the sureties, and said sureties shall justify before the
court or a judge thereof at the time therein stated.
Rule 9
The defendant, if he does not except to the amount of
the penalty of the bond or the sufficiency of the sureties of
the plaintiff or complainant, may make application to the
court for the return to him of the articles seized, upon
filing an affidavit stating all material facts and
circumstances tending to show that the articles seized are
not infringing copies, records, plates, molds, matrices, or
means for making the copies alleged to infringe the
copyright.
Rule 10
Thereupon the court in its discretion, and after such
hearing as it may direct, may order such return upon the
filing by the defendant of a bond executed by at least two
sureties, binding them in a specified sum to be fixed in the
discretion of the court, and conditioned for the delivery of
said specified articles to abide the order of the court. The
plaintiff or complainant may require such sureties to
justify within ten days of the filing of such bond.
Rule 11
Upon the granting of such application and the
justification of the sureties on the bond, the marshal shall
immediately deliver the articles seized tot he defendant.
Rule 12
Any service required to be performed by any marshal
may be performed by any deputy of such marshal.
Rule 13
For services in cases arising under this section the
marshal shall be entitled to the same fees as are allowed
for similar services in other cases.
Changes Made After Publication and Comments
No change has been made.
C. Rule 82
Rule 82 concludes by referring to 28 U.S.C. §§ 1391 to 1393.
Section 1393 was repealed in 1988. The Advisory Committee
recommends correction of the anomaly as a technical conforming
change that can be adopted without publication for comment. As
revised, the final sentence of Rule 82 would read:
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., §§1391-931392.
Committee Note
The final sentence of Rule 82 is amended to delete the reference
to 28 U.S.C. º 1393, which has been repealed.
Style Comment
The recommendation that the change be made without publication
carries with it a recommendation that style changes not be made.
Styling would carry considerable risks. The first sentence of Rule 82,
for example, states that the Civil Rules do not "extend or limit the
jurisdiction of the United States district courts." That sentence is a
flat lie if "jurisdiction" includes personal or quasi-in rem jurisdiction.
The styling project on this rule requires publication and comment.
1. New matter is underlined; matter to be omitted is lined through.
