Federal Rules of Civil Procedure: Key Concepts and Service Rules

FRCP 1

Scope and purpose: the rules govern all civil actions and proceedings in federal district courts (except as stated in Rule 81).

FRCP 2

There is one form of action: the civil action.

FRCP 3

A civil action is commenced by filing a complaint with the court.

FRCP 4(a)

Summons contents: names the court and parties; directed to the defendant; plaintiff's attorney's name and address (or plaintiff's if unrepresented); time to appear and defend; notice that failure to appear results in default judgment; signed by the clerk; bears the court's seal. May be amended.

FRCP 4(b)

Issuance: after the complaint is filed, plaintiff presents the summons to the clerk to sign, seal, and issue to the defendant.

FRCP 4(c)

Service: summons served with a copy of the complaint within the 4(m) time limit, by any nonparty at least 18 years old; a marshal or appointed person may serve if requested.

FRCP 4(d)

Waiving service: plaintiff may request the defendant waive service; defendant gets at least 30 days to return the waiver (60 if outside the US). A defendant who waives has 60 days to answer (90 if outside the US).

FRCP 4(e)

Serving an individual in the US: personal delivery; leaving copies at the person's dwelling with someone of suitable age and discretion who lives there; delivery to an authorized agent; or any method allowed by the law of the forum state or the state where service is made.

FRCP 4(f)

Serving an individual in a foreign country.

FRCP 4(g)

Serving a minor or incompetent person.

FRCP 4(h)

Serving a corporation, partnership, or association: deliver to an officer, managing or general agent, or authorized agent.

FRCP 4(i)

Serving the United States, its agencies, corporations, officers, or employees.

FRCP 4(j)

Serving a foreign, state, or local government (foreign states served under 28 U.S.C. §1608).

FRCP 4(k)

Territorial limits of service: service establishes personal jurisdiction over a defendant (A) subject to the jurisdiction of the forum state's courts, (B) joined under Rule 14 or 19 and served within 100 miles of the issuing court (100-mile bulge), or (C) when authorized by federal statute.

FRCP 4(l)

Proving service: proof of service must be made to the court unless service is waived.

FRCP 4(m)

Time limit for service: defendant must be served within 90 days after the complaint is filed, or the court must dismiss or order service within a set time; extended for good cause.

FRCP 4(n)

Asserting jurisdiction over property or assets.

FRCP 4.1

Serving other process: process other than a summons or subpoena is served by a US marshal or specially appointed person. An order committing a person for civil contempt of an order enforcing federal law may be served anywhere in the US; other civil contempt orders only within the state where the issuing court sits.

FRCP 5(a)

When service is required: orders requiring service, pleadings filed after the complaint, discovery papers, written motions (except ex parte), notices, appearances, demands, offers of judgment. No service needed on a party in default for failure to appear, except a pleading asserting a new claim must be served under Rule 4.

FRCP 5(b)

How service is made: on the party's attorney unless the court orders service on the party; by handing it to the person, leaving it at their office or dwelling, mailing it, leaving it with the clerk if no address is known, electronic means the person consented to, or other consented means.

FRCP 5(c)

Numerous defendants: court may order that defendants' pleadings need not be served on each other, that crossclaims, counterclaims, and affirmative defenses are deemed denied, and that filing and serving on the plaintiff is notice to all parties.

FRCP 5(d)

Filing: papers required to be served must be filed within a reasonable time after service; no certificate of service needed for papers served through the court's e-filing system; the clerk must not refuse a filing solely for form.

FRCP 5.1

Constitutional challenge to a statute: a party challenging a federal or state statute's constitutionality (when that government is not a party) must file a notice of constitutional question and serve it on the US Attorney General or state attorney general; the court must certify the challenge (28 U.S.C. §2403); the AG may intervene within 60 days; failure to file notice does not forfeit the claim or defense.

FRCP 5.2

Privacy protection for filings: filings may include only the last 4 digits of a Social Security or financial-account number, the birth year, and a minor's initials. Exemptions exist; the court may order sealing or further redaction; a party waives protection of its own information by filing it unredacted and not under seal.

FRCP 6

Computing time: exclude the day of the event, count every day including weekends and holidays, and include the last day unless it is a weekend, holiday, or the clerk's office is inaccessible (then it runs to the next business day). A written motion and notice of hearing must be served at least 14 days before the hearing, with exceptions.

FRCP 7(a)

Pleadings allowed: complaint; answer to a complaint; answer to a counterclaim; answer to a crossclaim; third-party complaint; answer to a third-party complaint; reply to an answer if the court orders one.

FRCP 7(b)

Motions: a request for a court order must be made by motion, in writing (unless made during a hearing or trial), stating with particularity the grounds and the relief sought.

FRCP 7.1

Disclosure statement: a nongovernmental corporate party must file a statement identifying any parent corporation and any publicly held corporation owning 10% or more of its stock, or stating there is none; filed with its first appearance and supplemented if the information changes.

FRCP 8(a)

Claim for relief must contain: (1) a short and plain statement of the grounds for jurisdiction; (2) a short and plain statement of the claim showing the pleader is entitled to relief; (3) a demand for the relief sought.

FRCP 8(b)

Defenses; admissions and denials: a party must state its defenses and admit or deny the allegations; denials must fairly respond to the substance; a partial denial must admit the rest; a general denial is allowed only if the party in good faith denies every allegation.

FRCP 8(b)(6)

An allegation (other than one relating to the amount of damages) is admitted if a responsive pleading is required and it is not denied.

FRCP 8(c)

Affirmative defenses: a party must affirmatively state any avoidance or affirmative defense.

FRCP 8(d)

Pleadings must be simple, concise, and direct; alternative or hypothetical statements are allowed, and claims or defenses may be inconsistent.

FRCP 9(a)

Capacity to sue or be sued need not be alleged, except when required to show jurisdiction.

FRCP 9(b)

Fraud or mistake must be pleaded with particularity; malice, intent, knowledge, and other conditions of mind may be alleged generally.

FRCP 9(c)

Conditions precedent may be alleged generally, but denying them must be done with particularity.

FRCP 10

Form of pleadings: caption with the court's name, a title, file number, and Rule 7(a) designation; the complaint's title must name all parties; claims stated in numbered paragraphs.

FRCP 11(a)

Every pleading, written motion, and other paper must be signed by an attorney of record (or the party if unrepresented).

FRCP 11(b)

By presenting a paper, the attorney certifies after reasonable inquiry: (1) no improper purpose; (2) legal contentions are warranted by existing law or a nonfrivolous argument to change it; (3) factual contentions have evidentiary support or will likely have support after reasonable discovery; (4) denials are warranted on the evidence.

FRCP 11(c)

Sanctions: the court may sanction an attorney, law firm, or party that violated 11(b). A sanctions motion is served under Rule 5 but not filed if the paper is withdrawn or corrected within 21 days (safe harbor). The court may also act on its own (sua sponte). Reviewed for abuse of discretion.

FRCP 11(d)

Rule 11 does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37.

FRCP 12(a)

Time to respond: answer within 21 days after service; 60 days if service was waived (90 if outside the US); the US and its officers get 60 days. If a Rule 12 motion is denied, the answer is due 14 days after notice of the ruling.

FRCP 12(b)

Defenses that may be raised by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a party under Rule 19.

FRCP 12(b)(1)

Lack of subject-matter jurisdiction; never waived and may be raised at any time.

FRCP 12(b)(4)

Insufficient process: a defect in the summons itself.

FRCP 12(b)(5)

Insufficient service of process: a defect in how the summons and complaint were delivered.

FRCP 12(b)(6)

Failure to state a claim upon which relief can be granted; the court accepts the well-pleaded factual allegations as true and tests the legal sufficiency of the claim.

FRCP 12(b)(7)

Failure to join a required party under Rule 19.

FRCP 12(c)

Motion for judgment on the pleadings, made after the pleadings are closed.

FRCP 12(d)

If matters outside the pleadings are presented on a 12(b)(6) or 12(c) motion and not excluded, the motion must be treated as one for summary judgment under Rule 56.

FRCP 12(e)

Motion for a more definite statement when a pleading is so vague or ambiguous that a party cannot reasonably respond.

FRCP 12(f)

Motion to strike: the court may strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, on its own or on motion.

FRCP 12(h)

Waiver: (1) defenses in 12(b)(2)-(5) are waived if omitted from the first Rule 12 motion or responsive pleading; (2) 12(b)(6) and 12(b)(7) defenses may be raised up through trial; (3) if the court lacks subject-matter jurisdiction at any time, it must dismiss (the court may raise it on its own).

FRCP 13

Counterclaims (claims against an opposing party) and crossclaims (claims against a coparty); joining additional parties is governed by Rules 19 and 20.

FRCP 14

Third-party practice (impleader): a defendant may bring in a nonparty who is or may be liable to it for all or part of the claim; a plaintiff may do the same when a counterclaim is asserted against it.

FRCP 15(a)

Amendments before trial: a party may amend once as a matter of course within 21 days after serving it, or 21 days after a responsive pleading or Rule 12 motion; otherwise only with the opposing party's consent or the court's leave, which should be freely given when justice so requires. Response due within 14 days after service of the amended pleading.

FRCP 15(c)

Relation back: an amendment relates back to the original filing date when (B) it arises out of the same conduct, transaction, or occurrence set out in the original pleading, or (C) it changes the party, and the new party received notice and knew or should have known it would have been sued but for a mistake.

FRCP 16

Pretrial conferences, scheduling, and case management; the court may order conferences and issue scheduling orders; 16(f) provides sanctions (cross-referencing Rule 37).

FRCP 17(a)

Real party in interest: an action must be prosecuted in the name of the real party in interest; executors, administrators, guardians, bailees, trustees of an express trust, parties to a contract made for another's benefit, and parties authorized by statute may sue in their own names.

FRCP 17(b)

Capacity to sue or be sued: an individual by the law of their domicile; a corporation by the law under which it was organized; all others by the law of the state where the court is located (with exceptions).

FRCP 17(c)

Minors and incompetent persons may sue or be defended by a general guardian, committee, conservator, or similar fiduciary; the court must appoint a guardian ad litem for one who is unrepresented.

FRCP 17(d)

A public officer suing or sued in an official capacity may be designated by official title rather than by name.

FRCP 18

Joinder of claims: a party may join as many claims as it has against an opposing party; claims contingent on another claim's outcome may be joined.

FRCP 19

Required joinder of parties: a person must be joined if feasible when complete relief cannot be accorded without them or their interest may be impaired; if joinder is not feasible, the court decides whether to proceed or dismiss.

FRCP 20

Permissive joinder: persons may join as plaintiffs, or be joined as defendants, if the claims arise out of the same transaction, occurrence, or series of transactions or occurrences AND share a common question of law or fact; the court may order separate trials.

FRCP 21

Misjoinder of parties is not a ground for dismissal; the court may add or drop a party at any time on just terms.

FRCP 22

Interpleader: a party facing multiple claims that may expose it to double or multiple liability may join the claimants and require them to interplead, even if their claims lack a common origin; supplements statutory interpleader (28 U.S.C. §§1335, 1397, 2361).

FRCP 23(a)

Class action prerequisites: (1) numerosity - joinder impracticable; (2) commonality - common questions of law or fact; (3) typicality - representative's claims are typical; (4) adequacy - representatives will fairly and adequately protect the class.

FRCP 23(b)

Types of class actions: (1) separate actions would risk inconsistent judgments or impair absent members' interests; (2) the opposing party acted on grounds generally applicable to the class, so class-wide injunctive or declaratory relief is appropriate; (3) common questions predominate and a class action is superior.

FRCP 23(e)

Court approval is required for any class-action settlement, voluntary dismissal, or compromise.

FRCP 23(f)

A court of appeals may permit an appeal from an order granting or denying class certification.

FRCP 23.1

Derivative actions: shareholders or members may sue to enforce a right the corporation or association has failed to enforce; the complaint must be verified, allege the plaintiff was a shareholder at the time, allege the action is not collusive, and state the demand made on directors or why none was made; settlement requires court approval.

FRCP 23.2

Actions relating to unincorporated associations: may be brought by or against representative members if they will fairly and adequately protect the interests of the association and its members.

FRCP 24(a)

Intervention of right: the court must permit anyone who has an unconditional statutory right to intervene, or who claims an interest in the subject of the action that may be impaired and is not adequately represented by existing parties.

FRCP 24(b)

Permissive intervention: the court may permit anyone with a conditional statutory right or a claim or defense sharing a common question of law or fact with the main action, and certain government officers; the court considers undue delay or prejudice.

FRCP 24(c)

A motion to intervene must be served under Rule 5, state the grounds, and be accompanied by a pleading setting out the claim or defense.

FRCP 25

Substitution of parties: (a) on death, if the claim is not extinguished, a motion to substitute must be made within 90 days after service of a statement noting the death or the action is dismissed; (b) incompetency; (c) transfer of interest - action may continue by or against the original party unless the court orders substitution or joinder; (d) a public officer's successor is automatically substituted.

FRCP 26(a)

Required disclosures: initial disclosures (witnesses, documents, damages computation, insurance); expert disclosures (at least 90 days before trial); pretrial disclosures (at least 30 days before trial); all in writing, signed, and served.

FRCP 26(b)

Discovery scope: any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case; the court may limit discovery.

FRCP 26(c)

Protective orders: the court where the action is pending may, for good cause, issue an order protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

FRCP 26(d)

Timing and sequence: no discovery before the 26(f) conference unless exempted (early Rule 34 requests allowed); methods may be used in any sequence, and one party's discovery does not delay another's.

FRCP 26(e)

Duty to supplement disclosures and discovery responses.

FRCP 26(f)

Conference of the parties: as soon as practicable and at least 21 days before the scheduling conference, the parties confer on claims, defenses, settlement, and a discovery plan, and submit the plan within 14 days after the conference.

FRCP 26(g)

Signing disclosures and discovery requests, responses, and objections; the signature certifies them after reasonable inquiry (the discovery counterpart to Rule 11), with sanctions for violations.

FRCP 27

Depositions to perpetuate testimony: (a) before an action is filed, by petition served at least 21 days before the hearing; (b) pending appeal.

FRCP 28

Persons before whom depositions may be taken: an officer authorized to administer oaths or a person appointed by the court; depositions in foreign countries allowed; not before a party's relative, employee, attorney, or anyone financially interested in the action.

FRCP 29

Stipulations about discovery procedure: parties may stipulate to deposition and discovery procedures, but a stipulation extending time must have court approval if it would interfere with the time set for completing discovery, hearing a motion, or trial.

FRCP 30

Depositions by oral examination: may be taken without leave except in certain cases; reasonable written notice required; testimony recorded under oath; limited to 1 day of 7 hours; motion to terminate or limit for bad faith or unreasonable annoyance; deponent has 30 days to review and sign changes; officer certifies the transcript; expenses for failure to attend.

FRCP 31

Depositions by written questions: may be taken without leave except in certain cases; questions delivered to an officer who takes the testimony, certifies it, and sends it to the party; the party must notify all other parties when it is filed.

FRCP 32

Using depositions in court: may be used against a party who was present or represented at the taking or had reasonable notice; not against a party who received short notice or could not obtain an attorney despite diligence; objections to admissibility may be made at trial; certain objections are waived if not timely made.

FRCP 33

Interrogatories to parties: no more than 25, including discrete subparts; answered separately in writing under oath within 30 days; objections must be specific or are waived; a party may answer by specifying business records where the answer can be found.

FRCP 34

Producing documents, electronically stored information, and tangible things, or entering land: requests to parties must describe items with reasonable particularity; response within 30 days; objections must be specific; nonparties may be compelled by subpoena under Rule 45.

FRCP 35

Physical and mental examinations: the court may order a party whose physical or mental condition is in controversy to submit to an exam by a suitably licensed or certified examiner, on motion for good cause; the examined party may request the examiner's detailed report.

FRCP 36

Requests for admission: a party may serve requests to admit the truth of facts, the application of law to fact, opinions about either, or the genuineness of documents; the answering party must admit, deny, or explain in detail why it cannot; an admission may be withdrawn or amended if it promotes the merits and does not prejudice the requesting party; no numerical limit.

FRCP 37

Failure to make disclosures or cooperate in discovery; sanctions: (a) motion to compel; (b) sanctions for failing to obey a discovery order; (c) failure to disclose, supplement, or admit; (d) failure to attend one's own deposition, answer interrogatories, or respond to an inspection request; (e) failure to preserve electronically stored information; (f) failure to participate in framing a discovery plan.

FRCP 37(c)(2)

If a party fails to admit something under Rule 36 that is later proved, the court must order it to pay the reasonable expenses and attorney's fees of proving it, with exceptions.

FRCP 41(a)

Voluntary dismissal: plaintiff may dismiss without a court order by filing a notice before the opposing party serves an answer or summary-judgment motion, or by a stipulation signed by all parties who have appeared; otherwise only by court order. If a counterclaim was pleaded before the motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication.

FRCP 41(b)

Involuntary dismissal: a defendant may move to dismiss if the plaintiff fails to prosecute or to comply with the rules or a court order; operates as an adjudication on the merits unless stated otherwise.

FRCP 41(c)

Dismissal rules also apply to counterclaims, crossclaims, and third-party claims.

FRCP 41(d)

If a plaintiff who previously dismissed an action refiles a claim based on the same claim against the same defendant, the court may order payment of the costs of the prior action and stay the proceedings until paid.