The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. They are the companion to the Federal Rules of Criminal Procedure. Rules promulgated by the United States Supreme Court pursuant to the Rules Enabling Act become part of the FRCP unless, within seven months, the United States Congress acts to veto them. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.
At the time (1934) was adopted, federal courts were generally required to follow the procedural rules of the states in which they sat, but they were free to apply federal common law in cases not governed by a state constitution or state statute.[1] Whether within the intent of Congress or not when adopting 28 U.S.C. 724 (1934), the situation was effectively reversed in 1938,[2] the year the Federal Rules of Civil Procedure took effect. Federal courts are now required to apply the substantive law of the states as rules of decision in cases where state law is in question, including state judicial decisions, and the federal courts almost always are required to use the FRCP as their rules of civil procedure. States may determine their own rules, which apply in state courts, although 35 of the 50 states have adopted rules that are based on the FRCP.
The Rules, established in 1938, replaced the earlier procedures under the Federal Equity Rules and the Conformity Act (28 U.S.C. 724 (1934)), merging the procedure for cases at law and in equity. The Conformity Act required that procedures in suits at law conform to state practice, usually the Field Code or a pleading system based on common law.
Before the FRCP were established, common-law pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a trespass suit would have to mention certain key words in his complaint or risk having it dismissed with prejudice. In contrast, the FRCP is based upon a legal construction called notice pleading, which is less formal, is created and modified by legal experts, and is less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, as long as the claim itself was legally actionable. The policy behind this change is to simply give "notice" of grievances and to leave the details for later in the case. This acts in the interest of equity by concentrating on the actual law rather than the exact construction of pleas.
The Field Code, which was adopted between 1848 and 1850, was an intermediate step between common law and modern rules, created by New York attorney David Dudley Field. The Field Code was partially inspired by civil law systems in Europe and Louisiana, and among other reforms, merged law and equity proceedings. In 1935, the Supreme Court appointed Charles Edward Clark as the Reporter to the Advisory Committee on Rules for Civil Procedure. The rules that Committee proposed became the Federal Rules of Civil Procedure in 1938.[3] [4] The Supreme Court has described Clark as "the principal draftsman" of the Rules.[5]
Significant revisions have been made to the FRCP in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, and 2006. The FRCP contains a notes section that details the changes of each revision since 1938, explaining the rationale behind the language.
The 1966 amendments to the FRCP unified the civil and admiralty procedure, and added the Supplemental Rules for Certain Admiralty and Maritime Claims, now Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.
The revisions that took effect in December 2006 made practical changes to discovery rules to make it easier for courts and litigating parties to manage electronic records.
The FRCP were rewritten with respect to style, effective December 1, 2007, under the leadership of law professor and editor of Black's Law Dictionary Bryan A. Garner, for the avowed purpose of making them easier to understand. The style amendments were not intended to make substantive changes in the rules.[6]
Effective December 1, 2009, substantial amendments were made to rules 6, 12, 13, 14, 15, 23, 27, 32, 38, 48, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72 and 81. While rules 48 and 62.1 were added. Rule 1(f) was abrogated. The majority of the amendments affect various timing requirements and change how some deadlines are calculated. The most significant changes are to Rule 6.
The FRCP does not apply to civil actions centralized into multidistrict litigations (MDLs), which have grown from a small minority of federal civil cases to the majority of them. At the end of 2018, for the first time, more than half of all pending federal civil actions had been centralized into MDLs.[7] In other words, over half of all federal civil actions were not being litigated under the FRCP, but under ad hoc procedures crafted by federal district judges to manage complex civil litigation. In response to these developments, many attorneys representing both plaintiffs and defendants have argued that the FRCP should be amended to expressly address the unique requirements of MDLs.
There are 87 rules in the FRCP, which are grouped into 11 titles. There are also two separate supplemental rules governing certain actions under admiralty law (Rules B-F) and civil forfeiture (Rule G); and for individual social security actions (Supplemental Rules 1-8).
Listed below are the most commonly used categories and rules.
Rules 1 and 2.
Title I states goals for the FRCP. Rule states that the rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Rule unifies the procedure of law and equity in the federal courts by specifying that there shall be one form of action, the "civil action".
Rules 3 to 6.
Title II covers commencement of civil suits and includes filing, summons, and service of process. Rule provides that a civil action is commenced by filing a complaint with the court. Rule deals with procedure for issuance of a summons, when the complaint is filed, and for the service of the summons and complaint on the defendants. Rule requires that all papers in an action be served on all parties and be filed with the court. Rule deals with technical issues, which concern the computation of time, and authorizes the courts to extend certain deadlines in appropriate circumstances.
Rules 7 to 16.
Title III covers pleadings, motions, defenses, and counterclaims. The plaintiff's original pleading is called a complaint. The defendant's original pleading is called an answer.
Rule (a) sets out the plaintiff's requirements for a claim: a "short and plain statement" of jurisdiction, a "short and plain statement" of the claim, and a demand for judgment. It also allows relief in the alternative, so the plaintiff does not have to pre-guess the remedy most likely to be accepted by the court.
Rule 8(b) states that the defendant's answer must admit or deny every element of the plaintiff's claim.
Rule 8(c) requires that the defendant's answer must state any affirmative defenses.
Rule 8(d) maintains that each allegation be "simple, concise, and direct" but allows "2 or more statements of a claim or defense alternatively or hypothetically." If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. A party may state inconsistent (even mutually exclusive) claims or defenses.
In addition to notice pleading, a minority of states (e.g., California) use an intermediate system known as code pleading, which is a system older than notice pleading and which is based upon legislative statute. It tends to straddle the gulf between obsolete common-law pleading and modern notice pleading. Code pleading places additional burdens on a party to plead the "ultimate facts" of its case, laying out the party's entire case and the facts or allegations underlying it. Notice pleading, by contrast, simply requires a "short and plain statement" showing only that the pleader is entitled to relief (FRCP 8(a)(2)). One important exception to this rule is that, when a party alleges fraud or mistake, it must plead the facts of the alleged fraud "with particularity" (FRCP 9(b)).
Rule describes what information should be in the caption (the front page) of a pleading, but does not explain how such information should actually be organized in the caption. The FRCP is notoriously vague on how papers should be formatted. Most of the details missing from the FRCP are to be found in local rules promulgated by each district court and in general orders by each individual federal judge. For example, federal courts in some of the West Coast states require line numbers on the left margin on all filings (to match local practice in the courts of the states in which they sit), but most other federal courts do not.
Rule requires all papers to be signed by the attorney (if party is represented). It also provides for sanctions against the attorney or client for harassment, frivolous arguments, or a lack of factual investigation. The purpose of sanctions is deterrent, not punitive. Courts have broad discretion about the exact nature of the sanction, which can include consent to in personam jurisdiction, fines, dismissal of claims, or dismissal of the entire case. The current version of Rule 11 is more lenient than its 1983 version. Supporters of tort reform in Congress regularly call for legislation to make Rule 11 stricter.
Rule (b) describes pretrial motions that can be filed.
A Rule 12(b)(6) motion, which replaced the common law demurrer, is how a lawsuit with insufficient legal theory underlying its cause of action is dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (No. 05-1126) (2007) (citations, internal quotation marks and footnote omitted). Federal court rules require a court to accept "all well-pleaded allegations" as true and to construe the factual allegations in the light most favorable to the plaintiff, so as to focus its review of a Rule 12(b)(6) motion on testing the legal sufficiency of the complaint.[8]
Rule 12(b)(6) is the second of three procedural "hurdles" a cause of action must surmount before it gets to a trial (the first are the two jurisdictional dismissals, found in 12 (b)(1) and (2), and the third is summary judgment, found in Rule 56). A Rule 12(b)(6) motion cannot include additional evidence such as affidavits. To dispose of claims with insufficient factual basis (where the movant must submit additional facts to demonstrate the factual weakness in the plaintiff's case), a Rule 56 motion for summary judgment is used.
Rule 12(e) is a Motion for more definite statement.
Rules 12(g) and 12(h) are also important because they state that if 12(b)(2)-12(b)(5) motions are not properly bundled together or included in an answer/allowable amendment to an answer, they are waived. Additionally, because 12(b)(1) motions are so fundamental, they may never be waived throughout the course of litigation, and 12(b)(6) and 12(b)(7) motions may be filed at any time until trial ends.
Rule describes when a defendant is allowed or required to assert claims against other parties to the suit (joinder). The law encourages people to resolve all their differences as efficiently as possible; consequently, in many jurisdictions, counterclaims (claims against an opposing party) that arise out of the same transaction or occurrence (compulsory counterclaims) must be brought during the original suit, or they will be barred from future litigation (preclusion). Any counterclaims may be brought, even if they are not compulsory (permissive counterclaims), however a crossclaim (claims against a coparty), while not compulsory, must arise out of the same transaction or occurrence of the original suit or a counterclaim, or it must relate to the property in the original suit.
Rule allows parties to bring in other third parties to a lawsuit.
Rule allows pleadings to be amended or supplemented. Plaintiffs may amend once before an answer is filed, a defendant can amend once within 21 days of serving an answer. If there is no right to amend, a party may seek leave of the court:"The court should freely give leave when justice so requires" (FRCP 15(a)
