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Rule
4. Summons |
| (a) |
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Form. The summons shall be
signed by the clerk, bear the seal of the court, identify the court
and the parties, be directed to the defendant, and state the name and
address of the plaintiffs attorney or, if unrepresented, of the
plaintiff. It shall also state the time within which the defendant
must appear and defend, and notify the defendant that failure to do so
will result in a judgment by default against the defendant for the
relief demanded in the complaint. The court may allow a summons to be
amended. |
| (b) |
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Issuance. Upon or after filing
the complaint, the plaintiff may present a summons to the clerk for
signature and seal. If the summons is in proper form, the clerk shall
sign, seal, and issue it to the plaintiff for service on the
defendant. A summons, or a copy of the summons if addressed to
multiple defendants, shall be issued for each defendant to be served.
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| (c) |
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Service with Complaint; by Whom
Made. |
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(1) |
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A summons shall be served together
with a copy of the complaint. The plaintiff is responsible for service
of a summons and complaint within the time allowed under subdivision
(in) and shall furnish the person effecting service with the necessary
copies of the summons and complaint. |
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(2) |
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Service may be effected by any person
who is not a party and who is at least 18 years of age. At the request
of the plaintiff, however, the court may direct that service be
effected by a United States marshal, deputy United States marshal, or
other person or officer specially appointed by the court for the
purpose. Such an appointment must be made when the plaintiff is
authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915
or is authorized to proceed as a seaman under 28 U.S.C. § 1916.
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| (d) |
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Waiver of Service; Duty to Save
Costs of Service; Request to Waive. |
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(1) |
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A defendant who waives service of a
summons does not thereby waive any objection to the venue or to the
jurisdiction of the court over the person of the defendant.
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(2) |
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An individual, corporation, or
association that is subject to service under subdivision (e), (f), or
(h) and that receives notice of an action in the manner provided in
this paragraph has a duty to avoid unnecessary costs of serving the
summons. To avoid costs, the plaintiff may notify such a defendant of
the commencement of the action and request that the defendant waive
service of a summons. The notice and request: |
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(A) |
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shall be in writing and shall be
addressed directly to the defendant, if an individual, or else to an
officer or managing or general agent (or other agent authorized by
appointment or law to receive service of process) of a defendant
subject to service under subdivision (h); |
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(B) |
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shall be dispatched through
first-class mail or other reliable means; |
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(C) |
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shall be accompanied by a copy of the
complaint and shall identify the court in which it has been filed;
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(D) |
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shall inform the defendant, by means
of a text prescribed in an official form promulgated pursuant to Rule
84, of the consequences of compliance and of a failure to comply with
the request; |
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(E) |
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shall set forth the date on which
request is sent; |
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(F) |
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shall allow the defendant a reasonable
time to return the waiver, which shall be at least 30 days from the
date on which the request is sent, or 60 days from that date if the
defendant is addressed outside any judicial district of the United
States; and |
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(G) |
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shall provide the defendant with an
extra copy of the notice and request, as well as a prepaid means of
compliance in writing. If a defendant located within the United States
fails to comply with a request for waiver made by a plaintiff located
within the United States, the court shall impose the costs
subsequently incurred in effecting service on the defendant unless
good cause for the failure be shown. |
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(3) |
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A defendant that, before being served
with process, timely returns a waiver so requested is not required to
serve an answer to the complaint until 60 days after the date on which
the request for waiver of service was sent, or 90 days after that date
if the defendant was addressed outside any judicial district of the
United States. |
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(4) |
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When the plaintiff files a waiver of
service with the court, the action shall proceed, except as provided
in paragraph (3), as if a summons and complaint had been served at the
time of filing the waiver, and no proofs of service shall be required.
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(5) |
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The costs to be imposed on a defendant
under paragraph (2) for failure to comply with a request to waive
service of a summons shall include the costs subsequently incurred in
effecting service under subdivision (e), (f), or (h), together with
the costs, including a reasonable attorney's fee, of any motion
required to collect the costs of service. |
| (e) |
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Service Upon Individuals Within a
Judicial District of the United States. Unless otherwise provided
by federal law, service upon an individual from whom a waiver has not
been obtained and filed, other than an infant or an incompetent
person, may be effected in any judicial district of the United States:
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(1) |
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pursuant to the law of the state in
which the district court is located, or in which service is effected,
for the service of a summons upon the defendant in an action brought
in the courts of general jurisdiction of the State; or |
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(2) |
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by delivering a copy of the summons
and of the complaint to the individual personally or by leaving copies
thereof at the individual's dwelling house or usual place of abode
with some person of suitable age and discretion then residing therein
or by delivering a copy of the summons and of the complaint to an
agent authorized by appointment or by law to receive service of
process. |
| (f) |
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Service Upon Individuals in a
Foreign Country. Unless otherwise provided by federal law, service
upon an individual from whom a waiver has not been obtained and filed,
other than an infant or an incompetent person, may be effected in a
place not within any judicial district of the United States:
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(1) |
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by any internationally agreed means
reasonably calculated to give notice, such as those means authorized
by the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents; or |
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(2) |
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if there is no internationally agreed
means of service or the applicable international agreement allows
other means of service, provided that service is reasonably calculated
to give notice: |
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(A) |
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in the manner prescribed by the law of
the foreign country for service in that country in an action in any of
its courts of general jurisdiction; or |
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(B) |
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as directed by the foreign authority
in response to a letter rogatory or letter of request; or |
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(C) |
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unless prohibited by the law of the
foreign country, by |
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(i) |
delivery to the individual personally
of a copy of the summons and the complaint; or |
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(ii) |
any form of mail requiring a signed
receipt, to be addressed and dispatched by the clerk of the court to
the party to be served; or |
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(3) |
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by other means not prohibited by
international agreement as may be directed by the court. |
| (g) |
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Service Upon Infants and
Incompetent Person. Service upon an infant or an incompetent
person in a judicial district of the United States shall be effected
in the manner prescribed by the law of the state in which the service
is made for the service of summons or like process upon any such
defendant in an action brought in the courts of general jurisdiction
of that state. Service upon an infant or an incompetent person in a
place not within any judicial district of the United States shall be
effected in the manner prescribed by paragraph (2)(A) or (2)(B) of
subdivision (f) or by such means as the court may direct. |
| (h) |
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Service Upon Corporations and
Associations. Unless otherwise provided by federal law, service
upon a domestic or foreign corporation or upon a partnership or other
unincorporated association that is subject to suit under a common
name, and from which a waiver of service has not been obtained and
filed, shall be effected: |
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(1) |
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in a judicial district of the United
States in the manner prescribed for individuals by subdivision (e)(1),
or by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent authorized
by appointment or by law to receive service of process and, if the
agent is one authorized by statute to receive service and the statute
so requires, by also mailing a copy to the defendant, or |
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(2) |
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in a place not within any judicial
district of the United States in any manner prescribed for individuals
by subdivision (f) except personal delivery as provided in paragraph
(2)(C)(i) thereof.
[Effective until December 1, 2000] (i) Service Upon the United States,
and its Agencies, Corporations, or Officers. (1) Service upon the
United States shall be effected
[Effective December 1, 2000] (i) Serving the United States, Its
Agencies, Corporations, Officers, or Employees. |
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(A) |
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by delivering a copy of the summons
and of the complaint to the United States attorney for the district in
which the action is brought or to an assistant United States attorney
or clerical employee designated by the United States attorney in a
writing filed with the clerk of the court or by sending a copy of the
summons and of the complaint by registered or certified mail addressed
to the civil process clerk at the office of the United States attorney
and |
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(B) |
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by also sending a copy of the summons
and of the complaint by registered or certified mail to the Attorney
General of the United States at Washington, District of Columbia, and
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(C) |
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in any action attacking the validity
of an order of an officer or agency of the United States not made a
party, by also sending a copy of the summons and of the complaint by
registered or certified mail to the officer or agency. |
| (j) |
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Service Upon Foreign, State, or
Local Governments. |
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(1) |
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Service upon a foreign state or a
political subdivision, agency, or instrumentality thereof shall be
effected pursuant to 28 U.S.C. § 1608. |
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(2) |
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Service upon a state, municipal
corporation, or other governmental organization subject to suit, shall
be effected by delivering a copy of the summons and of the complaint
to its chief executive officer or by serving the summons and complaint
in the manner prescribed by the law of that state for the service of
summons or other like process upon any such defendant. |
| (k) |
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Territorial Limits of Effective
Service. |
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(1) |
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Service of a summons or filing a
waiver of service is effective to establish jurisdiction over the
person of a defendant |
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(A) |
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who could be subjected to the
jurisdiction of a court of general jurisdiction in the state in which
the district court is located, or |
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(B) |
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who is a party joined under Rule 14 or
Rule 19 and is served at a place within a judicial district of the
United States and not more than 100 miles from the place from which
the summons issues, or |
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(C) |
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who is subject to the federal
interpleader jurisdiction under 28 U.S.C. § 1335, or |
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(D) |
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when authorized by a statute of the
United States. |
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(2) |
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If the exercise of jurisdiction is
consistent with the Constitution and laws of the United States,
serving a summons or filing a waiver of service is also effective,
with respect to claims arising under federal law, to establish
personal jurisdiction over the person of any defendant who is not
subject to the jurisdiction of the courts of general jurisdiction of
any state. |
| (l) |
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Proof of Service. If service is
not waived, the person effecting service shall make proof thereof to
the court. If service is made by a person other than a United States
marshal or deputy United States marshal, the person shall make
affidavit thereof. Proof of service in a place not within any judicial
district of the United States shall, if effected under paragraph (1)
of subdivision (f), be made pursuant to the applicable treaty or
convention, and shall, if effected under paragraph (2) or (3) thereof,
include a receipt signed by the addressee or other evidence of
delivery to the addressee satisfactory to the court. Failure to make
proof of service does not affect the validity of the service. The
court may allow proof of service to be amended, |
| (m) |
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Time Limit for Service. If
service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint, the court, upon
motion or on its own initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that defendant or direct
that service be effected within a specified time; provided that if the
plaintiff shows good cause for the failure, the court shall extend the
time for service for an appropriate period. This subdivision does not
apply to service in a foreign country pursuant to subdivision (f) or
(j)(1). |
| (n) |
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Seizure of Property; Service of
Summons Not Feasible. |
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(1) |
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If a statute of the United States so
provides, the court may assert jurisdiction over property. Notice to
claimants of the property shall than be sent in the manner provided by
the statute or by service of a summons under this rule. |
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(2) |
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Upon a showing that personal
jurisdiction over a defendant cannot, in the district where the action
is brought, be obtained with reasonable efforts by service of summons
in any manner authorized by this rule, the court may assert
jurisdiction over any of the defendant's assets found within the
district by seizing the assets under the circumstances and in the
manner provided by the law of the state in which the district court is
located.
(Amended July 1, 1963; July 1, 1966; Aug. 1, 1980; Jan. 12, 1983, P.L.
97-462, § 2, 96 Stat. 2527; Aug. 1, 1987; Dec. 1, 1993.) |
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Rule
45. Subpoena |
| (a) |
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Form; Issuance. |
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(1) |
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Every subpoena shall |
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(A) |
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state the name of the court from which
it is issued; and |
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(B) |
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state the title of the action, the
name of the court in which it is pending, and its civil action number;
and |
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(C) |
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command each person to whom it is
directed to attend and give testimony or to produce and permit
inspection and copying of designated books, documents or tangible
things in the possession, custody or control of that person, or to
permit inspection of premises, at a time and place therein specified;
and |
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(D) |
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set forth the text of subdivisions (c)
and (d) of this rule.
A command to produce evidence or to permit inspection may be joined
with a command to appear at trial or hearing or at deposition, or may
be issued separately. |
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(2) |
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A subpoena commanding attendance at a
trial or hearing shall issue from the court for the district in which
the hearing or trial is to be held. A subpoena for attendance at a
deposition shall issue from the court for the district designated by
the notice of deposition as the district in which the deposition is to
be taken. If separate from a subpoena commanding the attendance of a
person, a subpoena for production or inspection shall issue from the
court for the district in which the production or inspection is to be
made. |
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(3) |
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The clerk shall issue a subpoena,
signed but otherwise in blank, to a party requesting it, who shall
complete it before service. An attorney as officer of the court may
also issue and sign a subpoena on behalf of |
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(A) |
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a court in which the attorney is
authorized to practice; or |
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(B) |
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a court for a district in which a
deposition or production is compelled by the subpoena, if the
deposition or production pertains to an action pending in a court in
which the attorney is authorized to practice. |
| (b) |
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Service. |
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(1) |
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A subpoena may be served by any person
who is not a party and is not less than 18 years of age. Service of a
subpoena upon a person named therein shall be made by delivering a
copy thereof to such person and, if the person's attendance is
commanded, by tendering to that person the fees for one day's
attendance and the mileage allowed by law. When the subpoena is issued
on behalf of the United States or an officer or agency thereof, fees
and mileage need not be tendered. Prior notice of any commanded
production of documents and things or inspection of premises before
trial shall be served on each party in the manner prescribed by Rule 5
(b). |
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(2) |
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Subject to the provisions of clause
(ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served
at any place within the district of the court by which it is issued,
or at any place without the district that is within 100 miles of the
place of the deposition, hearing, trial, production, or inspection
specified in the subpoena or at any place within the state where a
state statute or rule of court permits service of a subpoena issued by
a state court of general jurisdiction sitting in the place of the
deposition, hearing, trial, production, or inspection specified in the
subpoena. When a statute of the United States provides therefor, the
court upon proper application and cause shown may authorize the
service of a subpoena at any other place. A subpoena directed to a
witness in a foreign country who is a national or resident of the
United States shall issue under the circumstances and in the manner
and be served as provided in Title 28, U.S.C. § 1783. |
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(3) |
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Proof of service when necessary shall
be made by filing with the clerk of the court by which the subpoena is
issued a statement of the date and manner of service and of the names
of the persons served, certified by the person who made the service.
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| (c) |
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Protection of Persons Subject to
Subpoenas. |
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(1) |
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A party or an attorney responsible for
the issuance and service of a subpoena shall take reasonable steps to
avoid imposing undue burden or expense on a person subject to that
subpoena. The court on behalf of which the subpoena was issued shall
enforce this duty and impose upon the party or attorney in breach of
this duty an appropriate sanction, which may include, but is not
limited to, lost earnings and a reasonable attorney's fee.
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(2) |
(A) |
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A person commanded to produce and
permit inspection and copying of designated books, papers, documents
or tangible things, or inspection of premises need not appear in
person at the place of production or inspection unless commanded to
appear for deposition, hearing or trial. |
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(B) |
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Subject to paragraph (d)(2) of this
rule, a person commanded to produce and permit inspection and copying
may, within 14 days after service of the subpoena or before the time
specified for compliance if such time is less than 14 days after
service, serve upon the party or attorney designated in the subpoena
written objection to inspection or copying of any or all of the
designated materials or of the premises. If objection is made, the
party serving the subpoena shall not be entitled to inspect and copy
the materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the person
commanded to produce, move at any time for an order to compel the
production. Such an order to compel production shall protect any
person who is not a party or an officer of a party from significant
expense resulting from the inspection and copying commanded.
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(3) |
(A) |
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On timely motion, the court by which a
subpoena was issued shall quash or modify the subpoena if it
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(i) |
fails to allow reasonable time for
compliance; |
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(ii) |
requires a person who is not a party
or an officer of a party to travel to a place more than 100 miles from
the place where that person resides, is employed or regularly
transacts business in person, except that, subject to the provisions
of clause (c)(3)(B)(iii) of this rule, such a person may in order to
attend trial be commanded to travel from any such place within the
state in which the trial is held, or |
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(iii) |
requires disclosure of privileged or
other protected matter and no exception or waiver applies, or
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(iv) |
subjects a person to undue burden.
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(B) |
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If a subpoena |
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(i) |
requires disclosure of a trade secret
or other confidential research, development, or commercial
information, or |
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(ii) |
requires disclosure of an unretained
expert's opinion or information not describing specific events or
occurrences in dispute and resulting from the expert's study made not
at the request of any party, or |
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(iii) |
requires a person who is not a party
or an officer of a party to incur substantial expense to travel more
than 100 miles to attend trial, the court may, to protect a person
subject to or affected by the subpoena, quash or modify the subpoena
or, if the party in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assures that the person to
whom the subpoena is addressed will be reasonably compensated, the
court may order appearance or production only upon specified
conditions. |
| (d) |
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Duties in Responding to Subpoena.
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(1) |
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A person responding to a subpoena to
produce documents shall produce them as they are kept in the usual
course of business or shall organize and label them to correspond with
the categories in the demand. |
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(2) |
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When information subject to a subpoena
is withheld on a claim that it is privileged or subject to protection
as trial preparation materials, the claim shall be made expressly and
shall be supported by a description of the nature of the documents,
communications, or things not produced that is sufficient to enable
the demanding party to contest the claim. |
| (e) |
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Contempt. Failure by any person
without adequate excuse to obey a subpoena served upon that person may
be deemed a contempt of the court from which the subpoena issued. An
adequate cause for failure to obey exists when a subpoena purports to
require a non-party to attend or produce at a place not within the
limits provided by clause (ii) of subparagraph (c)(3)(A).
(Amended March 19, 1948; Oct. 20, 1949; July 1, 1970; Aug. 1, 1980;
Aug. 1, 1985; Aug. 1, 1987; Dec. 1, 1991.) |
