VII. JUDGMENT
Rule 54. Judgments; Costs
(a)
(b)
(c)
(d)
(1) Costs Other than Attorneys' Fees. Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Such costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.
(2) Attorneys' Fees.
(A) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(B) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made.
(C) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion in accordance with Rule 43(e) or Rule 78. The court may determine issues of liability for fees before receiving submissions bearing on issues of evaluation of services for which liability is imposed by the court. The court shall find the facts and state its conclusions of law as provided in Rule 52(a), and a judgment shall be set forth in a separate document as provided in Rule 58.
(D) By local rule the court may establish special procedures by which issues relating to such fees may be resolved without extensive evidentiary hearings. In addition, the court may refer issues relating to the value of services to a special master under Rule 53 without regard to the provisions of subdivision (b) thereof and may refer a motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.
(E) The provisions of subparagraphs (A) through (D) do not apply to claims for fees and expenses as sanctions for violations of these rules or under 28 U.S.C. §1927.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)
Notes of Advisory Committee on Rules—1937
Note to Subdivision (a). The second sentence is derived substantially from [former] Equity Rule 71 (Form of Decree).
Note to Subdivision (b). This provides for the separate judgment of equity and code practice. See Wis.Stat. (1935) §270.54; Compare N.Y.C.P.A. (1937) §476.
Note to Subdivision (c). For the limitation on default contained in the first sentence, see 2 N.D.Comp.Laws Ann. (1913) §7680; N.Y.C.P.A. (1937) §479. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 13, r.r. 3–12. The remainder is a usual code provision. It makes clear that a judgment should give the relief to which a party is entitled, regardless of whether it is legal or equitable or both. This necessarily includes the deficiency judgment in foreclosure cases formerly provided for by Equity Rule 10 (Decree for Deficiency in Foreclosures, Etc.).
Note to Subdivision (d). For the present rule in common law actions, see Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920); Payne, Costs in Common Law Actions in the Federal Courts (1935), 21 Va.L.Rev. 397.
The provisions as to costs in actions in forma pauperis contained in U.S.C., Title 28, §§832–836 [now 1915] are unaffected by this rule. Other sections of U.S.C., Title 28, which are unaffected by this rule are: §§815 [former] (Costs; plaintiff not entitled to, when), 821 [now 1928] (Costs; infringement of patent; disclaimer), 825 (Costs; several actions), 829 [now 1927] (Costs; attorney liable for, when), and 830 [now 1920] (Costs; bill of; taxation).
The provisions of the following and similar statutes as to costs against the United States and its officers and agencies are specifically continued:
U.S.C., Title 15, §§77v(a), 78aa, 79y (Securities and Exchange Commission)
U.S.C., Title 16, §825p (Federal Power Commission)
U.S.C., Title 26, [former] §§1569(d) and 1645(d) (Internal revenue actions)
U.S.C., Title 26, [former] §1670(b)(2) (Reimbursement of costs of recovery against revenue officers)
U.S.C., Title 28, [former] §817 (Internal revenue actions)
U.S.C., Title 28, §836 [now 1915] (United States—actions in forma pauperis)
U.S.C., Title 28, §842 [now 2006] (Actions against revenue officers)
U.S.C., Title 28, §870 [now 2408] (United States—in certain cases)
U.S.C., Title 28, [former] §906 (United States—foreclosure actions)
U.S.C., Title 47, §401 (Communications Commission)
The provisions of the following and similar statutes as to costs are unaffected:
U.S.C., Title 7, §210(f) (Actions for damages based on an order of the Secretary of Agriculture under Stockyards Act)
U.S.C., Title 7, §499g(c) (Appeals from reparations orders of Secretary of Agriculture under Perishable Commodities Act)
U.S.C., Title 8, [former] §45 (Action against district attorneys in certain cases)
U.S.C., Title 15, §15 (Actions for injuries due to violation of antitrust laws)
U.S.C., Title 15, §72 (Actions for violation of law forbidding importation or sale of articles at less than market value or wholesale prices)
U.S.C., Title 15, §77k (Actions by persons acquiring securities registered with untrue statements under Securities Act of 1933)
U.S.C., Title 15, §78i(e) (Certain actions under the Securities Exchange Act of 1934)
U.S.C., Title 15, §78r (Similar to 78i(e))
U.S.C., Title 15, §96 (Infringement of trade-mark—damages)
U.S.C., Title 15, §99 (Infringement of trade-mark—injunctions)
U.S.C., Title 15, §124 (Infringement of trade-mark—damages)
U.S.C., Title 19, §274 (Certain actions under customs law)
U.S.C., Title 30, §32 (Action to determine right to possession of mineral lands in certain cases)
U.S.C., Title 31, §§232 [now 3730] and [former] 234 (Action for making false claims upon United States)
U.S.C., Title 33, §926 (Actions under Harbor Workers' Compensation Act)
U.S.C., Title 35, §67 [now 281, 284] (Infringement of patent—damages)
U.S.C., Title 35, §69 [now 282] (Infringement of patent—pleading and proof)
U.S.C., Title 35, §71 [now 288] (Infringement of patent—when specification too broad)
U.S.C., Title 45, §153p (Actions for non-compliance with an order of National R. R. Adjustment Board for payment of money)
U.S.C., Title 46, [former] §38 (Action for penalty for failure to register vessel)
U.S.C., Title 46, §829 (Action based on non-compliance with an order of Maritime Commission for payment of money)
U.S.C., Title 46, §941 [now 31304] (Certain actions under Ship Mortgage Act)
U.S.C., Title 46, §1227 (Actions for damages for violation of certain provisions of the Merchant Marine Act, 1936)
U.S.C., Title 47, §206 (Actions for certain violations of Communications Act of 1934)
U.S.C., Title 49, §16(2) [see 11704, 15904] (Action based on non-compliance with an order of I. C. C. for payment of money)
Notes of Advisory Committee on Rules—1946 Amendment
The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments except in those special instances covered by statute. Hohorst v. Hamburg-American Packet Co. (1893) 148 U.S. 262; Rexford v. Brunswick-Balke-Collender Co. (1913) 228 U.S. 339; Collins v. Miller (1920) 252 U.S. 364. Rule 54(b) was originally adopted in view of the wide scope and possible content of the newly created "civil action" in order to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case. It was not designed to overturn the settled federal rule stated above, which, indeed, has more recently been reiterated in Catlin v. United States (1945) 324 U.S. 229. See also United States v. Florian (1941) 312 U.S. 656, rev'g (and restoring the first opinion in) Florian v. United States (C.C.A.7th, 1940) 114 F.(2d) 990; Reeves v. Beardall (1942) 316 U.S. 283.
Unfortunately, this was not always understood, and some confusion ensued. Hence situations arose where district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of. In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finality of the partial judgment in question. While most appellate courts have reached a result generally in accord with the intent of the rule, yet there have been divergent precedents and division of views which have served to render the issues more clouded to the parties appellant. It hardly seems a case where multiplicity of precedents will tend to remove the problem from debate. The problem is presented and discussed in the following cases: Atwater v. North American Coal Corp. (C.C.A.2d, 1940) 111 F.(2d) 125; Rosenblum v. Dingfelder (C.C.A.2d, 1940) 111 F.(2d) 406; Audi-Vision, Inc. v. RCA Mfg. Co., Inc. (C.C.A.2d, 1943) 136 F.(2d) 621; Zalkind v. Scheinman (C.C.A.2d, 1943) 139 F.(2d) 895; Oppenheimer v. F. J. Young & Co., Inc. (C.C.A.2d, 1944) 144 F.(2d) 387; Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp. (C.C.A.2d, 1946) 154 F.(2d) 814, cert. den. (1946) 66 S.Ct. 1353; Zarati Steamship Co. v. Park Bridge Corp. (C.C.A.2d, 1946) 154 F.(2d) 377; Baltimore and Ohio R. Co. v. United Fuel Gas Co. (C.C.A.4th, 1946) 154 F.(2d) 545; Jefferson Electric Co. v. Sola Electric Co. (C.C.A.7th, 1941) 122 F.(2d) 124; Leonard v. Socony-Vacuum Oil Co. (C.C.A.7th, 1942) 130 F.(2d) 535; Markham v. Kasper (C.C.A.7th, 1945) 152 F.(2d) 270; Hanney v. Franklin Fire Ins. Co. of Philadelphia (C.C.A.9th, 1944) 142 F.(2d) 864; Toomey v. Toomey (App.D.C. 1945) 149 F.(2d) 19.
In view of the difficulty thus disclosed, the Advisory Committee in its two preliminary drafts of proposed amendments attempted to redefine the original rule with particular stress upon the interlocutory nature of partial judgments which did not adjudicate all claims arising out of a single transaction or occurrence. This attempt appeared to meet with almost universal approval from those of the profession commenting upon it, although there were, of course, helpful suggestions for additional changes in language or clarification of detail. But cf. Circuit Judge Frank's dissenting opinion in Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., supra, n. 21 of the dissenting opinion. The Committee, however, became convinced on careful study of its own proposals that the seeds of ambiguity still remained, and that it had not completely solved the problem of piecemeal appeals. After extended consideration, it concluded that a retention of the older federal rule was desirable, and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule. This is afforded by amended Rule 54(b). It re-establishes an ancient policy with clarity and precision. For the possibility of staying execution where not all claims are disposed of under Rule 54(b), see amended Rule 62(h).
Notes of Advisory Committee on Rules—1961 Amendment
This rule permitting appeal, upon the trial court's determination of "no just reason for delay," from a judgment upon one or more but fewer than all the claims in an action, has generally been given a sympathetic construction by the courts and its validity is settled. Reeves v. Beardall, 316 U.S. 283 (1942); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445 (1956).
A serious difficulty has, however, arisen because the rule speaks of claims but nowhere mentions parties. A line of cases has developed in the circuits consistently holding the rule to be inapplicable to the dismissal, even with the requisite trial court determination, of one or more but fewer than all defendants jointly charged in an action, i.e. charged with various forms of concerted or related wrongdoing or related liability. See Mull v. Ackerman, 279 F.2d 25 (2d Cir. 1960); Richards v. Smith, 276 F.2d 652 (5th Cir. 1960); Hardy v. Bankers Life & Cas. Co., 222 F.2d 827 (7th Cir. 1955); Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105 (9th Cir. 1955). For purposes of Rule 54(b) it was arguable that there were as many "claims" as there were parties defendant and that the rule in its present text applied where less than all of the parties were dismissed, cf. United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 215 (2d Cir. 1955); Bowling Machines, Inc. v. First Nat. Bank, 283 F.2d 39 (1st Cir. 1960); but the Courts of Appeals are now committed to an opposite view.
The danger of hardship through delay of appeal until the whole action is concluded may be at least as serious in the multiple-parties situations as in multiple-claims cases, see Pabellon v. Grace Line, Inc., 191 F.2d 169, 179 (2d Cir. 1951), cert. denied, 342 U.S. 893 (1951), and courts and commentators have urged that Rule 54(b) be changed to take in the former. See Reagan v. Traders & General Ins. Co., 255 F.2d 845 (5th Cir. 1958); Meadows v. Greyhound Corp., 235 F.2d 233 (5th Cir. 1956); Steiner v. 20th Century-Fox Film Corp., supra; 6 Moore's Federal Practice 54.34[2] (2d ed. 1953); 3 Barron & Holtzoff, Federal Practice & Procedure §1193.2 (Wright ed. 1958); Developments in the Law—Multiparty Litigation, 71 Harv.L.Rev. 874, 981 (1958); Note, 62 Yale L.J. 263, 271 (1953); Ill.Ann.Stat. ch. 110, §50(2) (Smith-Hurd 1956). The amendment accomplishes this purpose by referring explicitly to parties.
There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C. §1292(b), added in 1958, may now be available for the multiple-parties cases here considered. See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960). The Rule 54(b) procedure seems preferable for those cases, and §1292(b) should be held inapplicable to them when the rule is enlarged as here proposed. See Luckenbach Steamship Co., Inc., v. H. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir. 1960); 1 Barron & Holtzoff, supra, §58.1, p. 321 (Wright ed. 1960).
Notes of Advisory Committee on Rules—1987 Amendment
The amendment is technical. No substantive change is intended.
Notes of Advisory Committee on Rules—1993 Amendment
Subdivision (d). This revision adds paragraph (2) to this subdivision to provide for a frequently recurring form of litigation not initially contemplated by the rules—disputes over the amount of attorneys' fees to be awarded in the large number of actions in which prevailing parties may be entitled to such awards or in which the court must determine the fees to be paid from a common fund. This revision seeks to harmonize and clarify procedures that have been developed through case law and local rules.
Paragraph (1). Former subdivision (d), providing for taxation of costs by the clerk, is renumbered as paragraph (1) and revised to exclude applications for attorneys' fees.
Paragraph (2). This new paragraph establishes a procedure for presenting claims for attorneys' fees, whether or not denominated as "costs." It applies also to requests for reimbursement of expenses, not taxable as costs, when recoverable under governing law incident to the award of fees. Cf. West Virginia Univ. Hosp. v. Casey, ____ U.S. ____ (1991), holding, prior to the Civil Rights Act of 1991, that expert witness fees were not recoverable under 42 U.S.C. §1988. As noted in subparagraph (A), it does not, however, apply to fees recoverable as an element of damages, as when sought under the terms of a contract; such damages typically are to be claimed in a pleading and may involve issues to be resolved by a jury. Nor, as provided in subparagraph (E), does it apply to awards of fees as sanctions authorized or mandated under these rules or under 28 U.S.C. §1927.
Subparagraph (B) provides a deadline for motions for attorneys' fees—14 days after final judgment unless the court or a statute specifies some other time. One purpose of this provision is to assure that the opposing party is informed of the claim before the time for appeal has elapsed. Prior law did not prescribe any specific time limit on claims for attorneys' fees. White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445 (1982). In many nonjury cases the court will want to consider attorneys' fee issues immediately after rendering its judgment on the merits of the case. Note that the time for making claims is specifically stated in some legislation, such as the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(B) (30-day filing period).
Prompt filing affords an opportunity for the court to resolve fee disputes shortly after trial, while the services performed are freshly in mind. It also enables the court in appropriate circumstances to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits of the case.
Filing a motion for fees under this subdivision does not affect the finality or the appealability of a judgment, though revised Rule 58 provides a mechanism by which prior to appeal the court can suspend the finality to resolve a motion for fees. If an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court under subdivision (d)(2)(B) may effectively extend the period by permitting claims to be filed after resolution of the appeal. A new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59.
The rule does not require that the motion be supported at the time of filing with the evidentiary material bearing on the fees. This material must of course be submitted in due course, according to such schedule as the court may direct in light of the circumstances of the case. What is required is the filing of a motion sufficient to alert the adversary and the court that there is a claim for fees and the amount of such fees (or a fair estimate).
If directed by the court, the moving party is also required to disclose any fee agreement, including those between attorney and client, between attorneys sharing a fee to be awarded, and between adversaries made in partial settlement of a dispute where the settlement must be implemented by court action as may be required by Rules 23(e) and 23.1 or other like provisions. With respect to the fee arrangements requiring court approval, the court may also by local rule require disclosure immediately after such arrangements are agreed to. E.g., Rule 5 of United States District Court for the Eastern District of New York; cf. In re "Agent Orange" Product Liability Litigation (MDL 381), 611 F. Supp. 1452, 1464 (E.D.N.Y. 1985).
In the settlement of class actions resulting in a common fund from which fees will be sought, courts frequently have required that claims for fees be presented in advance of hearings to consider approval of the proposed settlement. The rule does not affect this practice, as it permits the court to require submissions of fee claims in advance of entry of judgment.
Subparagraph (C) assures the parties of an opportunity to make an appropriate presentation with respect to issues involving the evaluation of legal services. In some cases, an evidentiary hearing may be needed, but this is not required in every case. The amount of time to be allowed for the preparation of submissions both in support of and in opposition to awards should be tailored to the particular case.
The court is explicitly authorized to make a determination of the liability for fees before receiving submissions by the parties bearing on the amount of an award. This option may be appropriate in actions in which the liability issue is doubtful and the evaluation issues are numerous and complex.
The court may order disclosure of additional information, such as that bearing on prevailing local rates or on the appropriateness of particular services for which compensation is sought.
On rare occasion, the court may determine that discovery under Rules 26–37 would be useful to the parties. Compare Rules Governing Section 2254 Cases in the U.S. District Courts, Rule 6. See Note, Determining the Reasonableness of Attorneys' Fees—the Discoverability of Billing Records, 64 B.U.L. Rev. 241 (1984). In complex fee disputes, the court may use case management techniques to limit the scope of the dispute or to facilitate the settlement of fee award disputes.
Fee awards should be made in the form of a separate judgment under Rule 58 since such awards are subject to review in the court of appeals. To facilitate review, the paragraph provides that the court set forth its findings and conclusions as under Rule 52(a), though in most cases this explanation could be quite brief.
Subparagraph (D) explicitly authorizes the court to establish procedures facilitating the efficient and fair resolution of fee claims. A local rule, for example, might call for matters to be presented through affidavits, or might provide for issuance of proposed findings by the court, which would be treated as accepted by the parties unless objected to within a specified time. A court might also consider establishing a schedule reflecting customary fees or factors affecting fees within the community, as implicitly suggested by Justice O'Connor in Pennsylvania v. Delaware Valley Citizens' Council, 483 U.S. 711, 733 (1987) (O'Connor, J., concurring) (how particular markets compensate for contingency). Cf. Thompson v. Kennickell, 710 F. Supp. 1 (D.D.C. 1989) (use of findings in other cases to promote consistency). The parties, of course, should be permitted to show that in the circumstances of the case such a schedule should not be applied or that different hourly rates would be appropriate.
The rule also explicitly permits, without need for a local rule, the court to refer issues regarding the amount of a fee award in a particular case to a master under Rule 53. The district judge may designate a magistrate judge to act as a master for this purpose or may refer a motion for attorneys' fees to a magistrate judge for proposed findings and recommendations under Rule 72(b). This authorization eliminates any controversy as to whether such references are permitted under Rule 53(b) as "matters of account and of difficult computation of damages" and whether motions for attorneys' fees can be treated as the equivalent of a dispositive pretrial matter that can be referred to a magistrate judge. For consistency and efficiency, all such matters might be referred to the same magistrate judge.
Subparagraph (E) excludes from this rule the award of fees as sanctions under these rules or under 28 U.S.C. §1927.
Cross References
Amendment or alteration of judgment—
Stay of proceedings pending disposition of motion for, see rule 62.
Time for service of motion, see rule 59.
Appellate court directing entry of judgment, see
Attachment of property of person disobeying judgment for specific acts, see rule 70.
Bills of review abolished, see rule 60.
Certified copy of satisfaction of judgment, registration, see
Civil docket, entry of judgment in, see rule 79.
Contempt by disobeying judgment directing performance of specific acts, see rule 70.
Copies, clerk to keep correct copy of every final judgment, see rule 79.
Costs—
Absent defendant, setting aside judgment and pleading on payment of, see
Admiralty, taxation, see
Admissions on genuineness of documents or truth of factual matters, expenses on failure to make, see rule 37.
Affidavits, see
Agencies of United States, see
Amount in controversy, removal of action against carrier to district court, see
Appeal, in forma pauperis proceeding, see
Briefs, taxation of printing as, see
Claimant in proceedings to condemn or forfeit property seized, see
Clerk of court of appeals, payment into Treasury, see
Contempt of witness in foreign country failing to respond to subpoena, see
Copies of papers, taxation as, see
Counsel's liability for excessive, see
Default judgment including, see rule 55.
Delay of entry of judgment for taxing of, see rule 58.
Denial of to plaintiff where plaintiff recovers less than $50,000, see
Dismissal for lack of jurisdiction, see
District court, see
Docket fees, see
Exemplification of papers, taxation, see
Fees, taxation as, see
Filing and inclusion of bill of costs in judgment or decree, see
Fine and forfeitures for violating act of Congress, see
Forma pauperis proceeding, see
Garnishment by United States with, see
Jurisdiction of district court, amount in controversy, see
Maritime cases, taxation, see
Offer of judgment affecting, see rule 68.
Patent infringement action, see
Previously dismissed action, see rule 41.
Seamen's suits, see
Security not required of United States, see
Stay of execution and enforcement of judgment to obtain certiorari from Supreme Court, see
Summary judgment, affidavits presented in bad faith, see rule 56.
Taxation, see
United States, liability for, see
United States marshal's fees, see
Verification of bill of, see
Witness fees, taxation as, see
Counterclaim or cross-claim judgment on, see rule 13.
Court of Federal Claims judgment finding plaintiff indebted to United States as judgment of district court, see
Court record of judgment lost or destroyed, enforcement where United States is interested, see
Declaratory judgment, see rule 57 and
Default judgment, see rule 55.
Docketed judgment to constitute lien, see
Entry of judgment—
New judgment on motion for new trial, see rule 59.
On verdict by clerk, see rule 58.
Extension of time for relief from judgment, see rule 6.
Finality of judgment unaffected by motion for relief, see rule 60.
Garnishment in suit by United States against corporation, see
Index to be kept by clerk of every judgment, see rule 79.
Indexed judgment to constitute lien, see
Interest on judgments, see
Interrogatories, entry of judgment on, see rule 58.
Judge to approve form of judgment, see rule 58.
Judgment effective upon entry in docket, see rule 58.
Lien, judgment as, see
Modification of judgment, errors not affecting substantial rights not ground for, see rule 61.
Motion for judgment in action by United States against delinquents for public money, see
New trial, stay of proceedings to enforce judgment on motion for, see rule 62.
Offer of judgment, see rule 68.
Opening judgment on motion for new trial, see rule 59.
Pleading judgment, see rule 9.
Possession, enforcement of judgment directing delivery, see rule 70.
Recorded judgment to constitute lien, see
Registration of judgment, see
Relief from judgment, grounds for, see rule 60.
Removal of causes, attachment or sequestration to hold goods or estate of defendant to answer judgment, see
Reopening judgment after verdict on motion for judgment as a matter of law, see rule 50.
Sales under judgment, see
Security on stay of proceedings to enforce judgment, see rule 62.
Special verdict, entry of judgment on, see rule 58.
State law, staying enforcement of judgment in accordance with, see rule 62.
Stay of—
Judgment on less than all of multiple claims, see rule 62.
Proceedings to enforce judgment, see rule 62.
Stipulation for stay of execution of process in rem issued in admiralty case, see
Summary judgment, procedure generally, see rule 56.
Suspension of judgment by motion for relief, see rule 60.
Third party tort liability to United States for hospital and medical care, see
Three-judge court, entry of judgment by a single judge, see
Time—
Entry of judgment, see rule 58.
Extension of, for relief from judgment, see rule 6.
Motion for relief from judgment, see rule 60.
Motion to alter or amend judgment, extension of, see rule 6.
Proceedings to enforce judgment, see rule 62.
United States—
Payment of judgments against, see
Stay of judgment against, see rule 62.
Tort claims against, judgment as bar to action against employee, see
Vacation of judgment, errors not affecting substantial rights not ground for, see rule 61.
Verdict submitted on written interrogatories to jury, judgment on, see rule 49.
Writs of coram nobis, coram vobis and audita querela abolished, see rule 60.
Rule 55. Default
(a)
(b)
(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States.
(c)
(d)
(e)
(As amended Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
This represents the joining of the equity decree pro confesso ([former] Equity Rules 12 (Issue of Subpoena—Time for Answer), 16 (Defendant to Answer—Default—Decree Pro Confesso), 17 (Decree Pro Confesso to be Followed by Final Decree—Setting Aside Default), 29 (Defenses—How Presented), 31 (Reply—When Required—When Cause at Issue)) and the judgment by default now governed by U.S.C., Title 28, [former] §724 (Conformity act). For dismissal of an action for failure to comply with these rules or any order of the court, see rule 41(b).
Note to Subdivision (a). The provision for the entry of default comes from the Massachusetts practice, 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, §57. For affidavit of default, see 2 Minn.Stat. (Mason, 1927) §9256.
Note to Subdivision (b). The provision in paragraph (1) for the entry of judgment by the clerk when plaintiff claims a sum certain is found in the N.Y.C.P.A. (1937) §485, in Calif.Code Civ.Proc. (Deering, 1937) §585(1), and in Conn.Practice Book (1934) §47. For provisions similar to paragraph (2), compare Calif.Code, supra, §585(2); N.Y.C.P.A. (1937) §490; 2 Minn.Stat. (Mason, 1927) §9256(3); 2 Wash.Rev.Stat.Ann. (Remington, 1932) §411(2). U.S.C., Title 28, §785 (Action to recover forfeiture in bond) and similar statutes are preserved by the last clause of paragraph (2).
Note to Subdivision (e). This restates substantially the last clause of U.S.C., Title 28, [former] §763 (Action against the United States under the Tucker Act). As this rule governs in all actions against the United States, U.S.C., Title 28, [former] §45 (Practice and procedure in certain cases under the interstate commerce laws) and similar statutes are modified insofar as they contain anything inconsistent therewith.
Notes of Advisory Committee on Rules—1946 Supplementary Note
Note. The operation of Rule 55(b) (Judgment) is directly affected by the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq.). Section 200 of the Act [50 U.S.C. Appendix, §520] imposes specific requirements which must be fulfilled before a default judgment can be entered (e.g., Ledwith v. Storkan (D.Neb. 1942) 6 Fed.Rules Serv. 60b.24, Case 2, 2 F.R.D. 539, and also provides for the vacation of a judgment in certain circumstances. See discussion in Commentary, Effect of Conscription Legislation on the Federal Rules (1940) 3 Fed.Rules Serv. 725; 3 Moore's Federal Practice (1938) Cum.Supplement §55.02.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Cross References
Demand for judgment, see rule 54.
Failure to attend own deposition, serve answers to interrogatories, or respond to request for inspection, entry of default judgment, see rule 37.
Relief awarded on default, see rule 54.
Summons as notice to defendant, judgment by default will be entered on failure to appear and defend, see rule 4.
Rule 56. Summary Judgment
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
This rule is applicable to all actions, including those against the United States or an officer or agency thereof.
Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years and has been adopted in a number of American states. New York, for example, has made great use of it. During the first nine years after its adoption there, the records of New York county alone show 5,600 applications for summary judgments. Report of the Commission on the Administration of Justice in New York State (1934), p. 383. See also Third Annual Report of the Judicial Council of the State of New York (1937), p. 30.
In England it was first employed only in cases of liquidated claims, but there has been a steady enlargement of the scope of the remedy until it is now used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act (The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. In Michigan (3 Comp.Laws (1929) §14260) and Illinois (Ill.Rev.Stat. (1937) ch. 110, §§181, 259.15, 259.16), it is not limited to liquidated demands. New York (N.Y.R.C.P. (1937) Rule 113; see also Rule 107) has brought so many classes of actions under the operation of the rule that the Commission on Administration of Justice in New York State (1934) recommend that all restrictions be removed and that the remedy be available "in any action" (p. 287). For the history and nature of the summary judgment procedure and citations of state statutes, see Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.
Note to Subdivision (d). See Rule 16 (Pre-Trial Procedure; Formulating Issues) and the Note thereto.
Note to Subdivisions (e) and (f). These are similar to rules in Michigan. Mich.Court Rules Ann. (Searl, 1933) Rule 30.
Notes of Advisory Committee on Rules—1946 Amendment
Subdivision (a). The amendment allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. This will normally operate to permit an earlier motion by the claimant than under the original rule, where the phrase "at any time after the pleading in answer thereto has been served" operates to prevent a claimant from moving for summary judgment, even in a case clearly proper for its exercise, until a formal answer has been filed. Thus in Peoples Bank v. Federal Reserve Bank of San Francisco (N.D.Cal. 1944) 58 F.Supp. 25, the plaintiff's counter-motion for a summary judgment was stricken as premature, because the defendant had not filed an answer. Since Rule 12(a) allows at least 20 days for an answer, that time plus the 10 days required in Rule 56(c) means that under original Rule 56(a) a minimum period of 30 days necessarily has to elapse in every case before the claimant can be heard on his right to a summary judgment. An extension of time by the court or the service of preliminary motions of any kind will prolong that period even further. In many cases this merely represents unnecessary delay. See United States v. Adler's Creamery, Inc. (C.C.A.2d, 1939) 107 F.(2d) 987. The changes are in the interest of more expeditious litigation. The 20-day period, as provided, gives the defendant an opportunity to secure counsel and determine a course of action. But in a case where the defendant himself serves a motion for summary judgment within that time, there is no reason to restrict the plaintiff and the amended rule so provides.
Subdivision (c). The amendment of Rule 56(c), by the addition of the final sentence, resolves a doubt expressed in Sartor v. Arkansas Natural Gas Corp. (1944) 321 U.S. 620. See also Commentary, Summary Judgment as to Damages (1944) 7 Fed.Rules Serv. 974; Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co. (C.C.A.2d, 1945) 147 F.(2d) 399, cert. den. (1945) 325 U.S. 861. It makes clear that although the question of recovery depends on the amount of damages, the summary judgment rule is applicable and summary judgment may be granted in a proper case. If the case is not fully adjudicated it may be dealt with as provided in subdivision (d) of Rule 56, and the right to summary recovery determined by a preliminary order, interlocutory in character, and the precise amount of recovery left for trial.
Subdivision (d). Rule 54(a) defines "judgment" as including a decree and "any order from which an appeal lies." Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary "judgment" is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact. See Leonard v. Socony-Vacuum Oil Co. (C.C.A.7th, 1942) 130 F.(2d) 535; Biggins v. Oltmer Iron Works (C.C.A.7th, 1946) 154 F.(2d) 214; 3 Moore's Federal Practice (1938). 3190–3192. Since interlocutory appeals are not allowed, except where specifically provided by statute (see 3 Moore, op. cit. supra, 3155–3156) this interpretation is in line with that policy, Leonard v. Socony-Vacuum Oil Co., supra. See also Audi Vision Inc., v. RCA Mfg. Co. (C.C.A.2d, 1943) 136 F.(2d) 621; Toomey v. Toomey (App.D.C. 1945) 149 F.(2d) 19; Biggins v. Oltmer Iron Works, supra; Catlin v. United States (1945) 324 U.S. 229.
Notes of Advisory Committee on Rules—1963 Amendment
Subdivision (c). By the amendment "answers to interrogatories" are included among the materials which may be considered on motion for summary judgment. The phrase was inadvertently omitted from the rule, see 3 Barron & Holtzoff, Federal Practice and Procedure 159–60 (Wright ed. 1958), and the courts have generally reached by interpretation the result which will hereafter be required by the text of the amended rule. See Annot., 74 A.L.R.2d 984 (1960).
Subdivision (e). The words "answers to interrogatories" are added in the third sentence of this subdivision to conform to the amendment of subdivision (c).
The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. In this situation Third Circuit cases have taken the view that summary judgment must be denied, at least if the averments are "well-pleaded," and not suppositious, conclusory, or ultimate. See Frederick Hart & Co., Inc. v. Recordgraph Corp., 169 F.2d 580 (3d Cir. 1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (3d Cir. 1958); United States ex rel. Nobles v. Ivey Bros. Constr. Co., Inc., 191 F.Supp. 383 (D.Del. 1961); Jamison v. Pennsylvania Salt Mfg. Co., 22 F.R.D. 238 (W.D.Pa. 1958); Bunny Bear, Inc. v. Dennis Mitchell Industries, 139 F.Supp. 542 (E.D.Pa. 1956); Levy v. Equitable Life Assur. Society, 18 F.R.D. 164 (E.D.Pa. 1955).
The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. See 6 Moore's Federal Practice 2069 (2d ed. 1953); 3 Barron & Holtzoff, supra, §1235.1.
It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment.
The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary.
Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. So, for example: Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present facts essential to justify his opposition.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Cross References
Dismissal of action prior to service of motion for summary judgment, see rule 41.
Findings of fact and conclusions of law unnecessary, see rule 52.
Motions treated as for summary judgment—
Dismiss for failure of pleading to state a claim upon which relief can be granted, see rule 12.
Judgment on the pleadings, see rule 12.
Three-judge court, single judge not to enter judgment on the merits, see
Rule 57. Declaratory Judgments
The procedure for obtaining a declaratory judgment pursuant to Title 28, U.S.C., §2201, shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.
(As amended Dec. 29, 1948, eff. Oct. 20, 1949.)
Notes of Advisory Committee on Rules—1937
The fact that a declaratory judgment may be granted "whether or not further relief is or could be prayed" indicates that declaratory relief is alternative or cumulative and not exclusive or extraordinary. A declaratory judgment is appropriate when it will "terminate the controversy" giving rise to the proceeding. Inasmuch as it often involves only an issue of law on undisputed or relatively undisputed facts, it operates frequently as a summary proceeding, justifying docketing the case for early hearing as on a motion, as provided for in California (Code Civ.Proc. (Deering, 1937) §1062a), Michigan (3 Comp.Laws (1929) §13904), and Kentucky (Codes (Carroll, 1932) Civ.Pract. §639a–3).
The "controversy" must necessarily be "of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 325, 56 S.Ct. 466, 473, 80 L.Ed. 688, 699 (1936). The existence or nonexistence of any right, duty, power, liability, privilege, disability, or immunity or of any fact upon which such legal relations depend, or of a status, may be declared. The petitioner must have a practical interest in the declaration sought and all parties having an interest therein or adversely affected must be made parties or be cited. A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case, but general ordinary or extraordinary legal remedies, whether regulated by statute or not, are not deemed special statutory proceedings.
When declaratory relief will not be effective in settling the controversy, the court may decline to grant it. But the fact that another remedy would be equally effective affords no ground for declining declaratory relief. The demand for relief shall state with precision the declaratory judgment desired, to which may be joined a demand for coercive relief, cumulatively or in the alternative; but when coercive relief only is sought but is deemed ungrantable or inappropriate, the court may sua sponte, if it serves a useful purpose, grant instead a declaration of rights. Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 93 A.L.R. 1170 (1933). Written instruments, including ordinances and statutes, may be construed before or after breach at the petition of a properly interested party, process being served on the private parties or public officials interested. In other respects the Uniform Declaratory Judgment Act affords a guide to the scope and function of the Federal act. Compare Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461 (1937); Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249 (1933); Gully, Tax Collector v. Interstate Natural Gas Co., 82 F.(2d) 145 (C.C.A.5th, 1936); Ohio Casualty Ins. Co. v. Plummer, 13 F.Supp. 169 (S.D.Tex., 1935); Borchard, Declaratory Judgments (1934), passim.
Notes of Advisory Committee on Rules—1948 Amendment
The amendment substitutes the present statutory reference.
Cross References
Answers to written interrogatories to jury, see rule 49.
Assignment of cases for trial, see rule 40.
Creation of remedy and further relief in declaratory judgment actions, see
Jury trial and advisory jury, see rules 38 and 39.
Rule 58. Entry of Judgment
Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed, nor the time for appeal extended, in order to tax costs or award fees, except that, when a timely motion for attorneys' fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4(a)(4) of the Federal Rules of Appellate Procedure as a timely motion under Rule 59. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 22, 1993, eff. Dec. 1, 1993.)
Notes of Advisory Committee on Rules—1937
See Wis.Stat. (1935) §270.31 (judgment entered forthwith on verdict of jury unless otherwise ordered), §270.65 (where trial is by the court, entered by direction of the court), §270.63 (entered by clerk on judgment on admitted claim for money). Compare 1 Idaho Code Ann. (1932) §7–1101, and 4 Mont.Rev.Codes Ann. (1935) §9403, which provides that judgment in jury cases be entered by clerk within 24 hours after verdict unless court otherwise directs. Conn. Practice Book (1934) §200, provides that all judgments shall be entered within one week after rendition. In some States such as Washington, 2 Rev.Stat.Ann. (Remington, 1932) §431, in jury cases the judgment is entered two days after the return of verdict to give time for making motion for new trial; §435 (ibid.), provides that all judgments shall be entered by the clerk, subject to the court's direction.
Notes of Advisory Committee on Rules—1946 Amendment
The reference to Rule 54(b) is made necessary by the amendment of that rule.
Two changes have been made in Rule 58 in order to clarify the practice. The substitution of the more inclusive phrase "all relief be denied" for the words "there be no recovery", makes it clear that the clerk shall enter the judgment forthwith in the situations specified without awaiting the filing of a formal judgment approved by the court. The phrase "all relief be denied" covers cases such as the denial of a bankrupt's discharge and similar situations where the relief sought is refused but there is literally no denial of a "recovery".
The addition of the last sentence in the rule emphasizes that judgments are to be entered promptly by the clerk without waiting for the taxing of costs. Certain district court rules, for example, Civil Rule 22 of the Southern District of New York—until its annulment Oct. 1, 1945, for conflict with this rule—and the like rule of the Eastern District of New York, are expressly in conflict with this provision, although the federal law is of long standing and well settled. Fowler v. Hamill (1891) 139 U.S. 549; Craig v. The Hartford (C.C.Cal. 1856) Fed.Case No. 3,333; Tuttle v. Claflin (C.C.A.2d, 1895) 60 Fed. 7, cert. den. (1897) 166 U.S. 721; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co. (C.C.A.2d, 1897) 84 Fed. 213; Stallo v. Wagner (C.C.A.2d, 1917) 245 Fed. 636, 639–40; Brown v. Parker (C.C.A.8th, 1899) 97 Fed. 446; Allis-Chalmers v. United States (C.C.A.7th, 1908) 162 Fed. 679. And this applies even though state law is to the contrary. United States v. Nordbye (C.C.A.8th, 1935) 75 F.(2d) 744, 746, cert. den. (1935) 296 U.S. 572. Inasmuch as it has been held that failure of the clerk thus enter judgment is a "misprision" "not to be excused" (The Washington (C.C.A.2d, 1926) 16 F.(2d) 206), such a district court rule may have serious consequences for a district court clerk. Rules of this sort also provide for delay in entry of the judgment contrary to Rule 58. See Commissioner of Internal Revenue v. Bedford's Estate (1945) 325 U.S. 283.
Notes of Advisory Committee on Rules—1963 Amendment
Under the present rule a distinction has sometimes been made between judgments on general jury verdicts, on the one hand, and, on the other, judgments upon decisions of the court that a party shall recover only money or costs or that all relief shall be denied. In the first situation, it is clear that the clerk should enter the judgment without awaiting a direction by the court unless the court otherwise orders. In the second situation it was intended that the clerk should similarly enter the judgment forthwith upon the court's decision; but because of the separate listing in the rule, and the use of the phrase "upon receipt . . . of the direction," the rule has sometimes been interpreted as requiring the clerk to await a separate direction of the court. All these judgments are usually uncomplicated, and should be handled in the same way. The amended rule accordingly deals with them as a single group in clause (1) (substituting the expression "only a sum certain" for the present expression "only money"), and requires the clerk to prepare, sign, and enter them forthwith, without awaiting court direction, unless the court makes a contrary order. (The clerk's duty is ministerial and may be performed by a deputy clerk in the name of the clerk. See 28 U.S.C. §956; cf. Gilbertson v. United States, 168 Fed. 672 (7th Cir. 1909).) The more complicated judgments described in clause (2) must be approved by the court before they are entered.
Rule 58 is designed to encourage all reasonable speed in formulating and entering the judgment when the case has been decided. Participation by the attorneys through the submission of forms of judgment involves needless expenditure of time and effort and promotes delay, except in special cases where counsel's assistance can be of real value. See Matteson v. United States, 240 F.2d 517, 518–19 (2d Cir. 1956). Accordingly, the amended rule provides that attorneys shall not submit forms of judgment unless directed to do so by the court. This applies to the judgments mentioned in clause (2) as well as clause (1).
Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e.g., "the plaintiff's motion [for summary judgment] is granted," see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of judgment was effective, starting the time running for postverdict motions and for the purpose of appeal. See id.; and compare Blanchard v. Commonwealth Oil Co., 294 F.2d 834 (5th Cir. 1961); United States v. Higginson, 238 F.2d 439 (1st Cir. 1956); Danzig v. Virgin Isle Hotel, Inc., 278 F.2d 580 (3d Cir. 1960); Sears v. Austin, 282 F.2d 340 (9th Cir. 1960), with Matteson v. United States, supra; Erstling v. Southern Bell Tel. & Tel. Co., 255 F.2d 93 (5th Cir. 1958); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); Beacon Fed. S. & L. Assn. v. Federal Home L. Bank Bd., 266 F.2d 246 (7th Cir.), cert. denied, 361 U.S. 823, 80 S.Ct. 70, 4 L.Ed.2d 67 (1959); Ram v. Paramount Film D. Corp., 278 F.2d 191 (4th Cir. 1960).
The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment. That judgments shall be on separate documents is also indicated in Rule 79(b); and see General Rule 10 of the U.S. District Courts for the Eastern and Southern Districts of New York; Ram v. Paramount Film D. Corp., supra, at 194.
See the amendment of Rule 79(a) and the new specimen forms of judgment, Forms 31 and 32.
See also Rule 55(b)(1) and (2) covering the subject of judgments by default.
Notes of Advisory Committee on Rules—1993 Amendment
Ordinarily the pendency or post-judgment filing of a claim for attorney's fees will not affect the time for appeal from the underlying judgment. See Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988). Particularly if the claim for fees involves substantial issues or is likely to be affected by the appellate decision, the district court may prefer to defer consideration of the claim for fees until after the appeal is resolved. However, in many cases it may be more efficient to decide fee questions before an appeal is taken so that appeals relating to the fee award can be heard at the same time as appeals relating to the merits of the case. This revision permits, but does not require, the court to delay the finality of the judgment for appellate purposes under revised Fed. R. App. P. 4(a) until the fee dispute is decided. To accomplish this result requires entry of an order by the district court before the time a notice of appeal becomes effective for appellate purposes. If the order is entered, the motion for attorney's fees is treated in the same manner as a timely motion under Rule 59.
Cross References
Civil docket, entry of judgment, see rule 77.
General verdict accompanied by answers to interrogatories by jury, see rule 49.
Multiple claims or multiple parties, judgment for particular claim, see rule 54.
Notation of entry of judgment, see rule 79.
Time for new trial, see rule 59.
Rule 59. New Trials; Amendment of Judgments
(a)
(b)
(c)
(d)
(e)
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966; Apr. 27, 1995, eff. Dec. 1, 1995.)
Notes of Advisory Committee on Rules—1937
This rule represents an amalgamation of the petition for rehearing of [former] Equity Rule 69 (Petition for Rehearing) and the motion for new trial of U.S.C., Title 28, §391 [see 2111] (New trials; harmless error), made in the light of the experience and provision of the code States. Compare Calif.Code Civ.Proc. (Deering, 1937) §§656–663a, U.S.C., Title 28, §391 [see 2111] (New trials; harmless error) is thus substantially continued in this rule. U.S.C., Title 28, [former] §840 (Executions; stay on conditions) is modified insofar as it contains time provisions inconsistent with Subdivision (b). For the effect of the motion for new trial upon the time for taking an appeal see Morse v. United States, 270 U.S. 151 (1926); Aspen Mining and Smelting Co. v. Billings, 150 U.S. 31 (1893).
For partial new trials which are permissible under Subdivision (a), see Gasoline Products Co., Inc., v. Champlin Refining Co., 283 U.S. 494 (1931); Schuerholz v. Roach, 58 F.(2d) 32 (C.C.A.4th, 1932); Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann.Cas.1912D, 588 (1912) (sustaining and recommending the practice and citing Federal cases and cases in accord from about sixteen States and contra from three States). The procedure in several States provides specifically for partial new trials. Ariz.Rev.Code Ann. (Struckmeyer, 1928) §3852; Calif.Code Civ.Proc. (Deering, 1937) §§657, 662; Ill.Rev.Stat. (1937) ch. 110, §216 (par. (f)); Md.Ann.Code (Bagby, 1924) Art. 5, §§25, 26; Mich.Court Rules Ann. (Searl, 1933) Rule 47, §2; Miss.Sup.Ct. Rule 12, 161 Miss. 903, 905 (1931); N.J.Sup.Ct. Rules 131, 132, 147, 2 N.J.Misc. 1197, 1246–1251, 1255 (1924); 2 N.D.Comp.Laws Ann. (1913), §7844, as amended by N.D.Laws 1927, ch. 214.
Notes of Advisory Committee on Rules—1946 Amendment
Subdivision (b). With the time for appeal to a circuit court of appeals reduced in general to 30 days by the proposed amendment of Rule 73(a), the utility of the original "except" clause, which permits a motion for a new trial on the ground of newly discovered evidence to be made before the expiration of the time for appeal, would have been seriously restricted. It was thought advisable, therefore, to take care of this matter in another way. By amendment of Rule 60(b), newly discovered evidence is made the basis for relief from a judgment, and the maximum time limit has been extended to one year. Accordingly the amendment of Rule 59(b) eliminates the "except" clause and its specific treatment of newly discovered evidence as a ground for a motion for new trial. This ground remains, however, as a basis for a motion for new trial served not later than 10 days after the entry of judgment. See also Rule 60(b).
As to the effect of a motion under subdivision (b) upon the running of appeal time, see amended Rule 73(a) and Note.
Subdivision (e). This subdivision has been added to care for a situation such as that arising in Boaz v. Mutual Life Ins. Co. of New York (C.C.A.8th, 1944) 146 F.(2d) 321, and makes clear that the district court possesses the power asserted in that case to alter or amend a judgment after its entry. The subdivision deals only with alteration or amendment of the original judgment in a case and does not relate to a judgment upon motion as provided in Rule 50(b). As to the effect of a motion under subdivision (e) upon the running of appeal time, see amended Rule 73(a) and Note.
The title of Rule 59 has been expanded to indicate the inclusion of this subdivision.
Notes of Advisory Committee on Rules—1966 Amendment
By narrow interpretation of Rule 59(b) and (d), it has been held that the trial court is without power to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion but perceived and relied on by the trial court sua sponte. Freid v. McGrath, 133 F.2d 350 (D.C.Cir. 1942); National Farmers Union Auto. & Cas. Co. v. Wood, 207 F.2d 659 (10th Cir. 1953); Bailey v. Slentz, 189 F.2d 406 (10th Cir. 1951); Marshall's U.S. Auto Supply, Inc. v. Cashman, 111 F.2d 140 (10th Cir. 1940), cert. denied, 311 U.S. 667 (1940); but see Steinberg v. Indemnity Ins. Co., 36 F.R.D. 253 (E.D.La. 1964).
The result is undesirable. Just as the court has power under Rule 59(d) to grant a new trial of its own initiative within the 10 days, so it should have power, when an effective new trial motion has been made and is pending, to decide it on grounds thought meritorious by the court although not advanced in the motion. The second sentence added by amendment to Rule 59(d) confirms the court's power in the latter situation, with provision that the parties be afforded a hearing before the power is exercised. See 6 Moore's Federal Practice, par. 59.09[2] (2d ed. 1953).
In considering whether a given ground has or has not been advanced in the motion made by the party, it should be borne in mind that the particularity called for in stating the grounds for a new trial motion is the same as that required for all motions by Rule 7(b)(1). The latter rule does not require ritualistic detail but rather a fair indication to court and counsel of the substance of the grounds relied on. See Lebeck v. William A. Jarvis Co., 250 F.2d 285 (3d Cir. 1957); Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961); General Motors Corp. v. Perry, 303 F.2d 544 (7th Cir. 1962); cf. Grimm v. California Spray-Chemical Corp., 264 F.2d 145 (9th Cir. 1959); Cooper v. Midwest Feed Products Co., 271 F.2d 177 (8th Cir. 1959).
Notes of Advisory Committee on Rules—1995 Amendment
The only change, other than stylistic, intended by this revision is to add explicit time limits for filing motions for a new trial, motions to alter or amend a judgment, and affidavits opposing a new trial motion. Previously, there was an inconsistency in the wording of Rules 50, 52, and 59 with respect to whether certain post-judgment motions had to be filed, or merely served, during the prescribed period. This inconsistency caused special problems when motions for a new trial were joined with other post-judgment motions. These motions affect the finality of the judgment, a matter often of importance to third persons as well as the parties and the court. The Committee believes that each of these rules should be revised to require filing before end of the 10-day period. Filing is an event that can be determined with certainty from court records. The phrase "no later than" is used—rather than "within"—to include post-judgment motions that sometimes are filed before actual entry of the judgment by the clerk. It should be noted that under Rule 5 the motions when filed are to contain a certificate of service on other parties. It also should be noted that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period, but that Bankruptcy Rule 9006(a) excludes intermediate Saturdays, Sundays, and legal holidays only in computing periods less than 8 days.
Cross References
Answers to written interrogatories inconsistent with general verdict, as ground for ordering new trial, see rule 49.
Court of Federal Claims, grounds for new trial, see
Extension of time for motion, see rule 6.
Harmless error not ground for new trial, see rule 61.
Inability of judge to proceed, see rule 63.
Joinder of motion with motion for judgment as a matter of law, see rule 50.
Motion to amend findings or make additional findings, see rule 52.
Stay of execution or proceedings to enforce judgment on motion for new trial, see rule 62.
Rule 60. Relief From Judgment or Order
(a)
(b)
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
Note to Subdivision (a). See [former] Equity Rule 72 (Correction of Clerical Mistakes in Orders and Decrees); Mich.Court Rules Ann. (Searl, 1933) Rule 48, §3; 2 Wash.Rev.Stat.Ann. (Remington, 1932) §464(3); Wyo.Rev.Stat.Ann. (Courtright, 1931) §89–2301(3). For an example of a very liberal provision for the correction of clerical errors and for amendment after judgment, see Va.Code Ann. (Michie, 1936) §§6329, 6333.
Note to Subdivision (b). Application to the court under this subdivision does not extend the time for taking an appeal, as distinguished from the motion for new trial. This section is based upon Calif.Code Civ.Proc. (Deering, 1937) §473. See also N.Y.C.P.A. (1937) §108; 2 Minn.Stat. (Mason, 1927) §9283.
For the independent action to relieve against mistake, etc., see Dobie, Federal Procedure, pages 760–765, compare 639; and Simkins, Federal Practice, ch. CXXI (pp. 820–830) and ch. CXXII (pp. 831–834), compare §214.
Notes of Advisory Committee on Rules—1946 Amendment
Subdivision (a). The amendment incorporates the view expressed in Perlman v. 322 West Seventy-Second Street Co., Inc. (C.C.A.2d, 1942) 127 F.(2d) 716; 3 Moore's Federal Practice (1938) 3276, and further permits correction after docketing, with leave of the appellate court. Some courts have thought that upon the taking of an appeal the district court lost its power to act. See Schram v. Safety Investment Co. (E.D.Mich. 1942) 45 F.Supp. 636; also Miller v. United States (C.C.A.7th, 1940) 114 F.(2d) 267.
Subdivision (b). When promulgated, the rules contained a number of provisions, including those found in Rule 60(b), describing the practice by a motion to obtain relief from judgments, and these rules, coupled with the reservation in Rule 60(b) of the right to entertain a new action to relieve a party from a judgment, were generally supposed to cover the field. Since the rules have been in force, decisions have been rendered that the use of bills of review, coram nobis, or audita querela, to obtain relief from final judgments is still proper, and that various remedies of this kind still exist although they are not mentioned in the rules and the practice is not prescribed in the rules. It is obvious that the rules should be complete in this respect and define the practice with respect to any existing rights or remedies to obtain relief from final judgments. For extended discussion of the old common law writs and equitable remedies, the interpretation of Rule 60, and proposals for change, see Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623. See also 3 Moore's Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945; Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712.
The reconstruction of Rule 60(b) has for one of its purposes a clarification of this situation. Two types of procedure to obtain relief from judgments are specified in the rules as it is proposed to amend them. One procedure is by motion in the court and in the action in which the judgment was rendered. The other procedure is by a new or independent action to obtain relief from a judgment, which action may or may not be begun in the court which rendered the judgment. Various rules, such as the one dealing with a motion for new trial and for amendment of judgments, Rule 59, one for amended findings, Rule 52, and one for judgment notwithstanding the verdict, Rule 50(b), and including the provisions of Rule 60(b) as amended, prescribe the various types of cases in which the practice by motion is permitted. In each case there is a limit upon the time within which resort to a motion is permitted, and this time limit may not be enlarged under Rule 6(b). If the right to make a motion is lost by the expiration of the time limits fixed in these rules, the only other procedural remedy is by a new or independent action to set aside a judgment upon those principles which have heretofore been applied in such an action. Where the independent action is resorted to, the limitations of time are those of laches or statutes of limitations. The Committee has endeavored to ascertain all the remedies and types of relief heretofore available by coram nobis, coram vobis, audita querela, bill of review, or bill in the nature of a bill of review. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 659–682. It endeavored then to amend the rules to permit, either by motion or by independent action, the granting of various kinds of relief from judgments which were permitted in the federal courts prior to the adoption of these rules, and the amendment concludes with a provision abolishing the use of bills of review and the other common law writs referred to, and requiring the practice to be by motion or by independent action.
To illustrate the operation of the amendment, it will be noted that under Rule 59(b) as it now stands, without amendment, a motion for new trial on the ground of newly discovered evidence is permitted within ten days after the entry of the judgment, or after that time upon leave of the court. It is proposed to amend Rule 59(b) by providing that under that rule a motion for new trial shall be served not later than ten days after the entry of the judgment, whatever the ground be for the motion, whether error by the court or newly discovered evidence. On the other hand, one of the purposes of the bill of review in equity was to afford relief on the ground of newly discovered evidence long after the entry of the judgment. Therefore, to permit relief by a motion similar to that heretofore obtained on bill of review, Rule 60(b) as amended permits an application for relief to be made by motion, on the ground of newly discovered evidence, within one year after judgment. Such a motion under Rule 60(b) does not affect the finality of the judgment, but a motion under Rule 59, made within 10 days, does affect finality and the running of the time for appeal.
If these various amendments, including principally those to Rule 60(b), accomplish the purpose for which they are intended, the federal rules will deal with the practice in every sort of case in which relief from final judgments is asked, and prescribe the practice. With reference to the question whether, as the rules now exist, relief by coram nobis, bills of review, and so forth, is permissible, the generally accepted view is that the remedies are still available, although the precise relief obtained in a particular case by use of these ancillary remedies is shrouded in ancient lore and mystery. See Wallace v. United States (C.C.A.2d, 1944) 142 F.(2d) 240, cert. den. (1944) 323 U.S. 712; Fraser v. Doing (App.D.C. 1942) 130 F.(2d) 617; Jones v. Watts (C.C.A.5th, 1944) 142 F.(2d) 575; Preveden v. Hahn (S.D.N.Y. 1941) 36 F.Supp. 952; Cavallo v. Agwilines, Inc. (S.D.N.Y. 1942) 6 Fed.Rules Serv. 60b.31, Case 2, 2 F.R.D. 526; McGinn v. United States (D.Mass. 1942) 6 Fed.Rules Serv. 60b.51, Case 3, 2 F.R.D. 562; City of Shattuck, Oklahoma ex rel. Versluis v. Oliver (W.D.Okla. 1945) 8 Fed.Rules Serv. 60b.31, Case 3; Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 631–653; 3 Moore's Federal Practice (1938) 3254 et seq.; Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment, op. cit. supra. Cf. Norris v. Camp (C.C.A.10th, 1944) 144 F.(2d) 1; Reed v. South Atlantic Steamship Co. of Delaware (D.Del. 1942) 6 Fed.Rules Serv. 60b.31, Case 1; Laughlin v. Berens (D.D.C. 1945) 8 Fed.Rules Serv. 60b.51, Case 1, 73 W.L.R. 209.
The transposition of the words "the court" and the addition of the word "and" at the beginning of the first sentence are merely verbal changes. The addition of the qualifying word "final" emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
The qualifying pronoun "his" has been eliminated on the basis that it is too restrictive, and that the subdivision should include the mistake or neglect of others which may be just as material and call just as much for supervisory jurisdiction as where the judgment is taken against the party through his mistake, inadvertence, etc.
Fraud, whether intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party are express grounds for relief by motion under amended subdivision (b). There is no sound reason for their exclusion. The incorporation of fraud and the like within the scope of the rule also removes confusion as to the proper procedure. It has been held that relief from a judgment obtained by extrinsic fraud could be secured by motion within a "reasonable time," which might be after the time stated in the rule had run. Fiske v. Buder (C.C.A.8th, 1942) 125 F.(2d) 841; see also inferentially Bucy v. Nevada Construction Co. (C.C.A.9th, 1942) 125 F.(2d) 213. On the other hand, it has been suggested that in view of the fact that fraud was omitted from original Rule 60(b) as a ground for relief, an independent action was the only proper remedy. Commentary, Effect of Rule 60b on Other Methods of Relief From Judgment (1941) 4 Fed.Rules Serv. 942, 945. The amendment settles this problem by making fraud an express ground for relief by motion; and under the saving clause, fraud may be urged as a basis for relief by independent action insofar as established doctrine permits. See Moore and Rogers, Federal Relief from Civil Judgments (1946) 55 Yale L.J. 623, 653–659; 3 Moore's Federal Practice (1938) 3267 et seq. And the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944) 322 U.S. 238.
The time limit for relief by motion in the court and in the action in which the judgment was rendered has been enlarged from six months to one year.
It should be noted that Rule 60(b) does not assume to define the substantive law as to the grounds for vacating judgments, but merely prescribes the practice in proceedings to obtain relief.
It should also be noted that under §200(4) of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§520(4)]), a judgment rendered in any action or proceeding governed by the section may be vacated under certain specified circumstances upon proper application to the court.
Notes of Advisory Committee on Rules—1948 Amendment
The amendment substitutes the present statutory reference.
Notes of Advisory Committee on Rules—1987 Amendment
The amendment is technical. No substantive change is intended.
Cross References
Enlargement of time under this rule, see rule 6.
Stay of proceedings pending disposition of motion under this rule, see rule 62.
Time for motion for new trial, see rule 59.
Rule 61. Harmless Error
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Notes of Advisory Committee on Rules—1937
A combination of U.S.C., Title 28, §§391 [see 2111] (New trials; harmless error) and [former] 777 (Defects of form; amendments) with modifications. See McCandless v. United States, 298 U.S. 342 (1936). Compare [former] Equity Rule 72 (Correction of Clerical Mistakes in Orders and Decrees); and last sentence of [former] Equity Rule 46 (Trial—Testimony Usually Taken in Open Court—Rulings on Objections to Evidence). For the last sentence see the last sentence of [former] Equity Rule 19 (Amendments Generally).
Federal Rules of Criminal Procedure
Grounds for new trial, see rule 33, Title 18, Appendix, Crimes and Criminal Procedure.
Harmless and plain error, see rule 52.
Cross References
Federal Rules of Evidence, this Appendix.
Formal exceptions unnecessary, see rule 46.
Grounds for new trial, rule 59.
Harmless error on appeal or certiorari, see
Instructions to jury, see rule 51.
Motion for judgment as a matter of law, see rule 50.
Motion for relief from judgment or order, see rule 60.
Power of appellate court to affirm, modify, reverse, and remand case, see
Rule 62. Stay of Proceedings To Enforce a Judgment
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987.)
Notes of Advisory Committee on Rules—1937
Note to Subdivision (a). The first sentence states the substance of the last sentence of U.S.C., Title 28, [former] §874 (Supersedeas). The remainder of the subdivision states the substance of the last clause of U.S.C., Title 28, [former] §227 (Appeals in proceedings for injunctions; receivers; and admiralty), and of [former] §227a (Appeals in suits in equity for infringement of letters patent for inventions; stay of proceedings for accounting), but extended to include final as well as interlocutory judgments.
Note to Subdivision (b). This modifies U.S.C., Title 28, [former] §840 (Executions; stay on conditions).
Note to Subdivision (c). Compare [former] Equity Rule 74 (Injunction Pending Appeal); and Cumberland Telephone and Telegraph Co. v. Louisiana Public Service Commission, 260 U.S. 212 (1922). See Simkins, Federal Practice (1934) §916 in regard to the effect of appeal on injunctions and the giving of bonds. See U.S.C., [former] Title 6 (Official and Penal Bonds) for bonds by surety companies. For statutes providing for a specially constituted district court of three judges, see:
U.S.C., Title 7:
§217 (Proceedings for suspension of orders of Secretary of Agriculture under Stockyards Act)—by reference.
§499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission to orders of Secretary of Agriculture under Perishable Commodities Act)—by reference.
U.S.C., Title 15:
§28 (Antitrust laws; suits against monopolies expedited)
U.S.C., Title 28:
§47 [now 2325] (Injunctions as to orders of Interstate Commerce Commission, etc.)
§380 [now 2284] (Injunctions; alleged unconstitutionality of State statutes.)
§380a [now 2284] (Same; constitutionality of federal statute)
U.S.C., Title 49:
§44 [former] (Suits in equity under interstate commerce laws; expedition of suits)
Note to Subdivision (d). This modifies U.S.C., Title 28, [former] §874 (Supersedeas). See Rule 36(2), Rules of the Supreme Court of the United States, which governs supersedeas bonds on direct appeals to the Supreme Court, and Rule 73(d), of these rules, which governs supersedeas bonds on appeals to a circuit court of appeals. The provisions governing supersedeas bonds in both kinds of appeals are substantially the same.
Note to Subdivision (e). This states the substance of U.S.C., Title 28, §870 [now 2408] (Bond; not required of the United States).
Note to Subdivision (f). This states the substance of U.S.C., Title 28, [former] §841 (Executions; stay of one term) with appropriate modification to conform to the provisions of Rule 6(c) as to terms of court.
Notes of Advisory Committee on Rules—1946 Amendment
Subdivision (a). [This subdivision not amended]. Sections 203 and 204 of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. [App.] §501 et seq. [§§523, 524]) provide under certain circumstances for the issuance and continuance of a stay of execution of any judgment or order entered against a person in military service. See Bowsman v. Peterson (D.Neb. 1942) 45 F.Supp. 741. Section 201 of the Act [50 U.S.C. App. §521] permits under certain circumstances the issuance of a stay of any action or proceeding at any stage thereof, where either the plaintiff or defendant is a person in military service. See also Note to Rule 64 herein.
Subdivision (b). This change was necessary because of the proposed addition to Rule 59 of subdivision (e).
Subdivision (h). In proposing to revise Rule 54(b), the Committee thought it advisable to include a separate provision in Rule 62 for stay of enforcement of a final judgment in cases involving multiple claims.
Notes of Advisory Committee on Rules—1948 Amendment
Section 210 of the Judicial Code, as amended, U.S.C., Title 28, §47a, is repealed by revised Title 28 and its provisions that stays pending appeals to the Supreme Court in Interstate Commerce Commission cases may be granted only by that court or a justice thereof are not included in revised Title 28. Prior to this repeal the additional general reference in subdivision (g) to "other statutes of the United States", was needed as a safety residual provision due to the specific reference to Section 210 of the Judicial Code. With the repeal of this latter section there is no need for the residual provision, which has no present applicability; and to the extent that any statute is enacted providing "that stays pending appeals to the Supreme Court may be granted only by that court or a justice thereof" it will govern and will not be inconsistent or repugnant to subdivision (g) as amended.
Notes of Advisory Committee on Rules—1961 Amendment
These changes conform to the amendment of Rule 54(b).
Notes of Advisory Committee on Rules—1987 Amendment
The amendment is technical. No substantive change is intended.
Cross References
Deposit of bonds or notes of United States in lieu of surety, see
Execution, see rule 69.
Security not required of United States, see
Rule 63. Inability of a Judge to Proceed
If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
(As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)
Notes of Advisory Committee on Rules—1937
This rule adapts and extends the provisions of U.S.C., Title 28, [former] §776 (Bill of exceptions; authentication; signing of by judge) to include all duties to be performed by the judge after verdict or judgment. The statute is therefore superseded.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on Rules—1991 Amendment
The revision substantially displaces the former rule. The former rule was limited to the disability of the judge, and made no provision for disqualification or possible other reasons for the withdrawal of the judge during proceedings. In making provision for other circumstances, the revision is not intended to encourage judges to discontinue participation in a trial for any but compelling reasons. Cf. United States v. Lane, 708 F.2d 1394, 1395–1397 (9th cir. 1983). Manifestly, a substitution should not be made for the personal convenience of the court, and the reasons for a substitution should be stated on the record.
The former rule made no provision for the withdrawal of the judge during the trial, but was limited to disqualification after trial. Several courts concluded that the text of the former rule prohibited substitution of a new judge prior to the points described in the rule, thus requiring a new trial, whether or not a fair disposition was within reach of a substitute judge. E.g., Whalen v. Ford Motor Credit Co., 684 F.2d 272 (4th Cir. 1982, en banc) cert. denied, 459 U.S. 910 (1982) (jury trial); Arrow-Hart, Inc. v. Philip Carey Co., 552 F.2d 711 (6th Cir. 1977) (non-jury trial). See generally Comment, The Case of the Dead Judge: Fed.R.Civ.P. 63: Whalen v. Ford Motor Credit Co., 67 MINN. L. REV. 827 (1983).
The increasing length of federal trials has made it likely that the number of trials interrupted by the disability of the judge will increase. An efficient mechanism for completing these cases without unfairness is needed to prevent unnecessary expense and delay. To avoid the injustice that may result if the substitute judge proceeds despite unfamiliarity with the action, the new Rule provides, in language similar to Federal Rule of Criminal Procedure 25(a), that the successor judge must certify familiarity with the record and determine that the case may be completed before that judge without prejudice to the parties. This will necessarily require that there be available a transcript or a videotape of the proceedings prior to substitution. If there has been a long but incomplete jury trial, the prompt availability of the transcript or videotape is crucial to the effective use of this rule, for the jury cannot long be held while an extensive transcript is prepared without prejudice to one or all parties.
The revised text authorizes the substitute judge to make a finding of fact at a bench trial based on evidence heard by a different judge. This may be appropriate in limited circumstances. First, if a witness has become unavailable, the testimony recorded at trial can be considered by the successor judge pursuant to F.R.Ev. 804, being equivalent to a recorded deposition available for use at trial pursuant to Rule 32. For this purpose, a witness who is no longer subject to a subpoena to compel testimony at trial is unavailable. Secondly, the successor judge may determine that particular testimony is not material or is not disputed, and so need not be reheard. The propriety of proceeding in this manner may be marginally affected by the availability of a videotape record; a judge who has reviewed a trial on videotape may be entitled to greater confidence in his or her ability to proceed.
The court would, however, risk error to determine the credibility of a witness not seen or heard who is available to be recalled. Cf. Anderson v. City of Bessemer City NC, 470 U.S. 564, 575 (1985); Marshall v. Jerrico Inc, 446 U.S. 238, 242 (1980). See also United States v. Radatz, 447 U.S. 667 (1980).
Federal Rules of Criminal Procedure
Disability of judge, see rule 25, Title 18, Appendix, Crimes and Criminal Procedure.
Cross References
Findings of fact and conclusions of law, see rule 52.
New trial, see rule 59.