U. S. C., Title 28, former:

§ 45

(Practice and procedure in certain cases under the interstate commerce laws) Compare former Equity Rule 15 (Process, by Whom Served).

Note to Subdivision (d). Under this rule the complaint must always be served with the summons.

Paragraph (1). For an example of a statute providing for service upon an agent of an individual see U. S. C., Title 28, former § 109 (now §§ 1400, 1694) (Patent cases). Paragraph (3). This enumerates the officers and agents of a corporation or of a partnership or other unincorporated association upon whom service of process may be made, and permits service of process only upon the omcers, managing or general agents, or agents authorized by appointment or by law, of the corporation, partnership or unincorporated association against which the action is brought. See Christian v. International Ass'n of Machinists, 7 F. (2d) 481 (D. C. Ky., 1925) and Singleton v. Order of Railway Conductors of America, 9 F. Supp. 417 (D. C. Ill., 1935). Compare Operative Plasterers' and Cement Finishers' International Ass'n of the United States and Canada v. Case, 93 F (2d) 56 (App. D. C., 1937).

For a statute authorizing service upon a specified agent and requiring mailing to the defendant, see U. S. C., Title 6, § 7 (Surety companies as sureties; appointment of agents; service of process).

Paragraphs (4) and (5) provide a uniform and comprehensive method of service for all actions against the United States or an officer or agency thereof. For statutes providing for such service, see U. S. C., Title 7, §§ 217 (Proceedings for suspension of orders), 499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission), 608c (15) (B) (Court review of ruling of Secretary of Agriculture), and 855 (making § 608c (15) (B) applicable to orders of the Secretary of Agriculture as to handlers of anti-hog-cholera serum and hog-cholera virus); U. S. C., Title 26, § 3679 (Bill in chancery to clear title to realty on which the United States has a lien for taxes); U. S. C., Title 28, former § 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws), former § 763 (Petition in suit against the United States; service; appearance by district attorney), former § 766 (now § 2409) (Partition suits where United States is tenant in common or joint tenant), former § 902 (now § 2410) (Foreclosure of mortgages or other liens on property in which the United States has an interest). These and similar statutes are modified insofar as they prescribe a different method of service or dispense with the service of a summons.

For the former Equity Rule on service, see former Equity Rule 13 (Manner of Serving Subpoena).

Note to Subdivision (e). The provisions for the service of a summons or of notice or of an order in lieu of summons contained in U. S. C., Title 8, former § 465 (now § 1451) (Cancellation of certificates of citizenship fraudulently or illegally procured) (service by publication in accordance with State law); U. S. C., Title 28, former § 118 (now § 1655) (Absent defendants in suits to enforce liens); U. S. C., Title 35, former § 72a (Jurisdiction of District Court of United States for the District of Columbia in certain equity suits where adverse parties reside elsewhere) (service by publication against parties residing in foreign countries); U. S. C., Title 38, § 445 (Action against the United States on a veteran's contract of insurance) (parties not inhabitants of or not found within the District may be served with an order of the court, personally or by publication) and similar statutes are continued by this rule. Title 24, § 378 of the Code of the District of Columbia (Publication against nonresident; those absent for six months; unknown heirs or devisees; for divorce or in rem; actual service beyond District) is continued by this rule.

Note to Subdivision (f). This rule enlarges to some extent the present rule as to where service may be made. It does not, however, enlarge the jurisdiction of the district courts.

U. S. C., Title 28, former § 113 (now § 1392) (Suits in States containing more than one district) (where there are two or more defendants residing in different districts), former § 115 (Suits of a local nature), former § 116 (now § 1392) (Property in different districts in same State),

former § 838 (Executions run in all districts of State); U. S. C., Title 47, § 13 (Action for damages against a railroad or telegraph company whose officer or agent in control of a telegraph line refuses or fails to operate such line in a certain manner-"upon any agent of the company found in such state"); U. S. C., Title 49, § 321 (c) (Requiring designation of a process agent by interstate motor carriers and in case of failure so to do, service may be made upon any agent in the State) and similar statutes, allowing the running of process throughout a State, are substantially continued.

U. S. C., Title 15, §§ 5 (Bringing in additional parties) (Sherman Act), 25 (Restraining violations; procedure); U. S. C., Title 28, former § 44 (now § 2321) (Procedure in certain cases under interstate commerce laws; service of processes of court), former § 117 (now §§ 754, 1692) (Property in different States in same circuit; jurisdiction of receiver), former § 839 (now § 2413) (Executions; run in every State and Territory) and similar statutes, providing for the running of process beyond the territorial limits of a State, are expressly continued.

Note to Subdivision (g). With the second sentence compare former Equity Rule 15 (Process, by Whom Served).

Note to Subdivision (h). This rule substantially continues U. S. C., Title 28, former § 767 (Amendment of process).

NOTES OF ADVISORY COMMITTEE ON AMENDMENTS TO RULES Subdivision (b). Under amended subdivision (e) of this rule, an action may be commenced against a nonresident of the State in which the district court is held by complying with State procedures. Frequently the form of the summons or notice required in these cases by State law differs from the Federal form of summons described in present subdivision (b) and exemplified in Form 1. To avoid confusion, the amendment of subdivision (b) states that a form of summons or notice, corresponding "as nearly as many be" to the State form, shall be employed. See also a corresponding amendment of Rule 12(a) with regard to the time to answer.

Subdivision (d) (4). This paragraph, governing service upon the United States, is amended to allow the use of certified mail as an alternative to registered mail for sending copies of the papers to the Attorney General or to a United States officer or agency. Cf. N.J. Rule 4:5-2. See also the amendment of Rule 30(f) (1).

Subdivision (d) (7). Formerly a question was raised whether this paragraph, in the context of the rule as a whole, authorized service in original Federal actions pursuant to State statutes permitting service on a State official as a means of bringing a nonresident motorist defendant into court. It was argued in McCoy v. Siler, 205 F. 2d 498, 501-2 (3d Cir.) (concurring opinion), cert. denied, 346 U.S. 872, 74 S. Ct. 120, 98 L. Ed. 380 (1953), that the effective service in those cases occurred not when the State official was served but when notice was given to the defendant outside the State, and that subdivision (f) (Territorial limits of effective service), as then worded, did not authorize out-of-State service. This contention found little support. A considerable number of cases held the service to be good, either by fixing upon the service on the official within the State as the effective service, thus satisfying the wording of subdivision (f) as it then stood, see Holbrook v. Cafiero, 18 F.R.D. 218 (D. Md. 1955); Pasternack v. Dalo, 17 F.R.D. 420; (W.D. Pa. 1955); cf. Super Prods. Corp. v. Parkin, 20 F.R.D. 377 (S.D.N.Y. 1957), or by reading paragraph (7) as not limited by subdivision (f). See Griffin v. Ensign, 234 F. 2d 307 (3d Cir. 1956); 2 Moore's Federal Practice, 4.19 (2d ed. 1948); 1 Barron & Holtzoff, Federal Practice & Procedure § 182.1 (Wright ed. 1960); Comment, 27 U. of Chi. L. Rev. 751 (1960). See also Olberding v. Illinois Central R.R., 201 F. 2d 582 (6th Cir.), rev'd on other grounds, 346 U.S. 338, 74 S. Ct. 83, 98 L. Ed. 39 (1953); Feinsinger v. Bard, 195 F.2d 45 (7th Cir. 1952).

An important and growing class of State statutes base personal jurisdiction over nonresidents on the doing of acts or on other contacts within the State, and permit notice to be given the defendant outside the State without any requirement of service on a local State official. See, e.g., Ill. Ann. Stat. ch. 110, §§ 16, 17 (Smith-Hurd 1956); Wis. Stat. § 262.06 (1959). This service, employed

in original Federal actions pursuant to paragraph (7), has also been held proper. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba, 243 F. 2d 342 (2d Cir. 1957); Kappus v. Western Hills Oil, Inc., 24 F.R.D. 123 (E.D. Wis. 1959); Star v. Rogalny, 162 F. Supp. 181 (E.D. Ill. 1957). It has also been held that the clause of paragraph (7) which permits service "in the manner prescribed by the law of the state," etc., is not limited by subdivision (c) requiring that service of all process be made by certain designated persons. See Farr & Co. v. Cia. Intercontinental de Nav. de Cuba, supra. But cf. Sappia v. Lauro Lines, 130 F Supp. 810 (S.D.N.Y. 1955).

The salutary results of these cases are intended to be preserved. See paragraph (7), with a clarified reference to State law, and amended subdivisions (e) and (f). Subdivision (e). For the general relation between subdivisions (d) and (e), see 2 Moore, supra, ¶ 4.32.

The amendment of the first sentence inserting the word "thereunder" supports the original intention that the "order of court" must be authorized by a specific United States statute. See 1 Barron & Holtzoff, supra, at 731. The clause added at the end of the first sentence expressly adopts the view taken by commentators that, if no manner of service is prescribed in the statute or order, the service may be made in a manner stated in Rule 4. See 2 Moore, supra, ¶ 4.32, at 1004; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1036-39 (1961). But see Commentary, 5 Fed. Rules Serv. 791 (1942).

Examples of the statutes to which the first sentence relates are 28 U.S.C. § 2361 (Interpleader; process and procedure); 28 U.S.C. § 1655 (Lien enforcement; absent defendants).

The second sentence, added by amendment, expressly allows resort in original Federal actions to the procedures provided by State law for effecting service on nonresident parties (as well as on domiciliaries not found within the State). See, as illustrative, the discussion under amended subdivision (d) (7) of service pursuant to State nonresident motorist statutes and other comparable State statues. Of particular interest is the change brought about by the reference in this sentence to State procedures for commencing actions against nonresidents by attachment and the like, accompanied by notice. Although an action commenced in a State court by attachment may be removed to the Federal court if ordinary conditions for removal are satisfied, see 28 U.S.C. § 1450; Rorick v. Devon Syndicate, Ltd., 307 U.S. 299, 59 S. Ct. 877, 83 L. Ed. 1303 (1939); Clark v. Wells, 203 U.S. 164, 27 S. Ct. 43, 51 L. Ed. 138 (1906), there has heretofore been no provision recognized by the courts for commencing an original Federal civil action by attachment. See Currie, Attachment and Garnishment in the Federal Courts, 59 Mich. L. Rev. 337 (1961), arguing that this result came about through historical anomaly. Rule 64, which refers to attachment, garnishment, and similar procedures under State law, furnishes only provisional remedies in actions otherwise validly commenced. See Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S. Ct. 694, 57 L. Ed. 1953 (1913); Davis v. Ensign-Bickford Co., 139 F. 2d 624 (8th Cir. 1944); 7 Moore's Federal Practice 64.05 (2d ed. 1954): 3 Barron & Holtzoff, Federal Practice & Procedure § 1423 (Wright ed. 1958); but cf. Note, 13 So. Calif. L. Rev. 361 (1940). The amendment will now permit the institution of original Federal actions against nonresidents through the use of familiar State procedures by which property of these defendants is brought within the custody of the court and some appropriate service is made up them.

The necessity of satisfying subject-matter jurisdictional requirements and requirements of venue will limit the practical utilization of these methods of effecting service. Within those limits, however, there appears to be no reason for denying plaintiffs means of commencing actions in Federal courts which are generally available in the State courts. See 1 Barron & Holtzoff, supra, at 374-80; Nordbye, Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts, 18 F.R.D. 105, 106 (1956); Note, 34 Corn. L.Q. 103 (1948); Note, 13 So. Calif. L. Rev. 361 (1940).

If the circumstances of a particular case satisfy the applicable Federal law (first sentence of Rule 4(e), as amended) and the applicable State law (second sentence),

the party seeking to make the service may proceed under the Federal or the State law, at his option.

See also amended Rule 13(a), and the Advisory Committee's Note thereto.

Subdivision (f). The first sentence is amended to assure the effectiveness of service outside the territorial limits of the State in all the cases in which any of the rules authorize service beyond those boundaries. Besides the preceding provisions of Rule 4, see Rule 71A(d) (3). In addition, the new second sentence of the subdivision permits effective service within a limited area outside the State in certain special situations, namely, to bring in additional parties to a counterclaim or crossclaim (Rule 13(h)), impleaded parties (Rule 14), and indispensable or conditionally necessary parties to a pending action (Rule 19); and to secure compliance with an order of commitment for civil contempt. In those situations effective service can be made at points not more than 100 miles distant from the courthouse in which the action is commenced, or to which it is assigned or transferred for trial.

The bringing in of parties under the 100-mile provision in the limited situations enumerated is designed to promote the objective of enabling the court to determine entire controversies. In the light of present-day facilities for communication and travel, the territorial range of the service allowed, analogous to that which applies to the service of a subpoena under Rule 45(e) (1), can hardly work hardship on the parties summoned. The provision will be especially useful in metropolitan areas spanning more than one State. Any requirements of subject-matter jurisdiction and venue will still have to be satisfied as to the parties brought in, although these requirements will be eased in some instances when the parties can be regarded as "ancillary." See Pennsylvania R.R. v. Erie Avenue Warehouse Co., 5 F.R. Serv. 2d 14a.62, Case 2 (3d Cir. 1962); Dery v. Wyer, 265 F. 2d 804 (2d Cir. 1959); United Artists Corp. v. Masterpiece Productions, Inc., 221 F. 2d 213 (2d Cir. 1955); Lesnik v. Public Industrials Corp., 144 F. 2d 968 (2d Cir. 1944); Vaughn v. Terminal Transp. Co., 162 F. Supp. 647 (E.D. Tenn. 1957); and compare the fifth paragraph of the Advisory Committee's Note to Rule 4(e), as amended. The amendment is but a moderate extension of the territorial reach of Federal process and has ample practical justification. See 2 Moore, supra. § 4.01 [13] (Supp. 1960); 1 Barron & Holtzoff, supra, § 184; Note, 51 Nw. U.L. Rev. 354 (1956). But cf. Nordbye, Comments on Proposed Amendments to Rules of Civil Procedure for the United States District Courts, 18 F.R.D. 105, 106 (1956).

As to the need for enlarging the territorial area in which orders of commitment for civil contempt may be served, see Graber v. Graber, 93 F. Supp. 281 (D.D.C. 1950); Teele Soap Mfg. Co. v. Pine Tree Products Co., Inc., 8 F. Supp. 546 (D.N.H. 1934); Mitchell v. Dexter, 244 Fed. 926 (1st Cir. 1917); in re Graves, 29 Fed. 60 (N.D. Iowa 1886).

As to the Court's power to amend subdivisions (e) and (f) as here set forth, see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66 S. Ct. 242, 90 L. Ed. 185 (1946). Subdivision (1). The continual increase of civil litigation having international elements makes it advisable to consolidate, amplify, and clarify the provisions governing service upon parties in foreign countries. See generally Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515 (1953); Longley, Serving Process, Subpoenas and Other Documents in Foreign Territory, Proc. A.B.A., Sec. Int'l & Comp. L. 34 (1959); Smit. International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031 (1961).

As indicated in the opening lines of new subdivision (1), referring to the provisions of subdivision (e), the authority for effecting foreign service must be found in a statute of the United States or a statute or rule of court of the State in which the district court is held providing in terms or upon proper interpretation for service abroad upon persons not inhabitants of or found within the State. See the Advisory Committee's Note to amended Rule 4(d) (7) and Rule 4(e). For examples of Federal and State statutes expressly authorizing such service, see 8 U.S.C. § 1451(b); 35 U.S.C. §§ 146, 293; Me. Rev. Stat., ch. 22, § 70 (Supp. 1961); Minn. Stat. Ann. § 303.13 (1947);

N.Y. Veh. & Tfc. Law § 253. Several decisions have construed statutes to permit service in foreign countries, although the matter is not expressly mentioned in the statutes. See, e.g., Chapman v. Superior Court, 162 Cal. App. 2d 421, 328 P. 2d 23 (Dist. Ct. App. 1958); Sperry v. Fliegers, 194 Misc. 438, 86 N.Y.S. 2d 830 (Sup. Ct. 1949); Ewing v. Thompson, 233 N.C. 564, 65 S.E. 2d 17 (1951; Rushing v. Bush, 260 S.W. 2d 900 (Tex. Ct. Civ. App. 1953). Federal and State statutes authorizing service on nonresidents in such terms as to warrant the interpretation that service abroad is permissible include 15 U.S.C. §§ 77v (a), 78aa, 79y; 28 U.S.C. § 1655; 38 U.S.C. § 784(a); Ill. Ann. Stat. ch. 110, §§ 16, 17 (Smith-Hurd 1956); Wis. Stat. § 262.06 (1959).

Under subdivisions (e) and (1), when authority to make foreign service is found in a Federal statute or statute or rule of court of a State, it is always sufficient to carry out the service in the manner indicated therein. Subdivision (1) introduces considerable further flexibility by permitting the foreign service and return thereof to be carried out in any of a number of other alternative ways that are also declared to be sufficient. Other aspects of foreign service continue to be governed by the other provisions of Rule 4. Thus, for example, subdivision (1) effects no change in the form of the summons, or the issuance of separate or additional summons, or the amendment of service.

Service of process beyond the territorial limits of the United States may involve difficulties not encountered in the case of domestic service. Service abroad may be considered by a foreign country to require the performance of judicial, and therefore "sovereign," acts within its territory, which that country may conceive to be offensive to its policy or contrary to its law. See Jones, supra, at 537. For example, a person not qualified to serve process according to the law of the foreign country may find himself subject to sanctions if he attempts service therein. See Inter-American Juridical Committee, Report on Uniformity of Legislation on International Cooperation in Judicial Procedures 20 (1952). The enforcement of a Judgment in the foreign country in which the service was made may be embarrassed or prevented if the service did not comport with the law of that country. See ibid.

One of the purposes of subdivision (1) is to allow accommodation to the policies and procedures of the foreign country. It is emphasized, however, that the attitudes of foreign countries vary considerably and that the question of recognition of United States judgments abroad is complex. Accordingly, if enforcement is to be sought in the country of service, the foreign law should be examined before a choice is made among the methods of service allowed by subdivision (1).

Subdivision (1)(1). Subparagraph (a) of paragraph (1), permitting service by the method prescribed by the law of the foreign country for service on a person in that country in a civil action in any of its courts of general jurisdiction, provides an alternative that is likely to create least objection in the place of service and also is likely to enhance the possibilities of securing ultimate enforcement of the judgment abroad. See Report on Uniformity of Legislation on International Cooperation in Judicial Procedures, supra.

In certain foreign countries service in aid of litigation pending in other countries can lawfully be accomplished only upon request to the foreign court, which in turn directs the service to be made. In many countries this has long been a customary way of accomplishing the service. See In re Letters Rogatory out of First Civil Court of City of Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Jones, supra, at 543; Comment, 44 Colum. L. Rev. 72 (1944); Note, 58 Yale L.J. 1193 (1949). Subparagraph (B) of paragraph (1), referring to a letter rogatory, validates this method. A proviso, applicable to this subparagraph and the preceding one, requires, as a safeguard, that the service made shall be reasonably calculated to give actual notice of the proceedings to the party. See Milliken v. Meyer, 311 U.S. 457, 61 S. Ct. 339, 85 L. Ed. 278 (1940).

Subparagraph (C) of paragraph (1), permitting foreign service by personal delivery on individuals and corporations, partnerships, and associations, provides for a manner of service that is not only traditionally preferred, but also is most likely to lead to actual notice. Explicit provision for this manner of service was thought desirable be

cause a number of Federal and State statutes permitting foreign service do not specifically provide for service by personal delivery abroad, see e.g., 35 U.S.C. §§ 146, 293; 46 U.S.C. § 1292; Calif. Ins. Code § 1612; N.Y. Veh. & Tfc. Law § 253, and it also may be unavailable under the law of the country in which the service is made.

Subparagraph (D) of paragraph (1), permitting service by certain types of mail, affords a manner of service that is inexpensive and expeditious, and requires a minimum of activity within the foreign country. Several statutes specifically provide for service in a foreign country by mail, e.g., Hawaii Rev. Laws §§ 230-31, 230-32 (1955); Minn. Stat. Ann. § 303.13 (1947); N.Y. Civ. Prac. Act, § 229-b; N.Y. Veh. & Tfc. Law § 253, and it has been sanctioned by the courts even in the absence of statutory provision specifying that form of service. Zurini v. United States, 189 F. 2d 722 (8th Cir. 1951); United States v. Cardillo, 135 F. Supp. 798 (W.D. Pa. 1955); Autogiro Co. v. Kay Gyroplanes, Ltd., 55 F. Supp. 919 (D.D.C. 1944). Since the reliability of postal service may vary from country to country, service by mail is proper only when it is addressed to the party to be served and a form of mail requiring a signed receipt is used. An additional safeguard is provided by the requirement that the mailing be attended to be the clerk of the court. See also the provisions of paragraph (2) of this subdivision (i) regarding proof of service by mail.

Under the applicable law it may be necessary, when the defendant is an infant or incompetent person, to deliver the summons and complaint to a guardian, committee, or similar fiduciary. In such a case it would be advisable to make service under subparagraph (A), (B), or (E).

Subparagraph (E) of paragraph (1) adds flexibility by permitting the court by order to tailor the manner of service to fit the necessities of a particular case or the peculiar requirements of the law of the country in which the service is to be made. A similar provision appears in a number of statutes, e.g., 35 U.S.C. §§ 146, 293; 38 U.S.C. § 784 (a); 46 U.S.C. § 1292.

The next-to-last sentence of paragraph (1) permits service under (C) and (E) to be made by any person who is not a party and is not less than 18 years of age or who is designated by court order or by the foreign court. Cf. Rule 45(c); N.Y. Civ. Prac. Act §§ 233, 235. This alternative increases the possibility that the plaintiff will be able to find a process server who can proceed unimpeded in the foreign country; it also may improve the chances of enforcing the judgment in the country of service. Especially is the alternative valuable when authority for the foreign service is found in a statute or rule of court that limits the group of eligible process servers to designated officials or special appointees who, because directly connected with another "sovereign," may be particularly offensive to the foreign country. See generally Smit, supra, at 1040-41. When recourse is had to subparagraph (A) or (B) the identity of the process server always will be determined by the law of the foreign country in which the service is made.

The last sentence of paragraph (1) sets forth an alternative manner for the issuance and transmission of the summons for service. After obtaining the summons from the clerk, the plaintiff must ascertain the best manner of delivering the summons and complaint to the person, court, or officer who will make the service. Thus the clerk is not burdened with the task of determining who is permitted to serve process under the law of a particular country or the appropriate governmental or nongovernmental channel for forwarding a letter rogatory. Under (D), however, the papers must always be posted by the clerk.

Subdivision (1) (2). When service is made in a foreign country, paragraph (2) permits methods for proof of service in addition to those prescribed by subdivision (g). Proof of service in accordance with the law of the foreign country is permitted because foreign process servers, unaccustomed to the form or the requirement of return of service prevalent in the United States, have on occasion been unwilling to execute the affidavit required by Rule 4(g). See Jones, supra, at 537; Longley, supra, at 35. As a corollary of the alternate manner of service in subdivision (1) (1) (E), proof of service as directed by order of the court is permitted. The special provision for proof of service by mail is intended as an additional safeguard

when that method is used. On the type of evidence of delivery that may be satisfactory to a court in lieu of a signed receipt, see Aero Associates, Inc. v. La Metropolitana, 183 F. Supp. 357 (S.D.N.Y. 1960).

CROSS REFERENCES

Actions on war risk insurance claims, see section 1292 of Title 46, Shipping.

Executions in favor of United States, see section 2413 of this title.

Motions to dismiss or quash for lack of jurisdiction over the person, insufficiency of process or service of process, see rule 12 (b) (1), (4) and (5).

Process generally, see chapter 113 of this title. Process in bankruptcy proceedings, see General Order No. 3, Title 11, Appendix, Bankruptcy. Process to run outside state

Actions under Security Act of 1933, see section 77v (a) of Title 15, Commerce and Trade.

Actions under Security Exchange Act of 1934, see section 78aa of Title 15.

Veterans' actions against United States on life insurance contracts, see section 784 of Title 38, Veterans' Benefits.

Service of notice of application for leave to perpetuate testimony by taking deposition, see rule 27 (a) (2). Venue of civil actions, see chapter 87 of this title.

FORMS

Motion to quash the return of service of summons, see form 19, Appendix of Forms. Summons, see form 1.

RULE 5.-SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

(a) Service: When required.

Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

(b) Same: How made.

Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

(c) Same: Numerous defendants.

In any action in which there are unusually large numbers of defendants, the court, upon motion or of

its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

(d) Filing.

All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. (e) Filing with the court defined.

The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk. As amended Jan. 21, 1963, effective July 1, 1963.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivisions (a) and (b). Compare 2 Minn Stat. (Mason, 1927) §§ 9240, 9241, 9242; N. Y. C. P. A (1937) §§ 163, 164, and N. Y. R. C. P. (1937) Rules 20, 21; 2 Wash. Rev. Stat. Ann. (Remington, 1932) §§ 244—249. Note to Subdivision (d). Compare the present practice under former Equity Rule 12 (Issue of Subpoena-Time for Answer).

NOTES OF ADVISORY COMMITTEE ON AMENDMENTS TO RULES The words "affected thereby," stricken out by the amendment, introduced a problem of interpretation. See 1 Barron & Holtzoff, Federal Practice & Procedure 760-61 (Wright ed. 1960). The amendment eliminates this difficulty and promotes full exchange of information among the parties by requiring service of papers on all the parties to the action, except as otherwise provided in the rules. See also subdivision (c) of Rule 5. So, for example, a third-party defendant is required to serve his answer to the third-party complaint not only upon the defendant but also upon the plaintiff. See amended Form 22-A and the Advisory Committee's Note thereto.

As to the method of serving papers upon a party whose address is unknown, see Rule 5(b).

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Washington's Birthday, Memorial Day, Independence Day,

Labor Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.

(b) Enlargement.

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specifiled period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59 (b), (d) and (e), 60(b), and 73 (a) and (g), except to the extent and under the conditions stated in them.

(c) Unaffected by expiration of term.

The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it. (d) For motions-Affidavits.

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59 (c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time. (e) Additional time after service by mail.

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. As amended Dec. 27, 1946, effective March 19, 1948; Jan. 21, 1963, effective July 1, 1963.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivisions (a) and (b). These are ampliAcations along lines common in state practices, of former Equity Rule 80 (Computation of Time-Sundays and Holidays) and of the provisions for enlargement of time found in former Equity Rules 8 (Enforcement of Final Decrees) and 16 (Defendant to Answer-Default-Decree Pro Confesso). See also Rule XIII, Rules and Forms in Criminal Cases, 292 U. S. 661, 666 (1934). Compare Ala. Code Ann. (Michie, 1928) § 13 and former Law Rule 8 of the Rules of the Supreme Court of the District of Columbia (1924), superseded in 1929 by Law Rule 8, Rules of the District Court of the United States for the District of Columbia (1937).

Note to Subdivision (c). This eliminates the difficulties caused by the expiration of terms of court. Such

statutes as U. S. C. Title 28, former § 12 (Trials not discontinued by new term) are not affected. Compare Rules of the United States District Court of Minnesota, Rule 25 (Minn. Stat. (Mason, Supp. 1936), p. 1089).

Note to Subdivision (d). Compare 2 Minn. Stat. (Mason, 1927) § 9246; N. Y. R. C. P. (1937) Rules 60 and 64. NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO RULES

Note. Subdivision (b). The purpose of the amendment is to clarify the finality of judgments. Prior to the advent of the Federal Rules of Civil Procedure, the general rule that a court loses jurisdiction to disturb its judgments, upon the expiration of the term at which they were entered, had long been the classic device which (together with the statutory limits on the time for appeal) gave finality to judgments. See Note to Rule 73 (a). Rule 6(c) abrogates that limit on judicial power. That limit was open to many objections, one of them being inequality of operation because, under it, the time for vacating a judgment rendered early in a term was much longer than for a judgment rendered near the end of the term.

The question to be met under Rule 6 (b) is: how far should the desire to allow correction of judgments be allowed to postpone their finality? The rules contain a number of provisions permitting the vacation or modification of Judgments on various grounds. Each of these rules contains express time limits on the motions for granting of relief. Rule 6 (b) is a rule of general application giving wide discretion to the court to enlarge these time limits or revive them after they have expired, the only exceptions stated in the original rule being a prohibition against enlarging the time specified in Rule 59 (b) and (d) for making motions for or granting new trials, and a prohibition against enlarging the time fixed by law for taking an appeal. It should also be noted that Rule 6 (b) itself contains no limitation of time within which the court may exercise its discretion, and since the expiration of the term does not end its power, there is now no time limit on the exercise of its discretion under Rule 6 (b).

Decisions of lower federal courts suggest that some of the rules containing time limits which may be set aside under Rule 6 (b) are Rules 25, 50 (b), 52 (b), 60 (b), and 73 (g).

In a number of cases the effect of Rule 6 (b) on the time limitations of these rules has been considered. Certainly the rule is susceptible of the interpretation that the court is given the power in its discretion to relieve a party from failure to act within the times specified in any of these other rules, with only the exceptions stated in Rule 6 (b), and in some cases the rule has been so construed.

With regard to Rule 25 (a) for substitution, it was held in Anderson v. Brady, E. D. Ky. 1941, 1 F. R. D. 589, 4 Fed. Rules Service 25a.1, Case 1, and in Anderson v. Yungkau, C. C. A. 6th, 1946, 153 F. 2d 685, cert. granted, 1946, 66 S. Ct. 1025, that under Rule 6 (b) the court had no authority to allow substitution of parties after the expiration of the limit fixed in Rule 25 (a).

As to Rules 50 (b) for judgments notwithstanding the verdict and 52 (b) for amendment of findings and vacation of judgment, it was recognized in Leishman v. Associated Wholesale Electric Co., 1943, 318 U. S. 203, 63 S. Ct. 543, that Rule 6 (b) allowed the district court to enlarge the time to make a motion for amended findings and judgment beyond the limit expressly fixed in Rule 52 (b). See Coca-Cola v. Busch, E. D. Pa. 1943, 7 Fed. Rules Service 59b.2, Case 4. Obviously, if the time limit in Rule 52 (b) could be set aside under Rule 6 (b), the time limit in Rule 50 (b) for granting judgment notwithstanding the verdict (and thus vacating the judgment entered "forthwith" on the verdict) likewise could be set aside.

As to Rule 59 on motions for a new trial, it has been settled that the time limits in Rule 59 (b) and (d) for making motions for or granting new trial could not be set aside under Rule 6 (b), because Rule 6 (b) expressly refers to Rule 59, and forbids it. See Safeway Stores, Inc. v. Coe, App. D. C. 1943, 78 U. S. App. D. C. 19, 136 F. 2d 771; Jusino v. Morales & Tio, C. C. A. 1st, 1944, 139 F. 2d 946; Coca-Cola Co. v. Busch, E. D. Pa. 1943, 7 Fed. Rules Service 59b.2, Case 4; Peterson v. Chicago Great Western Ry. Co., D. Neb. 1943, 3 F. R. D. 346, 7 Fed. Rules Service 59b.2.