The Rules, established in 1938, replaced the earlier Field Code and common law pleading systems. Significant revisions have been made to the FRCP in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, and 2006. (The FRCP contains a notes section which details the changes of each revision since 1938, explaining the rationale behind the language). The revisions that took effect in December 2006, made practical changes to discovery rules to make it easier for courts and litigating parties to manage electronic records.
The Federal Rules of Civil Procedure were completely rewritten, effective December 1, 2007, under the leadership of a committee headed by law professor Bryan A. Garner, for the avowed purpose of making them easier to understand. The style amendments were not intended to make substantive changes in the rules.
Before the FRCP were established, common law pleading was more formal, traditional, and particular in its phrases and requirements. For example, a plaintiff bringing a trespass suit would have to mention certain key words in his complaint or risk it being dismissed with prejudice. In contrast, the FRCP is based on a legal construction called notice pleading, which is less formal, created and modified by legal experts, and far less technical in requirements. In notice pleading, the same plaintiff bringing suit would not face dismissal for lack of the exact legal term, so long as the claim itself was legally actionable. The policy behind this change is to simply give "notice" of your grievances, and leave the details for later in the case. This acts in the interest of equity by concentrating on the actual law and not the exact construction of pleas.
In addition to notice pleading, a minority of states (e.g., California) use an intermediate system known as code pleading. Code pleading is an older system than notice pleading and is based on legislative statute. It tends to straddle the gulf between obsolete common-law pleading and modern notice pleading. Code pleading places additional burdens on a party to plead the "ultimate facts" of its case, laying out the party's entire case and the facts or allegations underlying it. Notice pleading, by contrast, simply requires a "short and plain statement" showing only that the pleader is entitled to relief. (FRCP 8(a)(2)). One important exception to this rule is that when a party alleges fraud, that party must plead the facts of the alleged fraud with particularity. (FRCP 9(b)).
(The Field Code was an intermediate step between common law and modern rules, created by New York attorney David Dudley Field. Adopted 1848–50. Field's code, among other reforms, merged law and equity proceedings into one.)
There are 86 rules in the FRCP which are grouped into 11 chapters. Listed below are the most commonly used categories and rules.
Chapter I is a sort of "mission statement" for the FRCP, especially Rule 1, which states that the rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Rule 2 unified the procedure of law and equity in the federal courts by specifying that there shall be one form of action, the "civil action."
Chapter II covers commencement of civil suits including filing, summons, and service of process. Rule 3 provides that a civil action is commenced by filing a complaint with the court. Rule 4 deals with procedure for issuance of a summons when the complaint is filed and service of the summons and complaint on the defendants. Rule 5 requires that all papers in an action be served on all parties and filed with the court. Rule 6 deals with technical issues concerning computation of time and authorizes the courts to extend certain deadlines in appropriate circumstances.
Rule 8(a) sets out the plaintiff's requirements for claim: a "short and plain statement" of jurisdiction, a "short and plain statement" of the claim, and a demand for judgment. It also allows relief in the alternative, so the plaintiff does not have to pre-guess the remedy most likely to be accepted by the court.
Rule 11 requires all papers to be signed by the attorney (if party is represented). It also provides for sanctions against the attorney or client for harassment, frivolous arguments, or a lack of factual investigation. The purpose of sanctions is deterrent, not punitive. Courts have broad discretion about the exact nature of the sanction which can include consent to in personam jurisdiction, fines, dismissal of claims, or dismissal of the entire case. The current version of Rule 11 is much more lenient than its 1980s version. Supporters of tort reform in Congress regularly call for legislation to make Rule 11 stricter.
Rule 12(b) describes pretrial motions that can be filed.
The Rule 12(b)(6) motion, which replaced the common law demurrer, is how lawsuits with insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 127 S.Ct. __ (No. 05-1126) (2007) (citations, internal quotation marks and footnote omitted). 12(b)(6) is the second of three procedural "hurdles" a cause of action must surmount before it gets to a trial (the first are the two jurisdictional dismissals, found in 12 (b)(1) and (2), and the third is summary judgment, found in Rule 56). A 12(b)(6) motion cannot include additional evidence such as affidavits. To dispose of claims with insufficient factual basis (where the movant must submit additional facts to demonstrate the factual weakness in the plaintiff's case), a Rule 56 motion for summary judgment is used.
Rules 12(g) and 12(h) are also important because they state that if 12(b)(2)-12(b)(5) motions are not properly bundled together or included in an answer/allowable amendment to an answer, they are waived. Additionally, because 12(b)(1) motions are so fundamental, they may never be waived throughout the course of litigation, and 12(b)(6) and 12(b)(7) motions may be filed at any time until trial ends.
Rule 13 describes when a defendant is allowed or required to assert claims against other parties to the suit (joinder). The law encourages people to resolve all of their differences as efficiently as possible, so in many jurisdictions counterclaims that arise out of the same transaction or occurrence (compulsory counterclaims) must be brought during the original suit or they will be barred from future litigation (preclusion).
Rule 14 allows parties to bring in other third parties to a lawsuit.
Rule 15 allows pleadings to be amended or supplemented. Plaintiffs may amend once before an answer is filed, a defendant can amend once within 20 days of serving an answer, and if there is no right to amend, seek leave of court ("leave shall be given when justice so requires.")
Rule 18 Joinder of Claims and Remedies
Rule 19 Compulsory Joinder of Parties
Rule 20 Permissive Joinder of Parties. Joinder of parties at common law was controlled by the substantive rules of law, often as reflected in the forms of action, rather than by notions of judicial economy and trial convenience. Permissive joinder of plaintiffs allows the plaintiffs having an option to join their claims when they were not joint. (Ryder v. Jefferson Hotel Co.)
Rule 23 governs the procedure for class action litigation. In a class action, a single plaintiff or small group of plaintiffs seeks to proceed on behalf of an entire class who allegedly have been harmed by the same conduct by the same defendants. Court approval is required for this procedure to be used. Rule 23.1 governs derivative suits in which a plaintiff seeks to assert a right belonging to a corporation (or similar entity) in which the plaintiff is a shareholder, on behalf of the corporation that is not pursuing the claim itself. Rule 23.2 governs actions by or against unincorporated associations.
Chapter V covers the rules of discovery. Modern civil litigation is based upon the idea that the parties should not be subject to surprises at trial. Discovery is the process whereby civil litigants seek to obtain information both from other parties and from non parties (or third parties). Parties have a series of tools with which they can obtain information: 1) Document requests: a party can seek documents and other real objects from parties and non parties 2) Interrogatories: a party can require other parties to answer 25 questions 3) Requests for admissions: A party can require other parties to admit or deny the truth of certain statements 4) Depositions: A party can require at most 10 individuals or representatives of organizations to make themselves available for questioning for a maximum of one day of 7 hours, without obtaining leave of court.
Federal procedure also requires parties to divulge certain information without a formal discovery request, in contrast to many state courts where most discovery can only be had by request.
Chapter VI deals generally with the trial of civil actions, although some other topics are also included. Rules 38 and 39 deal with the parties' right to a trial by jury and the procedure for requesting a jury trial instead of a bench trial. These rules must be construed in light of the Seventh Amendment to the Constitution, which preserves a right to jury trial in most actions at common law (as opposed to equity cases). Rule 40 deals in general terms with the order in which cases will be scheduled for trial and has little significance in practice.
Rule 41 deals with dismissal of actions. An action may be voluntarily dismissed at any time by the plaintiff prior to the defendant's filing of an Answer or Motion for Summary Judgment. In such an instance, the court retains jurisdiction only to award attorneys fees or costs (in rare circumstances). With certain exceptions (e.g. class actions), an action may also be dismissed at any time by agreement of the parties (e.g. when the parties reach a settlement). An action may also be involuntarily dismissed by the court if the plaintiff fails to comply with deadlines or court orders.
Rule 42 deals with consolidation of related cases or the holding of separate trials. Rule 43 addresses the taking of testimony, which is to be taken in open court whenever possible. Rule 44 governs authentication of official records.
Rule 45 deals with subpoenas. A subpoena commands a person to give testimony, to produce documents for inspection and copying, or both. Although included in the Chapter headed "trials," subpoenas can also be used to obtain document production or depositions of non-parties to the litigation during the pre-trial discovery stage.
Rule 46 provides that formal "exceptions" to court rulings are no longer necessary so long as a sufficient record is made of the objecting party's position.
The next several rules govern jury trials. Rule 47 provides for the selection of jurors and rule 48 governs the number of jurors in a civil case. A civil jury must consist of between six and twelve jurors (six jurors are presently used in the vast majority of federal civil trials; juries of twelve are still required in federal criminal cases). Rule 49 provides for use of "special verdicts" in jury trials, under which the jury may be asked to respond to specific questions rather than just finding liability or non-liability and determining the amount of the damages, if any. Rule 50 addresses situations in which a case is so one-sided that the court may grant "judgment as a matter of law" taking the case from the jury. Rule 51 governs jury instructions.
Rule 52 provides procedure for the judge to hand down findings and conclusions following non-jury trials. Rule 53 governs masters, who are typically lawyers designated by the court to act as neutrals and assist the court in a case.
Rule 56 deals with summary judgment. It is considered the last gate-keeping function before trial, answering the question of whether the claim could even go to a jury. A successful summary judgment motion persuades the court there is no “genuine issue of material fact” and also that the moving party is “entitled to judgment as a matter of law.”
The moving party can show that the disputed factual issues are illusory, can show a lack of genuine issue by producing affidavits or can make a showing through discovery. The movant can point either to the other side's inadequacies or can affirmatively negate the claim.
The moving party has the burden of production; it has to come up with some evidence that there’s no genuine issue of material fact. Then the burden shifts to the non-moving party, which has to show that the claim is adequate to let it get to the jury. The non-movant can submit affidavits, depositions, and other material.
The burden shifts again to the moving party, which must say that there’s still no genuine issue of material fact. A court grants summary judgment when there is no way the movant can lose at trial. When the moving party is the plaintiff, then it has to show that there’s no way that a jury could find against it.
(A partial summary judgment usually pertains only to certain claims, not the whole case.)
This Chapter deals with remedies that may be granted by a federal court - both provisional remedies that may be ordered while the action is pending as well as final relief that may be granted to the winning party at the end of the case.
Rule 64 is captioned "Seizure of Person or Property" and authorizes procedures such as Prejudgment attachment, replevin, and garnishment. In general, these remedies may be awarded when they would be authorized under the law of the state in which the federal court is located - a rare instance in which the Federal Rules of Civil Procedure, generally designed to promote uniformity of practice in the federal districts throughout the country, defer to state law.
Rule 65.1 addresses security and suretyship issues arising when the court orders a party to deposit security such as a bond. Rule 66 deals with receivership. Rule 67 deals with funds deposited in court, such as in interpleader actions. Rule 68 governs the offer of judgment procedure under which a party may make a confidential offer of settlement in an action for money damages. Rules 69 and 70 deal with execution of judgments and orders directing a party to take a specific act. Rule 71 deals with the effect of judgments on persons who are not parties to the action.
Chapter IX presently deals with special types of litigation that may take place in the federal courts. A former version of Chapter IX, contained in the original Rules of Civil Procedure, dealt with appeals from a District Court to a United States Court of Appeals. These rules were abrogated in 1967 when they were superseded by the Federal Rules of Appellate Procedure, a separate set of rules specifically governing the Courts of Appeals.
Rule 71A deals with procedure in condemnation actions.
Rule 72 sets forth procedures for matters before United States Magistrate Judges, including both "dispositive" and "nondispositive" matters, and provides for review of the Magistrate Judge's decision by a District Judge. Rule 73 provides that Magistrate Judges may preside over certain trials consistent with statute and upon the consent of all parties.
(There are presently no rules numbered 74 to 76.)