Part 5 of 6. */

(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 day 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) Setting Aside Default. For good cause shown the court may set 
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule 60(b).

(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions 
of this rule apply whether the party entitled to the judgment by 
default is a plaintiff, a third-party plaintiff, or a party who 
has pleaded a cross-claim or counterclaim. In all cases a 
judgment by default is subject to the limitations of Rule 54(c).

(e) Judgment Against the United States. No judgment by default 
shall be entered against the United States or an officer or 
agency thereof unless the claimant establishes a claim or right 
to relief by evidence satisfactory to the court.


RULE 56. SUMMARY JUDGMENT

(a) For Claimant. A party seeking to recover upon a claim, 
counterclaim, or cross-claim or to obtain a declaratory judgment 
may, 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, move with or without 
supporting affidavits for a summary judgment in the party's favor 
upon all or any part thereof.

(b) For Defending Party. A party against whom a claim, 
counterclaim, or cross-claim is asserted or a declaratory 
judgment is sought may, at any time, move with or without 
supporting affidavits for a summary judgment in the party's favor 
as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be served at 
least 10 days before the time fixed for the hearing. The adverse 
                           
party prior to the day of hearing may serve opposing affidavits. 
The judgment sought shall be rendered forthwith if the pleadings, 
depositions, answers to interrogatories, and admissions on 
file,together with the affidavits, if any, show that there is no 
genui ne issue as to any material fact and that the moving party 
is entitled to a judgment as a matter of law. A summary judgment, 
interlocutory in character, may be rendered on the issue of 
liability alone although there is a genuine issue as to the 
amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on motion under this 
rule judgment is not rendered upon the whole case or for all the 
relief asked and a trial is necessary, the court at the hearing 
of the motion, by examining the pleadings and the evidence before 
it and by interrogating counsel, shall if practicable ascertain 
what material facts exist without substantial controversy and 
what material facts are actually and in good faith controverted. 
It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and
directing such further proceedings in the action as are just. Upon
the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or 
certified copies of all papers or parts thereof referred to in an 
affidavit shall be attached thereto or served therewith. The 
court may permit affidavits to be supplemented or opposed by 
depositions, answers to interrogatories, or further affidavits. 
When a motion for summary judgment is made and supported as 
provided in this rule, an adverse party may not rest upon the 
mere allegations or denials of the adverse party's pleading, but 
the adverse party's response, by affidavits or as otherwise 
provided in this rule, must set forth specific facts showing that 
there is a genuine issue for trial. If the adverse party does not 
so respond, summary judgment, if appropriate, shall be entered 
against the adverse party.

/* This is particularly important for cases involving conspiracy. 
A party cannot rest on its pleadings as to factual matters. */

(f) When Affidavits are Unavailable. Should it appear from the 
affidavits of a party opposing the motion that the party cannot 
for reasons stated present by affidavit facts essential to 
justify the party's opposition, the court may refuse the 
application for judgment or may order a continuance to permit 
affidavits to be obtained or depositions to be taken or discovery 
to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or
solely for the purpose of delay, the court shall forthwith order
the party employing them to pay to the other party the amount of 
the reasonable expenses which the filing of the affidavits caused 
the other party to incur, including reasonable attorney's fees, 
and any offending party or attorney may be adjudged guilty of 
contempt.


RULE 57. DECLARATORY JUDGMENTS

The procedure for obtaining a declaratory judgment pursuant to
Title 28 U.S.C. [sec.] 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.


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 for the taxing of costs. 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.


RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS

(a) Grounds. A new trial may be granted to all or any of the 
parties and on all or part of the issues (1) in an action in 
which there has been a trial by jury, for any of the reasons for 
which new trials have heretofore been granted in actions at law 
in the courts of the United States; and (2) in an action tried 
without a jury, for any of the reasons for which rehearings have 
heretofore been granted in suits in equity in the courts of the 
United States.  On a motion for a new trial in an action tried 
without a jury, the court may open the judgment if one has been 
entered, take additional testimony, amend findings of fact and 
conclusions of law or make new findings and conclusions, and 
direct the entry of a new judgment.

(b) Time for Motion. A motion for a new trial shall be served not 
later than 10 days after the entry of the judgment.

(c) Time for Serving Affidavits. When a motion for new trial is
based upon affidavits they shall be served with the motion. The 
opposing party has 10 days after such service within which to 
serve opposing affidavits, which period may be extended for an 
additional period not exceeding 20 days either by the court for 
good cause shown or by the parties by written stipulation. The 
court may permit reply affidavits.

(d) On Initiative of Court. Not later than 10 days after entry of 
judgment the court of its own initiative may order a new trial 
for any reason for which it might have granted a new trial on 
motion of a party. After giving the parties notice and an 
opportunity to be heard on the matter, the court may grant a 
motion for a new trial, timely served, for a reason not stated in 
the motion. In either case, the court shall specify in the order 
the grounds therefor.

(e) Motion to Alter or Amend a Judgment. A motion to alter or 
amend the judgment shall be served not later than 10 days after 
entry of the judgment.


RULE 60. RELIEF FROM JUDGMENT OR ORDER

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or 
other parts of the record and errors therein arising from 
oversight or omission may be corrected by the court at any time 
of its own initiative or on the motion of any party and after 
such notice, if any, as the court orders. During the pendency of 
an appeal, such mistakes may be so corrected before the appeal is 
docketed in the appellate court, and thereafter while the appeal 
is pending may be so corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered 
Evidence; Fraud, etc. On motion and upon such terms as are just,
the court may relieve a party or a party's legal representative 
from a final judgment, order, or proceeding for the following 
reasons: (1) mistake, inadvertence, surprise, or excusable  
neglect;

(2) newly discovered evidence which by due diligence could not 
have been discovered in time to move for a new trial under Rule 
59(b);

(3) fraud (whether heretofore denominated intrinsic or 
extrinsic), misrepresentation, or other misconduct of an adverse 
party; (4) the judgment is void; (5) the judgment has been 
satisfied, released, or discharged, or a prior judgment upon 
which it is based has been reversed or otherwise vacated, or it 
is no longer equitable that the judgment should have prospective 
application; or (6) any other reason justifying relief from the 
operation of the judgment. The motion shall be made within a 
reasonable time, and for reasons (1), (2), and (3) not more than 
one year after the judgment, order, or proceeding was entered or 
taken. A motion under this subdivision (b) does not affect the 
finality of a judgment or suspend its operation. This rule does 
not limit the power of a court to entertain an independent action 
to relieve a party from a judgment, order, or proceeding, or to 
grant relief to a defendant not actually personally notified as 
provided in Title 28, U.S.C. [sec.] 1655, or to set aside a 
judgment for fraud upon the court. Writs of coram nobis, coram 
vobis, audita querela, and bills of review and bills in the 
nature of a bill of review, are abolished, and the
procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action.


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.


RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

(a) Automatic Stay; Exceptions-Injunctions, Receiverships, and
Patent Accountings. Except as stated herein, no execution shall 
issue upon a judgment nor shall proceedings be taken for its 
enforcement until the expiration of 10 days after its entry. 
Unless otherwise ordered by the court, an interlocutory or final 
judgment in an action for an injunction or in a receivership 
action, or a judgment or order directing an accounting in an 
action for infringement of letters patent, shall not be stayed 
during the period after its entry and until an appeal is taken or 
during the pendency of an appeal. The provisions of subdivision 
(c) of this rule govern the suspending, modifying, restoring, or 
granting of an injunction during the pendency of an appeal.

(b)  Stay on Motion for New Trial or for Judgment. In its 
discretion and on such conditions for the security of the adverse 
party as are proper, the court may stay the execution of or any 
proceedings to enforce a judgment pending the disposition of a 
motion for a new trial or to alter or amend a judgment made 
pursuant to Rule 59, or of a motion for relief from a judgment or 
order made pursuant to Rule 60, or of a motion for judgment in 
accordance with a motion for a directed verdict made pursuant to 
Rule 50, or of a motion for amendment to the findings or for 
additional findings made pursuant to Rule 52(b).

(c) Injunction Pending Appeal. When an appeal is taken from an 
interlocutory or final judgment granting, dissolving, or denying 
an injunction, the court in its discretion may suspend, modify, 
restore, or grant an injunction during the pendency of the appeal 
upon such terms as to bond or otherwise as it considers proper 
for the security of the rights of the adverse party. If the 
judgment appealed from is rendered by a district court of three 
judges specially constituted pursuant to a statute of the United 
States, no such order shall be made except (1) by such court 
sitting in open court or (2) by the assent of all the judges of 
such court evidenced by their signatures to the order.

(d) Stay Upon Appeal. When an appeal is taken the appellant by
giving a supersedeas bond may obtain a stay subject to the 
exceptions contained in subdivision (a) of this rule. The bond 
may be given at or after the time of filing the notice of appeal 
or of procuring the order allowing the appeal, as the case may 
be. The stay is effective when the supersedeas bond is approved 
by the court.

(e) Stay in Favor of the United States or Agency Thereof. When an 
appeal is taken by the United States or an officer or agency 
thereof or by direction of any department of the Government of 
the United States and the operation or enforcement of the 
judgment is stayed, no bond, obligation, or other security shall 
be required from the appellant.

(f) Stay According to State Law. In any state in which a judgment 
is a lien upon the property of the judgment debtor and in which 
the judgment debtor is entitled to a stay of execution, a 
judgment debtor is entitled, in the district court held therein, 
to such stay as would be accorded the judgment debtor had the 
action been maintained in the courts of that state.

(g) Power of Appellate Court Not Limited. The provisions in this  
rule do not limit any power of an appellate court or of a judge 
or justice thereof to stay proceedings during the pendency of an
appeal or to suspend, modify, restore, or grant an injunction
during the pendency of an appeal or to make any order appropriate
to preserve the status quo or the effectiveness of the judgment
subsequently to be entered.

(h) Stay of Judgment as to Multiple Claims or Multiple Parties.
When a court has ordered a final judgment under the conditions
stated in Rule 54(b), the court may stay enforcement of that 
judgment until the entering of a subsequent judgment or judgments
and may prescribe such conditions as are necessary to secure the
benefit thereof to the party in whose favor the judgment is
entered.


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.

Note. Amended April 30, 1991, effective December 1, 1991.


VIII.	PROVISIONAL AND FINAL REMEDIES


RULE 64. SEIZURE OF PERSON OR PROPERTY

At the commencement of and during the course of an action, all
remedies providing for seizure of person or property for the 
purpose of securing satisfaction of the judgment ultimately to be 
entered in the action are available under the circumstances and 
in the manner provided by the law of the state in which the 
district court is held, existing at the time the remedy is 
sought, subject to the following qualifications: (1) any existing 
statute of the United States governs to the extent to which it is 
applicable; (2) the action in which any of the foregoing remedies 
is used shall be commenced and prosecuted or, if removed from a 
state court, shall be prosecuted after removal, pursuant to these 
rules. The remedies thus available include arrest, attachment, 
garnishment, replevin, sequestration, and other corresponding or 
equivalent remedies, however designated and regardless of whether 
by state procedure the remedy is ancillary to an action or must 
be obtained by an independent action.


RULE 65. INJUNCTIONS

(a) Preliminary Injunction.

(1) Notice. No preliminary injunction shall be issued without
notice to the adverse party.

(2) Consolidation of Hearing With Trial on Merits. Before or 
after the commencement of the hearing of an application for a 
preliminary injunction, the court may order the trial of the 
action on the merits to be advanced and consolidated with the 
hearing of the application. Even when this consolidation is not 
ordered, any evidence received upon an application for a 
preliminary injunction which would be admissible upon the trial 
on the merits becomes part of the record on the trial and need 
not be repeated upon the trial.  This subdivision (a)(2) shall be 
so construed and applied as to save to the parties any rights 
they may have to trial by jury.

(b) Temporary Restraining Order; Notice; Hearing; Duration. A 
temporary restraining order may be granted without written or 
oral notice to the adverse party or that party's attorney only if 
(1) it clearly appears from specific facts shown by affidavit or 
by the verified complaint that immediate and irreparable injury, 
loss, or damage will result to the applicant before the adverse 
party or that party's attorney can be heard in opposition, and 
(2) the applicant's attorney certifies to the court in writing 
the efforts, if any, which have been made to give the notice and 
the reasons supporting the claim that notice should not be 
required. Every temporary restraining order granted without 
notice shall be indorsed with the date and hour of issuance; 
shall be filed forthwith in the clerk's office and entered of 
record; shall define the injury and state why it is irreparable 
and why the order was granted without notice; and shall expire by 
its terms within such time after entry, not to exceed 10 days, as 
the court fixes, unless within the time so fixed the order, for 
good cause shown, is extended for a like period or unless the 
party against whom the order is directed consents that it may be 
extended for a longer period. The reasons for the extension shall 
be entered of record. In case a temporary restraining order is 
granted without notice, the motion for a preliminary injunction 
shall be set down for hearing at the earliest possible time and 
takes precedence of all matters except older matters of the same 
character; and when the motion comes on for hearing the party who 
obtained the temporary restraining order shall proceed with the 
application for a preliminary injunction and, if the party does 
not do so, the court shall dissolve the temporary restraining 
order. On 2 days' notice to the party who obtained the temporary 
restraining order without notice or on such shorter notice to 
that party as the court may prescribe, the adverse party may 
appear and move its dissolution or modification and in that event 
the court shall proceed to hear and determine such motion as 
expeditiously as the ends of justice require.

(c) Security. No restraining order or preliminary injunction 
shall issue except upon the giving of security by the applicant, 
in such sum as the court deems proper, for the payment of such 
costs and damages as may be incurred or suffered by any party who 
is found to have been wrongfully enjoined or restrained. No such 
security shall be required of the United States or of an officer 
or agency thereof. The provisions of Rule 65.1 apply to a surety 
upon a bond or undertaking under this rule.

(d) Form and Scope of Injunction or Restraining Order. Every 
order granting an injunction and every restraining order shall 
set forth the reasons for its issuance; shall be specific in 
terms; shall describe in reasonable detail, and not by reference 
to the complaint or other document, the act or acts sought to be
restrained; and is binding only upon the parties to the action,
their officers, agents, servants, employees, and attorneys, and 
upon those persons in active concert or participation with them 
who receive actual notice of the order by personal service or
otherwise.

(e) Employer and Employee; Interpleader; Constitutional Cases.
These rules do not modify any statute of the United States 
relating to temporary restraining orders and preliminary 
injunctions in actions affecting employer and employee; or the 
provisions of Title 28, U.S.C., [sec.] 2361, relating to 
preliminary injunctions in actions of interpleader or in the 
nature of interpleader; or Title 28, U.S.C., [sec.] 2284, 
relating to actions required by Act of Congress to be heard and 
determined by a district court of three judges.


RULE 65.1. SECURITY: PROCEEDINGS AGAINST SURETIES

Whenever these rules, including the Supplemental Rules for 
Certain Admiralty and Maritime Claims, require or permit the 
giving of security by a party, and security is given in the form 
of a bond or stipulation or other undertaking with one or more 
sureties, each surety submits to the jurisdiction of the court 
and irrevocably appoints the clerk of the court as the surety's 
agent upon whom any papers affecting the surety's liability on 
the bond or undertaking may be served. The surety's liability may 
be enforced on motion without the necessity of an independent 
action. The motion and such notice of the motion as the court 
prescribes may be served on the clerk of the court, who shall 
forthwith mail copies to the sureties if their addresses are 
known.


RULE 66. RECEIVERS APPOINTED BY FEDERAL COURTS

An action wherein a receiver has been appointed shall not be
dismissed except by order of the court. The practice in the
administration of estates by receivers or by other similar 
officers appointed by the court shall be in accordance with the 
practice heretofore followed in the courts of the United States 
or as provided in rules promulgated by the district courts. In 
all other respects the action in which the appointment of a 
receiver is sought or which is brought by or against a receiver 
is governed by these rules.


RULE 67. DEPOSIT IN COURT

In an action in which any part of the relief sought is a judgment 
for a sum of money or the disposition of a sum of money or the 
disposition of any other thing capable of delivery, a party, upon 
notice to every other party, and by leave of court, may deposit 
with the court all or any part of such sum or thing, whether or 
not that party claims all or any part of the sum or thing. The 
party making the deposit shall serve the order permitting deposit 
on the clerk of the court. Money paid into court under this rule 
shall be deposited and withdrawn in accordance with the 
provisions of Title 28, U.S.C., [sec.] 2041, and 2042; the Act of 
June 26, 1934, c. 756, [sec.] 23, as amended (48 Stat. 1236, 58 
Stat. 845), U.S.C., Title 31, [sec.] 725v; or any like statute. 
The fund shall be deposited in an interest-bearing account or 
invested in an interest-bearing instrument approved by the court.


RULE 68. OFFER OF JUDGMENT

At any time more than 10 days before the trial begins, a party 
defending against a claim may serve upon the adverse party an 
offer to allow judgment to be taken against the defending party 
for the money or property or to the effect specified in the 
offer, with costs then accrued. If within 10 days after the 
service of the offer the adverse party serves written notice that 
the offer is accepted, either party may then file the offer and 
notice of acceptance together with proof of service thereof and 
thereupon the clerk shall enter judgment. An offer not accepted 
shall be deemed withdrawn and evidence thereof is not admissible 
except in a proceeding to determine costs. If the judgment 
finally obtained by the offeree is not more favorable than the 
offer, the offeree must pay the costs incurred after the making 
of the offer. The fact that an offer is made but not accepted 
does not preclude a subsequent offer. When the liability of one 
party to another has been determined by verdict or order or 
judgment, but the amount or extent of the liability remains to be 
determined by further proceedings, the party adjudged liable may 
make an offer of judgment, which shall have the same effect as an 
offer made before trial if it is served within a reasonable time 
not less than 10 days prior to the commencement of hearings to 
determine the amount or extent of liability.


RULE 69. EXECUTION

(a) In General. Process to enforce a judgment for the payment of 
money shall be a writ of execution, unless the court directs 
otherwise. The procedure on execution, in proceedings 
supplementary to and in aid of a judgment, and in proceedings on 
and in aid of execution shall be in accordance with the practice 
and procedure of the state in which the district court is held, 
existing at the time the remedy is sought, except that any 
statute of the United States governs to the extent that it is 
applicable. In aid of the judgment or execution, the judgment 
creditor or a successor in interest when that interest appears of 
record, may obtain discovery from any person, including the 
judgment debtor, in the manner provided in these rules or in the 
manner provided by the practice of the state in which the 
district court is held.

(b) Against Certain Public Officers. When a judgment has been 
entered against a collector or other officer of revenue under the 
circumstances stated in Title 28, U.S.C., [sec.] 2006, or against 
an officer of Congress in an action mentioned in the Act of March 
3, 1875, ch. 130, [sec.] 8 (18 Stat. 401), U.S.C., Title 2, 
[sec.] 118, and when the court has given the certificate of 
probable cause for the officer's act as provided in those 
statutes, execution shall not issue against the officer or the 
officer's property but the final judgment shall be satisfied as 
provided in such statutes.


RULE 70. JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE

If a judgment directs a party to execute a conveyance of land or 
to deliver deeds or other documents or to perform any other 
specific act and the party fails to comply within the time 
specified, the court may direct the act to be done at the cost of 
the disobedient party by some other person appointed by the court 
and the act when so done has like effect as if done by the party. 
On application of the party entitled to performance, the clerk 
shall issue a writ of attachment or sequestration against the 
property of the disobedient party to compel obedience to the 
judgment. The court may also in proper cases adjudge the party in 
contempt. If real or personal property is within the district, 
the court in lieu of directing a conveyance thereof may enter a 
judgment divesting the title of any party and vesting it in 
others and such judgment has the effect of a conveyance executed 
in due form of law. When any order or judgment is for the 
delivery of possession, the party in whose favor it is entered is 
entitled to a writ of execution or assistance upon application to 
the clerk.


RULE 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES

When an order is made in favor of a person who is not a party to 
the action, that person may enforce obedience to the order by the 
same process as if a party; and, when obedience to an order may 
be lawfully enforced against a person who is not a party, that 
person is liable to the same process for enforcing obedience to 
the order as if a party.


IX. SPECIAL PROCEEDINGS


RULE 71A. CONDEMNATION OF PROPERTY

(a) Applicability of Other Rules. The Rules of Civil Procedure 
for the United States District Courts govern the procedure for 
the condemnation of real and personal property under the power of
eminent domain, except as otherwise provided in this rule.

(b) Joinder of Properties. The plaintiff may join in the same 
action one or more separate pieces of property, whether in the 
same or different ownership and whether or not sought for the 
same use.

(c) Complaint.

(1) Caption. The complaint shall contain a caption as provided in 
Rule 10(a), except that the plaintiff shall name as defendants 
the property, designated generally by kind, quantity, and 
location, and at least one of the owners of some part of or 
interest in the property.

(2) Contents. The complaint shall contain a short and plain
statement of the authority for the taking, the use for which the
property is to be taken, a description of the property sufficient
for its identification, the interests to be acquired, and as to
each separate piece of property a designation of the defendants 
who  have been joined as owners thereof or of some interest 
therein. Upon the commencement of the action, the plaintiff need 
join as defendants only the persons having or claiming an 
interest in the property whose names are then known, but prior to 
any hearing involving the compensation to be paid for a piece of 
property, the plaintiff shall add as defendants all persons 
having or claiming an interest in that property whose names can 
be ascertained by a reasonably diligent search of the records, 
considering the character and value of the property involved and 
the interests to be acquired, and also those whose names have 
otherwise been learned. All others may be made defendants under 
the designation "Unknown Owners." Process shall be served as 
provided in subdivision (d) of this rule upon all defendants, 
whether named as defendants at the time of the commencement of 
the action or subsequently added, and a defendant may answer as 
provided in subdivision (e) of this rule. The court meanwhile may 
order such distribution of a deposit as the facts warrant.

(3) Filing. In addition to filing the complaint with the court, 
the plaintiff shall furnish to the clerk at least one copy 
thereof for the use of the defendants and additional copies at 
the request of the clerk or of a defendant.

(d) Process.

(1) Notice; Delivery. Upon the filing of the complaint the 
plaintiff shall forthwith deliver to the clerk joint or several 
notices directed to the defendants named or designated in the 
complaint. Additional notices directed to defendants subsequently 
added shall be so delivered. The delivery of the notice and its 
service have the same effect as the delivery and service of the
summons under Rule 4.

(2) Same; Form. Each notice shall state the court, the title of 
the action, the name of the defendant to whom it is directed, 
that the action is to condemn property, a description of the 
defendant's property sufficient for its identification, the 
interest to be  taken, the authority for the taking, the uses for 
which the property is to be taken, that the defendant may serve 
upon the plaintiff's attorney an answer within 20 days after 
service of the notice, and that the failure so to serve an answer 
constitutes a consent to the taking and to the authority of the 
court to proceed to hear the action and to fix the compensation. 
The notice shall conclude with the name of the plaintiff's 
attorney and an address within the district in which action is 
brought where the attorney may be served. The notice need contain 
a description of no other property than that to be taken from the 
defendants to whom it is directed.

(3) Service of Notice.

(i) Personal Service. Personal service of the notice (but without 
copies of the complaint) shall be made in accordance with Rule 
4(c) and (d) upon a defendant who resides within the United 
States or its territories or insular possessions and whose 
residence is known.

(ii) Service by Publication. Upon the filing of a certificate of 
the plaintiff's attorney stating that the attorney believes a 
defendant cannot be personally served, because after diligent 
inquiry within the state in which the complaint is filed the 
defendant's place of residence cannot be ascertained by the 
plaintiff or, if ascertained, that it is beyond the territorial 
limits of personal service as provided in this rule, service of 
the notice shall be made on this defendant by publication in a 
newspaper published in the county where the property is located, 
or if there is no such newspaper, then in a newspaper having a 
general circulation where the property is located, once a week 
for not less than three successive weeks. Prior to the last 
publication, a copy of the notice shall also be mailed to a 
defendant who cannot be personally served as provided in this 
rule but whose place of residence is then known. Unknown owners 
may be served by publication in like manner by a notice addressed 
to "Unknown Owners."

Service by publication is complete upon the date of the last
publication. Proof of publication and mailing shall be made by 
certificate of the plaintiff's attorney, to which shall be 
attached a printed copy of the published notice with the name and 
dates of the newspaper marked thereon.

(4) Return; Amendment. Proof of service of the notice shall be 
made and amendment of the notice or proof of its service allowed 
in the manner provided for the return and amendment of the 
summons under Rule 4(g) and (h).

(e) Appearance or Answer. If a defendant has no objection or 
defense to the taking of the defendant's property, the defendant 
may serve a notice of appearance designating the property in 
which the defendant claims to be interested. Thereafter, the 
defendant shall receive notice of all proceedings affecting it. 
If a defendant has any objection or defense to the taking of the 
property, the defendant shall serve an answer within 20 days 
after the service of notice upon the defendant. The answer shall 
identify the property in which the defendant claims to have an 
interest, state the nature and extent of the interest claimed, 
and state all the defendant's objections and defenses to the 
taking of the property. A defendant waives all defenses and 
objections not so presented, but at the trial of the issue of 
just compensation, whether or not the defendant has previously 
appeared or answered, the defendant may present evidence as to 
the amount of the compensation to be paid for the property, and 
the defendant may share in the distribution of the award. No 
other pleading or motion asserting any additional defense or 
objection shall be allowed.

(f) Amendment of Pleadings. Without leave of court, the plaintiff 
may amend the complaint at any time before the trial of the issue 
of compensation and as many times as desired, but no amendment 
shall be made which will result in a dismissal forbidden by 
subdivision (i) of this rule. The plaintiff need not serve a copy 
of an amendment, but shall serve notice of the filing, as 
provided in Rule 5(b), upon any party affected thereby who has 
appeared and, in the manner provided in subdivision (d) of this 
rule, upon any party affected thereby who has not appeared. The 
plaintiff shall furnish to the clerk of the court for the use of 
the defendants at least one copy of each amendment and shall 
furnish additional copies on the request of the clerk or of a 
defendant. Within the time allowed by subdivision (e) of this 
rule a defendant may serve an answer to the amended pleading, in 
the form and manner and with the same effect as there provided.

(g) Substitution of Parties. If a defendant dies or becomes 
incompetent or transfers an interest after the defendant's 
joinder, the court may order substitution of the proper party 
upon motion and notice of hearing. If the motion and notice of 
hearing are to be served upon a person not already a party, 
service shall be made as provided in subdivision (d)(3) of this 
rule.

(h) Trial. If the action involves the exercise of the power of 
eminent domain under the law of the United States, any tribunal 
specially constituted by an Act of Congress governing the case 
for the trial of the issue of just compensation shall be the 
tribunal for the determination of that issue; but if there is no 
such specially constituted tribunal any party may have a trial by 
jury of the issue of just compensation by filing a demand 
therefor within the time allowed for answer or within such 
further time as the court may fix, unless the court in its 
discretion orders that, because of the character, location, or 
quantity of the property to be condemned, or for other reasons in 
the interest of justice, the issue of compensation shall be 
determined by a commission of three persons appointed by it.

In the event that a commission is appointed the court may direct 
that not more than two additional persons serve as alternate 
commissioners to hear the case and replace commissioners who, 
prior to the time when a decision is filed, are found by the 
court to be unable or disqualified to perform their duties. An 
alternate who does not replace a regular commissioner shall be 
discharged after the commission renders its final decision. 
Before appointing the members of the commission and alternates 
the court shall advise the parties of the identity and 
qualifications of each prospective commissioner and alternate and 
may permit the parties to examine each such designee. The parties 
shall not be permitted or required by the court to suggest 
nominees. Each party shall have the right to object for valid 
cause to the appointment of any person as a commissioner or 
alternate. If a commission is appointed it shall have the powers 
of a master provided in subdivision (c) of Rule 53 and 
proceedings before it shall be governed by the provisions of
paragraphs (1) and (2) of subdivision (d) of Rule 53. Its action
and report shall be determined by a majority and its findings and
report shall have the effect, and be dealt with by the court in
accordance with the practice, prescribed in paragraph (2) of
subdivision (e) of Rule 53. Trial of all issues shall otherwise be
by the court.

(i) Dismissal of Action.

(1) As of Right. If no hearing has begun to determine the 
compensation to be paid for a piece of property and the plaintiff 
has not acquired the title or a lesser interest in or taken 
possession, the plaintiff may dismiss the action as to that 
property, without an order of the court, by filing a notice of 
dismissal setting forth a brief description of the property as to
which the action is dismissed.

(2) By Stipulation. Before the entry of any judgment vesting the
plaintiff with title or a lesser interest in or possession of 
property, the action may be dismissed in whole or in part, 
without an order of the court, as to any property by filing a 
stipulation of dismissal by the plaintiff and the defendant 
affected thereby; and, if the parties so stipulate, the court may 
vacate any judgment that has been entered.

(3)  By Order of the Court. At any time before compensation for a 
piece of property has been determined and paid and after motion 
and hearing, the court may dismiss the action as to that 
property, except that it shall not dismiss the action as to any 
part of the property of which the plaintiff has taken possession 
or in which the plaintiff has taken title or a lesser interest, 
but shall award just compensation for the possession, title or 
lesser interest so taken. The court at any time may drop a 
defendant unnecessarily or improperly joined.

(4) Effect. Except as otherwise provided in the notice, or 
stipulation of dismissal, or order of the court, any dismissal is
without prejudice.

(j) Deposit and Its Distribution. The plaintiff shall deposit 
with the court any money required by law as a condition to the 
exercise of the power of eminent domain; and, although not so 
required, may make a deposit when permitted by statute. In such 
cases the court and attorneys shall expedite the proceedings for 
the distribution of the money so deposited and for the 
ascertainment and payment of just compensation. If the 
compensation finally awarded to any defendant exceeds the amount 
which has been paid to that defendant on distribution of the 
deposit, the court shall enter judgment against the plaintiff and 
in favor of that defendant for the deficiency. If the 
compensation finally awarded to any defendant is less than the 
amount which has been paid to that defendant, the court shall 
enter judgment against that defendant and in favor of the 
plaintiff for the overpayment.

(k) Condemnation Under a State's Power of Eminent Domain. The
practice as herein prescribed governs in actions involving the
exercise of the power of eminent domain under the law of a state,
provided that if the state law makes provision for trial of any 
issue by jury, or for trial of the issue of compensation by jury 
or commission or both, that provision shall be followed.

(l) Costs. Costs are not subject to Rule 54(d).


RULE 72. MAGISTRATES, PRETRIAL ORDERS

(a) Nondispositive Matters. A magistrate to whom a pretrial 
matter not dispositive of a claim or defense of a party is 
referred to hear and determine shall promptly conduct such 
proceedings as are required and when appropriate enter into the 
record a written order setting forth the disposition of the 
matter. Within 10 days after being served with a copy of the 
magistrate's order, a party may serve and file objections to the 
order; a party may not thereafter assign as error a defect in the 
magistrate's order to which objection was not timely made. The 
district judge to whom the case is assigned shall consider such 
objections and shall modify or set aside any portion of the 
magistrate's order found to be clearly erroneous or contrary to 
law.

(b) Dispositive Motions and Prisoner Petitions. A magistrate 
assigned without consent of the parties to hear a pretrial matter 
dispositive of a claim or defense of a party or a prisoner 
petition challenging the conditions of confinement shall promptly 
conduct such proceedings as are required. A record shall be made 
of all evidentiary proceedings before the magistrate, and a 
record may be made of such other proceedings as the magistrate 
deems necessary.  The magistrate shall enter into the record a 
recommendation for disposition of the matter, including proposed 
findings of fact when appropriate. The clerk shall forthwith mail 
copies to all parties.

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