Note. It has been held that in actions on preliminary injunction bonds the district court has discretion to grant relief in the same proceeding or to require the institution of a new action on the bond. Russell v. Farley, 1881, 105 U.S. 433, 466. It is believed, however, that in all cases the litigant should have a right to proceed on the bond in the same proceeding, in the manner provided in Rule 73(f) for a similar situation. The paragraph added to Rule 65(c) insures this result and is in the interest of efficiency. There is no reason why Rules 65(c) and 73(f) should operate differently. Compare 50, sub. n of the Bankruptcy Act, 11 U.S.C. § 78, sub. n, under which actions on all bonds furnished pursuant to the Act may be proceeded upon summarily in the bankruptcy court. See 2 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, 1853-1854. 1948 AMENDMENT The amendment effective October 1949, changed subdivision (e) in the following respects: in the first clause the amendment substituted the words "any statute of the United States" for the words "the Act of October 15, 1914, ch. 323, §§ 1 and 20 (38 Stat. 730), U.S.C., Title 29, §§ 52 and 53, or the Act of March 23, 1932, ch. 90 (47 Stat. 70), U.S.C., Title 29, ch. 6"; in the second clause of subdivision (e) the amendment substituted the reference to "Title 28, U.S.C., § 2361" for the reference to "Section 24(26) of the Judicial Code as amended, U.S.C., Title 28, § 41(26)"; and the third clause was amended to read "Title 28, U.S.C., § 2284," etc., as at present, instead of "the Act of August 24, 1937, ch. 754, § 3, relating to actions to enjoin the enforcement of acts of Congress." NOTES OF Advisory Committee on RULES-1966 Subdivision (a)(2). This new subdivision provides express authority for consolidating the hearing of an application for a preliminary injunction with the trial on the merits. The authority can be exercised with particular profit when it appears that a substantial part of evidence offered on the application will be relevant to the merits and will be presented in such form as to qualify for admission on the trial proper. Repetition of evidence is thereby avoided. The fact that the proceedings have been consolidated should cause no delay in the disposition of the application for the preliminary injunction, for the evidence will be directed in the first instance to that relief, and the preliminary injunction, if justified by the proof, may be issued in the course of the consolidated proceedings. Furthermore, to consolidate the proceedings will tend to expedite the final disposition of the action. It is believed that consolidation can be usefully availed of in many cases. The subdivision further provides that even when consolidation is not ordered, evidence received in connection with an application for a preliminary injunction for a preliminary injunction which would be admissible on the trial on the merits forms part of the trial record. This evidence need not be repeated on the trial. On the the other hand, repetition is not altogether prohibited. That would be impractical and unwise. For example, a witness testifying comprehensively on the trial who has previously testified upon the application for a preliminary injunction might sometimes be hamstrung in telling his story if he could not go over some part of his prior testimony to connect it with his present testimony. So also, some repetition of testimony may be called for where the trial is conducted by a judge who did not hear the application for the preliminary injunction. In general, however, repetition can be avoided with an increase of efficiency in the conduct of the case and without any distortion of the presentation of evidence by the parties. Since an application for a preliminary injunction may be made in an action in which, with respect to all or part of the merits, there is a right to trial by jury, it is appropriate to add the caution appearing in the last sentence of the subdivision. In such a case the jury will have to hear all the evidence bearing on its verdict, even if some part of the evidence has already been heard by the judge alone on the application for the preliminary injunction. The subdivision is believed to reflect the substance of the best current practice and introduces no novel conception. Subdivision (b). In view of the possibly drastic consequence of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given. See the emphatic criticisms in Pennsylvania Rd. Co. v. Transport Workers Union, 278 F.2d 693, 694 (3d Cir. 1960); Arvida Corp. v. Sugarman, 259 F.2d 428, 429 (2d Cir. 1958); Lummus Co. v. Commonwealth Oil Ref. Co., Inc., 297 F.2d 80, 83 (2d Cir. 1961), cert. denied, 368 U.S. 986 (1962). Heretofore the first sentence of subdivision (b), in referring to a notice "served" on the "adverse party" on which a "hearing" could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivision is amended to make it plain that informal notice, which may be communicated to the attorney rather than the adverse party, is to be preferred to no notice at all. Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard. The amended subdivision continues to recognize that a temporary restraining order may be issued without any notice when the circumstances warrant. Subdivision (c). Original Rules 65 and 73 contained substantially identical provisions for summary proceedings against sureties on bonds required or permitted by the rules. There was fragmentary coverage of the same subject in the Admiralty Rules. Clearly, a single comprehensive rule is required, and is incorporated as Rule 65.1. CROSS REFERENCES Anti-trust laws, restraining violation, see section 4 of Title 15, Commerce and Trade. Appeals District Courts to courts of appeals, see section 1292 of this title. Injunction pending, see rule 62. Interlocutory orders of district courts to courts of appeals, see section 1292 of this title. Appellate court's power to suspend, modify or grant pending appeal, see rule 62. Atomic Energy Act, enjoining violation of act or regulation, see section 2280 of Title 42, The Public Health and Welfare. Bond for injunction pending appeal, see rule 62. Clayton Act, violation of, see sections 25, 26 of Title 15, Commerce and Trade. Copyrights, injunction against infringement, see section 502 of Title 17, Copyrights. Fair Labor Standards Act, restraint of violations of regulations, see section 217 of Title 29, Labor. Findings of fact and conclusions of law, necessity for, see rule 52. Internal revenue, prohibition of suits to restrain assessment or collection, see section 7421 of Title 26, Internal Revenue Code. Labor-Management Relations Act Petition by Attorney General to enjoin strike or lockout, see section 178 of Title 29, Labor. Restraining unfair labor practices, see sections 160, 161 of Title 29. Patent infringement, see section 283 of Title 35, Patents. Securities Act, actions to restrain violations, see section 77t of Title 15, Commerce and Trade. Securities Exchange Act, restraint of violations, see section 78u of Title 15. Three-Judge Court, composition of, see section 2284 of this title. Trade-marks and trade-names, infringement, see section 78u of Title 15, Commerce and Trade. 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 himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His 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. (Added Feb. 28, 1966, eff. July 1, 1966.) NOTES OF ADVISORY COMMITTEE ON RULES See Note to Rule 65. 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. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949.) NOTES OF ADVISORY COMMITTEE ON RULES-1946 Note. The title of Rule 66 has been expanded to make clear the subject of the rule, i.e., federal equity receivers. The first sentence added to Rule 66 prevents a dismissal by any party, after a federal equity receiver has been appointed, except upon leave of court. A party should not be permitted to oust the court and its officer without the consent of that court. See Civil Rule 31(e), Eastern District of Washington. The second sentence added at the beginning of the rule deals with suits by or against a federal equity receiver. The first clause thereof eliminates the formal ceremony of an ancillary appointment before suit can be brought by a receiver, and is in accord with the more modern state practice, and with more expeditious and less expensive judicial administration. 2 Moore's Federal Practice, 1938, 2088-2091. For the rule necessitating ancillary appointment, see Sterrett v. Second Nat. Bank, 1918, 248 U.S. 73, 39 S.Ct. 27; Kelley v. Queeney, W.D.N.Y. 1941, 41 F.Supp. 1015; see also McCandless v. Furlaud, 1934, 293 U.S. 67, 55 S.Ct. 42. This rule has been extensively criticized. First, Extraterritorial Powers of Receivers, 1932, 27 Ill.L.Rev. 271; Rose, Extraterritorial Actions by Receivers, 1933, 17 Minn.L.Rev. 704; Laughlin, The Extraterritorial Powers of Receivers, 1932, 45 Harv.L.Rev. 429; Clark and Moore, A New Federal Civil Procedure-II, Pleadings and Parties, 1935, 44 Yale L.J. 1291, 1312-1315; Note, 1932, 30 Mich.L.Rev. 1322. See also comment in Bicknell v. Lloyd-Smith, C.C.A.2d, 1940, 109 F.2d 527, cert. den., 1940, 311 U.S. 650, 61 S.Ct. 15. The second clause of the sentence merely incorporates the wellknown and general rule that, absent statutory authorization, a federal receiver cannot be sued without leave of the court which appointed him, applied in the federal courts since Barton v. Barbour, 1881, 104 U.S. 126. See also 1 Clark on Receivers, 2d ed., § 549. Under 28 U.S.C. 125 leave of court is unnecessary when a receiver is sued "in respect of any act or transaction of his in carrying on the business" connected with the receivership property, but such suit is subject to the general equity jurisdiction of the court in which the receiver was appointed, so far as justice necessitates. Capacity of a state court receiver to sue or be sued in federal court is governed by Rule 17(b). The last sentence added to Rule 66 assures the application of the rules in all matters except actual administration of the receivership estate itself. Since this implicitly carries with it the applicability of those rules relating to appellate procedure, the express reference thereto contained in Rule 66 has been stricken as superfluous. Under Rule 81(a)(1) the rules do not apply to bankruptcy proceedings except as they may be made applicable by order of the Supreme Court. Rule 66 is applicable to what is commonly known as a federal "chancery" or "equity" receiver, or similar type of court officer. It is not designed to regulate or affect receivers in bankruptcy, which are governed by the Bankruptcy Act and the General Orders. Since the Federal Rules are applicable in bankruptcy by virtue of General Orders in Bankruptcy 36 and 37 [following section 53 of Title 11, U.S.C.] only to the extent that they are not inconsistent with the Bankruptcy Act or the General Orders, Rule 66 is not applicable to bankruptcy receivers. See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, ¶¶ 2.23-2.36. 1948 AMENDMENT The amendment effective October 1949 deleted a sentence which formerly appeared immediately following the first sentence and which read as follows: "A receiver shall have the capacity to sue in any district court without ancillary appointment; but actions against a receiver may not be commenced without leave of the court appointing him except when authorized by a statute of the United States." CROSS REFERENCES Receiver suable without leave of court, see section 959 of this title. 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. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U.S.C., §§ 2041, and 2042; the Act of June 26, 1934, ch. 756, § 23, as amended (48 Stat. 1236, 58 Stat. 845), U.S.C. Title 31, § 725v; or any like statute. (As amended Dec. 29, 1948, eff. Oct. 20, 1949.) NOTES OF ADVISORY COMMITTEE on RULES This rule provides for deposit in court generally, continuing similar special provisions contained in such statutes as U.S.C., Title 28, formerly § 41(26) (now §§ 1335, 1397, 2361) (Original jurisdiction of bills of interpleader, and of bills in the nature of interpleader). See generally Howard v. United States, 184 U.S. 676, 22 S.Ct. 543, 46 L.Ed. 754 (1902); United States Supreme Court Admiralty Rules (1920), Rules 37 (Bringing Funds into Court), 41 (Funds in Court Registry), and 42 (Claims Against Proceeds in Registry). With the first sentence, compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 22, г. 1(1). 1948 AMENDMENT The amendment effective Otober 1949 substituted the reference to "Title 28, U.S.C.A. §§ 2041, and 2042” for the reference to "Sections 995 and 996, Revised Statutes, as amended, U.S.C.A., Title 28, §§ 851, 852." The amendment also added the words "as amended" following the citation of the Act of June 26, 1934, ch. 756, § 23, and in the parenthetical citation immediately following, added the reference to "58 Stat. 845". REFERENCES IN TEXT The Act of June 26, 1934, ch. 756, § 23, as amended (48 Stat. 1236, 58 Stat. 845), 31 U.S.C. § 725v, referred to in text, was repealed by Pub. L. 97-258, § 5(b), Sept. 13, 1982, 96 Stat. 1074, the first section of which enacted Title 31, Money and Finance. Insofar as not superseded by sections 2041 and 2042 of Title 28, Judiciary and Judicial Procedure, the Act of June 26, 1934, § 23, as amended (31 U.S.C. 725v) was reenacted as sections 572a and 2043 of Title 28 by Pub. L. 97-258, § 2(g)(3), (4). 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 him for the money or property or to the effect specified in his 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. (As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966.) NOTES OF Advisory CommiTTEE ON RULES See 2 Minn. Stat. (Mason, 1927) § 9323; 4 Mont. Rev. Codes Ann. (1935) § 9770; N.Y.C.P.A. (1937) § 177. For the recovery of costs against the United States, see Rule 54(d). NOTES OF ADVISORY COMMITTEE ON RULES-1946 Note. The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible. The two sentences substituted for the deleted last sentence of the rule assure a party the right to make a second offer where the situation permits-as, for example, where a prior offer was not accepted but the plaintiff's judgment is nullified and a new trial ordered, whereupon the defendant desires to make a second offer. It is implicit, however, that as long as the case continues-whether there be a first, second or third trial-and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered. In the case of successive offers not accepted, the offeror is saved the costs incurred after the making of the offer which was equal to or greater than the judg. ment ultimately obtained. These provisions should serve to encourage settlements and avoid protracted litigation. The phrase "before the trial begins", in the first sentence of the rule, has been construed in Cover v. Chicago Eye Shield Co., C.C.A.7th, 1943, 136 F.2d 374, cert. den. 1943, 320 U.S. 749, 64 S.Ct. 53. NOTES OF ADVISORY COMMITTEE ON RULES-1966 This logical extension of the concept of offer of judgment is suggested by the common admiralty practice of determining liability before the amount of liability is determined. 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 his 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. § 2006, or against an officer of Congress in an action mentioned in the Act of March 3, 1875, ch. 130, § 8 (18 Stat. 401), U.S.C., Title 2, § 118, and when the court has given the certificate of probable cause for his act as provided in those statutes, execution shall not issue against the officer or his property but the final judgment shall be satisfied as provided in such statutes. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970.) NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). This follows in substance U.S.C., Title 28, former § 727 (Executions as provided by State laws) and former § 729 (Proceedings in vindication of civil rights), except that, as in the similar case of attachments (see note to Rule 64), the rule specifies the applicable State law to be that of the time when the remedy is sought, and thus renders unnecessary, as well as supersedeas, local district court rules. Statutes of the United States on execution, when applicable, govern under this rule. Among these are: U.S.C., Title 12: U.S.C., Title 33: 8916 U.S.C., Title 38: 854 (Judgments for customs duties, how payable) U.S.C., Title 26: § 1610(a) (Surrender of property subject to distraint) § 393 § 122 (Creation of new district or transfer of territory; lien) (Foreign service retirement and disability system; establishment; rules and regulations; annuities; nonassignable; exemption from legal process) (Assignment and exemption from claims of creditors) Longshoremen's and Harborworkers' Compensation Act) (Attachment, levy or seizure of moneys due pensioners prohibited) (Army and Navy Medal of Honor Roll; pensions additional to other pensions; liability to attachment, etc.) Compare Title 34, § 365(c) (Medal of Honor Roll; special pension to persons enrolled) (Benefits exempt from seizure under process and taxation; no deductions for indebtedness to United States) (Exemption from execution of homestead land) (Panama Canal and railroad retirement annuities, exemption from execution and so forth) NOTES OF ADVISORY COMMITTEE ON RULES- Note. With respect to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix, § 501 et seq., see Notes to Rules 62 and 64 herein. 1948 AMENDMENT The amendment effective October 1949 substituted the citation of “Title 28, U.S.C., § 2006” in subdivision (b) in place of the citation to "Section 989, Revised Statutes, U.S.C., Title 28, § 842". NOTES OF ADVISORY Committee on RULES-1970 The amendment assures that, in aid of execution on a judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a deposition. Under the present language, one court has held that Rule 34 discovery is unavailable to the judgment creditor. M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co., 11 F.R.D. 172 (E.D.Pa. 1951). Notwithstanding the language, and relying heavily on legislative history referring to Rule 33, the Fifth Circuit has held that a judgment creditor may invoke Rule 33 interrogatories. United States v. McWhirter, 376 F.2d 102 (5th Cir. 1967). But the court's reasoning does not extend to discovery except as provided in Rules 26-33. One commentator suggests that the existing language might properly be stretched to all discovery, 7 Moore's Federal Practice ¶ 69.05[1] (2d ed. 1966), but another believes that a rules amendment is needed. 3 Barron & Holtzoff, Federal Practice and Procedure 1484 (Wright ed. 1958). Both commentators and the court in McWhirter are clear that, as a matter of policy, Rule 69 should authorize the use of all discovery devices provided in the rules. CROSS REFERENCES Execution against revenue officers, see section 2006 of this title. Executions and judicial sales, see section 2001 et seq. of this title. Executions in favor of United States, see section 2413 of this title. Power to issue writ of execution, see section 1651 of this title. Seizure of person or property for satisfaction of judgment, see rule 64. Stay of execution of judgment, see rule 62. Writ of execution for delivery of possession, see rule 70. 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. NOTES OF ADVISORY COMMITTEE ON RULES Compare former Equity Rules 7 (Process, Mesne and Final), 8 (Enforcement of Final Decrees), and 9 (Writ of Assistance). To avoid possible confusion, both old and new denominations for attachment (sequestration) and execution (assistance) are used in this rule. Compare with the provision in this rule that the judgment may itself vest title, 6 Tenn.Ann. Code (Williams, 1934), § 10594; 2 Conn.Gen.Stat. (1930), § 5455; N.M.Stat.Ann. (Courtright, 1929), § 117-117; 2 Ohio Gen.Code Ann. (Page, 1926), § 11590; and England, Supreme Court of Judicature Act (1925), § 47. 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, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party. NOTES OF ADVISORY COMMITTEE ON RULES Compare former Equity Rule 11 (Process in Behalf of and Against Persons Not Parties). Compare also Terrell v. Allison, 21 Wall. 289, 22 L.Ed. 634 (U.C., 1875); Farmers' Loan and Trust Co. v. Chicago and A. Ry. Co., 44 Fed. 653 (C.C.Ind., 1890); Robert Findlay Mfg. Co. v. Hygrade Lighting Fixture Corp., 288 Fed. 80 (E.D.N.Y., 1923); Thompson v. Smith, Fed.Cas.No. 13,977 (C.C.Minn., 1870). CROSS REFERENCES Execution, see rule 69. Parties generally, see rules 17 to 25. Power to issue writs, see section 1651 of this title. Writs of attachment, sequestration and equivalent remedies, see rule 64. 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 |