in the rules, so far as they may be applicable in Tucker Act cases, authorized the maintenance of any suit against the United States to which it had not otherwise consented. The matter involved was not one of procedure but of jurisdiction, the limits of which were marked by the consent of the United States to be sued. The jurisdiction thus limited is unaffected by the Federal Rules of Civil Procedure.

Subdivision (a)(2). The added sentence makes it clear that the rules have not superseded the requirements of U.S.C. Title 28, formerly § 466 (now § 2253). Schenk v. Plummer, C.C.A. 9th 1940, 113 F. 2d 726.

For correct application of the rules in proceedings for forfeiture of property for violation of a statute of the United States, such as under U.S.C., Title 22, § 405 (seizure of war materials intended for unlawful export) or U.S.C., Title 21, § 334(b) (Federal Food, Drug, and Cosmetic Act; formerly Title 21, U.S.C. § 14, Pure Food and Drug Act), see Reynal v. United States, C.C.A.5th, 1945, 153 F.2d 929; United States v. 108 Boxes of Cheddar Cheese, S.D.Iowa 1943, 3 F.R.D. 40. Subdivision (a)(3). The added sentence makes it clear that the rules apply to appeals from proceedings to enforce administrative subpoenas. See Perkins v. Endicott Johnson Corp., C.C.A. 2d 1942; 128 F. 2d 208, aff'd on other grounds, 1943, 317 U.S. 501, 63 S. Ct. 339; Walling v. News Printing, Inc., C.C.A. 3d, 1945, 148 F. 2d 57; McCrone v. United States, 1939, 307 U.S. 61, 59 S. Ct. 685. And, although the provision allows full recognition of the fact that the rigid application of the rules in the proceedings themselves may conflict with the summary determination desired, Good year Tire & Rubber Co. v. National Labor Relations Board, C.C.A. 6th, 1941, 122 F. 2d 450; Cudahy Packing Co. v. National Labor Relations Board, C.C.A. 10th, 1941, 117 F. 2d 692, it is drawn so as to permit application of any of the rules in the proceedings whenever the district court deems them helpful. See, e.g., Peoples Natural Gas Co. v. Federal Power Commission, App. D.C. 1942, 127 F. 2d 153, cert. den., 1942, 316 U.S. 700, 62 S. Ct. 1298; Martin v. Chandis Securities Co., C.C.A. 9th, 1942, 128 F. 2d 731. Compare the application of the rules in summary proceedings in bankruptcy under General Order 37. See 1 Collier on Bankruptcy, 14th ed. by Moore and Oglebay, 326-327; 2 Collier, op. cit. supra, 1401-1402; 3 Collier, op. cit. supra, 228-231; 4 Collier, op. cit. supra, 1199-1202.

Subdivision (a)(6). Section 405 of U.S.C., Title 8 originally referred to in the last sentence of paragraph (6), has been repealed and former § 738 (now § 1451), U.S.C., Title 8, has been enacted in its stead. The last sentence of paragraph (6) has, therefore, been amended in accordance with this change. The sentence has also been amended so as to refer directly to the statute regarding the provision of time for answer, thus avoiding any confusion attendant upon a change in the statute.

That portion of subdivision (a)(6) making the rules applicable to proceedings for enforcement or review of compensation orders under the Longshoremen's and Harbor Workers' Compensation Act [33 U.S.C. § 901 et seq.) was added by an amendment made pursuant to order of the Court, December 28, 1939, effective three months subsequent to the adjournment of the 76th Congress, January 3, 1941.

Subdivision (c). The change in subdivision (c) effects more speedy trials in removed actions. In some states many of the courts have only two terms a year. A case, if filed 20 days before a term, is returnable to that term, but if filed less than 20 days before a term, is returnable to the following term, which convenes six months later. Hence, under the original wording of Rule 81(c), where a case is filed less than 20 days before the term and is removed within a few days but before answer, it is possible for the defendant to delay interposing his answer or presenting his defenses by motion for six months or more. The rule as amended prevents this result.

Subdivision . The use of the phrase "the United States or an officer or agency thereof" in the rules (as

e.g., in Rule 12(a) and amended Rule 73(a)) could raise the question of whether "officer" includes a collector of internal revenue, a former collector, or the personal representative of a deceased collector, against whom suits for tax refunds are frequently instituted. Difficulty might ensue for the reason that a suit against a collector or his representative has been held to be a personal action. Sage v. United States, 1919, 250 U.S. 33, 39 S.Ct. 415; Smietanka v. Indiana Steel Co., 1921, 257 U.S. 1, 42 S.Ct. 1; United States v. Nunnally Investment Co., 1942, 316 U.S. 258, 62 S.Ct. 1064. The addition of subdivision (f) to Rule 81 dispels any doubts on the matter and avoids further litigation.

NOTES OF Advisory Committee on Rules-1948
AMENDMENT

The amendment effective October 1949 substituted the words "United States District Court" for the words "District Court of the United States" in the last sentence of subdivision (a)(1) and in the first and third sentences of subdivision (e). The amendment substituted the words "United States district courts" for "district courts of the United States" in subdivision (a)(4) and (5) and in the first sentence of subdivision (c).

The amendment effective October 20, 1949, also made the following changes:

In subdivision (a)(1), the reference to "Title 17, U.S.C." was substituted for the reference to "the Act of March 4, 1909, ch. 320, § 25 (35 Stat. 1081), as amended, U.S.C.; Title 17, § 25."

In subdivision (a)(2), the reference to "Title 28, U.S.C., § 2253" was substituted for "U.S.C., Title 28, § 466."

In subdivision (a)(3), the reference in the first sentence to "Title 9, U.S.C.," was substituted for "the Act of February 12, 1925, ch. 213 (43 Stat. 883), U.S.C., Title 9".

In subdivision (a)(5), the words "as amended" were inserted after the parenthetical citation of "(49 Stat. 453)," and after the citations of "Title 29, §§ 159 and 160," former references to subdivisions “(e), (g), and (1)" were deleted.

In subdivision (a)(6), after the words "These rules" at the beginning of the first sentence, the following words were deleted: "do not apply to proceedings under the Act of September 13, 1888, ch. 1015, § 13 (25 Stat. 479), as amended, U.S.C., Title 8, § 282, relating to deportation of Chinese; they". Also in the first sentence, after the parenthetical citation of "(44 Stat. 1434, 1436)," the words "as amended" were added. In the last sentence, the words "October 14, 1940, ch. 876, 338 (54 Stat. 1158)" were inserted in lieu of the words "June 29, 1906, ch. 3592, § 15 (34 Stat. 601), as amended."

In subdivision (c), the word "all" originally appearing in the first sentence between the words "govern" and "procedure" was deleted. In the third sentence, the portion beginning with the words "20 days after the receipt" and including all the remainder of that sentence was substituted for the following language: "the time allowed for answer by the law of the state or within 5 days after the filing of the transcript of the record in the district court of the United States, whichever period is longer, but in any event within 20 days after the filing of the transcript". In the fourth or last sentence, after the words at the beginning of the sentence. "If at the time of removal all necessary pleadings have been," the word "served" was inserted in lieu of the word "filed," and the concluding words of the sentence, "petition for removal is filed if he is the petitioner," together with the final clause immediately following, were substituted for the words "record of the action is filed in the district court of the United States."

NOTES OF ADVISORY COMMITTEE ON RULES-1963

AMENDMENT

Subdivision (a)(4). This change reflects the transfer of functions from the Secretary of Commerce to the Secretary of the Interior made by 1939 Reorganization Plan No. II, § 4(e), 53 Stat. 1433.

Subdivision (a)(6). The proper current reference is to the 1952 statute superseding the 1940 statute. Subdivision (c). Most of the cases have held that a party who has made a proper express demand for jury trial in the State court is not required to renew the demand after removal of the action. Zakoscielny v. Waterman Steamship Corp., 16 F.R.D. 314 (D.Md. 1954); Talley v. American Bakeries Co., 15 F.R.D. 391 (E.D.Tenn. 1954); Rehrer v. Service Trucking Co., 15 F.R.D. 113 (D.Del. 1953); 5 Moore's Federal Practice ¶ 38.39[3] (2d ed. 1951); 1 Barron & Holtzoff, Federal Practice and Procedure § 132 (Wright ed. 1960). But there is some authority to the contrary. Petsel v. Chicago, B. & Q.R. Co., 101 F.Supp. 1006 (S.D.Iowa 1951) Nelson v. American Nat. Bank & Trust Co., 9 F.R.D. 680 (E.D.Tenn. 1950). The amendment adopts the preponderant view.

In order still further to avoid unintended waivers of jury trial, the amendment provides that where by State law applicable in the court from which the case is removed a party is entitled to jury trial without making an express demand, he need not make a demand after removal. However, the district court for calendar or other purposes may on its own motion direct the parties to state whether they demand a jury, and the court must make such a direction upon the request of any party. Under the amendment a district court may find it convenient to establish a routine practice of giving these directions to the parties in appropriate cases.

Subdivision (f). The amendment recognizes the change of nomenclature made by Treasury Dept. Order 150-26(2), 18 Fed. Reg. 3499 (1953).

As to a special problem arising under Rule 25 (Substitution of parties) in actions for refund of taxes, see the Advisory Committee's Note to the amendment of Rule 25(d), effective July 19, 1961; and 4 Moore's Federal Practice § 25.09 at 531 (2d ed. 1950).

NOTES OF ADVISORY COMMITTEE ON RULES-1966
AMENDMENT

See Note to Rule 1, supra. Statutory proceedings to forfeit property for violation of the laws of the United States, formerly governed by the admiralty rules, will be governed by the unified and supplemental rules. See Supplemental Rule A.

Upon the recommendation of the judges of the United States District Court for the District of Columbia, the Federal Rules of Civil Procedure are made applicable to probate proceedings in that court. The exception with regard to adoption proceedings is removed because the court no longer has jurisdiction of those matters; and the words "mental health" are substituted for "lunacy" to conform to the current characterization in the District.

The purpose of the amendment to paragraph (3) is to permit the deletion from Rule 73(a) of the clause "unless a shorter time is provided by law." The 10 day period fixed for an appeal under 45 U.S.C. § 159 is the only instance of a shorter time provided for appeals in civil cases. Apart from the unsettling effect of the clause, it is eliminated because its retention would preserve the 15 day period heretofore allowed by 28 U.S.C. 2107 for appeals from interlocutory decrees in admiralty, it being one of the purposes of the amendment to make the time for appeals in civil and admiralty cases uniform under the unified rules. See Advisory Committee's Note to subdivision (a) of Rule 73. NOTES OF ADVISORY COMMITTEE ON RULES-1968 AMENDMENT

The amendments eliminate inappropriate references to appellate procedure.

NOTES OF ADVISORY COMMITTEE ON RULES-1971
AMENDMENT

Title 28, U.S.C., § 2243 now requires that the custodian of a person detained must respond to an application for a writ of habeas corpus "within three days unless for good cause additional time, not exceeding twenty days, is allowed." The amendment increases to forty days the additional time that the district court may allow in habeas corpus proceedings involving persons in custody pursuant to a judgment of a state court. The substantial increase in the number of such proceedings in recent years has placed a considerable burden on state authorities. Twenty days has proved in practice too short a time in which to prepare and file the return in many such cases. Allowance of additional time should, of course, be granted only for good

cause.

While the time allowed in such a case for the return of the writ may not exceed forty days, this does not mean that the state must necessarily be limited to that period of time to provide for the federal court the transcript of the proceedings of a state trial or plenary hearing if the transcript must be prepared after the habeas corpus proceeding has begun in the federal court.

EFFECTIVE DATE OF ABROGATION

Abrogation of par. (7) of subdivision (a) of this rule as effective August 1, 1951, see Effective Date note under Rule 71A.

FEDERAL RULES OF CRIMINAL PROCEDURE Application and exception, see rule 54, Title 18, Appendix, Crimes and Criminal Procedure.

CROSS REFERENCES

Antitrust Civil Process Act petitions, application of rules, see section 1314 of Title 15, Commerce and Trade.

Demand for jury trial, see rule 38.

Habeas corpus, see this title.

Power of court to issue writs, see section 1651 of this title.

Procedure before and after removal generally, see sections 1446 and 1447 of this title.

Scope of rules, see rule 1.

Virgin Islands, applicability of rules to district court for, see section 1615 of Title 48, Territories and Insular Possessions.

Rule 82. Jurisdiction and Venue Unaffected

These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein. An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the purposes of Title 28, U.S.C., §§ 1391-93.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY COMMITTEE ON RULES These rules grant extensive power of joining claims and counterclaims in one action, but, as this rule states, such grant does not extend federal jurisdiction. The rule is declaratory of existing practice under the former Federal Equity Rules with regard to such provisions as former Equity Rule 26 on Joinder of Causes of Action and former Equity Rule 30 on Counterclaims. Compare Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, 45 Yale L.J. 393 (1936).

1948 AMENDMENT

The amendment effective October 1949 substituted the words "United States district courts" for "district courts of the United States".

NOTES OF ADVISORY COMMITTEE ON RULES-1966
AMENDMENT

Title 28, U.S.C. § 1391(b) provides: "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law." This provision cannot appropriately be applied to what were formerly suits in admiralty. The rationale of decisions holding it inapplicable rests largely on the use of the term "civil action"; i.e., a suit in admiralty is not a "civil action" within the statute. By virtue of the amendment to Rule 1, the provisions of Rule 2 convert suits in admiralty into civil actions. The added sentence is necessary to avoid an undesirable change in existing law with respect to venue.

Rule 83. Rules by District Courts

Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the Supreme Court of the United States. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.

NOTES OF ADVISORY COMMITTEE ON RULES

This rule substantially continues U.S.C., Title 28, formerly 731 (now § 2071) (Rules of practice in district courts) with the additional requirement that copies of such rules and amendments be furnished to the Supreme Court of the United States. See Equity Rule 79 (Additional Rules by District Court). With the last sentence compare United States Supreme Court Admiralty Rules (1920), Rule 44 (Right of Trial Courts To Make Rules of Practice) (originally promulgated in 1842).

FEDERAL RULES OF CRIMINAL PROCEDURE

Local rules, see rule 57, Title 18, Appendix, Crimes and Criminal Procedure.

CROSS REFERENCES

Rule-making power generally, see section 2071 of this title.

Rule 84. Forms

The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate. (As amended Dec. 27, 1946, eff. Mar. 19, 1948.)

NOTES OF ADVISORY COMMITTEE ON RULES

In accordance with the practice found useful in many codes, provision is here made for a limited number of official forms which may serve as guides in pleading. Compare 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, 147, Forms 1-47; English Annual Practice (1937) Appendix A to M, inclusive; Conn. Practice Book (1934) Rules, 47-68, pp. 123-427.

NOTES OF Advisory Committee on RULES-1946
AMENDMENT

Note. The amendment serves to emphasize that the forms contained in the Appendix of Forms are sufficient to withstand attack under the rules under which

they are drawn, and that the practitioner using them may rely on them to that extent. The circuit courts of appeals generally have upheld the use of the forms as promoting desirable simplicity and brevity of statement. Sierocinski v. E. I. DuPont DeNemours & Co., C.C.A. 3d, 1939, 103 F. 2d 843; Swift & Co. v. Young, C.C.A. 4th, 1939, 107 F. 2d 170; Sparks v. England, C.C.A. 8th, 1940, 113 F. 2d 579; Ramsouer v. Midland Valley R. Co., C.C.A. 8th, 1943, 135 F. 2d 101. And the forms as a whole have met with widespread approval in the courts. See cases cited in 1 Moore's Federal Practice, 1938, Cum. Supplement § 8.07, under "Page 554"; see also Commentary, The Official Forms, 1941, 4 Fed. Rules Serv. 954. In Cook, "Facts" and "Statements of Fact”, 1937, 4 U. Chi. L. Rev. 233, 245-246, it is said with reference to what is now Rule 84: "*** pleaders in the federal courts are not to be left to guess as to the meaning of [the] language" in Rule 8 (a) regarding the form of the complaint. “All of which is as it should be. In no other way can useless litigation be avoided." Ibid. The amended rule will operate to discourage isolated results such as those found in Washburn v. Moorman Mfg. Co., S. D. Cal. 1938, 25 F. Supp. 546; Employers Mutual Liability Ins. Co. of Wisconsin v. Blue Line Transfer Co., W. D. Mo. 1941, 2 F.R.D. 121, 5 Fed. Rules Serv. 12e.235, Case 2.

FEDERAL RULES OF CRIMINAL PROCEDURE

Forms as illustrative and not mandatory, see rule 58, Title 18, Appendix, Crimes and Criminal Procedure. Rule 85. Title

These rules may be known and cited as the Federal Rules of Civil Procedure.

FEDERAL RULES OF CRIMINAL PROCEDURE Title, see rule 60, Title 18, Appendix, Crimes and Criminal Procedure.

Rule 86. Effective Date

(a) [EFFECTIVE DATE OF ORIGINAL RULES.] These rules will take effect on the day which is 3 months subsequent to the adjournment of the second regular session of the 75th Congress, but if that day is prior to September 1, 1938, then these rules will take effect on September 1, 1938. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.

(b) EFFECTIVE DATE OF AMENDMENTS. The amendments adopted by the Supreme Court on December 27, 1946, and transmitted to the Attorney General on January 2, 1947, shall take effect on the day which is three months subsequent to the adjournment of the first regular session of the 80th Congress, but, if that day is prior to September 1, 1947, then these amendments shall take effect on September 1, 1947. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies.

(Added Dec. 27, 1946, eff. Mar. 19, 1948.)

(c) EFFECTIVE DATE OF AMENDMENTS. The amendments adopted by the Supreme Court on December 29, 1948, and transmitted to the Attorney General on December 31, 1948, shall take effect on the day following the adjournment of the first regular session of the 81st Congress.

(Added Dec. 29, 1948, eff. Oct. 20, 1949.)

The

(d) EFFECTIVE DATE OF AMENDMENTS. amendments adopted by the Supreme Court on April 17, 1961, and transmitted to the Congress on April 18, 1961, shall take effect on July 19, 1961. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (Added Apr. 17, 1961, eff. July 19, 1961.)

(e) EFFECTIVE DATE OF AMENDMENTS. The amendments adopted by the Supreme Court on January 21, 1963, and transmitted to the Congress on January 21, 1963 shall take effect on July 1, 1963. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. (Added Jan. 21, 1963, and amended Mar. 18, 1963, eff. July 1, 1963.)

NOTES OF ADVISORY COMMITTEE ON RULES

See former Equity Rule 81 (These Rules Effective February 1, 1913-Old Rules Abrogated).

EFFECTIVE Date of 1966 AMENDMENT; TRANSMISSION TO CONGRESS; RESCISSION

Sections 2-4 of the Order of the Supreme Court, dated Feb. 28, 1966, 383 U.S. 1031, provided:

"2. That the foregoing amendments and additions to the Rules of Civil Procedure shall take effect on July 1, 1966, and shall govern all proceedings in actions brought thereafter and also in all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action then pending would not be feasible or would work injustice, in which event the former procedure applies.

"3. That the Chief Justice be, and he hereby is, authorized to transmit to the Congress the foregoing amendments and additions to the Rules of Civil Procedure in accordance with the provisions of Title 28, U.S.C., §§ 2072 and 2073.

"4. That: (a) subdivision (c) of Rule 6 of the Rules of Civil Procedure for the United States District Courts promulgated by this court on December 20, 1937, effective September 16, 1938; (b) Rule 2 of the Rules for Practice and Procedure under section 25 of An Act To amend and consolidate the Acts respecting copyright, approved March 4, 1909, promulgated by this court on June 1, 1909, effective July 1, 1909; and (c) the Rules of Practice in Admiralty and Maritime Cases, promulgated by this court on December 6, 1920, effective March 7, 1921, as revised, amended and supplemented be, and they hereby are, rescinded, effective July 1, 1966."

FEDERAL RULES OF CRIMINAL PROCEDURE Effective Date, see rule 59, Title 18, Appendix, Crimes and Criminal Procedure.

CROSS REFERENCES

All laws in conflict with these rules to be of no further force and effect, see section 2072 of this title.

APPENDIX OF FORMS

(See Rule 84)

INTRODUCTORY STATEMENT

1. The following forms are intended for illustration only. They are limited in number. No attempt is made to furnish a manual of forms. Each form assumes the action to be brought in the Southern District of New York. If the district in which an action is brought has divisions, the division should be indicated in the caption.

2. Except where otherwise indicated each pleading, motion, and other paper should have a caption similar to that of the summons, with the designation of the particular paper substituted for the word "Summons". In the caption of the summons and in the caption of the complaint all parties must be named but in other pleadings and papers, it is sufficient to state the name of the first party on either side, with an appropriate indication of other parties. See Rules 4(b), 7(b)(2), and 10(a).

3. In Form 3 and the forms following, the words, "Allegation of jurisdiction," are used to indicate the appropriate allegation in Form 2.

4. Each pleading, motion, and other paper is to be signed in his individual name by at least one attorney of record (Rule 11). The attorney's name is to be followed by his address as indicated in Form 3. In forms following Form 3 the signature and address are not indicated.

5. If a party is not represented by an attorney, the signature and address of the party are required in place of those of the attorney.

(As amended Dec. 29, 1948, effective Oct. 20, 1949.)

Form 2. Allegation of Jurisdiction

(a) Jurisdiction founded on diversity of citizenship and amount.

Plaintiff is a [citizen of the State of Connecticut]1 [corporation incorporated under the laws of the State of Connecticut having its principal place of business in the State of Connecticut] and defendant is a corporation incorporated under the laws of the State of New York having its principal place of business in a State other than the State of Connecticut. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars.

(b) Jurisdiction founded on the existence of a Federal question and amount in controversy. The action arises under [the Constitution of the United States, Article Section —]; [the

-Amendment to the Constitution of the United States, Section ———]; [the Act of Stat. U.S.C., Title §]; [the Treaty of the United States (here describe the treaty)], as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars.

(c) Jurisdiction founded on the existence of a question arising under particular statutes. The action arises under the Act of Stat.; U.S.C., Title

as hereinafter more fully appears.

§

(d) Jurisdiction founded on the admiralty or maritime character of the claim.

This is a case of admiralty and maritime jurisdiction, as hereinafter more fully appears. [If the pleader wishes to invoke the distinctively maritime procedures referred to in Rule 9(h), add the following or its substantial equivalent: This is an admiralty or maritime claim within the meaning of Rule 9(h).]

1Form for natural person.

'Use the appropriate phrase or phrases. The general allega. tion of the existence of a Federal question is ineffective unless the matters constituting the claim for relief as set forth in the complaint raise a Federal question.

(As amended Apr. 17, 1961, eff. July 19, 1961; Feb. 28, 1966, eff. July 1, 1966.)

NOTES OF ADVISORY Committee on RULES

1. Diversity of Citizenship. If the plaintiff is an assignee, he should allege such other facts of citizenship as will show that he is entitled to prosecute his action under U.S.C.A., Title 28, § 1332, formerly § 41(1).

2. Jurisdiction Founded on Some Fact Other Than Diversity of Citizenship. The allegation as to the matter in controversy may be omitted in any case where by law no jurisdictional amount is required. See for example, U.S.C.A., Title 28, former § 41(2)–(28).

3. Pleading Venue. Since improper venue is an affirmative dilatory defense, it is not necessary for plaintiff to include allegations showing the venue to be proper.

4. It is sufficient to allege that a corporation is incorporated in a particular state, there being, for jurisdictional purposes, a conclusive presumption that all of its members or stockholders are citizens of that State, Marshall v. Baltimore and Ohio R.R.. Co., 1853, 16 How. 314; Henderson, Position of Foreign Corporations in American Constitutional Law (1918) 54-64.

NOTES OF ADVISORY COMMITTEE ON RULES-1961
AMENDMENT

1. Diversity of citizenship. U.S.C., Title 28, § 1332 (Diversity of citizenship; amount in controversy; costs), as amended by P.L. 85-554, 72 Stat. 415, July 25, 1958, states in subsection (c) that "For the purposes of this section and section 1441 of this title [removable actions], a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." Thus if the defendant corporation in Form 2(a) had its principal place of business in Connecticut, diversity of citizenship would not exist. An allegation regarding the principal place of business of each corporate party must be made in addition to an allegation regarding its place of incorporation.

2. Jurisdictional amount. U.S.C., Title 28, § 1331 (Federal question; amount in controversy; costs) and § 1332 (Diversity of citizenship; amount in controversy; costs), as amended by P.L. 85-554, 72 Stat. 415, July 25, 1958, require that the amount in controversy, exclusive of interest and costs, be in excess of $10,000. The allegation as to the amount in controversy may be omitted in any case where by law no jurisdictional amount is required. See, for example, U.S.C., Title 28, § 1338 (Patents, copyrights, trade-marks, and unfair competition), § 1343 (Civil rights and elective franchise).

3. Pleading venue. Since improper venue is a matter of defense, it is not necessary for plaintiff to include allegations showing the venue to be proper. See 1 Moore's Federal practice, par. 0.140 [1.-4] (2d ed. 1959).

NOTES OF ADVISORY COMMITTEE ON RULES-1966

AMENDMENT

Since the Civil Rules have not heretofore been applicable to proceedings in Admiralty (Rule 81(a)(1)), Form 2 naturally has not contained a provision for invoking the admiralty jurisdiction. The form has never purported to be comprehensive, as making provision for all possible grounds of jurisdiction; but a provision for invoking the admiralty jurisdiction is particularly appropriate as an incident of unification.

Certain distinctive features of the admiralty practice must be preserved in unification, just as certain distinctive characteristics of equity were preserved in the merger of law and equity in 1938. Rule 9(h) provides the device whereby, after unification, with its abolition of the distinction between civil actions and suits in admiralty, the pleader may indicate his choice of the distinctively maritime procedures, and designates those features that are preserved. This form illustrates an appropriate way in which the pleader may invoke those procedures. Use of this device is not necessary if the claim is cognizable only by virtue of the admiralty and maritime jurisdiction, nor if the claim is within the exclusive admiralty jurisdiction of the district court.

Omission of a statement such as this from the pleading indicates the pleader's choice that the action proceed as a conventional civil action, if this is jurisdictionally possible, without the distinctive maritime remedies and procedures. It should be remembered, however, that Rule 9(h) provides that a pleading may be amended to add or withdraw such an identifying statement subject to the principles stated in Rule 15.

Form 3. Complaint on a Promissory Note

1. Allegation of jurisdiction.

2. Defendant on or about June 1, 1935, executed and delivered to plaintiff a promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto annexed as Exhibit A]; [whereby defendant promised to pay to plaintiff or order on June 1, 1936 the sum of dollars with in