II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS Rule 3. Commencement of Action. 1. Rule 5 (e) defines what constitutes filing with the court. 2. This rule governs the commencement of all actions, including those brought by or against the United States or an officer or agency thereof, regardless of whether service is to be made personally pursuant to Rule 4 (d), or otherwise pursuant to Rule 4 (e). 3. With this rule compare Equity Rule 12 (Issue of Subpoena-Time for Answer) and the following statutes (and other similar statutes) which provide a similar method for commencing an action: U. S. C., Title 28: § 45 (District courts; practice and procedure in certain cases under interstate commerce laws) § 762 (Petition in suit against United States) 4. This rule provides that the first step in an action is the filing of the complaint. Under Rule 4 (a) this is to be followed forthwith by issuance of a summons and its delivery to an officer for service. Other rules providing for dismissal for failure to prosecute suggest a method available to attack unreasonable delay in prosecuting an action after it has been commenced. When a federal or state statute of limitations is pleaded as a defense, a question may arise under this rule whether the mere filing of the complaint stops the running of the statute, or whether any further step is required, such as, service of the summons and complaint or their delivery to the marshal for service. The answer to this question may depend on whether it is competent for the Supreme Court, exercising the power to make rules of procedure without affecting substantive rights, to vary the operation of statutes of limitations. The requirement of Rule 4 (a) that the clerk shall forthwith issue the summons and deliver it to the marshal for service will reduce the chances of such a question arising. Rule 4. Process. Note to Subdivision (a). With the provision permitting additional summons upon request of the plaintiff, compare Equity Rule 14 (Alias Subpoena) and the last sentence of Equity Rule 12 (Issue of Subpoena-Time for Answer). Note to Subdivision (b). This rule prescribes a form of summons which follows substantially the requirements stated in Equity Rules 12 (Issue of Subpoena-Time for Answer) and 7 (Process, Mesne and Final). U. S. C., Title 28, § 721 (Sealing and testing of writs) is substantially continued in so far as it applies to a summons, but its requirements as to teste of process are superseded. U. S. C., Title 28, § 722 (Teste of process, day of) is superseded. See Rule 12 (a) for a statement of the time within which the defendant is required to appear and defend. Note to Subdivision (c). This Rule does not affect U. S. C., Title 28, § 503, as amended June 15, 1935 (Marshals; duties) and such statutes as the following in so far as they provide for service of process by a marshal, but modifies them in so far as they may imply service by a marshal only: U. S. C., Title 15: § 5 (Bringing in additional parties) (Sherman Act) § 10 (Bringing in additional parties) § 25 (Restraining violations; procedure) U. S. C., Title 28: § 45 (Practice and procedure in certain cases under the interstate commerce laws) Compare Equity Rule 15 (Process, by Whom Served). Note to Subdivision (d). Under this rule the complaint must always be served with the summons. Paragraph (1). For an example of a statute providing for service upon an agent of an individual see U. S. C., Title 28, § 109 (Patent cases). Paragraph (3). This enumerates the officers and agents of a corporation or of a partnership or other unincorporated association upon whom service of process may be made, and permits service of process only upon the officers, managing or general agents, or agents authorized by appointment or by law, of the corporation, partnership or unincorporated association against which the action is brought. See Christian v. International Ass'n of Machinists, 7 F. (2d) 481 (D. C. Ky., 1925) and Singleton v. Order of Railway Conductors of America, 9 F. Supp. 417 (D. C. Ill., 1935). Compare Operative Plasterers' and Cement Finishers' International Ass'n of the United States and Canada v. Case, 93 F. (2d) 56 (App. D. C., 1937). For a statute authorizing service upon a specified agent and requiring mailing to the defendant, see U. S. C., Title 6, 7 (Surety companies as sureties; appointment of agents; service of process). Paragraphs (4) and (5) provide a uniform and comprehensive method of service for all actions against the United States or an officer or agency thereof. For statutes providing for such service, see U. S. C., Title 7, §§ 217 (Proceedings for suspension of orders), 499k (Injunctions; application of injunction laws governing orders of Interstate Commerce Commission), 608c (15) (B) (Court review of ruling of Secretary of Agriculture), and 855 (making § 608c (15) (B) applicable to orders of the Secretary of Agriculture as to handlers of antihog-cholera serum and hog-cholera virus); U. S. C., Title 26, § 1569 (Bill in chancery to clear title to realty on which the United States has a lien for taxes); U. S. C., Title 28, §§ 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws), 763 (Petition in suit against the United States; service; appearance by district attorney), 766 (Partition suits where United States is tenant in common or joint tenant), 902 (Foreclosure of mortgages or other liens on property in which the United States has an interest). These and similar statutes are modified in so far as they prescribe a different method of service or dispense with the service of a summons. For the Equity Rule on service, see Equity Rule 13 (Manner of Serving Subpoena). Note to Subdivision (e). The provisions for the service of a summons or of notice or of an order in lieu of summons contained in U. S. C., Title 8, § 405 (Cancellation of certifi cates of citizenship fraudulently or illegally procured) (service by publication in accordance with state law); U. S. C., Title 28, § 118 (Absent defendants in suits to enforce liens); U. S. C., Title 35, § 72a (Jurisdiction of District Court of United States for the District of Columbia in certain equity suits where adverse parties reside elsewhere) (service by publication against parties residing in foreign countries); U. S. C., Title 38, § 445 (Action against the United States on a veteran's contract of insurance) (parties not inhabitants of or not found within the district may be served with an order of the court, personally or by publication) and similar statutes are continued by this rule. Title 24, § 378 of the Code of the District of Columbia (Publication against non-resident; those absent for six months; unknown heirs or devisees; for divorce or in rem; actual service beyond District) is continued by this rule. Note to Subdivision (f). This rule enlarges to some extent the present rule as to where service may be made. It does not, however, enlarge the jurisdiction of the district courts. U. S. C., Title 28, §§ 113 (Suits in States containing more than one district) (where there are two or more defendants residing in different districts), 115 (Suits of a local nature), 116 (Property in different districts in same state), 838 (Executions run in all districts of state); U. S. C., Title 47, § 13 (Action for damages against a railroad or telegraph company whose officer or agent in control of a telegraph line refuses or fails to operate such line in a certain manner-"upon any agent of the company found in such state"); U. S. C., Title 49, § 321 (c) (Requiring designation of a process agent by interstate motor carriers and in case of failure so to do, service may be made upon any agent in the state) and similar statutes, allowing the running of process throughout a state, are substantially continued. U. S. C., Title 15, §§ 5 (Bringing in additional parties) (Sherman Act), 25 (Restraining violations; procedure); U. S. C., Title 28, §§ 44 (Procedure in certain cases under interstate commerce laws; service of processes of court), 117 (Property in different states in same circuit; jurisdiction of receiver), 839 (Executions; run in every State and Territory) and similar statutes, providing for the running of process beyond the territorial limits of a state, are expressly continued. Note to Subdivision (g). Equity Rule 15 (Process, With the second sentence compare by Whom Served). Note to Subdivision (h). This rule substantially continues U. S. C., Title 28, § 767 (Amendment of process). Rule 5. Service and Filing of Pleadings and Other Papers. Note to Subdivisions (a) and (b). Compare 2 Minn. Stat. (Mason, 1927) §§ 9240, 9241, 9242; N. Y. C. P. A. (1937) §§ 163, 164 and N. Y. R. C. P. (1937) Rules 20, 21; 2 Wash. Rev. Stat. Ann. (Remington, 1932) §§ 244-249. Note to Subdivision (d). Compare the present practice under Equity Rule 12 (Issue of Subpoena-Time for Answer). Rule 6. Time. Note to Subdivisions (a) and (b). These are amplifications along lines common in state practices, of Equity Rule 80 (Computation of Time-Sundays and Holidays) and of the provisions for enlargement of time found in Equity Rules 8 (Enforcement of Final Decrees) and 16 (Defendant to Answer-Default-Decree Pro Confesso). See also Rule XIII, Rules and Forms in Criminal Cases, 292 U. S. 661, 666 (1934). Compare Ala. Code Ann. (Michie, 1928) § 13 and former Law Rule 8 of the Rules of the Supreme Court of the District of Columbia (1924), superseded in 1929 by Law Rule 8, Rules of the District Court of the United States for the District of Columbia (1937). Note to Subdivision (c). This eliminates the difficulties caused by the expiration of terms of court. Such statutes as U. S. C., Title 28, § 12 (Trials not discontinued by new term) are not affected. Compare Rules of the United States District Court of Minnesota, Rule 25 (Minn. Stat. (Mason, Supp. 1936) p. 1089). Note to Subdivision (d). Compare 2 Minn. Stat. (Mason, 1927) § 9246; N. Y. R. C. P. (1937) Rules 60 and 64. |