MASSACHUSETTS RULES OF CIVIL PROCEDURE
Table of Contents
RULE 3. COMMENCEMENT OF ACTION
RULE 4. PROCESS
RULE 4.1. ATTACHMENT
RULE 4.2. TRUSTEE PROCESS
RULE 4.3. ARREST: SUPPLEMENTARY
PROCESS: NE EXEAT
RULE 5. SERVICE AND FILING OF
PLEADINGS AND OTHER PAPERS
RULE 6. TIME
A civil action is
commenced by (1) mailing to the clerk of the proper court by certified or
registered mail a complaint and an entry fee prescribed by law, or (2) filing
such complaint and an entry fee with such clerk. Actions brought pursuant to G.L. c. 185
for registration or confirmation shall be commenced by filing a surveyor's plan
and complaint on a form furnished by the Land Court.
(a) Summons: Issuance.
Upon commencing the action the plaintiff or his attorney shall deliver a copy
of the complaint and a summons for service to the sheriff, deputy sheriff, or
special sheriff; any other person duly authorized by law; a person specifically
appointed to serve them; or as otherwise provided in subdivision (c) of this
rule. Upon request of the plaintiff separate or additional summons shall issue
against any defendant. The summons may be procured in blank from the clerk, and
shall be filled in by the plaintiff or the plaintiff's attorney in accordance
with Rule 4(b).
(b) Same: Form. The
summons shall bear the signature or facsimile signature of the clerk; be under
the seal of the court; be in the name of the Commonwealth of Massachusetts;
bear teste of the first justice of the court to which it shall be returnable
who is not a party; contain the name of the court and the names of the parties;
be directed to the defendant; state the name and address of the plaintiff's
attorney, if any, otherwise the plaintiff's address, and the time within which
these rules require the defendant to appear and defend; and shall notify him
that in case of his failure to do so judgment by default may be rendered
against him for the relief demanded in the complaint.
(c) By Whom Served.
Except as otherwise permitted by paragraph (h) of this rule, service of all
process shall be made by a sheriff, by his deputy, or by a special sheriff; by
any other person duly authorized by law; by some person specially appointed by
the court for that purpose; or in the case of service of process outside the
Commonwealth, by an individual permitted to make service of process under the
law of this Commonwealth or under the law of the place in which the service is
to be made, or who is designated by a court of this Commonwealth. A subpoena
may be served as provided in Rule 45. Notwithstanding the provisions of this
paragraph (c), wherever in these rules service is permitted to be made by
certified or registered mail, the mailing may be accomplished by the party or
his attorney.
(d) Summons: Personal
Service Within the Commonwealth. The summons and a copy of the complaint shall
be served together. The plaintiff shall furnish the person making service with
such copies as are necessary. Service shall be made as follows:
(1) Upon an individual by delivering a copy of the summons and of
the complaint to him personally; or by leaving copies thereof at his last and
usual place of abode; or by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by statute to receive
service of process, provided that any further notice required by such statute
be given. If the person authorized to serve process makes return that after
diligent search he can find neither the defendant, nor defendant's last and
usual abode, nor any agent upon whom service may be made in compliance with
this subsection, the court may on application of the plaintiff issue an order
of notice in the manner and form prescribed by law.
(2) Upon a domestic corporation (public or private), a foreign
corporation subject to suit within the Commonwealth, or an unincorporated
association subject to suit within the Commonwealth under a common name: by
delivering a copy of the summons and of the complaint to an officer, to a
managing or general agent, or to the person in charge of the business at the
principal place of business thereof within the Commonwealth, if any; or by
delivering such copies to any other agent authorized by appointment or by law
to receive service of process, provided that any further notice required by law
be given. If the person authorized to serve process makes return that after
diligent search he can find no person upon whom service can be made, the court
may on application of the plaintiff issue an order of notice in the manner and
form prescribed by law.
(3) Upon the Commonwealth or any agency thereof by delivering a
copy of the summons and of the complaint to the Boston office of the Attorney
General of the Commonwealth, and, in the case of any agency, to its office or
to its chairman or one of its members or its secretary or clerk. Service
hereunder may be effected by mailing such copies to the Attorney General and to
the agency by certified or registered mail.
(4) Upon a county, city, town or other political subdivision of
the Commonwealth subject to suit, by delivering a copy of the summons and of
the complaint to the treasurer or the clerk thereof; or by leaving such copies
at the office of the treasurer or the clerk thereof with the person then in
charge thereof; or by mailing such copies to the treasurer or the clerk thereof
by registered or certified mail.
(5) Upon an authority, board, committee, or similar entity,
subject to suit under a common name, by delivering a copy of thesummons and of
the complaint to the chairman or other chief executive officer; or by leaving
such copies at the office of the said entity with the person then in charge
thereof; or by mailing such copies to such officer by registered or certified
mail.
(6) In any action in which the validity of an order of an officer
or agency of the Commonwealth is in any way brought into question, the party
questioning the validity shall forthwith forward to the Attorney General of the
Commonwealth by hand or by registered or certified mail a brief statement
indicating the order questioned.
(e) Same: Personal
Service Outside the Commonwealth. When any statute or law of the Commonwealth
authorizes service of process outside the Commonwealth, the service shall be
made by delivering a copy of the summons and of the complaint: (1) in any
appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the
manner prescribed by the law of the place in which the service is made for
service in that place in an action in any of its courts of general
jurisdiction; or (3) by any form of mail addressed to the person to be served
and requiring a signed receipt; or (4) as directed by the appropriate foreign
authority in response to a letter rogatory; or (5) as directed by order of the
court.
(f) Return. The person
serving the process shall make proof of service thereof in writing to the court
promptly and in any event within the time during which the person served must
respond to the process. If service is made by a person other than a sheriff,
deputy sheriff, or special sheriff, he shall make affidavit thereof. Proof of
service outside the Commonwealth may be made by affidavit of the individual who
made the service or in the manner prescribed by the law of the Commonwealth, or
the law of the place in which the service is made for proof of service in an
action in any of its courts of general jurisdiction. When service is made by
mail, proof of service shall include a receipt signed by the addressee or such
other evidence of personal delivery to the addressee as may be satisfactory to
the court. Failure to make proof of service does not affect the validity of the
service.
(g) Amendment. At any
time in its discretion and upon such terms as it deems just, the court may
allow any process or proof of service thereof to be amended unless it clearly
appears that material prejudice would result to the substantial rights of the
party against whom the process is issued.
(h) Certain Actions in
Probate Courts: Service. Notwithstanding any other provision of these rules, in
actions in the Probate Courts in the nature of petitions for instructions or
for the allowance of accounts service may be made in accordance with G.L. c.
215, § 46, in such manner and form as the court may order.
(i) Land Court. In
actions brought in the Land Court, service shall be made by the court where so
provided by statute.
(j) Summons: Time
Limit for Service. If a service of the summons and complaint is not made upon a
defendant within 90 days after the filing of the complaint and the party on
whose behalf such service was required cannot show good cause why such service
was not made within that period, the action shall be dismissed as to that defendant
without prejudice upon the court's own initiative with notice to such party or
upon motion.
(a) Availability of Attachment. Subsequent to the
commencement of any action under these rules, real estate, goods and chattels
and other property may, in the manner and to the extent provided by law, but
subject to the requirements of this rule, be attached and held to satisfy the
judgment for damages and costs which the plaintiff may recover.
(b) Writ of Attachment: Form. The writ of attachment shall
bear the signature or facsimile signature of the clerk, be under the seal of
the court, be in the name of the Commonwealth, contain the name of the court,
the names and residences (if known) of the parties and the date of the
complaint, bear teste of the first justice of the court to which it is
returnable who is not a party; state the name and address of the plaintiff's
attorney (if any), be directed to the sheriffs of the several counties or their
deputies, or any other person duly authorized by law, and command them to
attach the real estate or personal property of the defendant to the value of an
amount approved by the court, and to make due return of the writ with their
doings thereon. The writ of attachment shall also state the name of the justice
who entered the order approving attachment of property and the date thereof.
(c) Same: Service. The writ of attachment may be procured
in blank from the clerk and shall be filled out by the plaintiff or plaintiff's
attorney as provided in subdivision (b) of this rule, either of whom shall
deliver to the officer making the attachment the original writ of attachment
upon which to make his return and a copy thereof.
No property may be attached unless such attachment for a
specified amount is approved by order of the court. Except as provided in
subdivision (f) of this rule, the order of approval may be entered only after
notice to the defendant and hearing and upon a finding by the court that there
is a reasonable likelihood that the plaintiff will recover judgment, including
interest and costs, in an amount equal to or greater than the amount of the
attachment over and above any liability insurance shown by the defendant to be
available to satisfy the judgment.
An action in which attachment of property is sought may be
commenced only by filing the complaint with the court, together with a motion
for approval of the attachment. The motion shall be supported by affidavit or
affidavits meeting the requirements set forth in subdivision (h) of this rule. Except
as provided in subdivision (f) of this rule, the motion and affidavit or
affidavits with the notice of hearing thereon shall be served upon the
defendant in the manner provided by Rule 4, at the same time the summons and
complaint are served upon him.
Inclusion of a copy of the complaint in the notice of
hearing shall not constitute personal service of the complaint upon the
defendant. The notice shall inform the defendant that by appearing to be heard
on the motion for approval of an attachment he will not thereby submit himself
to the jurisdiction of the court nor waive service of the complaint and summons
upon him in the manner provided by law.
Except as provided in subdivision (e) of this rule, any
attachment of property shall be made within 30 days after the order approving
the writ of attachment. When attachments of any kind of property are made
subsequent to service of the summons and complaint upon the defendant, a copy
of the writ of attachment with the officer's endorsement thereon of the date or
dates of the attachments shall be promptly served upon the defendant in the
manner provided by Rule 5.
(d) Attachment on Counterclaim, Cross-Claim or Third-Party
Complaint. An attachment may be made by a party bringing a counterclaim, a
cross-claim, or a third-party complaint in the same manner as upon an original
claim.
(e) Subsequent Attachment. Either before or after
expiration of the applicable period prescribed in subdivision (c) of this rule
for making attachments, the court may, subject to the provisions of subdivision
(f) of this rule, order another or an additional attachment of real estate,
goods, and chattels or other property.
(f) Ex Parte Hearings on Property Attachments. An order
approving attachment of property for a specific amount may be entered ex parte
upon findings by the court that there is a reasonable likelihood that the
plaintiff will recover judgment in an amount equal to or greater than the
amount of the attachment over and above any liability insurance known or
reasonably believed to be available, and that either (i) the person of the
defendant is not subject to the jurisdiction of the court in the action, or
(ii) there is a clear danger that the defendant if notified in advance of
attachment of the property will convey it, remove it from the state or will
conceal it, or (iii) there is immediate danger that the defendant will damage
or destroy the property to be attached. The motion for such ex parte order
shall be accompanied by a certificate by the plaintiff or his attorney of the
amount of any liability insurance which he knows or has reason to believe will
be available to satisfy any judgment against the defendant in the action. The
motion, in the filing of which the plaintiff's attorney shall be subject to the
obligations of Rule 11, shall be supported by affidavit or affidavits meeting
the requirements set forth in subdivision (h) of this rule.
(g) Dissolution or Modification of Ex Parte Attachments. On
two days' notice to the plaintiff or on such shorter notice as the court may
prescribe, a defendant whose real or personal property has been attached
pursuant to an ex parte order entered under subdivision (f) of this rule may
appear without thereby submitting his person to the jurisdiction of the court,
and move the dissolution or modification of the attachment, and in that event
the court shall proceed to hear and determine such motion as expeditiously as
the ends of justice require. At such hearing the plaintiff shall have the
burden of justifying any finding in the ex parte order which the defendant has
challenged by affidavit. Nothing herein shall be construed to abolish or limit
any means for obtaining dissolution, modification or discharge of an attachment
that is otherwise available by law.
(h) Requirements for Affidavits. Affidavits required by
this rule shall set forth specific facts sufficient to warrant the required
findings and shall be upon the affiant's own knowledge, information or belief;
and, so far as upon information and belief, shall state that he believes this
information to be true.
(i) Form of Hearing. At any hearing held under this rule,
either party may adduce testimony and may call witnesses (including any
opposing party). The court, for cause shown on the evidence so adduced, may
make such interlocutory orders concerning disposition of the property sought to
be attached as justice may require.
(a) Availability of Trustee Process. Subsequent to the
commencement of any personal action under these rules, except actions only for
specific recovery of goods and chattels, for malicious prosecution, for slander
or libel, or for assault and battery, trustee process may be used, in the
manner and to the extent provided by law, but subject to the requirements of
this rule, to secure satisfaction of the judgment for damages and costs which
the plaintiff may recover, provided, however, that no person shall be adjudged
trustee for any amount due from him to the defendant for wages or salary for
personal labor or services of the defendant except on a claim that has first
been reduced to judgment or otherwise authorized by law; and in no event shall
the attachment exceed the limitations prescribed by law.
(b) Summons to Trustee: Form. The summons to a trustee
shall bear the signature or facsimile signature of the clerk, be under the seal
of the court, be in the name of the Commonwealth, contain the name of the
court, the names and residences (if known) of the parties and the date of the
filing of the complaint, bear teste of the first justice of the court to which
it is returnable who is neither a party nor a trustee; state the name and
address of the plaintiff's attorney (if any), be directed to the trustee, shall
notify him that the goods, effects or credits of the defendant in the hands of
the trustee have been attached to the value of the amount authorized by the
court, shall state the time within which these rules require the trustee to
answer, shall notify him that in case of his failure to do so he will be
defaulted and adjudged trustee as alleged, and, if wages, a pension, or a bank
account is sought to be attached, shall notify him of such amount of wages,
pension, or bank account as are by law exempt from attachment and shall direct
him to pay over to the defendant the exempted amount. The summons to the
trustee shall also state the name of the justice who entered the order
approving the trustee attachment and the date thereof.
(c) Same: Service. The trustee summons may be procured in
blank from the clerk and shall be filled out by the plaintiff or the
plaintiff's attorney as provided in subdivision (b) of this rule, either of
whom shall deliver to the person who is to make service the original trustee
summons upon which to make his return and a copy thereof.
No trustee summons may be served unless attachment on
trustee process for a specified amount has been approved by order of the court.
Except as provided in subdivision (g) of this rule, the order of approval may
be entered only after notice to the defendant and hearing and upon a finding by
the court that there is a reasonable likelihood that the plaintiff will recover
judgment, including interest and costs, in an amount equal to or greater than
the amount of the trustee process over and above any liability insurance shown
by the defendant to be available to satisfy the judgment.
An action in which trustee process is sought may be
commenced only by filing the complaint with the court, together with a motion
for approval of attachment on trustee process. The motion shall be supported by
affidavit or affidavits meeting the requirements set forth in Rule 4.1(h).
Except as provided in subdivision (g) of this rule, the motion and affidavit or
affidavits with the notice of hearing thereon shall be served upon the
defendant in the manner provided by Rule 4, at the same time the summons and
complaint are served upon him; and the defendant shall also be served with a
copy of the trustee summons in cases where attachment has been approved ex
parte as provided in subdivision (g) of this rule. Inclusion of a copy of the
complaint in the notice of hearing shall not constitute personal service of the
complaint upon the defendant. The notice shall inform the defendant that by
appearing to be heard on the motion for approval of an attachment on trustee
process he will not thereby submit himself to the jurisdiction of the court nor
waive service of the complaint and summons upon him in the manner provided by
law.
Except as provided in subdivision (f) of this rule, any
trustee process shall be served within 30 days after the date of the order
approving the attachment. Promptly after the service of the trustee summons
upon the trustee or trustees, a copy of the trustee summons with the officer's
endorsement thereon of the date or dates of services shall be served upon the
defendant in the manner provided by Rule 5.
(d) Answer by Trustee; Subsequent Proceedings. A trustee
shall file, but need not serve, his answer, under oath, or signed under the
penalties of perjury, within 20 days after the service of the trustee summons
upon him, unless the court otherwise directs. The answer shall disclose
plainly, fully, and particularly what goods, effects or credits, if any, of the
defendant were in the hands or possession of the trustee when the trustee
summons was served upon him. The proceedings after filing of the trustee's
answer shall be as provided by law.
(e) Trustee Process on Counterclaim, Cross-Claim or
Third-Party Complaint. Trustee process may be used by a party bringing a
counterclaim, a cross-claim, or a third-party complaint in the same manner as
upon an original claim. Such party may use trustee process, even though the
trustee does not reside or maintain a usual place of business in the county
where the action is pending.
(f) Subsequent Trustee Process. Either before or after
expiration of the applicable period prescribed in subdivision (c) of this rule
for serving trustee process, the court may, subject to the provisions of
subdivision (g) of this rule, order another or an additional service of the
trustee summons upon the original trustee.
(g) Ex Parte Hearings on Trustee Process. An order
approving trustee process for a specific amount may be entered ex parte upon
findings by the court that there is a reasonable likelihood that the plaintiff will
recover judgment in an amount equal to or greater than the amount of the
trustee process over and above any liability insurance known or reasonably
believed to be available, and that either (i) the person of the defendant is
not subject to the jurisdiction of the court in the action, or (ii) there is a
clear danger that the defendant if notified in advance of the attachment on
trustee process will withdraw the goods or credits from the hands and
possession of the trustee and remove them from the state or will conceal them,
or (iii) there is immediate danger that the defendant will dissipate the
credits, or damage or destroy the goods to be attached on trustee process. The
motion for an ex parte order shall be accompanied by a certificate by the
plaintiff or his attorney of the amount of any liability insurance which he
knows or has reason to believe will be available to satisfy any judgment
against the defendant in the action. The motion, in the filing of which the
plaintiff's attorney shall be subject to the obligations of Rule 11, shall be
supported by affidavit or affidavits meeting the requirements set forth in Rule
4.1(h).
(h) Dissolution or Modification of Ex Parte Trustee
Process. On two days' notice to the plaintiff or on such shorter notice as the
court may prescribe, a defendant whose goods or credits have been attached on
trustee process pursuant to an ex parte order entered under subdivision (g) of
this rule may appear, without thereby submitting his person to the jurisdiction
of the court, and move the dissolution or modification of the trustee process,
and in that event the court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require. At such hearing the plaintiff
shall have the burden of justifying any finding in the ex parte order which the
defendant has challenged by affidavit. Nothing herein shall be construed to
abolish or limit any means for obtaining dissolution, modification or discharge
of an attachment that is otherwise available by law.
(i) Form of Hearing. At any hearing held under this rule,
either party may adduce testimony and may call witnesses (including any
opposing party). The court, for cause shown on the evidence so adduced, may
make such interlocutory orders concerning disposition of the goods or credits
sought to be subject to trustee process as justice may require.
(a) Arrest;
Availability of Remedy. Except in cases of civil contempt or as specifically
authorized by law, no civil arrest shall be permitted in connection with any
action under these rules, except as provided in section (c) of this rule.
(b) Supplementary
Process. Supplementary process shall be available in the form, manner, and to
the extent provided by law.
(c) Ne Exeat. An order
of arrest may be entered upon motion with or without notice when the plaintiff
has obtained a judgment or order requiring the performance of an act, the
neglect or refusal to perform which would be punishable by the court as a
contempt, and where the defendant is not a resident of the Commonwealth or is
about to depart therefrom, by reason of which nonresidence or departure there
is danger that such judgment or order will be rendered ineffectual. The motion
shall be accompanied by an affidavit showing that the plaintiff is entitled to
the relief requested. The court may fix such terms as are just, and shall in
any event afford the defendant an opportunity to obtain his release by the
giving of an appropriate bond. In this rule the words "plaintiff" and
"defendant" mean respectively the party who has obtained the judgment
or order and the person whose arrest is sought.
(a) Service: When
Required. Except as otherwise provided in these Rules, or unless the court on
motion with or without notice or of its own initiative otherwise orders, every
order required by its terms to be served, every pleading subsequent to the
original complaint, every paper relating to discovery required to be served upon
a party, every written motion other than one which may be heard ex parte, and
every written notice, notice of change of attorney, appearance, demand, brief
or memorandum of law, offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of the parties. No service need be made
on any party in default for failure to appear except that any pleading
asserting new or additional claims for relief against him shall be served upon
him in the manner provided for service of summons in Rule 4.
(b) Same: How Made.
Whenever under these rules service is required or permitted to be made upon a
party represented by an attorney the service shall be made upon the attorney
unless service upon the party himself is ordered by the court. Service upon the
attorney or upon a party shall be made by delivering a copy to him or by
mailing it to him at his last known address or, if no address is known, by
leaving it with the clerk of the court. Delivery of a copy within this rule
means: handing it to the attorney or to the party; or leaving it at his office
with his clerk or other person in charge thereof; or, if there is no one in
charge, leaving it in a conspicuous place therein; or if the office is closed
or the person to be served has no office, leaving it at his dwelling house or
usual place of abode with some person of suitable age and discretion then
residing therein. Service by mail is complete upon mailing.
(c) Same: Multiple
Defendants. The court, on motion with or without notice or of its own
initiative, may order that service of the pleadings of the defendants and
replies thereto need not be made as between the defendants and that any
cross-claim, counterclaim, or matter constituting an avoidance or affirmative
defense contained therein shall be deemed to be denied or avoided by all other
parties and that the filing of any such pleading and service thereof upon the
plaintiff constitutes due notice of it to the parties. A copy of every such
order shall be served upon the parties in such manner and form as the court
directs.
(d) Filing Generally,
and Nonfiling of Discovery Materials.
(1) Except as otherwise provided in Rule 5(d)(2), all papers after
the complaint required to be served upon a party shall be filed with the court
either before service or within a reasonable time thereafter. Such filing by a
party's attorney shall constitute a representation by him, subject to the
obligations of Rule 11, that a copy of the paper has been or will be served
upon each of the other parties as required by Rule 5(a). No further proof of
service is required unless an adverse party raises a question of notice. In
such event, prima facie proof of service shall be made out by a statement
signed by the person making service, or by a written acknowledgment signed by
the party or attorney served; and such statement or acknowledgment shall be
filed within a reasonable time after notice has been questioned. Failure to
make proof of service does not affect the validity of service.
(2) Unless the court, generally or in a specific case, on motion
ex parte by any party or concerned citizen, or on its own motion shall
otherwise order, the following shall not be presented or accepted for filing:
notices of taking depositions, transcripts of depositions, interrogatories under
Rule 33, answers and objections to interrogatories under Rule 33, requests
under Rule 34, and responses to requests under Rule 34. The party taking a
deposition or obtaining material through discovery is responsible for its
preservation and delivery to court if needed or so ordered. Notwithstanding
anything in this Rule 5(d)(2), any party pressing or opposing any motion or
other application for relief may file any document pertinent thereto.
(e) Filing With the
Court Defined. The filing of pleadings and other papers with the court as
required by these rules shall be made by filing them with the clerk of the
court, except that a judge may permit the papers to be filed with him, in which
event he shall note thereon the filing date and forthwith transmit them to the
office of the clerk.
(f) Effect of Failure
to File. If any party fails within five days after service to file any paper
required by this rule to be filed, the court on its own motion or the motion of
any party may order the paper to be filed forthwith; if the order be not
obeyed, it may order the paper to be regarded as stricken and its service to be
of no effect.
(g) Information
Required. On any pleading or other paper required or permitted by these rules
to be filed with the court, there shall appear the name of the court and the
county, the title of the action, the docket number, the designation of the
nature of the pleading or paper, and the name and address of the person or
attorney filing it. In any case where an endorsement for costs is required, the
name of any attorney of this Commonwealth appearing on the complaint filed with
the court shall constitute such an endorsement in absence of any words used in
connection therewith showing a different purpose.
(a) Computation. In computing
any period of time prescribed or allowed by these rules, by order of court, or
by any applicable statute or rule, the day of the act, event, or default after
which the designated period of time begins to run shall not be included. The
last day of the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period runs until the end of
the next day which is not a Saturday, a Sunday, or a legal holiday. When the
period of time prescribed or allowed is less than 7 days, intermediate
Saturdays, Sundays, and legal holidays shall be excluded in the computation. As
used in this rule and in Rule 77(c), "legal holiday" includes those
days specified in Mass. G.L. c. 4, § 7 and any other day appointed as a holiday
by the President or the Congress of the United States or designated by the laws
of the Commonwealth.
(b) Enlargement. When
by these rules or by a notice given thereunder or by order or rule of court an
act is required or allowed to be done at or within a specified time, the court
for cause shown may at any time in its discretion (1) with or without motion or
notice order the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a previous
order; or (2) upon motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of excusable
neglect; or (3) permit the act to be done by stipulation of the parties; but it
may not extend the time for taking any action under Rules 50(b), 52(b), 59(b),
(d), and (e), and 60(b), except to the extent and under the conditions stated
in them.
(c) For
Motions-Affidavits. A written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall be served not later than 7 days
before the time specified for the hearing, unless a different period is fixed
by these rules or by order of the court. Such an order may for cause shown be
made on ex parte application. When a motion is supported by affidavit, the
affidavit shall be served with the motion; and, except as otherwise provided in
Rule 59(c), opposing affidavits may be served not later than 1 day before the
hearing, unless the court permits them to be served at some other time.
(d) Additional Time
After Service by Mail. Whenever a party has the right or is required to do some
act or take some proceedings within a prescribed period after the service of a
notice or other papers upon him and the notice or paper is served upon him by
mail, 3 days shall be added to the prescribed period.
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