In Hunter v. Serv-Tech (E.D. La. 2009) referenced in this answer, the court denied a critical motion on a technicality and explained its reluctant decision saying:

[T]he Court is duty-bound to apply the law as it is written, and as written the Rules enact a policy of requiring all 12(b)(2)-(5) defenses to be made by motion, once, prior to filing an answer. [Emphasis added]

This statement appears to equate procedural Rules with law. (In this case the Federal Rules of Civil Procedure.) Is this consistent with American jurisprudence?

To what degree are U.S. courts "duty-bound" to apply rules of procedure? Prior to reading that I thought that courts had broad discretion to waive rules in the interests of "justice" or "equity."

  • Just as a side note, I'd also suggest that waiving Rule 8 or 12 as discussed in that answer wouldn't actually be in the interests of justice or equity. Those rules only limit affirmative defenses, which allow defendants to escape liability, even if they admit they are guilty. Hunter could have won without Rule 12, but only because the plaintiff filed in the wrong court -- not because that was the just outcome. By narrowing defendants' opportunities for such windfalls, the Rules 8 and 12 promote justice and equity by encouraging decisions on the merits of the case, rather than technicalities.
    – bdb484
    Commented May 14, 2021 at 16:13

1 Answer 1


“Like the Federal Rules of Criminal Procedure, the Federal Rules of Civil Procedure are as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rules' mandate than they do to disregard constitutional or statutory provisions." Chambers v. Nasco, Inc., 501 U.S. 32, 66 (1991).

The civil and criminal rules of procedure are established by the U.S. Supreme Court, which promulgates them under authority delegated by Congress in 28 U.S.C. 2072. Some rules provide the courts more flexibility in their application than others, but the courts may not simply ignore them any more than they could ignore a Supreme Court precedent.

For instance, in a case where the trial court dismissed criminal charges based on prosecutorial misconduct, the government appealed, arguing that the misconduct hadn't prejudiced the defendant, and Criminal Rule 52's "harmless error" rule requires the court to essentially ignore errors that don't effect the defendant's "substantial rights." The defendant argued that the court's supervisory authority permitted it to dismiss the case to deter future misconduct.

The Supreme Court reversed the dismissal, agreeing with the prosecution that a court has no authority to dismiss the case based on error that the rules of procedure order it to ignore: Rule 52 is, in every pertinent respect, as binding as any federal statute. "Courts have no more discretion to disregard the Rule's mandate through the exercise of supervisory power than they do to disregard constitutional or statutory provisions through the exercise of such power." Bank of Nova Scotia v. United States, 487 U.S. 250, 250 (1988).

Other courts have concluded that this standard applies to the Federal Rules of Civil Procedure, as well. See, e.g., Stone Container Corp. v. United States, 229 F.3d 1345, 1354 (Fed. Cir. 2000) ("[T]he Federal Rules of Civil Procedure, like the Federal Rules of Criminal procedure, are “as binding as any federal statute.”); S.E.C. v. Selden, 484 F. Supp. 2d 105, 107 (D.D.C. 2007); Sieb's Hatcheries, Inc. v. Lindley, 13 F.R.D. 113, 119 (W.D. Ark. 1952); Westland Oil Co. v. Firestone Tire & Rubber Co., 3 F.R.D. 55, 56 (D.N.D. 1943).

tl;dr: The Rules are rules of procedure. They must be adhered to.

  • This is pretty much the case in every jurisdiction
    – Dale M
    Commented May 14, 2021 at 8:55

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .