RULES OF CIVIL PROCEDURE

TITLE II

RULES OF CIVIL PROCEDURE

CHAPTER 1

GENERAL PROVISIONS

Rule 1

Scope of Rules

(1)

Scope. Except when different rules prescribed by this code specifically apply,

these rules shall govern the procedure in the trial and appellate courts of the Shoshone and

Arapaho River Tribal Courts, in all actions, suits and proceedings of a civil nature, in all special

proceedings established by law, and in criminal matters to the extent no different rule is

specified.

(2)

Construction. These rules shall be liberally construed to secure a just, speedy and

inexpensive determination of every action.

(3)

One Form of Action. There shall be one form of action known, except in criminal

cases, known as a “civil action.”

(4)

Collateral References. Any procedures or matters not specifically set forth herein

shall be handled in accordance with the Federal Rules of Civil Procedure insofar as such are not

inconsistent with these rules, and with general principals of fairness and justice as prescribed and

interpreted by the court.

CHAPTER 2

COMMENCEMENT OF ACTION AND PRELIMINARY MATTERS

Rule 1

Commencement of Action: Service of Process

(1)

Commencement of Action. A civil action is commenced by filing a complaint

and serving a copy of such on the defendant or defendants as provided herein. The court shall

have jurisdiction from such time as both the complaint is filed and properly served upon the

defendant. (Form II-1)

(2)

Service of Process. Service of process shall consist of delivering to the party,

served a copy of the complaint along with a summons, which need not be issued by a judge or

clerk, which advises the defendant that he is required to answer the complaint within twenty (20)

days or a default judgment may be entered against him. (Form II-2)

a)

The return of service shall be endorsed with the name of the person

serving and the date, time and place of service and shall be filed with the clerk. (Form

II-3)

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b)

Service may be made on a party by delivering the required papers to the

party himself or upon some person of suitable age and discretion over fourteen (14) years

of age at the party*s house or principle place of business, or on an officer, managing

agent, or employee, or partner of a non-individual party.

c)

Service by publication may be made upon order of the court for good

cause shown by publishing the contents of the summons in a local newspaper of general

circulation at least once per week for four (4) weeks and by leaving an extra copy of the

complaint and paper with the court for the party. (Form II-4)

d)

Service may be made by any law enforcement officer or other person, not

a party, eighteen (18) years of age or older.

e)

Service upon a person otherwise subject to the jurisdiction of the

Shoshone and Arapaho Court may be made anywhere in the United States; otherwise,

service shall be made within the exterior boundaries of the Wind River Indian

Reservation.

f)

If a person personally refuses to accept service, service shall be deemed

performed, if the person is informed of the purpose of the service and offered copies of

the papers served. An affidavit shall be filed by the person serving this.

g)

All papers required to be filed shall be served as under this rule. Service

of all papers except the complaint may be made by mail, first class, postage prepaid and

properly addressed, or certified or registered mail.

Rule 2

Time

(1)

Computation. In computing any period of time set forth herein, the date that the

period is to commence shall not be counted and the last day of the period shall be counted;

provided, however, that any time period under seven (7) days will not include intermediate

Saturdays, Sundays or legal holidays in the period and any period which would otherwise end on

a Saturday, Sunday or legal holiday will be deemed to end on the next day which is not a

Saturday, Sunday or legal holiday.

(2)

Enlargement. The court for good cause shown may enlarge the prescribed period

or the time within which any required act may be done.

(3)

Notice of Motions. Written motions and notice of hearing thereon, other than

ones which may be heard ex-parte, shall be served no later than five (5) days prior to the time

specified for hearing.

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(4)

Service by Mail. When service is accomplished by mail, three (3) days shall be

added to the prescribed period of time, but such addition shall not cause Saturdays, Sundays or

legal holidays be to counted in the time period if they would not otherwise have been counted.

Rule 3

Pleadings, Motions and Orders

(1)

Pleadings. There shall be a complaint and an answer; a reply to a counterclaim

denominated as such; or answer to a cross-claim, if an answer contains a cross-claim; a thirdparty complaint, if a person who was not of original party is summoned under the provisions of

Rule 7 c) Third-Party Claim. The court may grant additional leave to plead in the interest of

narrowing and defining issues or as justice may require. (Form II-5 and II-6)

(2)

Motions and Orders

a)

Motions. An application to the court for an order shall be by motion and

shall be in writing, unless made orally during a hearing or trial, and shall set forth the

relief or order sought and the grounds therefore stated with particularity. (Form II-7)

b)

Orders. An Order includes every direction of the court whether included

in a judgment or not, and may be made with or without notice to adverse parties and may

be vacated or modified with or without notice.

c)

Hearings on Motions and Orders. A motion or hearing on an order shall

be automatically continued if the Judge before whom it was to be heard is unable to hear

it on the day specified and no other judge is available to hear it.

Rule 4

General Rules of Pleadings

(1)

contain:

Claims for Relief. A pleading which sets forth a claim for affirmative relief shall

a)

A short, plain statement of the grounds upon which the court*s jurisdiction

depends, unless the court already has jurisdiction over the matter;

b)

relief; and

A short, plain statement of the claim showing that the pleader is entitled to

c)

A demand for judgment for the relief to which the pleader considers

himself entitled. Such claim for relief can be in the alternative or for several types of

relief.

(2)

Defenses and Denials. A party shall state in plain, concise terms the grounds

upon which he bases his defense to claims pleaded against him, and shall deny or admit the

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claims and statements upon which the adverse party relies. If he is without information or

knowledge regarding a statement or claim, he shall so state and such shall be deemed to be a

denial. Denials shall fairly meet the substance of the claims or statements denied and may be

made as to specified parts, but not all of a claim, statement or averment. A general denial shall

not be made unless the party could in good faith deny each and every claim covered thereby. A

claim to which a responsive pleading is required, except for amount of damages, shall be deemed

admitted unless denied; if no responsive pleading is allowed the claims of the adverse party shall

be deemed denied.

(3)

General Content of Claims and Defenses. Claims and defenses shall be simple,

concise and directly stated, but may be in alternative or hypothetical form, on one or several

counts or defenses, need not be consistent with one another, and may be based on legal or

equitable grounds or both.

(4)

Affirmative Defenses. Matters constituting an affirmative defense in avoidance

shall be affirmatively set forth. When a party has mistakenly designated a defense as a

counterclaim or vise versa, the court may treat the pleading as if it had been properly designated

if justice so requires.

(5)

Construction of Pleadings. All pleadings shall be construed so as to do

substantial justice.

Rule 5

Form of Pleadings

(1)

Caption. Every pleading shall contain a caption heading, the name of the court,

the title of the action, the court file number (if known) and a designation as to what kind of

pleading it is. All pleadings shall contain the names of the parties except the name of the first

party on each side may be used on all pleadings except the complaint.

(2)

Paragraphs. All averments of claims or defense shall be set forth in separate

numbered paragraphs each of which shall be limited, as nearly as possible, to a single

circumstance. Claims or defenses founded upon separate transactions or occurrences should be

set forth in separate counts of defenses.

(3)

Exhibits; Adoption by Reference. Statements in a pleading may be adopted by

reference in a different part of the same pleading or in another pleading or in any motion. A

copy of a written instrument which is an exhibit to a pleading is a part thereof for all purposes.

a)

Papers used in pleadings insofar as is possible, pleadings and other papers

filed in any action shall be on legal or 8 x 11” size paper, double spaced, except for

matters customarily single spaced, contain at least a 2-inch top margin and a 1-inch left

side margin, and contain the court file number on the first page thereof. Substantial

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compliance with this rule will be sufficient for all parties not represented by a

professional attorney.

Defenses and Objections

Rule 6

(1)

When Presented. A defendant or other party against whom a claim has been

made for affirmative relief shall have twenty (20) days from the date of service upon him to

answer or respond to the claim.

(2)

Motions.

a)

Motions to dismiss or to have the opposing parties pleadings more definite

may be made prior to answering a claim and an answer will not be due until ten (10) days

after the disposition of the motion by the court.

b)

A party served with a pleading stating a cross-claim against him shall

serve his answer thereto within twenty (20) days after the service upon him. The Plaintiff

shall serve his reply to a counterclaim in the answer within twenty (20) days of service of

the answer or, if a reply is ordered by the court, within twenty (20) days after service of

the order, unless otherwise directed.

(3)

How Presented. Every defense, in law and fact, to a claim for relief in any

pleading, whether a claim, cross-claim, counterclaim, or third-party claim, shall be asserted in

the responsive pleading thereto if one is required, except that the following defenses may at the

option of pleader be made by motion:

a)

Lack of jurisdiction over the subject matter;

b)

Lack of jurisdiction over the person;

c)

Improper venue;

d)

Insufficiency of process;

e)

Insufficiency of service of process;

f)

Failure to state a claim upon which relief can be granted; or

g)

Failure to join a party under Rule 9 (1).

(4)

Preliminary Hearing. The defenses specifically enumerated (a)-(g) in subsection

(3) of this rule, whether made in a pleading or by motion, shall be heard and determined before

trial on application of any party unless the court orders that it be deferred until the trial.

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Rule 7

Counterclaim or Cross-claim

(1)

Counterclaim. A party against whom a claim is made may assert in his answer

any claims he has against the party claiming against him and both claims shall be resolved at

trial. (Form II-8)

(2)

Cross-claim. A party against whom a claim is made may assert any claim he has

against a co-party and have such claim resolved at trial. (Form II-9)

(3)

Third Party Claim. A party against whom a claim is made may complain against

a third party who is or may be liable for payment or performance of the claim of the opposing

party and have such complaint resolved at trial. (Form II-10)

Rule 8

Amendment of Pleadings

(1)

Amendment before Trial. A party may amend his pleadings once before the

opposing party has replied or if no reply is required, not less than two (2) days before the case is

scheduled for trial. The opposing party may respond, if appropriate, and the trial date be delayed

if necessary. Other amendments shall be allowed only upon motion or order of the court.

(2)

Trial. When issues or evidence not raised in the pleadings are heard at trial, the

judgment may conform to such issues or evidence without the necessity of amending the

pleadings.

Rule 9

Parties

(1)

Real Party in Interest. Every action shall be prosecuted in the name of the real

party in interest, except a personal representative or other person in a judiciary position can sue

in his own name without joining the party for whose benefit the action is maintained.

(2)

Guardian Ad Litem. When an infant or insane or incompetent person has not had

a general guardian appointed as a party, the court shall appoint a guardian ad litem to represent

such person in the suit or action. (Form II-11)

(3)

Joinder of Parties. To the greatest extent possible, all persons or parties interested

in a particular action may be joined in the action, but failure to join a party over whom the court

has no jurisdiction will not require dismissal of the action unless it would be impossible to reach

a just result without such party; otherwise, the failure to join a party may be taken into account to

assure that justice is done.

Rule 10

Intervention

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A person may intervene and be treated in all respects as a party to an action in cases in

which property he has an interest in may be affected or a question of law or fact common to a

claim of his may be litigated.

Rule 11

Substitution of Parties

If a person dies or becomes incompetent or transfers his interest, a substitute party may

be joined or substituted as justice requires.

Discovery

Rule 12

(1)

Interrogatories. A party may submit written interrogatories to any other party

who shall answer them in writing, under oath, within thirty (30) days after service of them,

except that a defendant may serve answers or objections within forty-five (45) days after the

service of the summons and complaint upon that defendant.

(2)

Depositions. A party may take the oral deposition of an adverse party or nonparty witness under oath upon not less than ten (10) days’ notice specifying the time and place

where such shall occur, or may serve written questions with a notice of:

a)

b)

be taken.

The name and address of the person who is to answer them; and

The name, title and address of the officer before whom the deposition is to

Within thirty (30) days after the notice and written questions are served, a party may

serve cross-questions. Within ten (10) days after service of the cross-questions, a party may

serve redirect questions on all other parties.

(3)

Production, Entry or Inspection. A party may request another party to produce

any documents or things in his custody or possession for inspection or copying or request

permission to enter and inspect property reasonably related to the case, and the opposing party

shall within thirty (30) days reply as to whether or not such will be allowed. Any party objecting

to a request may move the court for a protective order; otherwise, said party must comply with

the request within thirty (30) days of service of said request.

(4)

Scope of Discovery. Parties may obtain discovery regarding any matters not

privileged which is relevant to the pending action, whether or not such would be admissible at

trial, if such appears reasonably calculated to lead to the discovery of admissible evidence;

except that discovery may not be had of the work product of a party*s advocate or attorney.

(5)

Protective Order. A party against whom discovery is sought may move the court

for a protective order to prevent undue annoyance, harassment, embarrassment, oppression, or

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undue burden or expense, and the court may order that the discovery cease or proceed only upon

specified conditions. (Form II-12)

(6)

Failure to Make Discovery. If a party fails to respond or appear for discovery as

provided in this rule, the opposing party may move for an order to compel the defaulting party to

perform and the court may award costs to the non-defaulting party. If a party fails to perform

after being ordered to do so by the court, the court may, upon motion, order that a certain fact,

claim, or defense be deemed established or strike part of a claim or defense, or dismiss or render

a judgment by default against the non-complying party in a case. (Form II-13)

(7)

Use of Discovery. Answers to interrogatories and depositions may be used in a

motion, hearing or a trial to impeach or contradict the testimony of the person discovered, or by

an adverse party for any purpose.

Rule 13

Jury Trials

(1)

When Allowed. Trials of all actions shall go before the court without a jury

unless a party to the action files a request for a jury trial in writing and a fee of $25.00, not less

than ten (10) days prior to the scheduled date of trial. A judge may, upon good cause shown,

waive payment of the required fee. Failure of a party to serve a request as required by this rule

and to file it constitutes a waiver of a trial by jury. (Form II-14)

(2)

Issues Triable. Unless the requesting party specifies otherwise, all factual issues

properly triable by a jury shall be decided by the jury at trial. A party requesting a jury trial may

specify only those issues he wants tried to the jury, and any other party may specify, not less

than ten (10) days before the date scheduled for trial, any other issues he wishes to be so tried.

Once any or all issues of a case have been requested for a jury trial, such request may not be

withdrawn without the consent of all the parties.

Rule 14

Assigning Cases for Trial

(1)

Assignment of Judge and Date. The Chief Judge shall determine which judge

shall hear a case, and shall provide by rule for the placing of cases on the court calendar with or

without the request of any party provided all parties are given adequate notice of trial dates.

(2)

Postponements. Upon motion of a party or upon its own motion, the court may in

its discretion, and upon terms it deems just, postpone a trial or proceeding upon good cause

shown. (Form II-15)

Rule 15

Dismissal of Actions

(1)

Voluntary Dismissal. Prior to the responsive pleading of a party against whom a

claim has been made or motion to dismiss or for summary judgment, the party making the claim

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may file a notice of dismissal and his claim shall be deemed dismissed without prejudice. In all

other circumstances, a party may move the court to dismiss his own claim and the court shall do

so either with or without prejudice as is just and proper given the stage of the proceeding,

provided, however, if a cross-claim or counterclaim has been filed against the moving party, the

judge shall dismiss the claim only with the consent of the adverse party or only if it appears that

the other party can prosecute his claim independently without undue additional hardship. (Form

II-13)

(2)

Involuntary Dismissal. A party against whom a claim has been made may move

the court to dismiss the claim of the adverse party upon any of the following grounds (Form II14):

a)

Failure of the adverse party to pursue prosecution of his claim;

b)

Failure of the adverse party to comply substantially with these rules;

c)

Failure of the adverse party to comply with an order of the court;

d)

At the close of the presentation of the other party*s evidence and without

prejudicing his own right to present evidence, failure of the opposing party to establish a

right to relief based on the facts and law presented; or

e)

Whenever dismissal appears proper based upon a failure to prove a claim,

such dismissal shall be deemed an adjudication of the merits of the issue dismissed unless

the court shall, for good cause shown, order otherwise. The court may postpone ruling

on a motion to dismiss for failure to establish a right to any relief until the close of all the

evidence.

(3)

Costs. The court may order a party moving to dismiss his own claim to pay the

costs of the adverse party if the proceeding has progressed beyond the pleading stage, and may

order payment of costs in other circumstances where such is deemed appropriate.

Rule 16

Consolidation, Separate Trials

(1)

Consolidation. The court may, upon motion of any party or its own motion, order

some or all of the issues of separate actions tried together when there is a common issue of fact

or law relating the actions, or if such will tend to avoid unnecessary cost or delay. (Form II-15)

(2)

Separate Trials. The court may, to avoid prejudice or in furtherance of

convenience order a separate trial of a claim or issue. (Form II-16)

Rule 17

Evidence

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(1)

Form and Admissibility. At all hearings and trials, the testimony of witnesses

shall be taken orally under oath, unless otherwise provided in these rules. All evidence

admissible under the Federal Rules of Evidence shall be admissible and the competency of

witnesses to testify shall be similarly determined. (Form II-17)

(2)

Examination and Cross-Examination.

a)

A party may use leading questions against an adverse party or hostile

witness or whenever such appears reasonably necessary to elicit testimony from

witnesses of tender years or poor ability to communicate.

b)

A party may call any person to be a witness and examine any witness so

called on any matter relevant to the action. A party may impeach his own witness.

c)

Cross-examination shall be limited to the general scope of direct

examination, provided, however, that full examination of all witnesses shall be allowed

on direct or cross-examination to assure complete development of all relevant facts.

(3)

Physical Evidence. Written documents and other physical evidence shall be

received upon being identified, authenticated, and a showing of relevance to the action.

(4)

Official Documents. Official documents or an official law, record or copy thereof

may be admitted into evidence upon the testimony of an official having custody or official

knowledge thereof or without such testimony if the document or record or copy thereof is

accompanied by a certificate identifying such things and stating that it is a true and correct

representation of what it purports to be.

(5)

Record of Excluded Evidence. In an action tried to a jury, excluded evidence

may upon request be included in the record for purposes of appeal and excluded oral testimony

shall be put into evidence by means of an offer of proof made out of the hearing of the jury, in a

action tried only to the court, the judge may receive such excluded testimony into the record.

Rule 18

Subpoenas

(1)

Issuance. Subpoenas for attendance of witnesses or production of documents or

things shall be issued and served. (Form II-18 and II-19)

(2)

Failure to Appear. A person who has been properly served with a subpoena and

fails to appear or produce may be deemed in contempt of court.

(3)

Subpoena Unnecessary. A person present in court, or before a judicial officer,

may be required to testify in the same manner as if he were in attendance upon a subpoena.

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Rule 19

Jurors

(1)

Number of Jurors; Alternate. There shall be six (6) jurors chosen to hear a case,

plus the court may allow one (1) additional juror to be chosen as an alternate juror. In the event

that an alternate juror is chosen and hears the case, he shall be dismissed prior to the jury*s

deliberation if not needed, and treated like a regular juror if needed.

(2)

Examination of Jurors. The court shall permit the parties or the attorneys to

conduct the examination of prospective jurors and may itself examine the jurors, utilizing the

struck jury method.

(3)

Challenges.

a)

A challenge is an objection made to a potential trial juror. Either party

may challenge jurors, but where there are several parties on either side, they must join in

a challenge before it can be made.

b)

Challenges to jurors are either peremptory or for cause. Each party or side

shall be entitled to three (3) preemptory challenges.

c)

Challenges for cause shall be made against a potential juror on the

grounds that he is not entitled or qualified to be a juror, he is familiar with the case or has

favored an opinion regarding the case, likely or reasonably possible that a juror will not

be able to render a fair, impartial verdict. The judge may take evidence relative to a

challenge for cause and shall in any event render a decision thereon.

(4)

Selection of Jury. The clerk shall draw lots to determine potential jurors and shall

replace jurors for whom a challenge is sustained until a full panel is completed. Upon

completion, the clerk shall administer the oath to the jurors, the form of which shall be

prescribed by rule of the court.

(5)

Discharge of Juror. If, after the proceedings begin and before a verdict is

reached, a juror becomes unable or disqualified to perform his duty, the alternate juror shall take

his place; if there is no alternate juror, the parties may agree to complete the action with the other

jurors. If no agreement can be reached, the judge shall discharge the jury and the case shall be

tried with a new jury.

(6)

View of Jury. The court may, for good cause shown, allow the jury to view the

property or place of occurrence of a disputed or otherwise relevant event.

(7)

Separation of a Jury. Any time prior to their verdict when the jurors are allowed

to leave the courtroom, the judge shall admonish them not to converse with or listen to any other

person on the subject of the trial and further admonish them not to form or express an opinion

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with the other jurors. If no agreement can be reached, the judge shall discharge the jury and the

case shall be tried with a new jury.

(8)

Deliberation. Once the case is submitted to them, the jury shall retire to

deliberate in private under the charge of an officer of the court who will refrain from

communicating with them except to inquire whether they have reached a verdict, and he shall

prevent others from improperly communicating with the jury.

(9)

following;

Things Taken by Jury. The jury may take with them when deliberating any of the

a)

The court’s instructions;

b)

Papers or things received in evidence as exhibits; and

c)

Notes taken by the jurors themselves, but not notes taken by a non-juror.

(10) Additional Instructions. If, after the jury retires, there is some question on an

instruction or other point of law or disagreement regarding the testimony, the jury may request

additional instructions from the court, such to be given on the record after notice to the parties or

their counsel.

(11) No Verdict. If the jury is discharged before rendering their verdict or for any

reason prevented from giving a verdict, the action shall be retried.

(12) Declaration of the Verdict. When a majority of the six (6) jury members agree on

a verdict, they shall so inform the officer who shall notify the court. The jury shall be conducted

into the courtroom and the clerk shall call the jury roll, the verdict shall be given in writing to the

clerk and then read by the clerk to the court; inquiry shall be made by the court to the jury

foreman as to whether such is their verdict. Either party may have the jury polled individually to

determine if such is, in fact, their verdict. If insufficient jurors agree with the verdict, the jury

shall be sent out again to reconsider; otherwise the verdict is complete and the jury shall be

dismissed. If the verdict is read or recorded in correctly by the clerk of foreman, the jury shall

retire to correct the verdict.

(13) Upon recommendation if the vote is tied 3-3, the jury shall be dismissed and a

new trial ordered.

Rule 20

Special Verdicts and Interrogatories

The court may require the jury to return their verdict in the form of specific findings on

specified issues or may require the jury to return a general verdict accompanied by answers to

questions related to the issues under consideration.

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Rule 21

Instructions to the Jury; Final Arguments

(1)

Instructions. At the close of the evidence or at such earlier time as the court may

direct, any party may file written requested instructions for the court to give to the jury. The

court shall inform the parties or their counsel of the instructions it intends to give and hear

argument thereon out of the hearing of the jury. (Form II-20A and II-20B)

(2)

Arguments. Final arguments for the parties shall be made after the jury has been

instructed. The court shall not comment on the evidence of the case and, if it should restate any

of the evidence, it shall inform the jury that they are the sole judges of the facts.

Rule 22

Motions for Directed Verdict and for Judgment Notwithstanding the

Verdict

(1)

Motion for a Directed Verdict. A party who moves for a directed verdict at the

close of the evidence offered by the opposing side may offer evidence as if no motion had been

made in the event that the motion is denied. A motion for directed verdict shall state the grounds

therefore and may be granted by the court without the assent of the jury.

(2)

Motion for Judgment Notwithstanding the Verdict. A party who has made a

motion for a directed verdict at the close of all the evidence, which motion has been denied or

not granted, may, within ten (10) days after entry of judgment, move to have the verdict and any

judgment entered thereon set aside and entered according to his motion for directed verdict; or if

there has been a verdict, the party may so move within ten (10) days after the jury has been

discharged. A motion for a new trial may be made in the alternative. The court shall enter

judgment or make any order consistent with his decision on the motion.

Rule 23

Findings by the Court

In cases tried without a jury, and except in cases where a party defaults, fails to appear or

otherwise waives such, findings of fact and conclusions of law shall be made by the court in

support of all final judgments. Upon its own motion or the motion of any party within ten (10)

days of the entry of judgment, findings may be amended or added to and the judgment may be

amended accordingly.

Rule 24

Judgment Costs

(1)

Definition. A judgment includes any final order from which an appeal is

available and no special form of judgment is required.

(2)

Judgment on Multiple Claims. When more than one claim for relief is presented

in an action, however designated, a final judgment may be entered on less than all of such claims

only upon the court specifically finding that such is justified. Absent such a finding, an order or

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decision will not terminate the action as to any of the claims until they are finally decided, nor

will the appeal period commence to run.

(3)

Demand for Judgment.

a)

Generally. Except in the case of a default judgment, every final judgment

shall grant the relief to which the party in whose favor it is rendered is entitled, even if

such relief is not demanded in the pleadings. It may be given for or against one or more

of several claimants, and it may, if justice so requires, determine the ultimate rights of the

parties on each side as between or among themselves.

b)

Judgment by Default. A judgment by default shall not be different in kind

from or exceed in amount that specifically prayed for in the demand for judgment.

(4)

Costs. Unless the court shall otherwise direct, the court shall allow necessary

costs and disbursements to the prevailing party or parties as a matter of course. Such prevailing

party shall file with the court verified memorandums of his costs and necessary disbursements

within five (5) days of the entry judgment and serve a copy of such on the opposing party, and if

such are not objected to within ten (10) days, they shall be deemed to be a part of and included in

the judgment rendered. The appellate court may award costs in a like manner.

(5)

Attorneys* Fees. The court shall not award attorneys’ fees in a case unless such

have been specifically provided for by contract or agreement of the parties under dispute, or

unless it is proven by a preponderance of the evidence that the case has been prosecuted for

purposes of harassment only, or that there was no reasonable expectation of success on the part

of the affirmatively complaining party. In any action in which the tribes and/or any of its

officers or employees are sued for a cause of action arising out of, or in the course of, the

performance of a tribal function or duty, or in any action, except by the tribes, against the bond

of any such officer or employees, if judgment shall be against the plaintiff the court shall award a

reasonable attorney*s fee against such plaintiff and in favor of the defendant or defendants.

Rule 25

Default

(1)

Entry of Default. When a party against whom a judgment for affirmative relief is

sought has failed to plead or otherwise defend as provided by these rules, his default may be

entered by the clerk and judgment by default granted. Once the default is entered, no further

notice to the defaulting party of any action taken or to be taken need be given. (Form II-21)

(2)

Judgment by Default. Judgment by default may be entered by the clerk if a

party*s claim against the opposing party is for a sum of money which is or can by computation

be made certain, and if the opposing party has been personally served. Otherwise, judgment can

be entered only by the court upon receipt of whatever evidence the court deems necessary to

establish the claim. (Form II-22)

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(3)

Setting Aside Default. The court may, for good cause shown, set aside either an

entry of default or a default judgment.

Rule 26

Summary Judgment

Any time twenty (20) days after commencement of an action, any party may move the

court for summary judgment as to any or all of the issues presented in the case and such shall be

granted by the court if it appears that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. Such motions, which shall be served not

less than ten (10) days prior to the hearing of said motion, may be supported by affidavits,

discovery or memoranda, all of which must be made available to opposing parties at least two (2)

days prior to the hearing. (Form II-23)

Rule 27

Entry of Judgment

(1)

Judgment. Judgment upon verdict of a jury shall be signed by the clerk and filed.

All other judgments shall be signed by the judge and filed with the clerk.

(2)

Effective; Recordation. A judgment is complete and shall be deemed entered for

all purposes when it is signed and filed as provided herein. The clerk shall immediately make a

notation of the judgment in the register of actions and the judgment docket. (Form II-24 and II25)

(3)

Death of a Party. If a party dies after a verdict or decision upon any issues of fact

and before judgment, judgment may nevertheless be entered thereon.

(4)

Satisfaction of Judgment. A judgment may be satisfied, in whole or in part, as to

any or all of the judgment debtors by the owner thereof or his attorney of record executing under

oath and filing an acknowledgment of satisfaction specifying the amount paid and whether such

is a full or partial satisfaction. A judge may order the entry of satisfaction upon proof of

payment and failure of the judgment creditor to file a satisfaction. The clerk shall file all

satisfactions of judgment and note the amount thereof in the register of actions and the judgment

docket. (Form II-26 and II-27)

(5)

Effect of Satisfaction Limitation. A judgment satisfied in whole, with such fact

being entered in the judgment docket, shall cease to operate as such. A partially satisfied

judgment or unsatisfied judgment shall continue in effect for eight (8) years or until satisfied.

An action to renew the judgment remaining unsatisfied may be maintained anytime prior to the

expiration of eight (8) years and will extend the period of limitations an additional eight (8)

years and may be thereafter further extended by the same procedure.

Rule 28

New Trials; Amendment of Judgment

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(1)

Grounds; Time. Any party may petition for a new trial on any or all of the issues

presented by serving a motion not later than ten (10) days after the entry of judgment (Form II28) for any of the following causes:

a)

Error or irregularity which prevented any party from receiving a fair trial;

b)

Misconduct of the jury members;

c)

Accident or surprise, or newly discovered evidence which ordinary

prudence could not have guarded against or produced at trial;

d)

Damages so excessive or inadequate that they appear to have been given

under influence of passion or prejudice;

e)

Insufficiency of the evidence to justify the verdict or other decision, or

that it is contrary to the law; or

f)

Error in law.

(2)

Harmless Error. A new trial shall not be granted on the basis of error or

irregularity which was harmless in that it did not affect substaintial justice.

(3)

Support for Motion. Parties may include memoranda or affidavits in support of

their motions to which reply memoranda and affidavits shall be allowed if desired.

(4)

Court Initiative. The court may, on its own initiative, not later than ten (10) days

after entry of judgment order a new trial on any grounds assertable by a party to the action and

shall specify the reasons for so ordering. (Form II-29)

(5)

Motion to Alter or Amend Judgment. A motion to alter or amend a judgment

shall be served not later than ten (10) days after the entry of the judgment. (Form II-30)

Rule 29

Relief from Judgment or Order

(1)

Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the

record and errors therein arising from oversight or omission may be corrected by the court at any

time of its own initiative or on the motion of any party and after such notice as the court may

direct; mistakes may be corrected before an appeal is docketed in the appellate court, and

thereafter while the appeal is pending may be corrected with leave of the appellate court.

(2)

Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud,

etc. On motion and upon such terms as are just, the court may, in the furtherance of justice,

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relieve a party or his legal representative from a final judgment, order or proceeding for the

following reasons:

a)

Mistake, inadvertence, surprise, or excusable neglect;

b)

Newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 28 (1);

c)

Fraud, misrepresentation or other misconduct of an adverse party;

d)

When, for any cause, the summons in an action has not been personally

served upon the defendant or services was not made by mail or no publication was made

and the defendant has failed to appear in said action;

e)

The judgment is void;

f)

The judgment has been satisfied, released, or discharged, or a prior

judgment upon which it is based has been revised or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application; or

g)

Any other reason justifying relief from the operation of the judgment. The

motion shall be made within a reasonable time and for reasons (a), (b), (c), or (d), not

more than three (3) months after the judgment, order, or proceeding was extended or

taken. A motion under subdivision (4) does not affect the finality of a judgment or

suspend its operation. This rule does not limit the power of a court to entertain an

independent action to relieve a party from a judgment, order or proceeding or to set aside

a judgment for fraud upon the court. The procedure for obtaining any relief from a

judgment shall be by motion as prescribed in these rules or by independent action.

Rule 30

Harmless Error

No error in either the admission or the exclusion of evidence, and no error or defect in

any ruling or order or in anything done or omitted by the court or by any of the parties, is

grounds for granting a new trial or otherwise disturbing a judgment or order, unless refusal to

take such action appears to the court inconsistent with substantial justice. The court at every

stage of the proceeding shall disregard any error or defect in the proceeding which does not

affect the substaintial rights of the parties.

Rule 31

Stay of Proceedings to Enforce a Judgment

(1)

Stay upon Entry of Judgment. Proceedings to enforce a judgment may issue

immediately upon the entry of the judgment, unless the court in its discretion and on such

conditions for the security of the adverse party as are proper, otherwise directs.

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(2)

Stay and Motion for New Trial or for Judgment. In its discretion and on such

conditions for the security of the adverse party as are proper, the court may stay the execution of,

or any proceedings to enforce, a judgment pending the disposition of a motion for a new trial or

to alter or amend a judgment or of a motion for relief from a judgment or order, or of a motion

for judgment in accordance with a motion for a directed verdict, or of a motion for amendment to

the findings or for additional findings. (Form II-31)

(3)

Injunction Pending Appeal. When an appeal is taken from an interlocutory or

final judgment granting, dissolving, or denying an injunction, the court in its discretion may

suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such

conditions as it considers proper for the security of the rights of the adverse party.

(4)

Stay Upon Appeal. When an appeal is taken, the appellant, by giving a bond in

an amount set by the court, may obtain a stay, unless such a stay is otherwise prohibited by law

or these rules. The bond may be given at or within ten (10) days after the time of filing the

notice of appeal. The stay is effective when the bond is approved and received by the court.

(5)

Stay in Favor of the Tribe or Agency Thereof. When an appeal is taken by the

tribe, or an officer or agency of the tribe, and the operation or enforcement of the judgment is

stayed, no bond, obligation, or other security shall be required from the appellant.

(6)

Power of Appellate Court not Limited. The provisions in this rule do not limit

any power of an appellate court or a judge or justice thereof to stay proceedings during the

pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency

of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of

the judgment subsequently to be entered.

(7)

Stay of Judgments upon Multiple Claims. When a court has ordered a final

judgment on some, but not all, of the claims presented in the action under the conditions stated in

Rule 24, the court may stay enforcement of that judgment until the entering of a subsequent

judgment or judgments and may prescribe such conditions as are necessary to secure the benefit

thereof to the party in whose favor the judgment is altered.

(8)

Waiver of Undertaking. In all cases, the parties may, by written stipulation,

waive the requirements of this rule with respect to the filing of a bond or undertaking. In all

cases where an undertaking is required by those rules, a deposit in court in the amount of such

undertaking, or such lesser amount as the court may order, is equivalent to the filing of the

undertaking.

Rule 32

Disability of a Judge

If by reason of death, sickness, or other disability, a judge before whom an action has

been tried is unable to perform the duties to be performed by the court under these rules after a

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verdict is returned or findings of fact and conclusions of law are filed, then any other judge

regularly sitting in or assigned to the court may perform those duties.

Rule 33

Injunction; Restraining Orders

(1)

Preliminary Injunction; Notice. No preliminary injunction shall be issued without

notice to the adverse party.

(2)

Temporary Restraining Order; Notice; Rehearing; Duration. No temporary

restraining order shall be granted without notice to the adverse party unless it clearly appears

from specific facts shown by affidavit or by the verified complaint that immediate and

irreparable injury, loss or damage will result to the applicant before notice can be served and a

hearing held thereon. Every temporary restraining order granted without notice shall be

endorsed with the date and hour of issuance, and shall be filed forthwith in the clerk*s office and

entered on record; shall define the injury and state why it is irreparable and why the order was

granted without notice; and shall expire by its terms within such time after entry, not to exceed

fifteen (15) days, as the court fixes, unless within the time so fixed the order, for good cause

shown, is extended for a like period unless the party against whom the order is directed consents

that it may be extended for a longer period. The reasons for the extension shall be entered on

record. In case a temporary restraining order is granted without notice, the motion for permanent

injunction shall be set down for hearing at the earliest possible time and takes precedence over

all matters except older matters of the same character; and when the motion comes on for

hearing the party who obtained the temporary restraining order shall proceed with the application

for permanent injunction and, if he does not do so, the court shall dissolve the temporary

restraining order. On two (2) days’ notice to the party who obtained the temporary restraining

order without notice or on such shorter notice to that party as the court may prescribe, the

adverse party may appear and move its dissolution or modification, and in that event the court

shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(Form II-32)

(3)

Security. Except as otherwise provided by law, no restraining order or

preliminary injunction shall issue except upon the giving of security by the applicant, in such

sum as the court deems proper, for the payment of costs and damages as may be incurred or

suffered by any party who is found to have been wrongfully enjoined or restrained. No such

security shall be required of the United States, the Shoshone and Arapaho Indian Tribes, or of an

office or agency of either; nor shall it be required of a person who is allowed to proceed with a

waiver by the court of such bond. A surety bond or undertaking under this rule submits himself

to the jurisdiction of the court and irrevocably appoints the clerk of court as his agent upon who

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 court who shall forthwith

mail copies to the persons giving the security if their addresses are known.

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(4)

Form and Scope of Injunction or Restraining Order; Service. Every order

granting an injunction and every restraining order shall be specific in terms, shall describe in

reasonable language, and not by reference to the complaint or other document, the act or acts

sought to be restrained, and is binding only upon the parties to the action, their officers, agents,

servants, employees, attorneys, and advocates, and upon those persons in active consent or

participation with them who receive actual notices of the order by personal service or otherwise.

(Form II-33)

(5)

Grounds for Injunction. An injunction may be granted:

a)

When it appears by the pleadings on file that a party is entitled to the relief

demanded, and such relief, or any part thereof consists in restraining the commission or

continuance of some act complained of either for a limited period or perpetually;

b)

When it appears from the pleading or by affidavit that the commission or

continuance of some act during the litigation would produce great or irreparable injury to

the party seeking injunctive relief;

c)

When it appears during the litigation that either party is doing or threatens,

or is about to do, or is procuring or suffering to be done, some act in violation of the

rights of another party respecting the subject matter of the action, and tending to render

the judgment ineffectual; or

d)

Rule 34

In all other cases where an injunction would be proper in equity.

Extraordinary Writs

Grounds for Relief. Where no other plain, speedy and adequate remedy exists, relief may

be obtained by requesting an extraordinary writ which may be granted for any one of the

following grounds:

(1)

Where anyone usurps intrudes into, or unlawfully holds or exercises a public

office, or does or permits to be done any act which by law works a forfeiture of his office.

(Form II-34)

(2)

When an inferior tribunal, board, or officer exercising judicial functions has

exceeded its jurisdiction or abused its discretion. (Form II-35)

(3)

When the relief sought is to compel any inferior tribunal, board or person to

perform an act which the law specifically enjoins as a duty resulting from an office trust or

station; to compel the admission of a party to the use and enjoyment of a right of office to which

he is entitled and from which he is unlawfully excluded by such inferior tribunal, board, or

person. (Form II-36)

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(4)

Where the relief sought is to arrest the proceedings of any tribunal, board or

person, whether exercising functions judicial or ministerial, when such proceeding are without or

in excess of the jurisdiction of such tribunal, board or person. (Form II-37)

Rule 35

Execution

(1)

Time. If within sixty (60) days after entering of a judgment awarding money

damages and/or costs against a party, or within sixty (60) days after final resolution of an appeal

to the appellate court from such judgment, it is made to appear to the court that the judgment

debtor has not paid the judgment amount in full or commenced making installment payments in a

manner agreed to by the parties, or is not current in such payments, the court shall upon motion

of the judgment creditor, heard ex-parte, order the judgment debtor to appear before the court to

show cause why the personal property of the judgment debtor should not be executed upon,

provided he does not abide by an order to comply with the judgment. (Form II-38)

(2)

Procedure. The court shall order the judgment debtor to appear before the court

and answer under oath regarding all of his personal property. The court may then determine

what property of the judgment debtor is available for execution and order the seizure of as much

of such property as reasonably appears necessary to pay the judgment amount. Failure of the

judgment debtor to appear may be deemed a contempt of court and the court may proceed

without such appearance. The Wind River Indian Police Department shall be ordered to aid the

judgment creditor in the execution of the personal property, however, the judgment creditor is to

assume the active role while the police assure that no breach of the peace occurs. Sale of the

seized property shall be at a public auction conducted by the judgment creditor after giving at

least ten (10) days’ public notice posted in three (3) conspicuous places on the reservation, or

published for one (1) month in a paper of general circulation. Property shall be sold to the

highest bidder who shall make payment for the property at the time of sale. The person

conducting to sale may postpone it if there is inadequate response, in his discretion, and may

reschedule such upon giving the required notice. The person conducting the sale shall give a

certificate of sale to the purchaser and shall make a return to the court reciting details of the sale.

(Forms II-39 and II-40)

(3)

Exemption from Execution.

a)

The court shall only order seizure at sale of such property of the judgment

debtor to satisfy a money judgment, the less of which will not create an immediate

substantive hardship on the immediate family of the judgment debtor. Only property of

the judgment debtor himself may be subject to execution and not property of his family.

b)

The following is considered as exempt property, seizure of which would

by operation of law be considered an immediate substantive hardship:

i)

clothing up to $1,000.00;

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Rule 36

ii)

furniture and bedding up to $2,000.00;

iii)

tools or vehicle up to $2,000.00; and

iv)

homestead exemption up to $10,000.00.

Citation

These rules shall be known as the Shoshone and Arapaho Rules of Civil Procedure and

may be abbreviated SARCP.

History: Adopted 1987. Restated Nov. 1, 2004, by the Shoshone & Arapaho Tribal Court.

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