RULES OF CIVIL PROCEDURE ......................................................................................1 (2024)
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TITLE 2
RULES OF PROCEDURE
CHAPTER 2-2
RULES OF CIVIL PROCEDURE ......................................................................................1
SCOPE AND PURPOSE OF RULES--ONE FORM OF ACTION ....................................1
Rule 1.
Scope of Rules .................................................................................1
Rule 2.
One Form of Action .........................................................................1
COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS,
MOTIONS AND ORDERS .................................................................................................1
Rule 3.
Commencement of Action ...............................................................1
Rule 3.1
Inability to pay fees - Affidavit ........................................................1
Rule 4.
Summons..........................................................................................1
Rule 4.1
Service of Other Process ..................................................................5
Rule 5
Service and Filing of Pleadings and Other Papers ...........................5
Rule 6
Time .................................................................................................6
Rule 7
Pleadings Allowed; Form of Motions ..............................................7
Rule 8
General Rules of Pleadings ..............................................................7
Rule 9
Pleading Special Matters ..................................................................8
Rule 10
Form of Pleadings ............................................................................9
Rule 11
Signing of Pleadings, Motions, and Other Papers;
Representations to Court; Sanctions ................................................9
Rule 12
Defenses and Objections; When and How Presented;
By Pleading or Motion; Motion for Judgment
on the Pleadings .............................................................................11
Rule 13
Counterclaim and Cross-Claim ......................................................13
Rule 14
Third Party Practice .......................................................................14
Rule 15
Amended and Supplemental Pleadings ..........................................15
Rule 16
Pretrial Conferences; Scheduling; Management ............................16
PARTIES ...........................................................................................................................18
Rule 17
Parties Plaintiff and Defendant; Capacity ......................................18
Rule 18
Joinder of Claims and Remedies ....................................................18
Rule 19
Joinder of Persons Needed for Just Adjudication ..........................19
Rule 20
Permissive Joinder of Parties .........................................................20
Rule 21
Misjoinder and Non-Joinder of Parties ..........................................20
Rule 22
Interpleader ....................................................................................20
Rule 23
Class Actions .................................................................................20
Rule 23.1
Derivative Actions by Shareholders ..............................................23
Rule 23.2
Actions Relating to Unincorporated Associations .........................23
Rule 24
Intervention ....................................................................................23
Rule 25
Substitution of Parties ....................................................................24
DEPOSITIONS AND DISCOVERY ................................................................................25
Rule 26
General Provisions Governing Discovery;
Duty of Disclosure .........................................................................25
Rule 27
Depositions Before Action or Pending Appeal ..............................32
Rule 28
Persons Before Whom Depositions May Be Taken .......................33
Rule 29
Stipulations Regarding Discovery Procedure ................................34
Rule 30
Depositions Upon Oral Examination .............................................34
Rule 31
Depositions Upon Written Questions ............................................38
Rule 32
Use of Depositions in Court Proceedings ......................................40
TOC - i
Rule 33
Rule 34
Interrogatories to Parties ................................................................42
Production of Documents and Things and Entry
Upon Land for Inspection and Other Purposes ..............................43
Rule 35
Physical and Mental Examinations of Persons ..............................44
Rule 36
Requests for Admission .................................................................44
Rule 37
Failure to Make or Cooperate in Discovery; Sanctions .................45
TRIALS..............................................................................................................................49
Rule 38
Jury Trial of Right ..........................................................................49
Rule 39
Trial by Jury or by the Court ..........................................................49
Rule 40
Assignment of Cases for Trial .......................................................50
Rule 41
Dismissal of Actions ......................................................................50
Rule 42
Consolidation; Separate Trials .......................................................50
Rule 43
Taking of Testimony ......................................................................51
Rule 44
Proof of Official Record ................................................................51
Rule 44.1
Determination of Foreign Law.......................................................52
Rule 45
Subpoena ........................................................................................52
Rule 46
Exception Unnecessary ..................................................................55
Rule 47
Special Verdicts and Interrogatories ..............................................55
Rule 48
Judgment as a Matter of Law in Actions Tried by Jury;
Alternative Motion for New Trial; Conditional Rulings ...............55
Rule 49
Instructions to Jury: Objection .......................................................57
Rule 50
Findings by the Court; Judgment on Partial Findings ...................57
JUDGMENT ......................................................................................................................57
Rule 51
Judgments; Costs ...........................................................................57
Rule 52
Default............................................................................................59
Rule 53
Summary Judgment .......................................................................59
Rule 54
Declaratory Judgments...................................................................61
Rule 55
Entry of Judgment ..........................................................................61
Rule 56
Recognition and Enforcement of Foreign Judgments ....................61
Rule 57
New Trials; Amendment of Judgments .........................................62
Rule 58
Relief From Judgment or Order .....................................................63
Rule 59
Harmless Error ...............................................................................64
Rule 60
Stay of Proceedings to Enforce a Judgment ..................................64
Rule 61
Inability of a Judge to Proceed .......................................................65
PROVISIONAL AND FINAL REMEDIES .....................................................................65
Rule 62
Seizure of Person or Property ........................................................65
Rule 63
Injunctions......................................................................................65
Rule 63.1
Security: Proceedings Against Sureties .........................................70
Rule 64
Receivers Appointed by Court .......................................................70
Rule 65
Deposit in Court .............................................................................71
Rule 66
Offer of Judgment ..........................................................................71
Rule 67
Execution .......................................................................................71
Rule 68
Process in Behalf of and Against Persons Not Parties ...................71
SPECIAL PROCEEDING .................................................................................................71
Rule 69
Condemnation of Property .............................................................71
Rule 70
Stenographer; Stenographic Report or Transcript
as Evidence ....................................................................................75
Rule 71
Jurisdiction Unaffected ..................................................................75
Rule 72
Rules by Court ...............................................................................75
Rule 73
Name Change .................................................................................76
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CHAPTER 2-3
CIVIL INFRACTION PROCEDURES ...............................................................................1
GENERAL PROVISIONS ..................................................................................................1
§2-3-1
Definitions........................................................................................1
§2-3-2
Application .......................................................................................1
§2-3-3
Rights of Defendant .........................................................................1
INFRACTION PROCEDURES ..........................................................................................2
§2-3-4
Citations ...........................................................................................2
§2-3-5
Preliminary Hearing/Trial ................................................................2
§2-3-6
Remedies ..........................................................................................3
§2-3-7
Failure to Appear .............................................................................4
§2-3-8
Method of Payment of Penalty and Costs ........................................4
§2-3-9
Appeals ............................................................................................4
CHAPTER 2-4
JUVENILE JUSTICE ..........................................................................................................1
§2-4-0
Purpose.............................................................................................1
INTRODUCTORY PROVISIONS......................................................................................1
§2-4-1
Definitions........................................................................................1
§2-4-2
Personal Jurisdiction ........................................................................2
§2-4-3
Extension of Jurisdiction ..................................................................2
§2-4-4
Capacity ...........................................................................................3
§2-4-5
Nature of Juvenile Cases ..................................................................3
§2-4-6
Trial as Adult ...................................................................................3
§2-4-7
Comity..............................................................................................4
§2-4-8
Juvenile Probation Officers ..............................................................4
CUSTODY...........................................................................................................................5
§2-4-9
When Juvenile may be Taken into Custody .....................................4
§2-4-10
Notification of Rights.......................................................................5
§2-4-11
Custody Procedures .........................................................................5
COURT PROCEDURES IN JUVENILE MATTERS ........................................................5
§2-4-12
Petition .............................................................................................5
§2-4-13
Juvenile Proceedings ........................................................................6
§2-4-14
Detention Hearing ............................................................................8
INFORMAL ADJUSTMENT/ADVISORY HEARING .....................................................8
§2-4-15
Informal Adjustment ........................................................................8
§2-4-16
Advisory Hearing .............................................................................9
ADJUDICATORY HEARING/DISPOSITIONAL HEARING ........................................10
§2-4-17
Adjudicatory Hearing .....................................................................10
§2-4-18
Consolidation of Proceedings ........................................................11
§2-4-19
Predisposition Report .....................................................................11
§2-4-20
Dispositional Hearing ....................................................................11
§2-4-21
Jurisdiction Over Parents ...............................................................12
§2-4-22
Status Offenses...............................................................................12
JUVENILE RECORDS .....................................................................................................13
§2-4-23
Maintenance of Records/Confidentiality .......................................13
§2-4-24
Destruction of Records...................................................................13
CHAPTER 2-5
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ADMINISTRATIVE PROCEDURES ................................................................................1
§2-5-1
Definitions........................................................................................1
§2-5-2
Procedural Rules/Policies ................................................................1
RULE MAKING..................................................................................................................1
§2-5-3
Rule Making Procedure ...................................................................1
ADJUDICATIONS ..............................................................................................................3
§2-5-4
Timing ..............................................................................................3
§2-5-5
Exhaustion of Other Remedies ........................................................3
§2-5-6
Notice ...............................................................................................3
§2-5-7
Appearance by Parties ......................................................................3
§2-5-8
Submission of Evidence ...................................................................3
§2-5-9
Hearings ...........................................................................................3
§2-5-10
The Record .......................................................................................4
§2-5-11
Ex Parte Contacts and Conflict of Interests .....................................5
§2-5-12
Exclusion of Certain Employees From Decision .............................6
JUDICIAL REVIEW ...........................................................................................................6
§2-5-13
Petition for Review ..........................................................................6
§2-5-14
Appeal Record .................................................................................6
§2-5-15
Scope and Standard of Review ........................................................7
§2-5-16
Request for Stay ...............................................................................7
CHAPTER 2-6
FORFEITURE .....................................................................................................................1
§ 2-6-1
Definitions........................................................................................1
§ 2-6-2
Forfeiture Actions ............................................................................1
§ 2-6-3
Seizure..............................................................................................1
§ 2-6-4
Forfeiture Determination .................................................................2
CHAPTER 2-7
COLLECTION OF DEBTS .................................................................................................1
§2-7-1
Definitions........................................................................................1
§2-7-2
Writ of Attachment/Hearing ............................................................1
§2-7-3
Intervening Creditors .......................................................................1
§2-7-4
Execution of Writ .............................................................................1
§2-7-5
Garnishment .....................................................................................2
§2-7-6
Writ of Recovery ..............................................................................2
§2-7-7
Specific Acts ....................................................................................3
§2-7-8
Service of Writ .................................................................................3
§2-7-9
Exempt Property ..............................................................................3
§2-7-10
Homestead Exemption .....................................................................3
CHAPTER 2-8
RULES OF EVIDENCE ......................................................................................................1
GENERAL PROVISIONS ..................................................................................................1
Rule 1
Scope ................................................................................................1
Rule 2
Purpose and Construction ................................................................1
Rule 3
Rulings on Evidence ........................................................................1
Rule 4
Preliminary Questions ......................................................................1
Rule 5
Limited Admissibility ......................................................................2
Rule 6
Remainder of or Related Writings or Recorded Statements ............2
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JUDICIAL NOTICE ............................................................................................................2
Rule 7
Judicial Notice of Adjudicative Facts ..............................................2
PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS ......................................3
Rule 8
Presumptions in General in Civil Actions and Proceedings ............3
RELEVANCY AND ITS LIMITS ......................................................................................3
Rule 9
Definition of "Relevant Evidence"...................................................3
Rule 10
Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible .....................................................................3
Rule 11
Exclusion of Relevant evidence on Grounds of Prejudice,
Confusion, or Waste of Time ...........................................................3
Rule 12
Character Evidence Not Admissible to Prove Conduct;
Exceptions; Other Crimes ................................................................3
Rule 13
Methods of Proving Character .........................................................4
Rule 14
Habit: Routine Practice ....................................................................4
Rule 15
Subsequent Remedial Measures.......................................................4
Rule 16
Compromise and Offers to Compromise .........................................4
Rule 17
Payment of Medical and Similar Expenses ......................................4
Rule 18
Inadmissibility of Pleas, Plea Discussions, and
Related Statements ...........................................................................4
Rule 19
Liability Insurance ...........................................................................5
Rule 20
Sex Offense Cases; Relevance of Victim’s Past Behavior ..............5
PRIVILEGES .......................................................................................................................6
Rule 21
Claim of Privilege ............................................................................6
Rule 22
Waiver of Privilege ..........................................................................6
Rule 23
Self Incrimination ............................................................................7
Rule 24
Advocate-Client Privilege ................................................................7
Rule 25
Diagnosis or Treatment ....................................................................7
Rule 26
Husband-Wife Privilege ...................................................................8
Rule 27
Religious Privilege ...........................................................................8
Rule 28
Public Officer Privilege ...................................................................8
WITNESSES........................................................................................................................8
Rule 29
General Rule of Competency ...........................................................8
Rule 30
Lack of Personal Knowledge ...........................................................8
Rule 31
Oath or Affirmation .........................................................................9
Rule 32
Interpreters .......................................................................................9
Rule 33
Competency of Judge as Witness.....................................................9
Rule 34
Competency of Juror as Witness ......................................................9
Rule 35
Who May Impeach ...........................................................................9
Rule 36
Evidence of Character and Conduct of Witness ..............................9
Rule 37
Impeachment by Evidence of Conviction of Crime .......................10
Rule 38
Religious Beliefs or Opinions ........................................................11
Rule 39
Mode and Order of Interrogation and Presentation........................11
Rule 40
Writing Used to Refresh Memory ..................................................11
Rule 41
Prior Statements of Witnesses........................................................12
Rule 42
Calling and Interrogation of Witnesses by Court...........................12
Rule 43
Exclusion of Witnesses ..................................................................12
OPINIONS AND EXPERT TESTIMONY .......................................................................12
Rule 44
Opinion Testimony by Lay Witnesses ...........................................12
Rule 45
Testimony by Experts ....................................................................13
Rule 46
Bases of Opinion Testimony by Experts........................................13
TOC - v
Rule 47
Opinion on Ultimate Issue .............................................................13
Rule 48
Disclosure of Facts or Data Underlying Expert Opinion ...............13
Rule 49
Court Appointed Experts ...............................................................13
HEARSAY.........................................................................................................................14
Rule 50
Definitions......................................................................................14
Rule 51
Hearsay Rule ..................................................................................15
Rule 52
Hearsay Exceptions; Availability of Declarant Immaterial ...........15
Rule 53
Hearsay Exceptions; Declarant Unavailable ..................................17
Rule 54
Hearsay Within Hearsay ................................................................19
Rule 55
Attacking and Supporting Credibility of Declarant .......................19
AUTHENTICATION AND IDENTIFICATION..............................................................20
Rule 56
Requirement of Authentication or Identification ...........................20
Rule 57
Self-Authentication ........................................................................21
Rule 58
Subscribing Witness' Testimony Unnecessary ..............................22
CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS .........................22
Rule 59
Definitions......................................................................................22
Rule 60
Requirement of Original ................................................................23
Rule 61
Admissibility of Duplicates ...........................................................23
Rule 62
Admissibility of Other Evidence of Contents ................................23
Rule 63
Public Records ...............................................................................23
Rule 64
Summaries......................................................................................24
Rule 65
Testimony or Written Admission of Party .....................................24
Rule 66
Functions of Court and Jury ...........................................................24
MISCELLANEOUS RULES.............................................................................................24
Rule 67
Applicability of Rules ....................................................................24
CHAPTER 2-9
APPELLATE PROCEDURES ............................................................................................1
§2-9-1
Definitions........................................................................................1
§2-9-2
Notice of Appeal ..............................................................................1
§2-9-3
Briefs ................................................................................................1
§2-9-4
Record ..............................................................................................2
§2-9-5
Costs.................................................................................................2
§2-9-6
Stay ..................................................................................................2
§2-9-7
Standard of Review; Disposition .....................................................2
§2-9-8
Opinion ............................................................................................3
§2-9-9
Judgments ........................................................................................3
§2-9-10
Immediate Appeals ..........................................................................3
§2-9-11
Full Appeal .......................................................................................4
§2-9-12
Clerical Mistakes .............................................................................4
§2-9-13
Reconsideration................................................................................4
§2-9-14
Finality of Decision / Motion to Reinstate Appeal ..........................5
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TITLE 2
RULES OF PROCEDURE
CHAPTER 2-2
RULES OF CIVIL PROCEDURE
SCOPE AND PURPOSE OF RULES--ONE FORM OF ACTION
Rule 1
Scope of Rules
These rules govern the procedure in the Nez Perce Tribal courts in all suits of a civil
nature whether cognizable as cases at law or in equity. They shall be construed and administered
to secure determination of every action as just, speedy, and inexpensive as possible.
Rule 2
One Form of Action
There shall be one form of action to be known as "civil action."
COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS
AND ORDERS
Rule 3
Commencement of Action
A civil action is commenced by filing a complaint with the Court.
Rule 3.1
Inability to pay fees – Affidavit
(a)
The Tribal Court may authorize the commencement or defense of any civil suit,
action or proceeding, or an appeal therein, without prepayment fees, costs or security therefor, by
any person who makes affidavit that he is indigent and unable to pay such costs or give security
therefor, whenever the Court finds, after informal inquiry, the person to be indigent for the
purpose of prepayment of fees, costs or security in a civil action or proceeding. Such affidavit
shall state the nature of the action, defense or appeal and the affiant's belief he is entitled to
redress.
(b)
No fees, costs or security shall be waived for an appeal if the Court certifies in
writing that the action is frivolous or malicious or that it is not taken in good faith.
(c)
The Court may, upon the filing of a like affidavit and a finding of indigency,
direct that the expense of printing the transcript or record on appeal be paid out of the Court
fund.
(d)
The Court may retroactively require payment for any fees, costs or security which
may have been waived in the case if the allegation of poverty is untrue, or if the Court is satisfied
that the action is frivolous or malicious, or if the action is not taken in good faith.
Rule 4
Summons
(a)
Form. The summons shall be signed by the clerk, bear the seal of the Court,
identify the Court and the parties, be directed to the defendant, and state the name and address of
the plaintiff's attorney, or, if unrepresented, of the plaintiff. It shall also state the time period
within which the defendant must appear and defend and notify the defendant that failure to do so
Rules of Civil Procedure - 1
will result in a judgment by default against the defendant for the relief demanded in the
complaint. The Court may allow a summons to be amended.
(b)
Issuance. Upon or after filing the complaint, the plaintiff may present a summons
to the clerk for signature and seal. If the summons is in proper form, the clerk shall sign, seal,
and issue it to the plaintiff for service on the defendant. A summons, or a copy of the summons
if addressed to multiple defendants, shall be issued for each defendant to be served.
(c)
(d)
Service With Complaint; By Whom Made.
(1)
A summons shall be served together with a copy of the complaint. The
plaintiff is responsible for service of a summons and complaint within the
time allowed under subsection (l) and shall furnish the person effecting
service with the necessary copies of the summons and complaint.
(2)
Service may be affected by any person who is not a party and who is at
least eighteen (18) years of age. At the request of the plaintiff, however,
the Court may direct that service be effected by a tribal police officer, or
other person or officer specially appointed by the Court for that purpose.
Waiver of Service; Duty to Save Costs of Service; Request to Waive.
(1)
A defendant who waives service of summons does not thereby waive any
objection to the jurisdiction of the Court over the person of the defendant.
(2)
An individual, corporation, or association that is subject to service under
subsection (e), (f), or (h) and that receives notice of an action in the
manner provided in this subpart has a duty to avoid unnecessary costs of
serving the summons. To avoid costs, the plaintiff may notify such a
defendant of the commencement of the action and request that the
defendant waive service of a summons. The notice and request shall:
(A)
be in writing and be addressed directly to the defendant, if an
individual, or to an officer or managing or general agent (or other
agent authorized by appointment or law to receive service of
process) of a defendant subject to service under subsection (h);
(B)
be dispatched through first-class mail or other reliable means;
(C)
be accompanied by a copy of the complaint and shall identify the
Court in which it has been filed;
(D)
inform the defendant of the consequences of compliance and of a
failure to comply with the request;
(E)
set forth the date on which the request is sent;
(F)
allow the defendant a reasonable time to return the waiver, which
shall be at least thirty (30) days from the date on which the request
is sent, or sixty (60) days from that date if the defendant is
addressed outside the United States; and
Rules of Civil Procedure - 2
(G)
provide the defendant with an extra copy of the notice and request,
as well as a prepaid means of compliance in writing.
If a defendant located within the United States fails to comply with a
request for waiver made by a plaintiff located within the United States, the
Court shall impose the costs subsequently incurred in effecting service on
the defendant unless good cause for the failure be shown.
(3)
A defendant that, before being served with process, timely returns a
waiver so requested is not required to serve an answer to the complaint
until sixty (60) days after the date on which the request for waiver of
service was sent, or ninety (90) days after that date if the defendant was
addressed outside the United States.
(4)
When the plaintiff files a waiver of service with the Court, the action shall
proceed, except as provided in subpart (3), as if a summons and complaint
had been served at the time of filing the waiver, and no proof of service
shall be required.
(5)
The costs to be imposed on a defendant under subpart (2) for failure to
comply with a request to waive service under subsection (e), (f), or (h),
together with the costs, including a reasonable attorney's fee, of any
motion required to collect the costs of service of summons shall include
the costs subsequently incurred in effecting service.
(e)
Service. Service upon any person from whom a waiver has not been obtained and
filed, other than an infant or an incompetent person, may be effected by delivering a copy of the
summons and of the complaint to the individual personally or by leaving copies thereof at the
individual's dwelling house or usual place of abode with some person of suitable age and
discretion then residing therein or by delivering a copy of the summons and of the complaint to
an agent authorized by appointment or by law to receive service of process.
(f)
Service Upon Individuals in a Foreign Country. Unless otherwise provided by
federal law, service upon an individual from whom a waiver has not been obtained and filed,
other than an infant or an incompetent person, may be effected in a place not within the United
States:
(1)
by any internationally agreed means reasonably calculated to give notice,
such as those means authorized by the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents; or
(2)
if there is no internationally agreed means of service or the applicable
international agreement allows other means of service, provided that
service is reasonably calculated to give notice:
(A)
in the manner prescribed by the law of the foreign country for
service in that country in an action in any of its courts of general
jurisdiction;
(B)
as directed by the foreign authority in response to a letter rogatory
or letter of request;
Rules of Civil Procedure - 3
(C)
unless prohibited by the law of the foreign country, by:
(i)
delivery to the individual personally of a copy of the
summons and the complaint; or
(ii) any form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the Court to the party to be
served; or
(3)
by other means not prohibited by international agreement as may be
directed by the Court.
(g)
Service Upon Minors and Incompetent Persons. Service upon a minor or an
incompetent person shall be effected by service on the minor or incompetent person and the
parent or legal guardian of the minor or incompetent person.
(h)
Service Upon Corporations and Associations. Unless otherwise provided by
federal law, service upon a domestic or foreign corporation or upon a partnership or other
unincorporated association that is subject to suit under a common name, and from which a
waiver of service has not been obtained and filed, shall be effected:
(i)
(1)
in the United States in the manner prescribed for individuals by subsection
(e), or by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or to any other agent authorized by
appointment or by law to receive service of process; or
(2)
in a place not within the United States in any manner prescribed for
individuals by subsection (f) except personal delivery as provided in
subpart (2)(C)(i) thereof.
Service Upon Foreign, State or Local Governments
(1)
Service upon a foreign state or a political subsection, agency, or
instrumentality thereof shall be in accordance with the procedures for
federal and state courts as provided in 28 U.S.C. ' 1608.
(2)
Service upon a state or municipal corporation or other government
organization subject to suit shall be effected by delivering a copy of the
summons and the complaint to its chief executive officer or by serving the
summons and complaint in the manner prescribed by the law of that state
for the service of summons or other like process upon any such defendant.
(j)
Territorial Limits of Effective Service. Service of a summons on a person
otherwise subject to the jurisdiction of the Nez Perce Tribal Court may be made anywhere in the
United States or elsewhere if effected under this rule.
(k)
Proof of Service. If service is not waived, the person effecting service shall make
proof thereof to the Court. If service is made by a person other than a tribal police officer, the
person shall make affidavit thereof. Proof of service in a place not within the United States shall,
if effected under subpart (1) of subsection (f), be made pursuant to the applicable treaty or
convention, and shall, if effected under subpart (2) or (3) thereof, include a receipt signed by the
Rules of Civil Procedure - 4
addressee or other evidence of delivery to the addressee satisfactory to the Court. Failure to
make proof of service does not affect the validity of the service. The Court may allow proof of
service to be amended.
(l)
Time Limit for Service. If service of the summons and complaint is not made
upon a defendant within one hundred and twenty (120) days after the filing of the complaint, the
Court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be effected within a specified time;
provided that if the plaintiff shows good cause for the failure, the Court shall extend the time for
service for an appropriate period. This subsection does not apply to service in a foreign county
pursuant to subsection (f) or (i)(1) of this rule.
(m)
Seizure of Property; Service of Summons Not Feasible. The Court may assert
jurisdiction over property. Notice to claimants of the property shall then be sent in the manner
provided by the statute or by service of a summons under this rule.
Rule 4.1
Service of Other Process
(a)
Generally. Process other than a summons as provided in Rule 4 or subpoena as
provided in Rule 45 shall be served by a tribal police officer within the reservation, or a person
specially appointed for that purpose, who may serve anywhere in the United States. Proof of
service shall be made as provided in Rule 4(1). The process may be served anywhere within the
United States.
(b)
Enforcement of Orders; Commitment for Civil Contempt. An order of civil
commitment of a person held to be in contempt of a decree or injunction issued by the Court may
be served and enforced anywhere in the United States.
Rule 5
Service and Filing of Pleadings and Other Papers
(a)
Service; When Required. Every pleading subsequent to the original complaint
unless the Court otherwise orders because of numerous defendants, every paper relating to
discovery required to be served upon a party unless the Court otherwise orders, every written
motion other than one which may be heard ex parte, and every written notice, appearance,
demand, 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 parties in default for failure to appear
except that pleadings asserting new or additional claims for relief against them shall be served
upon them in the manner provided for service of summons in Rule 4.
In an action begun by seizure of property, in which no person need be or is named as
defendant, any service required to be made prior to the filing of an answer, claim or appearance
shall be made upon the person having custody or possession of the property at the time of its
seizure.
(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 is ordered by the Court. Service upon the attorney or upon a party
shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or
party at the attorney's or party's 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 the attorney's or party's office with a clerk or one in charge, leaving it in
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a conspicuous place therein; or, if the office is closed or the person to be served has no office,
leaving it at the person's 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; Numerous Defendants. In any action in which there are unusually large
numbers of defendants, the Court, upon motion 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; Certificate of Service. All papers after the complaint required to be served
upon a party, together with a certificate of service, shall be filed with the Court within a
reasonable time after service, but the court may on motion of a party or on its own initiative
order that depositions upon oral examination and interrogatories, requests for documents,
requests for admission, and answers and responses thereto not be filed unless on order of the
court or for use in the proceeding.
(e)
Filing with the Court Defined. The filing of papers with the Court as required by
these rules shall be made by filing them with the clerk of the Court, except that the judge may
permit the papers to be filed with the judge, in which event the judge shall note thereon the filing
date and forthwith transmit them to the office of the clerk. The Court may permit papers to be
filed by facsimile or other electronic means. The clerk shall not refuse to accept for filing any
paper presented for that purpose solely because it is not presented in proper form as required by
these rules or practices.
Rule 6
Time
(a)
Enlargement. When by these rules or by a notice given thereunder or by order 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 the request 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;
but it may not extend the time for taking any action under Rules 48(b) and (c)(2), 50 (b), 57(b),
(d) and (e), and 58(b), except to the extent and under the conditions stated in them.
(b)
For Motions--Affidavits. A written motion, other than one which may be heard
ex parte, and notice of the hearing thereof shall be served no later than five (5) 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 57(c), opposing affidavits may be served not later than one (1) day before the
hearing, unless the Court permits them to be served at some other time.
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(c)
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 paper upon the party and the notice or paper is served upon the party by mail,
three (3) days shall be added to the prescribed period.
Rule 7
Pleadings Allowed; Form of Motions
(a)
Pleadings. There shall be a complaint and an answer; a reply to a counterclaim,
denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a thirdparty complaint, if a person who was not an original party is summoned under the provisions of
Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall
be allowed, except that the Court may order a reply to an answer or a third-party answer.
(b)
Motions and Other Papers.
(1)
An application to the Court for an order shall be by motion which, unless
made during a hearing or trial, shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order
sought. The requirement of writing is fulfilled if the motion is stated in a
written notice of the hearing of the motion.
(2)
The rules applicable to captions and other matters of form of pleadings
apply to all motions and other papers provided for by these rules.
(3)
All motions shall be signed in accordance with Rule 11.
(c)
Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for
insufficiency of a pleading shall not be used.
Rule 8
General Rules of Pleadings
(a)
Claims for Relief. A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party claim, shall contain:
(1)
a short and plain statement of the grounds upon which the Court's
jurisdiction depends, unless the Court already has jurisdiction and the
claim needs no new grounds of jurisdiction to support it;
(2)
a short and plain statement of the claim showing that the pleader is entitled
to relief; and
(3)
a demand for judgment for the relief the pleader seeks.
Relief in the alternative or of several different types may be demanded.
(b)
Defenses; Form of Denials. A party shall state in short and plain terms the party's
defenses to each claim asserted and shall admit or deny the averments upon which the adverse
party relies. If a party is without knowledge or information sufficient to form a belief as to the
truth of an averment, the party shall so state and this has the effect of a denial. Denials shall
fairly meet the substance of the averments denied. When a pleader intends in good faith to deny
only a part or a qualification of an averment, the pleader shall specify so much of it as is true and
material and shall deny only the remainder. Unless the pleader intends in good faith to
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controvert all the averments of the preceding pleading, the pleader may make denials as specific
denials of designated averments or subparts or may generally deny all the averments except such
designated averments or subparts as the pleader expressly admits; but, when the pleader does so
intend to controvert all its averments, including averments of the grounds upon which the Court's
jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth
in Rule 1.
(c)
Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute
of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a
defense, the Court on terms, if justice so requires, shall treat the pleading as if there had been a
proper designation.
(d)
Effect of Failure to Deny. Averments in a pleading to which a responsive
pleading is required, other than those as to the amount of damage, are admitted when not denied
in the responsive pleading. Averments in a pleading to which no responsive pleading is required
or permitted shall be taken as denied or avoided.
(e)
(f)
Pleading to be Concise and Direct; Consistency.
(1)
Each averment of a pleading shall be simple, concise, and direct. No
technical forms of pleading or motions are required.
(2)
A party may set forth two or more statements of a claim or defense
alternately or hypothetically, either in one count or defense or in separate
counts or defenses. When two or more statements are made in the
alternative and one of the statements if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of one
or more of the alternative statements. A party may also state as many
separate claims or defenses as the party has regardless of consistency and
whether based on legal, equitable, or maritime grounds. All statements
shall be made subject to obligations set forth in Rule 11.
Construction of Pleadings. All pleadings shall be so construed as to do substantial
justice.
Rule 9
Pleading Special Matters.
(a)
Capacity. It is not necessary to aver the capacity of a party to sue or be sued or
the authority of a party to sue or be sued in a representative capacity or the legal existence of an
organized association of persons that is made a party, except to the extent required to show the
jurisdiction of the Court. When a party desires to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in
a representative capacity, the party desiring to raise the issue shall do so by specific negative
averment, which shall include such supporting particulars as are peculiarly within the pleader's
knowledge.
(b)
Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the
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circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be averred generally.
(c)
Conditions Precedent. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions precedent have been performed or
have occurred. A denial of performance or occurrence shall be made specifically and with
particularity.
(d)
Official Document or Act. In pleading an official document or official act it is
sufficient to aver that the document was issued, or the act done in compliance with law.
(e)
Judgment. In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or
decision without setting forth matter showing jurisdiction to render it.
(f)
Time and Place. For the purpose of testing the sufficiency of a pleading,
averments of time and place are material and shall be considered like all other averments of
material matter.
(g)
Special Damage. When items of special damage are claimed, they shall be
specifically stated.
Rule 10
Form of Pleadings
(a)
Caption; Names of Parties. Every pleading shall contain a caption setting forth
the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the
title of the action shall include the names of all the parties, but in other pleadings it is sufficient
to state the name of the first party of each side with an appropriate indication of other parties.
(b)
Subparts; Separate Statements. All averments of claim or defense shall be made
in numbered subparts, the contents of each of which shall be limited as far as practicable to a
statement of a single set of circumstances; and a subpart may be referred to by number in all
succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each
defense other than denials shall be state in a separate count or defense whenever a separation
facilitates the clear presentation of the matters set forth.
Rule 11
Signing of Pleadings, Motions, and Other Papers; Representations to Court;
Sanctions
(a)
Signature. Every pleading, written motion and other paper of a party shall be
signed by at least one attorney of record in the attorney's individual name, or if the party is not
represented by an attorney, shall be signed by the party. Each paper shall state the signer's
address and telephone number, if any. Except when otherwise specifically provided by this
code, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be
stricken unless omission of the signature is corrected promptly after being called to the attention
of the attorney or party.
(b)
Representations to Court. By presenting to the Court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
Rules of Civil Procedure - 9
(1)
it is not being presented for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation;
(2)
the claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law;
(3)
the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery; and
(4)
the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or
belief.
(c)
Sanctions. If, after notice and a reasonable opportunity to respond, the Court
determines that subsection (b) has been violated, the Court may, subject to the conditions stated
below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated
subsection (b) or are responsible for the violation.
(1)
(2)
How Initiated.
(A)
By Motion. A motion for sanctions under this rule shall be made
separately from other motions or requests and shall describe the
specific conduct alleged to violate subsection (b). It shall be
served as provided in Rule 5 but shall not be filed with or
presented to the Court unless, within twenty-one (21) days after
service of the motion (or such other period as the Court may
prescribe), the challenged paper, claim, defense, contention,
allegation, or denial is not withdrawn or appropriately corrected. If
warranted, the Court may award to the party prevailing on the
motion the reasonable expenses and attorney's fees incurred in
presenting or opposing the motion. Absent exceptional
circumstances, a law firm shall be held jointly responsible for
violations committed by its partners, associates, and employees.
(B)
On Court's Initiative. On its own initiative, the Court may enter an
order describing the specific conduct that appears to violate
subsection (b) and directing an attorney, law firm, or party to show
cause why it has not violated subsection (b) with respect thereto.
Nature of Sanctions; Limitations. A sanction imposed for violation of this
rule shall be limited to what is sufficient to deter repetition of such
conduct or comparable conduct by others similarly situated. Subject to the
limitations in subparts (A) and (B), the sanction may consist of, or include,
directives of a nonmonetary nature, an order to pay a penalty into court,
or, if imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of some or all of the reasonable attorneys'
fees and other expenses incurred as a direct result of the violation.
(A)
Monetary sanctions may be awarded against a represented party
Rules of Civil Procedure - 10
for a violation of subsection (b)(2).
(B)
(3)
Monetary sanctions may not be awarded on the Court's initiative
unless the Court issues its order to show cause before a voluntary
dismissal or settlement of the claims made by or against the party
which is, or whose attorneys are, to be sanctioned.
Order. When imposing sanctions, the Court shall describe the conduct
determined to constitute a violation of this rule and explain the basis for
the sanction imposed.
(d)
Inapplicability to Discovery. Subsections (a) through (c) of this rule do not apply
to disclosures and discovery requests, responses, objections, and motions that are subject to the
provisions of Rules 26 through 37.
Rule 12
(a)
Defenses and Objections; When and How Presented; By Pleading or Motion;
Motion for Judgment on the Pleadings
When Presented.
(1)
A defendant shall serve an answer:
(A)
within twenty (20) days after being served with the summons and
complaint; or
(B)
if service of the summons has been timely waived on request under
Rule 4(d), within sixty (60) days after the date when the request for
waiver was sent, or within ninety (90) days after that date if the
defendant was addressed outside the United States.
(2)
A party served with a pleading stating a cross-claim against that party
shall serve an answer thereto within twenty (20) days after being served.
The plaintiff shall serve a reply to a counterclaim in the answer within
twenty (20) days after service of the answer, or, if a reply is ordered by the
Court, within twenty (20) days after service of the order, unless the order
otherwise directs.
(3)
Unless a different time is fixed by court order, the service of a motion
permitted under this rule alters these periods of time as follows:
(A)
if the Court denies the motion or postpones its disposition until the
trial on the merits, the responsive pleading shall be served within
ten (10) days after notice of the Court's action; or
(B)
if the Court grants a motion for a more definite statement the
responsive pleading shall be served within ten (10) days after the
service of the more definite statement.
(b)
How Presented. Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in
the responsive pleading thereto if one is required, except that the following defenses may at the
Rules of Civil Procedure - 11
option of the pleader be made by motion:
(1)
lack of jurisdiction over the subject matter;
(2)
lack of jurisdiction over the person;
(3)
improper venue;
(4)
insufficiency of process;
(5)
insufficiency of service of process;
(6)
failure to state a claim upon which relief can be granted; or
(7)
failure to join a party under Rule 19. A motion making any of these
defenses shall be made before pleading if a further pleading is permitted.
No defense or objection is waived by being joined with one or more other defenses or objections
in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the
adverse party is not required to serve a responsive pleading, the adverse party may assert at the
trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense
numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded by the Court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 53, and all
parties shall be given reasonable opportunity to present all material made pertinent to such a
motion by Rule 53.
(c)
Motion for Judgment on the Pleadings. After the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a
motion for judgment on the pleadings, matters outside the pleadings are presented to and not
excluded by the Court, the motion shall be treated as one for summary judgment and disposed of
as provided in Rule 53, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 53.
(d)
Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subsection
(b) of this rule, whether made in a pleading or by motion, and the motion for judgment
mentioned in subsection (c) of this rule shall be heard and determined before trial on application
of any party, unless the Court orders that the hearing and determination thereof be deferred until
the trial.
(e)
Motion for More Definite Statement. If a pleading to which a responsive pleading
is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement before interposing a
responsive pleading. The motion shall point out the defects complained of and the details
desired. If the motion is granted and the order of the Court is not obeyed within ten (10) days
after notice of the order or within such other time as the Court may fix, the Court may strike the
pleading to which the motion was directed or make such order as it deems just.
(f)
Motion to Strike. Upon motion by a party before responding to a pleading or, if
no responsive pleading is permitted by these rules, upon motion made by a party within twenty
(20) days after the service of the pleading upon the party or upon the Court's own initiative at
Rules of Civil Procedure - 12
any time, the Court may order stricken from any pleading any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.
(g)
Consolidation of Defenses in Motion. A party who makes a motion under this
rule may join with it any other motions herein provided for and then available to the party. If a
party makes a motion under this rule but omits therefrom any defense or objection then available
to the party which this rule permits to be raised by motion, the party shall not thereafter make a
motion based on the defense or objection so omitted, except a motion as provided in subsection
(h)(2) hereof on any of the grounds there stated.
(h)
Waiver or Preservation of Certain Defenses.
(1)
Rule 13
A defense of lack of jurisdiction over the person, improper venue,
insufficiency of process, or insufficiency of service of process is waived:
(A)
if omitted from a motion in the circumstances described in
subsection (g); or
(B)
if it is neither made by motion under this rule nor included in the
responsive pleading or an amendment thereof permitted by Rule
15(a) to be made as a matter of course.
(2)
A defense of failure to state a claim upon which relief can be granted, a
defense of failure to join a party indispensable under Rule 19, and the
objection of failure to state a legal defense to a claim may be made in any
pleading permitted or ordered under Rule 7(a), or by motion for judgment
on the pleadings, or at the trial on the merits.
(3)
Whenever it appears by suggestion of the parties or otherwise that the
Court lacks jurisdiction of the subject matter, the Court shall dismiss the
action.
Counterclaim and Cross-Claim
(a)
Compulsory Counterclaims. A pleading shall state as a counterclaim any claim
which at the time of serving the pleading the pleader has against any opposing party, if it arises
out of the transaction or occurrence that is the subject matter of the opposing party's claim and
does not require for its adjudication the presence of third parties of whom the Court cannot
acquire jurisdiction. But the pleader need not state the claim if:
(1)
at the time the action was commenced the claim was the subject of another
pending action; or
(2)
the opposing party brought suit upon the claim by attachment or other
process by which the Court did not acquire jurisdiction to render a
personal judgment on that claim, and the pleader is not stating any
counterclaim under this Rule 13.
(b)
Permissive Counterclaims. A pleading may state as a counter claim any claim
against an opposing party not arising out of the transaction or occurrence that is the subject
matter of the opposing party's claim.
Rules of Civil Procedure - 13
(c)
Counterclaim Exceeding opposing Claim. A counterclaim may or may not
diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in
amount or different in kind from that sought in the pleading of the opposing party.
(d)
Counterclaim Maturing or Acquired After Pleading. A claim which either
matured or was acquired by the pleader after serving a pleading may, with the permission of the
Court, be presented as a counterclaim by supplemental pleading.
(e)
Omitted Counterclaim. When a pleader fails to set up a counterclaim through
oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave
of court set up the counterclaim by amendment.
(f)
Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject
matter either of the original action or of a counterclaim therein or relating to any property that is
the subject matter of the original action. Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim
asserted in the action against the cross-claimant.
(g)
Joinder of Additional Parties. Persons other than those made parties to the
original action may be made parties to a counterclaim or cross-claim in accordance with the
provisions of Rules 19 and 20.
(h)
Separate Trials; Separate Judgments. If the Court orders separate trials as
provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in
accordance with the terms of Rule 51(b) when the Court has jurisdiction so to do, even if the
claims of the opposing party have been dismissed or otherwise disposed of.
Rule 14
Third Party Practice
(a)
When Defendant May Bring in Third Party. At any time after commencement of
the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be
served upon a person not a party to the action who is or may be liable to the third-party plaintiff
for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff
need not obtain leave to make the service if the third-party plaintiff files the third-party
complaint not later than ten (10) days after serving the original answer. Otherwise the thirdparty plaintiff must obtain leave on motion upon notice to all parties to the action. The person
served with the summons and third-party complaint, hereinafter called the third-party defendant,
shall make any defenses to the third-party plaintiff's claim as provided in Rule 12 and any
counter-claims against the third-party plaintiff and cross-claims against other third-party
defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any
defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant
may also assert any claim against the plaintiff arising out of the transaction or occurrence that is
the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may
assert any claim against the third-party defendant arising out of the transaction or occurrence that
is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party
defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and
cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for
its severance or separate trial. A third-party defendant may proceed under this rule against any
person not a party to the action who is or may be liable to the third-party defendant for all or part
of the claim made in the action against the third-party defendant.
Rules of Civil Procedure - 14
(b)
When Plaintiff May Bring in Third Party. When a counterclaim is asserted
against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances
which under this rule would entitle a defendant to do so.
Rule 15
Amended and Supplemental Pleadings
(a)
Amendments. A party may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not been placed upon the trial calendar, the
party may so amend it at any time within twenty (20) days after it is served. Otherwise a party
may amend the party's pleading only by leave of court or by written consent of the adverse party;
and leave shall be freely given when justice so requires. A party shall plead in response to an
amended pleading within the time remaining for response to the original pleading or within ten
(10) days after service of the amended pleading, whichever period may be the longer, unless the
Court otherwise orders.
(b)
Amendments to Conform to the Evidence. When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but failure to amend does not affect the
result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the Court may allow the pleadings to be amended and
shall do so freely when the presentation of the merits of the action will be subserved thereby and
the objecting party fails to satisfy the Court that the admission of such evidence would prejudice
the party in maintaining the party's action or defense upon the merits. The Court may grant a
continuance to enable the objecting party to meet such evidence.
(c)
Relation Back of Amendments. An amendment of a pleading relates back to the
date of the original pleading when:
(1)
relation back is permitted by the law that provides the statute of limitations
applicable to the action;
(2)
the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in
the original pleading; or
(3)
the amendment changes the party or the naming of the party against whom
a claim is asserted if the foregoing provision (2) is satisfied and, within the
period provided by Rule 4(l) for service of the summons and complaint,
the party to be brought in by amendment (A) has received such notice of
the institution of the action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew or should have known
that, but for a mistake concerning the identity of the proper party, the
action would have been brought against the party.
(d)
Supplemental Pleadings. Upon motion of a party the Court may, upon reasonable
notice and upon such terms as are just, permit the party to serve a supplemental pleading setting
forth transactions or occurrences or events which have happened since the date of the pleading
sought to be supplemented. Permission may be granted even though the original pleading is
Rules of Civil Procedure - 15
defective in its statement of claim for relief or defense. If the Court deems it advisable that the
adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
Rule 16
Pretrial Conferences; Scheduling; Management
(a)
Pretrial Conferences; Objectives. In any action, the Court may in its discretion
direct the attorneys for the parties and any unrepresented parties to appear before it for a
conference or conferences before trial for such purposes as:
(1)
expediting the disposition of the action;
(2)
establishing early and continuing control so that the case will not be
protracted because of lack of management;
(3)
discouraging wasteful pretrial activities;
(4)
improving the quality of the trial through more thorough preparation, and;
(5)
facilitating the settlement of the case.
(b)
Scheduling and Planning. Except in categories of actions exempted by court rule
as inappropriate, the judge shall after receiving the report from the parties under Rule 26(f) or
after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling
conference, telephone, mail, or other suitable means, enter a scheduling order that limits the
time:
(1)
to join other parties and to amend the pleadings;
(2)
to file motions; and
(3)
to complete discovery.
The scheduling order also may include:
(4)
modifications of the times for disclosures under Rules 26(a) and 26(e)(1)
and of the extent of discovery to be permitted;
(5)
the date or dates for conferences before trial, a final pretrial conference,
and trial; and
(6)
any other matters appropriate in the circumstances of the case.
The order shall issue as soon as practicable but in any event within ninety (90) days after the
appearance of a defendant and within one hundred and twenty (120) days after the complaint has
been served on a defendant. A schedule shall not be modified except upon a showing of good
cause and by leave of the judge.
(c)
Subjects for Consideration at Pretrial Conferences. At any conference under this
rule consideration may be given, and the Court may take appropriate action, with respect to:
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(1)
the formulation and simplification of the issues, including the elimination
of frivolous claims or defenses;
(2)
the necessity or desirability of amendments to the pleadings;
(3)
the possibility of obtaining admissions of fact and of documents which
will avoid unnecessary proof, stipulations regarding the authenticity of
documents, and advance rulings from the Court on the admissibility of
evidence;
(4)
the avoidance of unnecessary proof and of cumulative evidence, and
limitation or restrictions on the use of testimony under the Rules of
Evidence;
(5)
the appropriateness and timing of summary adjudication under Rule 53;
(6)
the control and scheduling of discovery, including orders affecting
disclosures and discovery pursuant to Rule 26 and Rules 29 through 37;
(7)
the identification of witnesses and documents, the need and schedule for
filing and exchanging pretrial briefs, and the date or dates for further
conferences and for trial;
(8)
settlement and the use of special procedures to assist in resolving the
dispute when authorized by this code;
(9)
the form and substance of the pretrial order;
(10)
the disposition of pending motions;
(11)
the need for adopting special procedures for managing potentially difficult
or protracted actions that may involve complex issues, multiple parties,
difficult legal questions, or unusual proof problems;
(12)
an order for a separate trial pursuant to Rule 42(b) with respect to a claim,
counterclaim, cross-claim, or third-party claim, or with respect to any
particular issue in the case;
(13)
an order directing a party in the trial with respect to a manageable issue
that could, on the evidence, be the basis for a judgment as a matter of law
under Rule 48(a) or a judgment on partial findings under Rule 50(c);
(14)
an order establishing a reasonable limit on the time allowed for presenting
evidence; and
(15)
such other matters as may facilitate the just, speedy, and inexpensive
disposition of the action.
At least one of the attorneys for each party participating in any conference before trial shall have
authority to enter into stipulations and to make admissions regarding all matters that the
participants may reasonably anticipate may be discussed. If appropriate, the Court may require
that a party or its representative be present or reasonably available by telephone in order to
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consider possible settlement of the dispute.
(d)
Final Pretrial Conference. Any final pretrial conference shall be held as close to
the time of trial as reasonable under the circumstances. The participants at any such conference
shall formulate a plan for trial, including a program for facilitating the admission of evidence.
The conference shall be attended by at least one of the attorneys who will conduct the trial for
each of the parties and by any unrepresented parties.
(e)
Pretrial Orders. After any conference held pursuant to this rule, an order shall be
entered reciting the action taken. This order shall control the subsequent course of the action
unless modified by a subsequent order. The order following a final pretrial conference shall be
modified only to prevent manifest injustice.
(f)
Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial
order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or
if a party or party's attorney is substantially unprepared to participate in the conference, or if a
party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's
own initiative, may make such orders with regard thereto as are just, and among others any of the
orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the
judge shall require the party or the attorney representing the party or both to pay the reasonable
expenses incurred because of any noncompliance with this rule, including attorney's fees, unless
the judge finds that the noncompliance was substantially justified or that other circumstances
make an award of expenses unjust.
PARTIES
Rule 17
Parties Plaintiff and Defendant; Capacity
(a)
Real Party in Interest. Every action shall be prosecuted in the name of the real
party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party
with whom or in whose name a contract has been made for the benefit of another may sue in that
person's own name without joining the party for whose benefit the action is brought and when a
statute of the United States so provides, an action for the use or benefit of another shall be
brought in the name of the United States. No action shall be dismissed on the ground that it is
not prosecuted in the name of the real party in interest until a reasonable time has been allowed
after objection for ratification of commencement of the action by, or joinder or substitution of,
the real party in interest; and such ratification, joinder, or substitution shall have the same effect
as if the action had been commenced in the name of the real party in interest.
(b)
Infants or Incompetent Persons. Whenever an infant or incompetent person has a
representative, such as a general guardian, committee, conservator, or other like fiduciary, the
representative may sue or defend on behalf of the infant or incompetent person. An infant or
incompetent person who does not have a duly appointed representative may sue by a next friend
or by a guardian ad litem. The Court shall appoint a guardian ad litem for an infant or
incompetent person not otherwise represented in an action or shall make such other order as it
deems proper for the protection of the infant or incompetent person.
Rule 18
Joinder of Claims and Remedies
(a)
Joinder of Claims. A party asserting a claim to relief as an original claim,
counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate
claims, as many claims, legal, or equitable, as the party has against an opposing party.
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(b)
Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one
heretofore cognizable only after another claim has been prosecuted to a conclusion, the two
claims may be joined in a single action; but the Court shall grant relief in that action only in
accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a
claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff,
without first having obtained a judgment establishing the claim for money.
Rule 19
Joinder of Persons Needed for Just Adjudication
(a)
Persons to be Joined if Feasible. A person who is subject to service of process
and whose joinder will not deprive the Court of jurisdiction over the subject matter of the action
shall be joined as a party in the action if:
(1)
in the person's absence complete relief cannot be accorded among those
already parties; or
(2)
the person claims an interest relating to the subject of the action and is so
situated that the disposition of the action in the person's absence may:
(A)
as a practical matter impair or impede the person's ability to protect
that interest; or
(B)
leave any of the persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations
by reason of the claimed interest.
If the person has not been so joined, the Court shall order that the person be made a party. If the
person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in
a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that
party would render the venue of the action improper, that party shall be dismissed from the
action.
(b)
Determination by Court Whenever Joinder Not Feasible. If a person as described
in subsection (a)(1)-(2) hereof cannot be made a party, the Court shall determine whether in
equity and good conscience the action should proceed among the parties before it, or should be
dismissed, the absent person being thus regarded as indispensable. The factors to be considered
by the Court include:
(c)
(1)
to what extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties;
(2)
the extent to which, by protective provision in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or
avoided;
(3)
whether a judgment rendered in the person's absence will be adequate; and
(4)
whether the plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.
Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall
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state the names, if known to the pleader, of any persons as described in subsection (a)(1)-(2)
hereof who are not joined, and the reasons why they are not joined.
(d)
Rule 20
Exception of Class Actions. This rule is subject to the provisions of Rule 23.
Permissive Joinder of Parties
(a)
Permissive Joinder. All persons may join in one action as plaintiffs if they assert
any right to relief jointly, severally, or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any question of law or fact
common to all these persons will arise in the action. All persons may be joined in one action as
defendants if there is asserted against them jointly, severally, or in the alternative, any right to
relief in respect of or arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all defendants will arise in the action.
A plaintiff or defendant need not be interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to their respective liabilities.
(b)
Separate Trials. The Court may make such orders as will prevent a party from
being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party
asserts no claim and who asserts no claim against the party, and may order separate trials or
make other orders to prevent delay or prejudice.
Rule 21
Misjoinder and Non-Joinder of Parties
Misjoinder of parties is not ground for dismissal of action. Parties may be dropped or
added by order of the Court on motion of any party or of its own initiative at any stage of the
action and on such terms as are just. Any claim against a party may be severed and proceeded
with separately.
Rule 22
Interpleader
Persons having claims against the plaintiff may be joined as defendants and required to
interplead when their claims are such that the plaintiff is or may be exposed to double or multiple
liability. It is not ground for objection to the joinder that the claims of the several claimants or
the titles on which their claims depend do not have a common origin or are not identical but are
adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable
in whole or in part to any or all of the claimants. A defendant exposed to similar liability may
obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule
supplement and do not in any way limit the joinder of parties permitted in Rule 20.
Rule 23
Class Actions
(a)
Prerequisite to a Class Action. One or more members of a class may sue or be
sued as representative parties on behalf of all only if:
(1)
the class is so numerous that joinder of all members is impracticable;
(2)
there are questions of law or fact common to the class;
(3)
the claims or defenses of the representative parties are typical of the
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claims or defenses of the class; and
(4)
the representative parties will fairly and adequately protect the interests of
the class.
(b)
Class Actions Maintainable. An action may be maintained as a class action if the
prerequisites of subsection (a) are satisfied, and in addition:
(1)
the prosecution of separate actions by or against individual members of
the class would create a risk of:
(A)
inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible
standards of conduct for the party opposing the class;
(B)
adjudications with respect to individual members of the class
which would as a practical matter be dispositive of the interests of
the other members not parties to the adjudications or substantially
impair or impede their ability to protect their interests;
(2)
the party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the
class as a whole; or
(3)
the Court finds that the questions of law or fact common to the members
of the class predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for
the fair and efficient adjudication of the controversy. The matters
pertinent to the findings include:
(A)
the interest of members of the class in individually controlling the
prosecution or defense of separate actions;
(B)
the extent and nature of any litigation concerning the controversy
already commenced by or against members of the class;
(C)
the desirability or undesirability of concentrating the litigation of
the claims in the particular forum;
(D)
the difficulties likely to be encountered in the management of a
class action.
(c)
Determination by Order Whether Class Action to be Maintained; Notice;
Judgment; Actions Conducted Partially as Class Actions.
(1)
As soon as practicable after the commencement of an action brought as a
class action, the Court shall determine by order whether it is to be so
maintained. An order under this subsection may be conditional and may
be altered or amended before the decision on the merits.
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(2)
In any class action maintained under subsection (b)(3), the Court shall
direct to the members of the class the best notice practicable under the
circumstances, including individual notice to all members who can be
identified through reasonable effort. The notice shall advise each member
that:
(A)
the Court will exclude the member from the class if the member so
requests by a specified date;
(B)
the judgment, whether favorable or not, will include all members
who do not request exclusion; and
(C)
any member who does not request exclusion may, if the member
desires, enter an appearance through counsel.
(3)
The judgment in an action maintained as a class action under subsection
(b)(1) or (b)(2), whether or not favorable to the class, shall include and
describe those whom the Court finds to be members of the class. The
judgment in an action maintained as a class action under subsection (b)(3),
whether or not favorable to the class, shall include and specify or describe
those to whom the notice provided in subsection (c)(2) was directed, and
who have not requested exclusion, and whom the Court finds to be
members of the class.
(4)
When appropriate:
(A)
an action may be brought or maintained as a class action with
respect to particular issues; or
(B)
a class may be divided into subclasses and each subclass treated as
a class, and the provisions of this rule shall then be construed and
applied accordingly.
(d)
Orders in Conduct of Actions. In the conduct of actions to which this rule
applies, the Court may make appropriate orders:
(1)
determining the course of proceedings or prescribing measures to prevent
undue repetition or complication in the presentation of evidence or
argument;
(2)
requiring, for the protection of the members of the class or otherwise for
the fair conduct of the action, that notice be given in such manner as the
Court may direct to some or all of the members of any step in the action,
or of the proposed extent of the judgment, or of the opportunity of
members to signify whether they consider the representation fair and
adequate, to intervene and present claims or defenses, or otherwise to
come into the action;
(3)
imposing conditions on the representative parties or on intervenors;
(4)
requiring that the pleadings be amended to eliminate therefrom allegations
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to representation of absent persons, and that the action proceed
accordingly;
(5)
dealing with similar procedural matters. The orders may be combined
with an order under Rule 16 and may be altered or amended as may be
desirable from time to time.
(e)
Dismissal or Compromise. A class action shall not be dismissed or compromised
without the approval of the Court, and notice of the proposed dismissal or compromise shall be
given to all the members of the class in such manner as the Court directs.
Rule 23.1
Derivative Actions by Shareholders
In a derivative action brought by one or more shareholders or members to enforce a right
of a corporation or of an unincorporated association, the corporation or association having failed
to enforce a right which may properly be asserted by it, the complaint shall be verified and shall
allege:
(a)
that the plaintiff was a shareholder or member at the time of the transaction of
which the plaintiff complains or that the plaintiff's share or membership thereafter devolved on
the plaintiff by operation of law; and
(b)
that the action is not a collusive one to confer jurisdiction on the Nez Perce Tribal
Court which it would not otherwise have.
The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to
obtain the action the plaintiff desires from the directors of comparable authority and, if
necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain
the action or for not making the effort. The derivative action may not be maintained if it appears
that the plaintiff does not fairly and adequately represent the interests of the shareholders or
members similarly situated in enforcing the right of the corporation or association. The action
shall not be dismissed or compromised without the approval of the Court, and notice of the
proposed dismissal or compromise shall be given to shareholders or members in such manner as
the Court directs.
Rule 23.2
Actions Relating to Unincorporated Associations
An action brought by or against the members of an unincorporated association as a class
by naming certain members as representative parties may be maintained only if it appears that
the representative parties will fairly and adequately protect the interests of the association and its
members. In the conduct of the action the Court may make appropriate orders corresponding
with those described in Rule 23(d), and the procedure for dismissal or compromise of the action
shall correspond with that provided in Rule 23(e).
Rule 24
Intervention
(a)
Intervention of Right. Upon timely application anyone shall be permitted to
intervene in an action:
(1)
when this code confers an unconditional right to intervene; or
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(2)
when the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
(b)
Permissive Intervention. Upon timely application anyone may be permitted to
intervene in an action:
(1)
when this code confers a conditional right to intervene; or
(2)
when an applicant's claim or defense and the main action have a question
of law or fact in common.
When a party to an action relies for ground of claim or defense upon any law or executive order
administered by a federal, state or tribal governmental officer or agency or upon any regulation,
order, requirement or agreement issued or made pursuant to the law or executive order, the
officer or agency upon timely application may be permitted to intervene in the action. In
exercising its discretion, the Court shall consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties.
(c)
Procedure. A person desiring to intervene shall serve a motion to intervene upon
the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be
accompanied by a pleading setting forth the claim or defense for which intervention is sought.
The same procedure shall be followed when this code gives a right to intervene. When the
legality of an act of the tribe is drawn in question in any action in which the tribe or an officer,
agency, or employee thereof is not a party, the Court shall notify the tribal office of legal
counsel. A party challenging the legality of legislation should call the attention of the Court to
its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise
timely asserted.
Rule 25
Substitution of Parties
(a)
Death
(1)
If a party dies and the claim is not thereby extinguished, the Court may
order substitution of the proper parties. The motion for substitution may
be made by any party or by the successors or representatives of the
deceased party and, together with the notice of hearing, shall be served on
the parties as provided in Rule 5 and upon persons not parties in the
manner provided in Rule 4 for the service of a summons. Unless the
motion for substitution is made not later than ninety (90) days after the
death is suggested upon the record by service of a statement of the fact of
the death as provided herein for the service of the motion, the action shall
be dismissed as to the deceased party.
(2)
In the event of the death of one or more of the plaintiffs or of one or more
of the defendants in an action in which the right sought to be enforced
survives only to the surviving plaintiffs or only against the surviving
defendants, the action does not abate. The death shall be suggested upon
the record and the action shall proceed in favor of or against the surviving
Rules of Civil Procedure - 24
parties.
(b)
Incompetency. If a party becomes incompetent, the Court upon motion served as
provided in subsection (a) of this rule may allow the action to be continued by or against the
party's representative.
(c)
Transfer of Interest. In case of any transfer of interest, the action may be
continued by or against the original party, unless the Court upon motion directs the person to
whom the interest is transferred to be substituted in the action or joined with the original party.
Service of the motion shall be made as provided in subsection (a) of this rule.
(d)
Tribal Officers; Death or Separation from Office.
(1)
When a tribal officer is a party to an action in an official capacity and
during its pendency dies, resigns, or otherwise ceases to hold office, the
action does not abate, and the officer's successor is automatically
substituted as a party. Proceedings following the substitution shall be in
the name of the substituted party, but any misnomer not affecting the
substantial rights of the parties shall be disregarded. An order of
substitution may be entered at any time, but the omission to enter such an
order shall not affect the substitution.
(2)
A tribal officer who sues or is sued in an official capacity may be
described as a party by the officer's official title rather than by name; but
the Court may require the officer's name to be added.
DEPOSITIONS AND DISCOVERY
Rule 26
General Provisions Governing Discovery; Duty of Disclosure
(a)
Required Disclosures; Methods to Discover Additional Matter.
(1)
Initial Disclosures. Except to the extent otherwise stipulated or directed
by order, a party shall, without awaiting a discovery request, provide to
other parties:
(A)
the name and, if known, the address and telephone number of each
individual likely to have discoverable information relevant to
disputed facts alleged with particularity in the pleadings,
identifying the subjects of the information;
(B)
a copy of, or a description by category and location of, all
documents, data compilations, and tangible things in the
possession, custody, or control of the party that are relevant to
disputed facts alleged with particularity in the pleadings;
(C)
a computation of any category of damages claimed by the
disclosing party, making available for inspection and copying as
under Rule 34 the documents or other evidentiary material, not
privileged or protected from disclosure, on which such
computation is based, including materials bearing on the nature
and extent of injuries suffered; and
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(D)
for inspection and copying as under Rule 34 any insurance
agreement under which any person carrying on an insurance
business may be liable to satisfy part or all of a judgment which
may be entered in the action or to indemnify or reimburse for
payments made to satisfy the judgment.
Unless otherwise stipulated or directed by the Court, these disclosures shall be made at or within
ten (10) days after the meeting of the parties under subsection (f). A party shall make its initial
disclosures based on the information then reasonably available to it and is not excused from
making its disclosures because it has not fully completed its investigation of the case or because
it challenges the sufficiency of another party's disclosures or because another party has not made
its disclosures.
(2)
(3)
Disclosure of Expert Testimony.
(A)
In addition to the disclosures required by subpart (1), a party shall
disclose to other parties the identity of any person who may be
used at trial to present evidence under Rules 45, 46 or 48 of the
Rules of Evidence.
(B)
Except as otherwise stipulated or directed by the Court, this
disclosure shall, with respect to a witness who is retained or
specially employed to provide expert testimony in the case or
whose duties as an employee of the party regularly involve giving
expert testimony, be accompanied by a written report prepared and
signed by the witness. The report shall contain a complete
statement of all opinions to be expressed and the basis and reasons
therefor; the data or other information considered by the witness in
forming the opinions; any exhibits to be used as a summary of or
support for the opinions; the qualifications of the witness,
including a list of all publications authored by the witness within
the preceding ten (10) years; the compensation to be paid for the
study and testimony; and a listing of any other cases in which the
witness has testified as an expert at trial or by deposition within the
preceding four (4) years.
(C)
These disclosures shall be made at the times and in the sequence
directed by the Court. In the absence of other directions from the
Court or stipulation by the parties, the disclosures shall be made at
least ninety (90) days before the trial date or the date the case is to
be ready for trial or, if the evidence is intended solely to contradict
or rebut evidence on the same subject matter identified by another
party under subpart (2)(B), within thirty (30) days after disclosure
made by the other party. The parties shall supplement these
disclosures when required under subsection (e)(1).
Pretrial Disclosures. In addition to the disclosures required in the
preceding subparts, a party shall provide to other parties the following
information regarding the evidence that it may present at trial other than
solely for impeachment purposes:
Rules of Civil Procedure - 26
(A)
the name and, if not previously provided, the address and
telephone number of each of those whom the party expects to
present and those whom the party may call if the need arises;
(B)
the designation of those witnesses whose testimony is expected to
be presented by means of a deposition and, if not taken
stenographically, a transcript of the pertinent portions of the
deposition testimony; and
(C)
an appropriate identification of each document or other exhibit,
including summaries of other evidence, separately identifying
those which the party expects to offer and those which the party
may offer if the need arises.
Unless otherwise directed by the Court, these disclosures shall be made at
least thirty (30) days before trial. Within fourteen (14) days thereafter,
unless a different time is specified by the Court, a party may serve and file
a list disclosing:
(i)
any objections to the use under Rule 32(a) of a deposition
designated by another party under subpart (B); and
(ii) any objection, together with the grounds therefor, that may be
made to the admissibility of materials identified under subpart
(C).
Objections not so disclosed, other than objections under Rules 10 and 11
of the Rules of Evidence, shall be deemed waived unless excused by the
Court for good cause shown.
(4)
Form of Disclosures; Filing. Unless otherwise directed by order, all
disclosures under subparts (1) through (3) shall be made in writing,
signed, served, and promptly filed with the Court.
(5)
Methods to Discover Additional Matter. Parties may obtain discovery by
one or more of the following methods: depositions upon oral examination
or written questions; written interrogatories; production of documents or
things or permission to enter upon land or other property under Rule 34 or
45(a)(1)(C), for inspection and other purposes; physical and mental
examinations; and requests for admission.
(b)
Discovery Scope and Limits. Unless otherwise limited by order of the Court in
accordance with these rules, the scope of discovery is as follows:
(1)
In General. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party, including the
existence, description, nature, custody, condition and location of any
books, documents, or other tangible things and the identity and location of
persons having knowledge of any discoverable matter. The information
Rules of Civil Procedure - 27
sought need not be admissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2)
Limitations. By order, the Court may alter the limits in these rules on the
number of depositions and interrogatories and may also limit the length of
depositions under Rule 30 and the number of requests under Rule 36. The
frequency or extent of use of the discovery methods otherwise permitted
under these rules shall be limited by the Court if it determines that:
(A)
the discovery sought is unreasonably cumulative or duplicative or
is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(B)
the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(C)
the burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the case, the amount
in controversy, the parties' resources, the importance of the issues
at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.
The Court may act upon its own initiative after reasonable notice or
pursuant to a motion under subsection (c).
(3)
Trial Preparation; Materials. Subject to the provisions of subsection (b)(4)
of this rule, a party may obtain discovery of documents and tangible things
otherwise discoverable under subsection (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for another party or by or for that
other party's representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent) only upon a showing that
the party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other
means. In ordering discovery of such materials when the required
showing has been made, the Court shall protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an attorney
or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning
the action or its subject matter previously made by that party. Upon
request, a person not a party may obtain without the required showing a
statement concerning the action or its subject matter previously made by
that person. If the request is refused, the person may move for a court
order. The provisions of Rule 37(a)(3) apply to the award of expenses
incurred in relation to the motion. For purposes of this subpart, a
statement previously made is:
(A)
a written statement signed or otherwise adopted or approved by the
person making it; or
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(B)
(4)
a stenographic, mechanical, electrical, or other recording, or a
transcription thereof, which is a substantially verbatim recital of an
oral statement by the person making it and contemporaneously
recorded.
Trial Preparation: Experts.
(A)
A party may depose any person who has been identified as an
expert whose opinions may be presented at trial. If a report from
the expert is required under subsection (a)(2)(B), the deposition
shall not be conducted until report is provided.
(B)
A party may, through interrogatories or by deposition, discover
facts known or opinions held by an expert who has been retained
or specially employed by another party in anticipation of litigation
or preparation for trial and who is not expected to be called as a
witness at trial, only as provided in Rule 35(b) or upon a showing
of exceptional circumstances under which it is impracticable for
the party seeking discovery to obtain facts or opinions on the same
subject by other means.
(C)
Unless manifest injustice would result:
(i)
the Court shall require that the party seeking discovery to pay
the expert a reasonable fee for time spent in responding to
discovery under this subsection; and
(ii) with respect to discovery obtained under subsection (b)(4)(B)
of this rule the Court shall require the party seeking discovery
to pay the other party a fair portion of the fees and expenses
reasonably incurred by the latter party in obtaining facts and
opinions from the expert.
(5)
Claims of Privilege or Protection of Trial Preparation Materials. When a
party withholds information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection as trial preparation
material, the party shall make the claim expressly and shall describe the
nature of the documents, communications, or things not produced or
disclosed in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the applicability of the
privilege or protection.
(c)
Protective Orders. Upon motion by a party or by the person from whom
discovery is sought, accompanied by a certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an effort to resolve the dispute without
court action, and for good cause shown, the Court may make any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:
(1)
that the disclosure or discovery not be had;
Rules of Civil Procedure - 29
(2)
that the disclosure or discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3)
that the discovery may be had only by a method of discovery other than
that selected by the party seeking discovery;
(4)
that certain matters not be inquired into, or that the scope of the disclosure
or discovery be limited to certain matters;
(5)
that discovery be conducted with no one present except persons designated
by the Court;
(6)
that a deposition after being sealed be opened only by order of the Court;
(7)
that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a
designated way; and
(8)
that the parties simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the Court.
If the motion for a protective order is denied in whole or in part, the Court may, on such terms
and conditions as are just, order that any party or other person provide or permit discovery. The
provisions of Rule 37(a)(3) apply to the award of expenses incurred in relation to the motion.
(d)
Timing and Sequence of Discovery. Except when authorized under these rules or
by order, or agreement of the parties, a party may not seek discovery from any source before the
parties have met and conferred as required by subsection (f). Unless the Court upon motion, for
the convenience of parties and witnesses and in the interests of justice orders otherwise,
methods of discovery may be used in any sequence and the fact that a party is conducting
discovery, whether by deposition or otherwise, shall not operate to delay any other party's
discovery.
(e)
Supplementation of Disclosures and Responses. A party who has made disclosure
under subsection (a) or responded to a request for discovery with a disclosure or response is
under a duty to supplement or correct the disclosure or response to include information
thereafter acquired if ordered by the Court in the following circumstances:
(1)
A party is under duty to supplement at appropriate intervals its disclosures
under subsection (a) if the party learns that in some material respect the
information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other
parties during the discovery process or in writing. With respect to
testimony of an expert from whom a report is required under subsection
(a)(2)(B) the duty extends both to information contained in the report and
to information provided through a deposition of the expert, and any
additions or other changes to this information shall be disclosed by the
time the party's disclosures under Rule 26(a)(3) are due.
(2)
A party is under a duty seasonably to amend a prior response to an
interrogatory, request for production, or request for admission if the party
Rules of Civil Procedure - 30
learns that the response is in some material respect incomplete or incorrect
and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
writing.
(f)
Meeting of Parties; Planning for Discovery. Except in actions exempted by law
or when otherwise ordered, the parties shall, as soon as practicable and in any event at least
fourteen (14) days before a scheduling conference is held or a scheduling order is due under
Rule 16(b), meet to discuss the nature and basis of their claims and defenses and the
possibilities for a prompt settlement or resolution of the case, to make or arrange for the
disclosures required by subsection (a)(1), and to develop a proposed discovery plan. The plan
shall indicate the parties' views and proposals concerning:
(1)
what changes should be made in the timing, form, or requirement for
disclosures under subsection (a) or law, including a statement as to when
disclosures under subsection (a)(1) were made or will be made;
(2)
the subjects on which discovery may be needed, when discovery should be
completed, and whether discovery should be conducted in phases or be
limited to or focused upon particular issues;
(3)
what changes should be made in the limitations on discovery imposed
under these rules or by law, and what other limitations should be imposed;
and
(4)
any other orders that should be entered by the Court under subsection (c)
or under Rule 16(b) and (c).
The attorneys of record and all unrepresented parties that have appeared in the case are jointly
responsible for arranging and being present or represented at the meeting, for attempting in good
faith to agree on the proposed discovery plan, and for submitting to the Court within ten (10)
days after the meeting a written report outlining the plan.
(g)
Signing of Disclosures, Discovery Requests, Responses, and Objections.
(1)
Every disclosure made pursuant to subsection (a)(1) or subsection (a)(3)
shall be signed by at least one attorney of record in the attorney's
individual name, whose address shall be stated. An unrepresented party
shall sign the disclosure and state the party's address. The signature of the
attorney or party constitutes a certification that to the best of the signer's
knowledge, information, and belief, formed after a reasonable inquiry, the
disclosure is complete and correct as of the time it is made.
(2)
Every discovery request, response, or objection made by a party
represented by an attorney shall be signed by at least one attorney of
record in the attorney's individual name, whose address shall be stated.
An unrepresented party shall sign the request, response, or objection and
state the party's address. The signature of the attorney or party constitutes
a certification that to the best of the signer's knowledge, information, and
belief, formed after a reasonable inquiry, the request, response, or
objection is:
Rules of Civil Procedure - 31
(A)
consistent with these rules and warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law;
(B)
not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation; and
(C)
not unreasonable or unduly burdensome or expensive, given the
needs of the case, the discovery already had in the case, the amount
in controversy, and the importance of the issues at stake in the
litigation.
If a request, response, or objection is not signed, it shall be stricken unless it is
signed promptly after the omission is called to the attention of the party making
the request, response, or objection, and a party shall not be obligated to take any
action with respect to it until it is signed.
(3)
Rule 27
If without substantial justification a certification is made in violation of
this rule, the Court upon motion or upon its own initiative, shall impose
upon the person who made the certification, the party on whose behalf the
disclosure, request, response, or objection is made, or both, an appropriate
sanction, which may include an order to pay the amount of reasonable
expenses incurred because of the violation, including a reasonable
attorney's fee.
Depositions Before Action or Pending Appeal
(a)
Before Action
(1)
Petition. A person who desires to perpetuate testimony regarding any
claim for relief that may be brought in the Court may file a verified
petition with the Court. The petition shall be entitled in the name of the
petitioner and shall show:
(A)
that the petitioner expects to be a party to an action brought in the
Court but is presently unable to bring it or cause it to be brought;
(B)
the subject matter of the expected action and the petitioner's
interest therein;
(C)
the facts which the petitioner desires to establish by the proposed
testimony and the reasons for desiring to perpetuate it;
(D)
the names or a description of the persons the petitioner expects will
be adverse parties and their addresses so far as known; and
(E)
the names and addresses of the persons to be examined and the
substance of the testimony which the petitioner expects to elicit
from each, and shall ask for an order authorizing the petitioner to
take the depositions of the persons to be examined named in the
Rules of Civil Procedure - 32
petition, for the purpose of perpetuating their testimony.
(2)
Notice and Service. The petitioner shall thereafter serve a notice upon
each person named in the petition as an expected adverse party, together
with a copy of the petition, stating that the petitioner will apply to the
Court, at a time and place named therein, for the order described in the
petition. At least twenty (20) days before the date of hearing the notice
shall be served in the manner provided in Rule 4(d) for service or
summons; but if such service cannot with due diligence be made upon any
expected adverse party named in the petition, the Court may make such
order as is just for service by publication or otherwise.
(3)
Order and Examination. If the Court is satisfied that the perpetuation of
the testimony may prevent a failure or delay of justice, it shall make an
order designating or describing the persons whose depositions may be
taken and specifying the subject matter of the examination and whether
the depositions shall be taken upon oral examination or written
interrogatories. The depositions may then be taken in accordance with
these rules; and the Court may make orders of the character provided for
by Rules 34 and 35.
(4)
Use of Deposition. If a deposition to perpetuate testimony is taken under
these rules it may be used in any action involving the same subject matter
subsequently brought in the Tribal Court in accordance with the provisions
of Rule 32(a).
(b)
Pending Appeal. If an appeal has been taken from a judgment of the Court or
before the taking of an appeal if the time therefor has not expired, the Court may allow the
taking of the depositions of witnesses to perpetuate their testimony for use in the event of
further proceedings in the Court. In such case the party who desires to perpetuate the testimony
may make a motion in the Court for leave to take the depositions, upon the same notice and
service thereof as if the action was pending in the Court. The motion shall show:
(1)
the names and address of the persons to be examined and the substance of
the testimony which the party expects to elicit from each; and
(2)
the reasons for perpetuating their testimony.
If the Court finds that the perpetuation of the testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions to be taken and may make orders of the
character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used
in the same manner and under the same conditions as are prescribed in these rules for
depositions.
(c)
Perpetuation by Action. This rule does not limit the power of the Court to
entertain an action to perpetuate testimony.
Rule 28
Persons Before Whom Depositions May Be Taken
(a)
Within the United States. Within the United States or within a territory or insular
possession subject to the jurisdiction of the United States, depositions shall be taken before an
Rules of Civil Procedure - 33
officer authorized to administer oaths by the laws of the United States or of the place where the
examination is held, or before a person appointed by the Court. A person so appointed has
power to administer oaths and take testimony. The term officer as used in Rules 30, 31, and 32
includes a person appointed by the Court or designated by the parties under Rule 29.
(b)
In Foreign Countries. Depositions may be taken in a foreign country:
(1)
pursuant to any applicable treaty or convention;
(2)
pursuant to a letter of request (whether or not captioned a letter rogatory);
(3)
on notice before a person authorized to administer oaths in the place where
the examination is held, either by the law thereof or by the law of the
United States; or
(4)
before a person commissioned by the Court, and a person so
commissioned shall have the power by virtue of commission to administer
any necessary oath and take testimony. A commission or a letter of
request shall be issued on application and notice and on terms that are just
and appropriate.
It is not requisite to the issuance of a commission or a letter of request that the taking of the
deposition in any other manner is impracticable or inconvenient; and both a commission and a
letter of request may be issued in proper cases. A notice or commission may designate the
person before whom the deposition is to be taken either by name or descriptive title. A letter of
request may be addressed "To the Appropriate Authority in [here name the country]." When a
letter of request or any other device is used pursuant to any applicable treaty or convention, it
shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in
response to a letter of request need not be excluded merely because it is not a verbatim transcript,
because the testimony was not taken under oath, or because of any similar departure from the
requirements for depositions taken within the United States under these rules.
(c)
Disqualification for Interest. No deposition shall be taken before a person who is
a relative or employee or attorney or counsel of any of the parties or is a relative or employee of
such attorney or counsel, or is financially interested in the action.
Rule 29
Stipulations Regarding Discovery Procedure
Unless otherwise directed by the Court, the parties may by written stipulation:
(a)
provide the depositions may be taken before any person, at any time or place,
upon any notice, and in any manner and when so taken may be used like other depositions; and
(b)
modify other procedures governing or limitations placed upon discovery, except
that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery
may, if they would interfere with any time set for completion of discovery, for hearing of a
motion, or for trial, be made only with the approval of the Court.
Rule 30
Depositions Upon Oral Examination
(a)
When Depositions May Be Taken; When Leave Required.
Rules of Civil Procedure - 34
(1)
A party may take the testimony of any person, including a party, by
deposition upon oral examination without leave of court except as
provided in subpart (2). The attendance of witnesses may be compelled
by subpoena as provided in Rule 45.
(2)
A party must obtain leave of court, which shall be granted to the extent
consistent with the principles stated in Rule 26(b)(2), if the person to be
examined, is confined in prison or if, without the written stipulation of
parties:
(A)
a proposed deposition would result in more than ten (10)
depositions being taken under this rule or Rule 31 by the plaintiffs,
or by the defendants, or by third-party defendants;
(B)
the person to be examined already has been deposed in the case; or
(C)
a party seeks to take a deposition before the time specified in Rule
26(d) unless the notice contains a certification, with supporting
facts, that the person to be examined is expected to leave the
United States and be unavailable for examination in this country
unless deposed before that time.
(b)
Notice of Examination: General Requirements; Method of Recording; Production
of Documents and Things; Deposition of Organization; Deposition by Telephone.
(1)
A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other party to
the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if
known, and, if the name is not known, a general description sufficient to
identify the person or the particular class or group to which the person
belongs. If a subpoena duces tecum is to be served on the person to be
examined, the designation of the materials to be produced as set forth in
the subpoena shall be attached to, or included in, the notice.
(2)
The party taking the deposition shall state in the notice the method by
which the testimony shall be recorded. Unless the Court orders otherwise,
it may be recorded by sound, sound-and-visual, or stenographic means and
the party taking the deposition shall bear the cost of the recording. Any
party may arrange for transcription to be made from the recording of a
deposition taken by nonstenographic means.
(3)
With prior notice to the deponent and other parties, any party may
designate another method to record the deponent's testimony in addition to
the method specified by the person taking the deposition. The additional
record or transcript shall be made at that party's expense unless the Court
otherwise orders.
(4)
Unless otherwise agreed by the parties, a deposition shall be conducted
before an officer appointed or designated under Rule 28 and shall begin
with a statement on the record by the officer that includes:
Rules of Civil Procedure - 35
(A)
the officer's name and business address;
(B)
the date, time, and place of the deposition;
(C)
the name of the deponent;
(D)
the administration of the oath or affirmation to the deponent; and
(E)
an identification of all persons present.
If the deposition is recorded other than stenographically, the officer shall repeat items (A)
through (C) at the beginning of each unit of recorded tape or other recording medium. The
appearance or demeanor of deponents or attorneys shall not be distorted through camera or
sound-recording techniques. At the end of the deposition, the officer shall state on the record
that the deposition is complete and shall set forth any stipulations made by counsel concerning
the custody of the transcript or recording and the exhibits, or concerning other pertinent matters.
(5)
The notice to a party deponent may be accompanied by a request made in
compliance with Rule 34 for the production of documents and tangible
things at the taking of the deposition. The procedure of Rule 34 shall
apply to the request.
(6)
A party may in the party's notice and in a subpoena name as the deponent
a public or private corporation or a partnership or association or
governmental agency and describe with reasonable particularity the
matters on which examination is requested. In that event, the organization
so named shall designate one or more officers, directors, or managing
agents, or other persons who consent to testify on its behalf, and may set
forth, for each person designated, the matters on which the person will
testify. A subpoena shall advise a non-party organization of its duty to
make such a designation. The persons so designated shall testify as to
matters known or reasonably available to the organization. This
subsection (b)(6) does not preclude taking a deposition by any other
procedure authorized in these rules.
(7)
The parties may stipulate in writing, or the Court may upon motion order
that a deposition be taken by telephone or other remote electronic means.
For the purposes of this rule and Rules 28(a) and 37(b)(1) a deposition
taken by such means is taken at the place where the deponent is to answer
questions.
(c)
Examination and Cross-Examination; Record of Examination; Oath; Objections.
Examination and cross-examination of witnesses may proceed as permitted at the trial under the
provisions of the Rules of Evidence except Rules 3 and 43. The officer before whom the
deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by
someone acting under the officer's direction and in the officer's presence, record the testimony
of the witness. The testimony shall be taken stenographically or recorded by any other method
authorized by subsection (b)(4) of this rule. All objections made at the time of the examination
to the qualifications of the officer taking the deposition, to the manner of taking it, to the
evidence presented, to the conduct of any party, or to any other aspect of the proceedings shall
be noted by the officer upon the record of the deposition; but the examination shall proceed,
Rules of Civil Procedure - 36
with the testimony being taken subject to the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed envelope on the party taking the
deposition and the party taking the deposition shall transmit them to the officer, who shall
propound them to the witness and record the answers verbatim.
(d)
Schedule and Duration; Motion to Terminate or Limit Examination.
(1)
Any objection to evidence during a deposition shall be stated concisely
and in a non-argumentative and non-suggestive manner. A party may
instruct a deponent not to answer only when necessary to preserve a
privilege, to enforce a limitation on evidence directed by the Court, or to
present a motion under subpart (3).
(2)
By order, the Court may limit the time permitted for the conduct of a
deposition, but shall allow additional time consistent with Rule 26(b)(2) if
needed for a fair examination of the deponent or if the deponent or another
party impedes or delays the examination. If the Court finds such an
impediment, delay, or other conduct that has frustrated the fair
examination of the deponent, it may impose upon the persons responsible
an appropriate sanction, including the reasonable costs and attorney's fees
incurred by any parties as a result thereof.
(3)
At any time during a deposition, on motion of a party or of the deponent
and upon a showing that the examination is being conducted in bad faith
or in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the Court may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit
the scope and manner of the taking of the deposition as provided in Rule
26(c). If the order made terminates the examination, it shall be resumed
thereafter only upon order of the Court. Upon demand of the objecting
party or deponent, the taking of the deposition shall be suspended for the
time necessary to make a motion for an order. The provisions of Rule
37(a)(3) apply to the award of expenses incurred in relation to the motion.
(e)
Review by Witness; Changes; Signing. If requested by the deponent or a party
before completion of the deposition, the deponent shall have thirty (30) days after being notified
by the officer that the transcript or recording is available in which to review the transcript or
recording and, if there are changes in form or substance, to sign a statement reciting such
changes and the reasons given by the deponent for making them. The officer shall indicate in
the certificate prescribed by subsection (f)(1) whether any review was requested and, if so, shall
append any changes made by the deponent during the period allowed.
(f)
Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.
(1)
The officer shall certify that the witness was duly sworn by the officer and
that the deposition is a true record of the testimony given by the witness.
This certificate shall be in writing and accompany the record of the
deposition. Unless otherwise ordered by the Court, the officer shall
securely seal the deposition in an envelope or package indorsed with the
title of the action and marked "Deposition of [here insert name of
witness]" and shall promptly file it with the Court or send it to the attorney
Rules of Civil Procedure - 37
who arranged for the transcript or recording, who shall store it under
conditions that will protect it against loss, destruction, tampering, or
deterioration. Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a party, be marked
for identification and annexed to the deposition, and may be inspected and
copied by any party, except that if the person producing the materials
desires to retain them the person may:
(g)
Rule 31
(A)
offer copies to be marked for identification and annexed to the
deposition and to serve thereafter as originals if the person affords
to all parties fair opportunity to verify the copies by comparison
with the originals; or
(B)
offer the originals to be marked for identification, after giving to
each party an opportunity to inspect and copy them, in which event
the materials may then be used in the same manner as if annexed to
the deposition. Any party may move for an order that the original
be annexed to and returned with the deposition to the Court,
pending final disposition of the case.
(2)
Unless otherwise ordered by the Court or agreed by the parties, the officer
shall retain stenographic notes of any deposition taken stenographically or
a copy of the recording of any deposition taken by another method. Upon
payment of reasonable charges therefor, the officer shall furnish a copy of
the transcript or other recording of the deposition to any party or to the
deponent.
(3)
The party taking the deposition shall give prompt notice of its filing to all
other parties.
Failure to Attend or to Serve Subpoena; Expenses.
(1)
If the party giving the notice of the taking of a deposition fails to attend
and proceed therewith and another party attends in person or by attorney
pursuant to the notice, the Court may order the party giving the notice to
pay to such other party the reasonable expenses incurred by that party and
that party's attorney in attending, including reasonable attorney's fees.
(2)
If the party giving the notice of the taking of a deposition of a witness fails
to serve a subpoena upon the witness and the witness because of such
failure does not attend, and if another party attends in person or by
attorney because that party expects the deposition of that witness to be
taken, the Court may order the party giving the notice to pay to such other
party the reasonable expenses incurred by that party and that party's
attorney in attending, including reasonable attorney's fees.
Depositions Upon Written Questions
(a)
Serving Questions; Notice.
(1)
A party may take the testimony of any person, including a party, by
Rules of Civil Procedure - 38
deposition upon written questions without leave of court except as
provided in subpart (2). The attendance of witnesses may be compelled
by the use of subpoena as provided in Rule 45. The deposition of a person
confined in prison may be taken only by leave of court on such terms as
the Court prescribes.
(2)
(3)
(4)
A party must obtain leave of court, which shall be granted to the extent
consistent with the principles stated in Rule 26(b)(2), if the person to be
examined is confined in prison or if, without the written stipulation of the
parties:
(A)
a proposed deposition would result in more than ten (10)
depositions being taken under this rule or Rule 30 by the plaintiffs,
or by the defendants, or by third-party defendants;
(B)
the person to be examined has already been deposed in the case; or
(C)
a party seeks to take a deposition before the time specified in Rule
26(d).
A party desiring to take a deposition upon written questions shall serve
them upon every other party with a notice stating:
(A)
the name and address of the person who is to answer, if known,
and if the name is not known, a general description sufficient to
identify the person or the particular class or group to which the
person belongs; and
(B)
the name or descriptive title and address of the officer before
whom the deposition is to be taken. A deposition upon written
questions may be taken of a public or private corporation or a
partnership or association or governmental agency in accordance
with the provisions of Rule 30(b)(6).
Within fourteen (14) days after the notice and written questions are served,
a party may serve cross questions upon all other parties. Within seven (7)
days after being served with cross questions, a party may serve redirect
questions upon all other parties. Within seven (7) days after being served
with redirect questions, a party may serve recross questions upon all other
parties. The Court may for cause shown enlarge or shorten the time.
(b)
Officer to Take Responses and Prepare Record. A copy of the notice and copies
of all questions served shall be delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e),
and (f), to take the testimony of the witness in response to the questions and prepare, certify,
and file or mail the deposition attaching thereto the copy of the notice and the questions
received by the officer.
(c)
Notice of Filing. When the deposition is filed the party taking it shall promptly
give notice thereof to all other parties.
Rules of Civil Procedure - 39
Rule 32
Use of Depositions in Court Proceedings
(a)
Use of Depositions. At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of
Evidence applied as though the witness were then present and testifying, may be used against
any party who was present or represented at the taking of the deposition or who had reasonable
notice thereof, in accordance with any of the following provisions.
(1)
Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness, or for any other
purpose permitted by the Rules of Evidence.
(2)
The deposition of a party or of anyone who at the time of taking the
deposition was an officer, director, or managing agent, or a person
designated under the Rule 30(b)(6) or 31(a) to testify on behalf of a public
or private corporation, partnership or association or governmental agency
which is a party may be used by an adverse party for any purpose.
(3)
The deposition of a witness, whether or not a party, may be used by any
party for any purpose if the Court finds:
(A)
that the witness is dead;
(B)
that the witness is at a greater distance than 100 miles from the
Tribal Court, or is out of the United States, unless it appears that
the absence of the witness was procured by the party offering the
deposition;
(C)
that the witness is unable to attend or testify because of age,
illness, infirmity, or imprisonment;
(D)
that the party offering the deposition has been unable to procure
the attendance of the witness by subpoena; or
(E)
upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used.
A deposition taken without leave of court pursuant to a notice under Rule 30(a)(2)(C) shall not
be used against a party who demonstrates that, when served with the notice, it was unable
through the exercise of diligence to obtain counsel to represent it at the taking of the deposition;
nor shall a deposition be used against a party who, having received less than eleven (11) days’
notice of a deposition, has promptly upon receiving such notice filed a motion for a protective
order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time
or place and such motion is pending at the time the deposition is held.
(4)
If only part of a deposition is offered in evidence by a party, an adverse
party may require the offeror to introduce any other part which ought in
fairness to be considered with the part introduced, and any party may
introduce any other parts.
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Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously
taken; and when an action has been brought and another action involving the same subject matter
is afterward brought between the same parties or their representatives or successors in interest,
all depositions lawfully taken and duly filed in the former action may be used in the latter as if
originally taken therefor. A deposition previously taken may also be used as permitted by the
Rules of Evidence.
(b)
Objections to Admissibility. Subject to the provisions of Rule 28(b) and
subsection (d)(3) of this rule, objection may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying.
(c)
Form of Presentation. Except as otherwise directed by court, a party offering
deposition testimony pursuant to this rule may offer it in stenographic or nonstenographic form,
but, if in nonstenographic form, the party shall also provide the Court with a transcript of the
portions so offered. On request of any party in a case tried before a jury, deposition testimony
offered other than for impeachment purposes shall be presented in nonstenographic form, if
available, unless the Court for good cause orders otherwise.
(d)
Effect of Errors and Irregularities in Depositions.
(1)
As to Notice. All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon the
party giving the notice.
(2)
As to Disqualification of Officer. Objection to taking a deposition
because of disqualification of the officer before whom it is to be taken is
waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
(3)
As to Taking of Deposition.
(A)
Objections to competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to
make them before or during the taking of the deposition, unless the
ground of the objection is one which might have been obviated or
removed if presented at that time.
(B)
Errors and irregularities occurring at the oral examination in the
manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection thereto
is made at the taking of the deposition.
(C)
Objections to the form of written questions submitted under Rule
31 are waived unless served in writing upon the party propounding
them within the time allowed for serving the succeeding cross or
other questions and within five (5) days after service of the last
questions authorized.
Rules of Civil Procedure - 41
(4)
Rule 33
As to Completion and Return of Deposition. Errors and irregularities in
the manner in which the testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under Rules 30 and 31 are waived
unless a motion to suppress the deposition or some part thereof is made
with reasonable promptness after such defect is, or with due diligence
might have been, ascertained.
Interrogatories to Parties
(a)
Availability. Without leave of court or written stipulation, any party may serve
upon any other party written interrogatories, not exceeding twenty-five (25) in number
including all discrete subparts, to be answered by the party served or, if the party served is a
public or private corporation or a partnership or association or governmental agency, by any
officer or agent, who shall furnish such information as is available to the party. Leave to serve
additional interrogatories shall be granted to the extent consistent with the principles of Rule
26(b)(2). Without leave of court or written stipulation, interrogatories may not be served before
the time specified in Rule 26(d).
(b)
Answers and Objections
(1)
Each interrogatory shall be answered separately and fully in writing under
oath, unless it is objected to, in which event the objecting party shall state
the reasons for objections and shall answer to the extent the interrogatory
is not objectionable.
(2)
The answers are to be signed by the person making them, and the
objections signed by the attorney making them.
(3)
The party upon whom the interrogatories have been served shall serve a
copy of the answers, and objections if any, within thirty (30) days after the
service of the interrogatories. A shorter or longer time may be directed by
the Court or, in the absence of such an order, agreed to in writing by the
parties subject to Rule 29.
(4)
All grounds for an objection to an interrogatory shall be stated with
specifity. Any ground not stated in a timely objection is waived unless the
party's failure to object is excused by the Court for good cause shown.
(5)
The party submitting the interrogatories may move for an order under
Rule 37(a) with respect to any objection to or other failure to answer an
interrogatory.
(c)
Scope; Use at Trial. Interrogatories may relate to any matters which can be
inquired into under Rule 26(b)(1), and the answers may be used to the extent permitted by the
Rules of Evidence.
An interrogatory otherwise proper is not necessarily objectionable merely because an
answer to the interrogatory involves an opinion or contention that relates to fact or the
application of law to fact, but the Court may order that such an interrogatory need not be
answered until after designated discovery has been completed or until a pre-trial conference or
Rules of Civil Procedure - 42
other later time.
(d)
Option to Produce Business Records. Where the answer to an interrogatory may
be derived or ascertained from the business records of the party upon whom the interrogatory
has been served or from an examination, audit or inspection of such business records, including
a compilation, abstract or summary thereof and the burden of deriving or ascertaining the
answer is substantially the same for the party serving the interrogatory as for the party served, it
is a sufficient answer to such interrogatory to specify the records from which the answer may be
derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity
to examine, audit or inspect such records and to make copies, compilations, abstracts or
summaries. A specification shall be in sufficient detail to permit the interrogating party to
locate and to identify, as readily as can the party served, the records from which the answer may
be ascertained.
Rule 34
Production of Documents and Things and Entry Upon Land for Inspection
and Other Purposes
(a)
Scope. Any party may serve on any other party a request:
(1)
to produce and permit the party making the request, or someone acting on
the requestor's behalf, to inspect and copy, any designated documents
(including writings, drawings, graphs, charts, photographs, phono records,
and other data compilations from which information can be obtained,
translated, if necessary, by the respondent through detection devices into
reasonably usable form), or to inspect and copy, test, or sample any
tangible things which constitute or contain matters within the scope of
Rule 26(b) and which are in the possession, custody or control of the party
upon whom the request is served; or
(2)
to permit entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling
the property or any designated object or operation thereon, within the
scope of Rule 26(b).
(b)
Procedure. The request shall set forth, either by individual item or by category,
the items to be inspected, and describe each with reasonable particularity. The request shall
specify a reasonable time, place, and manner of making the inspection and performing the
related acts. Without leave of court or written stipulation, a request may not be served before
the time specified in Rule 26(d).
The party upon whom the request is served shall serve a written response within thirty
(30) days after the service of the request. A shorter or longer time may be directed by the Court
or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. The
response shall state, with respect to each item or category, that inspection and related activities
will be permitted as requested, unless the request is objected to, in which event the reasons for
objection shall be stated. If objection is made to part of an item or category, the part shall be
specified, and inspection permitted for the remaining parts. The party submitting the request
may move for any order under Rule 37(a) with respect to any objection to or other failure to
respond to the request or any part thereof, or any failure to permit inspection as requested.
Rules of Civil Procedure - 43
A party who produces documents for inspection shall produce them as they are kept in
the usual course of business or shall organize and label them to correspond with the categories in
the request.
(c)
Persons and parties. A person not a party to the action may be compelled to
produce documents and things or to submit to an inspection as provided in Rule 45.
Rule 35
Physical and Mental Examinations of Persons
(a)
Order for Examination. When the mental or physical condition (including the
blood group) of a party or of a person in the custody or under the legal control of a party, is in
controversy, the Court may order the party to submit to a physical or mental examination by a
suitably licensed or certified examiner or to produce for examination the person in the party's
custody or legal control. The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person or persons by whom it is to be
made.
(b)
Rule 36
Report of Examiner.
(1)
If requested the party against whom an order is made under Rule 35(a) or
the person examined, the party causing the examination to be made shall
deliver to the requesting party a copy of the detailed written report of the
examiner setting out the examiner's findings, including results of all tests
made, diagnoses and conclusions, together with like reports of all earlier
examinations of the same condition. After delivery the party causing the
examination shall be entitled upon request to receive from the party
against whom the order is made a like report of any examination,
previously or thereafter made, of the same condition, unless, in the case of
a report of examination of a person not a party, the party shows that the
party is unable to obtain it. The Court on motion may make an order
against a party requiring delivery of a report on such terms as are just, and
if an examiner fails or refuses to make a report the Court may exclude the
examiner's testimony if offered at trial.
(2)
By requesting and obtaining a report of the examination so ordered or by
taking the deposition of the examiner, the party examined waives any
privilege the party may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has
examined or may thereafter examine the party in respect of the same
mental or physical condition.
(3)
This subsection applies to examinations made by agreement of the parties,
unless the agreement expressly provides otherwise. This subsection does
not preclude discovery of a report of an examiner or the taking of a
deposition of the examiner in accordance with the provisions of any other
rule.
Requests for Admission
(a)
Request for Admission. A party may serve upon any other party a written request
Rules of Civil Procedure - 44
for the admission, for purposes of the pending action only, of the truth of any matters within the
scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions for fact or of
the application of law to fact including the genuineness of any documents described in the
request. Copies of documents shall be served with the request unless they have been or are
otherwise furnished or made available for inspection and copying. Without leave of court or
written stipulation requests for admission may not be served before the time specified in Rule
26(d).
Each matter of which an admission is requested shall be separately set forth. The matter
is admitted unless, within thirty (30) days after service of the request, or within such shorter or
longer time as the Court may allow or as the parties may agree to in writing, subject to Rule 29,
the party to whom the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter, signed by the party or by the party's
attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically
deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit
or deny the matter. A denial shall fairly meet the substance of the requested admission, and
when good faith requires that a party qualify an answer or deny only a part of the matter of
which an admission is requested, the party shall specify so much of it as is true and qualify or
deny the remainder. An answering party may not give lack of information or knowledge as a
reason for failure to admit or deny unless the party states that the party has made reasonable
inquiry and that the information known or readily obtainable by the party is insufficient to enable
the party to admit or deny. A party who considers that a matter of which the admission has been
requested presents a genuine issue for trial may not, on that ground alone, object to the request;
the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why
the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of
the answers or objections. Unless the Court determines that an objection is justified, it shall
order that an answer be served. If the Court determines that an answer does not comply with the
requirements of this rule, it may order either that the matter is admitted or that an amended
answer be served. The Court may, in lieu of these orders, determine that final disposition of the
request be made at a pre-trial conference or at a designated time prior to trial. The provisions of
Rule 37(a)(3) apply to the award of expenses incurred in relation to the motion.
(b)
Effect of Admission. Any matter admitted under this rule is conclusively
established unless the Court on motion permits withdrawal or amendment of the admission.
Subject to the provision of Rule 16 governing amendment of a pre-trial order, the Court may
permit withdrawal or amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to satisfy the Court that
withdrawal or amendment will prejudice that party in maintaining the action or defense on the
merits. Any admission made by a party under this rule is for the purpose of the pending action
only and is not an admission for any other purpose nor may it be used against the party in any
other proceeding.
Rule 37
Failure to Make or Cooperate in Discovery; Sanctions
(a)
Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable
notice to other parties and all persons affected thereby, may apply for an order compelling
disclosure or discovery as follows:
Rules of Civil Procedure - 45
(1)
Motion.
(A)
If a party fails to make a disclosure required by Rule 26(a), any
other party may move to compel disclosure and for appropriate
sanctions. The motion must include a certification that the movant
has in good faith conferred or attempted to confer with the party
not making the disclosure in an effort to secure the disclosure
without court action.
(B)
If a deponent fails to answer a question propounded or submitted
under Rules 30 or 31, or a corporation or other entity fails to make
a designation under Rule 30(b)(6) or 31(a), or a party fails to
answer an interrogatory submitted under Rule 33, or if a party, in
response to a request for inspection submitted under Rule 34, fails
to respond that inspection will be permitted as requested or fails to
permit inspection as requested, the discovering party may move for
an order compelling an answer, or a designation, or an order
compelling inspection in accordance with the request. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make the discovery in an effort to secure the information or
material without court action. When taking a deposition on oral
examination, the proponent of the question may complete or
adjourn the examination before applying for an order.
(2)
Evasive or Incomplete Disclosure, Answer, or Response. For purposes of
this subsection an evasive or incomplete disclosure, answer, or response is
to be treated as a failure to disclose, answer, or respond.
(3)
Expenses and Sanctions.
(A)
If the motion is granted or if the disclosure or
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