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to Table of Contents Nez
Perce Tribal Code
Last amended: 2003 Title 2 - Rules of Procedure, Chapters 1-2
GENERAL PROVISIONS Rule 1. Definitions (a) "Criminal action" means the proceedings by which a party charged with a public offense is accused and brought to trial and punishment, potentially including imprisonment, is imposed. (b) "Probable cause" exists under this chapter when an officer or the Tribal Court has substantial objective basis for believing that a person has committed an offense. In determining whether probable cause exists, the officer or tribal judge may take into account all information which a prudent officer or judge would deem relevant to the likelihood that an offense has been committed and that the person charged has committed it.
No person can be punished for an offense except upon a legal conviction, including a plea or admission of guilt in open court. No incarceration or other disposition of one accused of an offense prior to trial in accordance with these rules shall be deemed a punishment.
In a criminal action the defendant is entitled:
Rule 4. Complaint (a) The complaint is a written statement of the alleged facts constituting the offense charged and shall be filed by the tribal prosecutor. The complaint shall state:
(b) Only one person and one violation may be charged by a single complaint. The court shall allow the complaint to be amended for good cause upon request of the prosecution until the date of trial.
(a) Upon the submission of an arrest warrant application, by the tribal prosecutor or tribal police, the Nez Perce Tribal Court may issue an arrest warrant to bring the person named in the warrant before a judge of the court. (b) An arrest warrant application shall:
(c) Any testimony submitted in relation to a warrant application shall be simultaneously tape recorded. Upon reviewing the application for an arrest warrant, if the judge is satisfied of the existence of the grounds of the application, and that it appears based on such review that probable cause exists to believe that an offense has been committed and that the person named in the application committed it, he shall issue a signed arrest warrant. The warrant of arrest shall be signed by the judge and shall contain the name of the person to be arrested or, if unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall command that the person named in the warrant be arrested and brought before the judge. (d) An officer need not have the warrant in his possession at the time of arrest; but, if he does not, he shall inform the defendant that a warrant has been issued and the nature of the charge. The arrested person shall be provided with a copy of the arrest warrant and complaint as soon as practicable but not later than at the time of arraignment.
(a) In lieu of an arrest, and upon a finding that it appears probable cause exists to believe an offense has been committed and that the defendant committed it, the Tribal Court or a tribal police officer may issue a summons directing the person accused to appear before a tribal judge at a stated date, time and place. A citation shall require the defendant to appear in Tribal Court not less than five (5) nor more than fifteen (15) business days after the date of the citation. The summons will also inform the defendant that a warrant of arrest will be issued if he fails to appear as directed. Issuance of a summons will initiate prosecution of an action under this chapter. (b) If the summons is issued by the Tribal Court it shall be served on the defendant as provided by this chapter. Should a defendant refuse service of a summons or should a defendant's whereabouts be unknown after a reasonable search, an arrest warrant shall issue. (c) If the summons is issued by a tribal police officer he shall serve a copy on the defendant by personal delivery to him when the defendant is present. Certification of service of the summons shall be indicated on the face of the summons by the issuing officer. The original summons shall be filed with the Tribal Court and a copy delivered to the tribal prosecutor within one (1) business day of serving.
(a) A tribal officer may make an arrest without warrant if the officer has probable cause to believe a person has committed an offense within the jurisdiction of the Nez Perce Tribe or is named in an arrest warrant.
Any arresting officer: (a) Upon taking an arrested person into custody and before interrogation, shall inform the person that:
(b) May use reasonable and necessary force to effect the arrest of a person.
(a) Any arresting officer may continue in fresh pursuit of a person including outside the boundaries of the Nez Perce Reservation, if the person:
(b) When an arrest following fresh pursuit occurs outside of the boundaries of the Nez Perce Reservation but within the state of Idaho the arresting officer may return the arrested individual to the reservation. When an arrest following fresh pursuit occurs outside the state of Idaho, then the arresting officer shall turn the arrested person over to the local police officials pending extradition.
(a) Arrested persons shall be taken without unnecessary delay, but in no case later than three (3) business days, before a tribal judge for arraignment. In the event a summons has been issued, the defendant shall appear at the time designated in the summons. The schedule for arraignments shall be determined by the Tribal Court. If the defendant does not have counsel and desires to be represented, he shall be given a reasonable time to secure counsel before entering his plea or making any statement. (b) During arraignment, the defendant shall be provided with a copy of the complaint if he has not received one. The complaint shall be read to the defendant and he will be asked to plead guilty or not guilty to the offense charged. (c) Before accepting a plea of guilty, the court must:
(d) Upon a plea of guilty the court may sentence the defendant or set a future date for sentencing. If a future date for sentencing is established, the court may release the defendant on bail, have the defendant committed or released without bail. (e) If the defendant is silent or if the defendant pleads guilty and the judge determines that the plea is made involuntarily or that the defendant does not understand the nature of the charge he shall enter a plea of not guilty for the defendant. (a) In making a decision concerning pretrial release of a person who is arrested for or charged with a crime involving domestic violence or a violation of a domestic protection order, the court shall review the facts of the arrest and detention of the person and determine whether the person:
(b) Before releasing a person arrested for or charged with a crime involving domestic violence or a violation of a domestic protection order, the court shall make findings on the record if possible concerning the determination made in accordance with subsection 1 and may impose conditions of release and/or bail on the person to protect the alleged victim of domestic violence and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include:
(c) The bond for the crimes of domestic violence and violation of a domestic protection order shall be a cash bond in an amount set by the court in the bond schedule. (d) The court shall provide a copy of the conditions to the arrested or charged person upon his or her release. Failure to provide the person with a copy of the conditions of release does not invalidate the conditions if the arrested or charged person has notice of the conditions. (e) If conditions of release are imposed without a hearing, the arrested or charged person may request a hearing before the court to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.
(a) Pleadings in criminal proceedings shall be the complaint and the pleas of guilty or not guilty. (b) Any defense, objection, or request which is capable of determination outside of trial may be raised before trial by motion. Pre-trial motions may be written or oral at the discretion of the judge who may allow the parties to submit supporting and response briefs. Any supporting brief shall be filed at least twenty (20) business days and any response brief shall be filed at least ten (10)business days before trial unless other time periods are established by the judge. (c) The following motions must be raised before trial:
(d) The failure to raise any motion under subsection (c) shall constitute waiver unless the court for cause shown determines that relief from the waiver will be granted. All rulings on such motions will be made before trial unless the court for good cause determines that the ruling will be made at trial, but no such determination will be made if a party's right to appeal will be adversely affected.
(a) At the expense of the defendant and upon his request, the prosecutor shall permit the defendant to inspect and copy or photograph the following items which are within the possession, custody or control of the prosecutor and/or tribal police:
(b) Regardless of a request by the defendant, the prosecution and/or tribal police shall at least forty five (45) business days before trial provide the defendant with:
(c) Upon the request of the prosecutor and at the expense of the tribe, the defendant shall permit the prosecutor to inspect and copy or photograph:
(d) Regardless of a request by the prosecutor, the defendant shall at least fourteen (14) business days before the trial provide the prosecution with written notice of names and addresses of the witnesses it intends to call at trial. (e) If, prior to or during trial, a party discovers additional evidence or material which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or the court of the existence of the additional evidence or material. (f) Except to the extent such material is otherwise subject to discovery, this rule shall not authorize the discovery or inspection of:
(g) Upon motion by a party, the court may deny or restrict discovery or issue such other order as is appropriate. If the court enters an order granting relief all items or documents reviewed in camera shall be sealed and preserved in the record of the court to be made available to the appellate court in the event of an appeal. (h) Once the court determines that a party has failed to comply with this rule, it may grant a motion to compel submitted by the opposing party, grant a continuance, prohibit the party from introducing evidence not disclosed or it may enter such other order as it deems just. In addition to any other action taken by the court upon a finding that a party has failed to comply with this rule, the court may award attorneys fees and costs to the prevailing party resulting from procedures to compel discovery.
(a) All witnesses shall be subpoenaed to appear at the date and time set for trial. The parties shall notify the clerk of the court of the names and addressees of witnesses not less than fourteen (14) business days prior to the scheduled trial date. (b) A subpoena shall be an order of the court requiring the attendance of a witness at trial and/or commanding the person to whom it is issued to produce books, papers, documents or other objects designated therein. It shall be signed by the judge and issued by the tribal court clerk. It shall state the name of the court and the name of the case and shall command the person to whom it is directed to attend and give testimony and/or produce or present evidence at the time and place specified. The clerk shall submit a signed, sealed and otherwise complete subpoena except for the name of the individual and items subpoenaed to the requesting party, who shall complete the subpoena before it is served. (c) A subpoena shall be served in accordance with the provisions for service of process provided by this chapter. The party requesting the subpoena shall provide a $10.00 fee for one day's attendance and mileage allowances as determined by the court to each witness following their compliance with the subpoena. The court shall pay the expenses of any witness subpoenaed by the defense upon a satisfactory showing that the defendant is unable to pay such expenses and the witness is necessary to the defense. (d) The court on motion, may quash or modify a subpoena if compliance would be unreasonable or oppressive.
Rule 14. Trial Procedures (a) Motions
(b) Rule of Exclusion
(c) Opening Statements The court will allow opening statements by the prosecution and defendant. The prosecution will present its statement first followed by the defense who may preserve its opening statement until the end of the prosecution's case in chief. Either party may waive making a statement. (d) Burden of Proof
(e) Motion for Judgment of Acquittal
(f) Expert Witnesses and Interpreters
(g) Jury Instruction
(a) After the presentation of evidence in non-jury cases is completed and all motions have been ruled upon, the court shall render its decision as to the guilt or innocence of the defendant. The court may take the case under advisement rather than passing judgment immediately. (b) In jury trials:
(c) If the required number of jurors does not support the verdict or the jury is unable to make a decision, the court must declare a mistrial. Polling of the jury may take place upon the request of either party. (d) If there are multiple defendants, the trier of fact (judge/jury), at any time during its deliberations, may return a verdict or verdicts with respect to any charge. (e) The defendant may be found guilty of an offense necessarily included in the offense charged and the lesser included offense need not have been included in the original charge.
Rule 16. Judgment and Sentencing (a) A judgment of conviction shall set forth the plea, the verdict or findings, and sentence when imposed. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered into record by the court clerk. (b) If a motion for withdrawal of a plea of guilty is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. In order to correct manifest injustice, the court after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.
(a) Motion to Set Aside the Verdict
(b) Motion for New Trial
(c) Motion for Stay While an appeal is pending, the court may stay the execution of the sentence pending the filing and conclusion of an appeal. The court may order the defendant released on bail, released with out bail or continued in detention.
Rule 18. Right to Apply for Writ (a) Any person detained or imprisoned by order, authority or action of the Nez Perce Tribe may challenge the legality of that detention or imprisonment by application to the Nez Perce Tribal Court for a writ of habeas corpus. The application shall be heard by a judge who has not participated in any proceeding related to the detention or imprisonment of the applicant. (b) The application for writ of habeas corpus shall be in writing and must include:
(c) Upon receipt of a writ of habeas corpus the court may:
(d) If an order to show cause is issued it will be served on the person(s) alleged to have custody of the petitioner. Once served, the person(s) to whom the order is directed shall make a return of such order to the court certifying the true cause for detention. Following service, the court shall hear the petition and order the petitioner be brought before it for the hearing. If the writ is granted, it shall be served on the person(s) having custody of the petitioner.
Rule 19. Search and Seizure (a) Upon the request of any law enforcement officer the Tribal Court may issue a written search warrant to search for and seize evidence of a criminal offense. (b) A search warrant shall be supported by affidavit or sworn testimony and must particularly describe the person or place to be searched and the item(s) to be seized. If probable cause exists to believe that a crime has been committed and that evidence of the crime is present at the place or on the person to be searched the warrant shall issue. The search warrant shall direct police officers to search the location or person described for the items specified. (c) A search warrant shall be served during the hours of 6:00 a.m. to 10:00 p.m., unless a night search is expressly provided for in the warrant. The officer taking property under a search warrant shall provide a copy of the warrant and a receipt for the property taken to the person from whom it was taken or in the absence of any such person, he shall leave it in the place where the property was found. (d) A search warrant shall be executed within fourteen (14) days after issuance. Upon execution of the warrant, a return shall be executed and filed with the court along with an inventory of the items seized. (e) A search warrant will not be required in the following situations:
(a) A written request seeking the extradition of any individual found within the exterior boundaries of the Nez Perce Reservation to any state, tribal or federal jurisdiction shall be submitted to the chief judge of the Nez Perce Tribal Court and shall be accompanied by:
(b) If the chief judge, after receiving the extradition request is satisfied as to its validity, he shall issue an arrest warrant. The person named in the warrant shall be taken into custody by the tribal police officers with the assistance of the other law enforcement officials involved if requested and held by tribal police for arraignment by the Tribal Court. (c) Once the person suspected of being the one named in the extradition request is in custody of the tribal police, the police shall notify the jurisdiction which issued the request. (d) Within three (3) business days after arrest, the person arrested shall be brought before the chief judge of the Tribal Court. The court shall inform the person of the demand for his surrender and of the crime with which he is charged, that he has a right to representation of legal counsel at his own expense and to request a hearing to challenge the extradition request. If a hearing is requested, the judge shall fix a reasonable time for the hearing release the person on bail, release the person with out bail or hold him in custody until the date of the hearing. If the hearing is waived, the person shall be promptly turned over to the custody of the appropriate authorities. (e) Following an extradition hearing conducted by the chief judge of the Tribal Court, if the judge determines that the person brought before the court is in fact the person named in the extradition request and that there is probable cause to believe that the he committed the offense complained of, an extradition order shall be issued and the person immediately turned over to the custody of the appropriate authorities.
(a) To insure defendant's appearance at any court proceeding or to protect the public, the court may:
(b) The amount of bail shall reflect the gravity and nature of the offense charged and the defendant's ability to pay. Other factors to be considered by the court in setting bail include: the location of the defendant's permanent residence, family responsibilities, and past criminal record. If the defendant is committed in lieu of bail then he may be credited for such time spent in jail. (c) No person shall be detained or jailed for more than three (3) business days unless there has been a commitment bearing the signature of a judge of the Nez Perce Tribal Court. (d) Any person arrested for a crime involving domestic violence or a violation of a domestic protection order shall not be released on bond or on his/her own recognizance prior to being arraigned. Such arraignment shall not occur less than 48 business hours or more than 72 business hours following arrest. (Added 6/22/99)
Unless made at trial or hearing or otherwise provided, an application to the court for an order shall be by written motion. The motion shall state the grounds upon which it is made and shall specify the relief order sought. It shall be supported by a memorandum of points and authorities.
(a) For those parties represented by an attorney, all pleadings, motions and other papers shall be signed by at least one attorney of record in his individual name, who shall also state his address. A party who is not represented by an attorney shall sign the pleading, motion or other paper himself and state his address. (b) A person's signature constitutes a certification by the signer that:
(a) This section shall apply to any service of process required under this chapter. Service of process in criminal cases shall be by tribal police, court employee or any other person designated by the chief judge, who is at least eighteen (18) years of age and is not a party. Service shall be made upon the defendant, by delivering to the defendant a copy of the documents to be served in person, by registered or certified mail, or after first appearance, by first class postage pre-paid with certificate of mailing. (b) Service may be accomplished at any place within the exterior boundaries of the Nez Perce Reservation. The person conducting service of process on another shall make a return to the clerk staling the name of the case, the name of the person served, the place, date and time of service, and shall subscribe his name thereto under penalty of perjury for the intentional making of a false return. (c) All
written pleadings and motions, notices and similar papers other than
those which are heard ex-parte, shall be served on each party as provided
in civil actions and filed with the court. The party filing the motion
or pleading shall certify the date and method of service upon the opposing
party.
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.
There shall be one form of action to be known as "civil action".
Rule 3. Commencement of Action A civil action is commenced by filing a complaint with the Court.
(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 therefore, by any person who makes affidavit that he is indigent and unable to pay such costs or give security therefore, 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.
(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 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) Service With Complaint; By Whom Made.
(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.
(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:
(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) Service Upon Foreign, State or Local Governments
(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 rules. (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 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.
(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.
(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 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.
(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:
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. (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.
(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 third-party 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.
(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
(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
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 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, statue 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) Pleading to be Concise and Direct; Consistency.
(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.
(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 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.
(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.
(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:
(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.
(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.
(a) When Presented.
(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 option of the pleader be made by motion:
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 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.
(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:
(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. (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.
(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 third-party 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. (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.
(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:
(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 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 therefore.
(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:
(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:
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:
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 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.
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.
(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. (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.
(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:
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) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall 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 whey they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23.
(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.
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.
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.
(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:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subsection (a) are satisfied, and in addition:
(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.
(d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the Court may make appropriate orders:
(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.
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.
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).
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:
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.
(a) Death
(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.
Rule 26. General Provisions Governing Discovery; Duty of Disclosure (a) Required Disclosures; Methods to Discover Additional Matter.
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.
(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:
(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:
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:
(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:
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.
(a) Before Action
(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 therefore 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:
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.
(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 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:
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.
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.
(a) When Depositions May be Taken; When Leave Required.
(b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.
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.
(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, 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.
(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.
(g) Failure to Attend or to Serve Subpoena; Expenses.
(a) Serving Questions; Notice.
(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.
(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.
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 nonstenograhic form, if available, unless the Court for good cause orders otherwise. (d) Effect of Errors and Irregularities in Depositions.
(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
(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 pretrial conference or 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.
(a) Scope. Any party may serve on any other party a request:
(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. 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.
(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) Report of Examiner.
(a) Request for Admission. A party may serve upon any other party a written request 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 pretrial 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 pretrial 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.
(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:
(b) Failure to Comply with Order.
In lieu of any of the foregoing orders or in addition thereto, the Court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails:
Any motion specifying a failure under clause (2) or (3) of this subsection shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the Court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the Court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c). (e) Failure to Participate in the Framing of a Discovery Plan. If a party or a party's attorney fails to participate in good faith in the development and submission of a proposed discovery plan as is required by Rule 26(f), the Court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by failure.
Rule 38. Jury Trial of Right (a) Right Preserved. The right of trial by jury shall be preserved to the parties for any claim in which a legal remedy is sought, but excluding a claim in which an equitable remedy is sought. (b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by:
(c) Same: Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within ten (10) days after service of the demand or such lesser time as the Court may order, may serve a demand for trial by jury of any other or all of the issues or fact in the action. (d) Waiver. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the Court or by an oral stipulation made in open court and entered in the record, consent to trial by the Court sitting without a jury or (2) the Court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Indian Civil Rights Act of 1968. (b) By Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the Court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the Court in its discretion upon motion may order a trial by a jury of any or all issues.
The Court shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by tribal law.
(a) Voluntary Dismissal: Effect Thereof.
(b) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subpart (1) of subsection (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. (c) Costs of Previously Dismissed Actions. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the Court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until plaintiff has complied with the order.
(a) Consolidation. When actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Separate Trials. The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claim, cross-claim, counterclaims, third-party claims, or issues, always preserving the right of trial by jury as declared Rule 38.
(a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by tribal law, these rules or the Rules of Evidence. (b) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. (c) Evidence on Motions. When a motion is based on facts not appearing of record the Court may hear the matter on affidavits presented by the respective parties, but the Court may direct that the matter be heard wholly or partly on oral testimony or deposition. (d) Interpreters. The Court may appoint an interpreter of its own selection and may fix the interpreter's reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the Court may direct, and may be taxed ultimately as costs, in the discretion of the Court.
(a) Authentication.
(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subsection (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subsection (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.
A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Rules of Evidence. The Court's determination shall be treated as a ruling on a question of law.
(a) Form; Issuance.
(b) Service.
(c) Protection of Persons Subject to Subpoenas.
(d) Duties in Responding to Subpoena.
(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the Court.
Formal exceptions to rulings or orders of the Court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the Court is made or sought, makes known to the Court the action which the party desires the Court to take or the party's objection to the action of the Court and the grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.
(a) Special Verdicts. The Court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the Court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The Court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the Court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the Court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict. (b) General Verdict Accompanied by Answer to Interrogatories. The Court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The Court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the Court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 55. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 55 in accordance with the answers, notwithstanding the general verdict, or the Court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the Court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
(a) Judgment as a Matter of Law.
(b) Renewal of Motion for Judgment After Trial; Alternative Motion for New Trial. Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the Court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than ten (10) days after entry of judgment. A motion for new trial under Rule 57 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative. If a verdict was returned, the Court may in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law. If no verdict was returned, the Court may, in disposing of the renewed motion, direct the entry of judgment as a matter of law or may order a new trial. (c) Same: Conditional Rulings on Grant of Motion for Judgment as a Matter of Law.
(d) Same: Denial of Motion for Judgment as a Matter of Law. If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. If the appellate court reverses the judgment, nothing in this rules precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
At the close of the evidence or at such earlier time during the trial as the Court reasonably directs, any party may file written requests that the Court instruct the jury on the law as set forth in the requests. The Court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The Court, at its election, may instruct the jury before or after argument, or both. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the Court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 55; and in granting or refusing interlocutory injunctions the Court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the Court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 53, or any other motion except as provided in subsection (c) of this rule. (b) Amendment. Upon motion of a party made not later than ten (10) days after entry of judgment the Court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 57. When findings of fact are made in actions tried by the Court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment. (c) Judgment on Partial Findings. If during a trial without a jury a party has been fully heard on an issue and the Court finds against the party on that issue, the Court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the Court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subsection (a) of this rule.
Rule 51. Judgments; Costs (a) Definition; Forms. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the Court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is not just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings. (d) Costs; Attorneys' Fees.
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default. (b) Judgment. Judgment by default may be entered as follows:
(c) Setting Aside Default. For good cause shown the Court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 58(b). (d) Plaintiffs, Counterclaims, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 51(c).
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty (20) days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The motion shall be served at least ten (10) days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the Court at the hearing on the motion, by examining the pleadings and the evidence before it and by interrogating, counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the Court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the Court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the Court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
(a) In a case of actual controversy within its jurisdiction, the Tribal Court, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration whether or not further relief is or could be sought. (b) The procedure for obtaining a declaratory judgment shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The Court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.
(a) Subject to the provisions of Rule 51(b):
Every judgment shall be set forth on a separate document. Entry of the judgment shall not be delayed, nor the time for appeal extended, in order to tax costs or award fees. Attorneys shall not submit forms of judgment except upon direction of the Court, and these directions shall not be given as a matter of course.
(a) "Foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court. (b) A copy of any foreign judgment authenticated in accordance with the laws of the jurisdiction in which it was issued may be filed in with the clerk of the Court. The clerk shall treat the foreign judgment in the same manner as a judgment of the Tribal Court. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of the Tribal Court and may be enforced or satisfied in like manner, with the following exception:
(c)
(d)
(e) Any person filing a foreign judgment shall pay to the clerk of the Court a fee established by the Tribal Court. (f) The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this rule remains unimpaired. (g) This act may be cited as the 'Enforcement of Judgments Act.'
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues:
(b) Time for Motion. A motion for a new trial shall be served not later than ten (10) days after the entry of the judgment. (c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has ten (10) days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty (20) days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. (d) On Initiative of Court. Not later than ten (10) days after entry of judgment the Court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the Court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the Court shall specify in the order the grounds therefor. (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than ten (10) days after entry of the judgment.
(a) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the Court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the Court. Writs of coram nobis, coram vobis, audita querela and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the Court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the Court inconsistent with substantial justice. The Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
(a) Automatic Stay; Exceptions--Injunctions, Receiverships, and Patent Accountings. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten (10) days after its entry. Unless otherwise ordered by the Court an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letters patent, shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subsection (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal. (b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the Court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 57, or of a motion for relief from a judgment or order made pursuant to Rule 58, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 48, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 50(b). (c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the Court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. (d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subsection (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the Court. (e) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered. (f) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 51(b), the Court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
Rule 62. Seizure of Person or Property At commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the tribe, existing at the time the remedy is sought.
(a) Preliminary Injunction.
(b) There shall exist an action known as a "petition for a domestic protection order" in cases of domestic violence.
(c) Ex Parte Protection Order.
An ex parte temporary domestic protection order shall remain in effect for 10 days from the date of issuance. A full hearing shall be held no more than 10 days from the date of issuance of a ex parte temporary domestic protection order. The respondent shall be personally served with a copy of the temporary order and notice of hearing, in accordance with the Rules of Civil Procedure of the Nez Perce Tribal Code. If the respondent is not personally served with a copy of the temporary order and notice of hearing, the existing temporary order may be extended for 10 days from the date originally set for hearing, and a new hearing date set. The respondent must be personally served with the new notice of hearing.
(e) Full Faith and Credit.
(f) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if:
Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice, and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the Court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless a party against whom the order is directed consents that it may be extended or a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining or protection order is granted without notice, the motion for a preliminary injunction or protection order shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction or protection order and, if the party does not do so, the Court shall dissolve the temporary restraining order. On two (2) days notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the Court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the Court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. (g) Security. No restraining order, preliminary injunction or protection order shall issue except upon the giving of security by the applicant, in such sum as the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. The provisions of Rule 63.1 apply to a surety upon a bond or undertaking under this rule. (h) Form and Scope of Injunction, Restraining Order or Protection Order. Every order granting an injunction and every restraining or protection order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not be reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the Court and irrevocably appoints the clerk of the Court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the Court prescribes may be served on the clerk of the Court, who shall forthwith mail copies to the sureties if their addresses are known.
An action wherein a receiver has been appointed shall not be dismissed except by order of the Court. The practice in the administration of estates by receivers or by other similar officers appointed by the Court shall be in accordance with the practice followed in the courts of the United States or as provided in rules promulgated by such courts. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by these rules.
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the Court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the Court.
At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten (10) days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than ten (10) days prior to the commencement of hearings to determine the amount or extent of liability.
In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the Court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with this code. In aid of the judgment of execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.
When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.
Rule 69. Condemnation of Property (a) Applicability of Other Rules. The Rules of Civil Procedure for the United States District Court for the District of Idaho govern the procedure for the condemnation of real and personal property under the power of eminent domain, except as otherwise provided in this rule. (b) Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use. (c) Complaint.
(d) Process.
(e) Appearance or Answer. If a defendant has no objection or defense to the taking of the defendant's property, the defendant may serve a notice of appearance designating the property in which the defendant claims to be interested. Thereafter, the defendant shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of the property, the defendant shall serve an answer within twenty (20) days after the service of notice upon the defendant. The answer shall identify the property in which the defendant claims to have an interest, state the nature, and extent of the interest claimed, and state all the defendant's objections and defenses to the taking of the property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not the defendant has previously appeared or answered, the defendant may present evidence as to the amount of the compensation to be paid for the property, and the defendant may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed. (f) Amendment of Pleadings. Without leave of court, the plaintiff may amend the complaint at any time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by subsection (i) of this rule. The plaintiff need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Rule 5(b), upon any party affected thereby who has appeared and, in the manner provided in subsection (d) of this rule, upon any party affected thereby who has not appeared. The plaintiff shall furnish to the clerk of the Court for the use of the defendants at least one copy of each amendment and shall furnish additional copies on the request of the clerk or of a defendant. Within the time allowed by subsection (e) of this rule a defendant may serve an answer to the amended pleading, in the form and manner and with the same effect as there provided. (g) Substitution of Parties. If a defendant dies or becomes incompetent or transfers an interest after the defendant's joinder, the Court may order substitution of the proper party upon motion and notice of hearing. If the motion and notice of hearing are to be served upon a person not already a party, service shall be made as provided in subsection (d)(3) of this rule. (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the tribe, any party may have a trial by jury of the issue of just compensation by filing a demand therefore within the time allowed for answer or within such further time as the Court may fix, unless the Court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined by commission of three persons appointed by it. In the event that a commission is appointed the Court may direct that not more than two (2) additional persons serve as alternate commissioners to hear the case and replace commissioners who, prior to the time when a decision is filed, are found by the Court to be unable or disqualified to perform their duties. An alternate who does not replace a regular commissioner shall be discharged after the commission renders its final decision. Before appointing the member of the commission and alternates the Court shall advise the parties of the identity and qualifications of each prospective commissioner and alternate and may permit the parties to examine each such designee. The parties shall not be permitted or required by the Court to suggest nominees. Each party shall have the right to object for valid cause to the appointment of any person as a commissioner or alternate. Trial of all issues shall otherwise be by court. (i) Dismissal of Action.
(j) Deposit and Its Distribution. The plaintiff shall deposit with the Court any money required by law as a condition to the exercise of the power of eminent domain; and although not so required, may make a deposit when permitted by statute. In such cases the Court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the compensation finally awarded to any defendant exceeds the amount which has been paid to that defendant on distribution of the deposit, the Court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to that defendant, the Court shall enter judgment against that defendant and in favor of the plaintiff for the overpayment.
Stenographic Report or Transcript as Evidence. Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony.
These rules shall not be construed to extend or limit the jurisdiction of the Nez Perce Tribe.
The Court may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. The rules shall take effect upon the date specified by the Court and shall remain in effect unless amended by the Court. In all cases not provided for by rule, the Court may regulate its practice in any manner not inconsistent with these rules.
(a) Jurisdiction of Tribal Court
(b) Application must be made to Tribal Court by petition and must include:
(c) Publication of petition
(d) Proof of publication or posting must be presented at the hearing for such name change. Notice of hearing to be published or posted may read as follows:
(e) The Court may examine petitioner or any persons filing objections to the sought name change, under oath, as the Court deems necessary to decide whether to deny or order the sought name change. Back to Top |