Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/frcp4.asc

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/* We continue with the federal rules of civil procedure. */

(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 (1) to appear before the officer who is
to take the deposition, after being served with a proper notice,
or (2) to serve answers or objections to interrogatories
submitted under Rule 33, after proper service of the
interrogatories, or (3) to serve a written response to a request
for inspection submitted under Rule 34, after proper service of
the request, the court in which the action is pending on motion
may make such orders in regard to the failure as are just, and
among others it may take any action authorized under paragraphs
(A), (B), and (C) of subdivision (b)(2) of this rule. 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 subdivision may not be
excused on the ground that the discovery sought is objectionable
unless the party failing to act has applied for a protective
order as provided by Rule 26(c).

(e) [Abrogated]

(f) [Repealed. P.L. 96-481, Title II, [sec.] 205(a), October 21,
1980, 94 Stat. 2330.]

(g) 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 framing of a discovery plan by agreement 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 the failure.


VI. TRIALS


RULE 38. JURY TRIAL OF RIGHT

(a) Right Preserved. The right of trial by jury as declared by
the Seventh Amendment to the Constitution or as given by a
statute of the United States shall be preserved to the parties
inviolate.

(b) Demand. Any party may demand a trial by jury of any issue
triable of right by a jury by serving upon the other parties a
demand therefor in writing at any time after the commencement of
the action and not later than 10 days after the service of the
last pleading directed to such issue. Such demand may be indorsed

upon a pleading of the party.


(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 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 of fact in the action.

(d) Waiver. The failure of a party to serve a demand as required
by this rule and to file it as required by Rule 5(d) 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.

(e) Admiralty and Maritime Claims. These rules shall not be
construed to create a right to trial by jury of the issues in an
admiralty or maritime claim within the meaning of Rule 9(h).

RULE 39. TRIAL BY JURY OR BY THE COURT

(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 Constitution or
statutes of the United States.

(b) By the 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.

(c) Advisory Jury and Trial by Consent. In all actions not
triable of right by a jury the court upon motion or of its own
initiative may try any issue with an advisory jury or, except in
actions against the United States when a statute of the United
States provides for trial without a jury, the court, with the
consent of both parties, may order a trial with a jury whose
verdict has the same effect as if trial by jury had been a matter
of right.


RULE 40. ASSIGNMENT OF CASES FOR TRIAL

The district courts 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 any
statute of the United States.


RULE 41. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of
Rule 23(e), of Rule 66, and of any statute of the United States,
an action may be dismissed by the plaintiff without order of
court (i) by filing a notice of dismissal at any time before
service by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs, or (ii) by filing a
stipulation of dismissal signed by all parties who have appeared
in the action.  Unless otherwise stated in the notice of
dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal operates as an adjudication
upon the merits when filed by a plaintiff who has once dismissed
in any court of the United States or of any state an action based
on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of
this subdivision of this rule, an action shall not be dismissed
at the plaintiff's instance save upon order of the court and upon
such terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the service
upon the defendant of the plaintiff's motion to dismiss, the
action shall not be dismissed against the defendant's objection
unless the counterclaim can remain pending for independent
adjudication by the court. Unless otherwise specified in the
order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal: Effect Thereof. For failure of the
plaintiff to prosecute or to comply with these rules or any order
of court, a defendant may move for dismissal of an action or of
any claim against the defendant. Unless the court in its order
for dismissal otherwise specifies, a dismissal under this
subdivision and any dismissal not provided for in this rule,
other than a dismissal for lack of jurisdiction, for improper
venue, or for failure to join a party under Rule 19, operates as
an adjudication upon the merits.

(c) 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 paragraph (1) of
subdivision (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.

(d) Costs of Previously Dismissed Action. 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 the plaintiff has complied with
the order.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 42. CONSOLIDATION; SEPARATE TRIALS

(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 claims, cross-claims,
counterclaims, third-party claims, or issues, always preserving
inviolate the right of trial by jury as declared by the Seventh
Amendment to the Constitution or as given by a statute of the
United States.


RULE 43. TAKING OF TESTIMONY

(a) Form. In all trials the testimony of witnesses shall be taken
orally in open court, unless otherwise provided by an Act of
Congress or by these rules, the Federal Rules of Evidence, or
other rules adopted by the Supreme Court.

(b) [Abrogated]

(c) [Abrogated]

(d) 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.

(e) 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.

(f) 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.


RULE 44. PROOF OF OFFICIAL RECORD

(a) Authentication.

(1) Domestic. An official record kept within the United States,
or any state, district, or commonwealth, or within a territory
subject to the administrative or judicial jurisdiction of the
United States, or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the
record, or by the officer's deputy, and accompanied by a
certificate that such officer has the custody. The certificate
may be made by a judge of a court of record of the district or
political subdivision in which the record is kept, authenticated
by the seal of the court, or may be made by any public officer
having a seal of office and having official duties in the
district or political subdivision in which the record is kept,
authenticated by the seal of the officer's office.

(2) Foreign. A foreign official record, or an entry therein, when
admissible for any purpose, may be evidenced by an official
publication thereof; or a copy thereof, attested by a person
authorized to make the attestation, and accompanied by a final
certification as to the genuineness of the signature and official
position (i) of the attesting person, or (ii) of any foreign
official whose certificate of genuineness of signature and
official position relates to the attestation or is in a chain of
certificates of genuineness of signature and official position
relating to the attestation. A final certification may be made by
a secretary of embassy or legation, consul general, vice consul,
or consular agent of the United States, or a diplomatic or
consular official of the foreign country assigned or accredited
to the United States. If reasonable opportunity has been given to
all parties to investigate the authenticity and accuracy of the
documents, the court may, for good cause shown, (i) admit an
attested copy without final certification or (ii) permit the
foreign official record to be evidenced by an attested summary
with or without a final certification. The final certification is
unnecessary if the record and the attestation are certified as
provided in a treaty or convention to which the United States and
the foreign country in which the official record is located are
parties.

(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 subdivision (a)(1) of this rule in the case of a
domestic record, or complying with the requirements of
subdivision (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.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 44.1. DETERMINATION OF FOREIGN 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 Federal Rules of Evidence. The court's determination
shall be treated as a ruling on a question of law.


RULE 45. SUBPOENA

(a) Form; Issuance.

(1) Every subpoena shall

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in which
it is pending, and its civil action number; and

(C)  command each person to whom it is directed to attend and
give testimony or to produce and permit inspection and copying of
designated books, documents or tangible things in the possession,
custody or control of that person, or to permit inspection of
premises, at a time and place therein specified; and

(D)  set forth the text of subdivisions (c) and (d) of this rule.

A command to produce evidence or to permit inspection may be
joined with a command to appear at trial or hearing or at
deposition, or may be issued separately.

(2) A subpoena commanding attendance at a trial or hearing shall
issue from the court for the district in which the hearing or
trial is to be held. A subpoena for attendance at a deposition
shall issue from the court for the district designated by the
notice of deposition as the district in which the deposition is
to be taken.  If separate from a subpoena commanding the
attendance of a person, a subpoena for production or inspection
shall issue from the court for the district in which the
production or inspection is to be made.

(3) The clerk shall issue a subpoena, signed but otherwise in
blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and
sign a subpoena on behalf of

(A) a court in which the attorney is authorized to practice; or

(B) a court for a district in which a deposition or production is
compelled by the subpoena, if the deposition or production
pertains to an action pending in a court in which the attorney is
authorized to practice.

(b) Service.

(1) A subpoena may be served by any person who is not a party and
is not less than 18 years of age. Service of a subpoena upon a
person named therein shall be made by delivering a copy thereof
to such person and, if the person's attendance is commanded, by
tendering to that person the fees for one day's attendance and
the mileage allowed by law. When the subpoena is served on behalf
of the United States or an officer or agency thereof, fees and
mileage need not be tendered. Prior notice of any commanded
production of documents and things or inspection of premises
before trial shall be served on each party in the manner
prescribed by Rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place
within the district of the court by which it is issued, or at any
place without the district that is within 100 miles of the place
of the deposition, hearing, trial, production, or inspection
specified in the subpoena or at any place within the state where
a state statute or rule of court permits service of a subpoena
issued by a state court of general jurisdiction sitting in the
place of the deposition, hearing, trial, production, or
inspection specified in the subpoena. When a statute of the
United States provides therefor, the court upon proper
application and cause shown may authorize the service of a
subpoena at any other place. A subpoena directed to a witness in
a foreign country who is a national or resident of the United
States shall issue under the circumstances and in the manner and
be served as provided in Title 28, U.S.C. [sec.] 1783.

(3) Proof of service when necessary shall be made by filing with
the clerk of the court by which the subpoena is issued a
statement of the date and manner of service and of the names of
the persons served, certified by the person who made the service.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and
service of a subpoena shall take reasonable steps to avoid
imposing undue burden or expense on a person subject to that
subpoena. The court on behalf of which the subpoena was issued
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's
fee.

(2)(A) A person commanded to produce and permit inspection and
copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at
the place of production or inspection unless commanded to appear
for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded
to produce and permit inspection and copying may, within 14 days
after service of the subpoena or before the time specified for
compliance if such time is less than 14 days after service, serve
upon the party or attorney designated in the subpoena written
objection to inspection or copying of any or all of the
designated materials or of the premises. If objection is made,
the party serving the subpoena shall not be entitled to inspect
and copy the materials or inspect the premises except pursuant to
an order of the court by which the subpoena was issued. If
objection has been made, the party serving the subpoena may, upon
notice to the person commanded to produce, move at any time for
an order to compel the production.  Such an order to compel
production shall protect any person who is not a party or an
officer of a party from significant expense resulting from the
inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued
shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer of a
party to travel to a place more than 100 miles from the place
where that person resides, is employed or regularly transacts
business in person, except that, subject to the provisions of
clause (c)(3)(B)(iii) of this rule, such a person may in order to
attend trial be commanded to travel from any such place within
the state in which the trial is held, or

(iii) requires disclosure of privileged or other protected matter
and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential
research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or
information not describing specific events or occurrences in
dispute and resulting from the expert's study made not at the
request of any party, or

(iii) requires a person who is not a party or an officer of a
party to incur substantial expense to travel more than 100 miles
to attend trial, the court may, to protect a person subject to or
affected by the subpoena, quash or modify the subpoena or, if the
party in whose behalf the subpoena is issued shows a substantial
need for the testimony or material that cannot be otherwise met
without undue hardship and assures that the person to whom the
subpoena is addressed will be reasonably compensated, the court
may order appearance or production only upon specified
conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents 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 demand.

(2) When information subject to a subpoena is withheld on a claim
that it is privileged or subject to protection as trial
preparation materials, the claim shall be made expressly and
shall be supported by a description of the nature of the
documents, communications, or things not produced that is
sufficient to enable the demanding party to contest the claim.

(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 from which the subpoena issued. An adequate cause
for failure to obey exists when a subpoena purports to require a
non-party to attend or produce at a place not within the limits
provided by clause (ii) of subparagraph (c)(3)(A).

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 46. EXCEPTIONS UNNECESSARY

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.


RULE 47. JURORS

(a) Examination of Jurors. The court may permit the parties or
their attorneys to conduct the examination of prospective jurors
or may itself conduct the examination. In the latter event, the
court shall permit the parties or their attorneys to supplement
the examination by such further inquiry as it deems proper or
shall itself submit to the prospective jurors such additional
questions of the parties or their attorneys as it deems proper.

(b) Peremptory Challenges. The court shall allow the number of
peremptory challenges provided by 28 U.S.C. [sec.] 1870.

(c) Excuse. The court may for good cause excuse a juror from
service during trial or deliberation.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 48. NUMBER OF JURORS - PARTICIPATION IN VERDICT

The court shall seat a jury of not fewer than six and not more
than twelve members and all jurors shall participate in the
verdict unless excused from service by the court pursuant to Rule
47(c). Unless the parties otherwise stipulate, (1) the verdict
shall be unanimous and (2) no verdict shall be taken from a jury
reduced in size to fewer than six members.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 49. SPECIAL VERDICTS AND INTERROGATORIES

(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 58. 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 58
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.


RULE 50. JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY;
ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS

(a)  Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard with
respect to an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to have found for that
party with respect to that issue, the court may grant a motion
for judgment as a matter of law against that party on any claim,
counterclaim, cross-claim, or third party claim that cannot under
the controlling law be maintained without a favorable finding on
that issue.

(2) Motions for judgment as a matter of law may be made at any
time before submission of the case to the jury. Such a motion
shall specify the judgment sought and the law and the facts on
which the moving party is entitled to the judgment.

(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 10 days after entry
of judgment. A motion for a new trial under Rule 59 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.

(1) If the renewed motion for judgment as a matter of law is
granted, the court shall also rule on the motion for a new trial,
if any, by determining whether it should be granted if the
judgment is thereafter vacated or reversed, and shall specify the
grounds for granting or denying the motion for the new trial. If
the motion for a new trial is thus conditionally granted, the
order thereon does not affect the finality of the judgment. In
case the motion for a new trial has been conditionally granted
and the judgment is reversed on appeal, the new trial shall
proceed unless the appellate court has otherwise ordered. In case
the motion for a new trial has been conditionally denied, the
appellee on appeal may assert error in that denial; and if the
judgment is reversed on  appeal, subsequent proceedings shall be
in accordance with the order of the appellate court.

(2) The party against whom judgment as a matter of law has been
rendered may serve a motion for a new trial pursuant to Rule 59
not later than 10 days after entry of the judgment.

(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 rule 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.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 51. INSTRUCTIONS TO JURY: OBJECTION

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.


RULE 52. FINDINGS BY THE COURT

(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 58; 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 of the credibility of the witnesses. The
findings of a master, to the extent that the court adopts them,
shall be considered as the findings of the court. 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 56 or any
other motion except as provided in subsection (c) of this rule.

(b)  Amendment. Upon motion of a party made not later than 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 59.  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 jury
a party has been fully heard with respect to 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 on any claim,
counterclaim, cross-claim or third-party claim 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 subdivision (a) of this rule.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 53. MASTERS

(a) Appointment and Compensation. The court in which any action
is pending may appoint a special master therein. As used in these
rules the word "master" includes a referee, an auditor, an
examiner, and an assessor. The compensation to be allowed to a
master shall be fixed by the court, and shall be charged upon
such of the parties or paid out of any fund or subject matter of
the action, which is in the custody and control of the court as
the court may direct; provided that this provision for
compensation shall not apply when a United States magistrate is
designated to serve as a master pursuant to Title 28, U.S.C.
[sec.] 636(b)(2). The master shall not retain the master's report
as security for the master's compensation; but when the party
ordered to pay the compensation allowed by the court does not pay
it after notice and within the time prescribed by the court, the
master is entitled to a writ of execution against the delinquent
party.

(b) Reference. A reference to a master shall be the exception and
not the rule. In actions to be tried by a jury, a reference shall
be made only when the issues are complicated; in actions to be
tried without a jury, save in matters of account and of difficult
computation of damages, a reference shall be made only upon a
showing that some exceptional condition requires it. Upon the
consent of the parties, a magistrate may be designated to serve
as a special master without regard to the provisions of this
subdivision.

(c) Powers. The order of reference to the master may specify or
limit the master's powers and may direct the master to report
only upon particular issues or to do or perform particular acts
or to receive and report evidence only and may fix the time and
place for beginning and closing the hearings and for the filing
of the master's report. Subject to the specifications and
limitations stated in the order, the master has and shall
exercise the power to regulate all proceedings in every hearing
before the master and to do all acts and take all measures
necessary or proper for the efficient performance of the master's
duties under the order. The master may require the production
before the master of evidence  upon all matters embraced in the
reference, including the production of all books, papers,
vouchers, documents, and writings applicable thereto. The master
may rule upon the admissibility of evidence unless otherwise
directed by the order of reference and has the authority to put
witnesses on oath and may examine them and may call the parties
to the action and examine them upon oath. When a party so
requests, the master shall make a record of the evidence offered
and excluded in the same manner and subject to the same
limitations as provided in the Federal Rules of Evidence for a
court sitting without a jury.

(d) Proceedings.

(1) Meetings. When a reference is made, the clerk shall forthwith
furnish the master with a copy of the order of reference. Upon
receipt thereof unless the order of reference otherwise provides,
the master shall forthwith set a time and place for the first
meeting of the parties or their attorneys to be held within 20
days after the date of the order of reference and shall notify
the parties or their attorneys. It is the duty of the master to
proceed with all reasonable diligence. Either party, on notice to
the parties and master, may apply to the court for an order
requiring the master to speed the proceedings and to make the
report. If a party fails to appear at the time and place
appointed, the master may proceed ex parte or, in the master's
discretion, adjourn the proceedings to a future day, giving
notice to the absent party of the adjournment.

(2) Witnesses. The parties may procure the attendance of
witnesses before the master by the issuance and service of
subpoenas as provided in Rule 45. If without adequate excuse a
witness fails to appear or give evidence, the witness may be
punished as for a contempt and be subjected to the consequences,
penalties, and remedies provided in Rules 37 and 45.

(3) Statement of Accounts. When matters of accounting are in
issue before the master, the master may prescribe the form in
which the accounts shall be submitted and in any proper case may
require or receive in evidence a statement by a certified public
accountant who is called as a witness. Upon objection of a party
to any of the items thus submitted or upon a showing that the
form of statement is insufficient, the master may require a
different form of statement to be furnished, or the accounts or
specific items thereof to be proved by oral examination of the
accounting parties or upon written interrogatories or in such
other manner as the master directs.

(e) Report.

(1) Contents and Filing. The master shall prepare a report upon
the matters submitted to the master by the order of reference
and, if required to make findings of fact and conclusions of law,
the master shall set them forth in the report. The master shall
file the report with the clerk of the court and serve on all
parties notice of the filing. In an action to be tried without a
jury, unless otherwise directed by the order of reference, the
master shall file with the report a transcript of the proceedings
and of the evidence and the original exhibits. Unless otherwise
directed by the order of reference, the master shall serve a copy
of the report on each party.

(2) In Non-Jury Actions. In an action to be tried without a jury
the court shall accept the master's findings of fact unless
clearly erroneous. Within 10 days after being served with notice
of the filing of the report any party may serve written
objections thereto upon the other parties. Application to the
court for action upon the report and upon objections thereto
shall be by motion and upon notice as prescribed in Rule 6(d).
The court after hearing may adopt the report or may modify it or
may reject it in whole or in part or may receive further evidence
or may recommit it with instructions.

(3) In Jury Actions. In an action to be tried by a jury the
master shall not be directed to report the evidence. The master's
findings upon the issues submitted to the master are admissible
as evidence of the matters found and may be read to the jury,
subject to the ruling of the court upon any objections in point
of law which may be made to the report.

(4) Stipulation as to Findings. The effect of a master's report
is the same whether or not the parties have consented to the
reference; but, when the parties stipulate that a master's
findings of facts shall be final, only questions of law arising
upon the report shall thereafter be considered.

(5) Draft Report. Before filing the master's report a master may
submit a draft thereof to counsel for all parties for the purpose
of receiving their suggestions.

(f) A magistrate is subject to this rule only when the order
referring a matter to the magistrate expressly provides that the
reference is made under this Rule.

Note. Amended April 30, 1991, effective December 1, 1991.


VII. JUDGMENT


RULE 54. JUDGMENTS; COSTS

(a) Definition; Form. "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 no 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 claims or the rights and liabilities of 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. Except when express provision therefor is made either
in a statute of the United States or in these rules, costs shall
be allowed as of course to the prevailing party unless the court
otherwise directs; but costs against the United States, its
officers, and agencies shall be imposed only to the extent
permitted by law. Costs may be taxed by the clerk on one day's
notice. On motion served within 5 days thereafter, the action of
the clerk may be reviewed by the court.


RULE 55. DEFAULT

(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:

(1) By the Clerk. When the plaintiff's claim against a defendant
is for a sum certain or for a sum which can by computation be
made certain, the clerk upon request of the plaintiff and upon
affidavit of the amount due shall enter judgment for that amount
and costs against the defendant, if the defendant has been
defaulted for failure to appear and if he is not an infant or
incompetent person.