RULES OF CIVIL PROCEDURE
RULE .1 SCOPE
.1A The White Mountain Apache Rules of Civil Procedure shall consist of the Formal Rules of Civil Procedure and the Informal Rules of Civil Procedure, and this Chapter, which shall determine their application. These rules shall govern all aspects of procedure in civil matters in the White Mountain Apache Tribal Court, except as otherwise provided by Tribal Law.
.1B The procedural provisions of the White Mountain Apache Game and Fish Code shall govern all civil actions prosecuted under that Code. In the event of a conflict between particular provisions of the Game and Fish Code and these Rules of Civil Procedure, the Game and Fish Code shall apply, any conflicting provisions of this Code notwithstanding. To the extent that a procedural questions is not answered by the Game and Fish Code, the relevant provisions of these Rules of Civil Procedure shall be applied.
RULE .2 APPLICATION OF FORMAL AND INFORMAL RULES OF CIVIL PROCEDURE
.2A Except as otherwise provided by these Rules or other tribal law, procedure in civil matters in the Tribal Court shall be governed by the Informal Rules of Civil Procedure.
.2B The parties to any civil case may agree to use the Formal Rules throughout the entire case or for any part of the case,a nd if there is such agreement, they shall file a joint written motion to that effect, explaining the reasons for the motion. The court shall freely grant such joint motions when to do so would be in the interest of justice, and would not result in unnecessary complexity, expense, or delay.
.2C At any point after a complaint has been filed, any party to a civil case may make a motion to invoke the Formal Rules of Civil Procedure for the rest of the case, or for the determination of particular questions of procedure. The other party may agree to the change or may object to the use of the Formal Rules, specifying the reasons for the objection. If there is an objection, the judge shall hear argument on the issue and if the judge determines that changing to the Formal Rules:
(1) would be in the interest of justice; and
(2) would provide the basis for determining an issue about which there is or could be disagreement between the parties; and
(3) would provide the basis for determining an issue which, under the circumstances, is not adequately dealt with by the Informal Rules; and
(4) would not result in unnecessary complexity, expense, or delay; and
(5) would not result in unfair advantage to either party,
the judge shall grant the motion to change to the Formal Rules.
.2D At any point in a civil case in which the Formal Rules are being used, either party ma make a motion to return to the Informal Rules for a part of the case or the rest of the case. The other party may agree to the change, or may object to the use of the Informal Rules, specifying the reasons for the objection. If there is an objection, the judge shall hear argument on the issue and if the judge determines that changing to the Informal Rules:
(1) would be in the interest of justice; and
(2) would not result in unfair advantage to either party,
the judge shall grant the motion to change to the Informal Rules.
.2E The judge, on his or her own motion, may order that a change be made from one set of rules to the other, based on the same criteria established in sections C and D above. Before any such change shall be made on the judge's own motion, the judge shall announce his or her intention to do so and provide the parties an opportunity to be heard on the matter.
.2F Whenever the judge orders that the Rules governing procedure in a case shall be changed from Formal to Informal, or vice versa, he or she shall explain the order and the reasons for its issuance. The Court Clerk shall note such change and the judge's reasons on the record.
RULE I-1 FILING AND NOTICE
I-1A. The original of every written complaint, answer, summons, motion, argument, agreement, order, or other document served upon a party during a case in Tribal Court shall be filed with the Clerk.
I-1B. A party who files any document with the Court Clerk in a lawsuit shall give a copy of the same document to every other party in the case. If a party is represented by counsel, all documents except the complaint and summons shall be given to counsel, instead of the party. Delivery of a copy as required by this Rule may be made either by giving it to the party or counsel in person or by mailing it first class, postage paid, to the party's or counsel's correct address.
I-1C. Every decision and order of the court shall be written down by the Judge or Clerk, and signed by the Judge. The Clerk shall file a copy and give or send a copy of each such ruling to each party and counsel in the case.
RULE I-2 TIMING
I-2A. Whenever a Rule, Tribal Law, or an order of the Court requires that an action be taken within a certain number of days, the day of the event from which the time limit runs shall not be counted; but the last day shall be counted unless it is a Saturday, Sunday, or tribal holiday. When the last day is a Saturday, Sunday, or tribal holiday, the deadline shall be the first work day following the day that is not counted. Where the time limit is less than seven days, Saturdays, Sundays, and tribal holidays shall not be counted at all.
I-2B. When a time limit is counted from or to the time that notice is delivered to a person and the notice is delivered by mail rather than given directly to the person, it shall be presumed that delivery takes place three days after the notice is placed in a United States Postal Service mailbox.
I-2C. On request of a party, and if good cause exists, the Judge may allow an extension of any time limit prescribed by a Rule of Civil Procedure or Rule of Court.
RULE I-3 ORAL PROCEDURES
I-3A. Unless otherwise specified by these Rules, or ordered by a Judge pursuant to a Rule of Court, motions, arguments, discovery requests, and other actions taken by the parties during the course of a lawsuit may be oral or written. Oral actions taken by the parties, in order to be enforceable by the Court, shall take place in open court in the presence of the judge and all parties.
I-3B. Notice. All oral actions taken by the parties in open court shall be subject to the notice requirements of Rule I-13. The Notice of Motion form provided for by that rule may be used to satisfy the notice requirements for all oral actions.
RULE I-4 FORM OF COURT PAPERS
All written materials submitted to the Court must be clear and legible and shall contain the name of the Court, the names of all parties, the Court file number for the case, the signature of the party filing it or of the party's counsel, and any other information required by these Rules. For convenience the Court may develop standard forms for pleadings, motions, notices, and orders.
RULE I-5 LIMITATION OF ACTIONS
I-5A. A civil lawsuit in Tribal Court must be started:
(1) in the case of torts and oral contracts, and actions not otherwise provided for herein, within two years;
(2) in the case of causes of action based upon statute, within one year;
(3) in the case of written contracts, five years.
I-5B. The time within which a civil lawsuit must be filed shall be counted from the date on which the injury or breach was first known to the injured party or should have been known to a reasonably aware person in the position of the injured party.
I-5C. For the purpose of meeting the deadline set in this Rule, a civil suit is started when the complaint is filed with the Clerk of the Court.
RULE I-6 COMMENCEMENT OF A LAWSUIT; COMPLAINTS; PROOF OF SERVICE; FILING FEE; SUMMONS
I-6A. A person who wishes to start a civil lawsuit in Tribal Court shall first file a written complaint with the Court Clerk. The person who has filed the complaint shall be known as the plaintiff in the lawsuit. The complaint shall describe the injury or breach the plaintiff is complaining of, the name or describe the person responsible for such injury or breach, who shall be known as the defendant, and state the relief requested. The plaintiff shall sign the complaint. If a person ins unable to prepare a written complaint, the Clerk may help that person to complete a complaint form provided by Rule of Court.
I-6B. After the plaintiff has filed the complaint, the Clerk shall issue a summons directing the defendant to answer the complaint within 20 days of the time defendant receives the complaint and summons. The summons shall be on the official form provided for that purpose by Rule of Court, and shall inform the defendant of the consequences of default.
I-6C. Within 90 days after plaintiff files a civil complaint, plaintiff shall cause a copy of the complaint, together with the summons, to be served upon (delivered to) each defendant named in the complaint. The complaint and summons must be served by a person of the age of eighteen (18) or more years who has no stake in the outcome of the lawsuit. It may be served either by giving it to the defendant directly or by leaving it at defendant's residence or place of employment with a person at least 14 years old who lives or works there.
I-6D. The person who delivers the complaint shall sign and file a proof of service with the Clerk. The proof of service shall indicate the type of document served, the date and place of service, and the name of the person served, and shall be on the form provided for that purpose by Rule of Court.
I-6E. Every person who files a civil lawsuit shall pay a filing fee to be established by Rule of Court.
RULE I-7 AMENDMENT, WITHDRAWAL, DISMISSAL OF THE COMPLAINT
I-7A. A plaintiff may change the complaint without Court permission at any time before the defendant answers it, as long as a copy of the changed complaint is delivered to all parties according to the Rules for complaints. After the defendant has answered the complaint, the judge may still allow plaintiff to change the complaint as long as allowing the change would not be unfair to defendant.
I-7B. The Judge shall allow plaintiff to withdraw the complaint and shall dismiss the case at any time plaintiff requests unless the defendant has counterclaimed against plaintiff or dismissal of the case would otherwise be unfair to the defendant. The Judge may order a plaintiff who withdraws a complaint to pay all costs of the suit to defendant.
RLE I-8 DEFENSES, ANSWERS; COUNTERCLAIMS
I-8A. Within 20 days after defendant receives a copy of a civil complaint and summons, he or she must answer the complaint in writing. Defendant must sign the answer, file it with the clerk, and cause it to be served upon plaintiff following the rules for service of a complaint, all within the 20 day answering period. The person who serves the answer shall file a proof of service as provided in Rule I-5D. If defendant is not able to prepare a written answer, he or she shall explain to the Clerk the nature of the defense which will be presented, and the Clerk shall help the defendant to put the answer in writing, on the form provided for that purpose by Rule of Court.
I-8B. In addition to, or as a way of raising a defense to the complaint, defendant may file a complaint (counterclaim) against plaintiff, following the same rules which apply to complaints.
RULE I-9 PRELIMINARY INJUNCTIONS AND TEMPORARY RESTRAINING ORDERS
I-9A. A party to a civil suit may ask the judge for a pre-trial order (injunction) prohibiting or requiring particular action by another party to keep things as they are until the Court has a chance to reach a final decision in the case. The order shall be granted if the person requesting it shows that there is a good chance that he or she will win the suit and that he or she will suffer irreparable loss or injury if the injunction is not issued.
I-9B. Unless otherwise stated in the injunction, a pre-trial injunction shall remain in effect until final judgment in the case.
I-9C. Except as provided in Section D of this rule, no pre-trial injunction shall be issued unless the party to be enjoined first has notice and an opportunity to be heard in court.
I-9D. A judge may issue a temporary restraining order prohibiting or requiring particular action by a party to keep things as they are pending the court's final decision in the case without prior notice t the party to be restrained, when the party who requests such an order shows by sworn statement or oral testimony that he or she will suffer permanent loss or injury if the order is not issued before the opposing party can be notified and heard, and that he or she made a reasonable attempt to notify the opposing party of the time when the request would be made.
I-9E. A temporary restraining order shall be effective only for the time period specified in the order, and in no case for longer than ten days. Subject to the requirements of section I-9D, a temporary restraining order may be renewed once for good cause.
I-9F. The judge may require a party who requests a restraining order or pre-trail injunction to provide security for any loss or injury which may be suffered by a party who is wrongfully enjoined or restrained; provided, however, that the judge shall not require such security from the Tribe or any of its branches.
RULE I-10 DEFAULT
I-10A. Failure of a defendant to file and serve and answer upon the plaintiff within 20 days after the complaint was served shall be a default and shall provide grounds for judgment against he defendant as asked for in the complaint. No judgment of default shall be made, however, unless the plaintiff makes a written motion for a default judgment and serves a copy of the motion on each defendant in the same manner as a complaint must be served. The motion for default judgment shall state a time, no sooner than three days after service of the motion, when plaintiff will argue the motion to the Judge. If defendant files an answer to the complaint at or before the time that the motion is to be argued to the Judge, no default judgment shall be granted, and the matter shall proceed as though answered on time. If defendant does not answer by that time, a default judgment shall be entered.
I-10B. In granting a default judgment, the Judge may refuse to grant relief requested by plaintiff if granting the relief would be contrary to tribal law or would be unjust. The judge may not grant plaintiff greater relief on default than was requested in the complaint.
RULE I-11 DISCOVERY
I-11A. It is the policy of the Tribal Court that the truth will be revealed more readily if all parties in a civil case have access to all information and evidence related to the case. In preparation for trial, therefore, the parties may ask each other for and shall make available to each other all information in each other's possession or control which will be used as evidence in the case, or which can reasonably be expected to lead to evidence.
I-11B. Methods of discovering and exchanging information may include but need not be limited to written questions, oral examination, requests for witnesses' names, requests for admissions, physical inspection of property, requests to perform scientific or physical tests, and requests for documents. The party who makes a request under this rule shall be as clear and specific as possible in describing what he or she wants.
I-11C. A party may refuse to make available the information requested pursuant to this rule if its release would cause the responding party or a third person undue hardship, annoyance, or embarrassment, or would violate a confidence which it is tribal custom or official tribal policy to protect. If the parties disagree about whether the responding party is required to release the information, the judge shall decide the dispute. The judge may place conditions on the release of information in order to protect confidential material, prevent unreasonable burden or expense to one party, or otherwise ensure fairness to all parties.
I-11D. A party who receives a request for information under this rule shall, within ten days of receiving the request, respond either with the information, with an indication where and when the information will be available, or with an objection and refusal to comply with the request. Failure to respond within ten days is grounds for a court order requiring response.
RULE I-12 PRE-TRIAL CONFERENCE
I-12A. In the interest of saving time, simplifying issues, and avoiding unnecessary litigation, the judge may, on his or her own motion, or on the motion of any party, schedule one or more pre-trail conferences with all parties to a case. In any case determined by the judge to be complex, at least one pre-trial conference shall be held after the completion of discovery, and early enough to aid parties in planning for trial.
I-12B. The pre-trial conference shall be held in an informal setting and shall be conducted without formal procedures. The parties and the judge shall discuss areas where the parties are in agreement and areas where they disagree. The purpose of the discussion shall include the following:
(1) To identify and dispose of issues which may be resolved without trial;
(2) To narrow and focus issues of law which remain to be decided and to identify central facts which are still in dispute;
(3) To limit the number of witnesses and the evidence which will be presented so that testimony and other evidence is not repetitious or irrelevant; and
(4) To avoid surprise at trial.
I-12C. To accomplish the above purposes, all parties to a lawsuit shall, at the pretrial conference after discovery, fully disclose:
(1) The names and addresses of all witnesses they expect to present at trial, and the basic information to which they expect the witness to testify;
(2) All documents they expect to introduce as evidence, and the basic information which they intend to prove with the documents; and
(3) All objects which they intend to introduce as evidence and the basic information which they intend to prove with those objects.
I-12D. No party shall be permitted to use the testimony of any witness or introduce as evidence any document or object unless they disclosed the witness, document, or object at the pre-trial conference as provided in C above, unless the party proves that at the time of the pre-trial conference they were unaware of the existence or nature of the witness, document or object and could not, with reasonable effort, have discovered it in time to disclose it. Such evidence must, in any case, be disclosed to the judge and opposing party before it is offered in the trial.
I-12E. No offer of settlement or other statement which is made by a party during a pre-trial conference may be used as evidence against that party if settlement is not then achieved. Agreements reached as a result of a pre-trial conference shall be put in writing and signed by all parties. Such agreement shall be made part of the final judgment issued by the judge.
RULE I-13 MOTIONS
I-13A. Any questions regarding procedure or the rights of the parties which arise during a lawsuit and which cannot be settled by agreement of the parties may be presented to the judge in a motion, which is a request for an order.
I-13B. Motions may be made in writing or orally. If the motion is not made during and as a consequence of events at a trial or other hearing, the moving party shall notify other parties of the nature and basis of the motion and the hearing time at least five days before the motion is presented in court, so the responding party has a chance to plan a response. The notice required by this section shall be called a Notice of Motion, shall be in writing, and shall be served upon the party, or, if the party is represented by counsel, upon the party's counsel, according to Rule I-1B. Persons who are unable to prepare their own written Notice of Motion may be assisted by the Clerk in filling out a Notice of Motion form, provided for that purpose by Rule of Court.
I-13C. Motions to dismiss the lawsuit because the court lacks jurisdiction or because the plaintiff has not started a basis for relief may be made at any time. All other pretrial motions which would determine the procedures used at trial must be made at least five days before trial. The judge may deny a motion which could and should have been made earlier in the case if it appears that the moving party knew or should have known earlier about the basis for the motion and has raised it late because of negligence or an intent to harass the other party.
RULE I-14 COMPELLING WITNESSES TO APPEAR; SUBPOENAS
I-14A. Any party to a lawsuit or other proceeding in Tribal Court shall have the right to compel witnesses to appear in court and testify concerning the matter.
I-14B. Upon request of a party, the Court shall issue a subpoena, an order which commands a named person to appear in court and/or to bring certain evidence or documents to Court.
I-14C. All subpoenas shall be signed by a Judge, except as otherwise provided by a Rule of Court.
I-14D. Every subpoena shall be in writing and shall include the name of the Court, the Court's seal, the names of all parties, the time and place that the witness must appear, and a clear and detailed description of any documents or evidence which the witness is required to bring.
I-14E. Subpoenas shall be delivered to the witness by a person of the age of eighteen (18) or more years who has no stake in the case. The subpoena must be delivered by giving it to the witness directly.
I-14F. A person who delivers a subpoena shall promptly file with the Clerk a copy of the subpoena and a proof of service as defined in Rule I-6D.
I-14G. Failure of a witness to obey a subpoena shall be grounds for holding the witness in contempt of Court after a hearing pursuant to Section 2.20F of the White Mountain Apache Government Code.
I-14H. A witness who responds to a civil subpoena shall be entitled to a fee of twenty dollars ($20.00) for each day or partial day that he or she must appear in Court. The Judge may, in addition, order that the witness be paid reasonable and necessary travel and living expenses incurred in responding to the subpoena. Witnesses shall be offered full payment of their fees for one day's service at the time they are served with the subpoena. The party requesting the issuance of a subpoena shall tender the fees to the witness upon service of the subpoena.
RULE I-15 JURY TRIALS
I-15A. Jury request; fee. A jury trial shall be held if requested by either party to the case at least ten (10) days before the trial. The party who requests a jury trial shall pay tot he Court a jury fee established by Rule of Court. Payment of the jury fee may be waived by the Chief Judge upon the request of a party if payment of the fee would result in severe hardship to the party. The party who requests a jury trial or a visiting judge who fails to provide at least five days notice by a written motion to continue shall be liable for the payment of jury fees and fees payable to the visiting judge at the discretion of the Judge presiding over the trial.
I-15B. Eligibility; non-members; jury list.
(1) To be eligible to serve as a juror on a civil case a person must be a tribal member or a permanent resident of the White Mountain Apache Reservation, must be eighteen years of age or older, must never have been convicted in any court of a felony, and must not at the time the list is made, or at the time of the trial, be holding the office of tribal judge, tribal police officer, or Tribal Council member.
(2) For the purposes of this section, a permanent resident of the Reservation is a person who rents or owns a dwelling place on the reservation, and who resides in that dwelling place other than seasonally or periodically, and who receives mail on the reservation at an on-reservation post office box or reservation street address, and who intends to make the reservation his or her permanent home for the indefinite future, and who does not claim residence at any other location for any purpose. Any non-member who claims to be a permanent resident of the reservation for the purposes of this section shall register for jury duty by supplying to the Tribal Council a statement of his or her qualifications for such status under this section.
(3) The Tribal Council Secretary shall prepare each year a list of persons eligible to serve as jurors, and shall provide the jury list to the Clerk of the Court. The Clerk shall prepare a ballot in the name of each eligible person and protect the ballots from access by unauthorized persons by placing the ballots in a master ballot box and securing the master ballot box in a safe.
I-15C. Selection of panel; jury summons; failure to appear; excuse from jury duty.
(1) Not less than seven days before the date set for the beginning of a jury trial, the Chief Judge shall draw from the master ballot box, at random, the number of ballots specified by Rule of Court for a civil jury trial of the type scheduled. The Clerk of the Court shall then issue and cause to be served upon each person whose ballot was drawn a Jury Summons.
(2) The Jury Summons shall notify the person being summoned to appear in Court on the date set for the beginning of the trial, one hour before the time set for the trial. Failure of a person served with a Jury Summons to appear shall constitute contempt of court and the Summons shall contain a warning to that effect. Any person for whom jury service would be a severe hardship may be excused from service by a judge, but such excuse from jury duty shall be disfavored.
I-15D. Jury selection. On the day of the trial, the Clerk shall deposit in a ballot box ballots containing the names of each of the summoned potential jurors who have appeared by the time set for their appearance. Those persons whose names are in the ballot box shall be known as the jury panel. After the Judge calls the court to order, he or she shall draw from the jury panel ballot box, at random, the names of fourteen members of the jury panel, who shall then be seated in the jury area. The Clerk shall make a list of the names in the order in which they were called.
I-15E. Removal for cause; examination by Court, parties.
(1) After the first fourteen members of the jury panel have been seated, the judge shall examine each of them as to their qualifications, and excuse any who appear to him or her to be biased, prejudiced, unable to fairly and effectively perform the duties of a juror or otherwise not qualified to serve as a juror. The judge shall permit the parties or their counsel to similarly examine and ask for the removal of jurors for cause, without any limit to the number of jurors so challenged or removed, except that all such challenges must be made in good faith. The judge shall excuse any juror he or she believes to be unqualified, directing him or her to leave the jury area.
(2) After all disqualified jurors have been excused from the jury area, enough additional ballots shall be drawn by the judge to replace the disqualified persons with members of the jury panel. The Clerk shall add their names to the list in the order in which they were called. The procedure for challenge for cause shall continue until fourteen qualified persons are seated in the jury area.
I-15F. Peremptory Challenges. After the fourteen qualified persons have been seated in the jury area, each party shall have the right to remove any three persons from the jury without stating any reason. The parties shall alternately remove jurors, or waive their turn to do so, until they have exhausted their peremptory challenges.
I-15G. Trial jury; alternate. The Clerk of the Court shall then read aloud the first seven names on the list and those persons shall be jurors for the trial. The Clerk shall also read aloud the eighth name on the list, and that person shall be an alternate juror for the trial. The alternate juror shall act in all respects as a juror, except that he or she shall not vote during jury deliberations unless one of the other jurors has been excused by the judge during the course of the trial.
RULE I-16 ORDER OF TRIAL
I-16A. At the trial of a civil case, presentations shall be made in the following order unless otherwise agreed by the parties or determined at the pre-trial conference:
(1) Motions by either party regarding procedure at trial, evidence to be presented, jurisdiction of the court, or the sufficiency of a claim;
(2) Evidence and statements presented by the party (the plaintiff) who filed the original complaint;
(3) Evidence, statements, or motions presented by the person complained against (the defendant);
(4) Motions of either party which are based on events at trial; and
(5) Final arguments by both parties.
I-16B. The judge may announce a final decision at the close of trial or may take the matter under submission and issue a written decision at a later time. All decisions shall be announced within thirty days after the end of the trial.
RULE I-17 BURDEN AND STANDARD OF PROOF; JURY VERDICTS
I-17A. Unless otherwise provided by Tribal law, the burden of proving a civil claim shall be on the party who makes the claim.
I-17B. Unless otherwise provided by Tribal law, a party to a civil case shall be considered to have met the burden of proof if more than half of the evidence presented tends to prove that party's claim.
I-17C. A civil jury verdict must be based upon the agreement of at least six of the seven jurors.
RULE I-18 INFORMAL RULES OF EVIDENCE GOVERNING TRIALS
I-18A. Purpose. The purpose of these Informal Rules of Evidence is to ensure that the Tribal Court is able to determine the truth of a matter with a minimum of delay, confusion, and uncertainty of the parties.
I-18B. Scope. Unless the Formal Rules of Civil Procedure have been invoked, these Informal Rules of Evidence shall govern the admissibility and use of evidence in civil matters.
I-18C. General Rules.
(1) Where there is more than one kind of evidence about the same subject, the judge shall give each item of evidence the importance (weight) which, according to the judge's common sense and sense of fairness, that particular type of evidence deserves. For example, in oral testimony, the testimony of persons who testify from their personal knowledge, such as firsthand observation of, or participation in, the event described shall be given more weight than the testimony of persons who only have knowledge of the event which they gained from other persons.
(2) Evidence admitted in the Tribal Court must be related either to the issues before the court or to the weight and credibility which should be given to other evidence. When questioned by the judge or another party as to why certain evidence should be allowed, the party who wishes to present the evidence shall:
(a) State the issue which he or she will use the evidence to resolve; and
(b) Explain how the evidence is relevant to the issue.
(3) When the relevance or reliability of evidence is challenged, the judge shall decide whether or not to use the evidence, and explain the decision.
I-18D. Oaths. Before testifying in the Tribal Court, every witness shall first state before the judge, parties and spectators that he or she will testify truthfully. The Court may prescribe an oath for this purpose by Rule of Court.
I-18E. Questioning Witnesses.
(1) When questioning a witness, the judge and parties or their counsel shall not ask questions in such a way as to suggest the answer, unless the witness is one who was called by the opposing party, or is clearly hostile to the person asking questions.
(2) The judge shall determine the order in which parties or their counsel shall be allowed to question witnesses. The judge shall protect the witnesses from harassment or unnecessarily repetitious or irrelevant questioning.
(3) During the questioning of a witness, the judge may exclude from the courtroom any witnesses who have not yet testified, if this seems to be necessary to ensure that all witnesses will give truthful testimony. At the request of any party, such witnesses shall be excluded.
(4) The judge may call and/or question any witnesses on his or her own initiative.
I-18F. Sworn Written Testimony.
(1) Subject to the provisions of Rule I-18C(3), testimony of a witness may be presented in sworn written form if and only if:
(a) the witness is unable to appear in person to testify, or
(b) if the evidence presented in writing is not contradicted by other parties, or
(c) if the sworn written testimony is offered to support a motion or an uncontested request for relief, or
(d) if the sworn written testimony contradicts oral testimony already given by the same witness.
Written testimony must show clearly who gave it and when the witness gave it.
(2) Copies of written records, photographs, and other documentary evidence may be presented as long as there is a reasonably reliable way to identify the items, and the methods used to prepare them.
RULE I-19 JUDGMENTS
I-19A. A judgment is a final order of the Court which disposes of a claim in whole or in part. The Judge may announce a judgment orally at a hearing in open court before the parties, or in writing, at the time of hearing or after the hearing, but in no case more than thirty (30) days after the end of the trial.
I-19B. Finality. A judgment becomes final when it has been recorded in the Docket Book by the Court Clerk. The Court shall establish, by Rule of Court, the length of time after issuance of an order within which the Clerk must enter the Order in the Docket Book.
RULE I-20 PROCEEDINGS AFTER JUDGMENT
I-20A. No later than ten (10) days after judgment is final, a party may ask the Judge for a rehearing, reconsideration, correction, vacation, or modification of the judgment.
I-20B. The Judge may grant a new hearing or reconsider any change in the judgment if he or she finds at least one of the following to be true:
(1) The original judgment was based on or reached as a result of fraud or mistake of law;
(2) There is newly discovered evidence which probably would have affected the outcome of the case and which could not, with reasonable effort, have been discovered in time for the hearing of the case;
(3) The court did not have jurisdiction over a party or over the subject matter.
I-20C. No later than ten days after judgment is final or after a motion made pursuant to Section A of this rule is denied, a party may appeal an adverse judgment as provided in the Rules of Appellate Procedure.
I-20D. No civil judgment shall be enforced sooner than ten days after judgment is entered in the docket. A party appealing a judgment against him or her, or filing a motion pursuant to section I-20A, may make a motion requesting that the court delay (stay) enforcement of the judgment until after the section I-20A motion or appeal has been decided. The party who won the original judgment may oppose the motion for a stay and/or may request that the Court require that the party asking for a stay post a bond to protect him or her from further damage, to cover costs, or to guarantee that sufficient assets are within the control of the court to satisfy the judgment if the original winning party wins the motion or the appeal. Stays shall be granted only under the terms of this section and the Rules of Appellate Procedure, and no stays shall be granted automatically.
RULE I-21 COSTS
I-21A. Upon judgment, the Judge shall order the losing party to pa to the winning party the costs of the lawsuit, unless the applicable law provides otherwise or the judge determines that such an order would be unjust. Costs shall not be imposed on the Tribe or any branch of the Tribe unless specifically permitted by an applicable tribal law or agreement.
I-21B. Costs shall include civil filing fees, any costs for delivering documents required by these Rules to be delivered, postage for court notice sent to the parties, and fees and expenses paid to witnesses and jurors, but shall not include counsel fees unless tribal law so provides in a particular type of case.
I-21C. No person shall be jailed because he or she is unable to pay costs.
RULE 1. SCOPE AND USE OF RULES
These rules are to be known as the Formal Rules of Civil Procedure and shall govern all questions of civil procedure in the White Mountain Apache Tribal Court whenever, pursuant to Chapter One, a judge of the Tribal Court has ordered that they shall apply, or whenever tribal law specifically requires that they be used in a particular action or to resolve a particular question. They shall be construed to secure the just, speedy, and inexpensive determination of every action.
RULE 2. ONE FORM OF ACTION
There shall be one form of action to be known as a "civil action".
RULE 3. COMMENCEMENT OF ACTION
A civil action is commenced by filing a complaint with the court.
RULE 4. PROCESS
4A. Summons; issuance after filing complaint. Upon the clerk's receipt of the complaint for filing, the clerk shall write on it the day and hour on which it was filed and the number of the action, and shall forthwith issue a summons and deliver it for service to any tribal law officer or to the plaintiff. Separate summons shall issue against each defendant.
4B. Summons; form; duplicate summons. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's counsel, if nay, otherwise the plaintiff's address, and the time within which these Rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. A copy of the complaint and summons shall be prepared for each defendant. If a summons is returned without being served, or if it has been lost, the clerk shall issue a duplicate summons in the same form and it shall be issued and served within the same time as the original.
4C. Process; by whom served. Service of all process shall be made by a tribal law officer, or any other person not less than eighteen years of age who is not a party or legal counsel in the action.
4D. Summons; service; minors. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual other than those specified in paragraphs (2), (3), (4), and (5) of this subdivision of this Rule, by delivering a copy of the summons and of the complaint to him personally or by leaving copies of them at his dwelling house or usual place of abode with some person of suitable age and discretion who lives there 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.
(2) Upon a minor under the age of sixteen years, by service in the manner set forth in paragraph (1) of this subdivision upon the minor and upon his father, mother or guardian, within the reservation, or if none is found therein, then upon any person having the care or control of such minor or with whom he resides.
(3) Upon a minor for whom a guardian of his estate has been appointed by the Tribal Court, by service in the manner set forth in paragraph (1) of this subdivision, upon such guardian and the minor.
(4) Upon a person who has been judicially declared to be insane or mentally incompetent to manage his property and for whom a guardian has been appointed by the Tribal Court, by service in the manner set forth in paragraph (1) of this subdivision, upon such person and also upon his guardian, or if no guardian has been appointed, upon such person as the court designates.
(5) Upon a corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to a partner, an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.
(6) Upon the White Mountain Apache Tribe, by delivering a copy of the summons and of the complaint to the Tribal Attorney; provided, however, that this section shall not be construed as a waiver of the sovereign immunity of the White Mountain Apache Tribe, its subdivisions, agents, agencies, enterprises, or officers.
4E. Summons: alternative methods of service.
(1) When a defendant is a non-resident of the reservation, or is absent from the reservation, or is a transient person, or is one whose residence is unknown to the plaintiff, or is a corporation incorporated under the laws of any state or foreign country which has no legally appointed and constituted agent on the reservation, or is concealing himself to avoid service of summons, a summons shall be issued as in other cases and service shall be made in accordance with Sections 4E(2) or 4E(3) of this Rule. The methods of service herein provided shall be applicable for the assertion of any claim by way of cross-claim, third party claim or other appropriate pleading against any party who has not appeared in the action and shall be in addition to and not exclusive of any other means of service which may be provided by Tribal law.
(2) Summons; personal service off the reservation. When the defendant is a resident of the reservation, or is a corporation doing business on the reservation, or is a person, partnership, corporation or unincorporated association subject to suit in a common name which has caused an event to occur on the reservation out of which the claim which is subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the reservation. In case of a corporation or unincorporated association, service under this Rule shall be made on one of the persons specified in Section 4D(5).
(a) Registered mail. When the whereabouts of a defendant outside the reservation are known, the serving party may deposit a copy of the summons and complaint in the post office, registering it with a return receipt requested. Upon return through the post office of the registry receipt, he shall file an affidavit with the court showing the circumstances warranting the utilization of the procedure authorized under Section 4E(1); and (a) that a copy of the summons and complaint was dispatched to the party being served; (b) that it was in fact received by the party as evidenced by the attached registry receipt; (c) that the genuine receipt thereof is attached; and D the date of the return thereof to the sender. This affidavit shall be prima facie evidence of personal service of the summons and complaint and service shall be deemed complete and time shall begin to run for the purposes of Section 4E(4) of this Rule thirty (30) days after filing of the affidavit of receipt.
(b) Direct service. Service off the reservation may also be made in the same manner provided in Section 4D of this Rule by a person authorized to serve process under the law of the state or reservation where such service is made. Service shall be complete when made and time for purposes of Rule 4E(4) shall begin to run at that time, provided that before any default may be had on such service, there shall be filed an affidavit of service showing the circumstances warranting the utilization of the procedure under Section 4E(1) and attaching an affidavit of the process server showing the fact of the service.
(3) Summons: service by publication. Where by law personal service is not required, and a person is subject to service under Section 4E(1), such service may be made by either of the methods set forth in Section 4#(2) or by publication. Service by publication shall be made by publication of the summons in the official newspaper of the Tribe, at least once a week for four successive weeks and the service shall be complete thirty days after the first publication. When the residence of the defendant is known, the party shall on or before the date of the first publication mail a copy of the summons and complaint, postage prepared, directed to the defendant at his place of abode. The plaintiff shall file an affidavit showing the publication and mailing and the circumstances warranting the utilization of the procedure under Section 4E(1) which shall be prima facie evidence of compliance herewith, and if the residence is unknown, the affidavit shall so state.
(4) Summons; time for appearance after service under 4E(1), 4E(2), 4E(3), or 4E(5). Where service of a copy of the summons and complaint is made off of the reservation or pursuant to subdivisions 4E(1), 4E(2), 4E(3), or 4E(5) of this Rule, the defendant shall appear and answer within thirty days after completion thereof in the same manner and under the same penalties as if he had been personally served with a summons on the reservation.
(5) Alternative provisions for service in a foreign country.
(a) Manner. When this rule authorizes service upon a party not an inhabitant of or found within the reservation, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made:
(i) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(ii) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or
(iii) upon an individual, by deliver to him personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or
(iv) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
(v) as directed by order of the court. Service under (iii) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.
(b) Return. Proof of service may be made as prescribed by Section 4G of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (a)(iv) of section 4E(5) of this Rule, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
4F. Territorial limits of effective service. All on-reservation process may be served anywhere within the exterior boundaries of the reservation.
4G. Return. When the process is served by a tribal law officer, the return shall be officially endorsed on or attached thereto and returned to the court promptly. If served by any other person, return and proof of such service shall be made promptly by affidavit thereof. In either event such return shall be made within the time during which the person served must respond to process. Failure to make proof of service does not affect the validity thereof.
4H. Return of service by publication. When the summons is served by publication, the return of the officer serving the summons shall be endorsed upon or attached to the summons stating when and how it was served and the dates of the publication, and the return shall be accompanied by a printed copy of the publication. Service by publication and the return thereof may also be made by the plaintiff or by his legal counsel in the same manner as though made by an officer.
4I. Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
5A. Service: when required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading after 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.
5B. Service; parties served; continuance. When there are several defendants, and some are served with summons and others are not, the plaintiff may proceed against those served or continue the action. The court may order the plaintiff to proceed against those served.
5C. Service after appearance; service after judgment; how made.
(1) Whenever under these rules service is required or permitted to be made upon a party represented by counsel, the service shall be made upon counsel unless service upon the party himself is ordered by the court. Service upon counsel or upon a party shall be made by delivering or mailing a copy to him at his 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 party; or to counsel; or leaving it at counsel's office with his or her clerk or other person in charge thereof; or, if there is no 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 his dwelling-house or usual place of abode with sod person of suitable age and discretion who lives there. Service by mail is complete upon mailing.
(2) After the time for appeal from a judgment has expired or a judgment has become final after appeal, the service of a motion, petition, complaint or other pleading required to be served and requesting modification, vacation or enforcement of that judgment, shall be served pursuant to Rule 4 as if serving a summons and complaint.
5D. Service; numerous defendants. In any action in which there are usually 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 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.
5E. Service; acceptance or waiver; voluntary appearance. The defendant may accept service of any process or waive issuance or service thereof, in writing, signed by him or by his authorized agent or counsel and the acceptance or waiver shall be filed in the action. The defendant may, in person or by counsel or by his authorized agent, enter an appearance in open court, and the appearance shall be noted by the clerk upon the docket and entered in the minutes. Such waiver, acceptance or appearance shall have the same force and effect as if summons had been issued and served. The filing of an answer shall constitute an appearance.
5F. Service; unknown heirs in real property actions. When in an action involving rights to real property, it is necessary for a complete determination of the action that the unknown heirs of a deceased person be made parties, they may be sued as the unknown heirs of the decedent, and service of summons may be made on them by publication as provided in Rule 4E(1).
5G. Filing. Except for offers of judgment under Rule 68, all papers after the complaint required to be served upon a party or to be filed with the court within a specified time shall be both filed with the court and served upon the party within the specified time.
5H. Filing with the court defined. The filing of pleadings and other 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 him and in the event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.
RULE 6. TIME
6A. Computation. In computing any period of time prescribed or allowed by these rules, by rules of the court, by order of court, or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or tribal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or tribal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and tribal holidays shall not be counted in the computation.
6B. Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the specified period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 60B, 52B, 59B, G and L, and 60C except to the extent and under the conditions stated in them.
6C. Motions and affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five 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 Rules 56C and 59F, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.
6D. Orders to show cause. A judge of the Tribal Court, upon application supported by affidavit showing cause therefore, may issue an order requiring a party to show cause why the party applying for the order should not have the relief therein specified, and may make the order returnable at such time as he designates.
6E. 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 him and the notice or paper is served upon him by mail, five days shall be added to the prescribed period. This rule has no application to the mailing of notice of entry of judgment required by Rule 77G.
6F. Summons and service; termination of action. An action shall automatically terminate if the summons is not issued and served, or the service by publication commenced within one year from the filing of the complaint.
RULE 7. PLEADINGS ALLOWED AND FORM OF MOTIONS
7A. Pleadings allowed. 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.
7B. Motions, petitions and other papers.
(1) An application to the court for an order shall be by petition or motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
RULE 8. GENERAL RULES OF PLEADING
8A. Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:
(1) A short and plain statement of the grounds upon which the court's jurisdiction depends.
(2) A short and plain statement of the claim showing that the pleader is entitled to relief.
(3) A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.
8B. Defenses; form of denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he 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, he 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, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits, but when he does so intend to controvert all its averments, including averments of the ground upon which the court's jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11A.
8C. 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, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
8D. 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.
8E. Pleading to be concise and direct; consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds or both. All statements shall be made subject to the obligations set forth in Rule 11A.
8F. Construction of pleadings. All pleadings shall be so construed as to do substantial justice.
RULE 9. PLEADING SPECIAL MATTERS
9A. 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, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.
9B. 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.
9C. 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.
9D. 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.
9E. 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.
9F. 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.
9G. Special damage. When items of special damage are claimed, they shall be specifically stated.
9H. Complaint in action for libel or slander. In an action for libel or slander, the complaint need not state the extrinsic facts applying to the plaintiff the defamatory matter out of which the claim arose, but may allege generally that the libel or slander was published or spoken concerning the plaintiff, and if the allegation is controverted the plaintiff shall establish on the trial that it was so published or spoken.
9I. Verification of answer. Any responsive pleading setting up any of the following matters, unless the truth the pleading appears of record, shall be verified by affidavit:
(1) That the plaintiff does not have legal capacity to sue.
(2) That the plaintiff is not entitled to recover in the capacity in which he sues.
(3) That there is another action pending in the Tribal Court between the same parties for the same claim.
(4) That there is a defect of parties, plaintiff or defendant.
(5) A denial of partnership, or of incorporation, of the plaintiff or defendant.
(6) A denial of the execution by the defendant or by his authority of any instrument in writing upon which any pleading is based, in whole or in part, and alleged to have been executed by hi or by his authority, and not alleged to be lost or destroyed. When the instrument is alleged to have been executed by a person then deceased, the affidavit may state that the affiant has reason to believe, and does believe, that such instrument was not executed by the decedent or by his authority.
(7) A denial of the genuineness of the endorsement or assignment of a written instrument.
(8) That a written instrument upon which a pleading is based is without consideration, or that the consideration therefore has failed in whole or in part.
(9) That an account which is the basis of plaintiff's action, and supported by an affidavit, is not just, and in such case the answer shall set forth the items and particulars which are unjust.
RULE 10. FORM OF PLEADING
10A. Caption; names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation of the type of pleading it is as in Rule 7A. 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 on each side with an appropriate indication of other parties.
10B. Paragraphs; separate statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of single set of circumstances, and a paragraph 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 stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
10C. Adoption by reference; exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in a motion. A copy of a written instrument which is an exhibit to a pleading is a part thereof for all purposes.
10D. Method of preparation and filing. All pleadings and other papers filed in any action or proceeding shall be on white, opaque, unglazed paper measuring 8½ inches x 11 inches, with a margin at the top of each page of not less than 1½ inches and a left hand margin of not less than 1 inch. Notwithstanding the foregoing, exhibits or attachments to pleadings may be folded and fastened to pages of the specified size. An exhibit or attachment not in compliance with the foregoing provisions may be filed only if it appears that compliance is not reasonably practicable.
All pleadings filed shall be endorsed with the number of the action, the title of the court and action, the nature of the paper filed, and the name and address of the party and counsel, if any, and sh all be written clearly in handwriting or typewritten on one side of a sheet only, double-spaced, except in the case of quotations, and the pages numbered. Originals only shall be filed, except that where it is necessary to file more than one copy of a pleading the additional copies may be carbons or photocopies.
10E. Erasures and interlineation. All erasures and interlineation shall be called to the attention of the clerk, and noted by him on the margin with his initials, but no erasures or interlineation will be allowed in any order, finding or judgment signed by the court.
10F. Designation of defendant. When the name of the defendant is unknown to the plaintiff, the defendant may be designated in the pleadings or proceeding by any name. When his true name is discovered the pleading or proceeding may be amended accordingly.
RULE 11. SIGNING OF PLEADINGS
11A. Signing of pleadings. Every pleading of a party represented by counsel shall be signed by at least one counsel, whose address shall be stated. A party who is not represented by counsel shall sign his pleading and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of counsel constitutes a certificate by him that he has read the pleading, that to the best of his knowledge, information, and belief there is good ground to support it, and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this Rule, it may be stricken as sham and farce and the action may proceed a though the pleading had not been served. For a willful violation of this rule counsel may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.
11B. Verification of pleading generally. When in a civil action a pleading is required to be verified by the affidavit of the party, or when in a civil action an affidavit is required or permitted to be filed, the pleading may be verified, or the affidavit made, by the party or by a person acquainted with the facts, for and on behalf of such party.
RULE 12. DEFENSES AND OBJECTIONS; WHEN AND HOW PRESENTED; BY PLEADING OR MOTION; MOTION FOR JUDGMENT ON PLEADINGS
12A. When presented. A defendant shall serve and file his answer within twenty days after the service of the summons and complaint upon him, except when service of process is made pursuant to Rule 4E(1), (2) or (4). A party served with a pleading stating a cross-claim against him shall serve and file an answer thereto within twenty days after the service upon him. The plaintiff shall serve and file his reply to a counterclaim in the answer within twenty days after service of the answer or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs. The service of a motion permitted under this Rule alters these periods of time as follows, unless a different time is fixed by order of the court:
(1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action.
(2) If the court grants a motion for a more definite statement the responsive pleading shall be served within ten days after the service of the more definite statement.
12B. How presented; motion to dismiss. 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:
(1) Lack of jurisdiction over the subject matter.
(2) Lack of jurisdiction over the person.
(3) Insufficiency of process.
(4) Insufficiency of service of process.
(5) Failure to state a claim upon which relief can be granted.
(6) Failure to join a party under Rule 19.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion 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 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
12C. 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 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
12D. Preliminary hearings. The defenses specifically enumerated as (1) through (6) in subdivision B of this Rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision 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.
12E. 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, he may move for a more definite statement before filing his 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 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.
12F. Items of account; demand. The party pleading need not state the items of an accuont alleged in the pleading, but if demand is made in writing for the items of account, the adverse party shall file and serve a copy of the account within ten days after demand, or be precluded from giving evidence thereof. The court may order a further account when the account delivered is too general or is defective.
12G. Motion to Strike. Upon motion made 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 days after service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
12H. 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 him. If a party makes a motion under this Rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision I(2) hereof on any of the grounds there stated.
12I. Waiver or preservation of certain defenses. A party waives all defenses and objections which he does not present either by motion as provided herein, or, if he has made no motion, in his answer or reply, except:
(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in subdivision H, or (b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15A to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7A, or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears to the court by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
RULE 13. COUNTERCLAIM AND CROSS-CLAIM
13A. Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim, and the pleader is not stating any counterclaim under this Rule.
13B. Permissive counterclaims. A pleading may state as a counterclaim 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.
13C. 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.
13D. Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
13E. Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.
13F. 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. The 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.
13G. 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.
13H. Separate trials; separate judgments. If the court orders separate trials as provided in Rule 42B, judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54B when the court has jurisdiction to do so, even if the claims of the opposing party have been dismissed or otherwise disposed of.
RULE 14. THIRD-PARTY PRACTICE
14A. When defendant may bring in third party. At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party tot he action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he 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 his defenses to the third-party plaintiff's claim as provided in Rule 12, and his counterclaims against the third-party plaintiff and crossclaims against other third-party defendants as provided in Rule l3. 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 his defenses as provided in Rule 12 and his 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 him for all or part of the claim made in the action against the third-party defendant.
14B. When plaintiff may bring in third party. When a counter-claim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this Rule would entitle a defendant to do so.
RULE 15. AMENDED AND SUPPLEMENTAL PLEADINGS
15A. Amendments.
(1) A party may amend his 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, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave to amend shall be freely given when justice requires.
(2) A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
15B. 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 so amend does not affect the result of the trial on these issues. If evidence is object 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 promoted thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
15C. Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defenses on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
15D. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him 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 a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
RULE 16. PRE-TRIAL PROCEDURE; FORMULATING ISSUES
16A. Formulating Issues. In any action, the court may in its discretion direct the parties or counsel to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
(6) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of the parties or counsel. The order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by Rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or non-jury actions or extend it to all actions.
16B. Disposition of motions; overruling by setting for trial. No civil action shall be heard on its merits until all motions are disposed of, but the setting of an action for trial shall be deemed an overruling of all motions pending.
RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY
17A. 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, or a party authorized by law may sue in his own name without joining with him the party for whose benefit the action is brought. 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.
17B. Actions by personal representatives; setting aside judgment. Actions for the recovery of personal property, debts or damages, and for the title to or possession of lands, or for any right attached thereto or arising therefrom, or for an injury or damage thereto may be commenced by an executor, administrator, or guardian appointed pursuant to Tribal law in the same manner as if commenced by the testator or intestate, and judgment therein shall be as conclusive as if rendered in favor of or against the testator or intestate. The judgment may be set aside upon the application of any person interested for fraud or collusion on the part of the executor, administrator or guardian.
17C. Actions by or against personal representatives. Actions for the recovery or possession of property, real or personal, or to quiet title thereto, or to determine an adverse claim thereto, and all actions founded upon contracts, may be maintained by or against an executor or administrator in all cases in which such actions might have been maintained by or against his testator or intestate.
17D. Actions against surety, assignor or endorser. The assignor, endorser, guarantor and surety upon a contract, and the drawer of a bill which has been accepted, may be sued without the maker, acceptor or other principal obligor when the latter resides beyond the limits of Tribal jurisdiction, or when his residence is unknown and cannot be ascertained by the use of reasonable diligence, or when he is dead, or insolvent.
17E. Infants or incompetent persons. Whenever an infant or incompetent person has a representative, such as a general guardian, or similar fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his 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.
17F. Bond of guardian ad litem or next friend. If an action is brought for the minor by his next friend or guardian ad litem, the next friend or guardian ad litem shall not receive any money or property of the minor until such friend or guardian files a bond as security therefor in such form and with such surety as the court may prescribe and approve.
17G. Consent of guardian ad litem or next friend; liability; compensation. No person shall be appointed guardian ad litem or next friend except upon written consent filed by him in the action. He shall not be personally liable for costs, unless by special order of the court. The court may allow him a reasonable compensation for services to be taxed as part of the costs of the action.
17H. Any partnership may sue and be sued in the name which it has assumed or by which it is known.
RULE 18. JOINDER OF CLAIMS AND REMEDIES
18A. 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 he has against an opposing party.
18B. 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 him, without first having obtained a judgment establishing the claim for money.
RULE 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
19A. Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest, (ii) leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
19B. Determination by court whenever joinder not feasible. If a person as described in subdivision 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: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measure, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
19C. 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 subdivision A(1)-(2) hereof who are not joined, and the reasons why they are not joined.
19D. Exception of class actions. This rule is subject to the provisions of Rule 23.
RULE 20. PERMISSIVE JOINDER OF PARTIES
20A. 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. Judgement 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.
20B. 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 he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.
RULE 21. MISJOINDER AND NON-JOINDER OF PARTIES
Misjoinder of parties is not grounds for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
RULE 22. INTERPLEADER
22A. Interpleader. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he 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.
22B. Release from liability; deposit or delivery. Any party invoking the interpleader, as provided by subdivision A of this Rule, may move the court for an order discharging him from liability to either party, and upon depositing in court he amount claimed or by delivering the property to the party entitled thereto, or into court as the court may direct, he may be discharged.
RULE 23. CLASS ACTIONS
23A. Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
23B. Class actions maintainable. An action may be maintained as a class action if the prerequisites of subdivision A are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (a) the interest of members of the class in individually controlling the prosection or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action.
23C. Determination by order whether class action to be maintained; notice; judgment; actions conducted partially as class actions.
(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.
(2) In any class action maintained under subdivision B(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (a) the court will exclude him from the class if he so requests by a specified date; (b) the judgment, whether favorable or not, will include all members who do not request exclusion; and (c) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
(3) The judgment in an action maintained as a class action under subdivision B(1) or B(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision B(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision C(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate (a) an action may be brought or maintained as a class action with respect to particular issues, or (b) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this Rule shall then be construed and applied accordingly.
23D. Orders in conduct of actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.
23E. 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 given to all members of the class in such manner as the court directs.
RULE 23.1 DERIVATIVE ACTIONS BY SHAREHOLDERS
In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an u incorporated 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 that the plaintiff was a shareholder or member at the time of the transaction of which he complaints or that his share or membership thereafter devolved on him by operation of law. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.
RULE 23.2 ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS
An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only it is 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 23D., and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23E.
RULE 24. INTERVENTION
24A. Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a tribal law confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest.
24B. Permissive intervention. Upon timely application anyone may be permitted to intervene in an action:
(1) When Tribal law confers a conditional right to intervene.
(2) When an applicant's claim or defense and the main action have a question of law or fact in common.
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.
24C. 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.
24D. Time to answer. If the motion to intervene is granted, the plaintiff and defendant shall be allowed a reasonable time, not exceeding twenty days, in which to answer the pleading of the intervenor.
RULE 25. SUBSTITUTION OF PARTIES
25A. Death.
(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is noted on the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased.
(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be noted on the record and the action shall proceed in favor of or against the surviving parties.
25B. Death of defendant after tort action commenced. An action to recover damages for injuries to the person, or death caused by the wrongful act, default or neglect of another, shall not abate by reason of the death of the defendant, and his personal representative may be substituted a defendant. If the action is against a received, assignee or trustee, and such receiver, assignee or trustee dies, resigns or is removed from office, his successor in office may be substituted as defendant. The action shall thereupon proceed to judgment as if the defendant has remained alive, or the original receiver, assignee or trustee had continued in office.
25C. Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision A of this Rule may allow the action to be continued by or against his representative.
25D. 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 subdivision A of this Rule.
25E. Public officers; death or separation from office.
(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but he omission to enter such an order shall not affect the substitution.
(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.
RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
26A. Discovery methods. Parties may obtain discovery by one or more of the following methods: dispositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under subdivision C of this rule, the frequency of use of these methods is not limited.
26B. Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(2) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part of all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3) Trial preparation: Materials. Subject to the provisions of subdivision B(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision B(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his counsel, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of counsel or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37A(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
(4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions or subdivision B(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(a)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to the state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision B(4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.
(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35B or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(c) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonabl