Civil
Procedure - Chapters 5-8
Civil
Procedure - Chapters 9-16
[TITLE II - LAW AND ORDER CODE - SUBPART B] - CIVIL PROCEDURE
- CH. 1-4
GENERAL PROVISIONS
Section 1. Scope of This Act
This Act
governs the procedure in the Courts of the Tribes in all suits of a
civil nature whether cognizable as cases at law or in equity except
where a law or ordinance of the Tribes specifies a different procedure.
These rules shall be construed to secure the just, speedy, and inexpensive
determination of every action.
Section 2. Jurisdiction in Civil Actions
The Tribal
Court may exercise jurisdiction over any person or subject matter on
any basis consistent with the Constitution of the Tribes, the Indian
Civil Rights Act of 1968, as amended, and any specific restrictions
or prohibitions contained in Federal law.
Section 3. Title of this Act
This Act
shall be known as the Code of Civil Procedure.
Section 4. Force of the Tribal Common Law
The customs
and traditions of the Tribes, to be known as the Tribal Common Law,
as modified by the Tribal Constitution and statutory law, judicial decisions,
and the condition and wants of the people, shall remain in full force
and effect within the Tribal jurisdiction in like force with any statute
of the Tribes insofar as the common law is not so modified, but all
Tribal statutes shall be liberally construed to promote their object.
Section 5. Definitions
Unless
a different meaning is clearly apparent from the context, the term:
(a)
"Chief Executive Officer" shall mean the Chairperson of the Cheyenne-Arapaho
Tribes of Oklahoma, unless a different meaning is attributed to this
term in an agreement with another Indian Tribes which provides for
the operation of an intertribal Court.
(b)
"other Indian Tribe" shall mean any Federally recognized
Indian Tribe other than these Tribes.
(c)
"real property" or "non-trust interest in
real property" shall mean any interest in real property within the
Tribal jurisdiction other than the Indian trust title held by the
United States for the use of any Indian or Indian Tribe, or the fee
title to any land held by any Indian or Indian Tribe which is subject
to a restriction upon alienation imposed by the United States. Nothing
in this Act shall be construed as affecting or attempting to affect
the trust or restricted title to trust or restricted Indian land.
(d)
"reservation" means the last recognized reservation boundaries of
the Tribes irrespective of whether they have been disestablished.
(e)
"Business Committee" means the Business Committee of the Cheyenne-Arapaho
Tribes of Oklahoma unless a different meaning is attributed to the
term by an agreement with another Indian Tribe providing for the establishment
of an intertribal Court.
(f)
"Tribal jurisdiction" means all Indian Country as defined in 18 U.S.C.
§1151 whether within or without the reservation which is subject
to the jurisdiction of the Tribes.
(g)
"Attorney General" means the Tribal Attorney, Tribal Court Prosecutor
or other appropriate legal advisor as designated by the Business Committee.
Section 6. No Effect Upon Sovereign Immunity
Nothing
in this Act contained shall be construed to be a waiver of the sovereign
immunity of the Tribes, its officers, employees, agents, or political
subdivisions or to be a consent to any suit beyond the limits now or
hereafter specifically stated by Tribal law.
Section 7. Declaratory Judgment
The Court,
in any actual controversy before it, shall have the authority to declare
the rights of the parties in that suit in order to resolve disputes
even though a money judgment or equitable relief is not requested or
not due. In particular, the Court may issue its declaratory judgment
recognizing Tribal common law marriages and divorces, and provide for
the custody of children and division of property in such divorces.
Section 8. Court Costs Not Charged to Tribes
The Tribes,
its officers, employees, agents, or political subdivisions acting in
their official capacity shall not be charged or ordered to pay any Court
costs or attorney fees under this Act, but if these entities prevail
in the action, the cost which such entities would have been required
to pay may be charged as costs to the losing party as in other cases.
Section 9. Effect of Previous Court Decisions
All previous
decisions of the Courts of the Tribes, insofar as they are not inconsistent
with this Act, shall continue to have precedential value in the Tribal
Court.
Section 10. C.F.R Not Applicable
Any and
all provisions of Part 11 of Title 25 of the Code of Federal Regulations
as presently or hereafter constituted are declared to be not applicable
to the Tribes.
Section 11. Laws Applicable to Civil Actions
(a) In
all civil cases, the Tribal District Court shall apply:
(1)
The Constitution, Statutes, and Common Law of the Tribes not prohibited
by applicable Federal law, and, if none, then
(2)
The Federal law including Federal common law, and, if none, then
(3)
The laws of any State or other jurisdiction which the Court
finds to be compatible with the public policy and needs of the Tribes.
(b) No
Federal or state law shall be applied to a civil action pursuant to
paragraphs (2) and (3) of Subsection (a) of this Section if such law
is inconsistent with the laws of the Tribes or the public policy of
the Tribes.
(c) Where
any doubt arises as to the customs and usages of the Tribes, the Court,
either on its own motion or the motion of any party, may subpoena
and request the advice of elders and councilors familiar with those
customs and usages.
Section 12. Court Action When No Procedure Provided
In any
case in which no specific procedure is provided for by Tribal law or
Court rule the Court may proceed in any lawful fashion not inconsistent
with Tribal law, the rules of the Court, or the Indian Civil Rights
Act.
CHAPTER 1 - COMMENCEMENT OF ACTION: PLEADINGS, MOTIONS AND ORDERS
Section 101. Commencement of Action
A civil
action is commenced by filing a complaint with the Court.
Section 102. One Form of Action
There shall
be one form of action to be known as a "civil action".
Section 103. "Claim" Defined
As used
in this Act, the term "claim means any right of action which may
be asserted in a civil action or proceeding and includes, but is not
limited to, a right of action created by statute.
Section 104. Notice of Pendency of Action
Upon the
filing of a complaint in the District Court, the action is pending so
as to charge third persons with notice of its pendency. While an action
is pending, no third person shall acquire an interest in the subject
matter of the suit as against the plaintiff's title, except as provided
in Sections 105 and 106 of this Act.
Section 105. Notice of Pendency Contingent Upon Service
Notice
of the pendency of an action shall have no effect unless service of
process is made upon the defendant within one hundred twenty (120) days
after the filing of the petition.
Section 106. Special Notice for Actions Pending in Other Courts
No action
pending in either state or federal court, or the court of any other
Indian Tribe, shall constitute notice with respect to any real property
or personal property located within the Tribal jurisdiction until a
notice of pendency of the action, identifying the case and the court
in which it is pending and giving the legal description of the land
affected, or the description of the personal property and its location
(if known) affected by the action, is filed of record in the office
of the Clerk of the Tribal Court.
Section 107. Pleadings Allowed; Form of Motions
(a)
Pleadings. There shall be a complaint and an answer; a reply
to a counterclaim denominated as such; an answer to a cross-claim,
if the answer contains a cross-claim; a third-party complaint, if
a person who was not an original party is summoned under the provisions
of Section 117; and a third party answer, if a third-party complaint
is served. No other pleading shall be allowed, except that the Court
may order a reply to an answer or a third party answer.
(b)
Motions and Other Papers.
(1)
An application to the Court for an order shall be by motion which,
unless made during a hearing or trial, shall:
(i) be made in writing;
(ii) state with particularity the grounds therefore; and
(iii)
set forth the relief or order sought.
The
requirement of a 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.
(3)
All motions shall be signed in accordance with Section 111 of this
Act.
Section 108. General Rules of Pleading
(a)
Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, crossclaim, or third-party
claim, shall contain (1) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (2) 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.
(b)
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. Denials shall fairly
meet the substance of the averments denied. 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. 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. When he intends to controvert all averments in a pleading,
including averments of the grounds upon which the Court's jurisdiction
depends, if any, he may do so by general denial subject to the obligation
set forth in Section 111. 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.
(c)
Affirmative Defenses. In pleading to a preceding pleading,
a party shall set forth affirmatively each of the following defenses
relied upon:
(1)
Accord and satisfaction;
(2)
Arbitration and award;
(3)
Assumption of risk;
(4)
Contributory negligence;
(5)
Discharge in bankruptcy;
(6)
Duress;
(7)
Estoppel;
(8)
Failure of consideration;
(9)
Fraud;
(10)
Illegality;
(11)
Injury by fellow servant;
(12)
Laches;
(13)
License;
(14)
Payment;
(15)
Release;
(16)
Res judicata;
(17)
Statute of frauds;
(18)
Statute of limitations;
(19)
Waiver;
(20)
Any other matter constituting an avoidance or affirmative defense.
When
a party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the Court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Effect
of Failure to Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount
of damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required
or permitted shall be taken as denied or avoided.
(e)
Pleading to Be Concise and Direct; Consistency.
(1)
Each averment of a pleading shall be simple, concise, and direct.
No technical forms of pleadings or motions are required.
(2)
A party may set forth and at trial rely upon 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,
equitable, or other grounds. All statements shall be made subject
to the obligations set forth in Section 111 of this Act.
(f)
Construction of Pleadings. All pleadings shall be liberally
construed so as to do substantial justice.
Section 109. Pleading Special Matters
(a)
Capacity. It is not necessary to aver or assert 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, if necessary.
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 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, and
that party shall have the burden of proof on that issue.
(b)
Fraud, Mistake, Condition of the Mind. In all averments of
fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity. Malice, intent, knowledge, and
other condition of mind of a person may be averred generally.
(c) Conditions
Precedent. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions
precedent have been performed or have occurred. A denial of performance
or occurrence of conditions precedent shall be made specifically and
with particularity.
(d)
Official Document or Act. In pleading an official document
or official act it is sufficient to aver that the document was issued
or the act done in compliance with law.
(e) Judgment.
In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it
is sufficient to aver the judgment or decision without setting forth
matter showing jurisdiction to render it.
(f)
Time and Place. For the purpose of testing the sufficiency
of a pleading, averments of time and place are material and shall
be considered like all other averments of material matter.
(g)
Special Damage. When items of special damage are claimed, they
shall be specifically stated, but specific amounts need not be alleged
in order to obtain judgment in the amount to which the party is entitled.
Section 110. Form of Pleadings, Motions, and Briefs
(a)
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 in the terms
expressed in Section 107(a). In the complaint the title of the action
shall include the names of all the parties, but in other pleadings
it is sufficient to state the name of the first party on each side
with an appropriate indication of other parties. In the initial third
party complaint, counterclaim, cross-claim, motion and petition in
intervention or a pleading by a party suing or being sued in a representative
capacity, appropriate designations of all affected parties shall be
made and their names stated. Thereafter, papers relating to such matters
may contain only the name of the first party in each category with
an appropriate indication of other parties.
(b)
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
a single set of circumstances; and a paragraph may be referred to
by number in all succeeding pleadings, or motions, or briefs. 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.
(c)
Adoption by Reference; Exhibits. Statements in a pleading,
or motion, or brief may be adopted by reference in a different part
of the same pleading or in another pleading or in any motion or brief.
A copy of any written instrument which is an exhibit to a pleading,
or a motion, or a brief is a part thereof for all purposes.
Section 111. Signing of Pleadings
Every pleading
of a party represented by an licensed attorney or advocate shall be
signed by at least one attorney or advocate of record in his individual
name, whose address and telephone number shall be stated. A party who
is not represented by an attorney or advocate shall sign his pleading
and state his address and telephone number. Except when otherwise specifically
provided by Rule or statute, pleadings need not be verified or accompanied
by affidavit. The English and American Common Law Rule in equity that
the averments of an answer under oath must be overcome by the testimony
of two witnesses or of one witness sustained by corroborating circumstances
is not applicable in the Tribal Courts. The signature of an attorney
or advocate 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 Section it may be stricken as sham and false and the action
may proceed as though the pleading had not been served. For a willful
violation of this Section an attorney or advocate may be subjected to
appropriate disciplinary action. Similar action may be taken if scandalous
or indecent matter is inserted.
Section 112. Defenses and Objections - When and How Present -
By Pleadings or Motions - Motion for Judgment on the Pleadings
(a)
When Presented.
(1)
A defendant shall serve his answer within 20 days after the service
of the summons and complaint upon him, except when service is made
under any one of Sections 216, 218 or 221 of this Act and a different
time is prescribed in the order of Court, or under the statute of
the Tribes.
A
party served with a pleading stating a cross-claim against him shall
serve an answer thereto within 20 days after the service upon him.
The plaintiff shall serve his reply to a counterclaim in the answer
within 20 days after service of the answer, or, if a reply is ordered
by the Court, within 20 days after service of the order unless the
order otherwise directs. The Tribes or an officer or agency thereof
shall serve an answer to the complaint or to a cross-claim, or a
reply to a counterclaim, within 60 days after the service upon the
Attorney General (or the Chief Executive Officer of the Tribes if
there is no Attorney General) of the pleading in which the claim
is asserted, provided that no default judgment shall be entered
against the Tribes, and upon affidavit of the Chief Executive Officer
of the Tribes that the Tribes have no attorney but that an attorney
contract is pending approval with the Bureau of Indian Affairs,
the Court shall allow the Tribes to answer within twenty (20) days
after approval of the Attorney contract or within sixty (60) days
after service, whichever is later.
The
service of a motion permitted under this Section 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 10 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 10 days after the service of the
more definite statement.
(2)
Within the time in which an answer may be served, a defendant may
file any entry of appearance and reserve twenty (20) additional
days to answer or otherwise defend. Any entry of appearance shall
extend the time to respond twenty (20) days from the last date for
answering and is a waiver of all defenses numbered 2, 3, 4, 5, and
9 of paragraph (b) of this Section, provided, that a waiver
of sovereign immunity shall not be implied under defense numbered
9 of paragraph (b) of this Section since a defense based upon sovereign
immunity is a defense to the subject matter jurisdiction of the
Court and not a defense to the parties capacity to be sued.
(b)
How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may
at the option of the pleader be made by motion:
(1)
Lack of jurisdiction over the subject matter;
(2)
Lack of jurisdiction over the person;
(3)
Improper venue or forum non convenieus;
(4)
Insufficiency of process;
(5)
Insufficiency of service of process;
(6)
Failure to state a claim upon which relief can be granted;
(7)
Failure to join a party under Section 303;
(8)
Another action pending between the same parties for the same
claim;
(9)
Lack of capacity of a party to be sued; and
(10)
Lack of capacity of a party to sue.
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 asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to and
not excluded by the Court, the motion shall be treated as one for
summary judgment and disposed of as provided in Section 905, and all
parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by Section 905. Every motion to dismiss
shall be accompanied by a concise brief in support of that motion
unless waived by order of the Court.
(c)
Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may
move for judgment on the pleadings. If, on a motion for judgment on
the pleadings, matters outside the pleadings are presented to and
not excluded by the Court, the motion shall be treated as one for
summary judgment and disposed of as provided in Section 905, and all
parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by Section 905. Every motion for judgment
on the pleadings shall be accompanied by a concise brief in support
of that motion unless waived by order of the Court.
(d)
Preliminary Hearings. The defenses specifically enumerated
(1)-(10) in subdivision (b) of this Section, whether made in a pleading
or by motion, and the motion for judgment mentioned in subdivision
(c) of this Section shall be heard and determined before trial on
application of any party, unless the Court orders that the hearing
and determination thereof be deferred until the trial.
(e)
Motion for More Definite Statement. If a pleading to
which a responsive pleading is permitted is so vague or ambiguous
that a party cannot reasonably be required to frame a responsive pleading,
he may move for a more definite statement before interposing 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 10 days after notice of the order or within
such other time as the Court may fix, the Court may strike the pleading
to which the motion was directed or make such order as it deems
just. Such motions are not favored.
(f) Motion
to Strike. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is permitted by this Act,
upon motion made by a party within 20 days after the service of the
pleading upon him or upon the Court's own initiative at any time,
the Court may order stricken from any pleading any insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter. If,
on a motion to strike an insufficient defense, matters outside the
pleadings are presented to and not excluded by the Court, the
motion shall be treated as one for partial summary judgment and all
parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by the rules relating to summary judgment.
(g)
Consolidation of Defenses in Motion. A party who makes a
motion under this Section may join with it any other motions herein
provided for and then available to him. If a party makes a motion
under this Section but omits therefrom any defense or objection then
available to him which this Section 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 (h) (2) hereof
on any of the grounds there stated. The Court may, in its discretion,
permit a party to amend his motion by stating additional defenses
or objections at any time prior to a decision on the motion.
(h)
Waiver or Preservation of Certain Defenses.
(1)
A defense of lack of jurisdiction over the person, improper venue
or forum non convenieus, insufficiency of process, insufficiency
of service of process or lack of capacity of a party to sue is waived
(A) if omitted from a motion in the circumstances described in subdivision
(g), or (B) if it is neither made by motion under this Section nor
included in a responsive pleading or an amendment thereof permitted
by Section 118(a) to be made as a matter of course or (C) if a permissive
counterclaim is filed pursuant to Section 114(b).
(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 Section
303, and an objection of failure to state a legal defense to a claim,
and a defense of another action pending may be made in any pleading
permitted or ordered under Section 107(a), or by motion for judgment
on the pleadings, or at the trial on the merits.
(3)
Whenever it is determined, upon suggestion of the parties or otherwise
that the Court lacks jurisdiction of the subject matter, the Court
shall dismiss the action.
Section 113. Final Dismissal on Failure to Amend
On granting
a motion to dismiss a claim for relief, the Court shall grant leave
to amend if the defect can be remedied and shall specify the time within
which an amended pleading shall be filed which should normally be ten
(10) days absent good cause for a shorter or longer time. If the amended
pleading is not filed within the time allowed, final judgment of dismissal
with prejudice shall be entered on motion except in cases of excusable
neglect. In such cases amendment shall be made by the party in default
within a time specified by the Court for filing an amended pleading.
Within the time allowed by the Court for filing an amended pleading,
a plaintiff may voluntarily dismiss the action without prejudice.
Section 114. Counterclaim and Cross-Claim
(a)
Compulsory Counterclaims. A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has
against any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim
and does not require for its adjudication the presence of third parties
of whom the Court cannot acquire jurisdiction. But the pleader need
not state the claim if
(1)
at the time the action was commenced the claim was the subject of
another pending action or
(2)
the opposing party brought suit upon his claim by attachment or
other process by which the Court did not acquire jurisdiction to
render a personal judgment on that claim, and the pleader is not
stating any other counterclaim under this Section. A party pleading
a compulsory counterclaim does not thereby waive any defenses the
pleader may otherwise have which are otherwise properly raised.
(b)
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.
(c)
Counterclaim Exceeding Opposing Claim. A counterclaim may or
may not diminish or defeat the recovery sought by the opposing party.
It may claim relief exceeding in amount or different in kind from
that sought in the pleading of the opposing party.
(d)
Counterclaim Against the Tribes. This Act shall not be construed
to enlarge beyond the limits now fixed by law the right to assert
counterclaims or to claim credits against the Tribes or an officer
or agency thereof. A compulsory counterclaim does not waive the defense
of sovereign immunity when made by the Tribes or an officer or an
agency thereof. A permissive counterclaim waives the defense of sovereign
immunity for the purpose of determining the permissive counterclaim
stated by the Tribes, their officer, or agency, but does not waive
such defense for any other purpose.
(e)
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.
(f)
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,
except that when such amendment is served within the time otherwise
allowed for amendment without leave of the Court by Section 118(a)
of this Act, he may set up such counterclaim by amendment without
leave of the Court.
(g) Cross-Claim
Against Co-party. A pleading may state as a cross- claim any claim
by one party against a CO-party arising out of the transaction or
occurrence that is the subject matter either of the original action
or of a counterclaim therein or relating to any property that is the
subject matter of the original action. Such cross-claim may include
a claim that the party against whom it is asserted is or may be liable
to the cross-claimant for all or part of a claim asserted in the action
against the cross-claimant.
(h) 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 Sections 303 and 304.
(i) Separate
Trials; Separate Judgments. If the Court orders separate trials
as provided in Section 706(b), judgment on a counterclaim, cross-claim,
or third party claim may be rendered in accordance with the terms
of Section 901(b) when the Court has jurisdiction so to do, even if
the claims of the opposing party have been dismissed or otherwise
disposed of.
Section 115. Counterclaim: Effect of the Statutes of Limitation
(a) Where
a counterclaim and the claim of the opposing party arise out of the
same transaction or occurrence, the counterclaim shall not be barred
by a statute of limitation notwithstanding that it was barred at the
time the petition was filed, and the counterclaimant shall not be
precluded from recovering an affirmative judgment.
(b) Where
a counterclaim and the claim of the opposing party:
(1)
Do not arise out of the same transaction or occurrence; and
(2)
Both claims are for money judgments; and
(3)
Both claims had occurred before either was barred by a statute of
limitation; and
(4)
The counterclaim is barred by a statute of limitation at the time
that it is asserted, whether in an answer or an amended answer,
the counterclaim may be asserted only to reduce the opposing party's
claim.
(c) Where
a counterclaim was barred by a statute of limitation before the claim
of the opposing party arose, the barred counterclaim cannot be used
for any purpose.
Section 116. Counterclaims Against Assigned Claims
A party,
other than a holder in due course, who acquired a claim by assignment
or otherwise, takes the claim subject to any defenses or counterclaims
that could have been asserted against the person from whom he acquired
the claim, but the recovery on a counterclaim may be asserted against
the assignee only to reduce the recovery of the opposing party.
Section 117. Third-Party Practice
(a) When
Defendant May Bring in Third Party. At any time after commencement
of the action a defending party, as a third-party plaintiff, may cause
a summons and complaint to be served upon a person not a party to
the action who is or may be liable to him for all or part of the plaintiff's
claim against him, or who is or may be liable to him on a claim arising
out of the transaction or occurrence that is the subject matter of
any one or more of the claim(s) being asserted 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 Section
112 and his counterclaims against the third-party plaintiff and cross-claims
against other third-party defendants as provided in Section 114. 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
Section 112 and his counterclaims and cross-claims as provided in
Section 114. A third- party defendant may proceed under this Section
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. Any party may move to strike the third-party
claim, or for its severance or separate trial.
(b) When
Plaintiff May Bring in Third Party. When a counterclaim is asserted
against a plaintiff; he may cause a third party to be brought in under
circumstances which under this Section would entitle a defendant to
do so.
(c) Party
Defendants in Real Property Actions. In an action involving real
property, any person appearing in any manner in the title thereto,
or claiming or appearing to claim some interest in the real property
involved, may be included as a party defendant by naming such person
as a party defendant in the caption of the complaint; and when such
person is made a defendant in the body of the complaint under the
appellation of substantially the following words, "said defendant
named herein claims some right, title, lien, estate, encumbrance,
claim, assessment, or interest in and to the real property involved
herein, adverse to plaintiff which constitutes a cloud upon the title
of plaintiff and defendant has no right, title, lien, estate, encumbrance,
claim, assessment, or interest, either in law or in equity, in and
to the real property involved herein", that same is sufficient to
include any and all claims, known or unknown, 'that such defendant
may have in and to the real property involved in such case, it not
being necessary to set out the reason for such claim or claims in
the complaint or other pleading for such person being made a party
defendant.
Section 118. Amended and Supplemental Pleadings
(a) Amendments.
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 20 days after it is served, including amendments to add omitted
counterclaims or cross-claims or to add or drop parties. Otherwise
a party may amend his pleading only by leave of the Court or by written
consent of the adverse party; and leave shall be freely given when
justice so requires. A party shall plead in response to an amended
pleading within the time remaining for response to the original pleading
or within 10 days after service of the amended pleading, whichever
period may be the longer, unless the Court otherwise orders.
(b) Amendments
to Conform to the Evidence. When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleading's.
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
so to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the Court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting party
fails to satisfy the Court that the admission of such evidence would
prejudice 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. Where the pretrial conference order has superseded
the pleadings, the pre-trial order is controlling and it is sufficient
to amend the order and the pleadings need not be amended.
(c) 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 defense
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.
The delivery
or mailing of process to the Attorney General, or his designee, or
the Attorney General of the Tribes, or an agency or officer thereof
who would have been a proper defendant if named, satisfies the requirement
of clauses (1) and (2) thereof with respect to the Tribes or any agency
or officer thereof to be brought into the action as a defendant.
(d) 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. A supplemental pleading
will relate back to the original pleading if it arises out of the
conduct, transaction, or occurrence set forth in the original pleading.
Section 119. Pretrial Procedure; Formulating Issues
(a) In
any action, the Court may in its discretion direct the attorneys for
the parties 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.
(b) 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 counsel; and such 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 pretrial calendar
on which actions may be placed for consideration as above provided
and may either confine the calendar to jury actions or to non-jury
actions or extend it to all actions.
Section 120. Lost Pleadings
If a pleading
be lost or withheld by any person, the Court may allow a copy thereof
to be substituted.
Section 121. Tenders of Money or Property
When a
tender of money or property is alleged in any pleading, it shall not
be necessary to deposit the money or property in Court when the pleading
is filed, but it shall be sufficient if the money or property is deposited
in Court at trial, or when ordered by the Court.
Section 122. Dismissal of Actions
(a) Voluntary
Dismissal: Effect Thereof.
(1)
By Plaintiff: By Stipulation. Subject to the provisions of Section
307 or Section 802 of this statute of the Tribes, an action may
be dismissed by the plaintiff without order of Court
(i) by filing a notice of dismissal at any time before service
by the adverse party of an answer or of a motion of summary judgment,
whichever first occurs, or
(ii)
by filing a stipulation of dismissal signed by all parties who
have appeared in the action. Unless otherwise stated in the notice
of dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal without the consent of the defendants
operates as an adjudication upon the merits when filed by a plaintiff
who has once voluntarily dismissed, without the consent of the
defendants, in any Court of any Indian Tribe, the United States,
or any state an action based on or including the same claim, unless
such previous dismissal was entered due to inability to obtain
personal jurisdiction over an indispensable party or lack of subject
matter jurisdiction in the Court in which the case was previously
filed. If the plaintiff claims either or both of these exceptions,
it shall so state in its notice of dismissal and shall apply to
the District Court, upon notice to all adverse parties for an
order determining that the previous dismissal was within one or
both of the two stated exceptions and that the plaintiff is entitled
to dismiss the current action without prejudice. The Court may
grant such application in its discretion and allow the plaintiff
to dismiss without prejudice on such terms as are just, due regard
being had for costs, attorney fees, and inconvenience of the defendants,
and any apparent motive to harass, embarrass, or delay the defendants.
(2)
By Order of the Court. Except as provided in paragraph (1) of this
subdivision of this Section, an action shall not be dismissed at
the plaintiff's instance save upon order of the Court and upon such
terms and conditions as the Court deems property. If a counterclaim
has been pleaded by a defendant prior to the service upon him of
the plaintiff's motion to dismiss, the action shall not be dismissed
against the defendant's objection unless the counterclaim can remain
pending for independent adjudication by the Court. Unless otherwise
specified in the order, a dismissal under this paragraph is without
prejudice.
(b) Involuntary
Dismissal: Effect Thereof. For failure of the plaintiff to prosecute
or to comply with this Act, any Court rule, or any order of the Court,
a defendant may move for dismissal of an action or of any claim against
him. After the plaintiff, in an action tried by the Court without
a jury, has completed the presentation of his evidence, the defendant,
without waiving his right to offer evidence in the event the motion
is not granted, may move for dismissal on the ground that upon the
facts and the law the plaintiff has shown no right to relief. The
Court as trier of the facts may then determine them and render judgment
against the plaintiff or may decline to render any judgment until
the close of all the evidence. If the Court renders judgment on the
merits against the plaintiff, the Court shall make findings as provided
in Section 751(a). Unless the Court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any dismissal not
provided for in this Section, other than a dismissal for lack of jurisdiction,
or for failure to join a party under Section 303, operates as an adjudication
upon the merits.
(c) Dismissal
of Counterclaim, Cross-Claim, or Third Party Claim. The provisions
of this Section apply to the dismissal of any counterclaim, cross-claim,
or third-party claim. A voluntary dismissal by the claimant alone
pursuant to paragraph (1) of subdivision (a) of this Section shall
be made before a responsive pleading is served or, if there in none,
before the introduction of evidence at the trial or hearing.
CHAPTER TWO - PROCESS, SUMMONS, FILING OF PLEADINGS AND OTHER PAPERS
Section 201. Issuance of Summons
Upon the
filing of the complaint the Court Clerk shall forthwith issue a summons
and deliver it for service with a copy of the complaint to the plaintiffs
attorney, Chief of Tribal Police or to a person specially appointed
by the Court to serve it. Upon request of the plaintiff separate or
additional summons shall issue against any defendants.
Section 202. Form of Summons
The summons
shall be signed by the Court 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 attorney,
if any, otherwise the plaintiff's address, and the time within which
this Act requires 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. When,
under Section 218, service is made pursuant to a statute or rule of
the Court, the summons, or notice, or order in lieu of summons shall
correspond as nearly as may be to that required by the ordinance or
rule of the Court.
Section 203. Who May Serve Process Personally
(a) Process
including a subpoena, if served in person, shall be served by the
Chief of the Tribal Police or his deputy, or the Bureau of Indian
Affairs Police, or their deputy, a person licensed to make service
of process in civil cases pursuant to Court rule, or a person specially
appointed by the Court for that purpose. A subpoena may also be served
by any person over eighteen years of age who is not a party to the
action.
(b) When
process has been served and return thereof is filed in the office
of the Court Clerk, a copy of the return shall be sent by the Court
Clerk to the serving party's attorney within three (3) days after
the return is filed.
(c) Process,
other than a subpoena, shall not be served by a party's attorney except
as provided in Section 204 of this Chapter. A party shall not make
service of process unless appearing without an attorney, in which
case, the party may make service of process in the same manner and
to the same extent that an attorney for the party could have served
that process under this Chapter.
(d) The
Court shall freely make special appointments to serve all process
under this paragraph.
Section 204. Service of Process by Mail
(a) A
summons and petition, and a subpoena, may be served by mail by the
plaintiff's attorney, or any person authorized to serve process pursuant
to Section 203 of this Chapter.
(b) Service
by mail may be accomplished by mailing the subpoena, or a copy of
the summons and petition, by certified mail, return receipt requested
and delivery restricted to the addressee.
(c) Service
pursuant to this paragraph shall not be the basis for the entry of
a default or a judgment by default unless the record contains a return
receipt showing acceptance by the defendant or a returned envelope
showing refusal of the process by the defendant. If delivery of the
process is refused, upon the receipt of notice of such refusal and
at least ten (10) days before applying for entry of default or judgment
by default, the person serving the process shall mail to the defendant
by first-class mail postage prepaid a copy of the summons and petition
and a notice that despite such refusal the case will proceed and that
judgment by default will be rendered against him unless he appears
to defend the suit. A copy of said notice and proof of mailing thereof
shall be filed of record in the case prior to the entry of a judgment
by default. Any such default or judgment by default shall be set aside
upon motion of the defendant if the defendant demonstrates to the
Court that the return receipt was signed or delivery was refused by
an unauthorized person. Such motion shall be filed within one (1)
year after the defendant has notice of the default or judgment by
default but in no event more than two (2) years after the judgment.
(d) In
the case of an entity described in subsection (c) of Section 217 of
this Chapter, acceptance or refusal by any officer or by any employee
of the registered office or principal place of business who is authorized
to or who regularly receives certified mail shall constitute acceptance
or refusal by the party addressed.
(e) In
the case of governmental organization subject to suit, acceptance
or refusal by an employee of the office of the officials specified
in the appropriate subsection of Section 217 of this Chapter who is
authorized to or who regularly receives certified mail shall constitute
acceptance or refusal by the party addressed.
Section 205. Service by Publication
Service
of summons upon a named defendant may be made by publication when it
is stated in the petition, verified by the plaintiff or his attorney,
or in a separate affidavit by the plaintiff or his attorney filed with
the Court, that with due diligence service cannot be made upon the defendant
by any other method.
Section 206. Publication Service Upon Parties and the Unknown
Successors of Named Parties
(a) Service
of summons upon named parties, the unknown successors of a named party,
a named decedent, or a dissolved partnership, corporation, or other
association may be made by publication when it is stated in the complaint,
verified by the plaintiff or his attorney, or in a separate affidavit
by the plaintiff or his attorney filed with the Court, that the person
who verified the complaint or the affiant does not know, and with
due diligence cannot ascertain, the following:
(1)
Whether a person named as a party is living or dead, and, if dead,
the names or whereabouts of his successors, if any.
(2)
The names or whereabouts of a party and the unknown successors,
if any, of the named decedent or other parties.
(3)
Whether a partnership, corporation, or other association named as
a party continues to have legal existence or not; or the name or
whereabouts of its officers or successors.
(4)
Whether any person designated in a record as a trustee continues
to be the trustee; or the names or whereabouts of the successors
of the trustee, or
(5)
The names or whereabouts of the owners or holder of special assessment
or improvement bonds, or any other bonds, sewer warrants or tax
bills of similar instruments.
(b) Service
pursuant to this Section shall be made by publication of a notice,
signed by the Court Clerk, in a newspaper authorized by law to publish
legal notices which is published within the reservation. If no newspaper
authorized by law to publish legal notices is published within the
reservation, the notice shall be published in some such newspaper
of general circulation within the reservation which is published in
an adjoining county.
(c) All
named parties, their unknown successors, and other persons who may
be served by publication may be included in one notice. The notice
shall state:
(1)
The name of the Court in which the petition is filed,
(2)
The names of the parties,
(3)
Designate the parties whose unknown successors are being served,
if any,
(4)
That the named parties and their unknown successors have been sued
and must answer the complaint or other pleading on or before a time
to be stated (which shall not be less than thirty-one (31) days
from the date of the publication, or judgment, the nature of which
shall be stated, will be rendered accordingly.
(5)
It is not necessary for the publication notice to state that the
judgment will include recovery of costs in order for a judgment
following the publication notice to include costs of suit.
(d) If
jurisdiction of the Court is based on property, any real property
subject to the jurisdiction of the Court and any property or debts
to be attached or garnished must be described in the notice.
(e) Service
is complete upon publication.
Section 207. Publication Notice for Recovery of Money
When the
recovery of money is sought, it is not necessary for the publication
notice to state the separate items involved, but the total amount that
is claimed must be stated. When interest is claimed, it is not necessary
to state the rate of interest, the date from which interest is claimed,
or that interest is claimed until the obligation is paid.
Section 208. Publication Notice in Quiet Title Actions
In an action
to quiet title to real property, it is not necessary for the publication
notice to state the nature of the claim or interest of either party,
and in describing the nature of the judgment that will be rendered should
the defendant fail to answer, it is sufficient to state that a decree
quieting plaintiff's title to the described property will be entered.
It is not necessary to state that a decree forever barring the defendant
from asserting any interest in or to the property is sought or will
be entered if the defendant does not answer. In quiet title actions
notice shall be published twice. The second publication shall be not
less than seven nor more than forty-five days after the first publication.
The answer shall be due thirty-one days after the second publication,
and service is complete upon the second publication.
Section 209. Completion of Publication Service
Service
by publication is complete when made in the manner and for the time
prescribed in this Chapter. Service by publication shall be proved by
the affidavit of any person having knowledge of the publication with
a copy of the published notice attached. No default judgment may be
entered on such service until proof of service by publication is filed
with and approved by the Court.
Section 210. Entry of Default on Party Served by Publication
Before
entry of a default judgment or order against a party who has been served
solely by publication under this Chapter, the Court shall conduct an
inquiry to determine whether the plaintiff, or someone acting in his
behalf, made a distinct and meaningful search of all reasonably available
sources to ascertain the whereabouts of any named parties who have been
served solely by publication under this subsection. Before entry of
a default judgment or order against the unknown successors of a named
defendant, a named decedent, or a dissolved partnership, corporation,
or association, the Court shall conduct an inquiry to ascertain whether
the requirements described in subsection (a) of Section 206 of this
Chapter have been satisfied.
Section 211. Vacating Default Judgments Where Service is by Publication
(a) A
party against whom a default judgment or order has been rendered,
without other service than by publication in a newspaper, may, at
anytime within three (3) years after the date of the judgment or order,
have the judgment or order opened and be let in to defend.
(b)
Before the judgment or order is opened, the applicant shall notify
the adverse party of his intention to make such challenge, and shall
(1)
File a full answer to the petition,
(2)
Pay all costs if the Court requires them to be paid, and,
(3)
Satisfy the Court by affidavit or other evidence that during the
pendency of the action he had no actual notice thereof in time to
appear in Court and make his defense.
(c) The
title to any property which is the subject of and which passed to
a purchaser in good faith by or in consequence of the judgment or
order to be opened shall not be affected by any proceedings under
the Section. Nor shall proceedings under this Section affect the title
of any property sold before judgment under an attachment.
(d) The
adverse party, on the hearing of any application to open a judgment
or order as provided by this Section, shall be allowed to present
evidence to show that during the pendency of the action the applicant
has notice thereof in time to appear in Court and make his defense.
Section 212. Certain Technical Errors Not Grounds for Vacating
Judgment
(a) No
judgment heretofore or hereafter rendered in any action against unknown
heirs or devisees of a deceased person shall ever be construed, or
held to be, either void or voidable upon the ground that an affidavit
of the plaintiff to the effect that the name of such heirs or devisees,
or any of them, and their residences, are unknown to the plaintiff,
was not annexed to his complaint so long as said affidavit is on file
in the action, and all such judgments, if not otherwise void, are
hereby declared to be valid and binding from the date of rendition.
(b) No
judgment heretofore or hereafter rendered in any action against any
person or party served by publication shall be construed or held to
be void or voidable because the affidavit for such service by publication
on file in the action was made by the attorney for the plaintiff or
because the complaint or other pleading was verified, if verification
is necessary, by the attorney for the plaintiff or party seeking such
service by publication. In all such cases it shall be conclusively
presumed, if otherwise sufficient, that the allegations and statements
made by such attorney were and are in legal effect and for all purposes
made by plaintiff and shall have the same force and effect as if actually
made by the plaintiff.
(c) All
such judgments, if not otherwise defective or void, are hereby declared
valid and legally effective and conclusive as of the date thereof
as if such affidavit was made or the complaint or pleading was verified
by the plaintiff or other party obtaining such service by publication.
Section 213. Meaning of "Successors" for Publication Purposes
The term
"successors" includes all heirs, executors, administrators, devisees,
trustees, and assigns, immediate and remote, of a named individual,
partnership, corporation, or association.
Section 214. Minimum Contacts Required for Effective Long Arm
Service
Service
outside of the Tribal jurisdiction does not give the Court in persona
jurisdiction over a defendant who is not subject to the jurisdiction
of the Courts of these Tribes, or who has not, either in person or through
an agent, submitted himself to the jurisdiction of the Courts of these
Tribes either by appearance, written consent, or having voluntarily
entered into sufficient contacts with the Tribes, its members, or its
territory to justify tribal jurisdiction over him in accordance with
the principals of due process of law and federal Indian law.
Section 215. Consent is Effective Substitute for Service
An acknowledgment
on the back of the summons or the voluntary appearance of a defendant
is equivalent to service.
Section 216. Service Pursuant to Court Order
If service
cannot be made by personal delivery or by mail, a defendant of any class
referred to in subsection (a) or (c) of Section 217 of this Chapter
may be served as provided by Court order in any manner which is reasonably
calculated to give him actual notice of the proceedings and an opportunity
to be heard. The Court may enter an order requiring such service whenever
service has been by publication only prior to entering a default judgment.
Section 217. Manner of Making Personal Service
The summons
and complaint shall be served together. The plaintiff shall furnish
the person making service with such certified copies as are necessary.
If the complaint is not served with the summons, the case shall not
be dismissed but the time to answer should be extended by the Court
upon motion. The person serving the summons shall state on the copy
that is left with the party served the date that service is made.
Where service is to be made by mail, the person mailing the summons
shall state on the copy that is mailed to the party to be served the
date of mailing. These provisions are not jurisdictional, but if the
failure to comply with them prejudices the party served, the Court
may extend the time to answer. Service of the summons and complaint
and service of subpoenas shall be made as follows:
(a) Upon
an individual other than an infant or an incompetent person, by delivering
a copy of the summons and a copy of the complaint to him personally
or by leaving copies thereof at his dwelling house or usual place
of abode with some person fifteen (15) years of age or older then
residing therein or by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by law to receive
service of process.
(b) Upon
an infant, by delivering a copy of the summons and complaint to either
parent and the legal guardian of the infant, if any, or the person
with whom he resides if the infant is under the age of fourteen years.
If the infant is over the age of fourteen years, by serving either
parent and the legal guardian of the infant, if any, or the person
with whom he resides and by serving the infant personally if the legal
guardian cannot be located.
(c) Upon
a domestic or foreign corporation or upon a partnership or other unincorporated
association which is subject to suit under a common name, by delivering
copy of the summons and of the complaint to an officer, a managing
or general agent, or to any other agent authorized by appointment
or by law to receive service of process and, if the agent is one authorized
by statute to receive service and the statute so requires, by also
mailing a copy to the defendant. Service may also be had upon such
entities by delivering the summons and complaint to a place of business
of such entity and leaving a copy with the person in charge of that
place of business at the time service is made.
(d) Upon
the United States, by delivering a copy of the summons and of the
complaint to the United States Attorney for the Western District of
Oklahoma or to an assistant United States Attorney or clerical employee
designated by the United States Attorney in a writing filed with the
Clerk of the United States District Court for the Western District
of Oklahoma and by sending a copy of the summons and of the complaint
by registered or certified mail to the Attorney General of the United
States at Washington, District of Columbia, and in any action attacking
the validity of an order of an officer or agency of the United States
not made a party, by also sending a copy of the summons and of the
complaint by registered or certified mail to such officer or agency.
(e) Upon
any office or agency of the United States, by serving the United States
and by delivering a copy of the summons and of the complaint to such
officer or agency. If the agency is a corporation the copy shall be
delivered as provided in subsection (c) of this Section.
(f) Upon
a state, a state municipal corporation, any other Indian Tribes not
a party to this Act, or other governmental organization thereof subject
to suit, by delivering copy of the summons and of the complaint to
the Chief Executive Officer thereof or by serving the summons and
complaint in the manner prescribed by the law of that state or Tribes
for the service of summons or other like process upon any such defendant.
(g) Upon
these Tribes by delivering a copy of the summons and complaint to
the Chief Executive Officer of the Tribes, or to such Tribal officer
or employee as may be designated by the Chief Executive Officer of
the Tribes in a writing filed with the Clerk of the Tribal District
Court, and by sending a copy of the summons and complaint by registered
or certified mail, return receipt requested, to the Attorney General
and in any action attacking the validity of an order of an officer
or agency of the Tribes not made a party, by also sending a copy of
the summons and complaint by registered or certified mail, return
receipt request, to such officer or agency. The name and address of
the Attorney General may always be obtained from the Bureau of Indian
Affairs.
(h) Upon
any officer or agency of these Tribes by serving the Tribes, and by
delivering a copy of the summons and complaint to such officer or
agency. If the agency is a corporation, the copy shall be delivered
as provided in subsection (c) of this section.
Section 217.1. Effect of Service of Some of Several Defendants
(a) Where
the action is against two or more defendants, and one or more shall
be been served, but not all of them, the plaintiff may proceed as
follows:
(1)
If the action be against defendants jointly indebted upon contract,
tort, or any other cause of action, he may proceed against the defendants
served, unless the Court otherwise orders; and if he recover judgment,
it may be entered against: (a) all the defendants thus jointly indebted
only insofar as the judgment may be enforced against the joint property
of all, and (b) against the defendants served insofar as the judgment
may be enforced against the separate property of the defendants
served, and if they are subject to arrest, against the persons of
the defendants served.
(2)
If the action be against defendants severally liable, he may, without
prejudice to his rights against those not served, proceed against
the defendants served in the same manner as if they were the only
defendants.
(b) A
judgment against one or more defendants served, whether jointly or
severally liable, shall not be construed to make such judgment a bar
to another action against those not served.
Section 218. Service Upon Party Not Inhabitant of or Found Within
the Reservation
(a) Whenever
an ordinance of the Tribes or an order of the Court of the Tribes
provides for service of summons, or of a notice, or of an order in
lieu of summons upon a party not an inhabitant of or found within
the geographical boundaries of the Tribal reservation, service may
be made under the circumstances and in the manner prescribed by the
ordinance or order, or, if there is no provision therein prescribing
the manner of service, in a manner stated in this Act.
(b) In
any action against a foreign corporation or association where service
is authorized by Tribal law upon a Tribal Officer, and the party seeking
service elects to serve the Tribal Officer, service shall be made
as follows:
(1)
The Tribal District Court Clerk shall issue a summons and shall
forthwith mail or personally serve triplicate copies of said summons,
together with a copy of the complaint and the service fee to the
Tribal Officer. The Court Clerk shall make due return, indicating
that the summons and complaint copies have been delivered to the
Tribal Officer and the date of such delivery. Receipt of the summons
and complaint by the Tribal Officer shall constitute service upon
him. Within three (3) working days after service upon him, the Tribal
Officer shall send copies of the summons and complaint to such foreign
corporation or association, by registered or certified mail, return
receipt requested, at its office as shown by the articles of incorporation,
or charter, or by the latest information officially filed in the
office of the Tribal Officer. The summons shall set forth the last-known
address of the office of the corporation or association as ascertained
by the parties by use of due diligence, and the Tribal Officer shall
mail copies of the summons and complaint to the corporation or association
at this address. The Tribal Officer shall maintain one copy of the
summons and complaint with the records of the corporation or association.
(2)
The original summons that is served on the Tribal Officer shall
be in form and substance the same as provided in suits against residents
of the Tribal jurisdiction. The summons shall state an answer date
which shall be not less than forty-five (45) days nor more than
sixty (60) days from the date that such summons was issued.
Section 219. Territorial Limits of Effective Service
(a) All
process, other than subpoena or process involving the detention, seizure,
or arrest of persons or property, may be served anywhere within the
reservation boundaries, or any Indian Country, as defined by 18 U.S.C.§1151,
which is 5 to the jurisdiction of the Tribes and, when authorized
by an ordinance of the Tribes or by this Act, beyond these territorial
limits.
(b) In
addition, persons who are brought in as parties pursuant to Section
117 of this Act, or as additional parties to a pending action or a
counterclaim or cross-claim therein pursuant to Section 303, may be
served in the manner stated in subsections (a)-(f) of Section 217
of this Act at all places outside the reservation of the Tribes but
within the United States, and persons required to respond to an order
of commitment for civil contempt may be served, but not arrested,
at the same places.
(c) A
subpoena or process involving the detention, seizure, or arrest of
persons or property, may be served and compulsorily enforced only
within the Indian Country, as defined by 18 U.S.C. §1151, which
is subject to the jurisdiction of the Tribes. A subpoena or other
process involving the detention, seizure or arrest of a person or
property may be served anywhere within the United States, but no compulsory
enforcement thereof may be maintained in this Court unless such person
or property is located within the Indian Country of the Tribes when
service is made.
(d) When
the exercise of jurisdiction is authorized by Tribal or Federal law,
service of the summons and complaint may be made outside this reservation:
(1)
By personal delivery in the manner prescribed for service within
this reservation,
(2)
In the manner prescribed by the law of the place in which the service
is made for service in that place in an action in any of its Courts
of general jurisdiction,
(3)
By publication is appropriate circumstances,
(4)
As directed by the foreign authority in response to a letter rogatory,
or
(5)
As directed by the Court.
Section 220. Return of Service of Process
(a) The
person serving the process shall make proof of service thereof to
the Court promptly and in any event within the time during which the
person served must respond to the process. If service is made by a
person other than the Chief of Tribal police or his deputy, the Bureau
of Indian Affairs Police or their deputy, or an attorney by mail,
he shall make affidavit thereof. Return of receipt for certified or
registered mail shall be attached to the proof of service if service
was made by mail. A copy of each publication of notice shall be attached
to the return of service by publication. Failure to make proof of
service does not affect the validity of the service.
(b) The
person serving the summons shall state on the copy that is left with
the party served, as well as on the return, the date that service
is made. Where service is to be made by mail, the person mailing the
summons shall state on the copy that is mailed to the party to be
served the date of mailing. These provisions are not jurisdictional,
but if the failure to comply with them prejudices the party served,
the Court may extend the time to answer.
Section 221. Alternative Provisions for Service in a Foreign Country
(a) Manner.
When the law of the Tribes referred to in Section 218 of this Chapter
authorizes service upon a party not an inhabitant of or found within
the territorial limits of effective service of the Tribal Court, and
when 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:
(1) in the manner prescribed by the law of the Tribe, state, or foreign
country for service in that Tribe, state, or country in an action
in any of its Courts of general jurisdiction; or (2) 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
(3) upon an individual, by delivery to him personally, and upon a
corporation or partnership or association, by delivery to an officer,
a managing; or general agent; or (4) 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 (5) as directed by the order of
the Court. Service under (3) or (5) 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 District 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 220 of this
Chapter, or by the law of the Tribe, state, or foreign country, or
by order of the Court. When service is made by mail pursuant to subsection
(a) of this Section, proof of service shall include a receipt signed
by the addressee or other evidence of the delivery to the address
satisfactory to the Court.
Section 222. Subpoena
(a) For
Attendance of Witnesses; Form; Issuance. Every subpoena shall
be issued by the Clerk under the seal of the Court, shall state the
name of the Court and the title of the action, and shall command each
person to whom it is directed to attend and give testimony at a time
and place therein specified. The Clerk shall issue a subpoena, or
a subpoena for the production of documentary or other physical evidence
signed and sealed, but otherwise in blank, to a party requesting it,
who shall fill it in before service.
(b) For
Production of Documentary Evidence. A subpoena may also command
the person to whom it is directed to produce the books, papers, documents,
or tangible things designated therein; but the Court, upon motion
made promptly and in any event at or before the time specified in
the subpoena for compliance therewith may (1) quash or modify the
subpoena if it is unreasonable and oppressive or (2) condition denial
of the motion upon the advancement by the person in whose behalf the
subpoena is issued of the reasonable cost of producing the books,
papers, documents, or tangible things.
(c) Service.
A subpoena may be served by the Chief of the Tribal Police, by his
deputy, the Indian Police of the Bureau of Indian Affairs, or by any
other person authorized by the Court or by this Act who is not a party
and is not less than 18 years of age. Service of a subpoena thereof
to such person and by tendering to him the fees for one day's attendance
and the mileage allowed by law. When the subpoena is issued on behalf
of the Tribes or an officer or agency thereof, fees and mileage need
not be tendered, but fees paid shall be charged to such Tribal Officer
or agency budget. A subpoena may be served as provided in Section
204 if accepted by the addressee, All subpoena service expenses may
be recovered as other costs.
(d) Subpoena
for Taking Depositions; Place of Examination.
(1)
Proof of service of a notice to take a deposition as provided in
Sections 405(b) and 406(a) or presentation of prepared notices to
be attached to the subpoena constitutes a sufficient authorization
for the issuance by the Clerk of the District Court of subpoenas
for the persons named or described therein. The subpoena may command
the person to whom it is directed to produce and permit inspection
and copying of designated books, papers, documents, or tangible
things which constitute or contain matters within the scope of the
examination permitted by Section 401(b), but in that event the subpoena
will be subject to the provisions of Section 401(c) and subdivision
(b) of this Section.
The
person to whom the subpoena is directed may, within 10 days after
the service thereof or on or before the time specified in the subpoena
for compliance, if such time is less than 10 days after service,
serve upon the attorney designated in the subpoena written objection
to inspection or copying of any or all of the designated materials.
If objection is made, the party serving the subpoena shall not be
entitled to inspect and copy the materials except pursuant to an
order of the Court from which the subpoena was issued. The party
serving the subpoena may, if objection has been made, move upon
notice to the deponent for an order at any time before or during
the taking of the deposition.
(2)
A resident of the Tribal jurisdiction may be required to attend
an examination at any place within the Tribal jurisdiction not more
than fifty (50) miles from his residence, except that he may be
required to attend in the county or district wherein he resides
or is employed or transacts his business in person, or in the town
in which the District Court is located, or at such other convenient
place as is fixed by an order of the Court. A nonresident of the
Tribal jurisdiction may be required to attend only in the county
wherein he is served with a subpoena or resides or within 50 miles
from the place of service, or at such other convenient place as
is fixed by an order of the Court.
(e) Subpoena
for Hearing or Trial.
(1)
At the request of any party,subpoenas for attendance at a hearing
or trial shall be issued by the Clerk of the District Court. A subpoena
requiring the attendance of a witness at a hearing or trial may
be served at any place within the Tribal jurisdiction or at any
place without the Tribal jurisdiction that is within 100 miles of
the place of the hearing or trial specified in the subpoena; and,
when a statute of the Tribes provides therefore, the Court upon
proper application and cause shown may authorize the service of
a subpoena at any other place.
(2)
A subpoena directed to a witness in a foreign country shall issue
under the circumstances and in the manner and be served as may be
provided by any Tribal statute.
(f) Contempt.
Failure by any person without adequate excuse to obey a subpoena served
upon him within the Tribal jurisdiction may be deemed a contempt of
the District Court.
Section 230. Summons, Time Limit for Service
(a) If
service of process is not made upon a defendant within one hundred
twenty (120) days after the filing of the complaint and the plaintiff
cannot show good cause why such service was not made within that period,
the action shall be dismissed as to that defendant without prejudice
upon the Courts own initiative with notice to the plaintiff or upon
motion.
(b) If
service of process is not made upon a defendant within one hundred
eighty (180) days after the filing of the complaint, the action shall
be deemed to have been dismissed without prejudice as to that defendant.
This Section shall not apply to service in a foreign country.
Section 231. Service and Filing of Pleadings and Other Papers
(a) Service:
When Required. Except as otherwise provided in this Act, every
order required by its terms to be served, every pleading subsequent
to the original complaint unless the Court otherwise orders because
of numerous defendants, every paper relating to discovery required
to be served upon a party unless the Court otherwise orders, every
written motion other than one which may be heard ex parte, and every
written notice, appearance, demand, offer of judgment, designation
of record on appeal, and similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure
to appear except the pleadings asserting new or additional claims
for relief against them shall be served upon them in the manner provided
for service of summons.
In an
action begun by seizure of property, in which no person need be or
is named as defendant, any service required to be made prior to the
filing of an answer, claim, or appearance shall be made upon the person
having custody or possession of the property at the time of its seizure,
and upon any person then known to claim an ownership interest in the
property.
(b) Service:
How Made. Whenever service is required or permitted to be made
upon a party represented by an attorney (including any person licensed
to practice law before the Tribal Court) the service shall be made
upon the attorney unless service upon the party himself is ordered
by the Court. Service upon the attorney or upon a party shall be made
by delivering a copy to him or by mailing it to him at his last known
address or, if no address is known, by leaving it with the Clerk of
the Court who shall mail a copy thereof to the party's last address
of record. Delivery of a copy within this Section means: handing it
to the attorney or to the party; or leaving it at his office with
his 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 some person fifteen
years of age or older then residing therein. Service by mail is complete
upon mailing.
(c) Service:
Numerous Defendants. In any action in which there are unusually
large numbers of defendants, the Court, upon motion or of its own
initiative, may order that service of the pleadings of the defendants
and replies thereto need not be made as between the defendants and
that any cross-claim, counterclaim, or matter constituting an avoidance
or affirmative defense contained therein shall be deemed to be denied
or avoided by all other parties and that the filing of any such pleading
and service thereof upon the plaintiff constitutes due notice of it
to the parties. A copy of every such order shall be served upon the
parties in such manner and form as the Court directs.
(d) Filing.
All papers after the complaint required to be served upon a party
shall be filed with the Court either before service or within a reasonable
time thereafter. Discovery materials need not be filed except by order:
of the Court, for use in the proceeding, or to enforce or resist such
discovery.
(e) Filing
with the Court defined. The filing of pleadings and other papers
with the Court as required by this Chapter 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, in which event he shall note thereon
the filing date and forthwith transmit them to the office of the Clerk.
Section 240. Computation and Enlargement of Time
(a) Computation.
In computing any period of time prescribed or allowed by this Act,
by order of the 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 a legal holiday,
or any other day when the office of the Clerk of the Court does not
remain open for public business until 4:00 p.m. in which event the
period runs until the end of the next day which is not a Saturday,
a Sunday or a legal holiday or any other day when the office of the
Clerk of the Court does remain open for public business until 4:00
p.m. When the period of time prescribed or allowed is less than or
equal to 7 days, intermediate Saturdays, Sundays, and legal holidays
or any other day when the office of the Clerk of the Court does not
remain open for public business until 4:00 p.m. shall be excluded
in the computation. As used in this Section and in the provisions
relating to the Court, "legal holiday" includes New Year's Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day, and
any other day appointed as a holiday by the President or the Congress
of the United States, or by the Tribes.
(b) Enlargement
When by this Act or by a notice given thereunder or by order of the
Court an act is required or allowed to be done at or within a specified
time, the Court for cause shown any at any time in its discretion
may (1) with or without motion or notice order the period enlarged
if request thereof is made before the expiration of the period originally
prescribed or as extended by a previous order, or (2) upon motion
made after the expiration of the specified period permit the act to
be done where the failure to act was the result of excusable neglect;
but it may not extend the time for taking any action under Sections
757(b), 752(c), (d) and (e), and Section 909(b), except to the extent
and under the conditions stated in them.
(c) For
Motion-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 5 days before the time specified for the hearing, unless
a different period is fixed by this Act 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 Section 908(c),
opposing affidavits may be served not later than 1 day before the
hearing, unless the Court permits them to be served at some other
time.
(d) 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, 3 days shall be added
to the prescribed period.
Section 241. General Cases in Which Extraterritorial Service Authorized
Service
of summons and complaint, third party complaints, and other process
by which an action is instigated may be made outside the territorial
limits described in Section 219 in the following cases in addition to
any circumstances specifically or otherwise provided for:
(a) In
all actions arising under the Tribal juvenile statutes or The Indian
Child Welfare Act;
(b) In
all divorce actions when one of the parties is a resident of the Tribal
jurisdiction or a member of the Tribes;
(c) In
all actions arising in contract where the contract was entered into,
or some material portion thereof was to be performed, within the Tribal
jurisdiction; or
(d) In
all actions arising out of the negligent operation of an automobile
within the Tribal jurisdiction by a non-resident when an injury to
person or property resulted within the Tribal jurisdiction from the
negligent operation of the motor vehicle.
Section 242. Legal Newspaper
All newspapers
regularly published at least once each week for a period of two years
prior to the date of publication of a notice within the reservation
or in any county adjacent thereto, and the Tribal newsletter shall be
legal newspapers for the publication of any notice required to be published
by Tribal law.
CHAPTER THREE - PARTIES
Section 301. Parties Plaintiff and Defendant: Capacity
(a) Real
Party in Interest. Every action shall be prosecuted in the name
of the real party 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 statute may sue in his own name without joining with
him the party for whose benefit the action is brought; and when a
statute of the Tribes so provides, an action for the use or benefit
of another shall be brought in the name of the Tribes.
No action
shall be dismissed on the ground that it is not prosecuted in the
name of the real party in interest until a reasonable time has been
allowed after objection for ratification of commencement of the action
by, or joinder or substitution of, the real party in interest; and
such ratification, joinder, or substitution shall have the same effect
as if the action had been commenced in the name of the real party
in interest.
(b) Capacity
to Sue or Be Sued. Except as otherwise provided by law, every
person, corporation, partnership, or incorporated association shall
have the capacity to sue or be sued in its own name in the Courts
of the Tribes, and service may be had upon unincorporated associations
and partnership as provided in Section 217 (c) of this Act, upon a
managing or general partner, or upon an officer of an unincorporated
association.
(c) Infants
or Incompetent Persons. Whenever an infant or incompetent person
has a representative, such as a general guardian, committee, conservator,
or other like fiduciary, the representative may sue or defend on behalf
of the infant or incompetent person. 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.
(d) Assignment
of Tort Claims Prohibited. Claims arising in tort may not be assigned
and must be brought by the injured party, provided, that this subsection
shall not preclude subrogation of the proceeds of such tort claims
for the benefit of any person, including insurance companies, who
have compensated the injured party for their injuries, including property
damage, to the extent of the payment made by the third party.
(e) Definitions.
For the purposes of this Section, the term "infant" means and includes
every natural person less than eighteen years of age not declared
emancipated from his parent or guardian by order of a Court of competent
jurisdiction; and the term "incompetent person" means and includes
every natural person who has been legally declared incompetent by
a Court of competent jurisdiction by reason of mental incapacity,
habitual or addictive abuse of alcohol or other drugs, or other cause
as provided by law.
Section 302. Joinder of Claims, Remedies, and Actions
(a) Joinder
of claims. A party asserting a claim to relief as an original
claim, counterclaim, cross-claim, or third-party claim, may join,
either as independent or as alternate claims, as many claims, legal
or equitable as he may have against an opposing party.
(b) Joinder
of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore
cognizable only after another claim has been prosecuted to a conclusion,
the two claims may be joined in a single action; but the Court shall
grant relief in that action only in accordance with the relative substantive
rights of the parties. In particular, a plaintiff may state a claim
for money and a claim to have set aside a conveyance fraudulent as
to him, without first having obtained a judgment establishing the
claim for money.
(c) Joinder
of Actions By the Court. Whenever it appears to the Court that
separate actions are pending between the same parties, or involving
the same facts or law, the Court may, if the parties will not be prejudiced
thereby, order said actions joined for all, or a portion of, the further
proceedings.
Section 303. Joinder of Persons Needed for Just Adjudication
(a) Persons
to Be Joined if Feasible. A person who is subject to service of
process and whose joinder will not deprive the Court of jurisdiction
over the subject matter of the action shall be joined as a party in
the action if:
(1)
In 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 or
(ii)
leave any of the persons 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 be 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.
(b) 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 in making such determination include:
(1)
To what extent a judgment rendered in the person's absence might
be prejudicial to him or those already parties;
(2)
The extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be lessened
or avoided;
(3)
Third, whether a judgment rendered in the person's absence will
be adequate; and
(4)
Whether the plaintiff will have an adequate remedy if the action
is dismissed for non-joinder.
(c) Pleading
Reasons for Non-Joinder. 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.
(d) Exception
of Clam Actions. This Section is subject to the provisions of
Section 307.
Section 304. Permissive Joinder of Parties
(a) Permissive
Joinder.
(1)
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, or if any question or fact
common to all these persons will arise in the action, or if the
claims are connected with the subject matter of the action.
(2)
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, or if any
question of law or fact common to all defendants will arise in the
action, or if the claims are connected with the subject matter of
the action.
(3)
A plaintiff or defendant need not be interested in obtaining or
defending against all the relief demanded. Judgment may be given
for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to
their respective liabilities.
(b) In
actions to quiet title or actions to enforce mortgages or other liens
upon property, persons who assert an interest in the property that
is the subject of the action may be joined although their interest
does not arise from the same transaction or occurrence.
(c) 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, or who asserts no claim
against him, and may order separate trials or make other orders to
prevent delay or prejudice.
Section 305. Misjoinder and Non-Joinder of Parties
Misjoinder
of parties is not ground 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. Leave of the Court shall not be required when the pleader amends
his pleadings within the time period for amendment of pleadings without
leave of the Court specified in Section 115 (a). Any claim against a
party may be severed and proceeded with separately upon order of the
Court.
Section 306. Interpleader
(a) 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 Section supplement and do not in any way limit
the joinder of parties permitted in Section 304.
(b) The
provisions of this section shall be applicable to actions brought
against a Tribal policeman or other officer for the recovery of personal
property taken by him under execution or for the proceeds of such
property so taken and sold by him; and the defendant in any such action
shall be entitled to the benefit of this section against the party
in whose favor the execution issued.
(c) The
Court may make an order for the safekeeping of the subject of the
action or for its payment or delivery into the Court or to such person
as the Court may direct, and the Court may order the person who is
seeking relief by way of interpleader to give a bond, payable to the
clerk of the Court, in such amount and with such surety as the Court
or judge may deem proper, conditioned upon the compliance with the
future order or judgment of the Court with respect to the subject
matter of the controversy. Where the party seeking relief by way of
interpleader claims no interest in the subject of the action and the
subject of the action has been deposited with the Court or with a
person designated by the Court, the Court should discharge him from
the action and from liability as to the claims of the other parties
to the action with costs and, in the discretion of the Court, a reasonable
attorney fee.
(d) In
cases of interpleader, costs may be adjudged for or against any party,
except as provided in subsection (c) of this Section.
Section 307. Clam Actions
(a) Prerequisites
to a Clam 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.
(b) Class
Actions Maintainable. An action may be maintained as a class action
if the prerequisites of subsection (a) are satisfied, and in addition:
(1)
The prosecution of separate actions by or against individual members
of the class would create a risk of:
(i)
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
(ii)
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 prosecution or defense of separate actions; (B) the extent and
nature of any litigation concerning the controversy already commenced
by or against members of the class; (C) the desirability or undesirability
of concentrating the litigation of the claims in the particular
forum; (D) the difficulties likely to be encountered in the management
of a class action.
(c)
Determination by Order Whether Clan 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 members who can be
identified through reasonable effort. The notice shall advise each
member that
(i)
the Court will exclude him from the class if he so requests by
a specified date;
(ii)
the judgment, whether favorable or not, will include all members
who do not request exclusion; and
(iii)
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
(i)
an action may be brought or maintained as a class action with
respect to particular issues, or
(ii)
a class may be divided into subclasses and each subclass treated
as a class, and the provisions of this Section shall then be construed
and applied accordingly.
(5)
Where the class contains more than five hundred (500) members who
can be identified through reasonable effort, it shall not be necessary
to direct individual notice to more than five hundred (500) members,
but the members to whom individual notice is not directed shall
be given notice in such manner as the Court shall direct, which
may include publishing notice in newspapers, magazines, trade journals
or other publications, posting it in appropriate places, and taking
other steps that are reasonably calculated to bring the notice to
the attention of such members, provided that the cost of giving
such notice shall be reasonable in view of the amounts that may
be recovered by the class members who are being notified. Members
to whom individual notice was not directed may request exclusion
from the class at anytime before the issue of liability is determined,
and commencing an individual action before the issue of liability
is determined shall be the equivalent of requesting exclusion from
the class.
(d) Orders
in Conduct of Actions. In the conduct of actions to which this
Section 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 Section 119, and may be
altered or amended as may be desirable from time to time.
(e)
Dismissal or Compromise. A class action shall not be dismissed
or compromised without the approval of the Court, and notice of the
proposed dismissal or compromise shall be given to all members of
the class in such manner as the Court directs.
Section 308. Derivative Actions by Shareholders and Members
(a)
In a derivative action brought by one or more shareholders or members
to enforce a right of a corporation or of an unincorporated association,
the corporation or association having failed to enforce a right which
may properly be asserted by it, the complaint shall be verified and
shall allege:
(1)
That the plaintiff was a shareholder or member at the time of the
transaction of which he complains or that his share or membership
thereafter devolved on him by operation of law, and
(2)
That the action is not a collusive one to confer jurisdiction on
a Court of the Tribes which it would not otherwise have. The complaint
shall also allege with particularity the efforts, if any, made by
the plaintiff to obtain the action 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.
(b) 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. The Court shall not take jurisdiction over such
actions concerning the internal affairs of corporations or other entities
formally organized under the law of some other jurisdiction absent
the consent of all parties to the controversy or some compelling reason
to assume such jurisdiction.
(c)
An action brought by or against the members of an unincorporated association
as a class by naming certain members as representative parties may
be maintained only if it appears that the representative parties will
fairly and adequately protect the interests of the association and
its members. In the conduct of the action the Court may make appropriate
orders corresponding with those described in Section 307(d) and the
procedure for dismissal or compromise of the action shall correspond
with that provided in Section 307.
Section 309. Intervention
(a) Intervention
of Right. Upon timely application anyone shall be permitted to
intervene in an action: (1) when a statute of the Tribes 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, unless the applicant's interest is adequately represented
by existing parties.
(b)
Permissive Intervention. Upon timely application anyone may
be permitted to intervene in an action when an applicant's claim or
defense and the main action have a question of law or fact in common.
When a party to an action relies for ground of claim or defense upon
any statute or executive order administered by a tribal, federal or
state governmental officer or agency or upon any regulation, order,
requirement or agreement issued or made pursuant to the statute or
executive order, the officer or agency upon timely application may
be permitted to intervene in the action. In exercising its discretion
the Court shall consider whether the intervention will unduly delay
or prejudice the adjudication of the rights of the original parties.
(c)
Procedure. A person desiring to intervene shall serve a motion
to intervene upon the parties as provided in Section 231. 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.
If the motion to intervene is granted, all other parties may serve
a responsive pleading upon leave of the Court.
(d)
Intervention By the Tribes. In any action, suit, or proceeding
to which the Tribes or any agency, officer, or employee thereof is
not a party in their official capacity, wherein the constitutionality
or enforceability of any statute of the Tribes affecting the public
interest is drawn in question, the parties, and upon their failure
to do so, the Court shall certify such fact to the Chief Executive
Officer of the Tribes, the Attorney General, and Business Committee
and the Court shall permit the Tribes to intervene for presentation
of evidence, if the evidence is otherwise admissible in the case,
and for argument on the question of constitutionality or enforceability.
The Tribes shall, subject to the applicable provisions of law, have
all the rights of a party, and be subject to the liabilities of a
party- as to court costs only-to the extent necessary for a proper
presentation of the facts and law relating to the question of constitutionality
or enforceability of the Tribal laws at issue. It shall be the duty
of the party raising such issue to promptly give notice thereof to
the Court either orally upon the record in open Court or by a separate
written notice filed with the Court 'and served upon all parties,
and to state in said notice when and how notice of the pending question
will be or has been certified to the Tribes as provided above.
Section 310. Substitution of Parties
(a)
Death.
(1)
If a party dies, 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 Section 231 and upon persons not parties in the manner
provided for the service of a summons, and may be served within
or without the Tribal jurisdiction. Unless the motion for substitution
is made not later than 90 days after the death is suggested upon
the record, the action shall be dismissed as to the deceased party.
(2)
In the event of the death of one or more of the plaintiffs or of
one or more of the defendants in an action in which the right sought
to be enforced survives only to the surviving plaintiffs or only
against the surviving defendants, the action does not abate. The
death shall be suggested upon the record and the action shall proceed
in favor of or against the surviving parties.
(3)
Actions for liable, slander, and malicious prosecution shall abate
at the death of the defendant.
(4)
Other actions, including actions for wrongful death shall survive
the death of a party
(b)
Incompetency. If a party becomes incompetent, the Court upon
motion served as provided in subdivision (a) of this Section may allow
the action to be continued by or against his representative.
(c)
Transfer of Interest. In case of any transfer of interest,
the action may be continued by or against the original party, unless
the Court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party.
Service of the motion shall be made as provided in subdivision (a)
of this Section.
(d) 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 disregard. An order
of substitution may be entered at any time, but the omission to
enter such an offer 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.
CHAPTER POUR - DEPOSITIONS AND DISCOVERY
Section 401. General Provisions Governing Discovery
(a) Discovery
Methods. Parties may obtain discovery by one or more of the following
methods: depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to
enter upon land or other property for inspection and other purposes;
physical and mental examinations; and requests for admission. Unless
the Court orders otherwise under subdivision (c) of this Section,
the frequency of use of these methods is not limited. Discovery may
be obtained as provided herein in aid of execution upon a judgment.
(b) Scope
of Discovery. Unless otherwise limited by order of the Court in
accordance with this Chapter, the scope of discovery is as follows:
(1)
In general. Parties may obtain discovery regarding any matter, not
privileged, which is relevant to 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 ground 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 or 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 Section, a party may obtain discovery of documents
and tangible things otherwise discoverable under subdivision (b)(1)
of this Section 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 attorney, consultant, surety, indemnitor, insurer,
or agent) only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of 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 an attorney or other representative
of a party concerning the litigation.
A
party may obtain without the required showing a statement concerning
the action or its subject matter previously made by that party.
Upon request, a person not a party may obtain without the required
showing a statement concerning the action or its subject matter
previously made by that person. If the request is refused, the person
may move for a court order. The provisions of Section 412(a)(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 of
subdivision (b)(1) of this Section 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 expect to testify, and to 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 section, 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 Section 410(b) or upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means.
(C)
Unless manifest injustice would result, (i) the court shall require
that the party seeking discovery pay the expert a reasonable fee
for time spent in responding to discovery under subdivisions (b)(4)(A)(ii)
and (b)(4)(B) of this Section; and (ii) with respect to discovery
obtained under subdivision (b)(4)(A)(ii) of this Section the Court
may require, and with respect to discovery obtained under subdivision
(b)(4)(B) of this Section the Court shall require, the party seeking
discovery to pay the other party a fair portion of the fees and
expenses reasonably incurred by the latter party obtaining facts
and opinions from the expert.
(c) Protective
Orders. Upon motion by a party or by the person from whom discovery
is sought, and for good cause shown, the Court or alternatively, on
matters relating to a deposition, the court in the jurisdiction where
the deposition is to be taken may make any order which justice requires
to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including one or more of the following:
(1) that the discovery not be had; (2) that the discovery may be had
only on specified terms and conditions, including a designation of
the time or place; (3) that the discovery may be had only by a method
of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters; (5) that discovery be
conducted with no one present except persons designated by the Court;
(6) that a deposition after being sealed be opened only by order of
the Court; (7) that a trade secret or other confidential research
development, or commercial information not be disclosed or be disclosed
only in a designated way; (8) that the parties simultaneously file
specified documents or information enclosed in sealed envelopes to
be opened as directed by the Court.
If the
motion for a protective order is denied in whole or in part, the Court
may, on such terms and conditions as are just, order that any party
or person provide or permit discovery. The provisions of Section 412(a)(4)
apply to the award of expenses incurred in relation to the motion.
(d) Sequence
and Timing of Discovery. Unless the Court upon motion, for the
convenience of parties and witnesses and in the interests of justice,
orders otherwise, methods of discovery may be used in any sequence
and the fact that a party is conducting discovery, whether by deposition
or otherwise, shall not operate to delay any other party's discovery.
(e) Supplementation
of Responses. A party who has responded to a request for discovery
with a response that was complete when made is under no duty to supplement
his response to include information thereafter acquired, except as
follows:
(1)
A party is under as duty seasonably to supplement his response with
respect to any question directly addressed to (A) the identity and
location of persons having knowledge of discoverable matters, and
(B) the identity of each person expected to be called as an expert
witness at trial, the subject matter on which he is expected to
testify, and the substance of his testimony.
(2)
A party is under a duty seasonably to amend a prior response if
he obtains information upon the basis of which (A) he knows that
the response was incorrect when made, or (B) he knows that the response
though correct when made is no longer true and the circumstances
are such that a failure to amend the response is in substance a
knowing concealment.
(3)
A duty to supplement responses may be imposed by order of the Court,
agreement of the parties, or at any time prior to trial through
new requests for supplementation of prior responses.
Section 402. Depositions Before Action or Pleading Appeal
(a) Before
Action.
(1)
Petition. A person who desires to perpetuate his own testimony or
that of another person regarding any matter that may be cognizable
in court may file a verified petition in the District Court if the
Tribal jurisdiction is the residence of any expected adverse party.
The petition shall be entitled in the name of the petitioner and
shall show: (1) that the petitioner expects to be a party to an
action cognizable in the District Court but is presently unable
to bring it or cause it to be brought, (2) the subject matter of
the expected action and his interest therein, (3) the facts which
he desires to establish by the proposed testimony and his reasons
for desiring to perpetuate it, (4) the names or description of the
persons he expects will be adverse parties and their addresses so
far as known, and (5) the names and addresses of the persons to
be examined and the substance of the testimony which he expects
to elicit from each, and shall ask for an order authorizing the
petitioner to take the depositions of the persons to be examined
named in the petition, for the purpose of perpetuating their testimony.
(2)
Notice and service. The petitioner shall thereafter serve a notice
upon each person named in the petition as an expected adverse party,
together with a copy of the petition, stating that the petitioner
will apply to the Court, at a time and place named therein, for
the order described in the petition. At least 20 days before the
date of hearing the notice shall be served either within or without
the Tribal jurisdiction in the manner provided in Section 217(d)
for service of summons. If personal service cannot with due diligence
be made upon any expected adverse party named in the petition, the
Court may make such order as is just for service by publication
or otherwise, and shall appoint, for persons not served in the manner
provided in Section 217(d), an attorney or advocate who shall represent
them, and, in case they are not otherwise represented, shall cross-examine
the deponent. If any expected adverse party is a minor or incompetent
the provisions of Section 301(c) apply. Any attorney appointed pursuant
to this Section shall be compensated as provided by the Court from
the Court fund, such compensation to be taxed as costs against the
person perpetuating the testimony.
(3)
Order and examination. If the court is satisfied that the perpetuation
of the testimony may prevent a failure or delay of justice, it shall
make an order designating or describing the persons whose depositions
may be taken and specifying the subject matter of the examination
and whether the depositions shall be taken upon oral examination
or written interrogatories. The depositions may then be taken in
accordance with this Chapter; and the Court may make orders of the
character provided for by Sections 409 and 410.
(4)
Use of deposition. If a deposition to perpetuate testimony is taken
under this Chapter or if, although not so taken, it would be admissible
in evidence in the Courts of the jurisdiction in which it is taken,
it may be used in any action involving the same subject matter subsequently
brought in the District Court, in accordance with the provisions
of Section 407(a).
(b) Pending
Appeal. If an appeal has been taken from a judgment of the District
Court or before the taking of an appeal if the time therefor has not
expired, the court may allow the taking of the depositions of witnesses
to perpetuate their testimony for use in the event of further proceedings
in the District Court. In such case the party who desires to perpetuate
the testimony may make a motion in the District Court for leave to
take the depositions, upon the same notice and service thereof as
if the action was pending in the Court. The motion shall show (1)
the names and addresses of persons to be examined and the substance
of the testimony which he expects to elicit from each; (2) the reasons
for perpetuating their testimony. If the Court finds that the perpetuation
of the testimony is proper to avoid a failure or delay of justice,
it may make an order allowing the depositions to be taken and may
make orders of the character provided for by Sections 409 and 410,
and thereupon the depositions may be taken and used in the same manner
and under the same conditions as are prescribed in these sections
for depositions taken in actions pending in the District Court.
(c) Perpetuation
by Action. This Section does not limit the power of a Court to
entertain an action to perpetuate testimony.
Section 403. Persons Before Whom Depositions May Be Taken
(a) Within
the Tribal Jurisdiction. Within the jurisdiction of the Tribes,
depositions shall be taken before an Officer authorized to administer
oaths by the laws of the Tribes, or before a person appointed by the
court in which the action is pending. A person so appointed has power
to administer oaths and take testimony. All parties shall be subject
to these provisions anywhere within the reservation as defined in
this Act.
(b) Outside
the Tribal Jurisdiction. Outside the Tribal jurisdiction, depositions
may be taken (1) on notice before a person authorized to administer
oaths in the place in which the examination is held, either by the
law thereof or by the law of the United States, or (2) before a person
commissioned by the court, and a person so commissioned shall have
the power by virtue of his commission to administer any necessary
oath and take testimony, or (3) pursuant to a letter rogatory. A commission
or a letter rogatory shall be issued on application and notice and
on terms that are just and appropriate. It is not requisite to the
issuance of a commission or a letter rogatory that the taking of the
deposition in any other manner is impracticable or inconvenient; and
both a commission and a letter rogatory may designate the person before
whom the deposition is to be taken either by name or descriptive title.
A letter rogatory may be addressed "To the Appropriate Authority in
(Here Name of Tribe, State, or Country)." Evidence obtained in response
to a letter rogatory need not be excluded merely for the reason that
it is not a verbatim transcript or that the testimony was not taken
under oath or for any similar departure from the requirements for
depositions taken within the Tribal jurisdiction under these sections.
(c) Disqualification
for Interest. No deposition shall be taken before a person who
is a relative or employee or attorney or counsel of any of the parties,
or is a relative or employee of such attorney or counsel, or is financially
interested in the action.
Section 404. Stipulations Regarding Discovery Procedure
Unless
the Court orders otherwise, the parties may by written stipulation (1)
provide that depositions may be taken before any person, at any time
or place, upon any notice, and in any manner and when so taken may be
used like other depositions, and (2) modify the procedures provided
by this Chapter for other methods of discovery, except that stipulations
extending the time provided in Sections 408, 409, and 411 for responses
to discovery may be made only with the approval of the Court.
Section 405. Depositions Upon Oral Examination
(a) When
Depositions May Be Taken. After commencement of the action, any
party may take the testimony of any person, including a party, by
deposition upon oral examination. Leave of court, granted with or
without notice, must be obtained only if the plaintiff seeks to take
a deposition prior to the expiration of 30 days after service of the
summons and complaint upon any defendant or service made by publication,.
except that leave is not required (1) if a defendant has served a
notice of taking deposition or otherwise sought discovery, or (2)
if special notice is given as provided in subdivision (b)(2) of this
Section. The attendance of witnesses may be compelled by subpoena
as provided in Section 222. The deposition of a person confined in
prison may be taken only by Leave of Court on such terms as the Court
prescribes.
(b)
Notice of Examination: General Requirements; Special Notice; Non-Stenographic
Recording; Production of Documents and Things; Deposition of Organization.
(1)
A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for
taking the deposition and the name and address of each person to
be examined, if known, and, if the name is not known, a general
description sufficient to identify him or the particular class or
group to which he belongs. If a subpoena duces tecum is to be served
on the person to be examined, the designation of the materials to
be produced as set forth in the subpoena shall be attached to or
included in the notice.
(2)
Leave of Court is not required for the taking of a deposition by
plaintiff if the notice (A) states that the person to be examined
is about to go out of the Tribal jurisdiction and outside the reservation,
or is about to go out of the United States, or is bound on a voyage
to sea, and will be unavailable for examination unless his deposition
is taken before expiration of the 30-day period, and (B) sets forth
facts to support the statement. The plaintiff's attorney shall sign
the notice, and his signature constitutes a certification by him
that to the best of his knowledge, information, and belief the statement
and supporting facts are true. The sanctions provided by Section
111 are applicable to the certification.
If
a party shows that when he was served with notice under this subdivision
(b)(2) he was unable through the exercise due diligence to obtain
counsel to represent him at the taking of the deposition, the deposition
may not be used against him.
(3)
The Court may for cause shown enlarge or shorten the time for taking
the deposition.
(4)
The Court may upon motion order that the testimony at a deposition
be recorded by other than stenographic means, in which event the
order shall designate the manner of recording, preserving, and filing
the deposition, and may include other provisions to assure that
the recorded testimony will be accurate and trustworthy. If the
order is made, a party may nevertheless arrange to have a stenographic
transcription made at his own expense.
(5)
The notice to a party deponent may be accompanied by a request made
in compliance with Section 409 for the production of documents and
tangible things at the taking of the deposition. The procedure of
Section 409 shall apply to the request.
(6)
A party may in his notice and in a subpoena name as the deponent
a public or private corporation or a partnership or association
or governmental agency and describe with reasonable particularity
the matters on which examination is requested. In that event, the
organization so named shall designate one or more officers, directors
or managing agents, or other persons who consent to testify on its
behalf, and may set forth, for each person designated the matters
on which he will testify. A subpoena shall advise a non-party organization
of its duty to make such a designation. The persons so designated
shall testify as to matters known or reasonably available to the
organization. This subdivision (b) (6) does not preclude taking
a deposition by any other procedure authorized in these sections.
(c) Examination
and Cross-Examination; Record of Examination; Oath; Objections.
Examination and cross-examination of witnesses may proceed as permitted
at the trial under the provisions of the Tribal Rules of Evidence.
The officer before whom the deposition is to be taken shall put the
witness on oath and shall personally, or by someone acting under his
direction and in his presence, record the testimony of the witness.
The testimony shall be taken stenographically or recorded by any other
means ordered in accordance with subdivision (b)(4) of this Section.
If requested by one of the parties, the testimony shall be transcribed.
All objections
made at time of the examination to the qualifications of the officer
taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection
to the proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections. In
lieu of participating in the oral examination, parties may serve written
questions in a sealed envelope on the party taking the deposition
and he shall transmit them to the officer, who shall propound them
to the witness and record the answers verbatim.
(d) Motion
to Terminate or Limit Examination. At any time during the taking
of the deposition, on motion of a party or of the deponent and upon
a showing that the examination is being conducted in bad faith or
in an unreasonable manner to annoy, embarrass, or oppress the deponent
or party, the District Court or the Court in the jurisdiction where
the deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may
limit the scope and manner of the taking of the deposition as provided
in Section 401(c). If the order made terminates the examination, it
shall be resumed thereafter only upon the order of the District Court.
Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a motion
for an order. The provisions of Section 412(a)(4) apply to the award
of expenses incurred in relation to the motion.
(e) Submission
to Witness; Changes; Signing. When the testimony is fully transcribed
the deposition shall be submitted to the witness for examination and
shall be read to or by him, unless such examination and reading are
waived by the witness and by the parties. Any changes in form or substance
which the witness desires to make shall be entered upon the deposition
by the officer with a statement of the reasons given by the witness
for making them. The deposition shall then be signed by the witness,
unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is
not signed by the witness within 30 days of its submission to him,
the officer shall sign it and state on the record the fact of the
waiver or of the illness or absence of the witness or the fact of
the refusal to sign together with the reason, if any, given therefor;
and the deposition may then be used as fully as though signed unless
on a motion to suppress under Section 407(d)(4) the Court holds that
the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
(f) Certification
and Filing by Officer; Exhibits; Copies; Notice of Filing.
(1)
The officer shall certify on the deposition that the witness was
duly sworn by him and that the deposition is a true record of the
testimony given by the witness. He shall then securely seal the
deposition in an envelope endorsed with the title of the action
and marked "Deposition of [here insert name of witness]"
and shall promptly file it with the District Court or send it by
registered or certified mail to the Clerk thereof for filing.
Documents
and things produced for inspection during the examination of the
witness, shall, upon the request of a party, be marked for identification
and annexed to and returned with the deposition, and may be inspected
and copied by any party, except that (A) the persons producing the
materials may substitute copies to be marked for identification,
if he affords to all parties fair opportunity to verify the copies
by comparison with the originals, and (B) if the person producing
the materials requests their return, the officer shall mark them,
give each party an opportunity to inspect and copy them, and return
them to the person producing them, and the materials may then be
used in the same manner as if annexed to and returned with the deposition.
Any party may move for an order that the original be annexed to
and returned with the deposition to the court, pending final disposition
of the case.
(2)
Upon payment of reasonable charges therefor, the officer shall furnish
a copy of the deposition to any party or to the deponent. The court
may, by section, establish the maximum charges which are reasonable
for such services.
(3)
The party taking the deposition shall give prompt notice of its
filing to all other parties.
(g) Failure
to Attend or to Serve Subpoena; Expenses.
(1)
If the party giving the notice of the taking of a deposition fails
to attend and proceed therewith and another party attends in person
or by attorney pursuant to the notice, the Court may order the party
giving the notice to pay to such other party the reasonable expenses
incurred by him and his attorney in attending, including reasonable
attorney's fees.
(2)
If the party giving the notice of the taking of a deposition of
a witness fails to serve a subpoena upon him and the witness because
of such failure does not attend, and if another party attends in
person or by attorney because he expects the deposition of that
witness to be taken, the Court may order the party giving the notice
to pay to such other party the reasonable expenses incurred by him
and his attorney in attending, including reasonable attorney's fees.
Section 406. Depositions Upon Written Questions
(a) Serving
Questions; Notice. After commencement of the action, any party
may take the testimony of any person, including a party, by deposition
upon written questions. The attendance of witnesses may be compelled
by the use of subpoena as provided in Section 222. The deposition
of a person confined in prison may be taken only by Leave of Court
on such terms as the Court prescribes.
A party
desiring to take a deposition upon written questions shall serve them
upon every other party with a notice stating (1) the name and address
of the person who is to answer them, if known, and if the name is
not known, a general description sufficient to identify him or the
particular class or group to which he belongs, and (2) the name or
descriptive title and address of the officer before whom the deposition
is to be taken. A deposition upon written questions may be taken of
a public or private corporation or a partnership or association or
governmental agency in accordance with the provisions of Section 405(b)(6).
Within
30 days after the notice and written questions are served, a party
may serve cross questions upon all other parties. Within 10 days after
being served with cross questions, a party may serve redirect questions
upon all other parties. Within 10 days after being served with redirect
questions, a party may serve re-cross questions upon all other parties.
The Court may for cause shown enlarge or shorten the time.
(b) Officer
to Take Responses and Prepare Record. A copy of the notice and
copies of all questions served shall be delivered by the party taking
the deposition to the officer designated in the notice, who shall
proceed promptly in the manner provided by Section 405(c), (e), and
(f), to take the testimony of the witness in response to the questions
and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the questions received by him.
(c) Notice
of Filing. When the deposition is filed the party taking it shall
promptly give notice thereof to all other parties.
Section 407. Use Of Depositions In Court Proceedings
(a) Use
of Depositions. At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a deposition, so far
as admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who
was present or represented at the taking of the deposition or who
had reasonable notice, thereof, in accordance with any of the following
provisions:
(1)
Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness.
(2)
The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a
person designated under Section 405(b)(6) or Section 406(a) to testify
on behalf of a public or private corporation, partnership or association
or governmental agency which is a party may be used by an adverse
party for any purpose.
(3)
The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the Court finds: (A) that the witness
is dead; or (B) that the witness is outside the jurisdiction of
the Tribes, and cannot be served with a subpoena to testify at trial
while within the Tribal jurisdiction unless it appears that the
absence of the witness was procured by the party offering the deposition;
or (C) that the: witness is unable to attend or testify because
of age, illness, infirmity, or imprisonment; or (D) that the party
offering the deposition has been unable to procure the attendance
of the witness by subpoena; or (E) upon application and notice,
that such exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the importance
of presenting the testimony of witnesses orally in open court to
allow the deposition to be used.
(4)
If only part of the deposition is offered in evidence by a party,
an adverse party may require him to introduce any other part which
ought in fairness to be considered with the part introduced, and
any party may introduce any other parts, subject to the Rules of
Evidence.
Substitution
of parties pursuant to Section 310 does not affect the right to
use depositions previously taken; and, when an action in any court
of any Indian Tribe, the United States, or of any State has been
dismissed and another action involving the same subject matter is
afterward brought between the same parties, or their representatives
or successors in interest, in the Tribal District Court, all depositions
lawfully taken and duly filed in the former action may be used in
the latter as if originally taken therefor.
(b) Objections
to Admissibility. Subject to the provisions of Section 403(b)
and subdivision (c) (3) of this Section, objection may be made at
the trial or hearing to receiving in evidence any deposition or part
thereof for any reasons which would require the exclusion of the evidence
if the witness were then present and testifying.
(c) Effect
of Errors and Irregularities in Depositions.
(1)
As to notice. All errors and irregularities in the notice for taking
a deposition are waived unless written objection is promptly served
upon the party giving the notice.
(2)
As to disqualification of officer. Objection to taking a deposition
because of disqualification of the officer before whom it is to
be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known
or could be discovered with reasonable diligence.
(3)
As to taking of deposition.
(i)
objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure
to make them before or during the taking of the deposition, unless
the ground of the objection is one which might have been obviated
or removed if presented at that time.
(Ii)
errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions
or answers, in the oath or affirmation, or in the conduct of parties,
and errors of any kind which might be obviated, removed, or cured
if promptly presented, are waived unless seasonable objection
thereto is made at the taking of the deposition.
(iii)
objections to the form of written questions submitted under Section
406 are waived unless served in writing upon the party propounding
them within the time allowed for serving the succeeding cross
or other questions and within 5 days after service of the last
questions authorized.
(4)
As to Completion and Return of Deposition. Errors and irregularities
in the manner in which the testimony is transcribed or the deposition
is prepared , signed, certified, sealed, endorsed, transmitted,
filed, or otherwise dealt with by the officer under Sections 405
and 406 are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness after such
defect is or with due diligence might have been ascertained.
Section 408. Interrogatories to Parties
(a) Availability;
Procedures for Use. Any party may serve upon any other party written
interrogatories to be answered by the party served or, if the party
served is a public or private corporation or partnership or association
or governmental agency, by any officer or agent, who shall furnish
such information as is available to the party. Interrogatories may,
without leave of Court, be served upon the plaintiff after commencement
of the action and upon any other party with or after service of the
summons and complaint upon that party.
Each
interrogatory shall be answered separately and fully in writing under
oath, unless it is objected to, in which event the reasons for objection
shall be stated in lieu of an answer. In the answers, the full text
of the interrogatory shall immediately precede the answer to that
interrogatory. The answers are to be signed by the person making them,
and the objections signed by the attorney making them. The party upon
whom the interrogatories have been served shall serve a copy of the
answers, and objections if any, within 30 days after the service of
the interrogatories,. except that a defendant may serve answers or
objections within 45 days after service of the summons and complaint
upon that defendant. The Court may allow a shorter or longer time.
The party submitting the interrogatories may move for an order under
Section 412(a) with respect to an objection to or other failure to
answer an interrogatory.
(b) Scope;
Use at Trial. Interrogatories may relate to any matters which
can be inquired into under Section 401(b), and the answers may be
used to the extent permitted by the Rules of Evidence.
An interrogatory
otherwise proper is not necessarily objectionable merely because an
answer to the' interrogatory involves an opinion or contention that
relates to fact or the application of law to fact, but the court may
order that such an interrogatory need not be answered until after
designated discovery has been completed or until a pretrial conference
or other later time.
(c) Option
to Produce Business Records. Where the answer to an interrogatory
may be derived or ascertained from the business records of the party
upon whom the interrogatory has been served or from an examination,
audit or inspection of such business records, or from a compilation,
abstract or summary based thereon, and the burden of deriving or ascertaining
the answer is substantially the same for the party serving the interrogatory
as for the party served, it is a sufficient answer to such interrogatory
to specify the records from which the answer may be derived or ascertained
and to afford to the party serving the interrogatory reasonable opportunity
to examine, audit, or inspect such records and to make copies, compilations,
abstracts or summaries.
Section 409. Production of Documents and Things and Entry Upon
Land for Inspection and Other Purposes
(a) Scope.
Any party may serve on any other party a request (1) to produce and
permit the party making the request, or someone acting on his behalf,
to inspect and copy, any designated documents (including writings,
drawings, graphs, charts, photographs, phone-records, and other data
compilations from which information can be obtained, translated, if
necessary, by the respondent through detection devices into reasonably
usable form), or to inspect and copy, test, or sample any tangible
things which constitute or contain matters within the scope of Section
401(b) and which are in the possession, custody or control of the
party upon whom the request is served; or (2) to permit entry upon
designated land or other property in the possession or control of
the party upon whom the request is served for the purpose of inspection
and measuring, surveying, photographing testing, or sampling the property
or any designated object or operation thereon, within the scope of
Section (b).
(b) Procedure.
The request may, without leave of court, be served upon the plaintiff
after commencement of the action and upon any other party with or
after service of the summons and complaint upon that party. The request
shall set forth the the items to be inspected either by individual
item or by category, and describe each item and category with reasonable
particularity. The request shall specify a reasonable time, place,
and manner of making the inspection and performing the related acts.
The party
upon whom the request is served shall serve a written response within
30 days after the service of the request, except that a defendant
may serve a response within 45 days after service of the summons and
complaint upon that defendant. The court may allow a shorter or longer
time. The response shall state, with respect to each item or category,
that inspection and related activities will be permitted as requested,
unless the request is objected to, in which event the reasons for
objection shall be stated. If objection is made to part of an item
or category, the part shall be specified. The party submitting the
request may move for an order under Section 412(a) with respect to
any objection to or other failure to respond to the request or any
part thereof, or any failure to permit inspection as requested.
(c) Persons
Not Parties. This Section does not preclude an independent action
against a person not a party for production of documents and things
and permission to enter upon land.
Section 410. Physical and Mental Examination of Persons
(a) Order
for Examination. When the mental or physical condition (including
the blood group) of a party, or of a person in the custody or under
the legal control of a party, is in controversy, the Court may order
the party to submit to a physical or mental examination by a physician
or to produce for examination the person in his custody or legal control.
The order may be made only on motion for good cause shown and upon
notice to the person to be examined and to all parties and shall specify
the item, place, manner, conditions, and scope of the examination
and the person or persons by whom it is to be made.
(b) Report
of Examining Physician.
(1)
If requested by the party against whom an order is made under Section
410(a) or the person examined, the party causing the examination
to be made shall deliver to him a copy of a detailed written report
of the examining physician setting out his findings, including results
of all tests made, diagnoses and conclusions, together with like
reports of all earlier examinations of the same condition. After
delivery the party causing the examination shall be entitled upon
request to receive from the party against whom the order is made
a like report of any examination, previously or thereafter made,
of the same condition, unless, in the case of a report or examination
of a person not a party, the party shows that he is unable to obtain
it. The Court on motion may make an order against a party requiring
delivery of a report on such terms as are just, and if a physician
fails or refuses to make a report the court may exclude his testimony
if offered at the trial.
(2)
By requesting and obtaining a report of the examination so ordered
or by taking the deposition of the examiner, the party examined
waives any privilege he may have in that action or any other involving
the same controversy, regarding the testimony of every other person
who has examined or may thereafter examine him in respect of the
same mental or physical condition.
(3)
This subdivision applies to examinations made by agreement of the
parties, unless the agreement expressly provides otherwise. This
subdivision does not preclude discovery of a report of an examining
physician or the taking of a deposition of the physician in accordance
with the provisions of any other Section of this Act.
Section 411. Requests for Admission
(a) Request
for Admission. A party may serve upon any other party a written
request for the admission, for purposes of the pending action only,
of the truth of any matters within the scope of Section 401(b) set
forth in the request that relate to statements or opinions of fact
or of the application of law to fact, including the genuineness of
any documents described in the request. Copies of documents shall
be served with the request unless they have been or are otherwise
furnished or made available for inspection and copying. The request
may, without leave of Court, be served upon the plaintiff after commencement
of the action and upon any other party with or after service of the
summons and complaint upon that party.
Each
matter of which an admission is requested shall be separately set
forth. The matter is admitted unless, within 30 days after service
of the request, or within such shorter or longer time as the Court
may allow, the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection addressed
to the matter, signed by the party or by his attorney, but, unless
the Court shortens the time, a defendant shall not be required to
serve answers or objections before the expiration of 45 days after
service of the summons and complaint upon him. If objection is made,
the reasons therefor shall be stated. The answer shall specifically
deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit to deny the matter. A denial shall fairly
meet the substance of the requested admission, and when good faith
requires that a party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much
of it as is true and qualify or deny the remainder. An answering party
may not give lack of information or knowledge as a reasons for failure
to admit or deny unless he states that he has made reasonable inquiry
and that the information known or readily obtainable by him is insufficient
to enable him to admit or deny. A party who considers that a matter
on which an admission has been requested presents a genuine issue
for trial may not, on that ground alone, object to the request; he
may, subject to the provisions of Section 412(c), deny the matter
or set forth reasons why he cannot admit or deny it.
The party
who has requested the admissions may move to determine the sufficiency
of the answers or objections. Unless the Court determines that an
objection is justified, it shall order that an answer be served. If
the Court determines that an answer does not comply with the requirements
of this Section, it may order either that the matter is admitted or
that an amended answer be served. The Court may, in lieu of these
orders, determine that final disposition of the request be made at
a pretrial conference or at a designated time prior to trial. The
provisions of Section 412(a)(4) apply to the award of expenses incurred
in relation to the motion.
(b) Effect
of Admission. Any matter admitted under this Section is conclusively
established unless the Court on motion permits withdrawal or amendment
of the admission. Subject to the provisions of Section 119 governing
amendment of a pretrial order, the Court may permit withdrawal or
amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to
satisfy the Court that withdrawal or amendment will prejudice him
in maintaining his action or defense on the merits. An admission made
by a party under this Section is for the purpose of the pending action
only and is not an admission by him for any other purpose nor may
it be used against him in any other proceeding.
Section 412. Failure to Make Discovery: Sanctions
(a) Motion
for Order Compelling Discovery. A party, upon reasonable notice
to other parties and all persons affected thereby, may apply for an
order compelling discovery as follows:
(1)
Appropriate Court. An application for an order to a party may be
made to the District Court, or, on matters relating to a deposition,
to the court in the jurisdiction where the deposition is being taken
if necessary. An application for an order to a deponent who is not
a party may be made to the Court in the jurisdiction where the deposition
is being taken.
(2)
Motion. If a deponent fails to answer a question propounded or submitted
under Sections 405 or 406, or a corporation or other entity fails
to make a designation under Section 405(b)(6) or Section 406(a),
or a party fails to answer an interrogatory submitted under Section
408, or if a party, in response to a request for inspection submitted
under Section 409 fails, to respond that inspection will be permitted
as requested or fails to permit inspection as requested, the discovering
party may move for an order compelling an answer, or a designation,
or an order compelling inspection in accordance with the request.
When taking a deposition on oral examination, the proponent of the
question may complete or adjourn the examination before he applies
for an order.
If
the Court denies the motion in whole or in part, it may make such
protective order as it would have been empowered to make on a motion
made pursuant to Section 401(c).
(3)
Evasive or Incomplete Answer. For purposes of this subdivision an
evasive or incomplete answer is to be treated as a failure to answer.
(4)
Award of Expenses of Motion. If the motion is granted, the Court
shall, after opportunity for hearing, require the party or deponent
whose conduct necessitated the motion or the party or attorney advising
such conduct or both of them to pay to the moving party the reasonable
expenses incurred in obtaining the order, including attorney's fees,
unless the Court finds that the opposition to the motion was substantially
justified or that other circumstances make an award of expenses
unjust.
If
the motion is denied, the Court shall, after opportunity for hearing,
require the moving party or the attorney advising the motion or
both of them to pay to the party or deponent who opposed the motion
the reasonable expenses incurred in opposing the motion, including
attorney's fees, unless the Court finds that the making of the motion
was substantially justified or that other circumstances made an
award of expenses unjust.
If
the motion is granted in part and denied in part, the Court may
apportion the reasonable expenses incurred in relation to the motion
among the parties and persons in just manner.
(b) Failure
to Comply with Order.
(1)
Sanctions by Court in Jurisdiction Where Deposition is Taken. If
a deponent fails to be sworn or to answer a question after being
directed to do so by the court in the jurisdiction in which the
deposition is being taken, the failure may be considered a contempt
of that court. Sanctions imposed in such matters by any foreign
court shall be given full faith and credit and promptly enforced
by the Tribal Court, subject to the Tribal Courts authority to modify
the sanctions imposed as justice may require.
(2)
Sanction by Court in Which Action is Pending. If a party or an officer,
director, or managing agent of a party or a person designated under
Section 405(b)(6) or Section 406(a) to testify on behalf of a party
fails to obey an order to provide or permit discovery, including
an order made under subdivision (a) of this Section or Section 410,
the Court in which the action is pending may make such orders in
regard to the failure as are just, and among others the following:
(i)
An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the
party obtaining the order;
(ii)
An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters in evidence;
(iii)
An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by
default against the disobedient party;
(iv)
In lieu of any of the foregoing orders or in addition thereto,
an order treating as a contempt of court the failure to obey any
orders except an order to submit to a physical or mental examination;
(v)
Where a party has failed to comply with an order under Section
410(a) requiring him to produce another for examination, such
orders as are listed in paragraphs (i), (ii), and (iii) of this
subdivision, unless the party failing to comply shows that his
is unable to produce such person for examination.
In
lieu of any of the foregoing orders or in addition thereto, the
Court shall require the party failing to obey the order or the
attorney advising him or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the Court
finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
(c) Expenses
on Failure to Admit. If a party fails to admit the genuineness
of any document or the truth of any matter as requested under Section
411, and if the party requesting the admissions thereafter proves
the genuineness of the document or the truth of the matter, he may
apply to the court for an order requiring the other party to pay him
the reasonable expenses incurred in making that proof, including reasonable
attorney's fees. The Court shall make the order unless it finds that
(1) the request was held objectionable pursuant to Section 411(a),
or (2) the admission sought was of no substantial importance, or (3)
the party failing to admit has reasonable ground to believe that he
might prevail on the matter, or (4) there was other good reason for
the failure to admit.
(d) Failure
of Party to Attend at Own Deposition or Serve Answers to Interrogatories
or Respond to Request for Inspection. If a party or an officer,
director, or managing agent of a party or a person designated under
Section 405(b)(6) or Section 406(a) to testify on behalf of a party
fails (1) to appear before the officer who is to take his deposition,
after being served with a proper notice, or (2) to serve answers or
objections to interrogatories submitted under Section 408, after proper
service of the interrogatories, or (3) to serve a written response
to a request for inspection submitted under Section 409, after proper
service of the request, the District Court on motion may make such
orders in regard to the failure as are just, and among others it may
take any action authorized under paragraphs (i), (ii), and (iii) of
subdivision (b) (2) of this Section. In lieu of any order or in addition
thereto, the court shall require the party failing to act or the attorney
advising him or both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the Court finds that the failure
was substantially justified or that other circumstances make an award
of expenses unjust.
The failure
to act described in this subdivision may not be excused on the ground
that the discovery sought is objectionable unless the party failing
to act has applied for a protective order as provided by Section 401(c).
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