Chesapeake Rules of Civil Procedure

--- robots: none ---  <style type="text/css"> body { text-align: justify; } h1, h2, h3 { text-align: left; } h3 { margin-top: 16px !important; } p { margin-bottom: 0.5em !important; } </style> # Chesapeake Rules of Civil Procedure These rules have been promulgated and amended by the Chesapeake Circuit Court for the 7th Judicial Circuit pursuant to Harrison County Charter art. IV, § 45, and further amended by the Harrison County Council, and shall be known and cited as the Chesapeake Rules of Civil Procedure and be abbreviated Har. R. Civ. P. ## TITLE 1: SCOPE OF RULES; FORM OF ACTION ### Rule 1—Scope and Purpose. These rules govern the procedure in all civil actions and proceedings in the Chesapeake County Court. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. ### Rule 2—One Form of Action. There is one form of action—the civil action. ## TITLE 2: COMMENCING AN ACTION; SERVICE OF PROCESS; SERVING AND FILING DOCUMENTS ### Rule 3—Commencing an Action. A civil action is commenced by filing a complaint with the court. ### Rule 4—Summons. **(a) Contents.** A summons may be amended and must: (1) name the court and the parties; (2) be directed to the defendant; (3) state the time within which the defendant must appear and defend; (4) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (5) be signed by the clerk; and (6) bear the court's seal. **(b) Issuance.** On or after filing a pleading initiating an action, the filing party may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the filing party for service. A summons—or a copy of the summons if addressed to multiple parties—must be issued for each party to be served. **\(c) Service.** A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by these rules. Any person may serve a summons and complaint. **(d) Waiving Service; Voluntary Appearance.** A party subject to service may waive issuance or service by voluntarily appearing. Waiving service by voluntary appearance has the same force and effect as if a summons had been issued and served. **(e) Return; Proof of Service.** If service is not waived, and no voluntary appearance is made, then the person effecting service must file proof of service with the court. Return of service should be made by no later than when the served party must respond to process. **(f) Validity of Service; Amending Proof.** Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended. **(g) Time Limit for Service.** If a defendant is not served with process within 7 days after the initial pleading is filed, the court—on motion, or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. **(h) Serving an Individual.** An individual may be served by directly messaging a copy of the summons and the pleading being served to that individual personally; or by directly messaging a copy of each to an agent authorized by appointment or by law to receive service of process. **(i) Serving a Corporation, Partnership, or Association.** A corporation, partnership, or association may be served by directly messaging a copy of the summons and the pleading being served to a partner, an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process. **(j) Serving a Governmental Entity.** A governmental entity may be served by directly messaging a copy of the summons and the pleading being served to the Attorney General, if the action is against a state or an agency or instrumentality of a state; to the District Attorney, if the action is against a county or an agency or instrumentality of a county; to the entity’s chief executive officer, secretary, clerk, or other principal officer; or to any other agent authorized by appointment or by law to receive service of process. **(k) Alternative Means of Service.** If a party shows that the usual means of service are impracticable, the court may—on motion and without notice to the person to be served—order that service may be accomplished in another manner. **(l) Service by Publication.** Service by publication may be made by the court or any other authorized person and is accomplished by publishing the summons and the pleading at least once in a dedicated channel or announcement channel in the main community server. ### Rule 5—Serving and Filing Documents. **(a) Service.** Every subsequent order, pleading, discovery, motion, notice, or other document after service of the summons and complaint, counterclaim, or third-party complaint may be served by sending the document in the proceeding communication channel. **(b) Filing.** (1) Defined. The filing of documents with the court is accomplished by filing them with the clerk. If a judge permits, a party may submit a document directly to a judge, who must transmit it to the clerk for filing and notify the clerk of the date of its receipt. (2) Effective Date. Except for documents submitted directly to a judge, a document is deemed filed on the date the party transmits the document to the clerk. If a document is submitted directly to a judge under Rule 5(b)(1) and is later transmitted to the clerk for filing, the document is deemed filed on the date the judge receives it. (3) Sensitive Data. A person must refrain from including any sensitive data or personal information in any document the person files with the court. The clerk and the court are not required to review documents for compliance with this rule. If a document includes sensitive data or personal information, a party must immediately inform the court and the court must immediately remove and replace the document with an identical document with the sensitive data or personal information removed. If this rule is violated, the court may impose sanctions against the responsible attorney or party to ensure future compliance. ### Rule 6—Computing Time. **(a) Computing Time.** The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. (1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time: exclude the day of the event that triggers the period; count every day; and include the last day of the period. (2) Period Stated in Hours. When the period is stated in hours: begin counting immediately on the occurrence of the event that triggers the period; and count every hour. (3) "Last Day" Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends at midnight in the timezone in which New York City lies. **(b) Extending Time.** When an act may or must be done within a specified time, the court may, for good cause, extend the time: (1) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (2) on motion made after the time has expired if the party failed to act because of excusable neglect. But a court must not extend the time to act under Rules 44(c), 48(b) and (d), and 49(b). ## TITLE 3: PLEADINGS AND MOTIONS ### Rule 7—Pleadings Allowed. **(a) Pleadings.** Only these pleadings are allowed: a complaint; an answer to a complaint; a counterclaim; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party complaint; and, if the court orders one, a reply to an answer. **(b) Motions and Other Documents.** A request for a court order must be made by motion which, unless made during a hearing or trial, must be in writing, state with particularity the grounds for granting the motion, and set forth the relief or order sought. ### Rule 8—General Rules of Pleading. **(a) Claim for Relief.** A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. **(b) Defenses; Admissions and Denials.** (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted against it by an opposing party. (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. **\(c) Affirmative Defenses.** In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. **(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.** Each allegation must be simple, concise, and direct. A party may plead claims or defenses in the alternative or hypothetically, in one or more counts or defenses, and may state multiple claims or defenses regardless of consistency. A pleading is sufficient if any one alternative is sufficient. **(e) Construing Pleadings.** Pleadings must be construed so as to do justice. ### Rule 9—Pleading Special Matters. **(a) Fraud, Mistake, Duress, Undue Influence.** In all averments of fraud, mistake, duress or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity. Malice, intent, and knowledge may be averred generally. **(b) 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. **\(c) 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. ### Rule 10—Form of Pleadings. **(a) Caption.** Every pleading must have a caption with the title of the court, the title of the action or proceeding, and the case number of the action or proceeding, along with the pleading's designation under Rule 7. The title of the complaint must name all the parties; the title of other pleadings and documents, after naming the first party on each side, may refer generally to other parties by the designation “et al.” **(b) Paragraphs; Separate Statements.** A party must state its claims or defenses in consecutively numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense. **\(c) Adoption by Reference; Exhibits.** A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. **(d) Using a Fictitious Name to Identify a Defendant.** If the name of the defendant is unknown to the plaintiff, the defendant may be designated in the pleadings or proceeding by any name. If the defendant's true name is discovered, the pleading or proceeding should be amended accordingly. ### Rule 11—Signing Documents; Representations to the Court; Sanctions. **(a) Signature.** Every pleading, written motion, and other document must be signed by at least one attorney—or by a party personally if the party is unrepresented. A person filing a document containing more than one place for a signature—such as a stipulation—may sign on behalf of another party only if the person has the actual authority or has been given consent to do so. The court must strike an unsigned document unless the omission is promptly corrected after being called to the attention of the party. **(b) Representations to the Court.** By presenting to the court a pleading, written motion, or other document—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. **\(c) Sanctions.** If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. ### Rule 12—Defenses and Objections; Joining Motions; Waiving Defenses. **(a) Time to File and Serve Responsive Pleading.** Unless another time is specified by rule or statute, the time for filing and serving a responsive pleading is as follows: (1) In General. (A) A party must file and serve an answer or other responsive pleading within 7 days after being served with the summons and complaint. (B) A party must file and serve an answer or other pleading responsive to a counterclaim or crossclaim within 7 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must file and serve a reply to an answer within 7 days after being served with an order to reply, unless the order specifies a different time. (2) Effect of Motion. Unless the court sets a different time, filing and serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be filed and served within 7 days after notice of the court's action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be filed and served within 7 days after the more definite statement is served. **(b) How to Assert Defenses.** Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. **\(c) Motion for Judgment on the Pleadings.** After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. **(d) Motion for a More Definite Statement.** If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before filing a responsive pleading. The motion must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 7 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. **(e) Motion to Strike.** A party may move to strike or the court may strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter from a pleading at any time. **(f) Joining Motions.** A motion under this rule may be joined with any other motion allowed by this rule. A party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion, except as provided in Rule 12(g). **(g) Waiving and Preserving Certain Defenses.** The defenses of failure to state a claim upon which relief can be granted, to join a person required, or to state a legal defense to a claim may be raised in any pleading allowed or ordered under Rule 7(a); by a motion under Rule 12\(c); or at trial. Further, the defense of lack of subject-matter jurisdiction may be raised at any time. ### Rule 13—Counterclaim and Crossclaim. **(a) Compulsory Counterclaim.** A party must state as a counterclaim any claim it has against an opposing party that arises out of the same transaction or occurrence as the opposing party’s claim, unless the claim was already pending in another action when this case began. **(b) Permissive Counterclaim.** A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. **\(c) Counterclaim Maturing or Acquired After Pleading.** The court may permit a party to assert a counterclaim that matured or was acquired after an earlier pleading. **(d) Crossclaim Against a Coparty.** A party may state a claim against a coparty if the claim arises out of the same transaction or occurrence as the action or relates to property involved in the action. ### Rule 14—Third-Party Practice. **(a) Third-Party Complaint and Summons.** A defending party may, with leave of court, as a third-party plaintiff, serve a summons and third-party complaint on a nonparty who is or may be liable to it for all or part of the claim against it. **(b) Third-Party Claims and Defenses.** A third-party defendant must respond to the third-party claim and may assert any related claims or defenses against the third-party plaintiff, the plaintiff, other third-party defendants, or any nonparty who may be liable for all or part of the claim. **\(c) Motion to Strike, Sever, or Try Separately.** Any party may move to strike the third-party claim, to sever it, or to try it separately. ### Rule 15—Amended and Supplemental Pleadings. **(a) Amending Pleadings Before Trial.** A party may amend its pleading once as a matter of course: (1) within 7 days after serving it if no response is required; or (1) within 7 days after a responsive pleading is served, or if a motion under Rule 12 is filed, on or before the date a response to the motion is due. Other amendments require leave of court or written consent of all opposing parties who have appeared. Leave to amend must be freely given when justice so requires. A motion to amend must include a copy of the proposed pleading showing changes. If granted, the amended pleading must be filed within 2 days unless the court orders otherwise. Any required response to an amended pleading is due within the time remaining to respond to the original pleading or within 7 days after service of the amended pleading, whichever is later. **(b) Amendments During and After Trial.** The court may allow pleadings to be amended to include evidence or issues raised at trial. Amendments should be allowed freely if they aid in presenting the merits and do not unfairly prejudice the opposing party. Issues tried by implied or explicit consent are treated as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. **\(c) Relation Back of Amendments.** An amendment relates back to the date of the original pleading if the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. An amendment changing the party relates back if the new party received notice within the applicable limitations period and knew or should have known that the claim would have been brought but for a mistaken identity. **(d) Supplemental Pleadings.** On motion and reasonable notice, the court may permit a party to file a supplemental pleading setting forth any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. A court may permit supplementation even though the original pleading is defective in stating a claim for relief or defense. The court may order the opposing party to answer or otherwise respond to the supplemental pleading within a specified time. ### Rule 16—Pre-Trial Conferences. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: (a) expediting disposition of the action; (b) establishing early and continuing control so that the case will not be protracted because of lack of management; (c) discouraging wasteful pretrial activities; (d) improving the quality of the trial through more thorough preparation; and (e) facilitating settlement; and (f) such other matters as may aid in the disposition of the action. ## TITLE 4: PARTIES ### Rule 17—Plaintiff and Defendant. An action must be prosecuted in the name of the real party in interest. A party authorized by law may sue in their own name without joining the person for whose benefit the action is brought. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added. ### Rule 18—Joinder of Claims. A party may join as many claims as it has against an opposing party, whether related or unrelated, and whether independent, alternative, or contingent. The court shall grant relief according to the parties' substantive rights. ### Rule 19—Required Joinder of Parties. **(a) Persons Required to Be Joined if Feasible.** A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may impair that interest or expose an existing party to inconsistent obligations because of that interest. **(b) Joinder by Court Order.** If a person required to be made a party has not been joined, the court must order that the person be made a party. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. **\(c) Pleading the Reasons for Nonjoinder.** When asserting a claim for relief, a party must identify any required person not joined and state the reason for nonjoinder, if known. ### Rule 20—Permissive Joinder of Parties. **(a) Persons Who May Join or Be Joined.** Persons may join or be joined in one action if: (A) the claims arise out of the same transaction, occurrence, or series of transactions or occurrences; and (B) at least one common question of law or fact is presented. **(b) Extent of Relief.** Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities. **\(c) Protective Measures.** The court may issue orders—including an order for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. ### Rule 21—Misjoinder and Nonjoinder of Parties. Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party, and that severed claim may proceed as a separate and independent action. ### Rule 22—Interpleader. A party exposed to similar, double, or multiple liability may require claimants to interplead. This rule supplements—and does not limit—the joinder of parties allowed by Rule 20. ### Rule 23—Class Actions. **(a) Prerequisites.** One or more members of a class may sue or be sued as representative parties on behalf of all members 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) Maintainable.** An action may be maintained as a class action if the prerequisites of Rule 23(a) are satisfied, and 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. **\(c) Certification Order.** At an early practicable date after a person sues or is sued as a class representative, the court must hold a hearing and determine by order whether to certify the action as a class action. A class may be divided into subclasses that are each treated as a class. The court must define the class and the class claims, issues, or defenses; appoint class counsel; and set forth the reasons and evidence for maintaining the case as a class action. An order that grants or denies class certification may be conditioned, altered, amended, or withdrawn before final judgment. **(d) Notice.** The court shall direct appropriate notice when required by due process. A judgment in a certified class action binds all class members not excluded. **(e) Judgment.** Whether or not favorable to the class, the judgment in a class action must include and describe those whom the court finds to be class members. A judgment in a certified class action binds all class members not excluded. **(f) Conducting the Action.** In conducting an action under this rule, the court may issue, alter, and amend orders that: (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument; (B) in order to protect class members and to fairly conduct the action, require appropriate notice to some or all class members of: (i) any step in the action; (ii) the proposed extent of judgment; or (iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action; (C) impose conditions on the representative parties or on intervenors; (D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or (E) deal with similar procedural matters. **(g) Settlement, Voluntary Dismissal, or Compromise.** A certified class may be settled, voluntarily dismissed, or compromised only with court approval after notice and a finding after a hearing that the proposal is fair, reasonable, and adequate. The parties seeking approval must file a statement identifying any agreement made in connection with the proposal, and any class member may file objections to the proposal. **(h) Appeals.** The court's order certifying or denying class action status is appealable in the same manner as a final order or judgment. During the pendency of an appeal, all discovery and other proceedings are stayed. **(i) Class Counsel.** Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. In all cases, class counsel must fairly and adequately represent the interests of the class. ### Rule 24—Interventions. **(a) Intervention of Right.** On timely motion, the court must permit anyone to intervene who has an unconditional right to intervene under a statute or claims an interest in which disposition may impair the person’s interest and existing parties do not adequately represent that interest. **(b) Permissive Intervention.** On timely motion, the court may permit anyone to intervene who has a conditional right to intervene under a statute or has a claim or defense that shares with the main action a common question of law or fact. The government may intervene if a claim or defense is based on a statute administered by the government. In all cases, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original action. **\(c) Notice and Pleading Required.** A motion to intervene must be served on the parties as provided in Rule 5(a). The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. ### Rule 25—Substitution of Parties. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. ## TITLE 5: DISCLOSURE AND DISCOVERY ### Rule 26—General Provisions Governing Discovery. ### Rule 27—Discovery Before an Action is Filed. ### Rule 28—Stipulations Regarding Discovery. ### Rule 29—Depositions by Oral Examination. ### Rule 30—Depositions by Written Questions. ### Rule 31—Using Depositions in Court Proceedings. ### Rule 32—Interrogatories to Parties. ### Rule 33—Producing Documents, Electronically Stored Information, and Tangible Things. ### Rule 34—Requests for Admission. ### Rule 35—Sanctions for Failure to Cooperate in Discovery. ## TITLE 6: TRIAL ### Rule 36—Mode of Trial. All actions and proceedings shall be tried by the court sitting without a jury. Trial by jury is not available in any matter. ### Rule 37—Scheduling Trial. **(a) Setting and Scheduling Trial.** Unless an order sets the trial date, any party may and the plaintiff shall, at the close of all discovery, certify to the court that discovery is complete and that the case is ready for trial. The court shall schedule the trial as soon as mutually convenient to the court and parties. The court shall notify parties of the trial date. **(b) Postponement.** The court may postpone a trial for good cause upon such terms as are just, including the payment of costs. **\(c) Preserving Testimony of Witnesses.** If requested, the court may conduct a hearing to examine and cross-examine any witness present, and the testimony may be read at the trial with the same effect as and subject to the same objections to a deposition. ### Rule 38—Trial Procedure. **(a) Objectives.** The court should adopt trial procedures as necessary or appropriate to facilitate a just, speedy, and efficient resolution of the action. To achieve this objective, the court may: (1) impose time limits and allocate trial time; (2) sequence the presentation of claims, evidence, and arguments; (3) allow advance scheduling of witnesses and other evidence; (4) order pretrial admission of exhibits or other evidence; and (5) adopt other means of managing or expediting trial. **(b) Order of Trial.** A trial should proceed in the following order, unless the court orders otherwise for good cause: (1) Opening Statements. Each party may make a concise opening statement regarding the facts that it proposes to establish by evidence at trial. Any party may decline to make an opening statement. Opening statements should proceed in the following order: (A) the plaintiff; (B) the defendant, unless deferred until after the close of the plaintiff's presentation of evidence; and (C) other parties, unless deferred until after the close of the plaintiff's and defendant's presentations of evidence, in the order the court directs. (2) Evidence. Unless the court orders otherwise, the parties should introduce evidence in the following order: (A) the plaintiff; (B) the defendant; (C) other parties, if any, in the order the court directs; (D) the plaintiff's rebuttal evidence; (E) the defendant's rebuttal evidence in support of the defendant's counterclaims, if any; and (F) rebuttal evidence from other parties or with respect to crossclaims or third-party claims, as the court permits and in the order it directs. (3) Closing Arguments. The party with the burden of proof on the whole case under the pleadings should make the first and last argument in closing. If the remaining parties have different claims or defenses and are represented by different counsel, the court should prescribe the order in which they will make their respective closing arguments. **\(c) Omitted Testimony.** At any time before closing arguments begin and if justice requires, the court may allow a party to introduce omitted testimony on such terms as the court orders. **(d) Taking Testimony.** Witness testimony shall be given under oath or affirmation, and shall take place in open court, unless a statute or a rule provides otherwise. Unless allowed by the court, only one attorney for each party may examine a witness. ### Rule 39—Dismissal of Actions. **(a) Voluntary Dismissal.** The plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or a stipulation of dismissal signed by all parties who have appeared. Unless the notice or order states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed an action in any court based on or including the same claim, a notice of dismissal operates as an adjudication on the merits. **(b) Involuntary Dismissal.** If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, any dismissal—except one for lack of jurisdiction, improper venue, or failure to join a party—operates as an adjudication on the merits. ### Rule 40—Consolidation; Separate Trials. **(a) Consolidation.** If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. **(b) Separate Trials.** For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. ### Rule 42—Subpoenas. **(a) Generally.** Every subpoena must identify the court and the case it originates from, and command each person to whom it is directed to either attend and testify at a specified time and place or produce designated documents, electronically stored information, or tangible things. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court. **(b) Subpoena for Deposition, Hearing, or Trial.** A subpoena commanding attendance at a hearing or trial must issue from the court where the hearing or trial is to be held. A subpoena commanding attendance at a deposition must state the method for recording the testimony. Objections to a subpoena commanding attendance at a deposition, hearing, or trial, must be made by timely motion under this rule. Unless excused from doing so by the party or attorney serving a subpoena, by a court order, or by any other provision of this rule, a person who is properly served with a subpoena must attend and testify at the date, time, and place specified in the subpoena. **\(c) Subpoena to Produce Materials.** A subpoena commanding a person to produce designated documents, electronically stored information, or tangible things, must issue from the court where the production is to be made. A person commanded to produce documents, electronically stored information, or tangible things, need not appear in person at the place of production unless the subpoena also commands attendance at a deposition, hearing, or trial. A person responding to a subpoena to produce documents must produce them as they are kept in the usual course of business, or organize and label them to correspond with the categories in the demand. Unless otherwise stipulated by the parties or ordered by the court, a party receiving documents, electronically stored information, or tangible things in response to a subpoena must promptly make such materials available to all other parties for inspection and copying. **(d) Service.** A subpoena may be served by any person. Serving a subpoena requires delivering a copy to the named person in accordance with Rule 4(h-j). Other parties must be served with the subpoena and proof of service in accordance with Rule 5(a). **(e) Motion to Quash or Modify.** (A) When Required. On timely motion, the court must quash or modify a subpoena if it fails to allow a reasonable time to comply; requires disclosure of privileged or other protected matter, if no exception or waiver applies; or subjects a person to undue burden or expense. (B) When Permitted. On timely motion, the court may quash or modify a subpoena if it requires disclosing a trade secret or other confidential research, development, or commercial information; or if justice so requires. (C) Time for Motion. A motion to quash or modify a subpoena must be filed before the time specified for compliance or within 14 days after the subpoena is served, whichever is earlier. (D) Service of Motion. Any motion to quash or modify a subpoena must be served on the party or the attorney serving the subpoena. The party or attorney who served the subpoena must serve a copy of any such motion on all other parties. **(f) Contempt.** The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. ### Rule 43—Objections. A formal exception to a ruling or order is unnecessary to preserve a claim of error. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or that it objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to object when the ruling or order is made. ### Rule 44—Findings and Conclusions. **(a) Findings and Conclusions.** In an action tried on the facts without a jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions must be stated on the record after the close of the evidence or must appear in an opinion, minute entry or memorandum of decision filed by the court. Judgment must then be entered under Rule 45. **(b) Setting Aside the Findings.** Findings of fact must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the credibility of witnesses. **\(c) Amended or Additional Findings.** On motion, filed no later than 14 days after the entry of judgment, the court may amend its findings—or make additional findings—and may amend the judgment accordingly. This deadline may not be extended by stipulation or court order. The motion may accompany a motion for a new trial. **(d) Judgment on Partial Findings.** If a party has been fully heard on an issue during a bench trial and the court finds against the party on that issue, the court may enter judgment against that party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law if requested as required by this rule. ## TITLE 7: JUDGMENT ### Rule 45—Judgment. **(a) Judgment on Multiple Claims or Involving Multiple Parties.** When an action involves multiple claims or parties, the court may enter a final judgment on fewer than all claims or parties only if it expressly finds there is no just reason for delay and states that the judgment is entered under Rule 45(a). Without this express finding and statement, any order resolving fewer than all claims or parties is not final and may be revised at any time before a final judgment resolving all claims and parties is entered. **(b) Judgment as to All Claims and Parties.** A judgment as to all claims and parties is not final unless it states that no matters remain pending and that it is entered under Rule 45(b). **\(c) Relief to be Granted.** All final judgments, except default judgments, should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. ### Rule 46—Default Judgment. **(a) Entry of Default.** (1) Generally. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided in these rules, entry of default may be obtained under the procedures set forth in this rule. (2) Motion for Entry of Default. A party requesting entry of default must file a motion that identifies the party claimed to be in default, states that they have failed to plead or otherwise defend within the time allowed by these rules, and explains that they may defend any time prior to the entry of default under this rule. (3) Notice. A party requesting entry of default must make a good faith effort to provide notice of the motion for entry of default to the party claimed to be in default, even if the party claimed to be in default is represented by an attorney who has entered an appearance in the action. To comply with this obligation, the party requesting entry of default must serve the motion upon both the party and their attorney in accordance with Rule 4(h-j), and not merely serve the motion in the proceeding channel in accordance with Rule 5(a). Other parties must be served with the motion in accordance with Rule 5(a). (4) When Effective. Entry of default is effective 4 days after an motion for entry of default is served and filed. If, within those 4 days, the party claimed to be in default pleads or otherwise defends as provided in these rules, default does not become effective, and the court may not enter a default judgment against that party. **(b) Default Judgment.** (1) Default Judgment Without Hearing. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the court—on the plaintiff's motion, with an affidavit showing the amount due and without a hearing—may enter judgment for that amount and costs against a defendant who has been defaulted for failure to plead or otherwise defend. (2) Default Judgment by Hearing. In all other cases, the party must apply to the court for a default judgment. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the motion at least 4 days before the hearing. The court may conduct hearings when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. (3) Conformity with Demand. A judgment by default must not be different in kind from, or exceed in amount, that prayed for in a pleading's demand for judgment. **\(c) Setting Aside Default or Default Judgment.** The court may set aside an entry of default for good cause, and it may set aside a default judgment for excusable neglect under Rule 49. **(d) Default Judgment Against the Government.** A default judgment may be entered against the government only if, after a hearing, the claimant establishes a claim or right to relief by evidence that satisfies the court. ### Rule 47—Summary Judgment. **(a) Motion for Summary Judgment or Partial Summary Judgment.** A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. **(b) Time to File a Motion.** Unless a different time is set by rule or order, a party may file a motion for summary judgment at any time until 7 days after the close of all discovery. **\(c) Procedures.** The motion and response must identify the material facts claimed to be undisputed, cite supporting evidence, and show whether a genuine factual dispute exists. The court may consider the record as a whole and grant summary judgment for a party not moving, on grounds not raised, or on its own after notice and an opportunity to respond. ### Rule 48—New Trial; Altering or Amending a Judgment. **(a) Grounds for New Trial.** On motion, the court may grant a new trial on all or some issues, to any party, and may vacate the judgment, take additional evidence, amend or make new findings and conclusions, and enter a new judgment, for any of the following grounds materially affecting that party’s rights: (1) any irregularity in the proceedings or abuse of discretion depriving the party of a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise that could not reasonably have been prevented; (4) newly discovered material evidence that could not have been discovered and produced at the trial with reasonable diligence; (5) excessive or insufficient damages; (6) error in the admission or rejection of evidence, error in giving or refusing jury instructions, or other errors of law at the trial or during the action; (7) the verdict is the result of passion or prejudice; or (8) the verdict, decision, findings of fact, or judgment is not supported by the evidence or is contrary to law. **(b) Time to File.** A motion for a new trial, with any supporting affidavits, must be filed within 14 days after entry of judgment; the deadline may not be extended except as allowed by Rule 6(b)(2), and the motion may be amended before the court rules. **\(c) Court-Initiated New Trial or New Grounds.** Within 15 days after entry of judgment, the court may order a new trial on its own for any reason listed above, or—after notice and an opportunity to be heard—grant a timely motion for a reason not stated in the motion, and must state its reasons in the order. **(d) Motion to Alter or Amend Judgment.** A motion to alter or amend a judgment must be filed within 14 days after entry of judgment and may not be extended except as allowed by Rule 6(b)(2). ### Rule 49—Relief from Judgment. **(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.** A court must correct a clerical mistake or a mistake arising from oversight or omission if one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with notice. But after an appeal has been filed and while it is pending in the appellate court, such a mistake may be corrected only with the appellate court's leave. After a mistake in the judgment is corrected, execution must conform to the corrected judgment. **(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.** On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief. **\(c) Timing and Effect of the Motion.** A motion under Rule 49(b) must be made within a reasonable time—and for reasons (1), (2), and (3), no more than 21 days after the entry of the judgment or order or date of the proceeding, whichever is later. This deadline may not be extended by stipulation or court order, except as allowed by Rule 6(b)(2). The motion does not affect the judgment's finality or suspend its operation. ### Rule 50—Harmless Error. Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights. ### Rule 51—Disability or Disqualification of Judge. **(a) Disability of Judge.** If a judge conducting a hearing or trial is unable to perform his or her duties, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a bench trial, the successor judge must, upon motion, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness. **(b) Disqualification of Judge.** (1) Motion to Disqualify. A party may move to disqualify a judge by filing a motion supported by an affidavit stating specific facts sufficient to establish bias, prejudice, conflict of interest, or any other ground where disqualification is required as provided by rule, canon, or statute. The motion must include a certificate that it is made in good faith. The motion must be in writing and signed. (2) Time to File. A motion to disqualify shall be filed within a reasonable time not to exceed 7 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. (3) Determination. The judge against whom a motion to disqualify is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If the motion is legally insufficient, an order denying the motion shall immediately be entered; no other reason for denial shall be stated, and an order of denial shall not take issue with the motion. (4) Time for Determination. The judge against whom a motion to disqualify is directed shall take no further action in the case until the motion is decided, except for acting in compliance with this rule or memorializing prior rulings. The judge shall rule on a motion to disqualify immediately, but no later than 7 days after the service and filing of the motion. If not ruled on within 7 days, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case. (5) Prior Rulings. Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 7 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.