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# Rules of Civil Procedure
These Rules should be cited as the Mayfl. R. Civ. P. #(#)(Letter/Number). For example, Mayfl. R. Civ. P. 1(1)(1) would properly cite the first clause of the first subsection under Rule 1.

### RULE 1 - SCOPE
These rules apply to all actions of a civil nature and all special statutory proceedings in the state courts. The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary. These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.

### RULE 2 - PRIVACY AND COURT RECORDS

Every pleading or other document filed with the court must comply with Mayflower State Rules of General Practice and Judicial Administration 2.420, Public Access to and Protection of Judicial Branch Records, and 2.425, Minimization of the Filing of Sensitive Information.

### RULE 3 - NONVERIFICATION OF PLEADINGS

Except when otherwise specifically provided by these rules or an applicable statute, every pleading or other document of a party represented by an attorney need not be verified or accompanied by an affidavit.

### RULE 4 - ONE FORM OF "ACTION"

There shall be one form of action to be known as “civil action.”

### RULE 5 - WHEN ACTION COMMENCED

Every action of a civil nature shall be deemed commenced when the complaint or petition is filed except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed.

### RULE 6 - CHOICE OF FORUM

**(a) Grounds for Dismissal**. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Mayflower when:
1. the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties;
2. the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice;
3. if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
4. the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.

The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.

**(b) Stipulations in General.** The parties to any action for which a satisfactory remedy may be more conveniently sought in a jurisdiction other than Mayflower may stipulate to conditions upon which a forum-non-conveniens dismissal shall be based, subject to approval by the trial court. The decision to accept or reject the stipulation rests in the sound discretion of the trial court, subject to review for abuse of discretion.

A forum-non-conveniens dismissal shall not be granted unless all defendants agree to the stipulations required by subdivision \(c\) and any additional stipulations required by the court.

**\(c\) Statutes of Limitation.** In moving for forum-non-conveniens dismissal, defendants shall be deemed to automatically stipulate that the action will be treated in the new forum as though it had been filed in that forum on the date it was filed in the State of Mayflower, with service of process accepted as of that date.

**(d) Failure to Refile Promptly.** When an action is dismissed in the State of Mayflower for forum non conveniens, plaintiffs shall automatically be deemed to stipulate that they will lose the benefit of all stipulations made by the defendant, including the stipulation provided in subdivision \(c\) of this rule, if plaintiffs fail to file the action in the new forum within 5 days after the date the Mayflower dismissal becomes final.

**(e) Waiver of Automatic Stipulations.** Upon unanimous agreement, the parties may waive the conditions provided in subdivision \(c\) or (d), or both, only when they demonstrate and the trial court finds a compelling reason for the waiver. The decision to accept or reject the waiver shall not be disturbed on review if supported by competent, substantial evidence.

**(f) Reduction to Writing.** The parties shall reduce their stipulation to a writing signed by them, which shall include all stipulations provided by this rule and which shall be deemed incorporated by reference in any subsequent order of dismissal.

**(g) Time for Moving for Dismissal.** A motion to dismiss based on forum non conveniens shall be served not later than 10 days after the service of process on the moving party.

**(h) Retention of Jurisdiction.** The court shall retain jurisdiction after the dismissal to enforce its order of dismissal and any conditions and stipulations in the order.

### RULE 7 - PROCESS

**(a) Summons; Issuance.** On the commencement of the action, summons or other process authorized by law must be issued forthwith by the clerk or judge under the clerk's or the judge's signature and the seal of the court and delivered for service without praecipe.

**(b) Service; By Whom Made.** Service of process may be made by an officer authorized by law to serve process, but the court may appoint any competent person not interested in the action to serve the process. When so appointed, the person serving process must make proof of service by affidavit promptly and in any event within the time during which the person served must respond to the process. Failure to make proof of service will not affect the validity of the service. When any process is returned not executed or returned improperly executed for any defendant, the party causing its issuance must be entitled to such additional process against the unserved party as is required to effect service.

**\(c\) Service; Numerous Defendants.** If there is more than 1 defendant, the clerk or judge must issue as many writs of process against the several defendants as may be directed by the plaintiff or the plaintiff's attorney.

**(d) Copies of Initial Pleading for Persons Served.** At the time of personal service of process a copy of the initial pleading must be delivered to the party on whom service is made. The date and hour of service must be endorsed on the original process and all copies of it by the person making the service. The party seeking to effect personal service must furnish the person making service with the necessary copies. When the service is made by publication, copies of the initial pleadings must be furnished to the clerk and mailed by the clerk with the notice of action to all parties whose addresses are stated in the initial pleading or sworn statement.

**(e) Service of Orders.** If personal service of a court order is to be made, the original order must be filed with the clerk, who must certify or verify a copy of it without charge. The person making service must use the certified copy instead of the original order in the same manner as original process in making service.

**(f) Pleading Basis.** When service of process is to be made under statutes
authorizing service on nonresidents of the State of Mayflower, it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service.

**(g) Summons; Time Limit.** If service of the initial process and initial pleading is not made on a defendant within 5 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, must direct that service be effected within a specified time or must dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court must extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 7-day period for service of amended complaints on the new party or parties will begin on the entry of an order granting leave to amend. A dismissal under this subdivision will not be considered a voluntary dismissal or operate as an adjudication on the merits.

### RULE 8 - SERVICE AND FILING OF PLEADINGS, ORDER, AND DOCUMENTS

**(a) Service.** Every pleading subsequent to the initial pleading, all orders, and every other document filed or required by statute or rule to be served in the action must be served in conformity with the requirements established by judicial administration.

**(b) Filing.** All documents shall be filed in conformity with the requirements established by judicial administration.

**\(c\) Writing and written defined.** Writing or written means a document containing information, an application, or a stipulation.

### RULE 9 - TIME

**(a) Computation.** Computation of time shall be governed by these rules.

**(b) Enlargement.**
1. **In General.** When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion:
2. with or without notice, may order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order or upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect.
3. *Exceptions.* The court may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment; taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

**\(c\) Unaffected by Expiration of Term.** The period of time provided for the doing of any act or the taking of any proceeding shall not be affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any action which is or has been pending before it.

**(d) For Motions.** A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.

### RULE 10. PLEADINGS AND MOTIONS

**(a) Pleadings.** There must be a complaint or, when so designated by a statute or rule, a petition, and an answer to it; an answer to a counterclaim denominated as such; an answer to a crossclaim if the answer contains a crossclaim; a third-party complaint if a person who was not an original party is summoned as a third-party defendant; and a third-party answer if a third-party complaint is served. If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance. No other pleadings will be allowed.

**(b) Motions.** An application to the court for an order must be by motion which must be made in writing unless made during a hearing or trial, must state with particularity the grounds for it, and must set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. All notices of hearing must specify each motion or other matter to be heard.

**\(c\) Caption.**
1. Every pleading must have a caption containing the name of all of the parties, the name of the court, the file number, and a designation identifying the party filing it.
2. Every motion, order, judgment, or other document must have a caption containing the name of the court, the case number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be.
3. In any in rem proceeding, every pleading, motion, order, judgment, or other document must have a caption containing the name of the court, the case number, the style "In re" (followed by the name or general description of the property), and a designation of the person or entity filing it and its nature or the nature of the order, as the case may be.
4. All documents filed in the action must be styled in such a manner as to indicate clearly the subject matter of the document and the party requesting or obtaining relief.

### RULE 11 - GENERAL RULES OF PLEADINGS

**(a) Forms of Pleading.** Forms of action and technical forms for seeking relief and of pleas, pleadings, or motions are abolished.

**(b) Claims for Relief.** A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to pray for general relief.

**\(c\) The Answer.** In the answer a pleader shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the averments on which the adverse party relies. If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or may generally deny all of the averments except such designated averments as the pleader expressly admits, but when the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial.

**(d) Affirmative Defenses.** In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense underrule 1.140(b); provided this shall not limit amendments underrule 1.190 even if such ground is sustained.

**(e) Effect of Failure to Deny.** Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, 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.

**(f) Separate Statements.** All averments of claim or defense shall be made in consecutively 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 subsequent pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.

**(g) Joinder of Causes of Action; Consistency.** A pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined. A party may also set forth 2 or more statements of a claim or defense alternatively, either in 1 count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and 1 of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of 1 or more of the alternative statements. A party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both. All pleadings shall be construed so as to do substantial justice.

**(h) Subsequent Pleadings.** When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision shall not apply to proceedings that may be initiated by motion under these rules.

### RULE 12 - ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS

**(a) Instruments Attached.** All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, must be incorporated in or attached to the pleading. No documents shall be unnecessarily annexed as exhibits. The pleadings must contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

**(b) Part for All Purposes.** Any exhibit attached to a pleading must be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion.

### RULE 13 - DEFENSES

**(a) When Presented.** Unless a different time is prescribed in a statute of the State of Mayflower, a defendant must serve an answer within 5 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party must serve an answer to it within 5 days after service on that party. The plaintiff must serve an answer to a counterclaim within 5 days after service of the counterclaim. If a reply is required, the reply must be served within 5 days after service of the answer.

<div style="margin-left: 55px;">
(1) Unless a different time is prescribed in a statute of the State of Mayflower, a defendant must serve an answer within 5 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party must serve an answer to it within 5 days after service on that party. The plaintiff must serve an answer to a counterclaim within 5 days after service of the counterclaim. If a reply is required, the reply must be served within 5 days after service of the answer.
</div>
<div style="margin-left: 110px;">
(a) Except when suing an agency of the state or county, or an
officer or employee of the county sued in an official capacity
must serve an answer to the complaint or crossclaim, or a reply to a counterclaim, within 7 days after service.
</div>
<div style="margin-left: 110px;">
(b) The defendant state agency has 7 days from the date of service within which to serve an answer to the complaint or crossclaim or a reply to a counterclaim.
</div>
<div style="margin-left: 55px;">
(2) The service of a motion under this rule, except a motion for judgment on the pleadings or a motion to strike under subdivision (e), alters these periods of time so that if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleadings must be served within 5 days after the filing of the court's order or, if the court grants a motion for a more definite statement, the responsive pleadings must be served within 5 days after service of the more definite statement unless a different time is fixed by the court in either case.
</div>
<div style="margin-left: 55px;">
(3) If the court permits or requires an amended or responsive pleading or a more definite statement, the pleading or statement must be served within 5 days after the filing of the court's order unless a different time is fixed by the court. Responses to the pleadings or statements must be served within 5 days of service of the pleadings or statements.
</div>

**(b) How Presented.** Every defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader:
1. lack of jurisdiction over the subject matter,
2. lack of jurisdiction over the person,
3. improper venue,
4. insufficiency of process,
5. insufficiency of service of process,
6. failure to state a cause of action, and
7. failure to join indispensable parties.

A motion making any of these defenses must be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued must be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated must be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply must be asserted by motion to strike the defense within 7 days after service of the answer or reply.

**\(c\) 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.

**(d) 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, that party may move for a more definite statement before interposing a responsive pleading. The motion must 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 the filing of the order or 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.

**(e) Motion to Strike.** A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

**(f) Consolidation of Defenses.** A party who makes a motion under this rule may join with it the other motions herein provided for and then available to that party. If a party makes a motion under this rule but omits from it any defenses or objections then available to that party that this rule permits to be raised by motion, that party shall not thereafter make a motion based on any of the defenses or objections omitted, except as provided in subdivision (g)(2) of this rule.

**(g) Waiver of Defenses.**
1. A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (g)(2).
2. The defenses of failure to state a cause of action or a legal defense or to join an indispensable party may be raised by motion for judgment on the pleadings or at the trial on the merits in addition to being raised either in a motion under subdivision (b) or in the answer or reply. The defense of lack of jurisdiction of the subject matter may be raised at any time.

### RULE 14 - SHAM PLEADINGS

**(a) Motion to Strike.** If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.

**(b) Contents of Motion.** The motion to strike shall be verified and shall set forth fully the facts on which the movant relies and may be supported by affidavit. No traverse of the motion shall be required.

### RULE 15 - MOTIONS

All motions and applications in the clerk's office for the issuance of mesne process and final process to enforce and execute judgments, for entering defaults, and for such other proceedings in the clerk's office as do not require an order of court shall be deemed motions and applications grantable as of course by the clerk. The clerk's action may be suspended or altered or rescinded by the court upon cause shown.

### RULE 16 - COUNTERCLAIMS AND CROSSCLAIMS

**(a) Compulsory Counterclaims.** A pleading must state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided 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 over whom the court cannot acquire jurisdiction. But the pleader need not state a 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 on that party's claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.

**(b) Permissive Counterclaim.** 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 State.** These rules shall not be construed to enlarge beyond the limits established by law the right to assert counterclaims or to claim credits against the state or any of its subdivisions or other governmental organizations thereof subject to suit or against a municipal corporation or against an officer, agency, or administrative board of the state.

**(e) Counterclaim Maturing or Acquired after Pleading.** A claim which matured or was acquired by the pleader after serving the pleading may be presented as a counterclaim by supplemental pleading with the permission of the court.

**(f) Omitted Counterclaim or Crossclaim.** When a pleader fails to set up a counterclaim or crossclaim through oversight, inadvertence, or excusable
neglect, or when justice requires, the pleader may set up the counterclaim or crossclaim by amendment with leave of the court.

**(g) Crossclaim against Co-Party.** A pleading may state as a crossclaim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or a counterclaim therein, or relating to any property that is the subject matter of the original action. The crossclaim may include a claim that the party against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. Service of a crossclaim on a party who has appeared in the action must be made under the Mayflower State Rules of General Practice and Judicial Administration. Service of a crossclaim against a party who has not appeared in the action must be made in the manner provided for service of summons.

**(h) Additional Parties May Be Brought In.** When the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim or crossclaim, they must be named in the counterclaim or crossclaim and be served with process and must be parties to the action thereafter if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action.

**(i) Separate Trials; Separate Judgment.** If the court orders separate trials as provided in these rules, judgment on a counterclaim or crossclaim may be rendered when the court has jurisdiction to do so even if a claim of the opposing party has been dismissed or otherwise disposed of.

**(j) Demand Exceeding Jurisdiction; Transfer of Action.** If the demand of any counterclaim or crossclaim exceeds the jurisdiction of the court in which the action is pending, the action must be transferred immediately to the court of the same county having jurisdiction of the demand in the counterclaim or crossclaim with only such alterations in the pleadings as are essential. The court must order the transfer of the action and the transmittal of all documents in it to the proper court if the party asserting the demand exceeding the jurisdiction deposits with the court having jurisdiction a sum sufficient to pay the clerk's service charge in the court to which the action is transferred at the time of filing the counterclaim or crossclaim. Thereupon the original documents and deposit must be transmitted and filed with a certified copy of the order. The court to which the action is transferred shall have full power and jurisdiction over the demands of all parties. Failure to make the service charge deposit at the time the counterclaim or crossclaim is filed, or within such further time as the court may allow, will reduce a claim for damages to an amount within the jurisdiction of the court where the action is pending and waive the claim in other cases.

### RULE 17 - AMENDED AND SUPPLEMENTAL PLEADINGS

**(a) Amendments.** A party may amend a 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 on the trial calendar, may so amend it at any time within 3 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

**(b) Amendments to Conform with the Evidence.** When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the 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 to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.

**\(c\) Relation Back of Amendments.** If 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 shall relate back to the date of the original pleading.

**(d) Supplemental Pleadings.** Upon motion of a party the court may permit that party, upon reasonable notice and upon such terms as are just, 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. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

**(e) Amendments Generally.** At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

**(f) Claims for Punitive Damages.** A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 5 days before the hearing.

### RULE 18 - PARTIES

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, 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 expressly authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if that person's presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, and anyone who refuses to join may for such reason be made a defendant.

### RULE 19 - INTERVENTIONS
Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

### RULE 20 - INTERPLEADER

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties otherwise permitted.

### RULE 21 - MISJOINDER AND NONJOINDER OF PARTIES

**(a) Misjoinder.** Misjoinder of parties is not a ground for dismissal of an action. Any claim against a party may be severed and proceeded with separately.

**(b) Dropping Parties.** Parties may be dropped by an adverse party in the manner provided for voluntary dismissal subject to the exception stated in that rule. If notice of lis pendens has been filed in the action against a party so dropped, the notice of dismissal shall be recorded and cancels the notice of lis pendens without the necessity of a court order. Parties may be dropped by order of court on its own initiative or the motion of any party at any stage of the action on such terms as are just.

**\(c\) Adding Parties.** Parties may be added once as a matter of course within the same time that pleadings can be so amended under rule 1.190(a). If amendment by leave of court or stipulation of the parties is permitted, parties may be added in the amended pleading without further order of court. Parties may be added by order of court on its own initiative or on motion of any party at any stage of the action and on such terms as are just.

### RULE 22 - SURVIVOR; SUBSTITUTION OF PARTIES

**(a) Banned; Community Removal.** If a party is banned or removed from the community through moderation means, then the matter shall be considered dismissed.

**(b) 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.

**\(c\) Public Officers; Death or Separation from Office.**
1. When a public officer is a party to an action in an official capacity and during its pendency is removed, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
2. When a public officer sues or is sued in an official capacity, the officer may be described as a party by the official title rather than by name but the court may require the officer's name to be added.

### RULE 23 - CONSOLIDATION; SEPARATE TRIALS

**(a) Consolidation.** When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

**(b) Separate Trials.** The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.

### RULE 24 - 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 and under subdivision (c) of this rule, the frequency of use of these methods is not limited.

**(b) Scope of Discovery.** Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
1. **In General.** Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or 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. **Trial Preparation:** Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
3. By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected 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.
4. By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected 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.
5. Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed without motion or order of court.
6. A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial.
7. The scope of employment in the pending case and the compensation for such service.
8. The expert's general litigation experience, including the percentage of work performed for plaintiffs and defendants. (f) The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
9. An approximation of the portion of the expert's involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
3. *Claims of Privilege or Protection of Trial Preparation Materials.* When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

**\(c\) Protective Orders.** Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, 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; and
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.

**(d) Sequence and Timing of Discovery.** Except as provided in subdivision (b)(5) or unless the court upon motion for the convenience of parties and
witnesses and in the interest 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 delay any other party's discovery.

**(e) Supplementing 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 the response to include information thereafter acquired.

**(f) Court Filing of Documents and Discovery.** Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with the Mayflower State Rules of Judicial Administration. The court shall have authority to impose sanctions for violation of this rule.

**(g) Apex Doctrine.** A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition.

**(h) Form of Responses to Written Discovery Requests.** When responding to requests for production served, written deposition questions served, interrogatories served, requests for production or inspection served, requests for production of documents or things without deposition served, requests for admissions served, or requests for the production of documentary evidence served, the responding party shall state each deposition question, interrogatory, or discovery request in full as numbered, followed by the answer, objection, or other response.

### RULE 25 - INADVERTENT DISCLOSURE OF PRIVILEGED MATERIALS

**(a) Assertion of Privilege as to Inadvertently Disclosed Materials.** Any party, person, or entity, after inadvertent disclosure of any materials pursuant to these rules, may thereafter assert any privilege recognized by law as to those materials. This right exists without regard to whether the disclosure was made pursuant to formal demand or informal request. In order to assert the privilege, the party, person, or entity, shall, within 5 days of actually discovering the inadvertent disclosure, serve written notice of the assertion of privilege on the party to whom the materials were disclosed. The notice shall specify with particularity the materials as to which the privilege is asserted, the nature of the privilege asserted, and the date on which the inadvertent disclosure was actually discovered.

**(b) Duty of the Party Receiving Notice of an Assertion of Privilege.** A party receiving notice of an assertion of privilege under subdivision (a) shall promptly return, sequester, or destroy the materials specified in the notice, as well as any copies of the material. The party receiving the notice shall also promptly notify any other party, person, or entity to whom it has disclosed the materials of the fact that the notice has been served and of the effect of this rule. That party shall also take reasonable steps to retrieve the materials disclosed.

**\(c) Right to Challenge Assertion of Privilege.** Any party receiving a notice made under subdivision (a) has the right to challenge the assertion of privilege. The grounds for the challenge may include, but are not limited to, the following:

1. The materials in question are not privileged.
2. The disclosing party, person, or entity lacks standing to assert the privilege.
3. The disclosing party, person, or entity has failed to serve timely notice under this rule.
4. The circumstances surrounding the production or disclosure of the materials warrant a finding that the disclosing party, person, or entity has waived its assertion that the material is protected by a privilege.

Any party seeking to challenge the assertion of privilege shall do so by serving notice of its challenge on the party, person, or entity asserting the privilege. Notice of the challenge shall be served within 20 days of service of the original notice given by the disclosing party, person, or entity. The notice of the recipient's challenge shall specify the grounds for the challenge. Failure to serve timely notice of challenge is a waiver of the right to challenge.

**(d) Effect of Determination that Privilege Applies.** When an order is entered determining that materials are privileged or that the right to challenge the privilege has been waived, the court shall direct what shall be done with the materials and any copies so as to preserve all rights of appellate review. The recipient of the materials shall also give prompt notice of the court's determination to any other party, person, or entity to whom it had disclosed the materials.

### RULE 26 - PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

**(a) Persons Authorized.** Depositions may be taken before any notary public or judicial officer or before any officer authorized by the statutes of the State of Mayflower to take acknowledgments or proof of executions of deeds or by any person appointed by the court in which the action is pending.

**(b) Selection by Stipulation.** If the parties so stipulate in writing, 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.

**\(c) Persons Disqualified.** Unless so stipulated by the parties, no deposition shall be taken before a person who is a relative, employee, attorney, or counsel of any of the parties, is a relative or employee of any of the parties' attorney or counsel, or is financially interested in the action.

### RULE 27 - 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 within 15 days after service of the process and initial pleading on any defendant, 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 rule. The attendance of witnesses may be compelled by subpoena. 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; Method of Taking; Production at Deposition.**

1. A party desiring to take the deposition of any person on oral examination must give reasonable notice in writing to every other party to the action. The notice must 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 the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena must 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 states that the person to be examined is about to go out of the state and will be unavailable for examination unless a deposition is taken before expiration of the 30-day period under subdivision (a). If a party shows that when served with notice under this subdivision that party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against that party.
3. For cause shown the court may enlarge or shorten the time for taking the deposition.
4. Any deposition may be audiovisually recorded without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision.
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(a) <b> Notice. </b> In addition to the requirements in subdivision (b)(1), a party intending to videotape a deposition must:
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(i) state that the deposition is to audiovisually recorded in the title of the notice; and
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(ii) identify the method for audiovisually recording the deposition and if applicable, provide the name and address of the operator of the audiovisual recording equipment in the body of the notice.
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(b) <b> Procedure. </b> At the beginning of the deposition, the officer before whom it is taken must;
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(i) identify the style of the action,
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(ii) state the date, and
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(iii) put the witness under oath.
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(c) <b> Responsibility for Recordings and Copies. </b> The attorney for the party or the pro se party requesting the audiovisual recording of the deposition is responsible for safeguarding the recording, must permit the viewing of it by the opposing party, and, if requested, must provide access to a copy of the recording at the expense of the party requesting the copy.
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**\(c) Examination and Cross-Examination; Record of Examination; Oath; Objections; Transcription.** Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken must put the witness under oath and must personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. All objections made at the time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other objection to the proceedings must be noted by the officer on the deposition. Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to must be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party must transmit them to the officer, who must 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 on a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of rule 1.310\(c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease immediately from taking the deposition or may limit the scope and manner of the taking of the deposition. If the order terminates the examination, it shall be resumed thereafter only on the order of the court in which the action is pending. Upon demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order.

**(e) Witness Review.** If the testimony is transcribed, the transcript must be furnished to the witness for examination and must be read to or by the witness unless the examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness wants to make must be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes must be attached to the transcript. It must then be signed by the witness unless the parties waived the signing or the witness is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within a reasonable time after it is furnished to the witness, the officer must sign the transcript and state on the transcript the waiver, illness, absence of the witness, or refusal to sign with any reasons given therefor. The deposition may then be used as fully as though signed unless the court holds that the reasons given for the refusal to sign require rejection of the deposition wholly or partly, on motion.

### RULE 28 - REQUESTS FOR ADMISSION

**(a) Request for Admission.** A party may serve a written request for the admission of facts, opinions, or the genuineness of documents. Copies of documents must be included unless already provided. The request can be served after the action begins, and is limited to 15 requests unless the court or parties agree to more. Each matter must be separately stated. The request is deemed admitted unless the receiving party serves a written answer or objection within 5 days, or longer if allowed by the court. A defendant has at least 7 days after being served to respond. Objections must state reasons; answers must specifically deny or explain why the matter cannot be admitted or denied. If a party cannot admit or deny due to lack of information, they must state they made a reasonable inquiry. A party cannot object solely because the matter may be contested at trial; they must either deny or explain why they can't admit or deny. The requesting party can challenge the sufficiency of the answers or objections. If the court finds an objection unjustified, it will order an answer. If an answer is insufficient, the court may order the matter admitted or require an amended answer. The court may also decide to address the issue later, such as at a pretrial conference.

**(b) Effect of Admission.** Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against that party in any other proceeding.

### RULE 29 - FAILURE TO MAKE DISCOVERY; SANCTIONS
**(a) Motion for Order Compelling Discovery.** Discovery. Upon reasonable notice to other parties and all persons affected, a party may apply for an order compelling discovery as follows:
1. **Motion**. If a deponent fails to answer a question, or a corporation or other entity fails to make a designation, or a party fails to answer an interrogatory submitted, or if a party in response to a request for inspection submitted fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, or if a party in response to a request for examination of a person submitted objects to the examination, fails to respond that the examination will be permitted as requested, or fails to submit to or to produce a person in that party's custody or legal control for examination, the discovering party may move for an order compelling an answer, or a designation or an order compelling inspection, or an order compelling an examination in accordance with the request. The motion must include a certification that the movant, in good faith, has conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying 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 a motion.
(2) **Evasive or Incomplete Answer.** For purposes of this subdivision an evasive or incomplete answer shall be treated as a failure to answer.
(3) **Award of Expenses of Motion.** If the motion is granted and after opportunity for hearing, the court shall require the party or deponentwhose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorneys' fees, unless the court finds that the movant failed to certify in the motion that a good faith effort was made to obtain the discovery without court action, that the opposition to the motion was substantially justified, or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.

**(b) Failure to Comply with Order**
1. If, after being ordered to do so by the court, a deponent fails to be sworn or to answer a question or produce documents, the failure may be considered a contempt of the court.

### RULE 30 - SUBPOENA
**(a) Subpoena Generally.** Subpoenas for testimony before the court, subpoenas for production of tangible evidence, and subpoenas for taking depositions may be issued by the clerk of court or by any attorney of record in an action.

**(b) Subpoena for Testimony before the Court.**
1. Every subpoena for testimony before the court must be issued by an attorney of record in an action or by the clerk under the seal of the court and must state the name of the court and the title of the action and must command each person to whom it is directed to attend and give testimony at a time and place specified in it.
2. On oral request of an attorney or party and without praecipe, the clerk must issue a subpoena for testimony before the court or a subpoena for the production of documentary evidence before the court signed and sealed but otherwise in blank, both as to the title of the action and the name of the person to whom it is directed, and the subpoena must be filled in before service by the attorney or party.

**\(c\) Service.** A subpoena may be served by any person authorized by law to serve process or by any other person who is not a party. Service of a subpoena on a person named within must be made as provided by law. Proof of such service must be made by affidavit of the person making service except as applicable under rule 1.351\(c\) for the production of documents and things by a nonparty without deposition, if not served by an officer authorized by law to do so.

**(d) Subpoena for Taking Depositions.**
1. Filing a notice to take a deposition with a certificate of service on it showing service on all parties to the action constitutes an authorization for the issuance of subpoenas for the persons named or described in the notice by the clerk of the court in which the action is pending or by an attorney of record in the action. The subpoena must state the method for recording the testimony. A party intending to audiovisually record a deposition must state in the subpoena that the deposition is to be audiovisually recorded and identify the method for audiovisually recording the deposition, including, if applicable, the name and address of the operator of the audiovisual recording equipment. If a party intends to take a deposition by communication technology, the subpoena must state the deposition is to be taken using communication technology, identify the specific form of communication technology to be used, and provide instructions for access to the communication technology. The subpoena may command the person to whom it is directed to produce designated books, documents, or tangible things that constitute or contain evidence relating to any of the matters within the scope of the examination permitted, but in that event the subpoena will be subject to the provisions of this rule. Within 10 days after its service, or on or before the time specified in the subpoena for compliance if the time is less than 10 days after service, the person to whom the subpoena is directed may serve written objection to inspection or copying of any 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. If objection has been made, the party serving the subpoena may move for an order at any time before or during the taking of the deposition on notice to the deponent.
2. A person may be required to attend an examination only in the county wherein the person resides or is employed or transacts business in person or at such other convenient place as may be fixed by an order of court.

**(e) Contempt.** Failure by any person without adequate excuse to obey a subpoena served on that person may be deemed a contempt of the court from which the subpoena issued.

### RULE 31 - DISMISSAL OF ACTIONS
**(a) Voluntary Dismissal.**
1. ***By Parties.*** Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by the plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on a motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all current parties to the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim.
2. **By Order of Court; If Counterclaim.** Except as provided in this rule, an action shall not be dismissed at a party's instance except on order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been served by a defendant prior to the service upon the defendant of the plaintiff's notice of dismissal, the action shall not be dismissed against the defendant's objections 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.
3. **Involuntary Dismissal.** Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required. After a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted. The court as trier of the facts may then determine them and render judgment against the party seeking affirmative relief or may decline to render judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

**(b) Dismissal of Counterclaim, Crossclaim, or Third-Party Claim.** The provisions of this rule apply to the dismissal of any counterclaim, crossclaim, or third-party claim.

**\(c\) Effect on Lis Pendens.** If a notice of lis pendens has been filed in connection with a claim for affirmative relief that is dismissed under this rule, the notice of lis pendens connected with the dismissed claim is automatically dissolved at the same time. The notice, stipulation, or order shall be recorded.

### RULE 32 - SETTING ACTION FOR TRIAL
**(a) When at Issue.** An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 5 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim.

**(b) Notice for Trial.** Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice must include an estimate of the time required, indicate whether the trial is to be by a jury or not and whether the trial is on the original action or a subsequent proceeding, and, if applicable, indicate that the court has authorized the participation of prospective jurors or empaneled jurors. The clerk must then submit the notice and the case file to the court.

**\(c) Setting for Trial.** If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 24 hours from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with the Mayflower State Rules of General Practice and Judicial Administration.

### RULE 33 - PROPOSALS FOR SETTLEMENT
**(a) Applicability.** This rule applies to all proposals for settlement authorized by Mayflower State law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.

**(b) Service of Proposal.** A proposal to a defendant shall be served no earlier than 5 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 5 days after the action has been commenced. No proposal shall be served later than 24 hours before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.

**\(c) Form and Content of Proposal for Settlement.**
1. A proposal shall be in writing and shall identify the applicable law under which it is being made.
2. A proposal shall:
(a) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(b) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served,
\(c) exclude nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute;
(d) state the total amount of the proposal;
(e) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(f) state whether the proposal includes attorneys' fees and whether attorneys' fee are part of the legal claim; and
(g) include a certificate of service in the form required by the Mayflower State Rules of General Practice and Judicial Administration.
3. A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.

### RULE 34 - CONTINUANCES

A motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle the movant to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available.

### RULE 35 - MOTION FOR A DIRECTED VERDICT
**(a) Effect.** A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.

**(b) Reservation of Decision on Motion.** When a motion for a directed verdict is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 3 days after discharge of the jury.

**\(c) Joined with Motion for New Trial.** A motion for a new trial may be joined with this motion or a new trial may be requested in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

### RULE 36 - VERDICTS
In all actions when punitive damages are sought, the verdict shall state the amount of punitive damages separately from the amounts of other damages awarded.

### RULE 37 - DEFAULTS AND FINAL JUDGEMENTS THEREON
**(a) By the Clerk.** When a party against whom affirmative relief is sought has failed to file or serve any document in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such document.

**(b) By the Court.** When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default.

**\(c) Right to Plead.** A party may plead or otherwise defend at any time before default is entered. If a party in default files any document after the default is entered, the clerk must notify the party of the entry of the default. The clerk must make an entry on the progress docket showing the notification.

**(d) Setting aside Default.** The court may set aside a default, and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with rule 1.540(b).

**(e) Final Judgment.** Final judgments after default may be entered by the court at any time, but no judgment may be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other representative who has appeared in it or unless the court has made an order, providing that no representative is necessary for the infant or incompetent. If it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references, or conduct hearings as it deems necessary and must accord a right of trial by jury to the parties when required by the Constitution or any statute.

**(f) Judgement Against the State of Mayflower.** A default judgment may be entered against the State of Mayflower (including any political subdivisions thereof), its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.

**(g) Hearing Required.** Upon the timely filing of a motion by any party, the court shall conduct an evidentiary hearing to ascertain the proper amount and type of damages to be awarded in a default judgment. When practicable, reasonable notice of any evidentiary hearing scheduled pursuant to this subdivision shall be provided to all parties.

### RULE 38 - SUMMARY JUDGEMENT
**(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 shall state on the record the reasons for granting or denying the motion. The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.

**(b) Time to File a Motion.** A party may move for summary judgment at any time after the expiration of 10 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.

**\(c) Procedures.**
1. **Supporting Factual Positions.** A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
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(a) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
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(b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
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<b>(i) Objection That a Fact Is Not Supported by Admissible Evidence.</b> A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
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<b>(ii) Materials not cited.</b> The court need consider only the cited materials, but it may consider other materials in the record.
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<b>(iii) Affidavits or Declarations.</b> An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
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<b>Timing for Supporting Factual Positions.</b> At the time of filing a motion for summary judgment, the movant must also serve the movant's supporting factual position as provided in subdivision (1) above. At least 20 days before the time fixed for the hearing, the nonmovant must serve a response that includes the nonmovant's supporting factual position as provided in subdivision (1) above.
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**(d) When Facts Are Unavailable to the Nonmovant.** If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
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(1) defer considering the motion or deny it;
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(2) allow time to obtain affidavits or declarations or to take discovery; or issue any other appropriate order.
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**(e) Failing to Properly Support or Address a Fact.** If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required, the court may:
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(1) give an opportunity to properly support or address the fact;
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(2) consider the fact undisputed for purposes of the motion;
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(3) grant summary judgment if the motion and supporting
materials-including the facts considered undisputed- show that the movant is entitled to it; or
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(4) issue any other appropriate order.
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**(f) Judgment Independent of the Motion.** After giving notice and a reasonable time to respond, the court may:
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(1) grant summary judgment for a nonmovant;
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(2) grant the motion on grounds not raised by a party; or
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(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.
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**(g) Failing to Grant All the Requested Relief.** If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact-including an item of damages or other relief-that is not genuinely in dispute and treating the fact as established in the case.

**(h) Affidavit or Declaration Submitted in Bad Faith.** If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court-after notice and a reasonable time to respond-may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

### RULE 39 - RELIEF FROM JUDGMENT, DECREES, OR ORDERS

**(a) Clerical Mistakes.** Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

**(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc.** On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons:
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(1) mistake, inadvertence, surprise, or excusable neglect;
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(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing;
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(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
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(4) that the judgment, decree, or order is void; or
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(5) that the judgment, decree, or order has been satisfied, released, or discharged, or a prior judgment, decree, or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment, decree, or order should have prospective application.
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The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 5 days after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment, decree, or order or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment, decree, or order for fraud upon the court.

Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.

### RULE 40 - ENFORCEMENT OF FINAL JUDGMENTS
**(a) Money Judgments.** Final process to enforce a judgment solely for the payment of money shall be by execution, writ of garnishment, or other appropriate process or proceedings.

**(b) Property Recovery.** Final process to enforce a judgment for the recovery of property shall be by a writ of possession for real property and by a writ of replevin, distress writ, writ of garnishment, or other appropriate process or proceedings for other property.

**\(c) Performance of an Act.** If judgment is for the performance of a specific act or contract:
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(1) the judgment shall specify the time within which the act shall be performed. If the act is not performed within the time specified, the
party seeking enforcement of the judgment shall make an affidavit that the judgment has not been complied with within the prescribed time and the clerk shall issue a writ of attachment against the delinquent party. The delinquent party shall not be released from the writ of attachment until that party has complied with the judgment and paid all costs accruing because of the failure to perform the act. If the delinquent party cannot be found, the party seeking enforcement of the judgment shall file an affidavit to this effect and the court shall issue a writ of sequestration against the delinquent party's property. The writ of sequestration shall not be dissolved until the delinquent party complies with the judgment;
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(2) the court may hold the disobedient party in contempt; or
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(3) the court may appoint some person, not a party to the action, to perform the act insofar as practicable. The performance of the act by the person appointed shall have the same effect as if performed by the party against whom the judgment was entered.
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**(d) Vesting Title.** If the judgment is for a conveyance, transfer, release, or acquittance of real or personal property, the judgment shall have the effect of a duly executed conveyance, transfer, release, or acquittance that is recorded in the county where the judgment is recorded. A judgment under this subdivision shall be effective notwithstanding any disability of a party.

<h1 style="font-size:0.6vw"><center>Published and revised on November 25, 2024 by GlassAutarch.</center></h1>