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GENERAL PROVISIONS

Rule 1. Definitions

(a) "Criminal action" means the proceedings by which a party charged with a public offense is accused and brought to trial and punishment, potentially including imprisonment, is imposed.

(b) "Probable cause" exists under this chapter when an officer or the Tribal Court has substantial objective basis for believing that a person has committed an offense. In determining whether probable cause exists, the officer or tribal judge may take into account all information which a prudent officer or judge would deem relevant to the likelihood that an offense has been committed and that the person charged has committed it.

Rule 2. Legal Conviction Necessary for Punishment

No person can be punished for an offense except upon a legal conviction, including a plea or admission of guilt in open court. No incarceration or other disposition of one accused of an offense prior to trial in accordance with these rules shall be deemed a punishment.

Rule 3. Rights of Defendant

In a criminal action the defendant is entitled:

(a) to a speedy and public trial;

(b) to be informed of the nature of the charges against him and to have a written copy of the charges;

(c) to appear and defend in person or by an attorney at the defendant's expense;

(d) to not be twice placed in jeopardy for the same offense by the Nez Perce Tribe;

(e) to not be compelled in a criminal action to be a witness against himself;

(f) to confront and cross examine all witnesses against him;

(g) to be subjected before conviction to no more restraint than is necessary to insure his appearance to answer the charge and/or to protect the public;

(h) to compel by subpoena the attendance of witnesses in his own behalf;

(i) to a trial by jury unless expressly waived;

(j) to appeal in all cases.

PRELIMINARY PROCEEDINGS

Rule 4. Complaint

(a) The complaint is a written statement of the alleged facts constituting the offense charged and shall be filed by the tribal prosecutor. The complaint shall state:

(1) the name of the person accused, and if known his address, date of birth, enrollment number and driver's license number;

(2) the location where the offense was committed and facts showing the offense to be within the original jurisdiction of the court;

(3) the offense committed;

(4) a short concise statement of the specific acts or omissions that constitute the elements of the offense;

(5) the person, if any, against whom or against whose property the offense was committed, if known; and

(6) the approximate date and time of the commission of the offense.

(b) Only one person and one violation may be charged by a single complaint. The court shall allow the complaint to be amended for good cause upon request of the prosecution until the date of trial.

Rule 5. Arrest Warrant

(a) Upon the submission of an arrest warrant application, by the tribal prosecutor or tribal police, the Nez Perce Tribal Court may issue an arrest warrant to bring the person named in the warrant before a judge of the court.

(b) An arrest warrant application shall:

(1) be supported by affidavit or sworn testimony;

(2) include the name of the person accused, if known, or some other name if not known, plus whatever available description of the person accused;

(3) include the general location where the offense was committed and facts showing the offense to be within the original jurisdiction of the court;

(4) include the general name and code designation of the of tense. If the facts show more than one offense then each offense shall be stated separately;

(5) include a short concise statement of the specific act or omission to act complained of;

(6) include the name of the person against whom or against whose property the act was committed, if known;

(7) include the date and approximate time of the commission of the offense, if known; and

(8) include a request that the Tribal Court issue an arrest warrant for the person named in the application.

(c) Any testimony submitted in relation to a warrant application shall be simultaneously tape recorded. Upon reviewing the application for an arrest warrant, if the judge is satisfied of the existence of the grounds of the application, and that it appears based on such review that probable cause exists to believe that an offense has been committed and that the person named in the application committed it, he shall issue a signed arrest warrant. The warrant of arrest shall be signed by the judge and shall contain the name of the person to be arrested or, if unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall command that the person named in the warrant be arrested and brought before the judge.

(d) An officer need not have the warrant in his possession at the time of arrest; but, if he does not, he shall inform the defendant that a warrant has been issued and the nature of the charge. The arrested person shall be provided with a copy of the arrest warrant and complaint as soon as practicable but not later than at the time of arraignment.

Rule 6. Summons

(a) In lieu of an arrest, and upon a finding that it appears probable cause exists to believe an offense has been committed and that the defendant committed it, the Tribal Court or a tribal police officer may issue a summons directing the person accused to appear before a tribal judge at a stated date, time and place. A citation shall require the defendant to appear in Tribal Court not less than five (5) nor more than fifteen (15) business days after the date of the citation. The summons will also inform the defendant that a warrant of arrest will be issued if he fails to appear as directed. Issuance of a summons will initiate prosecution of an action under this chapter.

(b) If the summons is issued by the Tribal Court it shall be served on the defendant as provided by this chapter. Should a defendant refuse service of a summons or should a defendant's whereabouts be unknown after a reasonable search, an arrest warrant shall issue.

(c) If the summons is issued by a tribal police officer he shall serve a copy on the defendant by personal delivery to him when the defendant is present. Certification of service of the summons shall be indicated on the face of the summons by the issuing officer. The original summons shall be filed with the Tribal Court and a copy delivered to the tribal prosecutor within one (1) business day of serving.

Rule 7. Arrest without a Warrant

(a) A tribal officer may make an arrest without warrant if the officer has probable cause to believe a person has committed an offense within the jurisdiction of the Nez Perce Tribe or is named in an arrest warrant.

Rule 8. Arrest Procedure

Any arresting officer:

(a) Upon taking an arrested person into custody and before interrogation, shall inform the person that:

(1) he has the right to remain silent; and

(2) anything he says can be used against him in court; and

(3) he has the right to talk to an attorney for advice before he is asked any questions and to have an attorney present during questioning.

(b) May use reasonable and necessary force to effect the arrest of a person.

Rule 9. Fresh Pursuit

(a) Any arresting officer may continue in fresh pursuit of a person including outside the boundaries of the Nez Perce Reservation, if the person:

(1) is reasonably believed by the officer to have committed an of Tense on the reservation;

(2) has committed, or attempted to commit, any offense or civil infraction on the reservation in the presence of the officer; or

(3) is named in an outstanding warrant of arrest for a criminal offense.

(b) When an arrest following fresh pursuit occurs outside of the boundaries of the Nez Perce Reservation but within the state of Idaho the arresting officer may return the arrested individual to the reservation. When an arrest following fresh pursuit occurs outside the state of Idaho, then the arresting officer shall turn the arrested person over to the local police officials pending extradition.

Rule 10. Arraignment

(a) Arrested persons shall be taken without unnecessary delay, but in no case later than three (3) business days, before a tribal judge for arraignment. In the event a summons has been issued, the defendant shall appear at the time designated in the summons. The schedule for arraignments shall be determined by the Tribal Court. If the defendant does not have counsel and desires to be represented, he shall be given a reasonable time to secure counsel before entering his plea or making any statement.

(b) During arraignment, the defendant shall be provided with a copy of the complaint if he has not received one. The complaint shall be read to the defendant and he will be asked to plead guilty or not guilty to the offense charged.

(c) Before accepting a plea of guilty, the court must:

(1) determine that the defendant understands that the plea is voluntary and is not the result of any force, threats, or promises apart from any plea agreement between the tribal prosecutor and the defendant;

(2) inform the defendant:

(A) of the nature of the charge to which the plea is offered;

(B) of the maximum penalty;

(C) if the defendant is not represented by an attorney, that the defendant has the right to be so represented at every stage of the proceedings at the defendant's expense; and

(D) that the defendant has the right to:

(i) confront and cross-examine all of the witnesses against him in person or by counsel;

(ii) have witnesses compelled by subpoena to appear and testify for him;

(iii) testify regarding the charges against him or to testify in his own behalf provided that once he takes the stand to testify he shall have waived the right to refuse to testify in any matter relevant to the immediate proceeding; and(iv) an impartial trial by an impartial judge or jury.

(d) Upon a plea of guilty the court may sentence the defendant or set a future date for sentencing. If a future date for sentencing is established, the court may release the defendant on bail, have the defendant committed or released without bail.

(e) If the defendant is silent or if the defendant pleads guilty and the judge determines that the plea is made involuntarily or that the defendant does not understand the nature of the charge he shall enter a plea of not guilty for the defendant.

Rule 10a. Pre-Trial Release (revised 6/22/99)

(a) In making a decision concerning pretrial release of a person who is arrested for or charged with a crime involving domestic violence or a violation of a domestic protection order, the court shall review the facts of the arrest and detention of the person and determine whether the person:

(1) is a threat to the alleged victim;

(2) is a threat to public safety; and

(3) is reasonably likely to appear in court.

(b) Before releasing a person arrested for or charged with a crime involving domestic violence or a violation of a domestic protection order, the court shall make findings on the record if possible concerning the determination made in accordance with subsection 1 and may impose conditions of release and/or bail on the person to protect the alleged victim of domestic violence and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include:

(1) An order enjoining the person from threatening to commit or committing acts of domestic violence against the alleged victim;

(2) An order prohibiting the person from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, whether directly or indirectly;

(3) An order directing the person to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;

(4) An order prohibiting the person from using or possessing a firearm or other weapon as specified by the court.

(5) An order suspending or revoking a person’s privilege to hunt with a firearm. The authority to revoke or suspend privileges extends to the rights of tribal members to hunt pursuant to the provisions of the Treaty of June 11, 1855, 12 Stat. 957 and subsequent treaties and agreements;

(6) An order prohibiting the person from possession or consumption of alcohol or controlled substances.

(7) Any other order required to protect the safety of the alleged victim and to assure the appearance of the person in court.

(c) The bond for the crimes of domestic violence and violation of a domestic protection order shall be a cash bond in an amount set by the court in the bond schedule.

(d) The court shall provide a copy of the conditions to the arrested or charged person upon his or her release. Failure to provide the person with a copy of the conditions of release does not invalidate the conditions if the arrested or charged person has notice of the conditions.

(e) If conditions of release are imposed without a hearing, the arrested or charged person may request a hearing before the court to review the conditions. Upon such a request, the court shall hold a prompt hearing to review the conditions.

Rule 11. Pleadings and Motions Before Trial; Defenses and Objections

(a) Pleadings in criminal proceedings shall be the complaint and the pleas of guilty or not guilty.

(b) Any defense, objection, or request which is capable of determination outside of trial may be raised before trial by motion. Pre-trial motions may be written or oral at the discretion of the judge who may allow the parties to submit supporting and response briefs. Any supporting brief shall be filed at least twenty (20) business days and any response brief shall be filed at least ten (10)business days before trial unless other time periods are established by the judge.

(c) The following motions must be raised before trial:

(1) motions challenging the sufficiency of the complaint and those raising procedural errors and the claim that the proceedings are prejudicial to the civil rights of the defendant;

(2) discovery motions;

(3) motions demanding separate trials for multiple defendants or severance of multiple charges.

(4) defense and objection based on defects in the institution of the prosecution, or in the complaint other than the failure to show jurisdiction or to charge an offense.

(d) The failure to raise any motion under subsection (c) shall constitute waiver unless the court for cause shown determines that relief from the waiver will be granted. All rulings on such motions will be made before trial unless the court for good cause determines that the ruling will be made at trial, but no such determination will be made if a party's right to appeal will be adversely affected.

Rule 12. Discovery

(a) At the expense of the defendant and upon his request, the prosecutor shall permit the defendant to inspect and copy or photograph the following items which are within the possession, custody or control of the prosecutor and/or tribal police:

(1) relevant written or recorded statements made by the defendant or copies thereof;

(2) copies of the defendant's prior criminal record;

(3) books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof obtained in connection with the defendant's case;

(4) results or reports of physical or mental examinations, scientific tests or experiments, or copies thereof made in connection with the defendant's case.

(b) Regardless of a request by the defendant, the prosecution and/or tribal police shall at least forty five (45) business days before trial provide the defendant with:

(1) any evidence of an exculpatory nature in their possession or of which they may be aware;

(2) written notice staling names and addresses of the witnesses the prosecution intends to call at trial.

(c) Upon the request of the prosecutor and at the expense of the tribe, the defendant shall permit the prosecutor to inspect and copy or photograph:

(1) results or reports of physical or mental examinations, scientific tests or experiments made in connection with the defendant's case;

(2) books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof obtained in connection with the defendant's case.

(d) Regardless of a request by the prosecutor, the defendant shall at least fourteen (14) business days before the trial provide the prosecution with written notice of names and addresses of the witnesses it intends to call at trial.

(e) If, prior to or during trial, a party discovers additional evidence or material which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or the court of the existence of the additional evidence or material.

(f) Except to the extent such material is otherwise subject to discovery, this rule shall not authorize the discovery or inspection of:

(1) reports, memoranda, or other internal documents made by the defendant, an attorney for either party or agents of the either party in connection with the investigation, prosecution or defense in the case;

(2) statements made by the defendant, witnesses or prospective witnesses in connection with the case.

(g) Upon motion by a party, the court may deny or restrict discovery or issue such other order as is appropriate. If the court enters an order granting relief all items or documents reviewed in camera shall be sealed and preserved in the record of the court to be made available to the appellate court in the event of an appeal.

(h) Once the court determines that a party has failed to comply with this rule, it may grant a motion to compel submitted by the opposing party, grant a continuance, prohibit the party from introducing evidence not disclosed or it may enter such other order as it deems just. In addition to any other action taken by the court upon a finding that a party has failed to comply with this rule, the court may award attorneys fees and costs to the prevailing party resulting from procedures to compel discovery.

Rule 13. Subpoena

(a) All witnesses shall be subpoenaed to appear at the date and time set for trial. The parties shall notify the clerk of the court of the names and addressees of witnesses not less than fourteen (14) business days prior to the scheduled trial date.

(b) A subpoena shall be an order of the court requiring the attendance of a witness at trial and/or commanding the person to whom it is issued to produce books, papers, documents or other objects designated therein. It shall be signed by the judge and issued by the tribal court clerk. It shall state the name of the court and the name of the case and shall command the person to whom it is directed to attend and give testimony and/or produce or present evidence at the time and place specified. The clerk shall submit a signed, sealed and otherwise complete subpoena except for the name of the individual and items subpoenaed to the requesting party, who shall complete the subpoena before it is served.

(c) A subpoena shall be served in accordance with the provisions for service of process provided by this chapter. The party requesting the subpoena shall provide a $10.00 fee for one day's attendance and mileage allowances as determined by the court to each witness following their compliance with the subpoena. The court shall pay the expenses of any witness subpoenaed by the defense upon a satisfactory showing that the defendant is unable to pay such expenses and the witness is necessary to the defense.

(d) The court on motion, may quash or modify a subpoena if compliance would be unreasonable or oppressive.

TRIAL

Rule 14. Trial Procedures

(a) Motions

(1) Before opening statements, the court shall hear and rule on any remaining pretrial motions. All arguments shall be made outside the presence of the jury in a trial by jury.

(b) Rule of Exclusion

(1) The exclusion of witnesses shall be allowed by the court upon motion of either party. Once a motion is made the court will invoke the rule excluding all witnesses for either party from the courtroom until they are called to testify.

(2) If invoked, the court shall order that the witnesses remain outside and out of hearing of the courtroom until they are called as witnesses. The court shall also instruct the witnesses not to discuss their testimony with any other witnesses under penalty of contempt until the trial has been declared ended. The defendant is entitled to be present during the entire trial regardless of a motion to exclude witnesses.

(c) Opening Statements

The court will allow opening statements by the prosecution and defendant. The prosecution will present its statement first followed by the defense who may preserve its opening statement until the end of the prosecution's case in chief. Either party may waive making a statement.

(d) Burden of Proof

(1) The burden of proof is upon the prosecution to show that the defendant committed all elements of the specific charge or charges in the complaint, beyond a reasonable doubt, and this burden remains with the prosecution at all times.

(2) Following the prosecution's case in chief, the burden of going forward with the evidence shifts to the defense which then presents its witnesses, documents and other exhibits.

(3) Following presentation of the case for the defense the prosecution may offer rebuttal witnesses.

(4) After all of the evidence has been presented, the parties may make closing arguments. The prosecution will have the right to open, the defense to follow and the prosecution to close.

(e) Motion for Judgment of Acquittal

(1) The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of any of Tenses if the evidence is insufficient to sustain a conviction of such of tense. If a defendant's motion for judgment of acquittal at the close of evidence offered by the tribe is not granted, the defendant may proceed to offer evidence without having reserved the right to do so.

(2) If a motion for judgment of acquittal is made at the close of all of the evidence, the court may either decide the motion or reserve decision on the motion, until after the jury verdict.

(3) If the jury returns a verdict of guilty, no verdict or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed immediately after the jury is discharged, or within such further time as the court may fix. If the court grants the motion following a verdict of guilty, it may set aside the verdict and enter the judgment of acquittal.

(f) Expert Witnesses and Interpreters

(1) Either party may call expert witnesses of their own selection and each bears the cost of such witnesses.

(2) The court may appoint an interpreter of its own selection through whom testimony is received from a defendant or witness or communicated to a defendant or witness. Such interpreter shall be put under oath to faithfully and accurately translate and communicate. In addition, each party may provide their own interpreters.

(g) Jury Instruction

(1 ) The court may request proposed jury instructions and either accept or reject each instruction.

(2) In all criminal cases, the court will inform the jury that the defendant's plea of not guilty places upon the prosecution the burden of proving guilt beyond a reasonable doubt, that the defendant is presumed innocent until his guilt is established, and that if the defendant does not testify this may not be considered as any evidence of guilt.

Rule 15. Verdict

(a) After the presentation of evidence in non-jury cases is completed and all motions have been ruled upon, the court shall render its decision as to the guilt or innocence of the defendant. The court may take the case under advisement rather than passing judgment immediately.

(b) In jury trials:

(1) the verdict shall be unanimous and shall be returned by the jury to the judge in open court;

(2) if the verdict is not guilty the court will order the defendant released from custody;

(3) if the verdict is guilty the court may impose sentence immediately or set a later date for sentencing.

(c) If the required number of jurors does not support the verdict or the jury is unable to make a decision, the court must declare a mistrial. Polling of the jury may take place upon the request of either party.

(d) If there are multiple defendants, the trier of fact (judge/jury), at any time during its deliberations, may return a verdict or verdicts with respect to any charge.

(e) The defendant may be found guilty of an offense necessarily included in the offense charged and the lesser included offense need not have been included in the original charge.

Post Trial

Rule 16. Judgment and Sentencing

(a) A judgment of conviction shall set forth the plea, the verdict or findings, and sentence when imposed. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered into record by the court clerk.

(b) If a motion for withdrawal of a plea of guilty is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. In order to correct manifest injustice, the court after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Rule 17. Post Trial Motions

(a) Motion to Set Aside the Verdict

(1) The defendant may file a motion to set aside the verdict if he believes the jury verdict was contrary to the law or the evidence presented at trial. The court will set the jury verdict aside only where it finds there was insufficient evidence to support the verdict and there was reasonable doubt as to the defendant's guilt as a matter of law.

(b) Motion for New Trial

(1) The defendant may file a motion for a new trial based upon error or mistake by the court or on the basis of newly discovered evidence. The court may grant the motion only if the errors or mistakes substantially prejudice the defendant or if the newly discovered evidence could result in acquittal.

(2) A motion for a new trial based on:

(A) newly discovered evidence shall be made within thirty (30) business days after final judgment, but if an appeal is pending, the court may grant the motion only once the appeal is resolved;

(B) any other grounds shall be made within ten business (10) days after a guilty verdict is entered.

(3) In the case of a non-jury trial, on motion of a defendant for new trial the court may vacate the judgment if entered, take additional testimony and enter a new judgment.

(c) Motion for Stay

While an appeal is pending, the court may stay the execution of the sentence pending the filing and conclusion of an appeal. The court may order the defendant released on bail, released with out bail or continued in detention.

Habeas Corpus

Rule 18. Right to Apply for Writ

(a) Any person detained or imprisoned by order, authority or action of the Nez Perce Tribe may challenge the legality of that detention or imprisonment by application to the Nez Perce Tribal Court for a writ of habeas corpus. The application shall be heard by a judge who has not participated in any proceeding related to the detention or imprisonment of the applicant.

(b) The application for writ of habeas corpus shall be in writing and must include:

(1) the facts concerning the person's commitment or detention;

(2) the cause or reason why detention is illegal; and

(3) a copy of the warrant of commitment or other documentary authority, if any, or an affidavit that such copy has been requested and refused.

(c) Upon receipt of a writ of habeas corpus the court may:

(1) issue an order directing the person(s) alleged to be detaining the petitioner to show cause why the writ should not be issued; or

(2) deny the writ.

(d) If an order to show cause is issued it will be served on the person(s) alleged to have custody of the petitioner. Once served, the person(s) to whom the order is directed shall make a return of such order to the court certifying the true cause for detention. Following service, the court shall hear the petition and order the petitioner be brought before it for the hearing. If the writ is granted, it shall be served on the person(s) having custody of the petitioner.

GENERAL PROVISIONS

Rule 19. Search and Seizure

(a) Upon the request of any law enforcement officer the Tribal Court may issue a written search warrant to search for and seize evidence of a criminal offense.

(b) A search warrant shall be supported by affidavit or sworn testimony and must particularly describe the person or place to be searched and the item(s) to be seized. If probable cause exists to believe that a crime has been committed and that evidence of the crime is present at the place or on the person to be searched the warrant shall issue. The search warrant shall direct police officers to search the location or person described for the items specified.

(c) A search warrant shall be served during the hours of 6:00 a.m. to 10:00 p.m., unless a night search is expressly provided for in the warrant. The officer taking property under a search warrant shall provide a copy of the warrant and a receipt for the property taken to the person from whom it was taken or in the absence of any such person, he shall leave it in the place where the property was found.

(d) A search warrant shall be executed within fourteen (14) days after issuance. Upon execution of the warrant, a return shall be executed and filed with the court along with an inventory of the items seized.

(e) A search warrant will not be required in the following situations:

(1) the evidence is in plain view and can be seen by the officer(s) from a place where the officer has a right to be;

(2) a person who has authority to do so voluntarily consents to the search and the search is limited to the scope of the consent given;

(3) the search is incident to a lawful arrest and is conducted on the person arrested and within the area of the person's immediate reach and control for any evidence, contraband or weapons;

(4) the officer(s) reasonably believe that a person is armed and presents a danger to the officer or the public in which case the officer may conduct a pat down of the person's outer clothing in search of weapons;

(5) the officers) enter a residence or structure in fresh pursuit of a fleeing suspect;

(6) the area to be searched is an automobile actually moving or temporarily stopped, as long as the officer(s) have probable cause to believe that it contains items which are subject to seizure.

(7) there are reasonable grounds to believe that the delay in obtaining a search warrant would endanger the physical safety of the police officers or third persons or allow the destruction, dissipation or removal of seizable evidence.

Rule 20. Extradition

(a) A written request seeking the extradition of any individual found within the exterior boundaries of the Nez Perce Reservation to any state, tribal or federal jurisdiction shall be submitted to the chief judge of the Nez Perce Tribal Court and shall be accompanied by:

(1) a certified exemplified copy of the warrant; or

(2) other reliable information that the warrant exists.

(b) If the chief judge, after receiving the extradition request is satisfied as to its validity, he shall issue an arrest warrant. The person named in the warrant shall be taken into custody by the tribal police officers with the assistance of the other law enforcement officials involved if requested and held by tribal police for arraignment by the Tribal Court.

(c) Once the person suspected of being the one named in the extradition request is in custody of the tribal police, the police shall notify the jurisdiction which issued the request.

(d) Within three (3) business days after arrest, the person arrested shall be brought before the chief judge of the Tribal Court. The court shall inform the person of the demand for his surrender and of the crime with which he is charged, that he has a right to representation of legal counsel at his own expense and to request a hearing to challenge the extradition request. If a hearing is requested, the judge shall fix a reasonable time for the hearing release the person on bail, release the person with out bail or hold him in custody until the date of the hearing. If the hearing is waived, the person shall be promptly turned over to the custody of the appropriate authorities.

(e) Following an extradition hearing conducted by the chief judge of the Tribal Court, if the judge determines that the person brought before the court is in fact the person named in the extradition request and that there is probable cause to believe that the he committed the offense complained of, an extradition order shall be issued and the person immediately turned over to the custody of the appropriate authorities.

Rule 21. Bail; Release without Bail; Confinement

(a) To insure defendant's appearance at any court proceeding or to protect the public, the court may:

(1) set bail in lieu of confinement;

(2) turn the defendant over to the tribal police for confinement;

(3) release the defendant on his own recognizance upon his promise to appear; or

(4) impose any other reasonable condition deemed necessary to assure the appearance of the accused as required.

(b) The amount of bail shall reflect the gravity and nature of the offense charged and the defendant's ability to pay. Other factors to be considered by the court in setting bail include: the location of the defendant's permanent residence, family responsibilities, and past criminal record. If the defendant is committed in lieu of bail then he may be credited for such time spent in jail.

(c) No person shall be detained or jailed for more than three (3) business days unless there has been a commitment bearing the signature of a judge of the Nez Perce Tribal Court.

(d) Any person arrested for a crime involving domestic violence or a violation of a domestic protection order shall not be released on bond or on his/her own recognizance prior to being arraigned. Such arraignment shall not occur less than 48 business hours or more than 72 business hours following arrest. (Added 6/22/99)

Rule 22. Motions

Unless made at trial or hearing or otherwise provided, an application to the court for an order shall be by written motion. The motion shall state the grounds upon which it is made and shall specify the relief order sought. It shall be supported by a memorandum of points and authorities.

Rule 23. Signing of Pleadings, Motions, and Other Papers

(a) For those parties represented by an attorney, all pleadings, motions and other papers shall be signed by at least one attorney of record in his individual name, who shall also state his address. A party who is not represented by an attorney shall sign the pleading, motion or other paper himself and state his address.

(b) A person's signature constitutes a certification by the signer that:

(1) he has read the pleading, motion, or other paper;

(2) to the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification, or reversal of existing law; and

(3) that it is not interposed or introduced for any improper purpose.

Rule 24. Service and Filing of Papers

(a) This section shall apply to any service of process required under this chapter. Service of process in criminal cases shall be by tribal police, court employee or any other person designated by the chief judge, who is at least eighteen (18) years of age and is not a party. Service shall be made upon the defendant, by delivering to the defendant a copy of the documents to be served in person, by registered or certified mail, or after first appearance, by first class postage pre-paid with certificate of mailing.

(b) Service may be accomplished at any place within the exterior boundaries of the Nez Perce Reservation. The person conducting service of process on another shall make a return to the clerk staling the name of the case, the name of the person served, the place, date and time of service, and shall subscribe his name thereto under penalty of perjury for the intentional making of a false return.

(c) All written pleadings and motions, notices and similar papers other than those which are heard ex-parte, shall be served on each party as provided in civil actions and filed with the court. The party filing the motion or pleading shall certify the date and method of service upon the opposing party.

SCOPE AND PURPOSE OF RULES--ONE FORM OF ACTION

Rule 1. Scope of Rules

These rules govern the procedure in the Nez Perce Tribal courts in all suits of a civil nature whether cognizable as cases at law or in equity. They shall be construed and administered to secure determination of every action as just, speedy, and inexpensive as possible.

Rule 2. One Form of Action

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

COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

Rule 3. Commencement of Action

A civil action is commenced by filing a complaint with the Court.

Rule 3.1 Inability to pay fees - Affidavit

(a) The Tribal Court may authorize the commencement or defense of any civil suit, action or proceeding, or an appeal therein, without prepayment fees, costs or security therefore, by any person who makes affidavit that he is indigent and unable to pay such costs or give security therefore, whenever the Court finds, after informal inquiry, the person to be indigent for the purpose of prepayment of fees, costs or security in a civil action or proceeding. Such affidavit shall state the nature of the action, defense or appeal and the affiant's belief he is entitled to redress.

(b) No fees, costs or security shall be waived for an appeal if the Court certifies in writing that the action is frivolous or malicious or that it is not taken in good faith.

(c) The Court may, upon the filing of a like affidavit and a finding of indigency, direct that the expense of printing the transcript or record on appeal be paid out of the Court fund.

(d) The Court may retroactively require payment for any fees, costs or security which may have been waived in the case if the allegation of poverty is untrue, or if the Court is satisfied that the action is frivolous or malicious, or if the action is not taken in good faith.

Rule 4. Summons

(a) Form. The summons shall be signed by the clerk, bear the seal of the Court, identify the Court and the parties, be directed to the defendant, and state the name and address of the plaintiff's attorney, or, if unrepresented, of the plaintiff. It shall also state the time period within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant for the relief demanded in the complaint. The Court may allow a summons to be amended.

(b) Issuance. Upon or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is in proper form, the clerk shall sign, seal, and issue it to the plaintiff for service on the defendant. A summons, or a copy of the summons if addressed to multiple defendants, shall be issued for each defendant to be served.

(c) Service With Complaint; By Whom Made.

(1) A summons shall be served together with a copy of the complaint. The plaintiff is responsible for service of a summons and complaint within the time allowed under subsection (l) and shall furnish the person effecting service with the necessary copies of the summons and complaint.

(2) Service may be effected by any person who is not a party and who is at least eighteen (18) years of age. At the request of the plaintiff, however, the Court may direct that service be effected by a tribal police officer, or other person or officer specially appointed by the Court for that purpose.

(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive.

(1) A defendant who waives service of summons does not thereby waive any objection to the jurisdiction of the Court over the person of the defendant.

(2) An individual, corporation, or association that is subject to service under subsection (e), (f), or (h) and that receives notice of an action in the manner provided in this subpart has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request shall:

(A) be in writing and be addressed directly to the defendant, if an individual, or to an officer or managing or general agent (or other agent authorized by appointment or law to receive service of process) of a defendant subject to service under subsection (h);

(B) be dispatched through first-class mail or other reliable means;

(C) be accompanied by a copy of the complaint and shall identify the Court in which it has been filed;

(D) inform the defendant of the consequences of compliance and of a failure to comply with the request;

(E) set forth the date on which the request is sent;

(F) allow the defendant a reasonable time to return the waiver, which shall be at least thirty (30) days from the date on which the request is sent, or sixty (60) days from that date if the defendant is addressed outside the United States; and

(G) provide the defendant with an extra copy of the notice and request, as well as a prepaid means of compliance in writing.

If a defendant located within the United States fails to comply with a request for waiver made by a plaintiff located within the United States, the Court shall impose the costs subsequently incurred in effecting service on the defendant unless good cause for the failure be shown.

(3) A defendant that, before being served with process, timely returns a waiver so requested is not required to serve an answer to the complaint until sixty (60) days after the date on which the request for waiver of service was sent, or ninety (90) days after that date if the defendant was addressed outside the United States.

(4) When the plaintiff files a waiver of service with the Court, the action shall proceed, except as provided in subpart (3), as if a summons and complaint had been served at the time of filing the waiver, and no proof of service shall be required.

(5) The costs to be imposed on a defendant under subpart (2) for failure to comply with a request to waive service under subsection (e), (f), or (h), together with the costs, including a reasonable attorney's fee, of any motion required to collect the costs of service of summons shall include the costs subsequently incurred in effecting service.

(e) Service. Service upon any person from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

(f) Service Upon Individuals in a Foreign Country. Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within the United States:

(1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

(2) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;

(B) as directed by the foreign authority in response to a letter rogatory or letter of request;

(C) unless prohibited by the law of the foreign country, by:

(i) delivery to the individual personally of a copy of the summons and the complaint; or

(ii) any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the Court to the party to be served; or

(3) by other means not prohibited by international agreement as may be directed by the Court.

(g) Service Upon Minors and Incompetent Persons. Service upon a minor or an incompetent person shall be effected by service on the minor or incompetent person and the parent or legal guardian of the minor or incompetent person.

(h) Service Upon Corporations and Associations. Unless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected:

(1) in the United States in the manner prescribed for individuals by subsection (e), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process; or

(2) in a place not within the United States in any manner prescribed for individuals by subsection (f) except personal delivery as provided in subpart (2)(C)(i) thereof.

(i) Service Upon Foreign, State or Local Governments

(1) Service upon a foreign state or a political subsection, agency, or instrumentality thereof shall be in accordance with the procedures for federal and state courts as provided in 28 U.S.C. § 1608.

(2) Service upon a state or municipal corporation or other government organization subject to suit shall be effected by delivering a copy of the summons and the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.

(j) Territorial Limits of Effective Service. Service of a summons on a person otherwise subject to the jurisdiction of the Nez Perce Tribal Court may be made anywhere in the United States or elsewhere if effected under this rules.

(k) Proof of Service. If service is not waived, the person effecting service shall make proof thereof to the Court. If service is made by a person other than a tribal police officer, the person shall make affidavit thereof. Proof of service in a place not within the United States shall, if effected under subpart (1) of subsection (f), be made pursuant to the applicable treaty or convention, and shall, if effected under subpart (2) or (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the Court. Failure to make proof of service does not affect the validity of the service. The Court may allow proof of service to be amended.

(l) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within one hundred and twenty (120) days after the filing of the complaint, the Court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the Court shall extend the time for service for an appropriate period. This subsection does not apply to service in a foreign county pursuant to subsection (f) or (i)(1) of this rule.

(m) Seizure of Property; Service of Summons Not Feasible. The Court may assert jurisdiction over property. Notice to claimants of the property shall then be sent in the manner provided by the statute or by service of a summons under this rule.

Rule 4.1 Service of Other Process

(a) Generally. Process other than a summons as provided in Rule 4 or subpoena as provided in Rule 45 shall be served by a tribal police officer within the reservation, or a person specially appointed for that purpose, who may serve anywhere in the United States. Proof of service shall be made as provided in Rule 4(1). The process may be served anywhere within the United States.

(b) Enforcement of Orders; Commitment for Civil Contempt. An order of civil commitment of a person held to be in contempt of a decree or injunction issued by the Court may be served and enforced anywhere in the United States.

Rule 5. Service and Filing of Pleadings and Other Papers

(a) Service; When Required. Every pleading subsequent to the original complaint unless the Court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the Court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.

(b) Same; How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the Court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney's or party's last known address or, if no address is known, by leaving it with the clerk of the Court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney's or party's office with a clerk or one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

(c) Same; Numerous Defendants. In any action in which there are unusually large numbers of defendants, the Court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the Court directs.

(d) Filing; Certificate of Service. All papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the Court within a reasonable time after service, but the court may on motion of a party or on its own initiative order that depositions upon oral examination and interrogatories, requests for documents, requests for admission, and answers and responses thereto not be filed unless on order of the court or for use in the proceeding.

(e) Filing with the Court Defined. The filing of papers with the Court as required by these rules shall be made by filing them with the clerk of the Court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. The Court may permit papers to be filed by facsimile or other electronic means. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or practices.

Rule 6. Time

(a) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion:

(1) with or without motion or notice order the period enlarged if the request is made before the expiration of the period originally prescribed or as extended by a previous order; or

(2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect;

but it may not extend the time for taking any action under Rules 48(b) and (c)(2), 50 (b), 57(b), (d) and (e), and 58(b), except to the extent and under the conditions stated in them.

(b) For Motions--Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served no later than five (5) days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the Court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and except as otherwise provided in Rule 57(c), opposing affidavits may be served not later than one (1) day before the hearing, unless the Court permits them to be served at some other time.

(c) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three (3) days shall be added to the prescribed period.

Rule 7. Pleadings Allowed; Form of Motions

(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim, denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the Court may order a reply to an answer or a third-party answer.

(b) Motions and Other Papers.

(1) An application to the Court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers provided for by these rules.

(3) All motions shall be signed in accordance with Rule 11.

(c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.

Rule 8. General Rules of Pleadings

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain

(1) a short and plain statement of the grounds upon which the Court's jurisdiction depends, 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 claim showing that the pleader is entitled to relief; and

(3) a demand for judgment for the relief the pleader seeks.

Relief in the alternative or of several different types may be demanded.

(b) Defenses; Form of Denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or subparts or may generally deny all the averments except such designated averments or subparts as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the Court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 1.

(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statue 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.

(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of the statements if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to obligations set forth in Rule 11.

(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

Rule 9. Pleading Special Matters.

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the Court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

(d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

(e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.

Rule 10. Form of Pleadings

(a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party of each side with an appropriate indication of other parties.

(b) Subparts; Separate Statements. All averments of claim or defense shall be made in numbered subparts, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a subpart may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be state in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper of a party shall be signed by at least one attorney of record in the attorney's individual name, or if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by this code, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(b) Representations to Court. By presenting to the Court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's 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 or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to 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 a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the Court determines that subsection (b) has been violated, the Court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subsection (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subsection (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the Court unless, within twenty-one (21) days after service of the motion (or such other period as the Court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the Court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the Court may enter an order describing the specific conduct that appears to violate subsection (b) and directing an attorney, law firm, or party to show cause why it has not violated subsection (b) with respect thereto.

(2) Nature of Sanctions; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparts (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may be awarded against a represented party for a violation of subsection (b)(2).

(B) Monetary sanctions may not be awarded on the Court's initiative unless the Court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the Court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

(d) Inapplicability to Discovery. Subsections (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.

Rule 12. Defenses and Objections; When and How Presented; By Pleading or Motion; Motion for Judgment on the Pleadings

(a) When Presented.

(1) A defendant shall serve an answer:

(A) within twenty (20) days after being served with the summons and complaint; or

(B) if service of the summons has been timely waived on request under Rule 4(d), within sixty (60) days after the date when the request for waiver was sent, or within ninety (90) days after that date if the defendant was addressed outside the United States.

(2) A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within twenty (20) days after being served. The plaintiff shall serve a reply to a counterclaim in the answer within twenty (20) days after service of the answer, or, if a reply is ordered by the Court, within twenty (20) days after service of the order, unless the order otherwise directs.

(3) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows:

(A) if the Court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after notice of the Court's action; or

(B) if the Court grants a motion for a more definite statement the responsive pleading shall be served within ten (10) days after the service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) lack of jurisdiction over the subject matter;

(2) lack of jurisdiction over the person;

(3) improper venue;

(4) insufficiency of process;

(5) insufficiency of service of process;

(6) failure to state a claim upon which relief can be granted; or

(7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 53, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 53.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 53, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 53.

(d) Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subsection (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this rule shall be heard and determined before trial on application of any party, unless the Court orders that the hearing and determination thereof be deferred until the trial.

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the Court is not obeyed within ten (10) days after notice of the order or within such other time as the Court may fix, the Court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to Strike. Upon motion by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty (20) days after the service of the pleading upon the party or upon the Court's own initiative at any time, the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subsection (h)(2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived:

(A) if omitted from a motion in the circumstances described in subsection (g); or

(B) if it is neither made by motion under this rule nor included in the responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and the objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the Court lacks jurisdiction of the subject matter, the Court shall dismiss the action.

Rule 13. Counterclaim and Cross-Claim

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the Court cannot acquire jurisdiction. But the pleader need not state the claim if:

(1) at the time the action was commenced the claim was the subject of another pending action; or

(2) the opposing party brought suit upon the claim by attachment or other process by which the Court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.

(b) Permissive Counterclaims. A pleading may state as a counter claim 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 Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the Court, be presented as a counterclaim by supplemental pleading.

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

(f) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

(g) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.

(h) Separate Trials; Separate Judgments. If the Court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 51(b) when the Court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

Rule 14. Third Party Practice

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than ten (10) days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make any defenses to the third-party plaintiff's claim as provided in Rule 12 and any counter-claims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant.

(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.

Rule 15. Amended and Supplemental Pleadings

(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within twenty (20) days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten (10) days after service of the amended pleading, whichever period may be the longer, unless the Court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the Court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The Court may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:

(1) relation back is permitted by the law that provides the statue of limitations applicable to the action;

(2) 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; or

(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(l) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

(d) Supplemental Pleadings. Upon motion of a party the Court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of claim for relief or defense. If the Court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefore.

Rule 16. Pretrial Conferences; Scheduling; Management

(a) Pretrial Conferences; Objectives. In any action, the Court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as:

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation, and;

(5) facilitating the settlement of the case.

(b) Scheduling and Planning. Except in categories of actions exempted by court rule as inappropriate, the judge shall after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time:

(1) to join other parties and to amend the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order also may include:

(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;

(5) the date or dates for conferences before trial, a final pretrial conference, and trial; and

(6) any other matters appropriate in the circumstances of the case.

The order shall issue as soon as practicable but in any event within ninety (90) days after the appearance of a defendant and within one hundred and twenty (120) days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the judge.

(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the Court may take appropriate action, with respect to:

(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the Court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative evidence, and limitation or restrictions on the use of testimony under the Rules of Evidence;

(5) the appropriateness and timing of summary adjudication under Rule 53;

(6) the control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to Rule 26 and Rules 29 through 37;

(7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;

(8) settlement and the use of special procedures to assist in resolving the dispute when authorized by this code;

(9) the form and substance of the pretrial order;

(10) the disposition of pending motions;

(11) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(12) an order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;

(13) an order directing a party in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 48(a) or a judgment on partial findings under Rule 50(c);

(14) an order establishing a reasonable limit on the time allowed for presenting evidence; and

(15) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.

At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the Court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.

(d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.

(e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.

(f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

PARTIES

Rule 17. Parties Plaintiff and Defendant; Capacity

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another may sue in that person's own name without joining the party for whose benefit the action is brought and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

(b) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The Court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

Rule 18. Joinder of Claims and Remedies

(a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, or equitable, as the party has against an opposing party.

(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the Court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money.

Rule 19. Joinder of Persons Needed for Just Adjudication

(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the Court of jurisdiction over the subject matter of the action shall be joined as a party in the action if:

(1) in the person's absence complete relief cannot be accorded among those already parties; or

(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:

(A) as a practical matter impair or impede the person's ability to protect that interest; or

(B) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

If the person has not been so joined, the Court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.

(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subsection (a)(1)-(2) hereof cannot be made a party, the Court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the Court include:

(1) to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;

(2) the extent to which, by protective provision in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;

(3) whether a judgment rendered in the person's absence will be adequate; and

(4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subsection (a)(1)-(2) hereof who are not joined, and the reasons whey they are not joined.

(d) Exception of Class Actions. This rule is subject to the provisions of Rule 23.

Rule 20. Permissive Joinder of Parties

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

(b) Separate Trials. The Court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

Rule 21. Misjoinder and Non-Joinder of Parties

Misjoinder of parties is not ground for dismissal of action. Parties may be dropped or added by order of the Court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Rule 22. Interpleader

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that 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 cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.

Rule 23. Class Actions

(a) Prerequisite to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subsection (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of:

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class;

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;

(D) the difficulties likely to be encountered in the management of a class action.

(c) Determination by Order Whether Class Action to be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.

(1) As soon as practicable after the commencement of an action brought as a class action, the Court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits.

(2) In any class action maintained under subsection (b)(3), the Court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:

(A) the Court will exclude the member from the class if the member so requests by a specified date;

(B) the judgment, whether favorable or not, will include all members who do not request exclusion; and

(C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.

(3) The judgment in an action maintained as a class action under subsection (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the Court finds to be members of the class. The judgment in an action maintained as a class action under subsection (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subsection (c)(2) was directed, and who have not requested exclusion, and whom the Court finds to be members of the class.

(4) When appropriate:

(A) an action may be brought or maintained as a class action with respect to particular issues; or

(B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the Court may make appropriate orders:

(1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the Court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

(3) imposing conditions on the representative parties or on intervenors;

(4) requiring that the pleadings be amended to eliminate therefrom allegations to representation of absent persons, and that the action proceed accordingly;

(5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.

(e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the Court, and notice of the proposed dismissal or compromise shall be given to all the members of the class in such manner as the Court directs.

Rule 23.1 Derivative Actions by Shareholders

In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege:

(a) that the plaintiff was a shareholder or member at the time of the transaction of which the plaintiff complains or that the plaintiff's share or membership thereafter devolved on the plaintiff by operation of law; and

(b) that the action is not a collusive one to confer jurisdiction on the Nez Perce Tribal Court which it would not otherwise have.

The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors of comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the Court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the Court directs.

Rule 23.2. Actions Relating to Unincorporated Associations

An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the Court may make appropriate orders corresponding with those described in Rule 23(d), and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23(e).

Rule 24. Intervention

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:

(1) when this code confers an unconditional right to intervene; or

(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action:

(1) when this code confers a conditional right to intervene; or

(2) when an applicant's claim or defense and the main action have a question of law or fact in common.

When a party to an action relies for ground of claim or defense upon any law or executive order administered by a federal, state or tribal governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the law or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the Court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when this code gives a right to intervene. When the legality of an act of the tribe is drawn in question in any action in which the tribe or an officer, agency, or employee thereof is not a party, the Court shall notify the tribal office of legal counsel. A party challenging the legality of legislation should call the attention of the Court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted.

Rule 25. Substitution of Parties

(a) Death

(1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

(b) Incompetency. If a party becomes incompetent, the Court upon motion served as provided in subsection (a) of this rule may allow the action to be continued by or against the party's representative.

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the Court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subsection (a) of this rule.

(d) Tribal Officers; Death or Separation from Office.

(1) When a tribal officer is a party to an action in an official capacity and during its pendency dies, 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) A tribal officer who sues or is sued in an official capacity may be described as a party by the officer's official title rather than by name; but the Court may require the officer's name to be added.

DEPOSITIONS AND DISCOVERY

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures. Except to the extent otherwise stipulated or directed by order, a party shall, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings;

(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Unless otherwise stipulated or directed by the Court, these disclosures shall be made at or within ten (10) days after the meeting of the parties under subsection (f). A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by subpart (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 45, 46 or 48 of the Rules of Evidence.

(B) Except as otherwise stipulated or directed by the Court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten (10) years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four (4) years.

(C) These disclosures shall be made at the times and in the sequence directed by the Court. In the absence of other directions from the Court or stipulation by the parties, the disclosures shall be made at least ninety (90) days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under subpart (2)(B), within thirty (30) days after disclosure made by the other party. The parties shall supplement these disclosures when required under subsection (e)(1).

(3) Pretrial Disclosures. In addition to the disclosures required in the preceding subparts, a party shall provide to other parties the following information regarding the evidence that it may present at trial other than solely for impeachment purposes:

(A) the name and, if not previously provided, the address and telephone number of each of those whom the party expects to present and those whom the party may call if the need arises;

(B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and

(C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

Unless otherwise directed by the Court, these disclosures shall be made at least thirty (30) days before trial. Within fourteen (14) days thereafter, unless a different time is specified by the Court, a party may serve and file a list disclosing:

(i) any objections to the use under Rule 32(a) of a deposition designated by another party under subpart (B); and

(ii) any objection, together with the grounds therefore, that may be made to the admissibility of materials identified under subpart (C).

Objections not so disclosed, other than objections under Rules 10 and 11 of the Rules of Evidence, shall be deemed waived unless excused by the Court for good cause shown.

(4) Form of Disclosures; Filing. Unless otherwise directed by order, all disclosures under subparts (1) through (3) shall be made in writing, signed, served, and promptly filed with the Court.

(5) Methods to Discover Additional Matter. 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 under Rule 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and requests for admission.

(b) Discovery Scope and Limits. Unless otherwise limited by order of the Court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Limitations. By order, the Court may alter the limits in these rules on the number of depositions and interrogatories and may also limit the length of depositions under Rule 30 and the number of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules shall be limited by the Court if it determines that:

(A) the discovery sought is unreasonably cumulative or duplicative or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(B) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(C) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

The Court may act upon its own initiative after reasonable notice or pursuant to a motion under subsection (c).

(3) Trial Preparation; Materials. Subject to the provisions of subsection (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a part