FOR THE KOSRAE STATE COURT
I. SCOPE OF RULES -- ONE FORM OF ACTION
SCOPE OF RULES
These rules govern the procedure in the Kosrae State Court in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every action consistent with the Kosrae Constitution, State traditions and customs, and the Social and geographical configurations of the State.
ONE FORM OF ACTION
There shall be one form of action to be known as "civil action".
II. COMMENCEMENT OF ACTION: SERVICE OF
PROCESS PLEADINGS, MOTIONS AND ORDERS
COMMENCEMENT OF ACTION
A civil action is commenced by filing a complaint with the court.
PROCESS
(a) Summons: Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the plaintiff or his attorney or trial counselor. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.
(b) Same. Form. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint.
(c) By Whom Served.
(1) Service of a summons and complaint shall be made by any person who is not a party and is not less than 18 years of age except as provided in subdivision (c)(2) of this rule.
(2) At the request of a party, service of all summons and complaint shall be made by a policeman, or by some person specially appointed by the court for that purpose;
(A)
pursuant to any statutory provision expressly providing for service by a
policeman,
(B) pursuant to any order issued by the court stating that service in that particular action is required to be made by a policeman or special appointee in order to guarantee that service is properly effected.
(3) Service of all other process shall be made by court for that purpose.
(4) The Plaintiff or his attorney or trial counselor shall be responsible for making arrangements for prompt service. Special appointments to serve process shall be made freely.
(d) Summons and Complaint: Personal Service and Service by Mail. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies hereof at his dwelling house or usual place of abode or of business with some person of suitable age and discretion then residing or employed 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. Reasonable attempts shall also be made by the person serving the summons and complaint to assure that the person served understands the meaning of the summons and complaint.
(2)
Upon an infant, by serving the summons and complaint to a parent or to a
guardian, if any, and, if the infant is 14 years or older, upon the infant; upon
an incompetent person, by serving the summons and complaint upon the guardian of
the person, if any, or upon the person or agency to which the incompetent has
been committed.
(3)
Upon a domestic or foreign corporation or upon a partnership or other
unincorporated association which is subject to suit under a common name, by
delivering 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 and, if the agent is one authorized by statute to
receive service and the statute so requires, by also mailing a copy to the
defendant.
(4)
Upon the Government of the State of Kosrae, by delivering, or sending by
registered or certified mail, a copy of the summons and of the complaint to the
State Attorney, and if any action attacking the validity of an order of an
officer or agency of the Government of the State of Kosrae not made a party, by
also sending a copy of the summons and of the complaint by registered or
certified mail to such officer or agency.
(5)
Upon an officer or agency of the Government of Kosrae, by serving the
Government of the state of Kosrae and by delivering a copy of the summons and of
the complaint to such officer or agency. If the agency is a corporation
the copy shall be delivered as provided in paragraph (3) of this subdivision of
this rule.
(6)
Upon another state or municipal corporation or other governmental
organization subject to suit, by delivering a copy of the summons and of the
complaint to the chief executive officer thereof or by serving the summons and
complaint in the manner prescribed by the law of that State for the service of
summons or other like process upon any such defendant.
(7)
For service upon a defendant of any class referred to in paragraph (1) or
(3) of this subdivision of this rule, it is also sufficient if the summons and
complaint are served in the manner prescribed by any Laws of the State of
Kosrae; except that a summons and complaint served by mail may be served only as
authorized by and pursuant to the procedures set forth in paragraph (8) of this
subdivision of this rule.
(8)
Service of a summons and complaint upon a defendant of any class referred
to in paragraph (1) or (3) of this subdivision of this rule may be made by the
plaintiff or by any person authorized to serve process pursuant to Rule 4(c), including a
policeman, by registered or certified mail, return receipt requested and
delivery restricted to the addressee. Service pursuant to this paragraph
shall not default unless the record contains a return receipt showing refusal of
the process by the defendant. If delivery of the process is refused, the
person serving the process, promptly upon the receipt of notice of such refusal,
shall mail to defendant by first class mail a copy of the summons and complaint
and a notice that despite such refusal the case will proceed and that judgment
by default will be rendered against him unless he appears to defend the suit.
Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60 (b) if the
defendant demonstrates to the court that the return receipt was signed or
delivery was refused by an unauthorized person.
(e) Same: Service Upon Party
Not Inhabitant of or Found Within State. Whenever a Law of the State
of Kosrae or an order of court thereunder provides for service of a summons, a
notice, or an order in lieu of summons upon a party not an inhabitant of or
found within the state in which the case is pending, service may be made under
the circumstances and in the manner stated in this rule. Whenever a law or
rule of court of the State of Kosrae which the case is pending provides (1) for
service of a summons, a notice, or an order in lieu of summons upon a party not
an inhabitant of or found within the state, or (2) for service upon or notice to
him to appear and respond or defend in an action by reason of the attachment or
garnishment or similar seizure of his property located within the state, service
may in either case be made under the circumstances and in the manner prescribed
in the statute or rule; except that service by mail must be made pursuant to the
procedures set forth in paragraph (8) of subdivision (d) of this
rule.
(f) Territorial Limits of Effective Service. All
process other than a subpoena may be served anywhere within the territorial
limits of the State of Kosrae and, when authorized by law or by these rules,
beyond the territorial limits of the State of Kosrae. A subpoena may be
served within the territorial limits provided in Rule 45.
(g) Return. The person serving the process shall make
proof of service thereof to the court promptly and in any event within the time
during which the person served must respond to the process. If service is
made by a person other than a policeman, he shall make affidavit thereof.
If service was by mail, the person serving process shall show in his proof
of service the date and place of mailing, and attach a copy of the return
receipt or returned envelope if and when received by him showing whether the
mailing was accepted, refused, or otherwise returned. If the mailing was
refused, the return shall also make proof of any further service mailed to the
defendant pursuant to paragraph (8) of subdivision (d) of this rule. The
return along with the receipt or envelope and any other proof shall be promptly
filed by the clerk with the pleadings and become part of the record.
Failure to make proof of service does not affect the validity of the
service.
(h) Amendment. At any time in its discretion and upon
such terms as it deems just, the court may allow any process or proof of service
thereof to be amended, unless it clearly appears that material prejudice would
result to the substantial rights of the party against whom the process
issued.
(i) Alternative Provisions for Service in a Foreign
Country.
(1) Manner. when service or process referred to in
subdivision (e) of this rule authorizes service upon a party not an inhabitant
of or found within the State of Kosrae and service is to be effected upon the
party in other FSM states or in a foreign country, it is also sufficient if
service of the summons and complaint is made: (A) in the manner
prescribed by the law of that state or the foreign country for service in that
state or foreign country in an action in any of its courts of general
jurisdiction; or (B) as directed by the authority of that state or foreign
country in response to a letter rogatory, when service in either case is
reasonably calculated to give actual notice; or (C) upon an individual, by
delivery to him personally and upon a corporation or partnership or association,
by delivery to an officer, a managing or general agent; or (D) by any form of
mail, requiring a signed receipt, to be addressed and dispatched by the clerk of
the court to the party to be served; or (E) as directed by order of the court.
Service under (C) or (E) above may be made by any person who is not a
party and is not less than 18 years of age or who is designated by order of the
court or by the foreign court. On request, the clerk shall deliver the
summons to the plaintiff for transmission to the person or the foreign court or
officer who will make the service.
(2) Return. Proof of service may be made as
prescribed by subdivision (g) of this rule, or by the law of the other state or
of the foreign country, or by order of the court. When service is made
pursuant to subparagraph (1) (D) of this subdivision, proof of service shall
include a receipt signed by the addressee or other evidence of delivery to the
addressee satisfactory to the court.
(j) Summons: Time Limit for
Service. If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the complaint, the action
shall be dismissed as to that defendant without prejudice upon motion or upon
the court's own initiative. If service is made by mail pursuant to Rule 4(d)(8), service
shall be deemed to have been made for the purposes of this provision as of the
date on which the process was accepted or refused. This subdivision shall
not apply to service in another FSM state or in a foreign country pursuant to
Rule 4(i).
Rule 5.
SERVICE AND FILING OF PLEADINGS AND OTHER
PAPERS
(a) Service: When
Required. Except as otherwise provided in these rules, every order
required by its terms to be served, every pleading subsequent to the original
complaint unless the court otherwise orders because of numerous defendants,
every paper relating to discovery required to be served upon a party unless the
court otherwise orders, every written motion other than one which may be heard
ex parte, and every written notice, appearance, demand, offer of judgment,
designation of record on appeal, and similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure to
appear except 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 or trial counselor the service shall be
made upon the attorney or trial counselor unless service upon the party himself
is ordered by the court. Service upon the attorney or trial counselor or
upon a party shall be made by delivering a copy to him or by mailing it to him
at his last known address or, if no address is known, by leaving it with the
clerk of the court. Delivery of a copy within this rule means:
handing it to the attorney, to trial counselor or to the party; or leaving
it at his office with his clerk or other person in charge thereof; or, if there
is no one in charge, leaving it at his dwelling house or usual place of abode
with some person of suitable age and discretion then residing therein.
Service by mail is completed 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, counter-claim, or matter
constituting an avoidance or affirmative defense contained therein shall be
deemed to be denied or avoided by all other parties and that the filing of any
such pleading and service thereof upon the plaintiff constitutes due notice of
it to the parties. A copy of every such order shall be served upon the
parties in such manner and form as the court directs.
(d) Filing. All papers after the complaint required
to be served upon a party shall be filed with the court, in duplicate, either
before service or within a reasonable time thereafter and shall be accompanied
by certification of service of copies upon all other parties. All papers
filed shall contain the mailing address of the party filing the papers, or of
that party's attorney or trial counselor. 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. Papers filed with the court shall be 8 1/2 inches in width and
11 inches in length.
(e) Filing With the Court Defined. The filing of
pleadings and other papers with the court as required by these rules shall be
made by filing them with the clerk of the court, except that the justice may
permit the papers to be filed with him, in which event he shall note thereon the
filing date and forthwith transmit them to the office of the
clerk.
TIME
(a) Computation. In computing any period of time
prescribed or allowed by these rules, by rules of any inferior court, by order
of court, or by any applicable statute, the day of the act, event, or default
from which the designated period of time begins to run shall not be included.
The last day of the period so computed shall be included unless it is a
Saturday, a Sunday, or a holiday. When the period of time prescribed
or allowed is less than seven days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation. As used in this rule and in
Rule 77
(c), "holiday" is a day established as a holiday by the Chief Justice of the Kosrae
State Court.
(b) 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 specific time, the court for cause shown may at any time in its
discretion (1) with or without motion or notice order the period enlarged if
request therefor 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 52(b), 59(b), (d), and (e), and 60(b), except to the extent and under the
conditions stated in them.
(c) Vacant.
(d) For Motions--Affidavits. A written motion, other
than one which may be heard ex parte, and notice of the hearing thereof shall be
served, with a memorandum of points and authorities, not later than 14 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. All motions shall contain
certification by the movant that a reasonable effort has been made to obtain the
agreement or acquiescence of the opposing party and that no such agreement has
been forthcoming.
The party opposing
the motion shall not later than 10 days after the service of the motion upon
him, file and serve responsive papers. When a motion is opposed by
affidavit, the affidavit shall be served with the responsive papers. The
responsive papers shall consist of either (1) a memorandum of points and
authorities, or (2) a written statement that he will not oppose the
motion.
Failure by the
moving party to file the memorandum of points and authorities shall be deemed a
waiver by the moving party of the motion; such failure by the opposing party
shall constitute a consent to the granting of the motion. Upon good cause
shown, the court may permit the parties to proceed without memorandum of points
and authorities.
(e) Additional Time After Service by Mail. Whenever a
party has the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other paper upon him
and the notice or paper is served upon him by mail, 7 days shall be added to the
prescribed period.
III. PLEADINGS AND
MOTIONS
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 reply 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 serve. 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 for
it 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. The requirements of time and for the submission of
memoranda of points and authorities are found in Rule 6(d).
(2) Unless otherwise
ordered by the court, parties must file an original and one copy of all
documents filed with the court pursuant to these rules. The rules
applicable to captions, signing, and other matters of form of pleadings apply to
all motions and other papers provided for by these rules.
(c) Demurrers, Pleas, Etc., Abolished. Demurrers,
pleas, and exceptions for insufficiency of a pleading shall not be
used.
GENERAL RULES OF
PLEADING
(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 to which he
deems himself entitled. Relief in the alternative or of several different
types may be demanded.
(b) Defenses; form of Denials. A party shall state in
short and plain terms his defenses to each claim asserted and shall admit or
deny the averments upon which the adverse party relies. If he is without
knowledge or information sufficient to form a belief as to the truth of an
averment, he shall so state and this has the effect of a denial. Denials
shall fairly meet the substance of the averments denied. When a pleader
intends in good faith to deny only a part or a qualification of an averment, he
shall specify so much of it as is true and material and shall deny only the
remainder. Unless the pleader intends in good faith to controvert all the
averments of the proceeding pleading, he may make his denials as specific
denials of designated averments except such designated averments or paragraph as
he expressly admits; but, when he does so intend to controvert all its
averments, including averments of the grounds upon which the court's
jurisdiction depends, he may do so by general denial subject to the obligations
set forth in Rule 11.
(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, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense. When a party has
mistakenly designated a defense as a counterclaim or a counterclaim as a
defense, the court on terms, if justice so requires, shall treat the pleading as
if there had been a proper designation.
(d) Effect of Failure to Deny. Averments in a
pleading to which a responsive pleading is required, other than those as to the
amount of damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required or
permitted shall be taken as denied or avoided.
(e) Pleading to be Concise and Direct;
Consistency.
(1) Each averment of
a pleading shall be simple, concise, and direct. No technical forms of
pleadings or motions are required.
(2) A party may set forth
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 them if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. A party may
also state as many separate claims or defenses as he has regardless of
consistency and whether based on legal, equitable, or maritime grounds.
All statements shall be made subject to the obligations set forth in Rule
11.
(f)
Construction of Pleadings.
All pleadings shall be so construed as to do substantial
justice.
PLEADING SPECIAL MATTERS
(a)
Capacity. It is not
necessary to aver the capacity of 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 in a representative capacity,
he shall do so by specific negative averment, which shall include such
supporting particulars as are peculiarly within the pleader's
knowledge.
(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 performances 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 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.
(h)
Vacant.
Rule 10.
FORM OF
PLEADINGS
(a)
Caption: Names of
Parties. Every pleading shall contain a caption setting forth the name
of the court, the title of the action, the file number, and a designation 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 on each side with an appropriate indication of other
parties.
(b)
Paragraphs; Separate
Statements. All averments of claim or defense shall be made in
numbered paragraphs, the contents of each of which shall be limited as far as
practicable to a statement of a single set of circumstances; and a paragraph may
be referred to by number in all succeeding pleadings. Each claim founded
upon a separate transaction or occurrence and each defense other than denials
shall be stated in a separate count or defense whenever a separation facilitates
the clear presentation of the matters set forth.
(c)
Adoption by Reference;
Exhibits. Statements in a pleading may be adopted by reference in a
different part of the same pleading or in another pleading or in any motion.
A copy of any written instrument which is an exhibit to a pleading is a
part thereof for all purposes.
SIGNING AND
PLEADINGS
Every pleading of a party
represented by an attorney or trial counselor shall be signed by at least one
attorney or trial counselor of record in his individual name, whose address
shall be stated. A party who is not represented by an attorney or trial
counselor shall sign his pleading and state his address. Except when
otherwise specifically provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. The rule in equity that the
averments of an answer under oath must be overcome by the testimony of two
witnesses or of one witness sustained by corroborating circumstances is
abolished. The signature of an attorney or trial counselor constitutes a
certificate by him that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground to support it; and that
it is not interposed for delay. If a pleading is not signed or is signed
with intent to defeat the purpose of this rule, it may be stricken as shame and
false and that action may proceed as though the pleading had not been served.
For a willful violation of this rule an attorney or trial counselor may be
subjected to appropriate disciplinary action. Similar action may be taken
if scandalous or indecent matter is inserted.
DEFENSES AND OBJECTIONS-WHEN AND HOW PRE-
SENTED-BY PLEADING OR MOTION-MOTION
FOR JUDGMENT ON THE
PLEADINGS
(a)
When Presented. A
defendant shall serve his answer within 20 days after the service of the summons
and complaint upon him, except when service is made under rule
4(e) and a different time is prescribed in the order of court under the
statute of the State of Kosrae or in a rule of court. A party served with
a pleading stating a cross-claim against him shall serve an answer thereto
within 20 days after the service upon him. The plaintiff shall serve his
reply to a counterclaim in the answer within 20 days after service of the answer
or, if a reply is ordered by the court, within 20 days after service of the
order, unless the order otherwise directs.
The service of a motion
permitted under this rule alters these periods of time as follows, unless a
different time is fixed by order of the court: (1) if the court
denies the motion or postpones its disposition until the trial on the merits,
the responsive pleading shall be served within 10 days after notice of the
court's action; (2) if the court grants a motion for a more definite
statement the responsive pleadings shall be served within 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, (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, he may assert at the trial any defense in law or fact to
that claim for relief. If, on a motion asserting the defense numbered (6)
to dismiss for failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule
56.
(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 56, and
all parties shall be given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
(d)
Preliminary Hearings.
The defenses specifically enumerated (1) - (7) in subdivision (b) of this
rule, whether made in a pleading or by motion, and the motion for judgment
mentioned in subdivision (c) of this rule shall be heard and determined before
trial on application of any party, unless the court orders that the hearing and
determination thereof be deferred until the trial.
(e)
Motion for More Definite
Statement. If a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, he may move for a more definite statement before
interposing his responsive pleading. The motion shall point out the
defects complained of and the details desired. If the motion is granted
and the order of the court is not obeyed within 10 days after notice of the
order within such other times 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 made by a party before responding to a pleading or, if no responsive
pleading is permitted by these rules, upon motion made by a party within 20 days
after the service of the pleading upon him or upon the court's own initiative at
any time, the court may order stricken from any pleading any insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter.
(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 him. If a
party makes a motion under this rule but omits therefrom any defense or
objection then available to him which this rule permits to be raised by motion,
he shall not thereafter make a motion based on the defense or objection so
omitted, except a motion as proved in subdivision (h) (2) 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 subdivision (g), or (B) if it is
neither made by motion under this rule nor included in a responsive pleading or
an amendment thereof permitted by Rule 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 an
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 his claim by attachment or other process by which the court
did not acquire jurisdiction to render a personal judgment on that claim, and
the pleader is not stating any counterclaim under this Rule
13.
(b)
Permissive Counterclaims.
A pleading may state as a counterclaim any claim against an opposing party
not arising out of the transaction or occurrence that is the subject matter of
the opposing party's claim.
(c)
Counterclaim Exceeding Opposing
Claim. A counterclaim may or may not diminish or defeat the recovery
sought by the opposing party. It may claim relief exceeding in amount or
different in kind from that sought in the pleading of the opposing
party.
(d)
Counterclaim Against the State of
Kosrae. These rules shall not be construed to enlarge beyond the
limits now fixed by the law the rights to assert counterclaims or to claim
credits against the State of Kosrae or an officer or agency
thereof.
(e)
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.
(f)
Omitted Counterclaim.
When a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice required, he may by leave of
court set up the counterclaim by amendment.
(g)
Cross-Claim Against Co-Party.
A pleading may state as a cross-claim any claim by one party against a
co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein or relating to any
property that is the subject matter of the original action. Such
cross-claim may include a claim that a party against whom it is asserted is or
may be liable to the cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
(h) Joinder of Additional Parties. Persons other than
those made parties to the original action may be made parties to a counterclaim
or cross-claim in accordance with the provisions of Rules 19 and 20.
(i) Separate Trials; Separate Judgments. If the court
orders separate trials as provided Rule 42(b), judgment on a
counterclaim or cross-claim may be rendered in accordance with the terms of Rule
54(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 him for all or
part of the plaintiff's claim against him. The third-party plaintiff need
not obtain leave to make the service if he files the third-party complaint not
later than 10 days after he serves his original answer. Otherwise he must obtain
leave on motion upon the notice to all parties to the action. The person
served with the summons and third-party complaint, hereinafter called the
third-party plaintiff's claim as provided in Rule 12 and his
counterclaims against the third-party plaintiff and cross-claims against the
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 defendant arising out of the transaction or occurrence that is the
subject matter of the plaintiff's claim against the third-party plaintiff, and
the third-party defendant thereupon shall assert his defenses as provided in Rule
12 and his counterclaims and cross-claims as provided in Rule
13. Any party may move to strike the third-party claim or for its
severance or separate trial. A third-party defendant may proceed under
this rule against any person not a party to the action who is or may be against
any person not a party to the action who is or may be liable to him for all or
part of the claim made in the action against the third-party
defendant.
(b)
When Plaintiff May Bring in
Third-Party. When a counterclaim is asserted against a plaintiff, he
may cause a third-party to be brought in under circumstances which under this
rule would entitle a defendant to do so.
AMENDED AND SUPPLEMENTAL
PLEADINGS
(a)
Amendments. A party may
amend his pleading once as a matter of course at any time before a responsive
pleading is served or, if the pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial calendar, the party
may so amend it at any time within 20 days after it is served. Otherwise a
party may amend his pleading only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so requires. A
party shall plead in response to an amended pleading within the time remaining
for response to the original pleading or within 10 days after service of the
amended pleading, whichever period may be the longer, unless the court otherwise
orders.
(b)
Amendments to Conform to the
Evidence. When issues not raised by the pleadings are tried by express
or implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment of the pleading as
may be necessary to cause them to conform to the evidence and to raise these
issues may be made upon motion of any party at any time, even after judgment;
but failure so to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that is not within
the issues made by the pleadings, the court may allow the pleadings to be
amended and shall do so freely when the presentation of the merits of the action
will be subserved thereby and the objecting party fails to satisfy the court
that the admission of such evidence would prejudice him in maintaining his
action or defense upon the merits. The court may grant a continuance to
enable the objecting party to meet such evidence.
(c)
Relation Back of Amendments.
Whenever the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, the amendment relates back if the foregoing
provision is satisfied and, within the period provided by law for commencing the
action against him, the party to be brought in by amendment (1) has received
such notice of the institution of the action that he will not be prejudiced in
maintaining his defense on the merits, and (2) knew or should have known that,
but for a mistake concerning the identity of the proper party, the action would
have been brought against him.
The delivery or mailing
of process to the State Attorney of the State of Kosrae or an agency or officer
who would have been a proper defendant if named, satisfies the requirements of
clauses (1) and (2) hereof with respect to the government of the State of Kosrae
or any agency or officer thereof to be brought into the action as a
defendant.
(d)
Supplemental Pleadings.
Upon motion of a party the court may, upon reasonable notice and upon such
terms as are just, permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the date of the
pleading sought to be supplemented. Permission may be granted even though the
original pleading is defective in its statement of a claim for relief or
defense. If the court deems it advisable that the adverse party plead to
the supplemental pleading, it shall so order, specifying the time
therefor.
Rule 16.
PRE-TRIAL PROCEDURE:
FORMULATING ISSUES
In any action, the court may
in its discretion direct the attorneys or trial counselors for the parties to
appear before it for a conference to consider:
(1) The
simplification of the issues;
(2) The
necessity or desirability of amendments to the pleadings;
(3) The
possibility of obtaining admissions of fact and of documents which will avoid
unnecessary proof;
(4) The
possibility of resolving the dispute in accordance with state traditions and
customs;
(5) Such
other matters as may aid in the disposition of the action.
The court shall make an
order which recites the action taken at the conference, the amendments allowed
to the pleadings, and the agreements made by the parties as to any of the
matters considered, and which limits the issues for trial to those not disposed
of by admissions or agreements of counsel; and such order when entered controls
the subsequent course of the action, unless modified at the trial to prevent
manifest injustice.
IV.
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, or a party authorized by statute may sue in his own name
without joining with him the party for whose benefit the action is brought; and
when a statute of the State of Kosrae so provides, an action for the use or
benefit of another shall be brought in the name of the State of Kosrae. 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)
Vacant. (Capacity to
Sue or Be Sued).
(c)
Infants or Incompetent
Persons. Whenever an infant or incompetent person has a
representative, such as a general guardian, committee, conservator, or other
like fiduciary, the representative may sue or defend on behalf of the infant or
incompetent person. If an infant or incompetent person does not have a
duly appointed representative he may sue by his next friend or by a guardian ad
litem. The court shall appoint a guardian ad litem for an infant or
incompetent person not otherwise represented in an action or shall make such
other order as it deems proper for the protection of the infant or incompetent
person.
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, equitable, or maritime, as he 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 him, 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 his absence
complete relief cannot be accorded among those already parties, or (2) he claims
an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may (i) as a practical matter impair or
impede his ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of his claimed
interest. If he has not been so joined, the court shall order that he be
made party. If he should join as a plaintiff but refuses to do so, he may
be made a defendant, or, in proper case, an involuntary plaintiff. If the
joined party objects to venue and his joinder would render the venue of the
action improper, he shall be dismissed from the action.
(b)
Determination by Court Whenever
Joinder not Feasible. If a person as described in subdivision (a)
(1) - (2) hereof cannot be made a party, the court shall determine
whether in equity and good conscience the action should proceed among the
parties before it, or should be dismissed, the absent person being thus regarded
as indispensable. The factors to be considered by the court include:
first, to what extent a judgment rendered in the person's absence might be
prejudicial to him or those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of relief, or other
measures, the prejudice can be lessened or avoided; third, whether a judgment
rendered in the person's absence will be adequate; fourth, whether the plaintiff
will have an adequate remedy if the action is dismissed for
nonjoinder.
(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 subdivision (a)
(1) - (2) hereof who are not joined, and the reasons why they are not
joined.
(d)
Exception of Class Actions.
This rule is subject to the provisions of Rule
23.
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 (and any vessel, cargo or other property subject to
admiralty process in rem) 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 he asserts
no claim against him, and may order separate trials or make other orders to
prevent delay or prejudice.
Rule 21.
MISJOINDER AND NON-JOINDER OF
PARTIES
Misjoinder of parties is
not ground for dismissal of an action. Parties may be dropped or added by
order of the court on motion of any party or of its own initiative at any stage
of the action and on such terms as are just. Any claim against a party may
be severed and proceeded with separately.
Rule 22.
INTERPLEADER
(a)
Persons having claims against the plaintiff may be
joined as defendants and required to interplead when their claims are such that
the plaintiff is or may be exposed to double or multiple liability. It is
not ground for objection to the joinder that the claims of the several claimants
or the titles on which their claims depend do not have a common origin or are
not identical but are adverse to and independent of one another, or that the
plaintiff avers that he is not liable in whole or in part to any or all of the
claimants. A defendant exposed to similar liability may obtain such
interpleader by way of cross-claim or counterclaim. The provisions of this
rule supplement and do not in any way limit the joinder of parties permitted in
Rule 20.
(b)
Vacant.
Rule 23.
CLASS ACTIONS
(a)
Prerequisites to a Class
Action. One or more members of a class may sue or be sued as
representative parties on behalf of all only if (1) the class is so
numerous that joinder of all members is impracticable, (2) there are
questions of law or fact common to the class, (3) the claims or
defenses of the representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
(b)
Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:
(1) The prosecution of
separate actions by or against individual member of the class would create a
risk of
(A)
Inconsistent or varying adjudications with respect to
individual members of the class, which would establish incompatible standards of
conduct for the party opposing the class, or
(B)
Adjudication 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 adjudication or substantially impair or impede
their ability to protect their interests; or
(2) the
party opposing the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole;
or
(3) the
court finds that the question 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 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 Action.
(1) As
soon as practicable after the commencement of an action brought as a class
action, the court shall determine by order whether it is to be so maintained. An
order under this subdivision may be conditional, and may be altered or amended
before the decision on the merits.
(2) In
any class action maintained under subdivision (b) (3), the court shall direct to
the members of the class the best notice practicable under the circumstances,
including individual notice to all members who can be identified through
reasonable effort. The notice shall advise each member that (A) the
court will exclude him from the class if he so requests by a specified
date; (B) the judgment, whether favorable or not, will include all
members who do not request exclusion; and (C) any member who does not request
exclusion may, if he desires, enter an appearance through his
counsel.
(3) The
judgment in an action maintained as a class action under subdivision (b)(1) or
(b) (2), whether or not favorable to the class, shall include and describe those
whom the court finds to be members of the class. The judgment in an action
maintained as a class action under subdivision (b)(3), whether or not favorable
to the class, shall include and specify or describe those to whom the notice
provided in subdivision (c)(2) was directed, and who have not requested
exclusion, and whom the court finds to be members of the class.
(4) When
appropriate (A) an action may be brought or maintained as a class action with
respect to particular issues, or (B) a class may be divided into subclasses and
each subclass treated as a class, and the provisions of this rule shall then be
construed and applied accordingly.
(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 as to representation of absent
persons, and that the action proceed accordingly; (5) dealing with similar
procedural matters. The orders may be combined with an order under Rule
16, and may be altered or amended as may be desirable from time to
time.
(e)
Dismissal or Compromise.
A class action shall not be dismissed or compromised without the approval
of the court, and notice of the proposed dismissal or compromise shall be given
to all members of the class in such manner as the court directs.
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 (1) that the plaintiff was a
shareholder or member at the time of the transaction of which he complains or
that his share or membership thereafter devolved on him by operation of law, and
(2) that the action is not a collusive one to confer jurisdiction on the Kosrae
State 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 he desires from the directors or comparable authority and, if
necessary from the shareholders or members, and the reasons for his failure to
obtain the action 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 associated 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 a statute of the State of Kosrae confers an unconditional right
to intervene; or (2) when the application claims an interest relating to
the property or transaction which is the subject of the action and he is so
situated that the disposition of the action may as a practical matter impair or
impede his ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
(b)
Permissive Intervention.
Upon timely application anyone may be permitted to intervene in an action:
(1) When a statute of the State of Kosrae 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 statute or executive order
administered by a federal or state governmental officer or agency or upon any
regulation, order, requirement or agreement issued or made pursuant to the
statute or executive order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its discretion the
court shall consider whether the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
(c)
Procedure. A person
desiring to intervene shall serve a motion to intervene upon the parties as
provided in 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 a statute of the State of Kosrae gives a right to intervene.
When the constitutionality of an Act of the Kosrae State Legislature
affecting the public interest is drawn in question in any action to which the
State of Kosrae or an officer, agency, or employee thereof is not a party, the
court shall notify the State Attorney of the State of Kosrae.
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 a party or by the successors or
representatives of the deceased party and, together with the notice of hearing,
shall be served on the parties in the manner provided in Rule
5 and upon persons not parties in the manner provided in Rule
4 for the service of a summons. Unless the motion for substitution
is made not later than 90 days after the death is 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 one of 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
subdivision (a) of this rule may allow the action to be continued by or against
his representative.
(c)
Transfer of Interest.
In case of any transfer of interest, the action may be continued by or
against the original party, unless the court upon motion directs the person whom
the interest is transferred to be substituted in the action or joined with the
original party. Service of the motion shall be made as provided in
subdivision (a) of this rule.
(d)
Public Officers; Death or
Separation from Office.
(1)
When a public officer is a party to an action in his
official capacity and during its pendency dies, resigns, or otherwise ceases to
hold office, the action does not abate and his successor is automatically
substituted as a party. Proceedings following the substitution shall be in the
name of the substituted party, but any misnamer not affecting the substantial
rights of the parties shall be disregarded. An order of substitution may
be entered at any time, but the omission to enter such an order shall not affect
the substitution.
(2)
When a public officer sues or is sued in his official
capacity, he may be described as a party by his official title rather than by
name; but the court may require his name to be added.
V. DEPOSITIONS AND
DISCOVERY
Rule 26.
GENERAL PROVISIONS GOVERNING
DISCOVERY
(a)
Discovery Methods.
Parties may obtain discovery by one or more of the following methods:
depositions upon oral examination or written questions; written
interrogatories; production of documents or things or permission to enter upon
land or other property, for inspection and other purposes; physical and mental
examinations; and requests for admission. Unless the court orders
otherwise under subdivision (c) of this rule, the frequency of use of these
methods is not limited.
(b)
Scope of Discovery.
Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as
follows:
(1)
In General. Parties
may obtain discovery regarding any matter, not privileged, which is relevant to
the subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense of
any other party, including the existence, description, nature, custody,
condition and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable matter.
It is not ground for objection that the information sought will be
inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
(2)
Insurance Agreements.
A party may obtain discovery of the existence and contents of any
insurance agreement under which any person carrying on an insurance business may
be liable to satisfy part or all of a judgment which may be entered in the
action or to indemnify or reimburse for payments made to satisfy the judgment.
Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial. For purposes of this
paragraph, an application for insurance shall be treated as part of an insurance
agreement.
(3)
Trial Preparation:
Materials. Subject to the provisions of subdivision (b)(4) of this
rule, a party may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and prepared in anticipation
of litigation or for trial by or for another party or by or for that other
party's representative (including his attorney, trial counselor, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the preparations of
his case and that he is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of such
materials when the required showing has been made, the court shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney, trial counselor, or other representative of a party
concerning the litigation.
A
party may obtain without the required showing a statement concerning the action
or its subject matter previously made by that party. Upon request, a
person not a party may obtain without the required showing a statement
concerning the action or its subject matter previously made by that person.
If the request is refused, the person may move for a court order.
The provisions of Rule 37(a)(4) apply to the
award of expenses incurred in relation to the motion. For purposes of this
paragraph, a statement previously made is (A) a written statement signed or
otherwise adopted or approved by the person making it, or (B) a stenographic,
mechanical, electrical, or other recording, or a transcription thereof, which is
substantially verbatim recital of an oral statement by the person making it and
contemporaneously recorded.
(4)
Trial Preparation Experts.
Discovery of facts known and opinions held by experts, otherwise
discoverable under the provisions of subdivision (b)(1) of this rule and
acquired or developed in anticipation of litigation or for trial, may be
obtained only as follows:
(A)(i)
A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an expert witness
at trial, to state the subject matter on which the expert is expected to
testify, and to state the substance of the facts and opinions to which the
expert is expected to testify and a summary of the grounds for each opinion.
(ii) Upon motion, the court may order further discovery of other
means, subject to such restrictions as to scope and such provisions, pursuant to
subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court
may deem appropriate.
(B)
A party may discover facts known or opinions held by an expert who
has been retained or specially employed by another party in anticipation of
litigation or preparation for trial and who is not expected to be called as a
witness at trial, only as provided in Rule 35(b) or upon a showing of
exceptional circumstances under which it is impracticable for the party seeking
discovery to obtain facts or opinions on the same subject by other
means.
(C)
Unless manifest injustice would result, (i) the court shall require
that the party seeking discovery pay the expert a reasonable fee for time spent
in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of
this rule; and (ii) with respect to discovery obtained under subdivision
(b)(4)(B) of this rule the court shall require, the party seeking discovery to
pay the other party a fair portion of the fees and expenses reasonably incurred
by the latter party in obtaining facts an opinions from the
expert.
(c)
Protective Orders.
Upon motion by a party or by the person from whom discovery is sought, and
for good cause shown, the court in which the action is pending or alternatively,
on matters relating to a deposition, the court where the deposition is to be
taken may make any order which justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense, including
one or more of the following: (1) that the discovery not be had; (2) that
the discovery may be had only on specified terms and conditions, including a
designation of the time or place; (3) that the discovery may be had only by a
method of discovery other than that selected by the party seeking discovery, (4)
that certain matters not be inquired into, or (5) that discovery be conducted
with no one present except persons designated by the court; (6) that a
deposition after being sealed be opened only by order of the court; (7) that a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way; (8) that
the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.
If the motion for a
protective order is denied in whole or in part, the court may, on such terms and
conditions as are just, order that any party or person provide or permit
discovery. The provisions of Rule 37(a)(4) apply to the
award of expenses incurred in relation to the motion.
(d)
Sequence and Timing of
Discovery. Unless the court upon motion, for the convenience of
parties and witnesses and in the interests of justice, orders otherwise, methods
of discovery may be used in any sequence and the fact that a party is conducting
discovery, whether by deposition or otherwise, shall not operate to delay any
other party's discovery.
(e)
Supplementation of
Responses. A party who has responded to a request for discovery with a
response that was complete when made is under no duty to supplement his response
to include information thereafter acquired, except as follows:
(1)
A party is under a duty seasonably to supplement his
response with respect to any question directly addressed to (A) the identity and
location of persons having knowledge of discoverable matters, and (B) the
identify of each person expected to be called as an expert witness at trial, the
subject matter on which he is expected to testify, and the substance of his
testimony.
(2)
A party is under a duty seasonably to amend a prior
response if he obtains information upon the basis of which (A) he knows that the
response was incorrect when made, or (B) he knows that the response though
correct when made is no longer true and the circumstances are such that a
failure to amend the response is in substance a knowing
concealment.
(3)
A duty to supplement responses may be imposed by order
of the court, agreement of the parties, or at any time prior to trial through
new requests for Supplementation of prior responses.
(f)
Discovery Conference.
At any time after commencement of an action the court
may direct the attorneys or trial counselors for the parties to appear before it
for a conference on the subject of discovery. The court shall do so upon
motion by the attorney or trial counselor for any party if the motion
includes:
(1)
A statement of the issues as they then
appear;
(2)
A proposed plan and schedule of
discovery;
(3)
Any limitations proposed to be placed on
discovery;
(4)
Any other proposed orders with respect to discovery;
and
(5)
A statement showing that the attorney or trial counselor
making the motion has made a reasonable effort to reach agreement with opposing
attorneys or trial counselors on the matters set forth in the motion. Each
party and his attorney or trial counselor are under a duty to participate in
good faith in the framing of a discovery plan if a plan is proposed by the
attorney or trial counselor for any party. Notice of the motion shall be
served on all parties objections or additions to matters set forth in the motion
shall be served not later than 10 days after service of the motion.
Following
the discovery conference, the court shall enter an order tentatively identifying
the issues for discovery purposes, establishing a plan and schedule for
discovery, setting limitations on discovery, if any; and determining such other
matters, including the allocation of expenses, as are necessary for the proper
management of discovery in the action. An order may be altered or amended
whenever justice so requires.
Subject to
the right of party who properly moves for a discovery conference to prompt
convening of the conference, the court may combine the discovery conference with
a pretrial conference authorized by Rule 16.
Rule 27.
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL
(a)
Before Action.
(1)
Petition. A person who
desires to perpetuate his own testimony or that of another person regarding any
matter that may be cognizable in any court of the Federated States of Micronesia
may file a verified petition in the State Court of Kosrae. The petition
shall be entitled in the name of the petitioner and shall show: (1) that the
petitioner expects to be a party to an action cognizable in a court of the
Federated States of Micronesia but is presently unable to bring it or cause it
to be brought, (2) the subject matter of the expected action and his interest
therein, (3) the facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it, (4) the names or a
description of the persons he expects will be adverse parties and their
addresses so far as known, and (5) the names and addresses of the persons
to be examined and the substance of the testimony which he expects to elicit
from each, and shall ask for an order authorizing the petitioner to take the
depositions of the persons to be examined named in the petition, for the purpose
of perpetuating their testimony.
(2)
Notice and Service. The
petitioner shall thereafter serve a notice upon each person named in the
petition as an expected adverse party, together with a copy of the petition,
stating that the petitioner will apply to the court, at a time and place named
therein, for the order described in the petition. At least 20 days before
the date of hearing the notice shall be served either within or without the
district or state in the manner provided in Rule 4(d) for service of
summons; but if such service cannot with due diligence be made upon any expected
adverse party named in the petition, the court may make such order as is just
for service by publication or otherwise, and shall appoint, for persons not
served in the manner provided in Rule 4(d), an attorney or trial counselor who
shall represent them, and, in case they are not otherwise represented, shall
cross-examine the deponent. If any expected adverse party is a minor or
incompetent the provisions of Rule 17 (c)
apply.
(3)
Order and Examination.
If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an order designating or
describing the persons whose depositions may be taken and specifying the subject
matter of the examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be taken
in accordance with these rules; and the court may make orders of the character
provided for by Rule 34 and 35. For the purpose of
applying these rules to depositions for perpetuating testimony, each reference
therein to the court in which the action is pending shall be deemed to refer to
the court in which the petition for such deposition was filed.
(4)
Use of Deposition. If
a deposition to perpetuate testimony is taken under these rules or if, although
not so taken, it would be admissible in evidence in the courts of the state in
which it is taken, it may be used in any action involving the same subject
matter subsequently brought in the State Court of Kosrae, in accordance with the
provision of Rule 32(a).
(b)
Pending Appeal. If an
appeal has been taken from a judgment of the State Court of Kosrae or before the
taking of an appeal if the time therefor has not expired, the court in which the
judgment was rendered may allow the taking of the depositions of witnesses to
perpetuate their testimony for use in the event of further proceedings in the
Kosrae State Court. In such case the party who desires to perpetuate the
testimony may make a motion in the Kosrae State court for leave to take the
depositions, upon the same notice and service thereof as if the action was
pending in the Kosrae State Court. The motion shall show (1) the names and
addresses of persons to be examined and the substance of the testimony which he
expects to elicit from each; (2) the reasons for perpetuating their testimony.
If the court finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order allowing the
depositions to be taken and may make orders of the character provided for by
Rules 34 and 35, and thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these rules for
depositions taken in action pending in the Kosrae State Court.
(c)
Perpetuation by Action.
This rule does not limit the power of a court to entertain an action to
perpetuate testimony.
Rule 28.
PERSONS BEFORE WHOM DEPOSITIONS MAY
BE TAKEN
(a) Within the State of Kosrae and the Rest of the Federated
States of Micronesia. Within the State of Kosrae and the rest of the
Federated States of Micronesia depositions shall be taken before an officer
authorized to administer oaths by the laws of the State of Kosrae or of the
state where the examination is held, or before a person appointed by the court
in which the action is pending. A person so appointed has power to
administer oaths and take testimony. The term officer as used in Rules 30,
31, and 32 includes a person appointed by the court or designated by parties
under Rule 29.
(b)
In Foreign Countries.
In a foreign country, depositions may be taken (1) on notice before a
person authorized to administer oaths in the place in which the examination is
held, either by the law thereof or by the law of the State of Kosrae or (2)
before a person commissioned by the court, and a person so commissioned shall
have the power by virtue of his commission to administer any necessary oath and
take testimony, or (3) pursuant to a letter rogatory. A commission or a
letter rogatory shall be issued on application and notice and on terms that are
just and appropriate. It is not requisite to the issuance of a commission or a
letter rogatory that the taking of the deposition in any other manner is
impracticable or inconvenient; and both a commission and a letter rogatory may
be issued in proper cases. A notice or commission may designate the person
before whom the deposition is to be taken either by name or descriptive title.
A letter rogatory may be addressed "To the Appropriate Authority in (here
name the country)." Evidence obtained in response to a letter rogatory
need not be excluded merely for the reason that it is not a verbatim transcript
or that the testimony was not taken under oath or for any similar departure from
the requirements for depositions taken within the State of Kosrae under these
rules.
(c)
Disqualification for
Interest. No deposition shall be taken before a person who is a
relative or employee or attorney or counsel of any of the parties, or is a
relative or employee of such attorney or counsel, or is financially or otherwise
interested in the action.
Rule 29.
STIPULATIONS REGARDING DISCOVERY
PROCEDURE
Unless the court orders
otherwise, the parties may by written stipulation (1) provide that depositions
may be taken before any person, at any time or place, upon any notice, and in
any manner and when so taken may be used like other depositions, and (2) modify
the procedure provided by these rules for other methods of discovery, except
that stipulations extending the time provided in Rules 33, 34, and 36 for
responses to discovery may be made only with the approval of the
court.
Rule 30.
DEPOSITIONS UPON ORAL
EXAMINATION
(a)
When Depositions May be
Taken. After commencement of the action, any party may take the
testimony of any person, including a party, by deposition upon oral examination.
Leave of court, granted with or without notice, must be obtained only if
the plaintiff seeks to take a deposition prior to the expiration of 30 days
after service of the summons and complaint upon any defendant or service made
under Rule 4(e), except that leave is not required (1) if a defendant has served
a notice of taking deposition or otherwise sought discovery, or (2) if special
notice is given as provided in subdivision (b)(2) of this rule. The
attendance of witnesses may be compelled by subpoena as provided in Rule
45. The deposition of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes.
(b)
Notice of Examination; General
Requirements; Special Notice; Non-Stenographic Recording; Production of
Documents and Things; Deposition of Organization.
(1)
A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known,
and, if the name is not known, a general description sufficient to identify him
or the particular class or group to which he belongs. If a subpoena duces
tecum is to be served on the person to be examined, the designation of the
materials to be produced as set forth in subpoena shall be attached to or
included in the notice.
(2)
Leave of the court is not required for the taking of a
deposition by plaintiff if the notice (A) states that the person to be examined
is about to go out of the state or off of the island where the action is pending
or is about to go out of the Federated States of Micronesia, or is bound on a
voyage to sea, and will be unavailable for examination unless his deposition is
taken before expiration of the 30 day period, and (B) sets forth facts to
support the statement. The plaintiff's attorney or trial counselor shall
sign the notice, and his signature constitutes a certification by him that to
the best of his knowledge, information, and belief the statement and supporting
facts are true. The sanctions provided by Rule 11 are
applicable to the certification.
If a
party shows that after he was served with notice under this subdivision (b)(2)
he was unable through the exercise of diligence to obtain counsel to represent
him at the taking of the deposition, the deposition may not be used against
him.
(3)
The court may for cause shown enlarge or shorten the
time for taking the deposition.
(4)
The parties may stipulate in writing or the court may
upon motion order that the testimony at a deposition be recorded by other than
stenographic means or the court's electronic recording equipment. The
stipulation or order shall designate the person before whom the deposition shall
be taken, the manner of recording, preserving and filing the deposition, and may
include other provisions to assure that the recorded testimony will be accurate
and trustworthy. A party may arrange to have a stenographic transcription, or
transcription from the court's electronic recording equipment, made at his own
expense. Any objections under subdivision (c), any changes made by the
witness, his signature identifying the deposition as his own or the statement of
the officer that is required if the witness does not sign, as provided in
subdivision (e) and the certification of the officer required by subdivision (f)
shall be set forth in a writing to accompany a deposition recorded by
non-stenographic means.
(5)
The notice to a party deponent may be accompanied by a
request made in compliance with Rule 34 for the production of documents and
tangible things at the taking of the deposition. The procedure of Rule 34
shall apply to the request.
(6)
A party may in his notice and in a subpoena name as the
deponent a public or private corporation or a partnership or association or
governmental agency and describe with reasonable particularity the matters
on which examination is requested. In that event, the organization so
named shall designated one or more officers, directors, or managing agents, or
other persons who consent to testify on its behalf, and may set forth, for each
person designated, the matters on which he will testify. A subpoena
shall advise a non-party organization of its duty to make such a designation.
The persons so designated shall testify as to matters known or reasonable
available to the organization. This subdivision (b)(6) does not preclude
taking a deposition by any other procedure authorized in these
rules.
(c)
Examination and
Cross-Examination; Record of Examination; Oath, Objections.
Examination and cross-examination of witnesses may proceed as permitted at
the trial under the provisions of the rules of evidence. The officer
before whom the deposition is to be taken shall put the witness on oath and
shall personally, or by someone acting under his direction and in his presence,
record the testimony of the witness. The testimony shall be taken
stenographically or by the Court's electronic recording equipment, or recorded
by any other means ordered in accordance with subdivision (b)(4) of this rule.
If requested by one of the parties, the testimony shall be transcribed.
All objections made at the time of the examination to the qualifications
of the officer taking the deposition, or to the manner of taking it, or to the
evidence presented, or to the conduct of any party, and any other objection to
the proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections. In
lieu of participating in the oral examination, parties may serve written
questions in a sealed envelope on the party taking the deposition and he shall
transmit them to the officer, who shall propound them to the witness and record
the answers verbatim.
(d)
Motion to Terminate or Limit
Examination. At any time during the taking of the deposition, on
motion of a party or of the deponent and upon a showing that the examination is
being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the action is
pending may order the officer conducting the examination to cease forthwith from
taking the deposition, or may limit the scope and manner of the taking of the
deposition as provided in Rule 26(c). If the order made terminates the
examination, it shall be resumed thereafter only upon the order of the court.
Upon demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make a motion for an
order. The provisions of Rule 37(a)(4) apply to the award of expenses
incurred in relation to the motion.
(e)
Submission to Witness; Changes;
Signing. When the testimony is fully transcribed the deposition shall
be submitted to the witness for examination and shall be read to or by him,
unless such examination and reading are waived by the witness and by the
parties. Any changes in form or substance which the witness desires to
make shall be entered upon the deposition by the officer with a statement of the
reasons given by the witness, unless the parties by stipulation waive the
signing or the witness is ill or cannot be found or refuses to sign. If
the deposition is not signed by the witness within 30 days of its submission to
him, the officer shall sign it and state on the record the fact of the waiver or
of illness or absence of the witness or the fact of the refusal to sign together
with the reason if any, given therefore; and the deposition may then be used as
fully as though signed unless a motion to suppress under rule 32(d)(4) the court
holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
(f) Certification and Filing by Officer; Exhibits; Copies;
Notice of Filing.
(1)
The officer shall certify on the deposition that the
witness was duly sworn by him and that the deposition is a true record of the
testimony given by the witness. Unless otherwise ordered by the court, he shall
then securely seal the deposition in an envelope endorsed with the title of the
action and marked "Deposition of (here insert name of witness)" and shall
promptly file it with the court in which the action is pending or send it by
registered or certified mail to the clerk thereof for filing.
Documents
and things produced for inspection during the examination of the witness, shall,
upon the request of a party be marked for identification and annexed to the
deposition and may be inspected and copied by any party, except that if the
person producing the materials desires to retain them he may (A) offer copies to
be marked for identification and annexed to the deposition and to serve
thereafter as originals if he affords to all parties fair opportunity to verify
the copies by comparison with the originals, or (B) offer the originals to be
marked for identification, after giving to each party an opportunity to inspect
and copy them, in which event the materials may then be used in the same manner
as if annexed to the deposition. Any party may move for an order that the
original be annexed to and returned with the deposition to the court, pending
final disposition of the case.
(2)
Upon payment of reasonable charges therefore, the
officer shall furnish a copy of the deposition to any party or to the
deponent.
(3)
The party taking the deposition shall give prompt notice
of its filing to all other parties.
(g)
Failure to Attend or to Serve
Subpoena; Expenses.
(1)
If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another party attends in
person, by attorney, or trial counselor pursuant to the notice, the court may
offer the party giving the notice to pay to such other party the reasonable
expenses incurred by him and his attorney or trial counselor in attending,
including reasonable attorney or trial counselor fees.
(2)
If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him and the witness
because of such failure does not attend, and if another party attends in person,
by attorney or trial counselor because he expects the deposition of that witness
to be taken, the court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by him and his attorney or trial
counselor in attending, including reasonable attorney or trial counselor
fees.
Rule 31.
DEPOSITIONS UPON WRITTEN
QUESTIONS
(a)
Serving Questions; Notice.
After commencement of the action, any party may take the testimony of any
person, including a party, by deposition upon written questions. The
attendance of witnesses may be compelled by the use of subpoena as provided in
Rule 45. The deposition of a person confined in prison may be taken only
be leave of court on such terms as the court prescribes.
A party desiring to
take a deposition upon written questions shall serve them upon every other party
with a notice stating (1) the name and address of the person who is to answer
them, if known, and if the name is not known, a general description sufficient
to identify him or the particular class or group to which he belongs, and (2)
the name or descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions may be
taken of a public or private corporation or a partnership or association or
governmental agency in accordance with the provisions of Rule
30(b)(6).
Within 30 days after
the notice and written questions are served, a party may serve cross questions
upon all other parties. Within 10 days after being served with cross
questions, a party may serve redirect questions upon all other parties. Within
10 days after being served with redirect questions, a party may serve re-cross
questions upon all other parties. The court may for cause shown enlarge or
shorten the time.
(b)
Officer to Take Responses and
Prepare Record. A copy of the notice and copies of all
questions served shall be delivered by the party taking the deposition to the
officer designated in the notice, who shall proceed promptly, in the manner
provided by Rule 30(c), (e), and (f), to take the testimony of the witness in
response to the questions and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the questions received
by him.
(c)
Notice of Filing. When
the deposition is filed, the party taking it shall promptly give notice thereof
to all other parties.
Rule 32.
USE OF DEPOSITIONS IN COURT
PROCEEDINGS
(a)
Use of Depositions. At
the trial or upon the hearing of a motion or an interlocutory proceeding, any
part or all of the deposition, so far as admissible under the rules of evidence
applied as though the witness were then present and testifying, may be used
against any party who was present or represented at the taking of the deposition
or who had reasonable notice thereof, in accordance with any of the following
provisions:
(1)
Any deposition may be used by any party for the purpose
of contradicting or impeaching the testimony of deponent as a witness, or for
any other purpose permitted by the Rules of Evidence
(2)
The deposition of a party or of anyone who at the time
of taking the deposition was an officer, director, or managing agent, or a
person designated under Rule 30(b)(6) or 31 (a) to testify on behalf of a public
or private corporation, partnership or association or governmental agency which
is a party may be used by an adverse party for any purpose.
(3)
The deposition of a witness, whether or not a party, may
be used by any party for any purpose if the court finds: (A) that the
witness is dead; or (B) that the witness is at a greater distance than 100 miles
from the place of trial or hearing, or (C) is out of the Federated States of
Micronesia, unless it appears that the absence of the witness was procured by
the party offering the deposition; or (D) that the party offering the deposition
has been unable to procure the attendance of the witness by subpoena; or (E)
upon application and notice, that such exceptional circumstances exist as to
make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open court, to
allow the deposition to be used.
(4)
If only part of a deposition is offered in evidence by
party, and adverse party may require him to introduce any other part which ought
in fairness to be considered with the part introduced, and any party may
introduce any other parts.
Substitution
of parties pursuant to Rule 25 does not affect the
right to use depositions previously taken; and when an action has been brought
in the State Court of Kosrae and another action involving the same subject
matter is afterward brought between the same parties of their representative or
successors in interest, all depositions lawfully taken and duly filed in the
former action may be used in the latter as if originally taken therefore.
A deposition previously taken may also be used as permitted by the Rules
of Evidence.
(b)
Objections to Admissibility.
Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this
rule, objection may be made at the trial or hearing to receiving in evidence any
deposition or part thereof for any reason which would require the exclusion of
the evidence if the witness were then present testifying.
(c)
Vacant. (Abrogated).
(d)
Effect of Errors and
Irregularities in Depositions.
(1)
As to notice. All
errors and irregularities in the notice for taking a deposition are waived
unless written objection is promptly served upon the party giving the
notice.
(2)
As to Disqualification of
Officer. Objection to taking a deposition because of disqualification
of the officer before whom it is to be taken is waived unless made before the
taking of the deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
(3)
As to Taking of deposition.
(A)
Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are not waived by failure to
make them before or during the taking of the deposition, unless the ground of
the objection is one which might have been obviated or removed if presented at
that time.
(B)
Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or answers, in
the oath or affirmation, or in the conduct of parties, and errors of any kind
which might be obviated, removed, or cured if promptly presented, are waived
unless reasonable objection thereto is made at the taking of the
deposition.
(C)
Objections to the form of written questions submitted
under Rule 31 are waived unless served in writing upon the party propounding
them within the time allowed for serving the succeeding cross or other questions
and within 5 days after service of the last questions
authorized.
(4)
As to Completion and Return of
Deposition. Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified,
sealed, endorsed, transmitted, filed or otherwise dealt with by the officer
under rules 30 and 31 are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable
promptness after such defect is, or with due diligence might have been,
ascertained.
Rule 33.
INTERROGATORIES TO
PARTIES
(a)
Availability; Procedures for
Use. Any party may serve upon any other party written interrogatories
to be answered by the party served or, if the party served is a public or
private corporation or a partnership or association or governmental agency, by
an officer or agent, who shall furnish such information as is available to the
party. Interrogatories may, without leave of court, be served upon the plaintiff
after commencement of the action and upon any other party with or after service
of the summons and complaint upon that party.
Each
interrogatory shall be answered separately and fully in writing under oath,
unless it is objected to, in which event the reasons for objection shall be
stated in lieu of an answer. The answers are to be signed by the person
making them, and the objections signed by the attorney or trial counselor making
them. The party upon whom the interrogatories have been served shall serve a
copy of the answers, and objections, if any, within 30 days after the service of
the interrogatories, except that a defendant may serve answers or objections
within 45 days after service of the summons and complaint upon that defendant.
The court may allow a shorter or longer time. The party submitting
the interrogatories may move for an order under rule 37(a) with respect to any
objection to or other failure to answer an interrogatory.
(b)
Scope; Use at Trial.
Interrogatories may relate to any matters which can be inquired into under
Rule 26(b), and the answers may be used to the extent permitted by the rules of
evidence.
An interrogatory
otherwise proper is not necessarily objectionable merely because an answer to
the interrogatory involves an opinion or contention that relates to fact or the
application of law to fact, but the court may order that such an interrogatory
need not be answered until after designated discovery has been completed or
until a pre-trial conference or other later time.
(c)
Option to Produce Business
Records. Where the answer to an interrogatory may be derived or
ascertained from the business records of the party upon whom the interrogatory
has been served or from an examination, audit, or inspection or such business
records, including a compilation, abstract, or summary thereof, and the burden
of deriving or ascertaining the answer is substantially the same for the party
serving the interrogatory as for the party served, it is a sufficient answer to
such interrogatory to specify the records from which the answer may be derived
or ascertained and to afford to the party serving the interrogatory reasonable
opportunity to examine, audit, or inspect such records and to make copies,
compilations, abstracts, or summaries. A specification shall be in
sufficient detail to permit the interrogating party to locate and to identify,
as readily as can the party served, the records from which the answer may be
ascertained.
Rule 34.
PRODUCTION OF DOCUMENTS AND THINGS
AND
ENTRY UPON LAND FOR INSPECTION AND
OTHER PURPOSES
(a) Scope. Any party may serve on any other party a
request (1) to produce and permit the party making the request, or someone
acting on his behalf, to inspect and copy, any designated documents (including
writings, drawings, graphs, charts, photographs, phono-records, and other data
compilations from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably usable form), or to
inspect any copy, test, or sample any tangible things which constitute or
contain matters within the scope of Rule 26(b) and which are in the
possession, custody, or control of the party upon whom the request is served; or
(2) to permit entry upon designated land or other property in the possession or
control of the party upon whom the request is served for the purpose of
inspection and measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation thereon, within the scope of Rule
26(b).
(b)
Procedure. The request
may, without leave of court, be served upon the plaintiff after commencement of
the action and upon any other party with or after service of the summons and
complaint upon that party. The request shall set forth the items to be
inspected either by individual item or by category, and describe each item and
category with reasonable particularity. The request shall specify a
reasonable time, place, and manner of making the inspection and performing the
related acts.
The party upon whom
the request is served shall serve a written response within thirty days after
the service of the request, except that a defendant may serve a response within
forty-five days after service of the summons and complaint upon that defendant.
The court may allow a shorter or longer time. The response shall
state, with respect to each item or category, that inspection and related
activities will be permitted as requested, unless the request is objected to, in
which event the reasons for objection shall be stated. If objection is
made to part of an item or category, the part shall be specified. The
party submitting the request may move for an order under rule
37(a) with respect to any objection to or other failure to respond to
the request or any part thereof, or any failure to permit inspection as
requested.
A party who produces
documents for inspection shall produce them as they are kept in the usual course
of business or shall organize and label them to correspond with the categories
in the request.
(c)
Persons Not Parties.
This rule does not preclude an independent action against a person not a
party for production of documents and things and permission to enter upon
land.
Rule 35.
PHYSICAL AND MENTAL EXAMINATION OF
PERSONS
(a)
Order for Examination.
When the mental or physical condition (including the blood group) of a
party, or of a person in the custody or under the legal control of a party, is
in controversy, the court in which the action is pending may order the party to
submit to a physical or mental examination by a physician or medical officer to
produce for examination the person in his custody or legal control The
order may be made only on motion for good cause shown and upon notice to the
person to be examined and to all parties and shall specify the time, place,
manner, conditions, and scope of the examination and the person or persons by
whom it is to be made.
(b)
Report of Examining Physician or
medical Officer.
(1)
If requested by the party against whom an order is made
under rule 35(a) or the person examined, the party causing the examination to be
made shall deliver to him a copy of a detailed written report of the examining
physical or medical officer setting out his findings, including results of all
tests made, diagnoses and conclusions, together with like reports of all earlier
examinations of the same condition. After delivery the party causing the
examination shall be entitled upon request to receive from the party against
whom the order is made a like report of any examination, previously or
thereafter made, of the same conditions, unless, in the case of a report of
examination of a person not a party, the party shows that he is unable to obtain
it. The court on motion may make an order against a party requiring
delivery of a report on such terms as are just, and if a physician or medical
officer fails or refuses to make a report the court may exclude his testimony if
offered at the trial.
(2)
by requesting and obtaining a report of the examination
so ordered or by taking the depositions of the examiner, the party examined
waives any privilege he may have in that action or any other involving the
same controversy, regarding the testimony of every other person who has
examined, or may thereafter examine him in respect of the same mental or
physical condition.
(3)
This subdivision applies to examinations made by
agreement of the parties, unless the agreement expressly provides otherwise.
This subdivision does not preclude discovery of a report of an examining
physician or medical officer or the taking of a deposition of the physician or
medical officer in accordance with the provisions of any other
rule.
Rule 36.
REQUEST FOR
ADMISSION
(a)
Request for Admission.
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any matters
within the scope of Rule 26(b) set forth in the request that relate to
the statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have been
or are otherwise furnished or made available for inspection and copying.
The request may, without leave of court, be served upon the plaintiff
after commencement of the action and upon any other party with or after service
of the summons complaint upon that party.
Each matter of which
an admission is requested shall be separately set forth. The matter is admitted
unless, within 30 days after service of the request, or within such shorter or
longer time as the court may allow, the party to whom the request is directed
serves upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party, his attorney or trial counselor,
but unless the court shortens the time, a defendant shall not be required to
serve answers or objections before the expiration of 45 days after service of
the summons and complaint upon him. If objection is made, the reasons
therefore shall be stated. The answer shall specifically deny the matter or set
forth in detail the reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of the requested
admission, and when good faith requires that a party qualify his answer or deny
only a part of the matter of which an admission is requested, he shall specify
so much of it as is true and qualify or deny the remainder. An answering party
may not give lack of information or knowledge as a reason for failure to admit
or deny unless he states that he has made reasonable inquiry and that the
information known or readily obtainable by him is insufficient to enable him to
admit or deny. A party who considers that a matter of which an admission has
been requested presents a genuine issue for trial may not, on that ground alone,
object to the request; he may, subject to the provisions of Rule 37(c), deny the
matter or set forth reasons why he cannot admit or deny it.
The party who has
requested the admissions may move to determine the sufficiency of the answers or
objections. Unless the court determines that no objection is justified, it
shall order that an answer be served. If the court determines that an
answer does not comply with requirements of this rule, it may order either that
the matter is admitted or that an amended answer be served. The court may, in
lieu of these orders, determine that final disposition of the request be made at
a pre-trial conference or at a designated time prior to trial. The provisions of
Rule 37(a) (4) apply to the award of expenses
incurred in relation to the motion.
(b)
Effect of Admission.
Any matter admitted under this rule is conclusively established unless the
court on motion permits withdrawal or amendment of the admission. Subject
to the provisions of Rule 16 governing amendment of a pre-trial order,
the court may permit withdrawal or amendment when the presentation of the merits
of the action will be sub-served thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment will prejudice
him in maintaining his action or defense on the merits. Any admission made
by a party under this rule is for the purpose of the pending action only and is
not an admission by him for any other purpose nor may it be used against him in
any other proceeding.
Rule 37.
FAILURE TO MAKE DISCOVERY:
SANCTIONS
(a)
Motion for Order
Compelling Discovery. A party, upon reasonable notice to other
parties and all persons affected thereby, may apply for an order compelling
discovery as follows:
(1) Appropriate Court. An application for an order to
a party may be made to the court in which the action is pending. An
application for an order to a deponent who is not a party shall be made to the
court in the state where the deposition is being taken.
(2)
Motion. If a deponent
fails to answer a question propounded or submitted under rules 30 or 31, or a corporation or other
entity fails to make a designation under Rules 30(b)(6) or 31(a), or a party
fails to answer an interrogatory submitted under rule 33, or if a
party, in response to a request for inspection submitted under Rule
34, fails to respond that inspection will be permitted as requested or
fails to permit inspection as requested, the discovering party may move for an
order compelling an answer, or a designation, or an order compelling inspection
in accordance with the request. When taking a deposition on oral
examination, the proponent of the question may complete or adjourn the
examination before he applies for an order.
If
the court denies the motion in whole or in part, it may make such protective
order as it would have been empowered to make on a motion made pursuant to rule
26(c).
(3)
Evasive or Incomplete
answer. For purposes of this subdivision an evasive or incomplete
answer is to be treated as a failure to answer.
(4)
Award of Expenses of Motion.
If the motion is granted, the court shall, after opportunity for hearing,
require the party or deponent whose conduct necessitated the motion or the
party, attorney, or trial counselor advising such conduct, or both of them, to
pay to the moving party the reasonable expenses incurred in obtaining the order,
including attorney or trial counselor fees, unless the court finds that the
making of the motion was substantially justified or that other circumstances
make an award of expenses unjust.
If the
motion is denied, the court shall, after opportunity for hearing, require the
moving party, the attorney or the trial counselor advising the motion or both of
them to pay to the party or deponent who opposed the motion the reasonable
expenses incurred in opposing the motion, including attorney or trial counselor
fees, unless the court finds that the making of the motion was substantially
justified or that other circumstances make an award of expenses
unjust.
If
the motion is granted in part and denied in part, the court may apportion the
reasonable expenses incurred in relation to the motion among the parties and
persons in a just manner.
(b)
Failure to Comply With
Order.
(1)
Sanctions by court in State
Where Deposition Is Taken. If a deponent fails to be sworn or to
answer a question after being directed to do so by the Court in the state in
which the deposition is being taken, the failure may be considered a contempt of
that court.
(2)
Sanctions by Court in Which
Action Is Pending. If a party or an officer, director, or managing
agent of a party or a person designated under Rule 30(b) (6) or
31(a) to testify on behalf of a party fails to obey an order to provide or
permit discovery, including an order made under subdivision(a) of this rule or
Rule 35, or if a party fails to obey an order under
rule 26(f), the court in which the action is pending
may make such orders in regard to the failure as are just, and among others the
following:
(A)
An order that the matters regarding which the order was
made or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party obtaining the
order;
(B)
An order refusing to allow the disobedient party to
support or oppose designated claims or defense, or prohibiting him from
introducing designated matters in evidence;
(C)
An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default against
the disobedient party;
(D)
In lieu of any of the foregoing orders or in addition
thereto, an order treating as a contempt of court the failure to obey any orders
except an order to submit to a physical or mental examination;
(E)
Where a party has failed to comply with an order under
rule 35(a) requiring him to produce another for examination, such orders as are
listed in paragraphs (A), (B), and (C) of this subdivision, unless the party
failing to comply shows that he is unable to produce such person for
examination.
In
lieu of any of the foregoing orders or in addition thereto, the court shall
require the party failing to obey the order, the attorney or trial counselor
advising him, or both, to pay the reasonable expenses, including attorney or
trial counselor fees, caused by the failure, unless the court finds that the
failure was substantially justified or that other circumstances make an award of
expenses unjust.
(c)
Expenses On failure To
Admit. If a party fails to admit the genuineness of any document or
the truth of any matter as requested under Rule 36, and if the party
requesting the admissions thereafter proves the genuineness of the document or
the truth of the matter, he may apply to the court for an order requiring the
other party to pay him the reasonable expenses incurred in making that proof,
including reasonable expenses incurred in making that proof, including
reasonable attorney or trial counselor fees. The court shall make
the order unless it finds that (1) the request was held objectionable pursuant
to Rule 36 (a), or (2) the admission sought was of no
substantial importance, or (3) the party failing to admit had reasonable ground
to believe that he might prevail on the matter, or (4) there was other good
reason for the failure to admit.
(d)
Failure Of Party To Attend At
Own Deposition Or Service Answers To Interrogatories Or Respond To Request For
Inspection. If a party or an officer, director, or managing agent of a party
or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a
party fails (1) to appear before the officer who is to take his deposition,
after being served with a proper notice, or (2) to serve answers or objections
to interrogatories, or (3) to serve a written response to a request for
inspection submitted under rule 34, after proper service of the request, the
court in which the action is pending on motion may make such orders in regard to
the failure as are just, and among others it may take any action authorized
under paragraphs (A), (B), and (C) or in addition thereto, the court shall
require the party failing to act, the attorney, or the trial counselor advising
him or both to pay the reasonable expenses, including attorney or trial
counselor fees, caused by the failure unless the court finds that the failure
was substantially justified or that other circumstances make an award of
expenses unjust.
The failure to act
described in this subdivision may not be excused on the ground that the
discovery sought is objectionable unless the party failing to act has applied
for a protective order as provided by Rule (26(c).
(e)
Vacant.
(f)
Expenses Against The State of
Kosrae. Except to the extent permitted by statute,
expenses and fees may not be awarded against the State of Kosrae under this
rule.
(g)
Failure To Participate In The
Framing of a Discovery Plan. If a party,
his attorney or trial counselor fails to participate in good faith in the
framing of a discovery plan by agreement as is required by Rule 26(f), the court
may, after opportunity for hearing, require such party, his attorney or trial
counselor to pay to any other party the reasonable expenses, including attorney
or trial counselor fees, caused by the failure.
Comment:
Federal rule 37(e) has been abrogated.
Rule 38. Vacant
![]()
Rule
39. Vacant
![]()
Rule 40.
Vacant
DISMISSAL OF
ACTIONS
(a)
Voluntary Dismissal:
Effect thereof.
(1)
By Plaintiff; By
Stipulation. Subject to the provisions of Rule 23(e) or Rule
66, and of any statute of the State of Kosrae, an action may be dismissed by the
plaintiff without order of court (i) by filing a notice of dismissal at any time
before service by the adverse party of an answer or a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal
signed by all parties who have appeared in the action. Unless otherwise
stated in the notice of dismissal or stipulation, the dismissal operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed in
any court of the State of Kosrae or of any state an action based on or including
the same claim.
(2)
By Order Of Court.
Except as provided in paragraph (1) of this subdivision of this rule, an
action shall not be dismissed at the plaintiff's instance save upon order of the
court and upon such terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the service upon him of
the plaintiff's motion to dismiss, the action shall not be dismissed against the
defendant's objection unless the counterclaim can remain pending for independent
adjudication by the court. Unless otherwise specified in the order, a
dismissal under this paragraph is without prejudice.
(b) Involuntary Dismissal: Effect Thereof. For
failure of the plaintiff to prosecute or to comply with these rules or any order
of court, a defendant may move for dismissal of an action or of any claim
against him. After the plaintiff has completed the presentation of his
evidence, the defendant, without waiving his right to offer evidence in the
event the motion is not granted, may move for a dismissal on the ground that
upon the facts and the law the plaintiff has shown not right to relief.
The court as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the merits
against the plaintiff, the court shall make findings as provided in Rule 52(a).
Unless the court in its order for dismissal otherwise specifies, a
dismissal under this subdivision and any dismissal not provided for in this
rule, other than a dismissal for lack of jurisdiction, for improper venue, or
for failure to join a party under Rule 19, operates as an adjudication upon the
merits.
(c)
Dismissal of Counterclaim,
Cross-Claim, or Third Party Claim. The provisions of this rule apply to the
dismissal of any counterclaim, cross-claim, or third party claim. A
voluntary dismissal by the claimant alone pursuant to paragraph (1) of
subdivision (a) of this rule shall be made before a responsive pleading is
served or, if there is none, before the introduction of evidence at the trial or
hearing.
(d)
Costs Of Previously-Dismissed
Action. If a plaintiff who has once dismissed an action in any court
commences an action based upon or including the same claim against the same
defendant, the court may make such order for the payment of costs of the action
previously dismissed as it may deem proper and may stay the proceedings in the
action until the plaintiff has complied with the order.
Rule 42.
CONSOLIDATION; SEPARATE
TRIALS
(a)
Consolidation. When
actions involving a common question of law or fact are pending before the court,
it may order a joint hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or
delay.
(b)
Separate Trials. The
court, in furtherance of convenience or to avoid prejudice, or when separate
trials will be conducive to expedition and economy, may order a separate trial
of any claim, cross-claim, counterclaim, or third-party claim, or of any
separate issue or of any number of claims, cross-claims, counterclaims,
third-party claims, or issues.
Rule 43.
TAKING OF
TESTIMONY
(a)
Form. In all trials
the testimony of witnesses shall be taken orally in open court, unless otherwise
provided by these rules or by the Rules of Evidence.
(b)
Vacant.
(c)
Vacant.
(d)
Affirmation In Lieu of Oath.
Whenever under these rules an oath is require to be
taken, a solemn affirmation may be accepted in lieu thereof.
(e)
Evidence On Motions.
When a motion is based on facts not appearing of record the court may hear
the matter of affidavits presented by the respective parties, but the court may
direct that the matter be heard wholly or partly on oral testimony or
depositions.
(f)
Interpreters. The
court may appoint an interpreter of its own selection and may fix his reasonable
compensation. The compensation shall be paid out of funds provided by law
or by one or more of the parties as the court may direct, and may be taxed
ultimately as costs, in the discretion of the court.
Rule 44.
PROOF OF OFFICIAL
RECORD
(a)
Authentication.
(1)
Domestic. An official
record kept within the State of Kosrae, or any state thereof, or within the
United States, or any state, district, commonwealth, territory, or insular
possession thereof, or within the Republic of Palau, the Government of the
Marshall Islands, the Trust Territory of the Pacific Islands, or an entry
therein when admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied by a certificate that
such officer has the custody. The certificate may be made by a judge of a
court of record of the state or political subdivision in which the record is
kept, authenticated by the seal of the court, or may be made by any public
officer having a seal of office and having official duties in the state or
political subdivision in which the record is kept, authenticated by the seal of
his office.
(2)
Foreign. A foreign
official record, or an entry therein, when admissible for any purpose, may be
evidenced by an official publication thereof; or a copy thereof, attested by a
person authorized to make the attestation, and accompanied by a final
certification as to the genuineness of the signature and official position (i)
of the attesting person, or (ii) of any foreign official whose certificate of
genuineness of signature and official position relates to the attestation or is
in a claim of certificates of genuineness of signature and official position
relating to the attestation. A final certification may be made by a
secretary of embassy or legation, consul general, consul vice consul, or
consular agent of the Federated States of Micronesia, or of the United States,
or a diplomatic or consular official of the foreign country assigned or
accredited to the Federated States of Micronesia or to the United States.
If reasonable opportunity has been given to all parties to investigate the
authenticity and accuracy of the documents, the court may for good cause shown,
(i) admit an attested copy without final certification or (ii) permit the
foreign official record to be evidenced by an attested summary with or without a
final certification.
(b) Lack of Record. A written statement that after
diligent search no record or entry of a specified tenor is found to exist in the
records designated by the statement, authenticated as provided in subdivision
(a)(1) of this rule in the case of a domestic record, or complying with the
requirements of subdivision (a)(2) of this rule for a summary in the case of a
foreign record, is admissible as evidence that the records contain no such
record or entry.
(c)
Other Proof. This rule
does not prevent the proof of official records or of entry or lack of entry
therein by any other method authorized by law.
Rule 44.1
DETERMINATION OF FOREIGN
LAW
A party who intends to
raise an issue concerning the law of a foreign country shall give notice in his
pleadings or other reasonable written notice. The court, in determining
foreign law, may consider any relevant materials or source, including testimony,
whether or not submitted by a party or admissible under the Rules of Evidence.
The court's determination shall be treated as a ruling on a question of
law.
Rule 45.
SUBPOENA
(a)
For Attendance Of Witnesses;
Form; Issuance. Every subpoena shall be issued by the clerk
under the seal of the court, shall state the name of the court and the title of
the action, and shall command each person to whom it is directed to attend and
give testimony at a time and place therein specified. The clerk shall
issue a subpoena, or a subpoena for the production of documentary evidence,
signed and sealed but otherwise in blank, to a party requesting it, who shall
fill it in before service.
(b)
For Production Of Documentary
Evidence. A subpoena may also command the person to whom it is
directed to produce the books, papers, documents, or tangible things designated
therein; but the court, upon motion made promptly and in any event at or before
the time specified in the subpoena for compliance therewith, may (1) quash or
modify the subpoena if it is unreasonable and oppressive or (2) condition denial
of the motion upon the advancement by the person in whose behalf the subpoena is
issued of the reasonable cost of producing the books, papers, documents, or
tangible things.
(c)
Service.
A subpoena may be served by the marshal, by his deputy,
or by any other person who is not a party and is not less than 18 years of age.
Service of subpoena upon a person named therein shall be made by delivering a
copy thereof to such person and by tendering to him the fees for one day's
attendance and the mileage allowed by law. Reasonable attempts shall be
made to explain the meaning of the subpoena and what the person is required to
do.
(d)
Subpoena For Taking Depositions:
Place Of Examination.
(1)
Proof of Service of a notice to take a deposition as
provided in Rule 30(b) and 31(a) constitutes a sufficient authorization for the
issuance by the clerk of court of subpoenas for the persons named or described
therein. Proof of service may be made by filing with the clerk of court a
copy of the notice together with a statement of the date and manner of service
and of the names of the persons served, certified by the person who made the
service. The subpoena may command the person to whom it is directed to
produce and permit inspection and copying of designated books, papers,
documents, or tangible things which constitute or contain matters within the
scope of the examination permitted by Rule 26(b) but in that event
the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b)
of this rule.
The
person to whom the subpoena is directed may, within 10 days after the service
thereof of on or before the time specified in the subpoena for compliance if
such time is less than 10 days after service, serve upon the attorney designated
in the subpoena written objection to inspection or copying of any or all of the
designated materials. If objection is made, the party serving the subpoena
shall not be entitled to inspect and copy the materials except pursuant to an
order of the court from which the subpoena was issued. The party serving
the subpoena may, if objection has been made, move upon notice to the deponent
for an order at any time before or during the taking of the
deposition.
(2)
the court, upon motion made promptly, may quash or
modify the subpoena if it is unreasonable or oppressive to the person to whom it
is directed in regard to the place where the deposition is proposed to be
taken.
(e) Subpoena For a Hearing Or Trial.
(1)
A subpoena requiring the attendance of a witness at a
hearing or trial may be served at any place within the Federated States of
Micronesia. The court, upon motion made promptly, may quash or modify the
subpoena if it is unreasonable or oppressive to the person to whom it is
directed in regard to the travel involved to the place of the hearing or
trial.
(2)
Subpoena of Person in Foreign
Country.
(A)
Kosrae State Court may order the issuance of a subpoena
requiring the appearance as a witness before it, or before a person or body
designated by it, or a resident of the Kosrae State who is in a foreign country,
or requiring the production of a specified document or other thing by him if
necessary in the interest of justice, and, in other than a criminal action or
proceeding, if the court finds, in addition, that it is not possible to obtain
his testimony in admissible from without his personal appearance or to obtain
the production of the document or other thing in any other
manner.
(B)
The subpoena shall designate the time and place for the
appearance or for the production of the document or other thing. Service
of the subpoena and any order to show cause, rule, judgment, or decree
authorized by this subparagraph or by subparagraphs (C), (D), (E), or (F) below
of this title shall be effected in accordance with the provision of the Rules of
Civil Procedure relating to service of process on a person in a foreign
country.
(C)
The court of the State of Kosrae which has issued a
subpoena served in a foreign country may order the person who has failed to
appear or who has failed to produce a document or other thing as directed
therein to show cause before it at a designated time why he should not be
punished for contempt.
(D)
The court, in the order to show cause, may direct that
any of the person's property within the State of Kosrae be levied upon or
seized, in the manner provided by law or court rules governing levy or seizure
under execution, and held to satisfy any judgment that may be rendered against
him pursuant to subparagraph (f) of this rule if adequate security, in such
amount as the court may direct in the order, be given for any damage that he
might suffer should he not be found in contempt. Security under this
subparagraph may not be required in the State of Kosrae.
(E)
A copy of the order to show cause shall be served on the
person in accordance with the subparagraph (B) of this rule.
(F)
On the return day of the order to show cause or any
later day to which the hearing may be continued, proof shall be taken. If
the person is found in contempt, the court, notwithstanding any limitation upon
its power generally to punish for contempt, may fine him not more than $100,000
and direct that the fine and costs of the proceedings be satisfied by a sale of
the property levied upon or seized, conducted upon the notice required and in
the manner provided for sales upon execution.
Comment: The foregoing rule 45(e)(2)
follows the provisions of sections 1783 and 1784 of Title 28 U.S.C., edited to
apply to the State of Kosrae.
EXCEPTIONS
UNNECESSARY
Formal exceptions to
rulings or orders of the court are unnecessary. It is sufficient that a
party, at the time the ruling or order of the court is made or sought, makes
known to the court the action which he desires the court to take or his
objection to a ruling or order at the time it is made, the absence of an
objection does not thereafter prejudice him.
Rules
47-51. Vacant.
Rule 52.
FINDINGS BY THE
COURT
(a)
Effect. In all actions
tried upon the facts the court shall find the facts specially and state
separately its conclusions of law thereon, and judgment shall be entered
pursuant to rule 58; and in granting or refusing interlocutory injunctions the
court shall similarly set forth the findings of fact and conclusions of law
which constitute the grounds of its action. Requests for findings are not
necessary for purposes of review. Findings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses. The findings of
a master, to the extent that the court adopts them, shall be considered as the
findings of the court. If an opinion or memorandum of decision is filed,
it will be sufficient if the findings of fact and conclusions of law appear
therein. Findings of fact and conclusions of law are unnecessary on decisions of
motions under rules 12 or 56 or any other motion except as provided in Rule
41(b).
(b)
Amendment. Upon motion
of a party made not later than 10 days after entry of judgment the court may
amend its findings or make additional findings and may amend the judgment
accordingly. The motion may be made with a motion for a new trial pursuant
to Rule 59. The question of the sufficiency of the evidence to support the
findings may be raised whether or not the party raising the question has made an
objection in the trial division to such findings or has made a motion for
judgment.
Rule 53.
MASTERS
(a)
Appointment and
Compensation. The court in which any action is pending may appoint a
special master therein. As used in these rules the word . master. includes
a referee, and auditor, an examiner, a commissioner, and an assessor. The
compensation to be allowed to a master shall be fixed by the court, and shall be
charged upon such of the parties or paid out of any fund or subject matter of
the action, which is in the custody and control of the court as the court may
direct. The master shall not retain his report as security for his
compensation; but when the party ordered to pay the compensation allowed by the
court does not pay it after notice and within the time prescribed by the court,
the master is entitled to a writ of execution against the delinquent
party.
(b)
Reference. A reference
to a master shall be the exception and not the rule. Except in matters of
account and of difficult computation of damages, a reference shall be made
only upon a showing that some exceptional condition requires it.
(c)
Powers. The order of
reference to the master may specify or limit his powers and may direct him to
report only upon particular issues or to do or perform particular acts or to
receive and report evidence only and may fix the time and place for beginning
and closing the hearings and for the filing of the master's report. Subject to
the specifications and limitations stated in the order, the master has and shall
exercise the power to regulate all proceedings in every hearing before him and
to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order. He may require the production
before him of evidence upon all matters embraced in the reference, including the
production of all books, papers, vouchers, documents, and writings applicable
thereto. He may rule upon the admissibility of evidence unless otherwise
directed by the order of reference and has the authority to put witnesses on
oath and may himself examine them upon oath. When a party so requests, the
master shall make a record of the evidence offered and excluded in the same
manner and subject to the same limitations as provided in Rule 103 of the Kosrae
State Rules of Evidence.
(d)
Proceedings.
(1)
Meetings. When
reference is made, the clerk shall forthwith furnish the master with a copy of
the order of reference. Upon receipt thereof unless the order of reference
otherwise provides, the master shall forthwith set a time and place for the
first meeting of the parties or their attorneys to be held within 20 days after
the date of the order of reference and shall notify the parties or their
attorneys. It is the duty of the master to proceed with all reasonable
diligence. Either party, on notice to the parties and master, may apply to the
court for an order requiring the master to speed the proceedings and to make his
report. If a party fails to appear at the time and place appointed, the
master may proceed ex parte or, in his discretion, adjourn the proceedings to a
future day, giving notice to the absent party of the
adjournment.
(2)
Witnesses. The parties
may procure the attendance of witnesses before the master by the issuance and
service of subpoenas as provided in rule 45. If without adequate
excuse a witness fails to appear or give evidence he may be punished as
for a contempt and be subjected to the consequences, penalties, and remedies
provided in Rule 37 and 45.
(3)
Statement of Accounts.
When matters of accounting are in issue before the master, he may
prescribe the form in which the accounts shall be submitted and in any proper
case may require or received in evidence a statement by a certified public
accountant who is called as a witness. Upon objection of a party to any of
the items then submitted or upon a showing that the form of statement is
insufficient, the master may require a different form of statement to be
furnished, or the accounts or specific items thereof to be proved by oral
examination of the accounting parties or upon written interrogatories or in such
other manner as he directs.
(e)
Report.
(1)
Contents and Filing. The
master shall prepare a report upon the matters submitted to him by the order of
reference and, if required to make findings of fact and conclusions of law, he
shall set them forth in the report. He shall file the report with the
clerk of court, and shall file with it a transcript of the proceedings and of
the evidence and the original exhibits. The clerk shall forthwith mail to
all parties notice of the filing.
(2)
Objections to Report.
The court shall accept the master's findings of fact unless clearly
erroneous. Within 10 days after being served with notice of the filing of
the report any party may serve written objections thereto upon the other
parties. Application to the court for action upon the report and upon
objections thereto shall be by motion and upon notice as prescribed in Rule
6(d). The court after hearing may adopt the reports or may modify it or
reject it in whole or in part or may receive further evidence or may recommit it
with instructions.
(3)
Vacant.
(4)
Stipulation as to findings.
The effect of a master's report is the same whether or not the parties
have consented to the reference; but, when the parties stipulate that a master's
findings of fact shall be final, only questions of law arising upon the
report shall thereafter be considered.
(5)
Draft Report. Before
filing his report a master may submit a draft thereof to counsel for all parties
for the purpose of receiving the suggestions.
VI.
JUDGMENT
Rule 54.
JUDGMENTS;
COSTS
(a)
Definition;
Form. "Judgment" as used in these rules includes a decree and any
order from which an appeal lies. A judgment shall not contain a recital of
pleadings, the report of a master, or the record of prior
proceedings.
(b)
Judgment Upon Multiple Claims or
Involving Multiple Parties. When more than one claim for relief is
presented in an action, whether as a claim, counterclaim, cross-claim, or third
party claim, or when multiple parties are involved, the court may direct the
entry of a final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment. In the
absence of such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other form of
decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the
parties.
(c)
Demand For Judgment. A
judgment by default shall not be different in kind from or exceed in amount that
prayed for in the demand for judgment. Except as to a party against whom a
judgment is entered by default, every final judgment shall grant the relief to
which the party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings.
(d)
Costs. Except when
express provision therefore is made either in a statute of the State of Kosrae
or in these rules, costs shall be allowed as of course to the prevailing party
unless the court otherwise directs; but costs against the State of Kosrae, its
officers, and agencies shall be imposed only to the extent permitted by law.
Costs may be taxed by the clerk on one day's notice. On motion
served with 5 days thereafter, the action of the clerk may be reviewed by the
court.
Rule 55.
DEFAULT
(a)
Entry. When a party
against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend as provided by these rules and that fact is made to appear by
affidavit or otherwise, the clerk shall enter his default.
(b)
Judgment. Judgment by
default may be entered as follows:
(1)
By the Clerk. When the
plaintiff's claim against a defendant is for a sum certain or for a sum which
can by computation be made certain, the clerk upon request of the plaintiff and
upon affidavit of the amount due shall enter judgment for the amount and
costs against the defendant, if he has been defaulted for failure to appear and
if he is not an infant or incompetent person.
(2)
By the Court. In all
other cases the party entitled to a judgment by default shall apply to the court
therefore; but no judgment by default shall be entered against an infant or
incompetent person unless represented in the action by a general guardian,
committee, conservator, or other such representative who has appeared therein.
If the party against whom judgment by default is sought has appeared in
the action, he (or, if appearing by representative, his representative) shall be
served with written notice of the application for judgment at least 3 days prior
to the hearing on such application. If, in order to enable the court to
enter judgment or to carry it into effect, it is necessary to take an account or
to determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may conduct
such hearings or order such references as it deems necessary and proper and
shall accord a right of trial to the parties when and as required by any law of
the State of Kosrae.
(c)
Setting Aside Default.
For good cause shown the court may set aside an entry of default and, if a
judgment by default has been entered, may likewise set it aside in accordance
with Rule 60(b).
(d)
Plaintiffs, Counter-Claimants,
Cross-claimants. The provisions of this rule apply whether the party
entitled to the judgment by default is a plaintiff, a third-party plaintiff, or
a party who has pleaded across-claim or counter claim. In all cases
a judgment by default is subject to the limitations of Rule 54(c).
(e)
Judgment Against the State of
Kosrae. No judgment by default shall be entered against the State of
Kosrae, or an officer or agency thereof unless the claimant establishes his
claim or right to relief by evidence satisfactory to the court.
Rule 56.
SUMMARY
JUDGMENT
(a)
For Claimant. A party
seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
declaratory judgment may, at any time after the expiration of 20 days from the
commencement of the action or after service of a motion for summary judgment by
the adverse party, move with or without supporting affidavits for a summary
judgment in his favor upon all or any party thereof.
(b)
For Defending Party. A
party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, move with or without supporting
affidavits for a summary judgment in his favor as to all or any party
thereof.
(c)
Motion and Proceedings
Thereon. The motion shall be governed by the provisions of Rule
6(d). The party opposing the motion must, in the same manner, observe the
provisions of Rule 6(d). The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law. A summary judgment, interlocutory in character, may be
rendered on the issues of liability alone although there is a genuine issue as
to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on
motion under this rule judgment is not rendered upon the whole case or for all
the relief asked and a trial is necessary, the court at the hearing of the
motion, by examining the pleadings and the evidence before it and by
interrogating counsel, shall if practicable ascertain what material facts are
actually and in good faith controverted. It shall thereupon make an order
specifying the facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in controversy, and
directing such further proceedings in the action as are just. Upon the trial of
the action the facts so specified shall be deemed established, and the trial
shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense
Required. Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters
stated therein. Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith. The
court may permit affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or further affidavits. When a motion for summary
judgment is made and supported as provided in this rule, and adverse party may
not rest upon the mere allegations or denials of this pleading, but his
response, by affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial. If he does not
so respond, summary judgment, if appropriate, shall be entered against him.
(f) When Affidavits are Unavailable. Should it appear from
the affidavits of a party opposing the motion that he cannot for reasons stated
present by affidavit facts essential to justify his opposition, the court may
refuse the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or
may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits presented
pursuant to this rule are presented in bad faith or solely for the purpose of
delay, the court shall forthwith order the party employing them to pay to the
other party the amount of the reasonable expenses which the filing of the
affidavits caused him to incur, including reasonable attorney’s fees, and any
offending party or attorney may be adjudged guilty of contempt.
Rule 57.
DECLATORY
JUDGMENTS
In a case of actual
controversy within its jurisdiction, the court, upon the filing of an
appropriate pleading, may declare the right and other legal relations of any
interested party seeking such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such. The existence of another
adequate remedy does not preclude a judgment for declaratory judgment and may
advance it on the calendar.
Rule 58.
ENTRY
OF JUDGMENT
Subject
to the provisions of Rule 54(b): (1) upon a decision by the court that a party
shall recover only a sum certain or costs, or that all relief shall be denied,
the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and
enter the judgment without awaiting any direction by the court; (2) upon a
decision by the court granting other relief, the court shall promptly approve
the form of the judgment, and the clerk shall thereupon enter it. Every judgment
shall be set forth on a separate document. A judgment is effective only when so
set forth and when entered as provided in Rule 79(a). Entry of the judgment
shall not be delayed for the taxing of costs. Attorneys shall not submit forms
of judgment except upon direction of the court, and these directions shall not
be given as a matter of course.
Rule 59.
NEW TRIALS; AMENDMENT OF
JUDGMENT
(a) Grounds. A new trial may be granted to all or any of
the parties and on all or part of the issues for manifest error of law or fact,
or for newly discovered evidence. On a motion for a new trial the court may open
the judgment if one has been entered, take additional testimony, amend findings
of fact and conclusions of law or make new a findings and conclusions, and
direct the entry of a new judgment.
(b) Time For Motion. A motion for a new trial shall be
served not later than 10 days after the entry of the judgment.
(c) Time for Serving Affidavits. When a motion for new
trial is based upon affidavits they shall be served with the motion. The
opposing party has 10 days after such service within which to serve opposing
affidavits, which period may be extended for an additional period not exceeding
20 days either by the court for good cause shown or by the parties by written
stipulation. The court may permit reply affidavits. The movant shall file and
serve a memorandum of points and authorities to the motion, and the opposing
party shall file and serve a memorandum of points and authorities with 10 day
period after service of the motion.
(d) On Initiative of Court. Not later than 10 days after
entry of judgment the court of its own initiative may order a new trial of any
reason for which it might have granted a new trial on motion of a party. After
giving the parties notice and an opportunity to be heard on the matter, the
court may grant a motion for a new trial, timely served, for a reason not stated
in the motion. In either case, the court shall specify in the order the grounds
therefore.
(e) Motion to Alter or Amend a Judgment. A motion to alter
or amend the judgment shall be served not later than 10 days after entry of the
judgment.
Rule
60.
RELIEF FROM JUDGMENT OR
ORDER
(a)
Clerical Mistakes. Clerical mistakes in
judgments, orders or other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time of its own
initiative or on the motion of any party and after such notice, if any, as the
court orders. During the pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the appellate division of the Supreme
Court of the Federated States of Micronesia, and thereafter while the appeal is
pending may be so corrected with leave of that court.
(b)
Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just,
the court may relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment. The
motion shall be made within a reasonable time, and for reasons (1), (2), and (3)
not more than one year after the judgment, order, or proceeding was entered or
taken. A motion under this subdivision (b) does not affect the finality of a
judgment or suspend its operation. This rule does not limit the power of a court
to entertain an independent action.
Rule 61.
HARMLESS
ERROR
No error in either the admission
or the exclusion of evidence and no error or defect in any ruling or order or in
anything done or omitted by the court or by any of the parties is ground for
granting a new trial or for vacating, modifying, or otherwise distributing a
judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties.
Rule 62.
STAY OF PROCEEDINGS TO ENFORCE
A JUDGMENT
(a) Automatic Stay; Exception--Injunctions, and
Receiverships. Except as stated herein, no execution shall issue upon a
judgment nor shall proceedings be taken for its enforcement until the expiration
of 10 days after its entry. Unless otherwise ordered by the court, an
interlocutory or final judgment in an action for an injunction or in a
receivership action, shall not be stayed during the period after its entry and
until an appeal is taken or during the pendency of an appeal. The provisions of
subdivision(c) of this rule govern the suspending, modifying, restoring, or
granting of an injunction during the pendency of an appeal.
(b) Stay of Motion for New Trial Or For Judgment. In its
discretion and on such conditions for the security of the adverse party as are
proper, the court may stay the execution of or any proceedings to enforce a
judgment pending the disposition of a motion for a new trial or to alter or
amend a judgment made pursuant to Rule 59, or of a motion for relief from a
judgment or order made pursuant to Rule 60, or of a motion for amendment to the
findings or for additional findings made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an appeal is taken from
an interlocutory or final judgment granting, dissolving, or denying an
injunction, the court in its discretion may suspend, modify, restore, or grant
an injunction, during the pendency of the appeal upon such terms as to bond or
otherwise as it considers proper for the security of the rights of the
adverse party.
(d) Stay Upon Appeal. When an appeal is taken the appellant
by giving a supersedeas bond may obtain a stay subject to the exceptions
contained in subdivision (a) of this rule. The bond may be given at or after the
time of filing the notice of appeal or of procuring the order allowing the
appeal, as the case may be. The stay is effective when the supersedeas bond is
approved by the court.
(e) Stay in Favor of the State of Kosrae or an Agency Thereof.
When an appeal is taken by the State of Kosrae or an officer or agency
thereof or by direction of any department of the State of Kosrae and the
operation or enforcement of the judgment is stayed, no bond, obligation, or
other security shall be required from the appellant.
(f) Vacant.
(g) Power of Appellate Court Not Limited. The provisions in
this rule do not limit any power of an appellate division or of a justice
thereof to stay proceedings during the pendency of an appeal or to suspend,
modify, restore, or grant an injunction during the pendency of the appeal or to
make any order appropriate to preserve the status quo or the effectiveness of
the judgment subsequently to be entered.
(h) Stay of Judgment as to Multiple Claims or Multiple
Parties. When a court has ordered a final judgment under the conditions
stated in Rule 54(b), the court may stay enforcement of the judgment until the
entering of a subsequent judgment or judgments and may prescribed such
conditions as are necessary to secure the benefit thereof to the party in whose
favor the judgment is entered.
Rule 63.
DISABILITY OF
JUDGE
If
by reason of death, sickness, or other disability, a judge before whom an action
has been tried is unable to perform the duties to be performed by the court
under these rules after findings of fact and conclusions of law are filed, then
any other judge regularly sitting in or assigned to the court in which the
action was tried may perform those duties; but if such other judge is satisfied
that he cannot perform those duties; because he did not preside at the trial or
for any other reason he may in his discretion grant a new trial.
Rule 64.
SEIZURE OF PERSON OR
PROPERTY
At the commencement of
and during the course of an action, all remedies providing for seizure of person
or property for the purpose of securing satisfaction of the judgment ultimately
to be entered in the action are available under the circumstances and in the
manner provided by the law of the state in which the court is held, existing at
the time the remedy is sought, subject to the following qualifications: (1) any
existing statute of the State of Kosrae governs to the extent to which it is
applicable; (2) the action in which any of the foregoing remedies is used shall
be commenced and prosecuted or, if removed from a state court, shall be
prosecuted after removal, pursuant to these rules. The remedies thus available
include arrest, attachment, garnishment, replevin, sequentiality, and other
corresponding or equivalent remedies, however designated and regardless or
whether by state procedure the remedy is ancillary to an action or must be
obtained by an independent action.
Rule 65.
INJUNCTIONS
(a)
Preliminary Injunction.
(1)
Notice. No preliminary injunction shall be
issued without notice to the adverse party.
(2)
Consolidation of hearing With Trial on Merits.
Before or after the commencement of the hearing of an application for a
preliminary injunction, the court may order the trial of the action on the
merits to be advanced and consolidated with the hearing of the application. Even
when this consolidated is not ordered, any evidence received upon an application
for a preliminary injunction which would be admissible upon the trial on the
merits becomes part of the record on the trial and need not be repeated upon the
trial.
(b)
Temporary Restraining Order; Notice; Hearing;
Duration. A temporary restraining order may be granted without written or
oral notice to the adverse party or his attorney only if (1) it clearly appears
from specific facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will result to the applicant
before the adverse party or his attorney can be heard in opposition, and (2) the
applicant's attorney certifies to the court in writing the efforts, if any,
which have been made to give the notice and the reasons supporting his claim
that notice should not be required. Every temporary restraining order granted
without notice shall be endorsed with the date and hour of issuance; shall be
filed forth with in the clerk's office and entered of record; shall define the
injury and state why it is irreparable and why the order was granted without
notice; and shall expire by its terms within such time after entry, not to
exceed 14 days, as the court fixes, unless within the time so fixed the order,
for good cause shown, is extended for a like period or unless the party against
whom the order is directed consents that it may be extended for a longer period.
The reasons for the extension shall be entered of record. In case a temporary
restraining order is granted without notice, the motion for a preliminary
injunction shall be set down for hearing at the earliest possible time and takes
precedence of all matters except older matters of the same character; and when
the motion comes on for hearing the party who obtained the temporary restraining
order shall proceed with the application for a preliminary injunction and, if he
does not do so, the court shall dissolve the temporary restraining order without
notice or on such shorter notice to that party as the court may prescribe, the
adverse party may appear and move its dissolution or modification and in that
event the court shall proceed to hear and determine such motion as expeditiously
as the ends of justice require.
(c)
Security. No restraining order or preliminary
injunction shall issue except upon the giving of security by the applicant, in
such sum as the court deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained. No such security shall be required of the State of
Kosrae or of any officer or agency thereof.
The
provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this
rule.
(d)
Form and Scope of Injunction or Restraining
Order. Every order granting an injunction and every restraining order shall
set forth the reasons for its issuance; shall be specific in terms; shall
describe in reasonable detail and not by reference to the complaint or other
document, the act or acts sought to be restrained; and is binding only upon the
parties to the action, their offices, agents, servants, employees, and
attorneys, and upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or otherwise.
(e)
Vacant. (Employer and Employee; Interpleader; Constitutional Cases)
Rule 65.1
SECURITY: PROCEEDINGS AGAINST SURETIES
Whenever these rules require
or permit the giving of security by a party, and security is given in the form
of a bond or stipulation or other undertaking with one or more sureties, each
surety submits himself to the jurisdiction of the court and irrevocably appoints
the clerk of the court as his agent upon whom any papers affecting his liability
on the bond or undertaking may be served. His liability may be enforced on
motion without the necessity of an independent action. The motion and such
notice of the motion as the court prescribes may be served on the clerk of the
court, who shall forthwith mail copies to the sureties if their addresses are
known.
Rule 66.
RECEIVERS APPOINTED BY FEDERAL
COURTS
An action wherein a receiver
has been appointed shall not be dismissed except by order of the court. An
action in which the appointment of a receiver is sought or which is brought by
or against a receiver is governed by these rules.
Rule 67.
DEPOSIT IN COURT
In
an action in which any part of the relief sought is a judgment for a sum of
money or the disposition of a sum of money or the disposition of any other thing
capable of delivery, a party, upon notice to every other party, and by leave of
court, may deposit with the court all or any part of such sum or thing.
Money paid into court under this rule shall be forthwith deposited by the
clerk in a bank licensed to do business in the State of Kosrae in the name and
to the credit of the court.
No
money deposited shall be withdrawn except by order of the court.
Rule 68.
OFFER OF JUDGMENT
At
any time more than 10 days before the trial begins, a party defending against a
claim may serve upon the adverse party an offer to allow judgment to be taken
against him for the money or property or to the effect specified in his offer,
with costs then accrued. If within 10 days after the service of the offer the
adverse party serves written notice that the offer is accepted, either party may
then file the offer and notice of acceptance together with proof of service
thereof and thereupon the clerk shall enter judgment. An offer not accepted
shall be deemed withdrawn and evidence thereof is not admissible except in a
proceeding to determine costs. If the judgment finally obtained by the offeree
is not more favorable than the offer, the offeree must pay the costs incurred
after the making of the offer. The fact that an offer is made but not accepted
does not preclude a subsequent offer. When the liability of one party to another
has been determined by finding or order or judgment, but the amount or extent of
the liability remains to be determined by further proceedings, the party
adjudged liable may make an offer of judgment, which shall have the same effect
as an offer made before trial if it is served within a reasonable time not less
than 10 days prior to the commencement of the hearings to determine the amount
or extent of liability.
Rule 69.
EXECUTION
(a) In General. Process to enforce a
judgment for the payment of money shall be a writ of execution, unless the court
directs otherwise. The procedure on execution, in proceedings supplementary to
and in aid of a judgment, and in proceedings on and in aid of execution shall be
in accordance with the practice and procedure of the state in which the court is
held, existing at the time the remedy is sought, except that any statute of the
State of Kosrae governs to the extent that it is applicable. In aid of the
judgment or execution, the judgment creditor or his successor in interest when
that interest appears of record, may obtain discovery from any person, including
the judgment debtor, in the manner provided in these rules or in the manner
provided by the practice of the state in which the court is held.
(b)
Vacant. (Against Certain Public Officers)
Rule 70.
JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE
If a
judgment directs a party to execute a conveyance of land or to deliver deeds or
other documents or to perform any other specific act and the party fails to
comply within the time specified, the court may direct the act to be done at the
cost of the disobedient party by some other person appointed by the court and
the act when so done has like effect as if done by the party. On application of
the party entitled to performance, the clerk shall issue a writ of attachment or
sequentiality against the judgment. The court may also in proper cases adjudge
the party in contempt. If real or personal property is within the State of
Kosrae, the court in lieu of directing a conveyance thereof may enter a judgment
divesting the title of any party and vesting it in others and such judgment has
the effect of a conveyance executed in due form of law. When any order or
judgment is for the delivery of possession, the party in whose favor it is
entered is entitled to a writ of execution or assistance upon application to the
clerk.
Rule 71.
PROCESS IN BEHALF OF AND AGAINST PERSONS NOT
PARTIES
When
an order is made in favor of a person who is not a party to the action, he may
enforce obedience to the order by the same process as if he were a party; and,
when obedience to an order may be lawfully enforced against a person who is not
a party, he is liable to the same process for enforcing obedience to the order
as if he were a party.
Rule 71A. Vacant. (Condemnation
of Property)
VII. APPEALS
Rules 72-76. Vacant.
Comment. Federal Rules 72-76 were abrogated when the
Federal rules of Appellate Procedure were promulgated.
See FSM Appellate Rules for
the matters formerly covered by these Federal rules.
VIII. COURTS AND CLERKS
Rule 77.
COURTS AND CLERKS
(a)
Courts Always Open. The Kosrae State Court
shall be deemed always open for the purpose of filing any pleading or other
proper paper, of issuing and returning mesne and final process, and of making
and directing all interlocutory motions, orders, and rules.
(b)
Trial and Hearings; Orders in Chambers. All
trials upon the merits shall be conducted in open court and so far as convenient
in a regular court room. All other acts or proceedings may be done or conducted
by a judge in chambers, without the attendance of the clerk or other court
officials and at any place either within or without the State of Kosrae but no
hearing, other than one ex parte, shall be conducted outside the State of Kosrae
without the consent of all parties affected thereby.
(c)
Clerk's Office and Orders by Clerk. The
clerk's office with the clerk or an assistant in attendance shall be open during
business hours on all days except Saturdays, Sundays, and holidays. All motions
and applications in the clerk's office for issuing mesne process, for issuing
final process to enforce and execute judgments, for entering defaults or
judgments by default, and for other proceedings which do not require allowance
or order of the court are grantable of course by the clerk; but his action may
be suspended or altered or rescinded by the court upon cause shown.
(d)
Notice of Orders or Judgments. Immediately
upon the entry of an order of judgment the clerk shall serve a notice of the
entry by mail in the manner provided for in Rule 5 upon each party who is not in
default for failure to appear, and shall make a note in the docket of the
mailing. Such mailing is sufficient notice for all purposes for which notice of
the entry of an order is required by these rules; but any party may in addition
serve a notice of such entry in the manner provided in Rule 5 for the service of
papers. Lack of notice of the entry by the clerk does not affect the time to
appeal or relieve or authorized the court to relieve a party for failure to
appeal within the time allowed, except as permitted in Rule 4(a) of the Rules of
Appellate Procedure.
Rule 78.
MOTION DAY
The
court may establish regular times and places, at intervals sufficiently frequent
for the prompt dispatch of business, at which motions requiring notice and
hearing may be heard and disposed of; but the judge at any time or place and on
such notice, if any, as he considers reasonable may make orders for the
advancement, conduct, and hearing of actions.
To
expedite its business, the court may make provisions by order for the submission
and determination of motions without oral hearing upon brief written statements
of reasons in support and opposition.
Rule 79.
BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIES
THEREIN
(a)
Civil Docket. The clerk shall keep a book
known as "civil docket" of such form and style as may be prescribed by the Chief
Clerk of the Kosrae State Court and shall enter therein each civil action to
which these rules are made applicable. Actions shall be assigned consecutive
file numbers. The file number of each action shall be noted on the folio of the
docket whereon the first entry of the action is made. All papers filed with the
clerk, all process issued and returns made thereon, all appearances, orders,
findings, and judgments shall be entered chronologically in the civil docket on
the folio assigned to the action and shall be marked with its file number. These
entries shall be brief but shall show the nature of each paper filed or writ
issued and the substance of each order or judgment of the court and of the
returns showing execution of process. The entry of an order or judgment shall
show the date the entry is made.
(b)
Civil Judgment and Orders. The clerk shall
keep, in such form and manner as the Chief Clerk of the Kosrae State Court may
prescribe, a correct copy of every final judgment or appealable order, or order
affecting title to or lien upon real or personal property, and any other order
which the court may direct to be kept.
(c)
Indices; Calendars. Suitable indices of
the civil docket and of every civil judgment and order referred to in
subdivision (b) of this rule shall be kept by the clerk under the direction of
the Chief clerk of the Kosrae State Court. There shall be prepared under
direction of the Chief clerk calendars of all actions ready for trial.
(d)
Other Books and Records of the Clerk. The
clerk shall also keep such other books and records as may be required from time
to time by the Chief Clerk or Administrative Office of the Court.
Rule 80.
STENOGRAPHICALLY OR ELECTRONICALLY RECORDED TESTIMONY
Whenever the testimony of a witness at a trial or hearing which was
stenographically reported or electronically recorded is admissible in evidence
at a later trial, it may be proved by the transcript thereof duly certified by
the person who reported or recorded the testimony.
Rule 81.
APPLICABILITY IN GENERAL
These rules do not apply to
proceedings in the municipal courts or the State Land Commission unless the
proceedings are removed from the municipal court or State Land Commission to the
Kosrae State Court.
Rule 82.
JURISDICTION UNAFFECTED
These rules shall not be construed to extend or limit the jurisdiction of the
court.
Rule 83. VACANT
Rule 84.
Forms. Vacant
Comment: This court does not
anticipate issuing an appendix of forms, but practitioners may wish to refer to
the Federal Rules appendix of forms for guidance.
Rule 85.
TITLE.
These rules may be known and cited as the Rules of Civil Procedure for the
Kosrae State Court.
Rule 86.
EFFECTIVE DATE
These rules take effect on November 24, 1987.
Rule 87.
SMALL CLAIMS PROCEDURE
(a)
Applicability. The State Court of Kosrae shall
consider under this small claims procedure any civil action within its
jurisdiction involving a claim for five hundred dollars or less or for property
to the value of five hundred dollars or less, exclusive of interest and costs.
(b)
Nature and Purpose. This procedure is to enable small
claims to be justly decided and fully disposed of with less formality, paper
work, and expenditure of time than is required by the ordinary procedure for
larger claims. Parties are to be encouraged to handle small claims personally
without counsel, and judges and clerk are expected to aid the parties in doing
this. The pleadings, the actions of the court, and any payments received, or
reports from a party of payments received by him, shall be noted under the
proper date on a small claims' docket card for each case. The entries on the
docket card shall ordinarily constitute the entire record and no further
information need be recorded or kept except as expressly directed for small
claims.
(c)
Pleadings. The plaintiff (or his counsel)
shall state the nature and amount of his claim to the clerk, who shall reduce it
to writing very briefly on the docket card under the date the statement is made
and have it signed by the plaintiff (or his counsel). This signed statement
shall constitute the complaint and no other written pleading shall be required
of any party unless the court otherwise orders in a particular case for special
cause.
(d)
Small Claims Summon. Upon the signing of a
claim on the small claims docket as provided in paragraph (c) above, the clerk
(or a judge) of a court shall issue and deliver to the plaintiff (or his
counsel) a small claims summons in duplicate, returnable at a time and place
therein stated, which shall be not less than three days after the time the
estimates service will be made on the defendant. One of the copies is to be
served on the defendant not less than three days before the return day. The
other copy is to be returned to the clerk on or before the return day with the
return of service endorsed on it (unless the defendant personally, or by
counsel, appears before the court at the time the summons is returned). If the
plaintiff is acting without counsel, the clerk (or judge) issuing the summons
will instruct the plaintiff how the summons shall be served and return of
service made, unless it is clear the plaintiff already understands this, and
shall impress upon the plaintiff that he also must appear personally, or by
counsel at the time and place stated in the summons and should bring with him
any records or other documents that he believes will support his claim. The
summons, with return of service endorsed on it, is to be attached to the docket
card and preserved, unless and until the defendant appears before the court
personally, or by counsel, after which it may be destroyed.
(e)
Trial. A trial shall be held on the return
day, unless good cause is shown for delaying it, or the parties agree upon
judgment or have settled the claim.
(f)
Conduct of Trial. Immediately prior to trial
the judge shall ask the defendant or his counsel to state any defense he may
have and shall note, or cause the clerk to note, on the docket card the
substance of the defendant's position with regard to the claim. The judge shall
then proceed to make an earnest effort to help the parties reach settlement
without trial, or, failing that, to agree upon as many of the issues as possible
as at a pre-trial conference, but no pre-trial order will be required. If the
claim, or any counter-claim made, involves a number of items, the judge may
require either party making such claim to present to him and to the opposing
party a written list of the items claimed, showing their respective dates and
amounts. If no settlement has been reached, the judge shall then proceed with
the hearing on the points in dispute, informally in such manner as to do
substantial justice between the parties as promptly as practicable. Witnesses
shall be sworn; but the court shall not be bound by the usual rules of procedure
or evidence, except those concerning privileged communications and the right
against self incrimination. It is expected that most of the questioning will be
done by the judge.
(g)
Defaults. If a defendant who has been served
three days or more before the return day fails to appear personally, or by
counsel, judgment may be entered by default where the claim is for a clearly
determined amount of money, or on proof by the plaintiff of the amount due if
the claim is for damages or any amount that is not clearly determined. If the
plaintiff fails to appear personally, or by counsel, the action may be dismissed
for want of prosecution, or the defendant may proceed to trial on the merits, or
the action may be continued, as the court may direct. If both parties fail to
appear, the judge may order the action dismissed for want of prosecution; or
make other disposition thereof that justice may require.
(h)
Orders in Aid of Judgment. As soon as the
amount due has been determined, judgment shall be entered on the docket card,
and the judge shall, as a matter of court, inquire how soon the amount due can
be paid, and whether either party desires an order in aid or judgment. If either
party requests an order in aid of judgment, and the opposite party (or his
counsel) is present, the judge shall notify the parties that he will hold a
hearing on the application immediately, unless good cause is shown for delaying
the hearing. He shall then proceed as upon any application for an order in aid
of judgment. If neither the opposite party nor his counsel are present, the
judge shall set a time and place for hearing on the application far enough in
advance to give the opposite party a reasonable opportunity to attend, shall
direct such notice to the opposite party as the judge deems best, and proceed at
the time and place as above provided.
(i)
New Trial. Either party to a small claim
judgment may have a new trial in the same court according to the usual trial
procedure for large claims by filing a request for new trial within thirty (30)
days after the small claims judgment.
(j)
Other Procedure. All matters in small claims
proceedings which are not covered by this Rule shall be governed by the ordinary
rules of civil procedure.
Rule 88.
TRANSFER OF CASE UPON
DISQUALIFICATION
OR UNAVAILABILITY OF
JUDGE
Where
no sitting justice, judge, or justice pro tempore of Kosrae State Court is
legally available, due to any circumstances including disqualification due to
conflict of interest, or any other grounds for disqualification or
unavailability due to any reason including absence from the jurisdiction,
illness, or any other reason, a matter shall be transferred by order of the
chief justice to a judge or justice of any state or national court of the
Federated States of Micronesia, depending upon the availability of said judge or
justice.