Page images
PDF
EPUB

questions, or an order made under Rule 26 or Rule 27, the Court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or any part thereof, or enter a judgment by default against that party.

(d) Failure To Respond to Letters Rogatory: A subpoena may be issued as provided in Title 28, U. S. C., § 1783, under the circumstances and conditions stated in subdivisions (a) (1) and (b) of that section.

[merged small][ocr errors]

V. TRIALS

RULE 37. REFERENCE; AUTHORITY OF COMMISSIONERS

(a) General: Unless otherwise ordered by the Court, every case shall be referred to a Commissioner for trial of the facts pursuant to statute and to these rules. A Commissioner shall have and exercise the power to regulate all proceedings before him and to do all acts and to take all measures necessary or proper for the efficient performance of his duties. He may require the production before him of evidence upon all pertinent matters, including the production of all books, papers, vouchers, drawings, writings, or documents of any nature applicable thereto. He shall rule upon the admissibility of evidence and put witnesses under oath and may examine them and may call witnesses (including the parties to the action), and examine them under oath, and shall have the power to do and perform any act authorized to be done by him by statute or under these rules or which may be necessary or proper. Any misconduct by attorneys, witnesses, parties, or other persons, at any trial before a Commissioner may be reported by him to the Court and may be deemed a contempt of the Court.

(b) Testimony Before Another Commissioner: Where a case has been referred to one Commissioner and oral testimony has been heard by him, the case shall not, except for good cause, be referred to another Commissioner.

If a Commissioner to whom a case has been referred and who has heard oral testimony therein is unavailable at a time when either party desires to offer evidence in the case, another Commissioner may hear such evidence.

(c) Reference of Motions for Recommendations: Where a case has been referred to a Commissioner, the Court may, by

appropriate order, refer any motion filed in such case to the Commissioner for his recommendation thereon. In connection with any motion so referred the Commissioner may (1) require the moving party to supply any additional information to explain the nature and purpose of the motion, (2) schedule the motion for conference or hear oral argument in Washington or elsewhere, or (3) take such other action, subject to the provisions of subsection (d) of this rule, as in his judgment is requisite to a recommendation by him. Unless the Court in the order of reference otherwise directs, the Commissioner shall submit his recommendation in writing by filing with the Clerk the original and one copy and one additional copy for each party in the case. One copy shall be mailed by the Clerk to each

of the parties.

(d) Procedure Not Covered by Rules: In the event that a question of procedure arises at a trial or in proceedings pretrial which is not covered by a rule or the order of reference, the Commissioner may exercise his discretion thereon, subject to review by the Court on application by the dissatisfied party.

RULE 38. CONSOLIDATION; SEPARATE TRIALS; INTERLOCUTORY DETERMINATIONS; FINAL JUDGMENTS

(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. With consent of the parties and without order of the Court, the Commissioner may conduct a joint trial when two or more actions involve a common question of fact.

(b) Separate Trials: The Court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, counterclaim, or of any separate issues or of any number

of claims, counterclaims, or issues; and may enter appropriate orders or judgments with respect to any of such issues, claims, or counterclaims that are tried separately.

(c) Separate Determination of Liability: Upon stipulation of the parties, subject to approval by the Commissioner, or upon order of the Court or the Commissioner, trials may be limited to the issues of law and fact relating to the right of a party to recover, reserving the determination of the amount of recovery and the amount of offsets, if any, for further proceedings.

In any case, whether or not such an order has been entered, where the Court determines that a party is entitled to recover and the amount of the recovery is reserved for further proceedings, the judgment on the question of the right to recover shall be final, subject to proceedings had under Rules 53 and 54. Upon the entry of any such final judgment on the right to recover, it shall be the duty of the Commissioner to whom the case was referred to proceed with the determination of the amount of recovery and the amount of offsets, if any. The parties may be allowed a reasonable time within which to stipulate or otherwise agree upon a computation.

RULE 39. COMMISSIONER MAY REQUEST INFORMATION

A Commissioner may call upon the parties or the attorneys for the names and residences of witnesses they expect to examine and the desired place of examination, and may initiate and require any procedures similar in nature to those authorized in Rule 28 at any time after the trial has commenced.

RULE 40. RECEPTION OF EVIDENCE

(a) Time; Place; Notice: Whenever practicable, evidence shall be taken in one continuous session or a series of consecutive sessions, but the Commissioner may, in his discretion, hear por

tions of the evidence in a case at different times and in different places.1

The Commissioner shall give to the parties reasonable notice by mail of the time and place of trial or of each nonconsecutive session as he shall designate, and may direct therein that all or stated parts of evidence be produced. Such direction and the setting of the time when and place where the evidence is to be produced shall be as binding upon the parties as though fixed by the Court.

(b) Delay by Parties: Whenever the Commissioner has reason to believe that the case is being unnecessarily delayed by the failure of either or both parties to produce evidence, the Commissioner may give notice to the parties fixing a reasonable time, not less than 30 days after the date of the notice, at which either or both parties must close the evidence. Upon failure of either party to comply, the Commissioner may, in his discretion, close the evidence and make and report to the Court his findings of fact upon the evidence produced, recommend that the petition or counterclaim be dismissed, or report to the Court for instructions, whereupon a rule shall issue to the defaulting party to show cause (1) why he has not complied with the notice of the Commissioner, (2) why the case should not be dismissed, or (3) why findings of fact should not be made on the evidence theretofore produced.

RULE 41. EVIDENCE

(a) Form and Admissibility: In all trials the testimony of witnesses shall be taken orally in open court. All evidence shall be admitted which is admissible under the statutes of the United States or under the rules of evidence applied in the courts of the United States in nonjury trials. In any case, the rule which

1 The place of trial is fixed by the Commissioner. It is usually at, or as near as possible to, the place of residence of the claimant or of the witnesses, unless it is more satisfactory to convene at some other central point.

« PreviousContinue »