PART I. SCOPE OF RULES AND DEFINITIONS
PART II. STARTING AN ACTION AND SERVICE
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NNSC
Commentary: Service of summons and complaint is often called service
of process. Process generally refers to the means by which a
defendant is informed of an action and compelled to appear and
defend.
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| 4(a) |
Filing the Complaint.
At the time the complaint is filed, the clerk shall place
thereon the date and hour on which it was filed and the number of
the action. The clerk shall immediately issue a summons and deliver
the summons and a copy of the complaint for service to the Navajo
Police or to any other person authorized by Rule 4( c) to serve it.
Upon request of the plaintiff separate or additional summons shall
issue against any defendant. |
| 4(b) |
Summons; Form; Service;
Substitute Summons. |
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(1) |
A summons shall: |
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(A) |
Be signed by the clerk of
the court. |
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(B) |
Contain the name and
district of the court. |
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(C) |
Contain the names of the
parties. |
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(D) |
Be directed to the
defendant. |
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(E) |
Show the docket number. |
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(F) |
State the time within,
which these Rules require the defendant to answer the complaint. |
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(G) |
Notify defendant that in
case of his failure to answer the complaint a judgment by default
may be entered against him. |
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(2) |
A copy of the complaint and
summons shall be prepared for each defendant. |
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(3) |
The summons and complaint
shall be served together. The plaintiff shall furnish the person
making service with necessary copies. Service attempts shall be made
in the following order: |
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(A) |
Service within the Navajo
Nation: |
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i. |
Personal Service |
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ii. |
Certified Mail |
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iii. |
Publication |
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(B) |
Service out of the Navajo
Nation: |
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i. |
Personal Service |
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ii. |
Certified Mail |
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iii. |
Publication |
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If a summons. is returned
without being served, or if it has been lost, the clerk shall issue
a substitute summons. |
| 4(c) |
Who May Make Personal
Service of Process within the Navajo Nation. Personal
Service of process shall be by one of the following: |
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(1) |
Navajo Police Officer.
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(2) |
Special appointee. A
special appointee is a person eighteen years of age or older who is
not a party or legal counsel in the action. A special appointee is
appointed by the presiding judge of the court in which the action is
filed and the appointment is only for service of process in the
action. Special appointments to serve process shall be freely made.
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(3) |
Private process server who is
registered with the court. |
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(A) |
A private process server,
if a person eighteen years of age or older, may be registered with
the court by filing an application containing the following: |
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i. |
Name, age, residence, business address
and telephone number. |
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ii. |
A statement that he has been a bona
fide resident of the Navajo Nation for at least six (6) months
immediately preceding the application. |
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iii. |
A statement that he will serve process
in accordance with the law. |
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iv. |
Fees set pursuant to Rule 4(c)(3)(F)
shall be paid at this time. |
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(B) |
The application must be
made under oath and notarized. |
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(C) |
Upon approval by the court
or presiding judge, the applicant shall be registered with the clerk
as a private process server until such registration is withdrawn. |
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(D) |
The clerk shall maintain a
register of private process servers and shall deliver to each server
proof of registration. |
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(E) |
A registered private
process server shall serve in such capacity for any court of
the Navajo Nation. |
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(F) |
The judges of the Navajo
Nation with the approval of the Supreme Court may set uniform fees
for registration of private process servers. |
| 4(d) |
Who May be Served; How
Personal Service is Made. The following persons or entit[i]es
may be served with process within the Navajo Nation. |
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(1) |
Generally. Upon an
individual or entity other than those specified in paragraphs (2),
(3), (4) and (5) of this subdivision of this Rule: by delivering a
copy of the summons and of the complaint to him personally or by
leaving copies at his dwelling house or usual place of abode with
some person sixteen (16) years or older then residing therein or by
delivering a copy of the summons and of the complaint to an agent
authorized by appointment or by law to receive service of process. |
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(2) |
Minor. Upon a minor
under the age of sixteen (16): by service as set forth in Rule
4(d)(1), upon the minor and a parent or guardian of person and/or
estate, or if none is found, then upon any person having the care
or control of the minor, or with whom he resides. |
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(3) |
Incompetent. Upon a
person who has been judicially declared to be insane or mentally
incompetent to manage his property and for whom a guardian has been
appointed: by service as set forth in Rule 4(d)(1), upon such person
and also upon his guardian, or if no guardian has been appointed,
upon such person as the court designates. |
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(4) |
Corporation. |
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(A) |
Upon a corporation
incorporated under Navajo law 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 a partner, 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 law to
receive service and the law so requires, by also mailing a copy to
the defendant. |
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(B) |
When a corporation
incorporated under Navajo Law does not have an officer or agent in
the Navajo Nation upon whom service of process can be made: by
depositing two copies of the summons and of the complaint in the
office of the Department of Commerce which shall be deemed personal
service on such corporation. The return of the process server
showing that after diligent search or inquiry the process server has
been unable to find any officer or agent of such or corporation upon
whom process may be served shall be prima facie evidence that the
corporation does not have such an officer or agent in the Navajo
Nation. The Department of Commerce shall file one of the copies in
its office and immediately mail the other copy, by certified, to the
office of the corporation, or to the president, secretary or any
director or officer of such corporation as appears from the articles
of incorporation or other papers on file in its office, or
otherwise. |
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(5) |
Navajo Nation. Upon
the Navajo Nation: by complying with the requirements of the Navajo
Tribal Code. |
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NNSC
Commentary: The requirements for service on the Navajo Nation are
contained in the Sovereign Immunity Act of the Navajo Tribal Code.
That Act also requires that notice of intent to file suit must be
given before the complaint can be filed. Counsel should check for
notice of suit requirements. The Act also contains the time period
in which the Navajo Nation as a defendant is allowed to answer the
complaint.
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| 4(e) |
Alternative Service.
When personal service cannot be made within the Navajo Nation
alternative service may be made. |
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(1) |
Who is Subject to
Alternative Service. Alternative service may be had on the
following defendants: |
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(A) |
Nonresident of the Navajo
Nation. |
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(B) |
A resident of the Navajo
Nation who is absent from the Navajo Nation. |
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(C) |
One whose residence or
address is unknown. |
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(D) |
A corporation incorporated
under the laws of any other jurisdiction which has no legally
appointed agent in the Navajo Nation. |
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(E) |
One who is concealing
himself to avoid service of summons. |
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(2) |
Methods of Alternative
Service. Alternative service shall be made in the following
order: |
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(A) |
Personal Service Out of the
Navajo Nation. Service out of the Navajo Nation may be made in the
same manner provided in Rule 4(d)(1)-(4) by a person authorized to
serve process under the law of the jurisdiction where such service
is made or who is specially appointed by the Navajo district court.
Service shall be complete when made and the time for appearance and
answer shall begin to run at that time, provided that before any
default may be had on such service, there shall be filed an
affidavit of the party or his counsel justifying the use of personal
service out of the Navajo Nation and attaching an affidavit of the
process server showing the service. |
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(B) |
Certified Mail. When the
whereabouts. of a defendant, whether within or outside the Navajo
Nation is known, but personal service cannot be made, the serving
party may mail a copy of the summons and complaint by certified
mail. Upon return of the receipt, an affidavit shall be filed with
the court justifying the use of certified mail under Rule 4(e)(1);
and (a) that a copy of the summons and complaint was mailed to the
party being served; (b) that it was in fact received by the party
as shown by the attached return receipt; (c) that the genuine
receipt is attached; and (d) the date of the return of the sender.
This affidavit shall be prima facie evidence of service of the
summons and complaint and service shall be deemed complete upon
filing of the affidavit. |
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(3) |
Publication. Service
by publication shall be made by publication of the summons in the
Navajo Times or in the newspapers where the person resides, or
in the newspapers of the person's last known residence for at least
once a week for four successive weeks. The service shall be complete
thirty (30) days after the first publication. The party shall, on or
before the date of the first publication, mail a copy of the summons
and of the complaint to the defendant at the defendant's last known
address, if any. The plaintiff shall file an affidavit showing the
publication and the mailing which shall be prima facie evidence of
compliance, and if the address is unknown, the affidavit shall so
state. |
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(A) |
Motion for Publication.
Before service by publication is ordered by the court, the party
shall file an ex parte motion with an affidavit naming the
newspapers in which publication shall be made and showing that other
means of service has been tried and were unsuccessful. |
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(4) |
Time for Appearance
after Service Under Rule 4(e). Where service of a copy of the
summons and complaint is made pursuant to Rule 4(e), the defendant
shall appear and answer within thirty (30) days after completion in
the same manner and under the same penalties as if the defendant had
been personally served with a summons within the Navajo Nation. |
| 4(f) |
Territorial Limits of
Effective Service. All process may be served anywhere within the
territorial limits of the Navajo Nation as defined at 7 N.N.C. §
253,70 and where authorized by these Rules, outside of the Navajo
Nation. |
| 4(g) |
Return. When the
process is served by the Navajo Police, the return shall be
officially endorsed and returned to the court promptly. If served by
a person other than the Navajo Police, return and proof of such
service shall be made promptly by affidavit. In either event the
return shall be made within the time during which the person served
must respond to process. Failure to make proof of syrvice does not
affect the validity of service. |
| 4(h) |
Return of Service of
Publication. When the summons is served by publication, the
return shall be in affidavit form showing when and how it was served
and the dates of publication, and the affidavit shall be accompanied
by a printed copy of the publication. |
| 4(i) |
Amendment. The court
may in its discretion allow any process or proof of service to be
amended, unless it clearly appears that prejudice will result to the
substantial rights of the party against whom the process issued.
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RULE 5. Service and Filing of
Subsequent Pleadings and other Papers.
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| 5(a) |
Service: When
Required. Except as otherwise provided in these Rules, every
pleading, order, motion, notice, and every paper filed subsequent to
the original complaint shall be served upon all the parties. |
| 5(b) |
Service; How Made;
Certificate of Service. If a party is represented by counsel,
the service shall be made upon counsel unless the court orders
otherwise. Service upon counselor upon a party shall be made by
delivering a copy to such person or, by mailing it to the person's
last known address. Service by mail is complete upon mailing. All
pleadings and every paper filed with the court shall contain a
certificate. of service showing the date and manner of service. |
| 5(c) |
Filing. A copy of
all pleadings filed with the court shall be served upon all the
parties within five (5) days after the filing, unless the court
orders otherwise. |
| 5(d) |
Service After Judgment.
After the time for appeal from a judgment has expired or a
judgment has become final after appeal, service of a motion,
petition, complaint or other pleading required to be served and
requesting modification, vacation, or enforcement of that judgment,
shall be served pursuant to Rule 4 as if serving a summons and a
complaint. |
| 5(e) |
Filing with the Court
Defined. The filing of pleadings with the court under these Rules
shall be made by filing them with the clerk of the court. Filing is
complete after the pleadings have been stamped by the clerk with the
court's stamp and the date and time of filing endorsed thereon and
initialed by the clerk. |
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| 6(a) |
Computation. In
computing time under these Rules, by order of court, or by any
applicable statute, the date 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 court holiday, in which event the
period runs until the end of the next business day which is not a
Saturday, a Sunday, or a court holiday. |
| 6(b) |
Extension of Time.
When by these Rules or by notice given thereunder or by order of
court, an act is required to be done at or within a specified time,
the court for good cause may (1) with or without motion or notice,
order the period enlarged if request is made before the expiration
of the period originally prescribed or as extended by a previous
order; or (2) upon motion made after the expiration of the specified
period permit the act to be done where the failure to act was the
result of excusable neglect, but it may not extend the time for any
actions under Rules 50(b), 52(b), 59(e), and 60(c), except under the
conditions stated in them. |
| 6(c) |
Notice of Hearing on
Motions. Notice of hearing on a motion shall be served on the
parties at least ten (10) days before the time specified for the
hearing, unless a different period is fixed by these Rules or by
order of the court. |
| 6(d) |
Orders to Show Cause.
An order to show cause is returnable at the time and place the
judge designates. |
| 6(e) |
Additional Time after
Service by Mail. Whenever a party is required to do some act or
take some proceedings within a prescribed time after the service of
a notice or other paper upon him and the notice or paper is served
by mail, five days shall be added to the prescribed time. This
subsection applies only after the filing of the complaint and
service of process. |
| 6(f) |
Dismissal of Action.
An action shall be dismissed without prejudice if the summons is not
issued and service completed within six months from the date of the
filing of the complaint. |
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PART III. PLEADINGS AND MOTIONS
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RULE 7. Pleadings Allowed.
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| 7(a) |
Claims for Relief.
Claims for relief allowed by these Rules are original claims or
complaints, counterclaims, cross-claims and thirdparty complaints. |
| 7(b) |
Answers. Answers
shall be filed to an original claim or complaint, a counterclaim, a
cross-claim and a third-party complaint. |
| 7(c) |
Motions. |
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(1) |
An application to the court
for an order after the action is commenced shall be by written
motion, unless made during a hearing or trial. |
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(2) |
All motions must be
accompanied by a memorandum containing a statement of the relief
desired, the factual or legal grounds supporting the motion, and any
other matters in support of the motion which are relevant. Briefs
may be ordered in the discretion of the court. |
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NNSC
Commentary: Generally briefs will not be required with the following
motions: Continuance; Substitute Counsel; Entry of Appearance;
Enforcement of Court Order; Default Judgment. These motions should
be supported by affidavits or other factual material. In unusual
circumstances the court may order briefs as part of the motion
consideration.
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(3) |
Oral arguments may be
permitted in the discretion of the court. |
RULE 8. General Rules of
Pleading.
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| 8(a) |
Claims for Relief. A
pleading which sets forth a claim for relief, including an original
complaint, counterclaim cross-claim, or third-party claim, shall
contain: |
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(1) |
A short and plain statement
for the court's jurisdiction, unless the court's jurisdiction is
established by prior pleadings. |
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(2) |
A short and plain statement
of the facts giving rise to the action. |
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(3) |
A short and plain statement
of the claim showing that the pleader is entitled to relief. |
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(4) |
A prayer for relief. Relief
in the alternative may be requested. |
| 8(b) |
Defense; Form of Denials.
An answer shall state in short and plain terms the defenses to each
claim asserted and shall admit or deny the statements in the claim
for relief. The party filing the answer may deny a part of a
statement and admit the rest. Any claim which is not admitted shall
be deemed denied. If no responsive pleading is required, statements
in the claim for relief shall be deemed denied. The party filing the
answer has a duty to admit what he knows is true. |
| 8(c) |
Affirmative Defenses. |
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(1) |
These affirmative defenses
must be pleaded at the time an answer is filed: |
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(A) |
Release or settlement. |
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(B) |
Assumption of the risk,
contributory or comparative negligence, discharge in bankruptcy, and
statute of limitations. These affirmative defenses not pleaded at
the time an answer is filed shall be deemed waived. |
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(2) |
These affirmative defenses
may be pleaded at the time an answer is filed: |
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(A) |
Duress |
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(B) |
Estoppel |
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(C) |
Failure of consideration |
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(D) |
No consideration |
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(E) |
Fraud |
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(F) |
Illegality |
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(G) |
Laches |
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(H) |
Res judicata |
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(I) |
Waiver and any other
avoidance or affirmative defense. |
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If these affirmative
defenses are not pleaded at the time the answer is filed, they may
be asserted thereafter only by leave of court upon written motion to
amend the pleadings. |
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NNSC
Commentary: The defendant may state the defense of
contributory/comparative negligence using either or both terms. The
defendant must show that plaintiffs negligence contributed to
plaintiffs injury.
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RULE 9. Pleading Special Matters.
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| 9(a) |
Capacity. It is not
necessary to allege the capacity of a party to sue except to the
extent required to show the jurisdiction of the court. When a party
raises an issue as to the legal existence of any party or the
capacity of any party to sue or be sued, he shall do so by specific
allegation stating supporting facts which are within the pleader's
knowledge. |
| 9(b) |
Fraud; Mistake;
Condition of the Mind. In all allegations of fraud or mistake,
the circumstances constituting fraud or mistake shall be
specifically stated. Malice, intent, knowledge, and other condition
of mind of a person may be alleged generally. |
| 9(c) |
Time and Place. For
the purpose of testing the sufficiency of a pleading, allegations of
time and place are material and shall be considered like all other
averments of material matter. |
| 9(d) |
Special Damage. When
items of special damage are claimed, they shall be specifically
stated. |
| 9(e) |
Complaint in Action or
Libel or Slander. In an action for libel or slander, the
complaint need not state the specific statement out of which the
alleged claim arose, but may allege generally that the libel or
slander was published or spoken concerning the plaintiff, and if the
allegation is controverted, the plaintiff shall establish at the
trial that it was so published or spoken. |
| 9(f) |
Verification of Answer.
Any responsive pleading raising the following matters, unless
the truth of the pleading appears of record, shall be verified by
affidavit of the party: |
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(1) |
That the plaintiff does not
have legal capacity to sue. |
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(2) |
That the plaintiff is not
entitled to recover in the capacity in which he sues. |
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(3) |
That there is another
action pending between the same parties for the same claim. |
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(4) |
That there is a defect of
parties, plaintiff, or defendant. |
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(5) |
A denial of partnership, or
of incorporation, of the plaintiff or defendant. |
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(6) |
A
denial of the execution by the defendant or by his authority
of any instrument in writing upon which any pleading, is based, in
whole or in part, and alleged to have been executed by him or by his
authority, and not alleged to be lost or destroyed. When the
instrument is alleged to have been executed by a person then
deceased the affidavit must show that such instrument was not
executed by the decedent or by his authority. |
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(7) |
A denial of the genuineness
of the endorsement or assignment of a written instrument. |
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(8) |
That a written instrument
upon which a pleading is based is without consideration, or that the
consideration has faiLed in whole or in part. |
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(9) |
That an account which is
the basis of plaintiffs action and supported by an affidavit is not
just, and in such case the answer shall set forth the items and
particulars which are unjust. |
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RULE 10. Form of Pleadings.
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| 10(a) |
Caption; Numbers of
Parties. Every pleading shall contain a caption setting forth
the name of the court, the title of the action, the case 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 subsequent
pleadings the names of the first party on each side may be stated
followed by the designation "et al." |
| 10(b) |
Paragraph; Separate
Statement. All statements of a claim or defense shall be made in
numbered paragraphs. Each paragraph shall be limited to a statement
of a single set of circumstances, and a paragraph may be referred to
by number in all succeeding pleadings. |
| 10(c) |
Inclusion by Reference;
Exhibits. Statements in a pleading may be included by reference
in a different part of the same pleading or in another pleading or
in a motion. A copy of a writing which is an exhibit to a pleading
becomes a part of the pleading. An exhibit attached to a pleading
remains subject to the Rules of Evidence. |
| 10(d) |
Method of Preparation and Filing.
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(1) |
Court Documents: Form. |
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(A) |
Size of paper. All
pleadings submitted to the court for filing shall be on paper 8 1/2
inches wide by 11 inches long. The typed matter must be double
spaced. |
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(B) |
Form and Content of
Pleading. The following. information must be contained on the
first page of every pleading, and such information may be
single-spaced: |
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i. |
The name, address, and telephone number
or counsel representing the party, and whether the counsel appears
for the plaintiff, defendant, or other party must be typewritten or
printed in the space to the left of the center of the paper and
beginning at the first line typed or printed on the page. The space
to the right of the center is reserved for filing information. |
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ii. |
The title of the court will be centered
and begin below the counsel and party identifying information. |
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iii. |
Below the title of the court, the title
of the action must be placed to the left of the center of the paper.
In the space to the right of the center, there must be (A) the
docket number of the action, (B) the title of the pleading or
document. |
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(2) |
Court Documents: Filing.
The clerk of the court may reject any pleading or document where
the party fails to offer a required court form for filing or where
the party fails to comply with a statute or rule requiring
particular information or copies of certain documents. |
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RULE 11. Signing of the Pleadings.
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NNSC
Commentary: This Rule reflects the standards of practice which make
counsel officers of the court and which require counsel to advise
the court consistent with justice.
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| 11(a) |
Certificate of Counsel. |
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(1) |
The signature of counsel,
of of any person representing himself, must be contained on a
pleading or other document submitted to the court or other documents
as provided in this Rule. The signature is a certificate that the
pleading or document is submitted in good faith and that the matters
of fact or law contained in the papers are made in good faith, are
believed to be true and accurate, and are based upon a reasonable
investigation of or research of those asserted statements of fact or
law. |
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(2) |
No pleading or document
need contain a sworn statement that the matters contained in it are
true or true upon the person's knowledge and belief unless
verification is required by a statute, rule of court or customary
practice, as in seeking extraordinary relief. Parties shall be bound
by affidavits and exhibits filed by them, and counsel shall make an
adequate investigation of the facts of an affidavit to make certain
there is an independent review of their contents. |
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(3) |
The signature of counsel on
a pleading is a certificate that counsel is a member in good
standing of the Navajo Nation Bar Association. |
| 11(b) |
Sanctions.
The court may impose sanctions if it finds that a pleading is
not submitted in good faith, or if it contains material
misstatements of fact or law, or if it is not based upon an adequate
investigation or research. Sanctions may include striking a
pleading or document, assessing costs of opposing the pleading or
document against a party or counsel, assessing counsel fees for
resisting the pleading or document against a party or counsel, or
granting other relief which may be appropriate under the
circumstances. |
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RULE 12. Defenses and Objection: When and How Presented; By
Pleading or Motion; Motion for Judgment on Pleading.
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| 12(a) |
When Presented. A
defendant shall serve and file an answer within 30 days after being
served with the summons and complaint. A party served with a
cross-claim shall serve and file an answer within twenty (20) days
after the service. The plaintiff shall serve and file a reply to a
counterclaim within twenty (20) days after service. The service of a
motion under this. Rule alters these periods of time as follows,
unless a different time is fixed by order of the court: |
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(1) |
If the court denies the
motion or postpones its disposition until the trial on the merits,
the responsive pleading shall be served within ten
(to) days after notice of
the court's action. |
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(2) |
If the court grants a
motion for a more definite statement the responsive pleading shall
be served within ten (10) days after service of the more definite
statement. |
| 12(b) |
How Presented; Motion
to Dismiss. 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 if
one is required, except that the following defenses may at the
option of the pleader be made by motion prior to responsive
pleading: |
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NNSC
Commentary: Motions under this Rule may be accompanied by a
responsive pleading. If the motion is filed by itself and is denied
or postponed until trial on the merits, the responsive pleadings
must be filed within ten days of the court's action on the motion.
See Rule 12(a)(1).
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(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. |
| |
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 ill law
or fact to that claim for relief. If, on a motion to dismiss for
failure 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 relevant to such a motion
by Rule 56. |
| 12(c) |
Motion for Judgment on the Pleading. At any time, but not
to delay the trial, any party may move for judgment on the
pleadings. If, in a motion for judgment on the pleadings,
matters outside the pleadings are presented to 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 relevant to
such a motion by Rule 56.
|
| 12(d) |
Preliminary Hearings. The
defenses enumerated in Rule 12(b)(1)-(7), whether made in a pleading
or by motion, and the motion for judgment on the pleadings, shall be
decided before trial, unless the court orders that the matter be
deferred until trial. |
|
NNSC
Commentary: The defendant may request that the court conduct a
hearing on a motion to dismiss filed under Rule 12(b) or 12(c).
|
| 12(e) |
Motion for More Definite
Statement. If a pleading to which a responsive pleading is
permitted is vague or unclear, a party may move for a more definite
statement before filing his responsive pleading. The motion shall
state the defects and the details desired. If the motion is granted
and the order of the court is not obeyed within such time as the
court may fix, the court may strike the pleading to which the motion
was directed or make such order as it deems just. |
| 12(f) |
Items of Account;
Demand. The party pleading need not state the items of an
account alleged in the pleading, but if demand is made in writing
for the items of account, the adverse party shall file and serve a
copy of the account within ten (10) days after demand, or be
precluded from giving evidence thereon. The court may order a
further account when the account delivered is too general or is
defective. |
|
NNSC
Commentary: An account is a statement in writing of monetary
transactions and may include payments, losses, sales, debits,
credits, etc.
|
| 12(g) |
Motion to Strike. Upon motion made by a party or upon the
court's own motion, the court may order stricken from a pleading any
insufficient defense or any redundant, immaterial, irrelevant,
frivolous or scandalous matter. |
| 12(h) |
Consolidation of Defenses in Motion. A party who makes a motion
under. this Rule may join with it any other motions then available.
|
| 12(i) |
Waiver or Preservation
of Certain Defenses. A party waives any defense and objection
under Rule 12(b), which is not presented either by motion or
responsive pleading except: |
| |
(1) |
A defense of lack of
jurisdiction over the person, improper venue, insufficiency of
process, or insufficiency of service of process is waived if it is
not made by motion under this Rule or included in a responsive
pleading or an amendment permitted by Rule 15(a). |
| |
(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 a
pleading permitted or ordered under Rule 7, or by motion for
judgment on the pleadings, or at the trial on the merits. |
| |
(3) |
Whenever the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action. |
|
NNSC
Commentary: Lack of subject matter jurisdiction renders a judgment
void. Lack of subject matter jurisdiction may be noticed by the
court at anytime, even after judgment is entered
|
|
RULE 13. Counterclaim and CrossClaim.
|
| 13(a) |
Compulsory
Counterclaims. A pleading shall state as counterclaim any claim
which 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
Rule 13. |
| 13(b) |
Permissive Counterclaim. A pleading may state as a
counterclaim any claim against an opposing party not arising out of
the transaction or occurrence that is the subject matter of the
opposing party's claim. |
| 13(c) |
Counterclaim Exceeding
Opposing Claim. A counterclaim mayor may not defeat the recovery
sought by the opposing party. It may claim relief exceeding in
amount or of a different kind from that sought in the pleading of
the opposing party. |
| 13(d) |
Counterclaim Maturing or
Acquired After Pleading. A claim which either matured or was
acquired by the pleader after serving his pleading may, with the
permission of the court, be presented as a counterclaim by
supplemental pleading. |
| 13(e) |
Omitted Counterclaim.
When a pleader fails to state a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may
by leave of court make the counterclaim by amendment. |
| 13(f) |
Cross-claim Against
Co-Party. A pleading may state as a cross-claim any claim by one
party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action
or of a counterclaim or relating to any property that is the subject
matter of the original action. The cross-claim may include a claim
that the party against whom it is asserted is or may be liable to
the cross-claimant for all or part of a claim asserted in the action
against the crossclaimant. |
| 13(g) |
Joinder of Additional
Parties. Persons other than those made parties to the original
action maybe made parties to a counterclaim or cross-claim in
accordance with the provisions of Rules 19 or 20. |
| 13(h) |
Separate Trial; Separate
Judgments. If the court orders separate trials as provided in
Rule 40(b), judgment on a counterclaim or crossclaim may be
rendered in accordance with Rule 54(b) when the court has
jurisdiction to do so even, if the claims of the opposing party have
been dismissed or otherwise disposed of. |
|
RULE 14. Third-party Practice.
|
| 14(a) |
Third-Party Complaint.
At any time after the commencement of the action, a defendant
may bring in a person not a party to the action, who is, or may be
liable to the defendant for all or part of the plaintiffs claim
against the defendant. |
| 14(b) |
Form and Content of Third-party
Pleadings. |
| |
(1) |
The defendant bringing in
the third-party is the third-party plaintiff. |
| |
(2) |
The person served with the
third-party complaint is the third-party defendant. |
| |
(3) |
The third-party defendant
shall defend to the third-party plaintiffs claim as provided in Rule
12. |
| |
(4) |
The third-party defendant
shall assert counterclaims against the third-party plaintiff as
provided in Rule 13. |
| |
(5) |
The third-party defendant
may assert cross-claims against other third-party defendants as
provide in Rule 13. |
| |
(6) |
The third-party defendant
may assert against the plaintiff any defense which the third-party
plaintiff has to the plaintiffs claim. |
| |
(7) |
The third-party defendant
may assert any claim against the plaintiff arising out of the
transaction or occurrence that is the subject matter of the
plaintiffs claim against the thirdparty plaintiff. |
| |
(8) |
The plaintiff may assert
any claim against the third-party defendant arising out of the
transaction or occurrence that is the subject matter of the
plaintiffs claim against the thirdparty plaintiff. |
| |
(9) |
Upon assertion of a claim
by the plaintiff, the third-party defendant shall assert his
defenses as provided in Rule 12 and his counterclaims and
cross-claims as provided in Rule 13. |
| |
(10) |
Any party may move to
strike the thirdparty claim, or for its severance, or separate
trial. |
| |
(11) |
A third-party defendant may
proceed under this Rule against any person not a party to the action
who is or may be liable to him for all or part of the claim made
in the action against the third-party defendant. |
| 14(c) |
Service. A
third-party defendant is brought in by service upon him of a summons
and complaint as provided in Rule 4. |
| 14(d) |
When Plaintiff May Bring
in ThirdParty. When a counterclaim is asserted against a
plaintiff, he may bring in a third-party under this Rule. |
|
RULE 15. Amended and Supplemental
Pleadings.
|
| 15(a) |
Amendments. |
| |
(1) |
A party may amend his
pleading once 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, he may
amend it at any time within twenty (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 except for the defenses
designated in Rule 12(i)(l). Leave to amend shall be freely given
when justice requires. |
| |
(2) |
A party shall plead in
response to an amended pleading within the time remaining for
response to the original pleading or within ten (10) days after
service of the amended pleading, whichever period may be longer,
unless the court otherwise orders. |
| 15(b) |
Relation Back of
Amendments. Whenever the claim or defenses asserted in the
amended pleading arose out of the transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading. An
amendment changing the party against whom a claim is asserted
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 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. Service of
process upon new parties must comply with Rule 4. |
| 15(c) |
Supplemental Pleadings.
Upon motion of a party the court may, upon reasonable notice,
permit the party to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the
date of the original pleading. |
|
RULE 16. Pretrial Conference;
Scheduling; Management.
|
| 16(a) |
Pretrial Conferences;
Objectives. The court may in its discretion or upon motion of
the parties direct the counsel for the parties and any unrepresented
parties to appear for a conference before trial for such purposes
as: |
| |
(1) |
expediting the disposition
of the action; |
| |
(2) |
establishing early and
continuing control so that the case will not be protracted because
of lack of management; |
| |
(3) |
discouraging wasteful
pretrial activities; |
| |
(4) |
improving the quality of
the trial through more thorough preparation; and |
| |
(5) |
facilitating the settlement
of the case. |
| 16(b) |
Scheduling and Planning.
Upon its own motion or upon motion of the parties, the court
may, after consulting with the counsel for the parties and any
unrepresented parties by a pretrial conference, telephone, mail, or
other suitable means, enter a scheduling order that sets deadlines
for joining other parties and amending pleadings; serving and
hearing motions; and completing discovery.
The scheduling order may also include: the date or dates for
conferences before trial, a final pretrial conference, and trial;
and any other matters appropriate in the case.
If the court determines after consultation that a scheduling order
is appropriate, the order shall be issued promptly. A schedule shall
not be modified except by leave of court upon a showing of good
cause. |
| 16(c) |
Subjects to be Discussed
at Pretrial Conferences. The participants at pretrial conference
may act on: |
| |
(1) |
the formulation and
simplification of the issues, including the elimination of frivolous
claims or defenses; |
| |
(2) |
the necessity or
desirability of amendments to the pleadings; |
| |
(3) |
the possibility of
obtaining admissions of fact and documents which will avoid
unnecessary proof, stipulations regarding the authenticity of
documents, and advance rulings from the court on the admissibility
of evidence; |
| |
(4) |
the identification of those
Navajo customs or traditions which may be used to resolve the
dispute. |
| |
(5) |
the avoidance of
unnecessary proof and of cumulative evidence; |
| |
(6) |
the identification of
witnesses and documents, the need and schedule for filing and
exchanging pretrial briefs, and the date or dates for further
conferences and for trial; |
| |
(7) |
the possibility of
settlement, or the use of extrajudicial procedures or the Navajo
peacemaker courts, to resolve the dispute; |
| |
(8) |
the form and substance of
the pretrial order; |
| |
(9) |
the disposition of pending
motions; |
| |
(10) |
the need for adopting
special procedures for managing potentially difficult or protracted
actions that may involve complex issues, multiple parties, difficult
legal problems, or unusual proof problems; and |
| |
(11) |
such other matters as may
aid In the disposition of the action. |
| 16(d) |
Final Pretrial
Conference. Any final pretrial conference shall be held as close
to the time of trial as reasonable under the circumstances. The
participants at pretrial conference shall formulate a plan for
trial, including a program for facilitating the admission of
evidence. |
| 16(e) |
Pretrial Orders.
After any pretrial conference, an order may be entered which shall
control the subsequent course of the action unless modified by a
subsequent order to prevent injustice. |
| 16(f) |
Sanctions. If a
party or counsel fails to obey a scheduling or pretrial order, or if
no appearance is made on behalf of a party at a scheduling or
pretrial conference, or if a party or party's counsel is
substantially unprepared to participate in the conference, or if a
party or party's counsel fails to participate in good faith, the
court may in its discretion or upon motion of any party enter
appropriate sanctions |
| 16(g) |
Pretrial statements.
Counsel for the parties or the parties together shall prepare a
joint pretrial statement prior to attending a final pretrial
conference which shall contain the following and shall be submitted
to the court at the time of the final pretrial conference: |
| |
(1) |
The uncontested facts
deemed material. |
| |
(2) |
The uncontested issues of
fact and law as the parties or counsel can agree are material or
applicable. |
| |
(3) |
A separate statement by
each party of other issues of fact or law which that party believes
material. |
| |
(4) |
A list of the witnesses
intended to be used by each party during the trial, other than those
intended to be used solely for impeachment. No witnesses shall be
used at the trial other than those listed, except to prevent
injustice. |
| |
(5) |
A list of the exhibits
which each party intends to use at trial, other than those intended
to be used solely for impeachment, specifying exhibits which the
parties agree are admissible at trial. No exhibits shall be used
during the trial other than those listed, except to prevent
injustice. |
|
PART IV. PARTIES
|
RULE 17. Parties Plaintiff and
Defendant; Capacity.
|
| 17(a) |
Real Party in Interest.
Every action shall be prosecuted in the name of the real party
in interest. An executor administrator, or guardian appointed in the
Navajo Nation, 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 the party for whose benefit the action is brought.
No action shall be dismissed because 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 has been commenced in the name of
the real party in interest. |
| 17(b) |
Actions By or Against
Personal Representatives. Actions for the recovery or possession
of property, real or personal, or to quiet title thereto, or to
determine an adverse claim thereto, and all actions founded upon
contracts, may be maintained by or against an executor or
administrator or an estate in all cases in which such actions might
have been maintained by or against his testator or intestate. |
| 17(c) |
Actions Against Surety,
Assignor or Endorser. The assignor, endorser, guarantor and
surety upon a contract, and the drawer of a bill which has been
accepted, may be sued without the maker, acceptor or other principal
obligor when the latter resides beyond the jurisdictional reach of
the Navajo Nation, or when his residence is unknown and cannot be
ascertained by the use of reasonable diligence, or when he is dead,
or insolvent. |
| 17(d) |
Infants or Incompetent
Persons. Whenever an infant or incompetent person has a
representative, such as a general guardian, or similar 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 orders for the protection of the infant or
incompetent person. |
| 17(e) |
Bond of Guardian Ad
Litem or Next Friend. If an action is brought for the minor or
incompetent person by his next friend or guardian ad litem, the next
friend or guardian ad litem shall not receive any money or property
of the minor or incompetent until such friend or guardian files a
bond as security if the court deems necessary, or other form of
security in such form and with such surety as the court may
prescribe and approve. |
| 17(f) |
Consent of Guardian Ad Litem or Next Friend; Liability;
Compensation. No person shall be appointed guardian ad litem or
serve as next friend except upon written consent filed by the
person. The person shall not be personally liable for costs
connected with the action unless by order of the court. The court
may allow reasonable compensation for services. |
| 17(g) |
Partnerships and Corporations. Any partnership, corporation,
or any unincorporated association may sue and be sued in the name
which it has assumed or by which it is known. |
RULE 18. Joinder of Claims and
Remedies.
|
| 18(a) |
Joinder of Claims.
A party asserting a claim
for relief as an original claim, counterclaim, cross-claim, or
third-party claim, may join, either as independent or as alternate
claims, as many claims, legal or equitable, as he has against an
opposing party. |
| 18(b) |
Joinder of Remedies;
Fraudulent Conveyances. Whenever a claim is one recognized 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 set aside a fraudulent
conveyance without first having obtained a judgment establishing the
claim for money. |
RULE 19. Joinder of Persons
Needed for Just Adjudication.
|
| 19(a) |
Compulsory Joinder.
If feasible, a person must be made a party in an action if: |
| |
(1) |
Complete relief cannot be
given to those already parties unless such person is made a party;
or |
| |
(2) |
The person claims an
interest relating to the subject of the action and disposition of
the action without the party may: |
| |
|
(A) |
impair or impede his
ability to protect that interest; or |
| |
|
(B) |
leave any of the parties
subject to a substantial risk of multiple or inconsistent liability
by reason of the claimed interest. |
| 19(b) |
Joinder Must be
Feasible. A person shall be made a party under this Rule only if
joinder is feasible: |
| |
(1) |
Joinder will not deprive
the court of subject matter jurisdiction; and |
| |
(2) |
The person to be joined IS
subject to service of process. |
| 19(c) |
Pleading. A failure
to join an indispensable party is raised as an affirmative defense
under Rule l2(b). |
| 19(d) |
Determination by Court
if Joinder not Feasible. If joinder is not feasible under Rule
19(b) the court must determine whether the action should proceed or
be dismissed. The factors to be considered by the court include:
|
| |
(1) |
The extent to which a
judgment rendered in the person's absence might be prejudicial to
him or those already parties; |
| |
(2) |
The availability of
alternatives such as other pleadings or remedies; and |
| |
(3) |
Whether the plaintiff will
have an adequate remedy if the action is dismissed for nonjoinder. |
RULE 20. Permissive Joinder of
Parties.
|
| 20(a) |
Plaintiffs. All
persons may join In one action as plaintiffs if: |
| |
(1) |
They assert any right to
relief jointly, severally, or in the alternative; and |
| |
(2) |
The claims are in respect
to or arise out of the same transaction or occurrence, or series of
transactions or occurrences; and |
| |
(3) |
Any question of law or fact
common to all these persons will arise in the action. |
| 20(b) |
Defendants. All
persons may be joined as defendants in an action if: |
| |
(1) |
Relief is asserted against
them jointly, severally, or in the alternative; and |
| |
(2) |
The claims against them are
in respect to or arise out of the same transaction or occurrence, or
series of transactions or occurrences; and |
| |
(3) |
Any question of law or fact
common to all defendants will arise in the action. |
| 20(c) |
Relief. A plaintiff
or defendant need not be interested in obtaining or defending
against all the relief demanded. Judgment may be entered in
accordance with the respective rights and liabilities of the
parties. |
| 20(d) |
Separate Trials. The
court 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 grounds for dismissal of an action; parties may be dropped or
added by order of the court on motion of any party, or on its own
order, at any stage of the action on such terms as are just. Any
claim against a party may be severed and proceeded with separately |
|
NNSC
Commentary: This Rule prevents dismissal of an action because
certain persons or entities have or have not been made parties. Even
though parties are added or dropped at any stage of the proceeding,
this is not a ground for dismissing the whole case. This Rule deals
with parties. Rule 15(a) does not conflict. Rule l5(a) sets forth
when the content of pleadings may be amended.
|
|
|
|
NNSC
Commentary: Interpleader is more a procedural device than a matter
of substantive law. An interpleader action. permits a stakeholder
(generally an insurance company or a debtor), who has a set sum of
money or an item or property to which there is more than one
claimant, to ask the court to determine the rights and interests of
each claimant and the amount to which each is entitled. The
stakeholder admits that the money or property belongs to someone but
is legally unable to determine the rightful claimant. The person or
entity seeking interpleader may have no interest in the stake or may
be a party asserting a claim to all or part of the stake.
|
| 22(a) |
Interpleader.
Persons having claims against the plaintiff may be joined as
defendants and required to interplead when their claims are such
that the plaintiff is or may be exposed to double or multiple
liability. A defendant exposed to similar liability may obtain such
interpleader by way of cross-claim. The provisions of this Rule
supplement and do not in any way limit the joinder of parties
permitted in Rule 20. |
| |
(1) |
The plaintiff must deposit
the disputed funds or property or the amount of the instrument or
obligation with the court. |
| |
(2) |
The court may issue its
process for all claimants and enter its order restraining them from
instituting or prosecuting any proceeding in any. other tribal court
or any state or United States court affecting the property
instrument or obligation involved in the interpleader action until
further order of the court. |
| 22(b) |
Objections. The
following will not defeat joinder in an interpleader action: |
| |
(1) |
The claims or the titles
upon which the claims depend do not have a common origin or are not
identical. |
| |
(2) |
The claims or the titles
upon which the claims depend are adverse to and independent of one
another. |
| |
(3) |
The plaintiff alleges that
he is not liable in whole or in part to any or all of the claimants. |
| 22(c) |
Release from Liability;
Deposit or Delivery. Any party invoking an interpleader action
may move the court for an order discharging him from liability to
any of the parties upon depositing the disputed funds or property
with the court. |
| 22(d) |
Preservation of Property
or Funds. Upon receipt of disputed funds or property the court
shall take adequate measures for the safeguarding and preserving of
the funds or property. Funds may be deposited into interest bearing
accounts established for that purpose. Upon final disposition of the
funds, the interest earned shall be awarded to the parties in the
same percentages as the principal funds |
|
RULE 23. Class Actions.
|
| 23(a) |
When Permitted. When
potential plaintiffs or defendants are too numerous for joinder, one
or more representative persons or entities may bring or defend an
action on behalf of all. |
| 23(b) |
Court Order. Within
ninety (90) days after a class action is filed the court shall issue
an order stating whether the class action will be allowed, the terms
and conditions upon which the matter shall proceed, and how notice
shall be given to the members of the class. |
| 23(c) |
Considerations. In
making the order required in Rule 23(b), the court shall consider
the following: |
| |
(1) |
Whether the
representative(s) will adequately protect the interests of the
class. |
| |
(2) |
Whether there are questions
of law or fact common to the class. |
| |
(3) |
Whether the claims or
defenses of the representative parties are typical of the claims or
defenses of the class. |
| |
(4) |
Whether separate actions by
or against individual members of the class might result in
contradictory or incompatible decisions. |
| |
(5) |
The interests of the
members in individually controlling separate actions. |
| |
(6) |
Any other factors raised by
the parties or appearing to the court which the effective and
efficient administration of justice require be considered. |
| 23(d) |
Notice. All members
of the class shall be notified of the action pursuant to the order
of the court under Rule 23(b), in a manner deemed reasonable by the
court. after considering all relevant circumstances including the
desirability of achieving the goal of actual notice to all class
members when this can be accomplished with reasonable efforts. The
notice shall contain the following: |
| |
(1) |
That any member may be
excluded from the class by filing a written request with the court by
a certain date. |
| |
(2) |
That the judgment, whether
favorable or not, will include all members who do not request
exclusion. |
| |
(3) |
That the judgment, will not
include members who request exclusion from the class. |
| |
(4) |
That if a member does not
request exclusion he may, at his option, enter an appearance through
counsel. |
| 23(e) |
Dismissal; Settlement.
No class action shall be dismissed or settled without approval
of the court and notice to all the members of the class in such
manner as the court directs. |
|
|
| |
A person who is not a party
may enter a case upon filing a motion. |
|
NNSC
Commentary: Intervention is distinguished from Interpleader.
Intervention is a method whereby a person claiming an interest in
the matter in litigation may become a party in the pending case.
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| 24(a) |
Intervention of Right.
Upon a timely motion, anyone shall be permitted to intervene if:
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(1) |
A law of the Navajo Nation
confers an unconditional right to intervene; or |
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(2) |
The person seeking to
intervene claims an interest relating to the property or transaction
which is the subject of the action and disposition of the action may
as a practical matter impair or impede the person's ability to
protect that interest. |
| 24(b) |
Permissive Intervention.
Upon timely motion, anyone may be permitted to intervene if: |
| |
(1) |
A law of the Navajo Nation
confers a conditional right to intervene; or |
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(2) |
The claim or defense of the
person seeking to intervene has a question of law or fact in common
with the main action. |
| 24(c) |
Procedure. A motion
to intervene shall be filed with the court and served upon the
parties as provided in Rule 5. The motion shall state the grounds
for intervention and shall be accompanied by a pleading setting
forth the claim or defense for which intervention is sought. |
| 24(d) |
Time to Answer. If
the motion to intervene is granted, the parties shall be allowed
twenty (20) days after service to answer the pleading of the
intervenor. |
RULE 25. Substitution of Parties.
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| 25(a) |
Death. |
| |
(1) |
If a party dies and the
claim is not extinguished, the court may order substitution of the
parties upon motion for substitution by any party or by the
successors or representatives of the deceased party. Notice of
substitution shall be served on the parties as provided in Rule 5
and upon persons not parties as provided in Rule 4 for the service
of summons. Unless the motion for substitution is made not later
than 90 days after the death is entered 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. |
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(2) |
In the event of the death
of one or more of the plaintiffs, or of one or more of the
defendants in an action in which the right sought to be enforced
survives only to the surviving plaintiffs or only against the
surviving defendants, the right sought to be enforced survives only
to the surviving plaintiffs or defendants. The death shall be
entered upon the record and the action shall proceed in favor of or
against the surviving parties. |
| 25(b) |
Death of Defendant After
Tort Action Commenced. An action to recover damages for injuries
to the person, or for property damage, or death caused by the
wrongful act, default or neglect of another, shall not end with the
defendant's death, and the personal representative may be
substituted as the defendant. If the action is against a receiver,
assignee or trustee, and such receiver, assignee or trustee dies,
resigns or is removed from office, his successor in office may be
substituted as defendant. The action shall then proceed to judgment
as if the defendant had remained alive, or the original receiver,
assignee, or trustee had continued in office. |
| 25(c) |
Incompetency. If a
party becomes incompetent, the court upon motion served as provided
in Rule 25(a), may allow the action to be continued by or against
his representative. |
| 25(d) |
Transfer of Interest.
In case of any transfer of interest, the action may be continued by
or against the original party, unless the court upon motion directs
the person to whom the interest is transferred to be substituted in
the action or joined with the original party. Service of the motion
shall be made as provided in Rule 25(a). |
| 25(e) |
Public Officers; Death or Separation
from Office. |
| |
(1) |
When a public officer is a
party to an action in an official capacity and during its pendency
dies, resigns or otherwise ceases to hold office, the action does
not cease and the successor is automatically substituted as a party.
Proceedings following the substitution shall be in the name of the
substituted party, but any incorrect identification not affecting
the substantial rights of the parties shall be disregarded. An order
of substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution. |
| |
(2) |
When a public officer sues
or is sued in an official capacity, he may be described as a party
by his official title rather than by name; but the court may order
his name be added. |
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PART V. DEPOSITION AND DISCOVERY
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RULE 26. General Provisions
Governing Discovery.
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| 26(a) |
Discovery Purpose.
The purposes of discovery are to allow parties to prepare for trial,
to limit a party being surprised at trial, and to define and limit
the facts and issues actually in dispute. |
|
NNSC
Commentary: The purpose of discovery is to avoid surprise and to
enable the parties to fully prepare for trial. The purpose of
retrial preparation is to enable the parties to present the relevant
facts and law to the judge and/or jury as completely and
expeditiously as possible. As officers of the court, counsel should
make use of discovery methods to facilitate the prompt and efficient
administration of justice.
|
| |
(1) |
Discovery method.
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 for
inspection and other purposes; physical and mental examinations; and
requests for admissions. |
| 26(b) |
What May be Discovered. |
|
NNSC
Commentary: Discovery may be broader than evidence admissible at
trial.
|
| |
(1) |
Generally. Parties
may discover any relevant matter, not subject to an evidentiary
privilege, which pertains to any fact or issue involved in the
pending action. Discovery may be had of information that may be
inadmissible at trial if it appears likely the information sought
will lead to the discovery of admissible evidence. |
| |
(2) |
Insurance Agreements.
A party may discover the existence and contents of any insurance
agreement which may be available to satisfy a judgment or reimburse
or indemnify one who pays a judgment. |
| |
(3) |
Trial Preparation. |
| |
|
(A) |
Materials. A party
may discover documents and tangible things prepared for litigation
by another party or the party's representative. The party seeking
discovery must show: |
| |
|
|
i. |
A substantial need of the materials in
preparation of its case, and
|
| |
|
|
ii. |
Is unable to obtain the materials or
their substantial equivalent without undue hardship, |
| |
|
|
iii. |
In ordering discovery of such materials
when the required showing has been made, the court shall protect
against disclosure of the mental impressions, conclusions, opinions,
or legal theories of an attorney or other representative of a party
concerning the litigation. |
| |
|
(B) |
Statements of a Party.
A party may obtain a statement concerning the action or its subject
matter previously made by that party. The statement may be written
and signed or approved by the person making it or it may be a
statement recorded by a stenographer or a machine at the time the
statement was made. |
| |
|
(C) |
Experts.
A part |