We continue with the federal rules of civil procedure. */

(d) Failure of Party to Attend at Own Deposition or Serve 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 the deposition, after being served with a proper notice, 
or (2) to serve answers or objections to interrogatories 
submitted under Rule 33, after proper service of the 
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) of subdivision (b)(2) of this rule. In lieu of 
any order or in addition thereto, the court shall require the 
party failing to act or the attorney advising that party or both 
to pay the reasonable expenses, including attorney's 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) [Abrogated]

(f) [Repealed. P.L. 96-481, Title II, [sec.] 205(a), October 21,
1980, 94 Stat. 2330.]

(g) Failure to Participate in the Framing of a Discovery Plan. If 
a party or a party's attorney 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 or attorney to pay to any other party the reasonable
expenses, including attorney's fees, caused by the failure.


VI. TRIALS


RULE 38. JURY TRIAL OF RIGHT

(a) Right Preserved. The right of trial by jury as declared by 
the Seventh Amendment to the Constitution or as given by a 
statute of the United States shall be preserved to the parties 
inviolate.

(b) Demand. Any party may demand a trial by jury of any issue 
triable of right by a jury by serving upon the other parties a 
demand therefor in writing at any time after the commencement of 
the action and not later than 10 days after the service of the 
last pleading directed to such issue. Such demand may be indorsed 
                           
upon a pleading of the party.


(c) Same: Specification of Issues. In the demand a party may 
specify the issues which the party wishes so tried; otherwise the 
party shall be deemed to have demanded trial by jury for all the 
issues so triable. If the party has demanded trial by jury for 
only some of the issues, any other party within 10 days after 
service of the demand or such lesser time as the court may order, 
may serve a demand for trial by jury of any other or all of the 
issues of fact in the action.

(d) Waiver. The failure of a party to serve a demand as required 
by this rule and to file it as required by Rule 5(d) constitutes 
a waiver by the party of trial by jury. A demand for trial by 
jury made as herein provided may not be withdrawn without the 
consent of the parties.

(e) Admiralty and Maritime Claims. These rules shall not be 
construed to create a right to trial by jury of the issues in an 
admiralty or maritime claim within the meaning of Rule 9(h).

RULE 39. TRIAL BY JURY OR BY THE COURT

(a) By Jury. When trial by jury has been demanded as provided in 
Rule 38, the action shall be designated upon the docket as a jury 
action. The trial of all issues so demanded shall be by jury, 
unless (1) the parties or their attorneys of record, by written 
stipulation filed with the court or by an oral stipulation made 
in open court and entered in the record, consent to trial by the 
court sitting without a jury or (2) the court upon motion or of 
its own initiative finds that a right of trial by jury of some or 
all of those issues does not exist under the Constitution or 
statutes of the United States.

(b) By the Court. Issues not demanded for trial by jury as 
provided in Rule 38 shall be tried by the court; but, 
notwithstanding the failure of a party to demand a jury in an 
action in which such a demand might have been made of right, the 
court in its discretion upon motion may order a trial by a jury 
of any or all issues.

(c) Advisory Jury and Trial by Consent. In all actions not 
triable of right by a jury the court upon motion or of its own 
initiative may try any issue with an advisory jury or, except in 
actions against the United States when a statute of the United 
States provides for trial without a jury, the court, with the 
consent of both parties, may order a trial with a jury whose 
verdict has the same effect as if trial by jury had been a matter 
of right.


RULE 40. ASSIGNMENT OF CASES FOR TRIAL

The district courts shall provide by rule for the placing of 
actions upon the trial calendar (1) without request of the  
parties or (2) upon request of a party and notice to the other 
parties or (3)	in such other manner as the courts deem expedient. 
Precedence shall be given to actions entitled thereto by any 
statute of the United States.


RULE 41. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of 
Rule 23(e), of Rule 66, and of any statute of the United States, 
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 of 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 is without prejudice, 
except that a notice of dismissal operates as an adjudication 
upon the merits when filed by a plaintiff who has once dismissed 
in any court of the United States 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 the defendant 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 the defendant. 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.

Note. Amended April 30, 1991, effective December 1, 1991.


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, always preserving 
inviolate the right of trial by jury as declared by the Seventh 
Amendment to the Constitution or as given by a statute of the 
United States.


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 an Act of 
Congress or by these rules, the Federal Rules of Evidence, or 
other rules adopted by the Supreme Court. 

(b) [Abrogated]

(c) [Abrogated]

(d) Affirmation in Lieu of Oath. Whenever under these rules an 
oath is required 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 on affidavits 
presented by the respective parties, but the court may direct 
that the matter be heard wholly or partly on oral testimony or
deposition.

(f) Interpreters. The court may appoint an interpreter of its own 
selection and may fix the interpreter's 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 United States, 
or any state, district, or commonwealth, or within a territory 
subject to the administrative or judicial jurisdiction of the 
United States, 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 the officer's 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 district 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 
district or political subdivision in which the record is kept, 
authenticated by the seal of the officer's 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 chain 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, vice consul, 
or consular agent of the United States, or a diplomatic or 
consular official of the foreign country assigned or accredited 
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. The final certification is
unnecessary if the record and the attestation are certified as
provided in a treaty or convention to which the United States and
the foreign country in which the official record is located are
parties.

(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.

Note. Amended April 30, 1991, effective December 1, 1991.


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 by pleadings or other 
reasonable written notice. The court, in determining foreign law, 
may consider any relevant material or source, including 
testimony, whether or not submitted by a party or admissible 
under the Federal Rules of Evidence. The court's determination 
shall be treated as a ruling on a question of law.


RULE 45. SUBPOENA

(a) Form; Issuance.

(1) Every subpoena shall

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in which 
it is pending, and its civil action number; and

(C)  command each person to whom it is directed to attend and 
give testimony or to produce and permit inspection and copying of 
designated books, documents or tangible things in the possession, 
custody or control of that person, or to permit inspection of 
premises, at a time and place therein specified; and 

(D)  set forth the text of subdivisions (c) and (d) of this rule.

A command to produce evidence or to permit inspection may be 
joined with a command to appear at trial or hearing or at 
deposition, or may be issued separately.

(2) A subpoena commanding attendance at a trial or hearing shall
issue from the court for the district in which the hearing or 
trial is to be held. A subpoena for attendance at a deposition 
shall issue from the court for the district designated by the 
notice of deposition as the district in which the deposition is 
to be taken.  If separate from a subpoena commanding the 
attendance of a person, a subpoena for production or inspection 
shall issue from the court for the district in which the 
production or inspection is to be made.

(3) The clerk shall issue a subpoena, signed but otherwise in
blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and
sign a subpoena on behalf of 

(A) a court in which the attorney is authorized to practice; or

(B) a court for a district in which a deposition or production is 
compelled by the subpoena, if the deposition or production 
pertains to an action pending in a court in which the attorney is 
authorized to practice.

(b) Service.

(1) A subpoena may be served by any person who is not a party and 
is not less than 18 years of age. Service of a subpoena upon a 
person named therein shall be made by delivering a copy thereof 
to such person and, if the person's attendance is commanded, by 
tendering to that person the fees for one day's attendance and 
the mileage allowed by law. When the subpoena is served on behalf 
of the United States or an officer or agency thereof, fees and 
mileage need not be tendered. Prior notice of any commanded 
production of documents and things or inspection of premises 
before trial shall be served on each party in the manner 
prescribed by Rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place 
within the district of the court by which it is issued, or at any 
place without the district that is within 100 miles of the place 
of the deposition, hearing, trial, production, or inspection 
specified in the subpoena or at any place within the state where 
a state statute or rule of court permits service of a subpoena 
issued by a state court of general jurisdiction sitting in the 
place of the deposition, hearing, trial, production, or 
inspection specified in the subpoena. When a statute of the 
United States provides therefor, the court upon proper 
application and cause shown may authorize the service of a 
subpoena at any other place. A subpoena directed to a witness in 
a foreign country who is a national or resident of the United 
States shall issue under the circumstances and in the manner and 
be served as provided in Title 28, U.S.C. [sec.] 1783.

(3) Proof of service when necessary shall be made by filing with 
the clerk of the court by which the subpoena is issued 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.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and 
service of a subpoena shall take reasonable steps to avoid 
imposing undue burden or expense on a person subject to that 
subpoena. The court on behalf of which the subpoena was issued 
shall enforce this duty and impose upon the party or attorney in 
breach of this duty an appropriate sanction, which may include, 
but is not limited to, lost earnings and a reasonable attorney's 
fee.

(2)(A) A person commanded to produce and permit inspection and 
copying of designated books, papers, documents or tangible 
things, or inspection of premises need not appear in person at 
the place of production or inspection unless commanded to appear 
for deposition, hearing or trial.

(B) Subject to paragraph (d)(2) of this rule, a person commanded 
to produce and permit inspection and copying may, within 14 days 
after service of the subpoena or before the time specified for 
compliance if such time is less than 14 days after service, serve 
upon the party or attorney designated in the subpoena written 
objection to inspection or copying of any or all of the 
designated materials or of the premises. If objection is made, 
the party serving the subpoena shall not be entitled to inspect 
and copy the materials or inspect the premises except pursuant to 
an order of the court by which the subpoena was issued. If 
objection has been made, the party serving the subpoena may, upon 
notice to the person commanded to produce, move at any time for 
an order to compel the production.  Such an order to compel 
production shall protect any person who is not a party or an 
officer of a party from significant expense resulting from the 
inspection and copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued 
shall quash or modify the subpoena if it

(i) fails to allow reasonable time for compliance;

(ii) requires a person who is not a party or an officer of a 
party to travel to a place more than 100 miles from the place 
where that person resides, is employed or regularly transacts 
business in person, except that, subject to the provisions of 
clause (c)(3)(B)(iii) of this rule, such a person may in order to 
attend trial be commanded to travel from any such place within 
the state in which the trial is held, or

(iii) requires disclosure of privileged or other protected matter 
and no exception or waiver applies, or

(iv) subjects a person to undue burden.

(B) If a subpoena

(i) requires disclosure of a trade secret or other confidential
research, development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or 
information not describing specific events or occurrences in 
dispute and resulting from the expert's study made not at the 
request of any party, or 

(iii) requires a person who is not a party or an officer of a 
party to incur substantial expense to travel more than 100 miles 
to attend trial, the court may, to protect a person subject to or 
affected by the subpoena, quash or modify the subpoena or, if the 
party in whose behalf the subpoena is issued shows a substantial 
need for the testimony or material that cannot be otherwise met 
without undue hardship and assures that the person to whom the 
subpoena is addressed will be reasonably compensated, the court 
may order appearance or production only upon specified 
conditions.

(d) Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents 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 demand.

(2) When information subject to a subpoena is withheld on a claim 
that it is privileged or subject to protection as trial 
preparation materials, the claim shall be made expressly and 
shall be supported by a description of the nature of the 
documents, communications, or things not produced that is  
sufficient to enable the demanding party to contest the claim.

(e) Contempt. Failure by any person without adequate excuse to 
obey a subpoena served upon that person may be deemed a contempt 
of the court from which the subpoena issued. An adequate cause 
for failure to obey exists when a subpoena purports to require a 
non-party to attend or produce at a place not within the limits 
provided by clause (ii) of subparagraph (c)(3)(A).

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 46. EXCEPTIONS UNNECESSARY

Formal exceptions to rulings or orders of the court are 
unnecessary; but for all purposes for which an exception has 
heretofore been necessary 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 the party desires the court 
to take or the party's objection to the action of the court and 
the grounds therefor; and, if a party has no opportunity to 
object to a ruling or order at the time it is made, the absence 
of an objection does not thereafter prejudice the party.


RULE 47. JURORS

(a) Examination of Jurors. The court may permit the parties or 
their attorneys to conduct the examination of prospective jurors 
or may itself conduct the examination. In the latter event, the 
court shall permit the parties or their attorneys to supplement 
the examination by such further inquiry as it deems proper or 
shall itself submit to the prospective jurors such additional 
questions of the parties or their attorneys as it deems proper.

(b) Peremptory Challenges. The court shall allow the number of 
peremptory challenges provided by 28 U.S.C. [sec.] 1870.

(c) Excuse. The court may for good cause excuse a juror from
service during trial or deliberation.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 48. NUMBER OF JURORS - PARTICIPATION IN VERDICT

The court shall seat a jury of not fewer than six and not more 
than twelve members and all jurors shall participate in the 
verdict unless excused from service by the court pursuant to Rule 
47(c). Unless the parties otherwise stipulate, (1) the verdict 
shall be unanimous and (2) no verdict shall be taken from a jury 
reduced in size to fewer than six members.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 49. SPECIAL VERDICTS AND INTERROGATORIES

(a) Special Verdicts. The court may require a jury to return only 
a special verdict in the form of a special written finding upon 
each issue of fact. In that event the court may submit to the 
jury written questions susceptible of categorical or other brief 
answer or may submit written forms of the several special 
findings which might properly be made under the pleadings and 
evidence; or it may use such other method of submitting the 
issues and requiring the written findings thereon as it deems 
most appropriate. The court shall give to the jury such 
explanation and instruction concerning the matter thus submitted 
as may be necessary to enable the jury to make its findings upon 
each issue. If in so doing the court omits any issue of fact 
raised by the pleadings or by the evidence, each party waives the 
right to a trial by jury of the issue so omitted unless before 
the jury retires the party demands its submission to the jury. As 
to an issue omitted without such demand the court may make a 
finding; or, if it fails to do so, it shall be deemed to
have made a finding in accord with the judgment on the special
verdict.

(b) General Verdict Accompanied by Answer to Interrogatories. The 
court may submit to the jury, together with appropriate forms for 
a general verdict, written interrogatories upon one or more 
issues of fact the decision of which is necessary to a verdict. 
The court shall give such explanation or instruction as may be 
necessary to enable the jury both to make answers to the 
interrogatories and to render a general verdict, and the court 
shall direct the jury both to make written answers and to render 
a general verdict. When the general verdict and the answers are 
harmonious, the appropriate judgment upon the verdict and answers 
shall be entered pursuant to Rule 58. When the answers are 
consistent with each other but one or more is inconsistent with 
the general verdict, judgment may be entered pursuant to Rule 58 
in accordance with the answers, notwithstanding the general 
verdict, or the court may return the jury for further 
consideration of its answers and verdict or may order a new 
trial. When the answers are inconsistent with each other and one 
or more is likewise inconsistent with the general verdict, 
judgment shall not be entered, but the court shall return the 
jury for further consideration of its answers and verdict or
shall order a new trial.


RULE 50. JUDGMENT AS A MATTER OF LAW IN ACTIONS TRIED BY JURY;
ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS

(a)  Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard with 
respect to an issue and there is no legally sufficient 
evidentiary basis for a reasonable jury to have found for that 
party with respect to that issue, the court may grant a motion 
for judgment as a matter of law against that party on any claim, 
counterclaim, cross-claim, or third party claim that cannot under 
the controlling law be maintained without a favorable finding on 
that issue.

(2) Motions for judgment as a matter of law may be made at any 
time before submission of the case to the jury. Such a motion 
shall specify the judgment sought and the law and the facts on 
which the moving party is entitled to the judgment.

(b) Renewal of Motion for Judgment after Trial; Alternative 
Motion for New Trial. Whenever a motion for a judgment as a 
matter of law made at the close of all the evidence is denied or 
for any reason is not granted, the court is deemed to have 
submitted the action to the jury subject to a later determination 
of the legal questions raised by the motion. Such a motion may be 
renewed by service and filing not later than 10 days after entry 
of judgment. A motion for a new trial under Rule 59 may be joined 
with a renewal of the motion for judgment as a matter of law, or 
a new trial may be requested in the alternative. If a verdict was 
returned, the court may, in disposing of the renewed motion, 
allow the judgment to stand or may reopen the judgment and either 
order a new trial or direct the entry of judgment as a matter of 
law. If no verdict was returned, the court may, in disposing of 
the renewed motion, direct the entry of judgment as a matter of 
law or may order a new trial.

(c) Same: Conditional Rulings on Grant of Motion for Judgment as 
a Matter of Law.

(1) If the renewed motion for judgment as a matter of law is 
granted, the court shall also rule on the motion for a new trial, 
if any, by determining whether it should be granted if the 
judgment is thereafter vacated or reversed, and shall specify the 
grounds for granting or denying the motion for the new trial. If 
the motion for a new trial is thus conditionally granted, the 
order thereon does not affect the finality of the judgment. In 
case the motion for a new trial has been conditionally granted 
and the judgment is reversed on appeal, the new trial shall 
proceed unless the appellate court has otherwise ordered. In case 
the motion for a new trial has been conditionally denied, the 
appellee on appeal may assert error in that denial; and if the 
judgment is reversed on  appeal, subsequent proceedings shall be 
in accordance with the order of the appellate court.

(2) The party against whom judgment as a matter of law has been 
rendered may serve a motion for a new trial pursuant to Rule 59 
not later than 10 days after entry of the judgment.

(d) Same: Denial of Motion for Judgment as a Matter of Law. If 
the motion for judgment as a matter of law is denied, the party 
who prevailed on that motion may, as appellee, assert grounds 
entitling the party to a new trial in the event the appellate 
court concludes that the trial court erred in denying the motion 
for judgment. If the appellate court reverses the judgment, 
nothing in this rule precludes it from determining that the 
appellee is entitled to a new trial, or from directing the trial 
court to determine whether a new trial shall be granted.

Note. Amended April 30, 1991, effective December 1, 1991.


RULE 51. INSTRUCTIONS TO JURY: OBJECTION

At the close of the evidence or at such earlier time during the 
trial as the court reasonably directs, any party may file written 
requests that the court instruct the jury on the law as set forth 
in the requests. The court shall inform counsel of its proposed 
action upon the requests prior to their arguments to the jury. 
The court, at its election, may instruct the jury before or after 
argument, or both. No party may assign as error the giving or the 
failure to give an instruction unless that party objects thereto 
before the jury retires to consider its verdict, stating 
distinctly the matter objected to and the grounds of the 
objection.

Opportunity shall be given to make the objection out of the 
hearing of the jury.


RULE 52. FINDINGS BY THE COURT

(a) Effect. In all actions tried upon the facts without a jury or 
with an advisory jury, 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, whether based on oral 
or documentary evidence, shall not be set aside unless clearly 
erroneous, and due regard shall be given to the opportunity of 
the trial court to judge of 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. It will be 
sufficient if the findings of fact and conclusions of law are 
stated orally and recorded in open court following the close of 
the evidence or appear in an opinion or memorandum of decision 
filed by the court. Findings of fact and conclusions of law are 
unnecessary on decisions of motions under Rule 12 or 56 or any 
other motion except as provided in subsection (c) of this rule.

(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.  When findings of fact are made in actions tried by the 
court without a jury, the question of the sufficiency of the 
evidence to support the findings may thereafter be raised whether 
or not the party raising the question has made in the district 
court an objection to such findings or has made a motion to amend 
them or a motion for judgment.

(c) Judgment on Partial Findings. If during a trial without jury 
a party has been fully heard with respect to an issue and the 
court finds against the party on that issue, the court may enter 
judgment as a matter of law against that party on any claim, 
counterclaim, cross-claim or third-party claim that cannot under 
the controlling law be maintained or defeated without a favorable 
finding on that issue, or the court may decline to render any 
judgment until the close of all the evidence. Such a judgment 
shall be supported by findings of fact and conclusions of law as 
required by subdivision (a) of this rule.

Note. Amended April 30, 1991, effective December 1, 1991.


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, an auditor, an 
examiner, 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; provided that this provision for 
compensation shall not apply when a United States magistrate is 
designated to serve as a master pursuant to Title 28, U.S.C. 
[sec.] 636(b)(2). The master shall not retain the master's report 
as security for the master's 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. In actions to be tried by a jury, a reference shall 
be made only when the issues are complicated; in actions to be 
tried without a jury, save 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. Upon the 
consent of the parties, a magistrate may be designated to serve 
as a special master without regard to the provisions of this
subdivision.

(c) Powers. The order of reference to the master may specify or 
limit the master's powers and may direct the master 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 the master and to do all acts and take all measures 
necessary or proper for the efficient performance of the master's 
duties under the order. The master may require the production 
before the master of evidence  upon all matters embraced in the 
reference, including the production of all books, papers, 
vouchers, documents, and writings applicable thereto. The master 
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 examine them and may call the parties 
to the action and 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 the Federal Rules of Evidence for a
court sitting without a jury.

(d) Proceedings.

(1) Meetings. When a 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 the 
report. If a party fails to appear at the time and place 
appointed, the master may proceed ex parte or, in the master's 
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, the witness may be 
punished as for a contempt and be subjected to the consequences, 
penalties, and remedies provided in Rules 37 and 45.

(3) Statement of Accounts. When matters of accounting are in 
issue before the master, the master may prescribe the form in 
which the accounts shall be submitted and in any proper case may 
require or receive 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 thus 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 the master directs.

(e) Report.

(1) Contents and Filing. The master shall prepare a report upon 
the matters submitted to the master by the order of reference 
and, if required to make findings of fact and conclusions of law, 
the master shall set them forth in the report. The master shall 
file the report with the clerk of the court and serve on all 
parties notice of the filing. In an action to be tried without a 
jury, unless otherwise directed by the order of reference, the 
master shall file with the report a transcript of the proceedings 
and of the evidence and the original exhibits. Unless otherwise 
directed by the order of reference, the master shall serve a copy 
of the report on each party.

(2) In Non-Jury Actions. In an action to be tried without a jury 
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 report or may modify it or 
may reject it in whole or in part or may receive further evidence 
or may recommit it with instructions.

(3) In Jury Actions. In an action to be tried by a jury the 
master shall not be directed to report the evidence. The master's 
findings upon the issues submitted to the master are admissible 
as evidence of the matters found and may be read to the jury, 
subject to the ruling of the court upon any objections in point 
of law which may be made to the report.

(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 facts shall be final, only questions of law arising 
upon the report shall thereafter be considered.

(5) Draft Report. Before filing the master's report a master may 
submit a draft thereof to counsel for all parties for the purpose 
of receiving their suggestions.

(f) A magistrate is subject to this rule only when the order
referring a matter to the magistrate expressly provides that the
reference is made under this Rule.

Note. Amended April 30, 1991, effective December 1, 1991.


VII. 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 the 
party's pleadings.

(d) Costs. Except when express provision therefor is made either 
in a statute of the United States or in these rules, costs shall 
be allowed as of course to the prevailing party unless the court
otherwise directs; but costs against the United States, 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 within 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 the party's 
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 that amount 
and costs against the defendant, if the defendant has been 
defaulted for failure to appear and if he is not an infant or 
incompetent person.

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