RULE 53. MASTERS
(a) Appointment and compensation. (1) 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, and an examiner. If the court states in its order of appointment that the reference is made necessary by press of business, the fees of the master, as taxed and allowed by the court, must be paid out of the county treasury, as the salaries of county officers are paid. In other cases, the court shall fix the compensation to be allowed to a master and shall charge it to such of the parties or direct its payment out of any fund or subject matter of the action which is in the custody and control of the court as the court may direct. The master may not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. (2) Either party may object to the appointment of any person as master for the same cause for which a challenge for cause may be taken to a petit juror in the trial of a civil action. (3) Any objections taken to the appointment of any person as master must be heard and disposed of by the court. Affidavits may be read and witnesses examined as to those objections. (4) Before proceeding to hear any testimony, masters must be sworn well and truly to hear and determine the fact referred to them and true findings render according to the evidence. (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 may be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account, a reference may be made only upon a showing that some exceptional condition requires it. (c) Powers. An order of reference to a 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 masters have and shall exercise the power to regulate all proceedings in every hearing before them and to do all acts and take all measures necessary or proper for the efficient performance of their duties under the order. They may require the production before them of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. They may rule upon the admissibility of evidence unless otherwise directed by the order of reference and have the authority to put witnesses an oath and may themselves examine them and may call the parties to the action and examine them upon oath. If a party so requests, the masters shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in N.D.R.Ev. 103, for a court sitting without a jury. (d) Masters in eminent domain actions. In an eminent domain action in which the condemnor and the owner of the property sought to be taken for public use waive the right to have a jury ascertain just compensation or determine the damages, the court, upon request of a party, may appoint one or three masters to determine the issue of just compensation or damages. If three masters are appointed a majority of them shall determine their action and report. Trial of all issues other than compensation or damages must be by the court. (e) Proceedings. (1) Meetings. Whenever a references 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 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. The master shall 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 master's 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. A witness who, without adequate excuse, fails to appear or give evidence, 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. Whenever matters of accounting are in issue before a master, the master may prescribe the form in which the accounts must 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. (f) Report. (1) Contents and filing. Masters shall prepare a report upon the matters submitted to them by the orders of reference and, if required to make findings of fact and conclusions of law, they shall set them forth in their report. They shall file the report with the clerk of the court and serve on all parties notice of filing. In actions to be tried without a jury, unless otherwise directed by the order of reference, masters 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, masters shall serve a copy of the report on each party. (2) In nonjury actions. In an action to be tried without a jury, the court shall accept the master's findings of fact unless clearly erroneous. Within ten days after being served with notice of the filing of the report any party may serve upon the other parties written objections to the report. Application to the court for action upon the report and upon objections thereto must 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 may not be directed to report the evidence. The master's findings upon the issues submitted to him 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 fact shall be final, only questions of law arising upon the report may 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.
(1) Unless a statute provides otherwise, a court may appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by
(i) some exceptional condition, or
(ii) the need to perform an accounting or resolve a difficult computation of damages; or
(C) address pretrial and post-trial matters that cannot be addressed effectively and timely by an available district judge or magistrate judge of the district.
(2) A master must not have a relationship to the parties, counsel, action, or court that would require disqualification of a judge under N.D. Code Jud. Conduct Canon 3(E) unless the parties consent with the court's approval to appointment of a particular person after disclosure of any potential grounds for disqualification.
(A) Any party may object to the appointment of any person as master for the same cause for which a challenge for cause may be taken to a petit juror in the trial of a civil action.
(B) Any objections taken to the appointment of any person as master must be heard and disposed of by the court. Affidavits may be read and witnesses examined as to those objections.
(3) In appointing a master, the court must consider the fairness of imposing the likely expenses on the parties and must protect against unreasonable expense or delay.
(b) Order Appointing Master.
(1) Notice. The court must give the parties notice and an opportunity to be heard before appointing a master. A party may suggest candidates for appointment.
(2) Contents. The order appointing a master must direct the master to proceed with all reasonable diligence and must state:
(A) the master's duties, including any investigation or enforcement duties, and any limits on the master's authority under Rule 53(c);
(B) the circumstances--if any--in which the master may communicate ex parte with the court or a party;
(C) the nature of the materials to be preserved and filed as the record of the master's activities;
(D) the time limits, method of filing the record, other procedures, and standards for reviewing the master's orders, findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the master's compensation under Rule 53(h).
(3) Entry of Order. The court may enter the order appointing a master only after the master has filed an affidavit disclosing whether there is any ground for disqualification under N.D. Code Jud. Conduct Canon 3(E) and, if a ground for disqualification is disclosed, after the parties have consented with the court's approval to waive the disqualification. Before proceeding to hear any testimony, a master must be sworn to fairly hear and determine the facts referred and to make true findings according to the evidence.
(4) Amendment. The order appointing a master may be amended at any time after notice to the parties, and an opportunity to be heard.
(5) Masters in Eminent Domain Actions. In an eminent domain action in which the condemnor and the owner of the property sought to be taken for public use waive the right to have a jury determine just compensation or damages, the court, upon request of a party, may appoint one or three masters to determine the issue of just compensation or damages. If three masters are appointed a majority of them shall determine their action and report. Trial of all issues other than compensation or damages must be by the court.
(c) Master's Authority. Unless the appointing order expressly directs otherwise, a master has authority to regulate all proceedings and take all appropriate measures to perform fairly and efficiently the assigned duties. The master may by order impose upon a party any noncontempt sanction provided by Rule 37 or 45, and may recommend a contempt sanction against a party and sanctions against a nonparty.
(d) Evidentiary Hearings. Unless the appointing order expressly directs otherwise, a master conducting an evidentiary hearing may exercise the power of the appointing court to compel, take, and record evidence.
(e) Master's Orders. A master who makes an order must file the order and promptly serve a copy on each party. The clerk must enter the order on the docket.
(f) Master's Reports. A master must report to the court as required by the order of appointment. The master must file the report and promptly serve a copy of the report on each party unless the court directs otherwise.
(g) Action on Master's Order, Report, or Recommendations.
(1) Action. In acting on a master's order, report, or recommendations, the court must afford an opportunity to be heard and may receive evidence, and may: adopt or affirm; modify; wholly or partly reject or reverse; or resubmit to the master with instructions.
(2) Time To Object or Move. A party may file objections to--or a motion to adopt or modify--the master's order, report, or recommendations no later than 20 days from the time the master's order, report, or recommendations are served, unless the court sets a different time.
(3) Fact Findings. The court must decide de novo all objections to findings of fact made or recommended by a master unless the parties stipulate with the court's consent that:
(A) the master's findings will be reviewed for clear error, or
(B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final.
(4) Legal Conclusions. The court must decide de novo all objections to conclusions of law made or recommended by a master.
(5) Procedural Matters. Unless the order of appointment establishes a different standard of review, the court may set aside a master's ruling on a procedural matter only for an abuse of discretion.
(1) Fixing Compensation. The court must fix the master's compensation before or after judgment on the basis and terms stated in the order of appointment, but the court may set a new basis and terms after notice and an opportunity to be heard.
(2) Payment. The compensation fixed under Rule 53(h)(1) must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action within the court's control.
(3) Allocation. The court must allocate payment of the master's compensation among the parties after considering the nature and amount of the controversy, the means of the parties, and the extent to which any party is more responsible than other parties for the reference to a master. An interim allocation may be amended to reflect a decision on the merits.
Rule 53 was amended effective September 1, 1983; March 1, 1990; March 1, 1994; and _______________.
Rule 53 was amended, effective ____________, based upon the December 1, 2003, amendment of Fed.R.Civ.P. 53. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Rule 53 is derived from Fed.R.Civ.P. 53, except for several modifications based on statutory provisions the rule superseded. Subparagraphs (a)(2)(A) and (a)(2)(B) of the rule provide for objections to the appointment of a given person as master. Paragraph (b)(3) requires the master to be sworn.
of subdivision (a) and the addition of a new subdivision (d). Allowance is made for payment of the master out of the county treasury in certain cases. Paragraphs (2), (3), and (4) were taken from N.D.R.C. 1943 § § 28-1704, 28-1705, and 28-1707, and provide for objections to the appointment and swearing of the master. The federal provision for appointment of standing masters has been deleted and replaced by the first sentence allowing the court to appoint a special master. Subdivision (d) was adopted in 1983, effective September 1, 1983, to provide Paragraph (b)(5) is derived from Fed.R.Civ.P. 71A (h) and provides an additional option of having a master or masters ascertain just compensation or determine the damages in eminent domain actions in which the parties have waived the right to a jury. See Fed.R.Civ.P. 71A(h). There is no right to a jury trial in the federal system. Subdivision (e) was amended, effective March 1, 1990, to follow the 1987 amendment to the federal rule. The amendment is technical in nature and no substantive change is intended. Subdivision (f)(1) was amended, effective March 1, 1994, to correspond to the 1991 federal amendment, by requiring the master to serve a notice of filing of the master's report and a copy of the report on each party.
SOURCES: Joint Procedure Committee Minutes of ______________ pages ____; January 28-29, 1993, page 8; April 20, 1989, page 2; December 3, 1987, page 11; November 18-19, 1982, pages 1-5; November 29-30, 1979, page 14; Fed.R.Civ.P. 53.
SUPERSEDED: N.D.R.C. 1943 §§ 28-1701, 28-1702, 28-2703, 28-1704, 28-1705, 28-1706, 28-1707, 28-1708, 28-1709.
CONSIDERED: N.D.C.C. §§ 32-15-01, 32-15-13, 32-15-22.
CROSS REFERENCE: N.D.R.Civ.P. 6 (Time), N.D.R.Civ.P. 37 (Failure to Make Discovery--Sanctions), and N.D.R.Civ.P. 45 (Subpoena); N.D.R.Ev. 103 (Rulings on Evidence); N.D.R.Ct. 6.5 (Masters); N.D.C.C. § 28-14-06 (Challenges for cause--Grounds).