RULE 53. MASTERS
(1) Scope. 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
(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
addressed by an available district judge or magistrate judge of the
(2) Disqualification. A master must not have a relationship to
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, consent to appointment of
a particular person after disclosure of the master
discloses any potential grounds for
(A) Any party may object to the appointment of any person as master
for the same cause
for which that a challenge for cause may be taken
to of a 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
(3) Possible Expense or Delay. 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.
The Before appointing a
master, the court must give the parties notice and an
opportunity to be heard before appointing a master. A party may suggest
(2) Contents. The appointing order
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
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(
Entry of Order Issuing. The
court may enter issue the order appointing a master
(A) the master
files an affidavit disclosing whether there is any ground for
disqualification under N.D. Code Jud. Conduct Canon 3(E);
(B) 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.
Amendment Amending. 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
must determine their action and
report. Trial of all issues other than compensation or damages must be by the
(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.
(1) In General. Unless the appointing order directs otherwise, a master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the assigned duties fairly and efficiently; and
(C) unless the appointing court orders otherwise, if conducting an evidentiary hearing, exercise the appointing court's power to compel, take, and record evidence.
(2) Sanctions. The master may by order impose on 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.
(e) (d) Master's Orders. A master
who makes issues an order must file the
order it and
promptly serve a copy on each party. The clerk must enter the order on the docket. (f) (e) Master's Reports. A master
must report to the court as required by the appointing
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) (f) Action on Master's Order,
Report, or Recommendations.
(1) Opportunity for Hearing; Action in General. In
acting on a master's order, report, or
recommendations, the court must
afford give the parties notice
and an opportunity to be
heard; and may receive
evidence ,; and may ; adopt or
affirm ;, modify ;, wholly or
or reverse ;, or resubmit to the master with
(2) Time To Object or Move to Adopt or Modify. A party
may file objections to,
- or a
motion to adopt or modify, - the master's order, report, or
recommendations no later than 20
21 days from the time the master's order, report, or recommendations
are after a copy is
served, unless the court sets a different time determines
Fact Reviewing Factual 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, stipulate that:
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) Reviewing Legal Conclusions. The court must decide de novo all objections to conclusions of law made or recommended by a master.
(5) Reviewing Procedural Matters. Unless the
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. (h) (g) Compensation.
(1) Fixing Compensation.
The court must fix the master's
compensation before Before or
after judgment, the court must fix a master's compensation on the basis and terms stated
the appointing order of appointment, but the court may set a
new basis and terms after giving
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.
Allocation Allocating Payment.
The court may 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 March 1, 2005; March 1, 2011.
Rule 53 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 53 was amended, effective March 1,
2005, based upon the December 1, 2003,
amendment of Fed.R.Civ.P. 53.
The language and organization of the rule were
make the rule more easily understandable and to make style and terminology consistent
throughout the rules.
Paragraph (f)(2) was amended, effective March 1, 2011, to increase the time to file objections to a master's order from 20 to 21 days.
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.
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.
Sources: Joint Procedure Committee Minutes of April 29-30, 2010, page 14; September 24-25, 2009, page 22; January 29-30, 2004, pages 18-20; 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.
28-1701, 28-1702, 28-2703, 28-1704, 28-1705, 28-1706, 28-1707,
28-1708, 28-1709, NDRC 1943.
Sections N.D.C.C. §§ 28-14-06, 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.C.C. § 28-14-06 (Challenges for cause--Grounds).