Obsolete Date: 3/1/2005
(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 facts 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 on 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 Rule 103, N.D.R.Ev., 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.
(1) Meetings. Whenever 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 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.
(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, 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 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 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.
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.
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.
CONSIDERED: 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); 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).