Obsolete Date: 3/1/2011
(1) Unless a statute provides otherwise, a court may appoint a master only to:(A) perform duties consented to by the parties;(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.
(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(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.
(ii) the need to perform an accounting or resolve a difficult computation of damages; or(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 juror in the trial of a civil action.(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) 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.
(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);(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.
(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).
(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(4) Legal Conclusions. The court must decide de novo all objections to conclusions of law made or recommended by a master.
(B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final.
(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(3) Allocation. The court may 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.
(B) from a fund or subject matter of the action within the court's control.
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).