Rules of Civil Procedure

 

RULES OF CIVIL PROCEDURE

 

C. Trial Court Rules (TCR)

 

I. Rules of Civil Procedure

 

TABLE OF CONTENTS

 

Rule 1.Scope of Rules and Title

 

Rule 2.One Form of Action

 

Rule 3.Commencement of Action

 

Rule 4.Process

 

Rule 5.Service and Filing of Pleadings and Other Papers

 

Rule 6.Time

 

Rule 7.Pleadings Allowed; Form of Motions

 

Rule 8.General Rules of Pleading

 

Rule 9.Pleading Special Matters

 

Rule 10.Form of Pleadings

 

Rule 11.Signing of Pleading

 

Rule 12.Defenses and Objection - When and How Presented - By Pleading or Motion - Judgment on the Pleadings

 

Rule 13.Counterclaim and Cross-Claim

 

Rule 14.Third-Party Practice

 

Rule 15.Amended and Supplemental Pleadings

 

Rule 16.Pre-Trial Procedure; Formulating Issues

 

Rule 17.Parties Plaintiff and Defendant: Capacity

 

Rule 18.Joinder of Claims and Remedies

 

Rule 19.Joinder of Persons Needed for Just Adjudication

 

Rule 20.Permissive Joinder of Parties

 

Rule 21.Misjoinder and Non-Joinder of Parties

 

Rule 22.Interpleader

 

Rule 23.Class Actions

 

Rule 23.1Derivative Actions by Shareholders

 

Rule 23.2Actions Relating to Unincorporated Associations

 

Rule 24.Intervention

 

Rule 25.Substitution of Parties

 

Rule 26.General Provisions Governing Discovery

 

Rule 27.Depositions Before Action of Pending Appeal

 

Rule 28.Persons Before Whom Depositions May be Taken

 

Rule 29.Stipulations Regarding Discovery Procedure

 

Rule 30.Depositions Upon Oral Examination

 

Rule 31.Depositions Upon Written Questions

 

Rule 32.Use of Depositions in Court Proceedings

 

Rule 33.Interrogatories to Parties

 

Rule 34.Production of Documents and Things and Entry upon Land For Inspection and Other Purposes

 

Rule 35.Physical and Mental Examination of Persons

 

Rule 36.Requests for Admission of Documents

 

Rule 37.Failure to Make or Cooperate in Discovery: Sanctions

 

Rule 38.(Omitted)

 

Rule 39.(Omitted)

 

Rule 40.Assignment of Cases for Trial

 

Rule 41.Dismissal of Actions

 

Rule 42.Consolidation; Separate Trials

 

Rule 43.Taking of Testimony

 

Rule 44.Proof of Official Record

 

Rule 44.1Determination of Foreign Law

 

Rule 45.Subpoena

 

Rule 46.Exceptions Unnecessary

 

Rule 47.(Omitted)

 

Rule 48.(Omitted)

 

Rule 49.(Omitted)

 

Rule 50.(Omitted)

 

Rule 51.(Omitted)

 

Rule 52.Findings by the Court

 

Rule 53.(Omitted)

 

Rule 54.Judgments: Costs

 

Rule 55.Default

 

Rule 56.Summary Judgment

 

Rule 57.Declaratory Judgments

 

Rule 58.Entry of Judgment

 

Rule 59.New Trials: Amendment of Judgments

 

Rule 60.Relief From Judgment or Order

 

Rule 61.Harmless Error

 

Rule 62.Stay of Proceedings to Enforce a Judgment

 

Rule 63.Disability of a Judge

 

Rule 64.Seizure of Property

 

Rule 65.Injunctions

 

Rule 65.1Security: Proceedings Against Sureties

 

Rule 66. (Omitted)

 

Rule 67.Deposit in Court

 

Rule 68.Offer of Judgment

 

Rule 69.Execution

 

Rule 70.Judgment for Specific Acts: Vesting Title

 

Rule 71.Process in behalf of and Against Persons not Parties

 

Rule 71.ACondemnation of Property

 

Rules 72-76(Abrogated)

 

Rule 77.(Omitted)

 

Rule 78.(Omitted)

 

Rule 79.(Omitted)

 

Rule 80.Stenographic Report or Transcript as Evidence

 

Rule 81.Applicability in General

 

Rule 82.(Omitted)

 

Rule 83.(Omitted)

 

Rule 84.Forms

 

Rule 85.(Omitted)

 

Rule 86.(Omitted)

 

Rule 87.Extraordinary Writs: Purpose

 

Rule 88.Rules of Civil Procedure Applicable

 

Rule 89.Preparation of Papers

 

Rule 90.Contents of Petition

 

Rule 91.Service; Submission

 

Rule 92.Action on Petition

 

Rule 93.Response

 

Rule 94.Issuance of Alternative Writ; Service

 

Rule 95.Service of Answer and Reply

 

Rule 96.Hearing

 

Rule 97.Priority

 

Rule 98.Judgment

 

Rule 99.Opposition to Proposed Judgment

 

Rule 100.Determination of Proposed Judgment

 

Rule 101.Issuance of Judgment

 

Rule 102.Notice of Appeal

 

Rule 103.Administrative Review

 

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY & MARITIME CLAIMS

 

Rule A.Scope of Rules

 

Rule B.Attachment and Garnishment: Special Provisions

 

Rule C.Actions in Rem: Special Provisions

 

Rule D.Possessory, Petitory, and Partition Actions

 

Rule E.Actions in Rem and Quasi in Rem: General Provisions

 

Rule F.Limitation of Liability

 

APPENDIX A

 

 

 

C. TRIAL COURT RULES (TCR)

 

I. RULES OF CIVIL PROCEDURE (TCRCP)

 

RULE 1.SCOPE OF RULES AND TITLE.

 

These rules govern the procedure in the High Court and District of American Samoa in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty. They shall be construed to secure the just, speedy, and inexpensive determination of every action. These rules shall be known as the Rules of Civil Procedure and cited as ____________TCRCP.

 

RULE 2.ONE FORM OF ACTION.

 

There shall be one form of action to be known as "civil action."

 

RULE 3.COMMENCEMENT OF ACTION.

 

A civil action is commenced by filing a complaint with the court.

 

RULE 4.PROCESS.

 

(a)Summons: Insurance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to such person designated under (c) below. Upon request of the plaintiff separate or additional summons shall issue against any defendants.

 

(b)Same:Form. The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. The summons shall be in English and Samoan.

 

(c)By Whom Served. Service of all process shall be made by the marshal of the court or by any person who is at least 18 years of age and not a party to the action.

 

(d)Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

 

(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

 

(2) Upon an infant, by delivering a copy of the summons and complaint to his parent, guardian, conservator, or similar fiduciary, or, if no such person can be found with reasonable diligence, to any person having the care or control of such minor or with whom he is employed, and to the minor if he is at least 12 years of age. A summons may be served on a person (other than a minor) for whom a guardian, conservator, or similar fudiciary has been appointed by delivering a copy of the summons and of the complaint to his guardian, conservator, or similar fiduciary and to such person, but, for good cause shown, the court in which the action is pending may dispense with delivery to such person.

 

(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.

 

(4) Upon the United States, by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency.

 

(5) Upon an officer or agency of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer of agency. If the agency is a coporation the copy shall be delivered as provided in paragraph (3) of this subdivision of this rule.

 

(6) Upon the American Samoa Government or other government organization in American Samoa subject to suit, by delivering a copy of the summons and of the complaint to the Attorney General or a duly designated representative of the Attorney General.

 

(7) Upon a defendant of any class referred to in paragraph (1) or (3) or this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by 43.0501 ASCA or other applicable statutes for the service of summons or other like process upon any such defendant in an action brought in the High Court of American Samoa.

 

(e)Same:Service Upon Party Not Inhabitant of or Found in Territory. Whenever a statute of American Samoa or an order of court thereunder provides for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within American Samoa, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service, in a manner stated in this rule. Whenever a statute or rule of court of American Samoa provides (1) for service of a summons, or of a notice, or of an order in lieu of summons upon a party not an inhabitant of or found within the territory, or (2) for service upon or notice to him to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of his property located within the territory, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule.

 

(f)Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of American Samoa, and, when authorized by a statute of the United States of American Samoa, or by these rules, beyond the territorial limits of American Samoa. A subpoena may be served within the Territorial limits provided in 45 TCRCP.

 

(g)Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than the marshal or his deputy, he shall make affidavit thereof. Proof of service by publication must conform to the requirements of 43.0503 ASCA. Failure to make proof of service does not affect the validity of the service.

 

(h)Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

 

(i)Alternative Provisions for Service in a Foreign Country.

 

(1) Manner. When the federal of territorial law referred to in subdivision (e) of this rule authorizes service upon a party not an inhabitant of or found within the territory, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made: (A) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to him personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or (E) as directed by order of the court. Service under (C) or (E) above may be made by any person who is not a party and is not less than 18 years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.

 

(2) Return. Proof of service may be made as prescribed by subdivision (g) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1) (D) of this subdivision, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.

 

RULE 5.SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS.

 

(a) Service: When Required. Except as otherwise provided in this rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in 4 TCRCP.

 

In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.

 

(b)Same:How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the Court. Service upon the attorney or upon a party shall be made by mailing a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the Clerk of the Court. Delivery of a copy within this rule means: if to an attorney leaving it in the Court box or handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof, or if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

 

(c)Same:Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

 

(d)Filing. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.

 

(e)Filing with the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

 

RULE 6.TIME.

 

(a)Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturday, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in 77(c) TCRCP, "legal holiday" includes New Year's Day, Washington's Birthday, Flag Day, Memorial Day, Independence Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the Governor or the Fono.

 

(b)Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under 52(b), 59(b), and 60(b) TCRCP, except to the extend and under the conditions stated in them.

 

(c)(RESCINDED)..

 

(d)For Motions--Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 10 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in 59(c) TCRCP, opposing affidavits and supporting memorandum may be served not later than 3 days before the hearing, unless the court permits them to be served at some other time.

 

(e)Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail 6 days shall be added to the prescribed period.

 

RULE 7.PLEADINGS ALLOWED; FORM OF MOTIONS.

 

(a)Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross claim, if the answer contains a cross-claim; a third party complaint, if a person who was not an original party is summoned under the provisions of 14 TCRCP; and a third party answer, if a third party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

 

(b)Motions and Other Papers.

 

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. Each motion shall be accompanied by affidavits or declarations under penalty of perjury sufficient to support any material factual contentions, by an appropriate memorandum or brief which concisely states the arguments supporting the motions and cites authorities on each point, and by a copy of a proposed form of order.

 

(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.

 

(c)Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.

 

RULE 8.GENERAL RULES OF PLEADING.

 

(a)Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

 

(b)Defenses; Form of Denials. A party shall state in short and plain terms his defense to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averment of the preceding pleadings, he may make his denials as specific denials of designated averments of paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits, but, when he does so intend to controvert all its including avertments of the grounds upon which the court's jurisdiction depends, he may do so by general denial subject to the obligation set forth in 11 TCRCP.

 

(c)Affirmative Defense. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as counterclaim or a counterclaim as a defense, the court on terms, on justice so requires, shall treat the pleading as if there had been a proper designation.

 

(d)Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

 

(e)Pleading to be Concise and Direct; Consistency.

 

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required.

 

(2) A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defense as he has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in 11 TCRCP.

 

(f)Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

 

RULE 9.PLEADING SPECIAL MATTERS.

 

(a)Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

 

(b)Fraud, Mistake, Condition of the Mind. In all averments of fraud of mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

 

(c)Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

 

(d)Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

 

(e)Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

 

(f)Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

 

(g)Special Damage. When items of special damage are claimed, they shall be specifically stated.

 

(h)Admiralty and Maritime Claims. A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the High Court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim purposes of 14(c) TCRCP and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of 15 TCRCP.

 

(i)When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.

 

RULE 10.FORM OF PLEADING.

 

(a)See 51-56 HCR.

 

(b)(OMITTED).

 

(c)Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

 

RULE 11.SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS.

 

(a)Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

 

(b)Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the persons's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --

 

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

 

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

 

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation r discovery; and

 

(4) the denials of factual contentions are warranted on the evidence or , if specifically so identified, are reasonably base on a lack of information or belief.

 

(c)Sanctions. If, after notice and reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

 

(1) How Initiated.

 

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or request and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attoney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

 

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

 

(2) Nature of Sanction; Limitation. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.

 

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

 

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

 

(3) Order. When imposing sanctions, the court shall describe the conduct determined t constitute a violation of this rule and explain the basis for the sanction imposed.

 

(d)Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery request, response, objections, and motions that are subject to the provisions of Rules 26 through 37.

 

Effective March 1, 1996

 

RULE 12.DEFENSE AND OBJECTIONS -- WHEN AND HOW PRESENTED--BY PLEADING OR MOTION--MOTION FOR JUDGMENT ON THE PLEADINGS.

 

(a)When Presented. A defendant shall serve answer within 20 days after the service of the summons and complaint upon him, except when service is made under 4(e) TCRCP and a different time is prescribed in the order of court.

 

A party served with pleading stating a cross-claim against him shall serve an answer thereto within 20 days after the service upon him. The plaintiff shall serve his reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The United States or an officer or agency thereof shall serve an answer to the complaint or to a cross-claim, or a reply to a counterclaim, within 60 days after the service upon the United States attorney of the pleading in which the claim is asserted. The service of a motion permitted under this rule alters these periods to time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement.

 

(b)How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under 19 TCRCP. A motion making any of these defense shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in 56 TCRCP, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by 56 TCRCP.

 

(c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in 56 TCRCP, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by 56 TCRCP.

 

(d)Preliminary Hearings. The defense specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

 

(e)Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 20 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

 

(f)Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 10 days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

 

(g)Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

 

(h)Waiver or Preservation of Certain Defense.

 

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by 15(a) TCRCP to be made as a matter of course.

 

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under 19 TCRCP, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under 7(a) TCRCP, or by motion for judgment on the pleadings, or at the trial on the merits.

 

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

 

RULE 13.COUNTERCLAIM AND CROSS-CLAIM.

 

(a)Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this rule.

 

(b)Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

 

(c)Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

 

(d)Counterclaim Against the United States. These rules shall not be construed to enlarge beyond the limits now fixed by law the right assert counterclaims or to claim credits against the United States or an officer or agency thereof.

 

(e)Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

 

(f)Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.

 

(g)Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

 

(h)Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of 19 and 20 TCRCP.

 

(i)Separate Trials; Separate Judgments. If the court orders separate trials as provided in 42 TCRCP, judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of 54(b) TCRCP when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

 

RULE 14.THIRD-PARTY PRACTICE.

 

(a)When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defense to the third-party plaintiff's claim as provided in 12 TCRCP and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in 13 TCRCP. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in 12 TCRCP and his counterclaims and cross-claims as provided in 13 TCRCP. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant. The third-party complaint, if within the admiralty and maritime jurisdiction, may be in rem against a vessel, cargo, or other property subject to admiralty or maritime process in rem, in which case references in this rule to the summons include the warrant of arrest, and references to the third-party plaintiff or defendant include, where appropriate, the claimant of the property arrested.

 

(b)When Plaintiff May Bring in Third Party. When a counter-claim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.

 

(c) Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or maritime claim within the meaning of 9(h) TCRCP the defendant or claimant, as a third-party plaintiff, may bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third party defendant shall make his defenses to claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in 12 TCRCP and the action shall proceed as if the plaintiff had commenced in against the third-party defendant as well as the third-party plaintiff.

 

RULE 15.AMENDED AND SUPPLEMENTAL PLEADINGS.

 

(a)Amendments. A party may amend his pleadings as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

 

(b)Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as maybe necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance of enable the objecting party to meet such evidence.

 

(c)Relation Back or Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

 

The delivery or mailing or process to the United States Attorney, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfied the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought in to action as a defendant.

 

(d)Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

 

RULE 16.PRE-TRIAL PROCEDURE; FORMULATING ISSUES.

 

In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider

 

(1)The simplification of the issues;

 

(2)The necessity or desirability of amendments to the pleadings;

 

(3)The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

 

(4)The limitation of the number of expert witnesses;

 

(5)The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

 

(6) Such other matters as may aid in the disposition of the action.

 

The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleading, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsels; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions.

 

RULE 17.PARTIES PLAINTIFF AND DEFENDANT: CAPACITY.

 

(a)Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. As an executor, administrator, guardian, bailee, trustee of an express trust, a party with whom in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of American Samoa so provides, an action for the use of benefit of another shall be brought in the name of the American Samoa Government.

 

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action has been commenced in the name of the real party in interest.

 

(b)(OMITTED).

 

(c)Infants of Incompetent Persons. Whenever an infant or incompetent person has a representative, such as general guardian,committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

 

RULE 18.JOINDER OF CLAIMS AND REMEDIES.

 

(a)Joinder of Claims. A party seeking a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party.

 

(b)Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff my state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.

 

RULE 19.JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION.

 

(a)Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

 

(b)Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include; first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

 

(c)Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if know to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons why they are not joined.

 

(d)Exception of Class Actions. This rule is subject to the provisions of 23 TCRCP.

 

RULE 20.PERMISSIVE JOINDER OF PARTIES.

 

(a)Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to belief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

 

(b)Separate Trials. The court may make such order as will prevent a party from being embraced, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.

 

RULE 21.MISJOINDER AND NON-JOINDER OF PARTIES.

 

Misjoinder of parties is not ground for dismissal or an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceed with separately.

 

RULE 22.INTERPLEADER.

 

(1)Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical are adverse to and independent of one another, or that the plaintiff averse that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule.20.

 

(2)(OMITTED).

 

RULE 23.CLASS ACTIONS.

 

(a)Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claim or defenses of the representative parties are typical of the claims or defenses of the representative parties are typical of the claims or defense of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.

 

(b)Class Action Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

 

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

 

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

 

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest; or

 

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

 

(3) the court finds that the questions of law or fact common to the members of the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individual controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

 

(c)Determination by Order Whether Class Action to be Maintained; Notice; Actions Conducted Partially as Class Actions.

 

(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.

 

(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not will include all member s who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.

 

(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

 

(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

 

(d)Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders;

 

(1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

 

(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, the notice be given in such manner as the court may direct to some or all of the members of any step in the action or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; opposing conditions on the representative parties or on intervenors;

 

(4) requiring that the pleadings be amended to elimate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;

 

(5) dealing with similar procedural matters. The order may be combined with an order under 16 TCRCP, and may be altered or amended as may be desirable from time to time.

 

(e)Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

 

RULE 23-1.DERIVATIVE ACTIONS BY SHAREHOLDERS.

 

In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation of association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of American Samoa which it would not otherwise have. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interest of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.

 

RULE 23.2.ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS.

 

An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in 23(d) TCRCP, and the procedure for dismissal or compromise of the action shall correspond with that provided in 23(e) TCRCP.

 

RULE 24.INTERVENTION.

 

(a)Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action:

 

(1) when a statute of American Samoa confers an unconditional right to intervene; or

 

(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

 

(b)Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of American Samoa confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by an officer or agency of the American Samoa Government or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

 

(c)Procedure. A person desiring to intervene shall serve a motion intervene upon the parties as provided in 5 TCRCP. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of American Samoa gives the right to intervene. When the constitutionality of an act of the Fono of American Samoa affecting the public interest is drawn in question in any action to which the American Samoa Government or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of American Samoa.

 

RULE 25.SUBSTITUTION OF PARTIES.

 

(a)Death.

 

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in 5 TCRCP and upon persons not parties as in the manner provided in 4 TCRCP for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

 

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforce survives only to the surviving plaintiffs or only against the surviving defendants, the actions does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

 

(b)Incompetency. If a party becomes incompetent, the court allow the action to be continued by or against his representative.

 

(c)Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

 

(d)Public Officers; Death of Separation form Office.

 

(1)When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

 

(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.

 

RULE 26.GENERAL PROVISIONS GOVERNING DISCOVERY.

 

(a)Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and request for admission. Unless the court orders otherwise under subdivision (c) of this rule, the frequency of use of these methods is not limited.

 

(b)Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

 

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be in adimissble at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

 

(2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not be reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application an insurance agreement.

 

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of 37(a)(4) TCRCP apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

 

(4) Trial Preparation: Experts: Discovery of facts known and opinion held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

 

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b) (4) (C) of this rule, concerning fees and expenses as the court may deem appropriate.

 

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in 35(b) TCRCP or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

 

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b) (4) (A) (ii) and (b) (4) (B) of this rule, and (ii) with respect to discovery obtained under subdivision (b) (4) (A) (ii) or this rule the court may require, and with respect to discovery obtained under subdivision (b) (4) (B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the later party in obtaining facts and opinions from the expert.

 

(c)Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2)that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5)that discovery be conducted with not one present except persons designated by the court; (6) that a deposition after being sealed by opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents of information enclosed in sealed envelopes to opened as directed by the court.

 

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of 37(a)(4) TCRCP apply to the award of expenses incurred in relation to the motion.

 

(d)Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, order otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

 

(e)Supplementation of Response. A party who has responded to a request for discovery with a response that was complete when made it under no duty to supplement his response to include information thereafter acquired, except as follows:

 

(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discovery matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

 

(2)A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance knowing concealment.

 

(3)A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior response.

 

(f)Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes:

 

(1) A statement of the issues as they then appear;

 

(2) A proposed plan and schedule of discovery;

 

(3) Any limitation proposed to be place on discovery. (4) Any other proposed orders with respect to discovery;and

 

(5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each part and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to the matters set forth in the motion shall be served not later than 10 days after service of the motion.

 

Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires.

 

Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by 16 TCRCP.

 

RULE 27.DEPOSITIONS BEFORE ACTION OR PENDING APPEAL.

 

(a)Before Action.

 

(1) Petition. A person who desires to perpetuate his own testimony or that of another person regarding on any matter that that may be cognizable in any court in American Samoa may file a verified petition in the High Court of American Samoa. The petition shall be entitled in the name of the petitioner and shall show: 1), that the petitioner expects to be a party to an action cognizable in a court of American Samoa but is presently unable to bring it or cause it to be brought; 2), the subject matter of the expected action and his interest therein; 3), the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; 4), the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and 5), the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each. The petition shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

 

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the territory in the manner provided in 4 TCRCP for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in 4 TCRCP an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of 17(c) TCRCP apply.

 

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with these rules; and the court may make orders of the character provided for by 34 and 35 TCRCP.

 

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules, it may be used in any action involving the same subject matter subsequently brought in any court of American Samoa, in accordance with the provisions of 32(a) TCRCP.

 

(b)Pending Appeal. If an appeal has been taken from a judgment of the district court, land and titles division, or the trial division of the High Court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in that court. In such case the party who desires to perpetuate the testimony may make a motion in the trial court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the trial court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each and (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by 34 and 35 TCRCP, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in any court of American Samoa.

 

(c)Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

 

RULE 28.PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN.

 

(a)Within the United States. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an office authorized to administer oaths by laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

 

(b)In Foreign Countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the depositions in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in (here name the country)." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for deposition taken within American Samoa under these rules.

 

(c)Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

 

RULE 29.STIPULATIONS REGARDING DISCOVERY PROCEDURE.

 

Unless the court orders otherwise, the parties may by written stipulation (1) provided that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these rules for other methods of discovery, except that stipulating extending the time provided in 33, 34, and 36 TCRCP for responses to discovery may be made only with the approval of the court.

 

RULE 30.DEPOSITIONS UPON ORAL EXAMINATION.

 

(a)When Depositions May be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under 4(e) TCRCP except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b) (2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in 45 TCRCP. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

 

(b)Notice of Examination: General Requirements; Special Notice; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization.

 

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included int he notice.

 

(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of American Samoa, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by 11 TCRCP are applicable to the certification. If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.

 

(3) The court may for cause shown enlarge or shorten the time for taking the deposition.

 

(4) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at his own expense. Any objections under subdivision (c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e), and the certification of the officer required by subdivision (f) shall be set forth in a writing to accompany a deposition recorded by a non-steno-graphic means.

 

(5) The notice to a party deponent may be accompanied by a request made in compliance with 34 TCRCP for the production of documents and tangible things at the taking of the deposition. the procedure of 34 TCRCP shall apply to the request.

 

(6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

 

(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone.

 

(c)Examination and Cross-Examination; Record or Examination; Oath; Objections. Examination and cross-examination or witnesses may proceed as permitted at the trial under the provisions of the American Samoa rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at the time of the examination to the qualification of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceeding's shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

 

(d)Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in 26(c) TCRCP. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provision of 37(a)(4) TCRCP apply to the award of expenses incurred in relation to the motion.

 

(e)Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission to him, the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under 32(d)(4) TCRCP the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

 

(f)Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.

 

(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing. Documents and things produced for inspection during examination of the witness, shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if their person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.

 

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

 

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

 

(g)Failure to Attend or to Serve Subpoena; Expenses.

 

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.

 

(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees.

 

RULE 31.DEPOSITIONS UPON WRITTEN QUESTIONS.

 

(a)Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in 45 TCRCP. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

 

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name of descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of 30(b)(6) TCRCP.

 

Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

 

(b)Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by 30(c), (e) and (f) TCRCP to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him.

 

(c)Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all other parties.

 

RULE 32.USE OF DEPOSITIONS IN COURT PROCEEDINGS.

 

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

 

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

 

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under 30 (b) (6) or 31(a) TCRCP to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

 

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is out of American Samoa, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

 

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to 25 TCRCP does not affect the right to use depositions previously taken; and, when an action in any court of the United States or American Samoa or of any State has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

 

(b) Objections to Admissibility. Subject to the provisions of 28 TCRCP and subdivision (d)(3) of this rule objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

 

(c)(ABROGATED).

 

(d)Effect of Errors and Irregularities in Depositions.

 

(1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

 

(2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

 

(3) As to taking of deposition.

 

(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

 

(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

 

(C) Objections to the form of written questions submitted under Rule 31 are waived unless served in writing upon the party propounding them with in the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized.

 

(4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under 30 and 31 TCRCP agree waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

 

RULE 33.INTERROGATORIES TO PARTIES.

 

(a)Availability; Procedures for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or government agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

 

Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to; in which event the reasons for objection shall be stated in lieu of an answer. The answer are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers of objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under 37(a) TCRCP with respect to any objection to or other failure to answer an interrogatory.

 

(b)Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under 26(b) TCRCP and the answer may be used to the extent permitted by the American Samoa Rules of Evidence.

 

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.

 

(c)Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records form which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as can the party served, the records from which the answer may be ascertained.

 

RULE 34.PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES.

 

(a) Scope. Any party may serve on any other part a request (1) to produce and permit the party making the request, or someone action on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of 26(c) TCRCP and which are in the possession, custody or control of the party upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of 26(c) TCRCP.

 

(b)Procedure. The request may, without leave of court, be served upon the plaintiff after service of the summons and complaint upon that party. the request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon the defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under 37(a) TCRCP with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection 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 request.

 

(c)Person Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

 

RULE 35.PHYSICAL AND MENTAL EXAMINATION OF PERSONS.

 

(a)Order of Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

 

(b)Report of Examining Physician.

 

(1) If requested by the party against whom an order is made under 35(a) TCRCP or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case or a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physical fails or refuses to make a report the court may exclude his testimony if offered at the trial.

 

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

 

(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. The subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

 

RULE 36.REQUESTS FOR ADMISSION OF DOCUMENTS.

 

(a)Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of 26(b) TCRCP set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

 

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon. If objections made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter or which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of 37(c) TCRCP, deny the matter or set forth reasons why he cannot admit or deny it.

 

The party who has requested the admission may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of 37(a) TCRCP apply to the award of expenses incurred in relation to the motion.

 

(b)Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of 16 TCRCP governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

 

RULE 37.FAILURE TO MAKE OR COOPERATE IN DISCOVERY: SANCTIONS.

 

(a)Motion or Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows.

 

(1) Appropriate Court. An application for an order to a party or a deponent who is not a party shall be made to the court in which the action is pending.

 

(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under 30(a)(6) or 31(a) TCRCP, or a party fails to answer an interrogatory submitted under 33 TCRCP, or if a party, in response to a request for inspection submitted under 34 TCRCP, fails to respond that inspection will be permitted as requested, the discovering party may move for an order compelling an answer or designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.

 

If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to 26(c) TCRCP.

 

(3)Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.

 

(4)Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

 

If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

 

If the motion is granted in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

 

(b)Failure to Comply with Order.

 

(1) Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being direct to do so by the court, the failure may be considered a contempt of court.

 

(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under 30(b)(6) or 31(a) TCRCP to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or 35 TCRCP, or if a party fails to obey an order entered under orders in regard to the failure as are just, and among others the following:

 

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

 

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

 

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgement by default against the disobedient party;

 

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

 

(E) Where a party has failed to comply with an order under 35(a) TCRCP requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.

 

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him 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.

 

(c)Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under 56 TCRCP and if the party requesting the admissions thereafter proves the genuineness of the document of the truth of the matter, he may apply to the court for an order requiring the order party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to 36(a) TCRCP, or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit.

 

(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 30(b)(6) or 31(a) TCRCP to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories, or (3) to serve a written response to a request for inspection submitted under 34 TCRCP, 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 him 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 26 TCRCP.

 

(e)(ABROGATED).

 

(f)Expenses Against United States. Except to the extent permitted by statute, expenses and fees may not be awarded against the United States under this rule.

 

(g)Failure to Participate in the Framing of a Discovery Plan. If a party or his attorney fails to participate in good faith in the forming of a discovery plan by agreement as is required by 26(f) TCRCP, the court may, after opportunity for hearing, require such party or his attorney to pay any other party the reasonable expenses, including attorney's fees, caused by the failure.

 

RULE 38.(OMITTED).

 

RULE 39.(OMITTED).

 

RULE 40.ASSIGNMENT OF CASES FOR TRIAL.

 

The courts of American Samoa, and in conformity with proceedings pursuant to 16 TCRCP, may place actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties. Precedence shall be given to actions entitled thereto by a statute of American Samoa.

 

RULE 41.DISMISSAL OF ACTIONS.

 

(a) Voluntary Dismissal: Effect Thereof.

 

(1) By Plaintiff; by Stipulation. Subject to the provisions of 26(e) TCRCP or of any statute of American Samoa 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 American Samoa, or the United States or of any state an action based of 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 him 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.

 

(3) Settlements. Whenever a case set for trial has been settled, the attorneys or parties appearing in person shall immediately notify the court thereof and move for dismissal.

 

(b)Involuntary Dismissal: Effect Thereof. For failure of the plaintiff the 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 him. After the plaintiff, in an action tried by the court, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court shall make findings as provided in 52(a) TCRCP. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision any dismissal not provided or in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under 19 TCRCP, operates as a 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.

 

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 issue.

 

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 a statute of American Samoa or by these rules or the American Samoa Rules of Evidence.

 

(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)(OMITTED).

 

RULE 44.PROOF OF OFFICIAL RECORD.

 

(a)Authentication.

 

(1) Domestic. An official record kept within American Samoa or the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, 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 his 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 his office.

 

(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official plication 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 relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of 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 evidence by an attested summary with or without a final certification.

 

(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 of lack of entry therein by any other method authorized by law.

 

RULE 44.1DETERMINATION OF FOREIGN LAW.

 

A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material of source, including testimony, whether or not submitted by a party or admissible under the American Samoa Rules of Evidence. The court's determination shall be treated as a ruling on a question of law.

 

RULE 45.SUBPOENA.

 

(a)For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

 

(b)For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

 

(c)Service. A subpoena may be served by the marshal, by his deputy, or by any other 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 by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the American Samoa Government or an officer or agency thereof, fees and mileage need not be tendered.

 

(d)Subpoena for Taking Deposition; Place of Examination. Proof of service of notice to take a deposition as provided in 30(b) and 31(a) TCRCP constitutes a sufficient authorization for the issuance by the clerk of court of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitutes or contain matters within the scope of the examination permitted by 26(b) TCRCP but in that event the subpoena will be subject to the provisions of 26(c) TCRCP and subdivision (b) of this rule.

 

The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified after in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before our during the taking of the deposition.

 

(e)Subpoena for a Hearing or Trial.

 

(1) At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of court

 

(2)(OMITTED).

 

(f)Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

 

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 he desires the court to take or his objection to the action of the court and his 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 him.

 

RULE 47.(OMITTED).

 

RULE 48.(OMITTED).

 

RULE 49.(OMITTED).

 

RULE 50.(OMITTED).

 

RULE 51.(OMITTED).

 

RULE 52.FINDINGS

 

(a)In all actions tried upon the facts, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to 58 TCRCP; 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. But the court may require the prevailing party to prepare the proposed findings of fact and also conclusions of law. Requests for findings are not necessary for purposes of review. Findings of fact 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. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under 12 or 56 TCRCP or any other motion except as provided in 41(b) TCRCP.

 

(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 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 trial court an objection to such findings or has made a motion to amend them or a motion for judgment. The party so directed shall lodge them with the clear, with proof of service upon all parties, and the clerk shall hold them for five days before presentation to the judge. Any party who disapproves the form of proposed findings of fact, conclusions of law or judgment shall, within five days after service of a copy upon him, serve and lodge with the clerk a notice of a disapproval, together with proposed modifications and reasons therefor.

 

RULE 53.(OMITTED).

 

RULE 54.JUDGMENTS: COSTS.

 

(a)Definition; Form. "Judgment" as used in these rules includes a decree and any order form which an appeal lies. A judgment shall not contain a recital of pleadings 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 his pleadings.

 

(d)Costs. Except when express provision therefor is made either in a statute of American Samoa or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the American Samoa Government or the United States, their 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 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 provide by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

 

(b)Judgment. Judgment by default may be entered upon motion of the party entitled to the judgment; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committed, conservator, or other such representative who has appeared therein.

 

The moving party shall serve the party against whom judgment by default is sought (or, if the party has appeared by representative, shall serve his representative) written notice of the application for judgment at least 10 days prior to the hearing on such application. Such notice shall be in English and in Samoan. If the party against whom judgment is sought cannot be found within American Samoa, service of the notice shall be by registered or certified mail to his last known address at least 15 days prior to the hearing.

 

If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.

 

(c)Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with 60(b) TCRCP.

 

(d)Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of 54(c) TCRCP.

 

(e)Proof Required Despite Default in Certain Cases. No judgment by default shall be entered against the American Samoa Government or the United States or an officer or agency or either or against infants, incompetents, or parties to a suit for divorce or annulment of marriage unless the claimant established his claim or right to relief by evidence satisfactory to the court.

 

Effective July 28, 1995

 

RULE 56.SUMMARY JUDGMENT.

 

(a)For Claimant. A party seeking to recover upon a claim, counterclaim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

 

(b)For Defending Party. A party against who a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

 

(c)Motion and Proceeding Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

 

(d)Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy an what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

 

(e)Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

 

(f)When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

 

(g)Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expense which the filing of the affidavits cause him to incur, including reasonable attorney's fees, and an offending party or attorney may be adjudged guilty of contempt.

 

RULE 57.DECLARATORY JUDGMENT.

 

The procedure for obtaining a declaratory judgment pursuant to 43.1101 ASCA, shall be in accordance with these rules. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.

 

RULE 58.ENTRY OF JUDGMENT.

 

Subject to the provisions of 54(b) TCRCP: (1) upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2)upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in 23 HCR. Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.

 

RULE 59.NEW TRIALS; AMENDMENT OF JUDGMENTS.

 

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for any of the reasons for which rehearings have heretofore been granted in suits in equity. On a motion for a new trial the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

 

(b)Time for Motion. A motion for a new trial shall be served not later than 10 days before the date of the hearing.

 

(c)Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 3 days before the hearing which to serve opposing affidavits and memorandum. The court may permit reply affidavits.

 

(d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

 

(e)Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

 

RULE 60.RELIEF FROM JUDGMENT OR ORDER.

 

(a)Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division or a judge thereof.

 

(b)Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under 59(b) TCRCP; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, release, or discharged, or prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prosecutive application; or (6) any other reason justifying relief from the operation of the judgment. The motions shall be made within a reasonable time, and for reason (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audit querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

 

RULE 61.HARMLESS ERROR.

 

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stae of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

 

RULE 62.STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT.

 

(a) Automatic Stay; Exceptions-Injunctions and Receiverships. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entry. Unless otherwise ordered by the court, an interlocutory of final judgment in an action for an injunction, shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.

 

(b)Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to 59 TCRCP, or of a motion for relief from a judgment or order made pursuant to 60 TCRCP, or of a motion for amendment to the findings or for additional findings made pursuant to 52 (b) TCRCP.

 

(c)Injunction Pending Appeal. When an appeal is taken from an interlocutory of final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

 

(d)Stay Upon Appeal. Subject to the discretion of the court, when an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.

 

(e)Stay in Favor of the American Samoa Government or the United States or Agency Thereof. When an appeal is taken by the American Samoa Government or the United States or an officer or agency thereof or by direction of any department of the American Samoa Government or the Government of the United States and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.

 

(f)(OMITTED).

 

(g)Power of Appellate Division Not Limited. The provisions in this rule do not limit any power of the appellate division or of a justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency or an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

 

(h)Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in 54(b) TCRCP, the court may stay enforcement of that judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

 

RULE 63.DISABILITY OF A JUDGE.

 

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after findings of fact and conclusions of law are filed, then any other judge regularity sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

 

RULE 64.SEIZURE OF PROPERTY.

 

An action involving the recovery or possession of specific personal property before judgment or an action whereby the owner of a security interest in personal property seeks to recover possession of said personal property prior to judgment, the procedure of an application for such pre-judgment seizure shall be as follows:

 

(a)Affidavit. The plaintiff shall file with the court an affidavit or personal knowledge containing the following information:

 

(1) Description of Property. A description of the claimed property that is sufficient to make possible its identification and its location.

 

(2) Statement of Title or Right. A statement that the plaintiff is the owner of the claimed property or is entitled to possession of it, describing the source of such title or right and, if the plaintiff's interest in such property is based on a written instrument, a copy of said instrument must be attached to the affidavit.

 

(3) Statement of Wrongful Detention. A statement of specific facts which show that the property is wrongfully detained by the defendant and a statement of the cause of such detention according to the best knowledge, information and belief of the plaintiff.

 

(4)Statement of Risk of Injury. A statement of specific facts in support of the contention, if any, that there is risk of concealment, transfer or other disposition of or damage to the property to the injury of the plaintiff.

 

(b)Proceedings.

 

(1) Preliminary Examination by the Court. The court, without delay, shall examine the complaint, the application and supporting affidavit and its attachments and any further showing offered by the plaintiff in support of the plaintiff's right to the immediate possession of the property.

 

(2) Preliminary Finding for the Plaintiff; Writ of Seizure without Hearing; Hearing on Dissolution. If the court upon preliminary examination finds that the risk of concealment, transfer or other disposition of or damage to the property by permitting it to remain in the possession of the defendant between the filing of the action and the time of a hearing is real, then the court shall forthwith enter an order authorizing the issuance of a writ of seizure but the court shall provide in said order that the defendant is entitled, as a matter of right, to a pre-judgment hearing on the issue of dissolution of the writ if a written request for hearing is served on counsel for the plaintiff within five days from the date of seizure of the property by the marshal. If such a request is made, the writ shall expire upon the fifteenth day from said date of seizure unless the court, after hearing, continues the order in effect. The expiration of the writ shall not prejudice the right of the plaintiff to a reinstatement thereof but any such reinstatement shall not be made without notice and hearing. If no request for a hearing is made within the five-day period, the writ shall remain in effect pending further order of the court but, the court, in its discretion, may hear a request for dissolution of the writ although said request is served more than five days from the date of seizure.

 

(3) Failure to Make Preliminary Finding for the Plaintiff; Order of Hearing; Hearing on Writ of Seizure. If the court fails to make a preliminary finding for the plaintiff under (b)(2) subdivision of this rule, the court shall order and direct that the plaintiff's application to the court for a writ of seizure or such other writ be set down for a hearing before the court at the earliest practical time and notice of the time, date and place of said hearing shall be forthwith served on the defendant. Said notice to the defendant shall provide that the defendant shall not dispose of or alter in any form the personalty therein described pending the hearing of the application and shall state that if the covered, he shall be subject to punishment for contempt of court. At such hearing the plaintiff shall have the burden of showing good cause for the pre-judgment seizure but the failure of the defendant to appear shall be deemed a waiver of any objections to the pre-judgment seizure.

 

RULE 65.INJUNCTIONS.

 

The rules supplement the statutory provisions concerning injunctions.

 

(a)Preliminary Injunction.

 

(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.

 

(2) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial merits becomes part of the record in the trial and need not be repeated upon the trial.

 

(b)(OMITTED).

 

(c)(OMITTED).

 

(d)(OMITTED).

 

(e)(OMITTED).

 

RULE 65.1.SECURITY: PROCEEDINGS AGAINST SURETIES.

 

Whenever these rules or any statute, including the Supplemental Rules for Certain Admiralty and Maritime Claims, require or permit the giving of security by a party, an security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are known.

 

RULE 66.(OMITTED).

 

RULE 67.DEPOSIT IN COURT.

 

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing. All funds over $1,000.00 shall be put into a interest bearing instrument.

 

Effective June 14, 1988

 

RULE 68.OFFER OF JUDGMENT.

 

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with cost then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

 

RULE 69.EXECUTION.

 

(a)Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with Title 43, ASCA and with these rules. In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided by Title 43, ASCA and by these rules.

 

(b)(OMITTED).

 

RULE 70.JUDGMENT FOR SPECIFIC ACTS : VESTING TITLE.

 

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the Territory of American Samoa, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance when executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.

 

RULE 71.PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES

 

When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party.

 

RULE 71A.CONDEMNATION OF PROPERTY

 

(a)Applicability of Other Rules and Statutes. The American Samoa Rules of Civil Procedure govern the procedure for the condemnation of real and personal property under the power of eminent domain, except as other wise provided in this rule and Title 43, A.S.C.A..

 

(b)Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use.

 

(c)Complaint,

 

(1) Caption. The complaint shall contain a caption as provided in 52 HCR, except that the plaintiff shall name as defendants the property, designated general by kind, quantity, and location, and at least one of the owners of some part of or interest in the property.

 

(2) Contents. The complaint shall contain a short and plain statement of the authority for the taking, of the use for which the property is to be taken, a description of the property sufficient for its identification, the interest to be acquired, and as to each separate piece of property a designation of the defendants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff shall add as defendants all persons having or claiming an interest in that property whose name can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interest to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation "Unknown Owners." Process shall be served as provided in subdivision (d) of this rule upon all defendants, whether names as defendants at the time of the commencement of the action or subsequently added, and a defendant may answer as provided in subdivision (e) of this rule. The court meanwhile may order such distribution of a deposit as the facts warrant.

 

(3) Filing. In addition to filing the complaint with the court, the plaintiff shall furnish to the clerk at least one copy thereof for the use of the defendants and additional copies at the request of the clerk or of a defendant.

 

(d)Process.

 

(1) Notice; Delivery. Upon the filing of the complaint the plaintiff shall forthwith deliver to the clerk joint or several notices directed to the defendants named or designated in the complaint. Additional notices directed to defendants subsequently added shall be so delivered. The delivery of the notice and its service have the same effect as the delivery and service of the summons under 4 TCRCP.

 

(2) Same; Form. Each notice shall state the court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property, a description of his property sufficient for its identification, the interest to be taken, the authority for the taking, the uses for which the property is to be taken, that the defendant may serve upon the plaintiff's attorney an answer within 20 days after service of the notice, and that the failure so to serve an answer constitutes a consent to the taking and to the authority of the court to proceed to hear the action and to fix the compensation. the notice shall conclude with the name of the plaintiff's attorney and an address within the Territory of American Samoa where he may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed.

 

(3) Service of Notice.

 

(i) Personal Service. Personal service of the notice (but without copies of the complaint) shall be made in accordance with 4(c) and (d) TCRCP upon a defendant who resides within the Territory of American Samoa and whose residence is known.

 

(ii) Service by Publication. Upon the filing of a certificate of the plaintiff's attorney stating that the believes a defendant cannot be personally served, because after diligent inquiry within the Territory of American Samoa his place of residence cannot be ascertained by the plaintiff or, if ascertained that it is beyond the territorial limits of personal service as provided in this rule, service of the notice shall be made on this defendant by publication in a newspaper having a general circulation in American Samoa once a week for not less than three successive weeks. Prior to the last publication, a copy of the notice shall also be mailed to a defendant who cannot be personally served as provided in this rule but whose place of residence is then known. Unknown owners may be served by publication in like manner by a notice addressed to "Unknown Owners." In addition, all such published notices must be posted on the board in front of the Courthouse.

 

Service by publication is complete upon the date of the last publication. Proof of publication and mailing shall be made by certificate of the plaintiff's attorney, to which shall be attached a printed copy of the published notice with the name and dates of the newspaper marked thereon.

 

(4) Return; Amendment. Proof of service of the notice shall be made and amendment of the notice or proof of its service allowed in the manner provided for the return and amendment of the summons under 4(g) and (h) TCRCP.

 

(e)Appearance or Answer. If a defendant has not objection or defense to the taking of his property, he may serve a notice of appearance designating the property in which he claims to be interested. Thereafter he shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him. The answer shall identify the property in which he claims to have interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not he has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed.

 

(f)Amendment of Pleadings. Without leave of court, the plaintiff may amend the complaint at any time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by subdivision (h) of this rule. The plaintiff need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Rule 5(b), upon any party affected thereby who has appeared and, in the manner provided in subdivision (d) of this rule, upon any party affected thereby who has not appeared. The plaintiff shall furnish to the clerk of the court for the use of the defendants at least one copy of each amendment, and he shall furnish additional copies on the request of the clerk or of a defendant. Within the time allowed by subdivision (e) of this rule a defendant may serve his answer to the amended pleading, in the form and manner and with the same effect as there provided.

 

(g)Substitution of Parents. If a defendant dies or becomes incompetent or transfers his interest after his joinder, the court may order substitution of the proper party upon motion and notice of hearing. If the motion and notice of hearing are to be served upon a person not already a party, service shall be made as provided in subdivision (d)(3) of this rule.

 

(h)(OMITTED).

 

(i)Dismissal of Action.

 

(1) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in or taken possession, the plaintiff may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.

 

(2) By Stipulation. Before the entry of any judgment vesting the plaintiff with title or a lesser interest in or possession of property, the action may be dismissed in whole or in part, without an order of the court, as to any property by filing a stipulation or dismissal by the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the court may vacate any judgment that has been entered.

 

(3) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the court may dismiss the action as to that property, except that it shall not dismiss the action as to any part of the property or which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, but shall award just compensation for the possession, title or lesser interest so taken. The court at any time may drop a defendant unnecessarily or improperly joined.

 

(4) Effect. Except as otherwise provided in the notice, or stipulation of dismissal, or order of the court, any dismissal is without prejudice.

 

(j)Deposit and Its Distribution. The plaintiff shall deposit with the court any money required by law as a condition to the exercise of the power of eminent domain. In such cases the court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the amount which has been paid to him on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of the defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment again the plaintiff and in favor of the defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the court shall enter judgment against him and in favor of the plaintiff for the overpayment.

 

(k)(OMITTED).

 

(l) Costs. Costs are not subject to 54(d) TCRCP.

 

RULES 72-76.(ABROGATED).

 

RULE 77.(OMITTED).

 

RULE 78.(OMITTED).

 

RULE 79.(OMITTED).

 

RULE 80.STENOGRAPHIC REPORT OR TRANSCRIPT AS EVIDENCE.

 

(a)(ABROGATED).

 

(b)(ABROGATED).

 

(c)Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony.

 

RULE 81.APPLICABILITY IN GENERAL.

 

These rules apply generally to all civil actions in the District Court and the High Court of American Samoa, unless another, more specific, provisions of the Rules of the Judiciary of American Samoa applies.

 

RULE 82.(OMITTED).

 

RULE 83.(OMITTED).

 

RULE 84.FORMS.

 

The forms contained in the Appendix of Forms to the Federal Rules of Civil Procedure are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate. However, an allegation of jurisdiction is required only in pleadings before the District Court and not in pleadings before the High Court of American Samoa.

 

RULE 85.(OMITTED).

 

RULE 86.(OMITTED).

 

RULE 87.EXTRAORDINARY WRITS: PURPOSE.The purpose of these rules, from 87 to 102, is to provide a uniform method of review of judicial, executive or administrative acts or failures to act only when there is no appeal allowed or the remedy by appeal is inadequate.

 

RULE 88.RULES OF CIVIL PROCEDURE APPLICABLE.Unless otherwise indicated herein the American Samoa Rules of Civil Procedure are applicable to hearings on petitions for extraordinary relief. Review of executive or administrative acts or failure to act is had in the Trial Division of the High Court. Review of acts of failures to act by the Village Courts and District Court is had in the Trial Division. Review of acts or failures to act by the Trial Division is had in the Appellate Division of the High Court.

 

RULE 89.PREPARATION OF PAPERS. The following should be prepared for submission to the court when seeking extraordinary relief:

 

(a)A verified petition with memorandum of points and authorities;

 

(b)An alternative writ; and

 

(c)An order granting the alternative writ.

 

RULE 90.CONTENTS OF PETITION. The title of any petition brought under these rule is "Petition for Extraordinary Relief." The caption is to properly identify the petitioner, the respondent, and any real parties in interest. The petition should contain allegations showing:

 

(a)The title and number of the main action, if any;

 

(b)The beneficial interest of the petitioner;

 

(c)The capacity of the respondent;

 

(d)The capacity of any real party in interest;

 

(e)Facts that will allow the court to understand the issues presented by the petition and from which the court can conclude that the petitioner has no other adequate relief;

 

(f)The issues presented;

 

(g)The reasons why the court should grant the petition; and

 

(h)Copies of any order, opinion, or parts of the record which may be essential for the court to understand the matters set forth in the petition.

 

In addition, the petition must contain a prayer for relief and it must be verified.

 

RULE 91.SERVICE; SUBMISSION.The petition and memorandum of points and authorities must be served on the respondent and all real parties in interest, if any, prior to submission to the court by presenting them, along with proof of service, to the clerk's office and payment of a filing fee.

 

RULE 92.ACTION ON PETITION. The court may grant, grant in part, or deny the petition.

 

RULE 93.RESPONSE. The respondent or real parties in interest or both must serve and file any memorandum of points and authorities in opposition within 15 days of service of the petition upon them.

 

RULE 94.ISSUANCE OF ALTERNATIVE WRIT; SERVICE. If the petition is granted, the clerk at the direction if the court, calendars the matter for hearing and issues the alternative writ to the petitioner. (See sample Alternative Writ form appended to these rules as Appendix A). Petitioner must serve on each respondent and real party in interest, if any, a copy of the alternative writ, at least 15 days prior to the hearing date and file a copy with proof of service at least 5 days prior to the hearing date.

 

RULE 95.SERVICE OF ANSWER AND REPLY. The respondent and any real party in interest must serve any answer on the petitioner at least 5 days prior to the hearing date and file a copy with proof of service at least 2 days prior to the hearing date. The petitioner must serve any reply and file a copy with proof of service 2 days prior to the hearing date.

 

RULE 96.HEARING. At the time set for the hearing, the attorneys for the parties, or the parties themselves if not represented by attorneys, shall appear in court. The clients may, but need not, be present. When no question of fact is raised, the matter shall be heard on pleadings and oral arguments. When a question of fact is raised, a regular trial on the merits shall he had.

 

RULE 97.PRIORITY. Petitions for extraordinary relief shall be placed on the regular civil action list with priority over all other civil actions except older matters of the same nature and any other matters given higher priority by rule of statute.

 

RULE 98.JUDGMENT. Based upon the decision of the court, the prevailing party shall prepare a proposed judgment and order for issuance of a peremptory writ, a proposed peremptory writ, if any, and, if requested by either party at the time of hearing or by the court at any time, proposed findings of fact and conclusions of law. These papers must be filed with the court and served on the opposing party within 5 days of its decision.

 

RULE 99.OPPOSING TO PROPOSED JUDGMENT.Within 5 days after the date of filing with the court of the proposed judgment and order, peremptory writ, and findings of fact and conclusions of law, the opposing party may serve and file, with proof of service, opposition to them or any of them.

 

RULE 100.DETERMINATION OF PROPOSED JUDGMENT. If opposition is filed the court shall make a determination of the sufficiency and correctness of the proposed papers based on the papers presented or, if the court deems it appropriate, the court may have the clerk give the parties notice of either an informal or formal hearing on the matter. If an amendment is required, it shall be served and filed in the same manner as the original and similarly any opposition to the amendment shall be served and filed in the same manner as the original opposition.

 

RULE 101.ISSUANCE OF JUDGMENT. When the court determines that the proposed judgment and order, proposed peremptory writ and any findings of fact and conclusions of law, or any amendments thereof which may have been necessary, are satisfactory, the court shall sign the judgment and order, the peremptory writ, if any, and findings of fact and conclusions of law, if any. The clerk shall then file the judgment. A copy of the signed judgment and order, peremptory writ, if any, along with notice of entry of judgment shall be served on both parties.

 

RULE 102.NOTICE OF APPEAL. Any party aggrieved by the judgment may file a notice of appeal within 10 days after the date of service of the notice of entry of judgment unless, of course, the Appellate Division of the High Court has rendered the judgment, in which case there is no appeal.

 

RULE 103.ADMINISTRATIVE REVIEW. All proceedings in the Trial Division of the High Court in the nature of judicial review of Workmen's Compensation Commission's orders shall be governed by 15-20 ACR.

 

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

 

RULE A.SCOPE OF RULES.

 

These Supplemental Rules apply to the procedure in admiralty and maritime claims within the meaning of 9(h) TCRCP with respect to the following remedies:

 

(1)Maritime attachment and garnishment;

 

(2)Actions in rem;

 

(3)Possessory, petitory, and partition actions;

 

(4)Actions for exoneration from or limitation of liability.

 

These rules also apply to the procedure in statutory condemnation proceedings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental Rules to actions in rem include such analogous statutory condemnation proceedings.

 

The American Samoa Rules of Civil Procedure are also applicable to the foregoing proceedings except to the extent that they are inconsistent with these Supplemental Rules.

 

RULE B.ATTACHMENT AND GARNISHMENT: SPECIAL PROVISIONS.

 

(1)When Available; Complaint, Affidavit, and Process. With respect to any admiralty or maritime claim in personam a verified complaint may contain a prayer for process to attach the defendant's goods and chattels, or credits and effects in the hands of garnishees named in the complaint to the amount sued for, if the defendant shall not be found within the territory. Such a complaint shall be accompanied by an affidavit signed by the plaintiff or his attorney that, to the affiant's knowledge, or to the best of his information and belief, the defendant cannot be found within the territory. When a verified complaint is supported by such an affidavit the clerk shall forthwith issue a summons and process of attachment and garnishment. In addition, or in the alternative, the plaintiff may invoke the remedies provided by territory law for attachment and garnishment or similar seizure of the defendant's property. Except for Rule E(8) these Supplemental Rules do not apply to territorial remedies so invoked.

 

(2)Notice to Defendant. No judgment by default shall be entered except upon proof, which may be by affidavit, (a) that the plaintiff or the garnishee has given notice of the action to the defendant by mailing to him a copy of the complaint, summons, and process of attachment or garnishment, using any form of mail requiring a return receipt, or (b) that the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4(d) or (I), or (c) that the plaintiff or the garnishee has made diligent efforts to give notice of the action to the defendant and has been unable to do so.

 

(3)Answer.

 

(a) By Garnishee. The garnishee shall serve his answer, together with answers to any interrogatories served with the complaint, within 20 days after service of process upon him. Interrogatories to the garnishee may be served with the complaint without leave of court. If the garnishee refuses or neglects to answer on oath as to the debts, credits, or effects of the defendant in his hands, or any interrogatories concerning such debts, credits, and effects that may be preappointed by the plaintiff, the court may award compulsory process against him. If he admits any debts, credits, or effects, they shall be held in his hands or paid into the registry of the court, and shall be held in either case subject to the further order of the court.

 

(b) By Defendant. The defendant shall serve his answer within 30 days after process has been executed, whether by attachment of property or service on the garnishee.

 

RULE C.ACTION IN REM: SPECIAL PROVISIONS.

 

(1)When Available. An action in rem may be brought:

 

(a) To enforce any maritime lien; or

 

(b) Whenever a statute of American Samoa or the United States provides for a maritime action in rem or a proceeding analogous thereto.

 

Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable.

 

Statutory provisions exempting vessels or other property owned or possessed by or operated by or for the Government of American Samoa or the United States from arrest or seizure are not affected by this rule. When a statute so provides, an action against the Government of American Samoa or the United States or an instrumentality thereof may proceed on in rem principles.

 

(2) Complaint. In action in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of American Samoa or the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought.

 

(3) Process. Upon the filing of the complaint the clerk shall forthwith issue a warrant for the arrest of the vessel or other property that is the subject of the action and deliver it to the marshal for service. If the property that is the subject of the action consist in whole or in part of freight, or the proceeds of property sold, or other intangible property, the clerk shall issue a summons directing any person having control of the funds to show cause why they should no be paid into court to abide the judgment.

 

(4) Notice. No notice other than the execution of the process is required when the property that is the subject of the action has been released in accordance with Rule E(5). If the property is not released within 10 days after execution of process, the plaintiff shall promptly or within such time as may be allowed by the court cause public notice of the action and arrest to be given in a newspaper of general circulation in the district, designated by order of the court. Such notice shall specify the time within which the answer is required to be filed as provided by subdivision (6) of this rule.

 

(5) Ancillary Process. In any action in rem in which process has been served as provided by this rule, if any part of the property that is the subject of the action has not been brought within the control of the court because it has been removed or sold, or because it is intangible property in the hands of a person who has not been served with process, the court may, on motion, order any person having possession or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or paid into court to abide the judgment; and , after hearing, the court may enter such judgment as law and justice may require.

 

(6) Claim and Answer; Interrogatories. the claimant of property that is the subject of an action in rem shall file his claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall serve his answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the property by virtue of which the claimant demands its restitution and the right to defend the action. If the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that he is duly authorized to make the claim. At the time of answering the claimant shall also serve answers to any interrogatories served with the complaint. In actions in rem interrogatories may be so served without leave of court.

 

RULE D.POSSESSORY, PETITORY, AND PARTITION ACTIONS.

 

In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime property, and in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties.

 

RULE E.ACTIONS IN REM AND QUASI IN REM: GENERAL PROVISIONS.

 

(1)Applicability. Except as otherwise provided, this rule applies to actions in personam with process of maritime attachment and garnishment, actions in rem, and petitory, possessory, and partition actions, supplementing Rules B, C, and D.

 

(2)Complaint; Security.

 

(a) Complaint. In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

 

(b) Security for Costs. Subject to the provisions of 54(d) TCRCP and of relevant statutes, the court may, on the filing of the complaint or on the appearance of any defendant, claimant, or any other party, or at any later time, require the plaintiff, defendant, claimant, or other party to give security, or additional security, in such sum as the court shall direct to pay all costs and expenses that shall be awarded against him by any interlocutory order or by the final judgment, or on appeal by the appellate division.

 

(3)Process.

 

(a) Territorial Limits of Effective Service. Process in rem and of maritime attachment or garnishment shall be served only within the Territory of American Samoa.

 

(b) Issuance and Delivery. Issuance and delivery of process in rem, or of maritime attachment and garnishment, shall be held in abeyance if the plaintiff so requests.

 

(4)Execution of Process; Marshal's Return; Custody of Property.

 

(a) In General. Upon issuance and delivery of the process or, in the case of summons with process of attachment and garnishment, when it appears that the defendant cannot be found within the Territory of American Samoa, the marshal shall forwith execute the process in accordance with this subdivision (4), making due and prompt return.

 

(b) Tangible Property. If tangible property is to be attached or arrested, the marshal shall take it into his possession for safe custody. If the character or situation of the property is such that the taking of actual possession is impracticable, the marshal shall execute the process by affixing a copy thereof to the property in a conspicuous place and by leaving a copy of the complaint and process with the person having possession or his agent. In furtherance of his custody of any vessel the marhsal is authorized to make a written request to the port director no to grant clearance to such vessel until notified by the marshal or his deputy or by the clerk that the vessel has been released in accordance with these rules.

 

(c) Intangible Property. If intangible property is to be attached or arrested the marshal shall execute the process by leaving with the garnishee or other obligor a copy of the complaint and process requiring him to answer as provided in rules B(3)(a) and C(6); or he may accept for payment in to the registry of the court the amount owed to the extent of the amount claimed by the plaintiff with interest and costs, in which event the garnishee or other obligor shall not be required to answer unless alias process shall be served.

 

(d) Direction with Respect to Property in Custody. The marshal may at any time apply to the court for directions with respect to property that has been attached or arrested, and shall give notice of such application to any or all of the parties as the court may direct.

 

(5)Release of Property.

 

(a) Special Bond. Except in cases of seizures for forfeiture under any law of American Samoa or the United States, whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on the giving of security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of the appellate division. The parties may stipulate the amount and nature of such security. In the event of the inability or refusal of the parties so to stipulate the court shall fix the principal sum of the bond or stipulation at an amount sufficient to cover the amount of the plaintiff's claim fairly stated with accrued interest and costs; but the principal sum shall in no event exceed (I) twice the amount of the plaintiff's claim or (ii) the value of the property on due appraisement, whichever is smaller. The bond or stipulation shall be conditioned for the payment of the principal sum and interest thereon at 6 per cent per annum.

 

(b) General Bond. The owner of any vessel may file a general bond or stipulation, with sufficient surety, to be approved by the court, conditioned to answer the judgment of such court in all or any actions that may be brought thereafter in such court in which the vessel is attached or arrested. Thereupon the execution of all such process against such vessel shall be stayed so long as the amount secured by such bond or stipulation is at least double the aggregate amount claimed by secured by such bond or stipulation is at least double the aggregate amount claimed by plaintiffs in all actions begun and pending in which such vessel has been attached or arrested. Judgments and remedies may be had on such bond or stipulation as if a special bond or stipulation had been filed in each of such actions. The trial division may make necessary orders to carry this rule into effect, particularly as to the giving of proper notice of any action against or attachment of a vessel for which a general bond has been filed. Such bond or stipulation shall be indorsed by the clerk. Further security may be required by the court at any time.

 

If a special bond or stipulation is given in a particular case, the liability on the general bond or stipulation shall cease as to that case.

 

(c) Release by Consent or Stipulation; Order of Court or Clerk; Costs. Any vessel, cargo, or other property in the custody of the marshal may be released forthwith upon his acceptance and approval of a stipulation, bond, or other security, signed by the party on whose behalf the property is detained or his attorney and expressly authorizing such release, if all costs and charges of the court and its officers shall have first been paid. Otherwise no property in the custody of the marshal or other officer of the court shall be released without an order of the court; but such order may be entered as of course by the clerk, upon the giving of approved security as provided by law and these rules, or upon the dismissal or discontinuance of the action; but the marshal shall not deliver any property so released until the costs and charges of the officers of the court shall first have been paid.

 

(d) Possessory, Petitory, and Partition Actions. The foregoing provisions of this subdivision (5) do not apply to petitory, possessory, and partition actions. In such cases the property arrested shall be released only by order of the court, on such terms and conditions and on the giving of such security as the court may require.

 

(6)Reduction or Impairment of Security. Whenever security is taken the court may, on motion and hearing, for good cause shown, reduce the amount of security given; and if the surety shall be or become insufficient, new or additional sureties may be required on motion and hearing.

 

(7)Security on Counterclaim. Whenever there is asserted a counterclaim arising out of the same transaction or occurrence with respect to which the action was originally filed, and the defendant or claimant in the original action has given security to respond in damages to the claim set forth in such counterclaim, unless the court, for cause shown, shall otherwise direct; and proceedings on the original claim shall be stayed until such security is given, unless the court otherwise directs. When the American Samoa Government or the United States or a corporate instrumentality thereof as defendant is relived by law of the requirement of giving security to respond in damages it shall nevertheless be treated for the purposes of this subdivision E(7) as if it had given such security if a private person so situated would have been required to give it.

 

(8)Restricted Appearance. An appearance to defend against an admiralty and maritime claim with respect to which there has issued process in rem, or process of attachment and garnishment whether pursuant to these Supplemental Rules or to Rule 4(e), may be expressly restricted to the defense of such claim, and in that event shall not constitute an appearance for the purposes of any other claim with respect to which such process is not available or has not been served

 

(9)Disposition of Property; Sales.

 

(a) Actions for Forfeitures. In any action in rem to enforce a forfeiture for violation of a statute of American Samoa or the United States the property shall be disposed of as provided by statute.

 

(b) Interlocutory Sales. If property that has been attached or arrested is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action, or if the expense of keeping the property is excessive or disproportionate, or if there is unreasonable delay in securing the release of property, the court, on application of any party or of the marshal, may order the property or any portion thereof to be sold; and the proceeds, or so much thereof as shall be adequate to satisfy any judgment, may be ordered brought into court to abide the event of the action; or the court may, on motion of the defendant or claimant, order delivery of the property to him, upon the giving of security in accordance with these rules.

 

(c) Sales; Proceeds. All sales of property shall be made by the marshal or his deputy, or other proper officer by the court where the marshal is a party in interest; and the proceeds of sale shall be forthwith paid into the registry of the court to be disposed of according to law.

 

RULE F.LIMITATION OF LIABILITY

 

(1)Time for Filing Complaint; Security. Not later than six months after his receipt of a claim in writing, any vessel owner may file a complaint in the trial division, as provided in subdivision (9) of this rule, for limitation of liability pursuant to statute. The owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of his interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at his option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, his interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security for costs and, if he elects to give security, for interest at the rate of 6 per cent per annum from the date of the security.

 

(2)Complaint. The complaint shall set forth the facts on the basis of which the right to limit liability is asserted, and all facts necessary to enable the court to determine the amount to which the owner's liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage, if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceedings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer his interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip.

 

(3)Claims Against Owner; Injunction. Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or his property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or his property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or his property with respect to any claim subject to limitation in the action.

 

(4)Notice to Claimants. Upon the owner's compliance with subdivision (1) of this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice. The date so fixed shall not be less than 30 days after issuance of the notice. For cause shown, the court may enlarge the time within which claims may be failed. The notice shall be published in such newspaper or newspapers as the court may direct once a week for four successive weeks prior to the date fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person know to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to limited arose. In cases involving death a copy of such notice shall be mailed to the decedent at his last known address, and also to any person who shall be known to have made any claim on account of such death.

 

(5)Claims and Answer. Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify the facts upon which the claimant relies in support of his claim, the items thereof, and the dates on which the same occurred. If a claimant desires to contest either the right to exoneration from or the right to limitation of liability he shall file and serve an answer to the complaint unless his claim has included an answer.

 

(6)Information to be Given Claimants. Within 30 days after the date specified in the notice for filing claims, or within such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant himself) a list setting forth (a) the name of each claimant, (b) the name and address of his attorney (if he is known to have one), (c) the nature of his claim, i.e., whether property loss, property damage, death, personal injury, etc., and (d) the amount thereof.

 

(7)Insufficiency of Fund or Security. Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff's interest in the vessel pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff's interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the states relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced.

 

(8)Objections to Claims: Distribution of Fund. Any interested party may question or controvert any claim without filing an objection thereto. Upon determination of liability the fund deposited or secured, or the proceeds of the vessel and pending freight, shall be divided pro rata, subject to all relevant provisions of law, among the several claimants in proportion to the amounts of their respective claims, duly proved, saving, however, to all parties any priority to which they may be legally entitled.

 

(9)(OMITTED).

 

APPENDIX A

 

(sample Alternative Writ)

 

HIGH COURT OF AMERICAN SAMOA

 

TRIAL DIVISION

 

(caption) )

 

) C.A. No._______

 

)

 

)

 

) ALTERNATIVE WRIT

 

______________________________)

 

THE TERRITORY OF AMERICAN SAMOA

 

TO THE RESPONDENT _ _ _ _ _ _ _ _ COURT OF AMERICAN SAMOA:

 

It appears from the verified petition on file in this action that you have State generally complaint against respondent, e.g, failed to perform your legal duty/abused your discretion/acted beyond your jurisdiction, etc.) by (E.g., denying petitioner's motion to quash service of summons) , and that petitioner, the party beneficially interested, has no plain, speedy, and adequate remedy in the ordinary course of law.

 

THEREFORE, you are commanded, (immediately on receipt of this writ/on or before .........., 19...) to (State specific acts or duties to be performed, e.g., vacate

 

your order or denial and to enter order granting petitioner's motion) , or

 

IN THE ALTERNATIVE, to show cause before this Court, on , 19 , why you have not done so.

 

Dated:, 19

 

LET THE FOREGOING WRIT ISSUE.

 

IT IS ORDERED that a copy of this Alternative Writ be served at least 15 days before the hearing on the above order to show cause.

 

Dated:________, 19____.

 

 

 

______________________________

 

JUDGE