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2013 - 2014 Alaska Rules of Civil Procedure

Part I. Scope of Rules -- Construction -- One Form of Action

1 Scope of Rules -- Construction 2 One Form of Action

Part II. Commencement of Action -- Service of Process, Pleadings, Motions and Orders

3 Commencement of Action and Venue
4 Process
5 Service and Filing of Pleadings and Other Papers
5.1 Filing and Service by Facsimile Transmission and Electronic Mail
5.2 Foreign Orders and Judgments
6 Time

Part III. Pleadings and Motions

7 Pleadings Allowed -- Form of Motions
8 General Rules of Pleading
9 Pleading Special Matters
10 Form of Pleadings
11 Signing of Pleadings, Motions, and Other Papers
12 Defenses and Objections -- When and How Presented -- By Pleading or Motion -- Motion for Judgment on Pleadings
13 Counterclaim and Cross-Claim
14 Third-Party Practice
15 Amended and Supplemental Pleadings
16 Pretrial Conferences; Scheduling; Management
16.1 Special Procedures for Reducing Litigation Delay (Rescinded)

Part IV. Parties

17 Parties Plaintiff and Defendant -- Capacity
18 Joinder of Claims and Remedies
19 Joinder of Persons Needed for Just Adjudication
20 Permissive Joinder of Parties
21 Misjoinder and Non-Joinder of Parties
22 Interpleader
23 Class Actions
23.1 Derivative Actions by Shareholders
23.2 Actions Relating to Unincorporated Associations
24 Intervention
25 Substitution of Parties

Part V. Depositions and Discovery

26 General Provisions Governing Discovery; Duty of Disclosure
26.1 Discovery and Disclosure in Divorce and Legal Separation Actions
27 Depositions Before Action or Pending Appeal
28 Persons Before Whom Depositions May be Taken; Foreign Commissions and Letters Rogatory
29 Stipulations Regarding Discovery Practice
30 Depositions Upon Oral Examination
30.1 Audio and Audio-Visual Depositions
31 Depositions Upon Written Questions
32 Use of Depositions in Court Proceedings
33 Interrogatories to Parties
34 Production of Documents, Electronically Stored Information, and Things, and Entry Upon Land for Inspection and Other Purposes
35 Physical and Mental Examination of Persons
36 Requests for Admission
37 Failure to Make Disclosure or Cooperate in Discovery: Sanctions

Part VI. Trial

38 Jury Trial
39 Trial by Jury or by the Court
40 Assignment and Hearing of Cases -- Calendars -- Continuances
41 Dismissal of Actions
42 Consolidation -- Separate Trials -- Change of Judge

Part VII. Evidence and Conduct of Trial

43 Evidence
43.1 Exhibits
45 Subpoena
46 Conduct of Trials
47 Jurors
48 Order of Trial Proceedings -- Management of Juries
49 Special Verdicts and Interrogatories
50 Motion for a Directed Verdict and for Judgment
51 Instructions to Jury
52 Findings by the Court

Part VIII. Masters

53 Masters

Part IX. Judgment

54 Judgments -- Costs
55 Default
56 Summary Judgment
57 Declaratory Judgments -- Judgments by Confession
58 Entry of Judgment
58.1 Judgments and Orders -- Effective Dates and Commencement of Time for Appeal, Review and Reconsideration
58.2 Judgments for the Payment of Money
59 New Trials -- Amendment of Judgments
60 Relief From Judgment or Order
61 Harmless Error
62 Stay of Proceedings to Enforce a Judgment
63 Disability of a Judge

Part X. Provisional and Final Remedies and Special Proceedings

64 Seizure of Person or Property
65 Injunctions
65.1 Domestic Violence and Stalking Protective Orders -- Access to Information
66 Receivers
67 Deposit in Court
68 [Applicable to cases filed before August 7, 1997.] Offer of Judgment
68 [Applicable to cases filed on or after August 7, 1997.] Offer of Judgment
69 Execution -- Examination of Judgment Debtor -- Restraining Disposition of Property -- Execution After Five Years
70 Judgment for Specific Acts -- Vesting Title
71 Process in Behalf of and Against Persons Not Parties
72 Eminent Domain
72.1 Expert Advisory Panels in Health Care Provider Malpractice Actions

Part XI. Superior Court and Clerks

73 The Clerk
74 Books and Records Kept by Clerk and Entries Therein
75 Record of Proceedings -- Transcript as Evidence
76 Form of Pleadings and Other Papers -- Filing
77 Motions
78 Findings, Conclusions, Judgments and Orders -- Preparation and Submission
79 Costs -- Taxation and Review
80 Bonds and Undertakings
81 Attorneys
82 Attorney's Fees
83 Fees: Witnesses -- Physicians -- Interpreters and Translators

Part XII. Special Proceedings

84 Change of Name
85 Forcible Entry and Detainer
86 Habeas Corpus
87 Civil Arrest
88 Procedure for Claiming Delivery of Personal Property
89 Attachment
90 Contempts
90.1 Dissolution of Marriage, Divorce, and Legal Separation Actions
90.2 Settlement and Judgments in Favor of a Minor
90.3 Child Support Awards
90.4 Proceedings to Establish Parentage
90.5 Expedited Judicial Relief from Action Against Occupational or Driver's License for Unpaid Child Support
90.6 Appointment of Child Custody Investigator
90.7 Appointment of Guardian Ad Litem in Child Custody Proceedings
90.8 Expedited Applications to Compel Correction of Any Error in Redistricting Plan

Part XIII. General Provisions

91 Applicability of Civil Rules In General
92 Construction of Rules
93 Legal Effect of Rules -- Statutes Superseded
94 Relaxation of Rules
95 Penalties
97 Title
98 Effective Date
99 Telephonic Participation in Civil Cases
100 Mediation and Other Forms of Alternative Dispute Resolution

PART I. SCOPE OF RULES -- CONSTRUCTION -- ONE FORM OF ACTION

Rule 1. Scope of Rules -- Construction.

The procedure in the superior court and, so far as applicable, in the district court shall be governed by these rules in all actions or proceedings of a civil nature -- legal, equitable, or otherwise. These rules shall be construed to secure the just, speedy and inexpensive determination of every action and proceeding.

(Adopted by SCO 5 October 9, 1959; amended by SCO 993 effective January 15, 1990)

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Rule 2. One Form of Action.

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

(Adopted by SCO 5 October 9, 1959)

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PART II. COMMENCEMENT OF ACTION--SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS

Rule 3. Commencement of Action and Venue.

(a) A civil action is commenced by filing a complaint with the court. The complaint, in order to be accepted for filing, must be accompanied by a completed case description on a form provided by the clerk of court. The complaint shall also be accompanied by an envelope addressed to the plaintiff with sufficient postage to mail the envelope and all summonses that will be issued in the case.

(b) All actions in ejectment, for recovery of possession, for quieting title, for partition, or for the enforcement of liens upon real property shall be commenced in the superior court in the judicial district in which the real property, or any part of it affected by the action, is situated. Such actions may also be commenced in the venue district in which the real property is located if the superior court in the district accepts such cases for filing.

(c) If, in a civil action other than one specified in (b) of this rule, a defendant can be personally served within a judicial district of the State of Alaska, the action may be commenced either in: (1) the judicial district in which the claim arose; or (2) a judicial district where the defendant may be personally served; or (3) a venue district where the claim arose if the superior court in the district accepts such cases for filing.

(d) Subject to a change of venue motion under AS 22.10.040, a trial and any hearings in an action shall be conducted in a venue district within the judicial district at a location which would best serve the convenience of the parties and witnesses.

(e) Actions in cases not otherwise covered under this rule may be commenced in any judicial district of the state.

(f) Failure to make timely objection to improper venue waives the venue requirements of this rule.

(g) Venue districts as used in this rule refer to the districts referenced in the venue map described in Criminal Rule 18.

(h) A petition or request for a protective order on domestic violence under AS 18.66 may be filed in the judicial district

(1) where the petitioner currently or temporarily resides;

(2) where the respondent resides; or

(3) where the domestic violence occurred.

(Adopted by SCO 5 October 9, 1959; amended by SCO 554 effective April 4, 1983; by SCO 683 effective May 15, 1986; by SCO 697 effective September 15, 1986; by SCO 714 effective September 15, 1986; by SCO 744 effective December 15, 1986; by SCO 760 effective December 15, 1986; by SCO 811 effective August 1, 1987; by SCO 1097 effective January 15, 1993; by SCO 1128 effective July 15, 1993; by SCO 1269 effective July 15, 1997; by SCO 1397 effective October 15, 2000; by SCO 1402 effective October 15, 2000; by SCO 1450 effective October 15, 2001; by SCO 1656 effective April 15, 2008; by SCO 1740 effective nunc pro tunc to September 7, 2010; and by SCO 1819 effective April 15, 2014)

Note to SCO 1269: Civil Rule 3(h) was added by 68 ch. 64 SLA 1996. Section 8 of this order is adopted for the sole reason that the legislature has mandated the amendment.

Note: In 1996, the legislature enacted AS 37.15.583(b), which requires that certain actions pertaining to Alaska clean water fund revenue bonds be commenced and conducted in the superior court at Juneau. According to 13 ch. 141 SLA 1996, this statute has the effect of amending Civil Rule 3.

Note: In 2000, the legislature amended AS 37.15.583(a) to allow the owners of Alaska drinking water fund revenue bonds to file suit to enforce their rights. An action brought under AS 37.15.583(a) must be commenced and conducted in the superior court at Juneau. According to 24 ch. 61 SLA 2000, the amendment to AS 37.15.583(a) has the effect of amending Civil Rule 3.

Note: Ch. 79 SLA 2002 (HB 182), Section 9, adds a new Chapter 25 to Title 45 of the Alaska Statutes, concerning motor vehicle sales and dealers. According to Section 14 of the Act, AS 45.25.020(b) has the effect of amending Civil Rule 3 by establishing a different rule for determining where a legal dispute described in AS 45.25.020(a) may be brought.

Note to Civil Rule 3(g): The venue districts referenced in this rule and in Criminal Rule 18 are shown on the venue map available on the Alaska Court System website at http://www.courts.alaska.gov/venuemapinfo.htm.

Note: Chapter 64, SLA 2010 (SB 60), effective September 7, 2010, enacted changes relating to the Uniform Probate Code. According to section 12(a) of the Act, AS 13.16.055(a), as amended by section 9 of the Act, has the effect of amending Civil Rule 3 by establishing a special venue rule for the first informal or formal testacy or appointment proceedings after a decedent's death when the decedent was not domiciled in this state. According to section 12(b) of the Act, AS 13.12.540, as enacted by section 8 of the Act, has the effect of amending Civil Rule 3 by establishing special venue rules for a petition under AS 13.12.530 or 13.12.535, enacted by section 8 of the Act.

Cross References

CROSS REFERENCE: AS 09.10.010

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Rule 4. Process.

(a) Summons - Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it to the plaintiff or the plaintiff's attorney, who shall cause the summons and a copy of the complaint to be served in accordance with this rule. Upon request of the plaintiff separate or additional summonses shall issue against any defendants.

(b) Summons - Form.

(1) The summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s attorney or the plaintiff’s name and address if the plaintiff is unrepresented. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in judgment by default against the defendant for the relief demanded in the complaint. The summons must also notify the defendant that the defendant has a duty to inform the court and all other parties, in writing, of the defendant’s or defendant’s attorney’s current mailing address and telephone number, and to inform the court and all other parties of any changes, as set out in Civil Rule 5(i).

(2) The summons must be on the current version of the summons form developed by the administrative director or a duplicate of the court form. A party or attorney who lodges a duplicate certifies by lodging the duplicate that it conforms to the current version of the court form.

(c) Methods of Service - Appointments to Serve Process - Definition of Peace Officer.

(1) Service of all process shall be made by a peace officer, by a person specially appointed by the Commissioner of Public Safety for that purpose or, where a rule so provides, by registered or certified mail.

(2) A subpoena may be served as provided in Rule 45 without special appointment.

(3) Special appointments for the service of all process relating to remedies for the seizure of persons or property pursuant to Rule 64 or for the service of process to enforce a judgment by writ of execution shall only be made by the Commissioner of Public Safety after a thorough investigation of each applicant, and such appointment may be made subject to such conditions as appear proper in the discretion of the Commissioner for the protection of the public. A person so appointed must secure the assistance of a peace officer for the completion of process in each case in which the person may encounter physical resistance or obstruction to the service of process.

(4) Special appointments for the service of all process other than the process as provided under paragraph (3) of this subdivision shall be made freely when substantial savings in travel fees and costs will result.

(5) The term "peace officer" as used in these rules shall include any officer of the state police, members of the police force of any incorporated city, village or borough, United States Marshals and their deputies, other officers whose duty is to enforce and preserve the public peace, and within the authority conferred upon them, persons specially appointed pursuant to paragraph (3) of this subdivision.

(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) Individuals. Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to the individual personally, or by leaving copies thereof at the individual's 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) Infants. Upon an infant, by delivering a copy of the summons and complaint to such infant personally, and also to the infant's father, mother or guardian, or if there be none within the state, then to any person having the care or control of such infant, or with whom the infant resides, or in whose service the infant is employed; or if any service cannot be made upon any of them, then as provided by order of the court.

(3) Incompetent Persons. Upon an incompetent person, by delivering a copy of the summons and complaint personally -

(A) To the guardian of the person or a competent adult member of the person's family with whom the person resides, or if the person is living in an institution, then to the director or chief executive officer of the institution, or if service cannot be made upon any of them, then as provided by order of the court; and

(B) Unless the court otherwise orders, also to the incompetent person.

(4) Corporations or Limited Liability Companies. Upon a domestic or foreign corporation or limited liability company, by delivering a copy of the summons and of the complaint to a managing member, an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.

(5) Partnerships. Upon a partnership, by delivering a copy of the summons and of the complaint personally to a general partner of such partnership, or to a managing or general agent of the partnership, or to any other agent authorized by appointment or by law to receive service of process, or to a person having control of the business of the partnership; or if service cannot be made upon any of them, then as provided by order of the court.

(6) Unincorporated Associations. Upon an unincorporated association, by delivering a copy of the summons and the complaint personally to an officer, a managing or general agent, or to any other person authorized by appointment or by law to receive service of process; or if service cannot be made upon any of them, then as provided by order of the court.

(7) State of Alaska. Upon the state, by sending a copy of the summons and the complaint by registered or certified mail to the Attorney General of Alaska, Juneau, Alaska, and

[a] to the chief of the attorney general's office in Anchorage, Alaska, when the matter is filed in the Third Judicial District; or

[b] to the chief of the attorney general's office in Fairbanks, Alaska, when the matter is filed in the Fourth Judicial District.

(8) Officer or Agency of State. Upon an officer or agency of the state, by serving the State of Alaska as provided in the preceding paragraph of this rule, and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.

(9) Public Corporations. Upon a borough or incorporated city, town, school district, public utility district, or other public corporation in the state, by delivering a copy of the summons and of the complaint to the chief executive officer or chief clerk or secretary thereof.

(10) Unknown Parties. Upon unknown persons who may be made parties in accordance with statute and these rules, by publication as provided in subdivision (e) of this rule.

(11) Officer or Agency of State as Agent for Non-governmental Defendant. Whenever, pursuant to statute, an officer or an agency of the State of Alaska has been appointed as agent to receive service for a non-governmental defendant, or whenever, pursuant to statute, an officer or agency of the State of Alaska, has been deemed, considered or construed to be appointed as agent for a non-governmental defendant by virtue of some act, conduct or transaction of such defendant, service of process shall be made in the manner provided by statute.

(12) Personal Service Outside State. Upon a party outside the state in the same manner as if service were made within the state, except that service shall be made by a sheriff, constable, bailiff, peace officer or other officer having like authority in the jurisdiction where service is made, or by a person specifically appointed by the court to make service, or by service as provided in subsection (h) of this rule. In an action to enforce any lien upon or claim to, or to remove any encumbrance or lien or cloud upon the title to, real or personal property within the state, such service shall also be made upon the person or persons in possession or in charge of such property, if any. Proof of service shall be in accordance with (f) of this rule.

(13) Personal Service in a Foreign Country. Upon an individual in a foreign country -

(A) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(B) if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided that service is reasonably calculated to give notice:

(i) 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;

(ii) as directed by the foreign authority in response to a letter rogatory or letter of request; or

(iii) unless prohibited by the law of the foreign country, by delivery to the individual personally of a copy of the summons and the complaint, or by any form of mail requiring a signed receipt by the party to be served, so long as the return receipt is filed with the court; or

(C) by other means not prohibited by international agreement as may be directed by the court.

Regardless of which method of service is followed for personal service in a foreign country, before entry of judgment, the court must be satisfied that the method used was a method reasonably likely to effect actual notice.

(e) Other Service. When it shall appear by affidavit of a person having knowledge of the facts filed with the clerk that after diligent inquiry a party cannot be served with process under (d) of this rule, service may be made by publication or as otherwise directed by the court as provided in this subdivision. Service by publication will be allowed in adoption cases only if ordered by the court for compelling reasons.

(1) Diligent Inquiry. Inquiry as to the absent party’s whereabouts shall be made by the party who seeks to have service made, or by the party’s attorney actually entrusted with the conduct of the action, or by the agent of the attorney. It shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the absent party’s residence or address or the matter inquired of. Unless otherwise ordered by the court, diligent inquiry shall include a reasonable effort to search the internet for the whereabouts of the absent party. The inquiry shall also be undertaken in person or by letter, and the inquirer shall state that an action has been or is about to be commenced against the party inquired for, that the object of the inquiry is to give such party notice of the action in order that such party may appear and defend it. When the inquiry is made by letter, postage shall be enclosed sufficient for the return of an answer. The affidavit of inquiry shall be made by the inquirer. It shall fully specify the inquiry made, of what persons and in what manner it was made, and a description of any efforts that were made to search the internet, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.

(2) Service by Publication in a Newspaper. A notice shall be published four times during four consecutive calendar weeks, once in each week, in a newspaper published in the district in which the action is pending, or if none be published therein, then in a newspaper published in this state circulating in such district. Prior to the last publication, the party who seeks to have service made must send the absent party a copy of the notice and the complaint or the pleading (A) by registered or certified mail, with return receipt requested, with postage prepaid, and (B) by regular first class mail. The notice must be addressed in care of the absent party's residence or the place where the party usually receives mail, unless it shall appear by affidavit that the absent party’s residence or place is unknown or cannot be ascertained after inquiry.

(3) Other Service. In its discretion the court may allow service of process to be made upon an absent party in any other manner which is reasonably calculated to give the party actual notice of the proceedings and an opportunity to be heard, if an order permitting such service is entered before service of process is made.

(4) Form and Contents of Notice - Time. The notice referred to in paragraph (2) of this subdivision shall be in the form of a summons. It shall state briefly the nature of the action, the relief demanded, and why the party to whom it is addressed is made a party to the action. Where the action concerns real property or where real property of a party has been attached, the notice shall set forth a legal description of the property, shall state the municipality or district in which it is located, and the street or road on which the property is situated, and if the property is improved, it shall state the street number of the same. Where personal property of a party has been attached, the notice shall generally describe the property. If a mortgage is to be foreclosed, the notice shall state the names of all parties thereto and the dates that the mortgage was executed. The notice shall specify the time within which the absent party has to appear or answer or plead, which shall not be less than 20 days after personal service or, if service is made by publication, not less than 30 days after the last date of publication, and shall state the effect of a failure to appear or answer or plead. If the absent party does not appear or answer or plead within the time specified within the notice, the court may proceed as if such party had been served with process within the state.

(5) Proof of Service. If service is made by publication, proof of publication shall be made by the affidavit of the newspaper’s publisher, printer, manager, foreman, or principal clerk, or by the certificate of the attorney for the party at whose instance the service was made. A printed copy of the published notice with the name of the newspaper and dates of publication marked therein shall be attached to the affidavit or certificate. Proof of mailing shall be made by affidavit of a deposit in a post office of the copies of the notice and the complaint or other pleadings.

(f) Return. The person serving the process shall give proof of service thereof to the party requesting issuance of the process or to the party's attorney promptly and in any event within the time during which the person served must respond to the process. Within 120 days after filing of the complaint, the party shall file and serve an affidavit identifying the parties who have been served, the date service was made and the parties who remain unserved. If service is made by a person other than a peace officer, the person shall make affidavit thereof, proof of service shall be in writing and shall set forth the manner, place, date of service, and all pleadings or other papers served with the process. Failure to make proof of service does not affect the validity of the service.

(g) 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 parties against whom the process issued.

(h) Service of Process by Mail. In addition to other methods of service provided for by this rule, process may also be served within this state or the United States or any of its possessions by registered or certified mail, with return receipt requested, upon an individual other than an infant or an incompetent person and upon a corporation, partnership, unincorporated association, or public corporation. In such case, copies of the summons and complaint or other process shall be mailed for restricted delivery only to the party to whom the summons or other process is directed or to the person authorized under federal regulation to receive the party's restricted delivery mail. All receipts shall be so addressed that they are returned to the party serving the summons or process or the party's attorney. Service of process by mail under this paragraph is complete when the return receipt is signed.

(i) RESERVED

(j) Summons - Time Limit for Service. The clerk shall review each pending case 120 days after filing of the complaint to determine whether all defendants have been served. If any defendant has not been served, the clerk shall send notice to the plaintiff to show good cause in writing why service on that defendant is not complete. If good cause is not shown within 30 days after distribution of the notice, the court shall dismiss without prejudice the action as to that defendant. The clerk may enter the dismissal if the plaintiff has not opposed dismissal. If the court finds good cause why service has not been made, the court shall establish a new deadline by which plaintiff must file proof of service or proof that plaintiff has made diligent efforts to serve.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 66 effective July 1, 1964; by SCO 90 effective July 24, 1967; by SCO 168 dated June 25, 1973; by SCO 215 effective May 23, 1975; by SCO 266 effective March 31, 1977; by SCO 282 effective November 15, 1977; by SCO 306 effective April 11, 1978; by SCO 357 effective June 30, 1978; by SCO 373 effective August 15, 1979; by SCO 465 effective June 1, 1981; by SCO 591 effective July 1, 1984; by SCO 679 effective June 15, 1986; by SCO 697 effective September 15, 1986; by SCO 714 effective September 15, 1986; by SCO 788 effective March 15, 1987; by SCO 815 effective August 1, 1987; by SCO 836 effective August 1, 1987; by SCO 1025 effective July 15, 1990; by SCO 1128 effective July 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1269 effective July 15, 1997; by SCO 1295 effective January 15, 1998; by SCO 1445 effective October 15, 2001; by SCO 1482 effective October 15, 2002; by SCO 1522 effective October 15, 2003; by SCO 1525 effective October 15, 2003; by SCO 1570 effective October 15, 2005; by SCO 1581 effective October 15, 2005; by SCO 1607 effective October 15, 2006; by SCO 1713 effective nunc pro tunc to May 16, 2009; by SCO 1716 effective nunc pro tunc to July 1, 2009; by SCO 1769 effective April 16, 2012; and by SCO 1788 effective nunc pro tunc June 15, 2012)

Note: In 1996, the legislature enacted AS 18.66.160, which relates to service of process in a proceeding to obtain a domestic violence protective order. According to 77 ch. 64 SLA 1996, this statute has the effect of amending Civil Rule 4.

Note: AS 10.06.580(b), as enacted by ch. 166, 1, SLA 1988, amended Civil Rule 4 by allowing a corporation in an action brought under AS 10.06.580 to serve non-resident dissenting shareholders by certified mail and publication without satisfying the conditions under which certified mail and publication can be used under Civil Rule 4. AS 10.06.638, as enacted by ch. 166, 1, SLA 1988, amended Civil Rule 4 by changing (1) the requirements for service by publication, and (2) how long a corporation has to respond to a complaint in an involuntary dissolution proceeding before the Commissioner of Commerce and Economic Development may take a default judgment against the corporation.

Note: Section 132 of ch. 87 SLA 1997 adds AS 25.27.265(c) which authorizes the court to allow CSED to serve a party by mailing documents to the last known address on file with the agency. This is permitted only if the court finds that CSED has made diligent efforts to serve documents in the appropriate manner. According to 153 of the Act, 132 has the effect of amending Civil Rules 4 and 5 by allowing service at the opposing party's last known address on file with the child support enforcement agency in certain circumstances.

Note: Ch. 61 SLA 2002 (HB 52), Section 2, repeals and reenacts AS 33.36.110 to authorize the governor to execute the Interstate Compact for Adult Offender Supervision. According to Section 6 of the Act, Article VIII(a)(2) of the Compact, contained in the new AS 33.36.110, would have the effect of amending Civil Rule 4 by entitling the Interstate Commission for Adult Offender Supervision to receive service of process of a judicial proceeding in this state that pertains to the Interstate Compact for Adult Offender Supervision and that may affect the powers, responsibilities or actions of that commission.

Note: Ch. 128 SLA 2002 (HB 393), Section 3, adds a new Chapter 66 to Title 45 of the Alaska Statutes, concerning the sale of business opportunities. According to Section 4 of the Act, AS 45.66.120(b) has the effect of amending Civil Rule 4 by requiring that the clerk of the court mail a copy of the complaint to the attorney general when an action is filed under AS 45.66.120.

Note: Chapter 87 SLA 03 (HB 1) enacted AS 18.65.865, which addresses service of process of protective orders issued under AS 18.65.850-860 for persons who are victims of stalking not involving domestic violence. According to Section 8(a) of the Act, the new AS 18.65.865 has the effect of amending Civil Rule 4 relating to service of process by requiring that service be made in accordance with AS 18.66.160, which governs service of domestic violence protective orders.

Note to SCO 1570: Civil Rule 4(d)(13), concerning service on individuals in a foreign country, parallels the language in Federal Rule of Civil Procedure 4(f).
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, referred to in Civil Rule 4(d)(13), generally provides for service of process by a central authority (usually the Ministry of Justice) in the Convention countries pursuant to a request submitted on a form USM-94 available at the office of any United States Marshall or at http:www.usmarshals.gov/forms/usm94.pdf. The Convention also permits service of process by international registered mail subject to the option of individual countries to object to such service. Many countries have objected, including Argentina , China , the Czech Republic , Egypt , Germany , Greece , the Republic of South Korea , Latvia , Lithuania , Luxembourg , Norway , Poland , the Slovak Republic , Sri Lanka , Switzerland , Turkey , Ukraine , and Venezuela ; service by registered mail is therefore not appropriate in those countries.
The full text of the Convention may by found at http://www.hcch.net/index_en.php?act=conventions.text&cid=17 .
Current information on the Convention may be found in the United States Department of State’s Circular on Service of Process Abroad, available at http://travel.state.gov/law/judicial/judicial_680.html.

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(a) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 4 by adding special proceedings, timing, and pleading requirements for matters involving public health.

Note: Chapter 10 SLA 2009 (HB 137), effective May 16, 2009, enacted changes relating to an Interstate Compact on Educational Opportunity for Military Children. According to section 2 of the Act, AS 14.34.010-.090 have the effect of changing Civil Rule 4 by entitling the Interstate Commission on Educational Opportunity for Military Children to receive service of process of a judicial proceeding in this state that pertains to the Interstate Compact on Educational Opportunity for Military Children, and in which the validity of a compact provision or rule is an issue for which a judicial determination has been sought.

Note: Chapter 37 SLA 2009 (HB 141), effective July 1, 2009, enacted changes relating to the Interstate Compact for Juveniles. According to section 11 of the Act the changes made to AS 47.15.010 have the effect of changing Civil Rule 4 by entitling the Interstate Commission for Juveniles to receive service of process of a judicial proceeding in this state that pertains to the Interstate Compact for Juveniles, and in which the validity of a compact provision or rule is an issue for which a judicial determination has been sought.

Note: Chapter 65, SLA 2012 (HB 296) added a new subsection (c) to AS 09.05.050 relating to service of process on prisoners, effective June 15, 2012. According to section 5 of the Act, AS 09.05.050, including the amendment made by section 1, has the effect of amending Alaska Rule of Civil Procedure 4, relating to service of process on prisoners committed to the custody of the commissioner of corrections.

Cross References

(d)     CROSS REFERENCE: AS 09.05.010

(e)(5) CROSS REFERENCE: AS 09.25.070

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Rule 5. Service and Filing of Pleadings and Other Papers.

(a) Service - When Required. 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, and similar paper shall be served upon each of the parties but 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 Rule 4.

In an action begun by seizure of property, whether through arrest, attachment, garnishment or similar process, 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) Service - 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 is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party, by mailing it to the attorney's or party's last known address, by transmitting it to the attorney's or party's facsimile machine telephone number or electronic mail address as provided in Civil Rule 5.1(c), or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney's or party's office with a 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 the attorney's or party's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Mailing of a copy means mailing it by first class United States mail. Service by mail is complete upon mailing. Service by a commercial delivery company constitutes service by delivery and is complete upon delivery.

(c) Service - 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.

(1) Except as provided in (2) of this paragraph, 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.

(2) Unless filing is ordered by the court on motion of a party or on its own motion, the following may not be filed unless and until they are used in the proceedings:

(i) disclosures under Rule 26(a);

(ii) notices of taking depositions and transcripts of depositions;

(iii) interrogatories and requests for admissions and answers thereto;

(iv) requests for production and responses thereto;

(v) subpoenas, including subpoenas duces tecum;

(vi) offers of judgment;

(vii) proof of service of any of the above;

(viii) copies of correspondence between counsel;

(ix) exhibits.

(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 at the court location where the case is filed unless otherwise directed by the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Papers may be filed by facsimile transmission or electronic mail only as permitted by Civil Rule 5.1(a).

(f) Proof of Service. Proof of service of all papers required or permitted to be served, other than those for which a particular method of proof is prescribed in these rules, must state the name of each person who has been served, must show the day and manner of service and may be by written acknowledgment of service, by certificate of an attorney, an authorized agent of the attorney, or a pro se litigant, by affidavit of the person who served the papers, or by any other proof satisfactory to the court. Proof of service must be made promptly and in any event before action is to be taken on the paper served by the court or the parties. Failure to make the proof of service required by this subdivision does not affect the validity of service; and the court may at any time allow the proof of service to be amended or supplied unless it clearly appears that to do so would result in material prejudice to the substantial rights of any party.

(g) Service After Final Judgment.

(1) Notwithstanding the provisions of paragraph (b) of this rule requiring service upon an attorney, a party who has been represented by an attorney in an action or proceeding shall be served rather than the attorney in accordance with the provisions of paragraph (b) with a motion or other request for relief filed in the action or proceeding where a period of one year has elapsed since the filing of any paper or the issuance of any process in the action or proceeding, and

(i) The final judgment or decree has been entered and the time for filing an appeal has expired, or

(ii) If an appeal has been taken, the final judgment or decree upon remand has been entered or the mandate has been issued affirming the judgment or decree, and

(iii) The party's attorney has not filed a notice of continued representation under Rule 81(d)(2).

(2) If a party is served under circumstances described in Section (1) of this paragraph, or if a party appeared in his or her own behalf in the prior action or proceeding, the paper served shall include notice to the party of the party's right to file written opposition or response, the time within which such opposition or response must be filed, and the place where it must be filed.

(h) Service on Custody Investigator and Guardian Ad Litem. In all cases involving the custody or visitation of a minor in which a custody investigator or a guardian ad litem has been appointed, the parties shall serve the custody investigator and the guardian ad litem with all pleadings involving the care, custody, or control of the minor.

(i) Changes in Mailing Address and Telephone Number. While a case is pending, the parties must immediately inform the court and all other parties, in writing, of any changes in their mailing addresses and telephone numbers, except as provided in Civil Rule 65.1.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 354 effective April 1, 1979; by SCO 372 effective August 15, 1979; by SCO 375 effective August 15, 1979; by SCO 410 effective May 15, 1980; by SCO 471 effective June 1, 1981; by SCO 522 effective October 1, 1982; by SCO 695 effective September 15, 1986; by SCO 731 effective December 15, 1986; by SCO 817 effective August 1, 1987; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; by SCO 1295 effective January 15, 1998; by SCO 1307 effective January 15, 1998; by SCO 1414 effective October 15, 2000; by SCO 1424 effective April 15, 2001; by SCO 1482 effective October 15, 2002; by SCO 1570 effective October 15, 2005, and by SCO 1786 effective October 15, 2012)

Note: Section 132 of ch. 87 SLA 1997 adds AS 25.27.265(c) which authorizes the court to allow CSED to serve a party by mailing documents to the last known address on file with the agency. This is permitted only if the court finds that CSED has made diligent efforts to serve documents in the appropriate manner. According to 153 of the Act, 132 has the effect of amending Civil Rules 4 and 5 by allowing service at the opposing party's last known address on file with the child support enforcement agency in certain circumstances.

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Rule 5.1. Filing and Service by Facsimile Transmission and Electronic Mail.

(a) Filing by Facsimile Transmission and Electronic Mail.

(1) A party may file documents by fax or electronic mail as permitted by administrative order of the presiding judge or with prior written consent of the judge assigned to the case. Unless the court orders that the original document be filed, a party filing a document by fax or electronic mail shall retain the original and shall produce it for inspection upon request of another party to the action or as ordered by the court.

(2) An administrative order permitting documents to be filed by fax or electronic mail may set limits on the size of electronic documents that can be accepted, the format of the documents, the frequency with which a party may file documents, and may establish other particular requirements and limitations.

(3) Documents filed by fax or electronic mail that are received by the court before 4:30 p.m. on a day that the court is open for regular business are deemed to have been filed on that business day; documents filed by fax or electronic mail that are received by the court after 4:30 p.m. are deemed to have been filed on the next day that is not a Saturday, Sunday, or a judicial holiday listed in Administrative Rule 16.

(b) Filing Foreign Domestic Violence Protective Orders by Facsimile Transmission. Notwithstanding any general administrative orders concerning fax filings issued under (a) of this rule, a court shall accept faxed certified copies of domestic violence protective orders issued by other states, tribes, or territories if (1) the order is faxed by the issuing court, and (2) the facsimile contains a certification that the faxed order is a true and correct copy of the original order on file with the issuing court.

(c)Service by Facsimile Transmission and Electronic Mail.

(1) Application of this Rule. This rule governs the service of documents by fax or electronic mail. It applies only to documents that may be served under Civil Rule 5(b). It does not apply to documents that must be served under Civil Rule 4. It applies to service by parties and by the court.

(2) Method of Service. Service by fax is made by successfully transmitting the document to the facsimile machine telephone number of a person who has consented to be served in this manner. Service by electronic mail is made by successfully sending an electronic file to an electronic mail address of a person who has consented to be served in this manner. Additional service by mail is not required; however, a copy of the document must be mailed to the person upon request.

(3) Consent to Service. A person who is willing to accept service by fax or electronic mail in an action shall so indicate beneath the signature in the person's initial filing or by serving and filing a separate notice of consent. A party may revoke consent by serving and filing a separate notice that consent has been revoked.

(4) Page Limit. A person may serve by fax a total of 25 pages per recipient per day unless the parties have agreed to a different page limit. Cover sheets and separators do not count toward the page limit.

(5) When Service is Complete. Service by electronic mail is complete upon receipt in the party’s electronic mail account. Service by fax is complete upon receipt of the entire document by the receiving party's facsimile machine. Service that occurs in whole or in part after 4:30 p.m. shall be deemed to have occurred at the opening of business on the next day that is not a Saturday, a Sunday, or a judicial holiday listed in Administrative Rule 16.

(6) Proof of Service. If service is made by fax or electronic mail, proof of service must be made by affidavit of the person making service, or by certificate of an attorney, an authorized agent of the attorney, or a pro se litigant. The affidavit or certificate must include the following information:

(A) the date and time of the transmission;

(B) the telephone number of the transmitting facsimile machine if service is made by fax, or the electronic mail address from which the electronic mail was sent, if the service was made by electronic mail;

(C) the recipient's name and facsimile machine telephone number, or electronic mail address;

(D) the number of pages transmitted; and

(E) a statement that the document was transmitted by facsimile transmission or electronic mail and the person signing the affidavit or certificate believes the transmission to have been complete and without error.

In lieu of including this information, the person signing the affidavit or certificate may attach a copy of the transmission report issued by the transmitting facsimile machine if the report is an accurate record of the transmission.

(Adopted by SCO 1307 effective January 15, 1998; amended by SCO 1695 effective March 1, 2009; and by SCO 1766 effective October 14, 2011)

Note: Presiding judges' fax filing orders are available on the court system's website at: www.courts.alaska.gov/judorders.htm. Copies may also be obtained from the office of the court rules attorney, 820 W. 4th Ave., Anchorage, AK 99501, (907) 264-8231.

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Rule 5.2. Foreign Orders and Judgments.

(a) Notice of Registration of Support and Child Custody Orders.

(1) When the court is required by the Uniform Interstate Family Support Act (AS 25.25.101 – .903) or the Uniform Child Custody Jurisdiction and Enforcement Act (AS 25.30.300 - .910) to give notice of registration of a support order, income withholding order, or child custody determination of another state, the court must give the required notice by first class mail, certified mail, or by any means of personal service authorized by Civil Rule 4. If the registering party does not request a method of service, the court will use first class mail.

(2) If the registering party requests that the court use a method of notice that provides proof of service, the proof of service must be retained by the party and not filed with the court unless and until it is needed in future proceedings.

(3) The time period within which the non-registering party may request a hearing begins on the date the notice is mailed or personally served.

(b) Notice of Filing Foreign Judgments. When the court is required by the Uniform Enforcement of Foreign Judgments Act (AS 09.30.200 -.270) to give notice of the filing of a foreign judgment, the court must promptly give that notice by first class mail. As provided in AS 09.30.210(b), a judgment creditor may mail an additional notice by first class or certified mail.

(Adopted by SCO 1714 effective October 15, 2009

NOTE: The statutes requiring the clerk to give notice are AS 25.25.605 and .609 (support orders), AS 25.30.430 (custody determinations) and AS 09.30.210 (foreign judgments).

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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 is not to be included. The last day of the period is to be included, unless it is a 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, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven days, not counting any period for mailing added under subsection (c) of this rule, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

(b) Enlargement. When by these rules or by a notice given thereunder or by order of the 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 Rules 50(b), 52(b), 59(b), and (e) and (f), and 60(b), except to the extent and under the conditions stated in them.

(c) Additional Time After Service or Distribution by Non-Electronic Mail. Whenever a party has the right or is required to act within a prescribed period after the service or distribution of a document, other than documents served under Civil Rule 4(h), and the document is served or distributed by non-electronic mail, three calendar days shall be added to the prescribed period. However, no additional time shall be added if a court order specifies a particular calendar date by which an act must occur.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 98 effective September 16, 1968; by SCO 258 effective November 15, 1976; by SCO 274 effective June 15, 1977; by SCO 704 effective September 15, 1986; by SCO 836 effective August 1, 1987; by SCO 878 effective July 15, 1988; by SCO 1007 effective January 15, 1990; by SCO 1639 effective October 15, 2007; by SCO 1694 effective October 15, 2009; and by SCO 1766 effective October 14, 2011)

Note: Ch. 77 SLA 2002 (HB 157), Section 2, adds new Chapter 26 to Title 6 of the Alaska Statutes, concerning providers of fiduciary services. According to Section 9 of the Act, AS 06.26.760(b)(2) has the effect of amending Civil Rule 6 by postponing the deadlines for the filing of pleadings and other documents by a trust company in a civil action when the Department of Community and Economic Development has taken possession of the trust company.

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PART III. PLEADINGS AND MOTIONS

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 leave is given under Rule 14 to summon a person who was not an original party; 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. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(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.

(3) The procedure for the submission and hearing of motions shall be as provided in Rule 77.

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

(Adopted by SCO 5 October 9, 1959; amended by SCO 57 effective November 8, 1963; by SCO 258 effective November 15, 1976)

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(a) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 7 by adding special proceedings, timing, and pleading requirements for matters involving public health.

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Rule 8. General Rules of Pleading.

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, 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 the pleader seeks. 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 the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denial 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, the pleader 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 averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but when the pleader does so intend to controvert all its averments, the pleader may do so by general denial subject to the obligations set forth in Rule 11.

(c) Affirmative Defenses. 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 a counterclaim, or a counterclaim as a defense, the court on terms, if 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 pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternatively 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 defenses as the party regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in Rule 11.

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

(Adopted by SCO 5 October 9, 1959; amended by SCO 1153 effective July 15, 1994; by SCO 1269 effective July 15, 1997; and by SCO 1740 effective nunc pro tunc to September 7, 2010)

Note: In 1996, the legislature enacted AS 45.08.114, which establishes special pleading requirements in an action on a certificated security against the issuer. According to § 70 ch. 17 SLA 1996, this statute has the effect of amending Civil Rule 8 by requiring that a denial of a signature on a certificated security be specific or the signature is admitted, and by requiring a denial even if a responsive pleading is not required.

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(a) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 8 by adding special proceedings, timing, and pleading requirements for matters involving public health.

Note: Chapter 64, SLA 2010 (SB 60), effective September 7, 2010, enacted changes relating to the Uniform Probate Code. According to section 12(c) of the Act, AS 13.12.545 and 13.12.550, as enacted by section 8 of the Act, have the effect of amending Civil Rule 8 by establishing special requirements for the contents of petitions under AS 13.12.530 and 13.12.535, enacted by section 8 of the Act.

Cross References

CROSS REFERENCE: AS 09.68.020

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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 and organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party 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, the party desiring to raise the issue 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 or 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) Statutes and Ordinances. In pleading any statute or ordinance or other enactment of the state or a subdivision thereof, it is sufficient to identify the statute, ordinance or enactment without setting forth the matter contained therein.

(g) 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.

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

(Adopted by SCO 5 October 9, 1959; amended by SCO 1153 effective July 15, 1994)

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Rule 10. Form of Pleadings.

(a) Caption -- Names of Parties. Every pleading shall contain a caption setting forth the title of the court, the judicial district in which the action is filed, the city in which the court is located, the title of the action (i.e., the names of the parties), the case number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with appropriate indication of other parties. When identifying parties in the complaint, the plaintiff shall include as much of each party's full legal name as is known to the plaintiff.

(b) Paragraphs -- Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

(c) Adoption by Reference -- Exhibits. 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.

(d) Title of Pleading -- Citation of Statute. A party filing a complaint, counterclaim, or cross-claim seeking relief under any specific statute is required to cite the statute relied upon in parentheses following the title of the pleading or in the heading for the section asserting the statutory claim.

(e) Conformity With Rule 76. All pleadings shall be prepared and filed in conformity with the provisions of Rule 76 as well as this rule.

(Adopted by SCO 5 October 9, 1959; amended by SCO 1415 effective October 15, 2000)

Note: AS 10.06.915, as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 10 by requiring that certain documents be attached to a complaint that appeals the disapproval of a writing under AS 10.06.915 by the commissioner of commerce and economic development.

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Rule 11. Signing of Pleadings, Motions, and Other Papers.

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person'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, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

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

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

(Adopted by SCO 5 October 9, 1959; amended by SCO 743 effective December 15, 1986; by SCO 1009 effective January 15, 1990; by SCO 1153 effective July 15, 1994; and by SCO 1728 effective October 15, 2012)

Note: AS 10.06.628, as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 11 by requiring that a complaint for an involuntary dissolution of a corporation under AS 10.06.628 be verified.

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

(a) When Presented. A defendant shall serve an answer within 20 days after the service of the summons and complaint upon that defendant, unless otherwise directed when service of process is made pursuant to Rule 4(e). A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after the service upon that party. The plaintiff shall serve a reply to a counter-claim 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 state or an officer or agency thereof shall serve an answer to the complaint or to a cross-claim, or a reply to a counter-claim, within 40 days after the service upon the attorney general of the pleading in which the claim is asserted. A non-governmental party shall serve an answer to the complaint or to a cross-claim, or a reply to a counter-claim within, 40 days after service upon an officer or agency of the state appointed, authorized, or designated as agent to receive service for such party pursuant to statute. An individual in a foreign country who is served with a summons and complaint under subsection (d)(13) of Rule 4 shall serve an answer to the complaint or to a cross-claim, or a reply to a counterclaim, within 40 days after service upon that individual. The service of a motion permitted under this rule alters these periods of 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, counter-claim, 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 Rule 19. A motion making any of these defenses 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, the adverse party 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 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. A decision granting a motion to dismiss is not a final judgment under Civil Rule 58. When the decision adjudicates all unresolved claims as to all parties, the judge shall direct the appropriate party to file a proposed final judgment. The proposed judgment must be filed within 20 days of service of the decision, on a separate document distinct from any opinion, memorandum or order that the court may issue.

(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 as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. A decision granting a motion for judgment on the pleadings is not a final judgment under Civil Rule 58. When the decision adjudicates all unresolved claims as to all parties, the judge shall direct the appropriate party to file a proposed final judgment. The proposed judgment must be filed within 20 days of service of the decision, on a separate document distinct from any opinion, memorandum or order that the court may issue.

(d) Preliminary Hearings. The defenses 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, the party may move for a more definite statement before interposing a 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 10 days after notice of the order or within such other times 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 by a party within 20 days after the service of the pleading upon the party 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 the rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule, but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except as provided in subdivision (h) (2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(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 Rule 15 (a) 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 Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), 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.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 1153 effective July 15, 1994; by SCO 1430 effective April 15, 2002; and by SCO 1570 effective October 15, 2005 )

Note: Ch. 77 SLA 2002 (HB 157), Section 2, adds new Chapter 26 to Title 6 of the Alaska Statutes, concerning providers of fiduciary services. According to Section 9 of the Act, AS 06.26.760(b)(2) has the effect of amending Civil Rule 12 by postponing the deadlines for serving an answer to a complaint, a third-party answer, a reply to a counterclaim, a cross-claim, and an answer to a cross-claim by a trust company in a civil action when the Department of Community and Economic Development has taken possession of the trust company.

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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 the 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 13.

(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 State. These rules shall not be construed to enlarge beyond the limits now fixed by law the right to counterclaims or to claim credits against the state 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 a 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, the pleader 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 the 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 aimed 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 Rules 19 and 20.

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

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; and by SCO 1153 effective July 15, 1994)

Cross References

(d) CROSS REFERENCE: AS 09.60.050; AS 09.50.250

(e) CROSS REFERENCE: AS 09.68.020

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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 maybe liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff 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 any defenses to the third-party plaintiff's claim as provided in Rule 12 and any counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. 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 any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13. 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 the third-party defendant for all or part of the claim made in the action against the third-party defendant.

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

(c) Equitable Apportionment. For purposes of apportioning damages under AS 09.17.080, a defendant, as a third-party plaintiff, may follow the procedure of paragraph (a) to add as a third-party defendant any person whose fault may have been a cause of the damages claimed by the plaintiff. Judgment may be entered against a third-party defendant in favor of the plaintiff in accordance with the third-party defendant's respective percentage of fault, regardless of whether the plaintiff has asserted a direct claim against the third-party defendant.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 1153 effective July 15, 1994; and by SCO 1200 effective July 15, 1995)

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Rule 15. Amended and Supplemental Pleadings.

(a) Amendments. A party may amend the party's pleading once 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, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's 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 may be 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 the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation Back of 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 the 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 Rule 4(j) for service of the summons and complaint, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a 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 the party.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party 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.

(e) Form. Unless otherwise permitted by the court, every pleading to which an amendment is permitted as a matter of right or has been allowed by order of the court, must be retyped or reprinted and filed so that it will be complete in itself, including the exhibits, without reference to the superseded pleading. No pleading will be deemed to be amended until this subdivision of this rule has been complied with. All amended pleadings shall contain copies of all exhibits referred to in such amended pleadings. Permission may be obtained from the court, if desired, for the removal of any exhibit or exhibits attached to prior pleadings, in order that the same may be attached to the amended pleading.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 1153 effective July 15, 1994; and by SCO 1571 effective October 15, 2005 )

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Rule 16. Pretrial Conferences; Scheduling; Management.

(a) Pretrial Conferences; Objectives. In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as:

(1) expediting the disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation; and

(5) facilitating the settlement of the case, including use of alternative dispute resolution procedures such as mediation, early neutral evaluation, arbitration, and settlement conferences.

(b) Scheduling Order.

(1) Except in categories of actions exempted under Rule 16(g), the judge shall enter a scheduling order that limits or establishes the time:

(A) to join other parties and to amend the pleadings;

(B) under AS 09.17.080,

(i) to specifically identify potentially responsible persons;

(ii) to move to join specifically identified potentially responsible persons; and

(iii) to move to determine whether a sufficient opportunity to join a potentially responsible person is lacking;

(C) to file motions;

(D) to disclose expert witnesses and reports required under Rule 26(a)(2);

(E) to supplement disclosures required under Rule 26(a);

(F) to identify witnesses and exhibits;

(G) to complete discovery; and

(H) for trial or the trial setting conference.

The scheduling order may also address:

(I) modification of the discovery limitations contained in these rules, including the length of depositions in light of the factors listed in Rule 30(d)(2), and the extent of discovery to be permitted;

(J) the date or dates for conferences before trial;

(K) the use and timing of an alternative dispute resolution procedure;

(L) the time to file any challenges to the reliability of scientific evidence;

(M) any issues related to proceedings to determine the amount of punitive damages; and

(N) disclosure or discovery of electronically stored information; and

(O) any other matters appropriate in the circumstances of the case.

The order shall issue as soon as practicable but in any event within 90 days after the appearance of the defendants or pursuant to a local uniform pretrial order issued and adopted according to the provisions of Administrative Rule 46. A schedule shall not be modified except upon a showing of good cause and by leave of court.

(2) The judge shall meet with the attorneys for the parties and any unrepresented parties prior to entering the scheduling order unless the judge determines that a conference is unnecessary or a local uniform pretrial order issued and adopted under Administrative Rule 46 establishes a different procedure. The court shall distribute notice of the conference date as soon as practicable after the appearance of the defendants. The conference may be held on or off the record.

(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to:

(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;

(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, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;

(4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Evidence Rule 702;

(5) the appropriateness and timing of summary adjudication under Rule 56;

(6) the control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to Rule 26 and Rules 29 through 37;

(7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;

(8) the advisability of referring matters to a master;

(9) settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or local rule;

(10) the form and substance of the pretrial order;

(11) the disposition of pending motions;

(12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(13) an order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;

(14) an order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a);

(15) an order establishing a reasonable limit on the time allowed for presenting evidence; and

(16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.

At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.

(d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.

(e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.

(f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

(g) Actions Exempted from Rule 16(b). The following categories of cases are exempted from the requirement of scheduling conferences and scheduling orders under Rule 16(b):

(1) special proceedings listed in Part XII of these rules, including habeas corpus petitions, forcible entry and detainer claims, and dissolution of marriage and divorce actions;

(2) paternity cases;

(3) custody cases;

(4) small claims cases;

(5) actions to enforce out-of-state judgments;

(6) eminent domain cases;

(7) proceedings for post-conviction relief under Criminal Rule 35.1; and

(8) proceedings to obtain a domestic violence protective order under AS 18.66.100 and AS 18.66.110 or a stalking protective order under AS 18.65.850 and AS 18.65.855.

(Adopted by SCO 5 October 9, 1959; amended by SCO 29 effective December 27, 1960; by SCO 49 effective January 1, 1963; by SCO 413 effective August 1, 1980; by SCO 865 effective July 15, 1988; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; by SCO 1266 effective July 15, 1997; by SCO 1318 effective July 15, 1998; by SCO 1403 effective October 15, 2000; by SCO 1425 effective April 15, 2001; by SCO 1437 effective October 15, 2001; by SCO 1529 effective November 5, 2003; by SCO 1569 effective October 15, 2005; by SCO 1647 effective October 15, 2007; and by SCO 1682 effective April 15, 2009)

Note: Civil Rule 16(b)(1)(K) is intended specifically to govern challenges to scientific evidence brought under the standard set forth in State v. Coon, 974 P.2d 386 (Alaska 1999) (discussing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Note to SCO 1647: The supreme court has approved pretrial procedures for Anchorage cases that vary from those specified in this rule. Civil Rule 16(b)(1) sets out the normal timing for issuance of a scheduling order and allows a validly-adopted local uniform pretrial order to set a different time. Civil Rule 16(b)(2) provides that a validly-adopted local uniform pretrial order may set a different procedure. As permitted under Civil Rule 16(b)(1), the superior court in Anchorage issues its scheduling order, Administrative Order 3AO-03-04 (Amended) at a different time. That Order also sets a different procedure under Civil Rule 16(b)(2). Administrative Order 3AO-03-04 (Amended), commonly referred to as the Anchorage Uniform Pretrial Order, was issued and adopted according to the provisions of Administrative Rule 46, and is available on the court systems website at http://www.courts.alaska.gov/orders-cr16- 26.htm.

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Rule 16.1 Special Procedures for Reducing Litigation Delay.

(SCO 669 effective February 24, 1986; amended by SCO 709 effective September 15, 1986; by SCO 742 effective December 15, 1986; by SCO 879 effective July 15, 1988; by SCO 954 effective July 15, 1989; by SCO 1032 effective nunc pro tunc January 15, 1990; and by SCO 1172 effective July 15, 1995; and rescinded by SCO 1266 effective July 15, 1997)

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PART IV. PARTIES

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. An executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought; and when a statute of the state so provides, an action for the use or benefit of another shall be brought in the name of the state. 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 by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

(b) Capacity to Sue or be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. A partnership or other unincorporated association may sue or be sued in its common name.

(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a 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.

(d) Unknown Parties. All persons who are or may be interested in the subject matter of an action relating to real property in the state whose names cannot be ascertained after diligent inquiry may be made parties by being named and described as unknown claimants or unknown owners, or as unknown heirs, devisees, legatees, or assigns of any deceased person who may have been interested in the subject matter of the action. If it cannot be ascertained after diligent inquiry whether a person who is or may be interested in the subject matter of the action is alive or dead, or what disposition may have been made of the person's interests, or where the person resides if alive, the person and everyone claiming under the person may be made a party by naming the person and adding to such name "or the unknown heirs, devisees, legatees, or assigns of [the person's name]."

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963, by SCO 258 effective November 15, 1976; by SCO 465 effective June 1, 1981; and by SCO 1277 effective July 15, 1997)

Note: Chapter 84 SLA 04 (HB 427) enacted extensive changes to the guardianship and conservatorship statutes. According to Section 32 of the Act, AS 08.26.100, enacted in Section 2, has the effect of changing Civil Rule 17(c) by restricting the persons that can be appointed as guardians or conservators and thereby limiting the orders the court is authorized to make with regard to the protection of infants and incompetent persons.

Cross References

CROSS REFERENCE: AS 09.15.010; AS 09.15.020

EDITOR'S NOTE: Section 30, Chapter 63, Session Laws of Alaska 1977, provides that "Section 3 of this Act [Chapter 63, Session Laws of Alaska 1977] has the effect of limiting the discretionary authority of the court to appoint a guardian ad litem under Rule 17(b), Alaska Rules of Civil Procedure, and Rules 11(a) and 15, Alaska Rules of Children's Procedure, by requiring as a condition of appointment that the court find that the best interests of the child need articulation. Further, this Act requires limitation of the duration of the appointment, limits the scope of the guardian ad litem's authority, and establishes the geographical area from which the guardian ad litem may be selected."

Section 3 added a subsection (c) to AS 09.65.130.

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Rule 18. Joinder of Claims and Remedies.

(a) Joinder of Claims. A party asserting 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 either legal or equitable or both as the party 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 may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; and by SCO 1153 effective July 15, 1994)

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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 the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's 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 the claimed interest. If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.

(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subsection (a)(1) -- (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed 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 the person 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 known 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 Rule 23.

(Adopted by SCO 5 October 9, 1959; rescinded and promulgated by SCO 258 effective November 15, 1976; amended by SCO 1153 effective July 15, 1994)

Note: AS 10.06.015(a)(1), as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 19 by making parties to a contract covered by AS 10.06.015(a)(1), indispensable parties to an action under AS 10.06.015(a)(1). AS 10.06.378(c) as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 19 by allowing a shareholder sued under the section to join certain parties in a lawsuit against the shareholder without using the criteria of Civil Rule 19. AS 10.06.463, as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 19 by requiring that a corporation be made a party to an action to remove a director of the corporation. AS 10.06.580(b), as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 19 by making qualified dissenting shareholders indispensable parties to an action covered by AS 10.06.580.

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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 may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief 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 of them 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 orders as will prevent a party from being embarrassed, delayed or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; and by SCO 1153 effective July 15, 1994)

Note: AS 10.06.675, as enacted by ch. 166, § 1, SLA 1988, amended Civil Rule 20 by allowing a corporation to join a member who received an improper distribution in an action under AS 10.06.675 without regard to the criteria for joinder in Civil Rule 20.

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Rule 21. Misjoinder and Non-Joinder of Parties.

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of 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 proceeded with separately.

(Adopted by SCO 5 October 9, 1959)

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Rule 22. Interpleader.

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 but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff 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.

(Adopted by SCO 5 October 9, 1959; amended by SCO 1153 effective July 15, 1994)

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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 claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions 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 interests; or

(2) The party opposing the class has acted or refuses 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 questions 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 finding include: (A) the interest of members of the class in individually 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 Judgment -- 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 practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member 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 the 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, that 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; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, 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.

(Adopted by SCO 5 October 9, 1959; rescinded and promulgated by SCO 258 effective November 15, 1976; amended by SCO 1153 effective July 15, 1994; and by SCO 1163 effective July 15, 1994)
Note: Chapter 79 § 2 SLA 1999 enacts AS 09.65.260(c), which relates to class actions for damages arising from the year 2000 date change and caused directly or indirectly by a failure of an electronic computing device. According to § 4 of the act, the enactment of AS 09.65.260(c) has the effect of amending Civil Rule 23, by requiring, in a class action relating to the year 2000 date change, that the aggregate claim of all members of the class for economic loss exceeds $150,000.

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Rule 23.1. Derivative Actions By Shareholders.

(a) An action may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor by a holder of shares of the corporation of voting trust certificates of the corporation, or of a beneficial interest in shares or certificates of the corporation.

(b) In a derivative action, the complaint shall be verified and shall allege that the plaintiff was a shareholder, of record or beneficially, or the holder of voting trust certificates at the time or during any part of the transaction of which the plaintiff complains or that the plaintiff's shares or voting trust certificates devolved upon the plaintiff by operation of law from a holder who was a holder at the time or during any part of the transaction complained of. A shareholder who does not meet the requirements of this section may be allowed in the discretion of the court to maintain the action on a preliminary showing to and determination by the court, by motion and after a hearing at which the court considers evidence, by affidavit or testimony, as it considers material, that

(1) there is a strong prima facie case in favor of the claim asserted on behalf of the corporation;

(2) no other similar action has been or is likely to be instituted;

(3) the plaintiff acquired the shares before there was disclosure to the public or to the plaintiff of the wrongdoing of which the plaintiff complains;

(4) unless the action can be maintained the defendant may retain a gain derived from the defendant's wilful breach of a fiduciary duty; and

(5) the requested relief will not result in unjust enrichment of the corporation or a shareholder of the corporation.

(c) Unless excused on grounds that a majority of the directors is implicated in or under the direct or indirect control of a person who is implicated in the injury to the corporation, before an action in the right of a domestic or foreign corporation is instituted a plaintiff who has standing under (b) of this section shall make a formal demand upon the board to secure the action the plaintiff desires.

(d) If a shareholder fails to make a formal demand under (c) of this section the complaint shall state with particularity the facts establishing excuse under (c) of this section. In a motion to dismiss for failure to make demand on the board the shareholder shall have the burden to establish excuse.

(e) In a case in which demand on the board is made under (c) of this section, a decision by the board that, in its business judgment, the litigation would not be in the best interest of the corporation terminates the right created by (a) of this section.

(f) In a case in which demand on the board is excused under (c) of this section or the decision of the board under (e) of this section is rejected by the court as inconsistent with the directors' duties of care and loyalty to the corporation, a plaintiff who has standing under (b) of this section shall have the right to commence or continue the action created by (a) of this section. Notwithstanding (c) or (e) of this section, disinterested, noninvolved directors acting as the board or a duly charged board committee may petition the court to dismiss the plaintiff's action on grounds that in their independent, informed business judgment the action is not in the best interests of the corporation. The petitioners shall have the burden of establishing to the satisfaction of the court their disinterest, independence from any direct or indirect control of defendants in the action, and the informed basis on which they have exercised their asserted business judgment. If the court is satisfied that the petitions are disinterested, independent, and informed it shall then exercise an independent appraisal of the plaintiff's action to determine whether, considering the welfare of the corporation and relevant issues of public policy, it should dismiss the action.

(g) A shareholder action otherwise in conformity with this section shall not be dismissed because the alleged injury or wrong to the corporation has been ratified by the outstanding shares. A court may consider the fact of ratification in framing any order for relief to which it considers the corporation entitled.

(h) In an action instituted or maintained in the right of a corporation by the holder or holders of record of less than five percent of the outstanding shares of any class of the corporation or of voting trust certificates for these shares, the corporation in whose right the action is brought or the defendants may at any time before final judgment move the court to require the plaintiff to give security for the reasonable expense, including attorney fees, that may be incurred by the moving party. The amount of the security may be increased or decreased from time to time in this discretion of the court upon a showing that the security has become inadequate or excessive. The corporation or other defendants may have recourse to the security in an amount as the court may determine upon the termination of the derivative action, whether or not the court finds the action was brought without reasonable cause.

(i) A derivative action may not be discontinued, abandoned, compromised or settled without the approval of the court having jurisdiction of the action. If the court determines that the interests of the shareholders or any class or classes of shareholders will be substantially affected by a discontinuance, abandonment, compromise, or settlement, the court in its discretion may direct that notice, by publication or otherwise, shall be given to the shareholders or class or classes of shareholders whose interests will be affected. If the court directs notice to be given, it shall determine which of the parties to the action shall bear the expense of giving the notice in an amount the court determines to be reasonable in the circumstances. The amount shall be awarded as special costs of the action.

(j) If the derivative action is successful, in whole or in part, or if anything is received as a result of the judgment, compromise, or settlement of that action, the court may award to the plaintiff or plaintiffs reasonable expenses, including reasonable attorney fees, and shall direct an accounting to the corporation for the remainder of the proceeds. This subsection does not apply to a judgment rendered only for the benefit of injured shareholders and limited to a recovery of the loss or damage sustained by them.

(Added by SCO 258 effective November 15, 1976; amended by Chief Justice Special Order No. 2052a effective July 1, 1989)

Note: Civil Rule 23.1 in its entirety was adopted by the Alaska Legislature in ch. 166, §§ 1, 17, SLA 1988, rather than by the Alaska Supreme Court.

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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 interest of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23 (d), and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 23(e).

(Added by SCO 258 effective November 15, 1976)

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Rule 24. Intervention.

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's 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 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 a federal or state governmental officer or agency 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 to intervene upon the parties as provided in Rule 5. The motion shall state the ground therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. When the constitutionality of a state statute affecting the public interest is drawn in question in any action to which the state or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of Alaska of such fact, and the state shall be permitted to intervene in the action.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; corrected January, 1993; amended by SCO 1153 effective July 15, 1994; by SCO 1342 effective September 15, 1998; by SCO 1713 effective nunc pro tunc to May 16, 2009; and by SCO 1716 effective nunc pro tunc to July 1, 2009)

Note: AS 10.06.628, as enacted by ch. 166, 1, SLA 1988, amended Civil Rule 24 by allowing a shareholder or creditor of a corporation to intervene in an action for involuntary dissolution of the corporation under AS 10.06.628.

Note: Chapter 105 SLA 1998 adopts AS 13.36.175 pertaining to contract actions against a trustee. According to section 23 of the act, subsection (c) of this statute amends Civil Rule 24 by allowing a beneficiary, or the attorney general and certain corporations under certain circumstances, to intervene in a contract action against a trustee without satisfying the criteria in the court rule. The act also adopts AS 13.36.185 pertaining to the tort liability of a trust. According to section 23 of the act, subsection (d) of this statute also amends Civil Rule 24 by allowing a beneficiary to intervene in a tort action against a trust without satisfying the criteria in the court rule.

Note: Ch. 61 SLA 2002 (HB 52), Section 2, repeals and reenacts AS 33.36.110 to authorize the governor to execute the Interstate Compact for Adult Offender Supervision. According to Section 7 of the Act, Article VIII(a)(2) of the Compact, contained in the new AS 33.36.110, would have the effect of amending Civil Rule 24 by entitling the Interstate Commission for Adult Offender Supervision to have standing to intervene in a judicial proceeding in this state that pertains to the Interstate Compact for Adult Offender Supervision and that may affect the powers, responsibilities, or actions of that commission.

Note: Chapter 10 SLA 2009 (HB 137), effective May 16, 2009, enacted changes relating to an Interstate Compact on Educational Opportunity for Military Children. According to section 2 of the Act, AS 14.34.010-.090 have the effect of changing Civil Rule 24(b) by entitling the Interstate Commission on Educational Opportunity for Military Children to have standing to intervene in a judicial proceeding in this state that pertains to the Interstate Compact on Educational Opportunity for Military Children, and in which the validity of a compact provision or rule is at issue for which judicial determination has been sought.

Note: Chapter 37 SLA 2009 (HB 141), effective July 1, 2009, enacted changes relating to the Interstate Compact for Juveniles. According to section 11 of the Act, the changes made to AS 47.15.010 have the effect of changing Civil Rule 24(b) by entitling the Interstate Commission for Juveniles to have standing to intervene in a judicial proceeding in this state that pertains to the Interstate Compact for Juveniles, and in which the validity of a compact provision or rule is an issue for which judicial determination has been sought.

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Rule 25. Substitution of Parties.

(a) Death. 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 the successors or representatives of the deceased party or by any party, and shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 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.

(b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against the party's 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 the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

(d) Public Officers -- Death or Separation From Office.

(1) When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's 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 an official capacity, the officer may be described as a party by official title rather than by name; but the court may require the officer's name to be added.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 633 effective September 15, 1985; by SCO 1153 effective July 15, 1994; and by SCO 1770 effective April 16, 2012)

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PART V. DEPOSITIONS AND DISCOVERY

Rule 26. General Provisions Governing Discovery; Duty of Disclosure.

(a) Required Disclosures; Methods to Discover Additional Matter. Disclosure under subparagraphs (a)(1), (2), and (3) of this rule is required in all civil actions, except those categories of cases exempted from the requirement of scheduling conferences and scheduling orders under Civil Rule 16(g), adoption proceedings, and prisoner litigation against the state under AS 09.19.

(1) Initial Disclosures. Except to the extent otherwise directed by order or rule, a party shall, without awaiting a discovery request, provide to other parties:

(A) the factual basis of each of its claims or defenses;

(B) the name and, if known, the address and telephone number of each individual likely to have discoverable information relevant to disputed facts alleged with particularity in the pleadings, identifying the subjects of the information and whether the attorney-client privilege applies;

(C) the name and, if known, the address and telephone number of each individual who has made a written or recorded statement and, unless the statement is privileged or otherwise protected from disclosure, either a copy of the statement or the name and, if known, the address and telephone number of the custodian;

(D) subject to the provisions of Civil Rule 26(b)(3), a copy of, or a description by category and location of, all documents, electronically stored information, data compilations, and tangible things that are relevant to disputed facts alleged with particularity in the pleadings;

(E) subject to the provisions of Civil Rule 26(b)(3), all photographs, diagrams, and videotapes of persons, objects, scenes and occurrences that are relevant to disputed facts alleged with particularity in the pleadings;

(F) each 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; and

(G) all categories of damages claimed by the disclosing party, and a computation of each category of special damages, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such claims are based, including materials bearing on the nature and extent of injuries suffered; and

(H) the identity, with as much specificity as may be known at the time, of all potentially responsible persons within the meaning of AS 09.17.080, and whether the party will choose to seek to allocate fault against each identified potentially responsible person.

Unless otherwise directed by the court, these disclosures shall be made at or within 10 days after the meeting of the parties under subsection (f). A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by subparagraph (a)(1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Evidence Rules 702, 703, or 705.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. The parties shall supplement these disclosures when required under subparagraph (e)(1).

(D) No more than three independent expert witness may testify for each side as to the same issue in any given case. For purposes of this rule, an independent expert is an expert from whom a report is required under section (a)(2)(B). The court, upon the showing of good cause, may increase or decrease the number of independent experts to be called.

(3) Pretrial Disclosures. In addition to the disclosures required in the preceding paragraphs, a party shall provide to other parties the following information regarding the evidence that it may present at trial other than solely for impeachment purposes:

(A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises;

(B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and

(C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

These disclosures shall be made at the times and in the sequence directed by the court. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (B), and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph (C). Objections not so disclosed, other than objections under Rules 402 and 403 of the Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown.

(4) Form of Disclosures. Unless otherwise directed by the court, all disclosures under subparagraphs (a)(1) and (2) shall be made in writing, signed, and served in accordance with Rule 5.

(5) Methods to Discover Additional Matter. 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 requests for admission.

(b) Discovery Scope and Limits. 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 the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Limitations.

(A) The court may alter the limits in these rules on the number of depositions and interrogatories, the length of depositions under Rule 30, and the number of requests under Rule 36. The frequency or extent of use of the discovery methods otherwise permitted under these rules shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under paragraph (c).

(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(3) Trial Preparation: Materials. Subject to the provisions of subparagraph (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subparagraph (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's 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 the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials 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 party. Upon request, a person not 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 Rule 37(a) (4) 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.

(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under section (a)(2)(B), the deposition shall not be conducted until after the report is provided.

(B) A party may, through interrogatories or by deposition, 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 Rule 35(b) 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 this subparagraph; and (ii) with respect to discovery obtained under section (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 latter party in obtaining facts and opinions from the expert.

(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the judicial district where the deposition is to be taken 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 disclosure or discovery not be had; (2) that the disclosure or 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 disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be 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 other person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

(d) Timing and Sequence of Discovery.

(1) Timing of Discovery Non-Exempted Actions. In an action in which disclosure is required under Rule 26(a), a party may serve up to ten of the thirty interrogatories allowed under Rule 33(a) at the times allowed by section (d)(2)(C) of this rule. Otherwise, except by order of the court or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by paragraph (f).

(2) Timing of Discovery Exempted Actions. In actions exempted from disclosure under Rule 26(a), discovery may take place as follows:

(A) For depositions upon oral examination under Civil Rule 30, a defendant may take depositions at any time after commencement of the action. The plaintiff must obtain leave of court 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 by publication if authorized, except that leave is not required (i) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (ii) the plaintiff seeks to take the deposition under Civil Rule 30(a)(2)(C).

(B) For depositions upon written questions under Civil Rule 31, a party may serve questions at any time after commencement of the action.

(C) For interrogatories, requests for production, and requests for admission under Civil Rules 33, 34, and 36, discovery requests may be served upon the plaintiff at any time after the commencement of the action, and upon any other party with or after service of the summons and complaint upon that party.

(3) Sequence of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders 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 Disclosures and Responses. A party who has made a disclosure under paragraph (a) or Civil Rule 26.1(b) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:

(1) A party is under a duty to supplement at appropriate intervals its disclosures under paragraph (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the expert.

(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

(f) Meeting of Parties; Planning for Discovery and Alternative Dispute Resolution. Except when otherwise ordered and except in actions exempted from disclosure under Rule 26(a), the parties shall, as soon as practicable and in any event at least 14 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), meet to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, including whether an alternative dispute resolution procedure is appropriate, to make or arrange for the disclosures required by subparagraph (a)(1), and to develop a proposed discovery plan and a proposed alternative dispute resolution plan. The plan shall indicate the parties' views and proposals concerning:

(1) what changes should be made in the timing or form of disclosures under paragraph (a), including a statement as to when the disclosures under subparagraph (a)(1) were made or will be made and what are appropriate intervals for supplementation of disclosure under Rule 26(e)(1);

(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;

(3) disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

(4) what changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed;

(5) the plan for alternative dispute resolution, including its timing, the method of selecting a mediator, early neutral evaluator, or arbitrator, or an explanation of why alternative dispute resolution is inappropriate;

(6) whether a scheduling conference is unnecessary; and

(7) any other orders that should be entered by the court under paragraph (c) or under Rule 16(b) and (c).

The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging and being present or represented at the meeting, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 10 days after the meeting a written report outlining the plan.

(g) [Applicable to cases filed on or after August 7, 1997.] Limited Discovery; Expedited Calendaring. In a civil action for personal injury or property damage involving less than $100,000 in claims, the parties shall limit discovery to that allowed under District Court Civil Rule 1(a)(1) and shall avail themselves of the expedited calendaring procedures allowed under District Court Civil Rule 4.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; and by SCO 149 dated December 27, 1971, by SCO 158 effective February 15, 1973 and by Amendment No. 2 to SCO 158 dated July 30, 1973; amended by SCO 336 effective January 1, 1979; by SCO 1026 effective July 15, 1990; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; by SCO 1266 effective July 15, 1997; by SCO 1281 effective August 7, 1997; by SCO 1318 effective July 15, 1998; and by SCO 1325 effective July 15, 1998; by SCO 1341 effective September 10, 1998; by SCO 1569 effective October 15, 2005; by SCO 1647 effective October 15, 2007; and by SCO 1682 effective April 15, 2009)

Note to SCO 1281: Paragraph (g) of this rule was added by ch. 26, § 40, SLA 1997. According to § 55 of the Act, the amendment to Civil Rule 26 applies "to all causes of action accruing on or after the effective date of this Act." The amendment to Rule 26 adopted by paragraph 1 of this order applies to all cases filed on or after August 7, 1997. See paragraph 17 of this order. The change is adopted for the sole reason that the legislature has mandated the amendment.

Note: Ch. 26, § 10, SLA 1997 repeals and reenacts AS 09.17.020 concerning punitive damages. New AS 09.17.020(e) prohibits parties from conducting discovery relevant to the amount of punitive damages until after the fact finder has determined that an award of punitive damages is allowed. This provision applies to causes of action accruing on or after August 7, 1997. See ch. 26, § 55, SLA 1997. According to § 48 of the Act, new AS 09.17.020(e) has the effect of amending Civil Rule 26 by limiting discovery in certain actions.

Note: Section 2 of chapter 95 SLA 1998 amends AS 09.19.050 to state that the automatic disclosure provisions of Civil Rule 26 do not apply in prisoner litigation against the state. According to section 13 of the act, this amendment has the effect of changing Civil Rule 26 "by providing that the automatic disclosure provisions of the rule do not apply to litigation against the state brought by prisoners."

Note to SCO 1647: The supreme court has approved certain procedures for Anchorage cases that vary from those specified in this rule. Civil Rule 26(a)(1) sets out a procedure to be used [e]xcept to the extent otherwise directed by order or rule, and sets a timeline for disclosures [u]nless otherwise directed by the court. Civil Rule 26(f) also sets out a procedure to be used except when otherwise ordered. In Anchorage, Administrative Order 3AO-03-04 (Amended) applies to modify the procedures set out in subdivisions (a)(1) and (f). That Order, commonly referred to as the Anchorage Uniform Pretrial Order, was issued and adopted according to the provisions of Administrative Rule 46, and is available on the court systems website at: http://www.courts.alaska.gov/orders-cr16-26.htm.

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Rule 26.1. Discovery and Disclosure in Divorce and Legal Separation Actions.

(a) Generally. This rule governs the information that must be disclosed by the parties in a divorce or legal separation case and the time when other discovery methods may be used. Discovery and disclosure in divorce and legal separation actions are otherwise governed by Civil Rule 26(a)(4) through (e), Civil Rules 27 through 37, and Civil Rule 90.1.

(b) Initial Disclosures.

(1) In all divorce and legal separation actions, a party shall, without awaiting a discovery request, provide to the other party:

(A) the legal description and street address of all real property, wherever located, in which either party has an interest, together with all appraisals, tax assessments, and broker's opinions regarding each such property obtained within the last two years;

(B) a signed and dated release, valid for six months from the date of signature, authorizing the other party to obtain all earnings and employee benefit information (including but not limited to health insurance, cashable leave, stock options, and perquisites or in-kind compensation such as employer provided housing or transportation benefits) from the party's current employer;

(C) a signed and dated release, valid for six months from the date of signature, authorizing the other party to obtain all pension, retirement, deferred compensation, and profit sharing information from any plan in which the party is a participant or has accrued benefits;

(D) a listing of all accounts in banks, credit unions, brokerages, and other financial institutions on which the party has been a signatory within the past two years and in which the party has a personal or business interest, together with a signed and dated release, valid for six months from the date of signature, authorizing the other party to obtain all information regarding such accounts;

(E) copies of account statements for the past three months for all accounts listed in subparagraph (D);

(F) a listing of all outstanding debts together with written documentation or an account statement from each creditor indicating the principal balance currently owed and the payment terms;

(G) a listing by description and location of all personal property with a current fair market value over $100 in which either party has an interest, together with all appraisals, tax assessments, and broker's opinions regarding each such property obtained within the last two years;

(H) the most recent statements and reports from financial institutions or other sources pertaining to investments in which the party has an interest (including but not limited to stocks, bonds, certificates of deposit, IRAs, life insurance, and annuities);

(I) federal tax returns filed by the party or on the party's behalf, including all schedules and attachments (W-2 forms, 1099 forms, etc.) for the past three years, together with all year-end tax documentation (W-2 forms, 1098 forms, 1099 forms, extension requests, etc.) for the most recent tax year in the event that return has not yet been filed;

(J) pay stubs, vouchers, or other similar proof of income from all sources for the past two months, including but not limited to salaries and wages, overtime and tips, commissions, interest and dividends, income derived from self-employment and from businesses and partnerships, social security, veterans benefits, worker's compensation, unemployment compensation, Alaska Temporary Assistance Program (ATAP), Supplemental Security Income (SSI), disability benefits, Veteran Administration benefits, income from trusts or from an interest in an estate (direct or through a trust), and net rental income;

(K) an itemized list by description and location of all assets and debts listed above in (A) through (H) which the party considers non-marital and the basis for the non-marital designation;

(L) a description of the party’s current medical coverage, including but not limited to the name of the provider, the policy or group number, the monthly cost of the policy, the names of family members currently covered by the policy, and whether any family members are eligible for other medical coverage, such as Medicare, Medicaid, Indian Health Service, or military medical benefits; and

(M) any other information or documentation required by local order.

(2) Unless otherwise permitted by the court, these disclosures shall be made within forty-five days after the filing of the answer. A party shall make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

(c) Scope and Timing of Discovery.

(1) Scope. The disclosures mandated by subsection (b) are intended to provide minimum base information. Subsection (b) does not limit the scope or amount of discovery parties may properly request in a divorce or legal separation action.

(2) Timing. Discovery in a divorce or legal separation case may take place at the times allowed by Civil Rule 26(d)(2).

(Adopted by SCO 1325 effective July 15, 1998; amended by SCO 1596 effective October 15, 2006)

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Rule 27. Depositions Before Action or Pending Appeal.

(a) Before Action.

(1) Petition. A person who desires to perpetuate testimony regarding any matter that may properly be the subject of an action or proceeding in any court of the state, may file a verified petition in the superior court. 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 in a court of the state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner's interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it, (4) the names or description of the persons the petitioner 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 the petitioner expects to elicit from each, and 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 state in the manner provided in Rule 4(d) 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 Rule 4(d), an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. The compensation of the attorney may be fixed by the court and charged to the petitioner. If any expected adverse party is a minor or incompetent the provisions of Rule 17(c) apply. Upon a person other than an infant or an incompetent person, the notice may also be served in the manner provided by Civil Rule 4(h).

(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 deposition 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 Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such decision was filed.

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the United States or of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a court of this state, in accordance with the provisions of Rule 32(a).

(b) Pending Appeal and Review. The court in which a judgment, order or decision has been rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court, as follows:

(1) If an appeal has been taken from a judgment.

(2) If a petition for review of an order or decision of the court has been filed with the supreme court.

(3) If before the taking of an appeal or filing a petition for review, the time therefor has not expired.

In any case the party who desires to perpetuate the testimony may make a motion in the court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which the party expects to elicit from each; (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 Rules 34 and 35, 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 the court.

(Adopted by SCO 5 October 9, 1959; amended by SCO 90 effective July 24, 1967, by SCO 158 effective February 15, 1973; by SCO 888 effective July 15, 1988; by SCO 1153 effective July 15, 1994; and by SCO 1610 effective April 16, 2007)

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Rule 28. Persons Before Whom Depositions May be Taken; Foreign Commissions and Letters Rogatory.

(a) Within the State. Within the state, depositions shall be taken before an officer authorized by the laws of this state to administer oaths, or before a person appointed by the court in which the action is pending. A person appointed has power to administer oaths and take testimony.

(b) In Foreign Jurisdictions. In all jurisdictions outside Alaska, 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 by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or 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 deposition 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 jurisdiction]." Evidence obtained in a foreign country 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 depositions taken within the United States under these rules.

(c) Testimony for Use in Foreign Jurisdictions. When the deposition of any person is to be taken in this state pursuant to the laws of another jurisdiction outside Alaska for use in proceedings in that other jurisdiction, the court upon motion may order issuance of a subpoena in aid of taking such deposition, as provided in Rule 45(d).

(d) 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, except that in the case of an audio or audio-visual deposition, an attorney involved in the case may also operate or direct the operation of the recording machinery.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 733 effective December 15, 1986; by SCO 1153 effective July 15, 1994; and by SCO 1610 effective April 16, 2007)

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Rule 29. Stipulations Regarding

Discovery Practice.

Unless otherwise directed by the court, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and that when so taken may be used like other depositions, and (2) modify other procedures governing or limitations placed upon discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to discovery may, if they would interfere with any time set for filing of motions, for hearing of a motion, or for trial, be made only with the approval of the court.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 411 effective June 15, 1980; and by SCO 1172 effective July 15, 1995)

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Rule 30. Depositions Upon Oral Examination.

(a) When Depositions May Be Taken; When Leave is Required.

(1) A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2). The attendance of witnesses may be compelled by subpoena as provided in Rule 45.

(2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than three depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by third-party defendants, of witnesses other than:

(i) parties, which means any individual identified as a party in the pleadings and any individual whom a party claims in its disclosure statements is covered by the attorney-client privilege;

(ii) independent expert witnesses expected to be called at trial;

(iii) treating physicians; and

(iv) document custodians whose depositions are necessary to secure the production of documents or to establish an evidentiary foundation for the admissibility of documents;

(B) the person to be examined already has been deposed in the case; or

(C) a party seeks to take a deposition before the time specified in Rule 26(d) unless the notice contains a certification, with supporting facts, that the person to be examined is expected to leave Alaska and be unavailable for examination in this state unless deposed before that time.

(b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone.

(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 the person or the particular class or group to which the person 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 in, the notice.

(2) Reserved.

(3) Reserved.

(4) Reserved.

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

(6) A party may in the party's 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 the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subparagraph (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 or other remote electronic means. For purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1), a deposition taken by such means is taken in the judicial district and at the place where the deponent is to answer questions.

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under provisions of the Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. For an audio or audio-visual deposition, any officer authorized by the laws of this state to administer oaths shall swear the witness. The recording machinery may be operated by such officer, or someone acting under the officer's direction and in the officer's presence, even where such officer is also an attorney in the case. The testimony shall be taken stenographically or recorded by audio or audiovisual means. A party may arrange at the party's own expense to have any portion of the record typewritten.

All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings, shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being 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 the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

(d) Schedule and Duration; Motion to Terminate or Limit Examination.

(1) Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. No specification of the defect in the form of the question or the answer shall be stated unless requested by the party propounding the question. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under paragraph (3). Continual and unwarranted off the record conferences between the deponent and counsel following the propounding of questions and prior to the answer or at any time during the deposition are prohibited.

(2) Depositions shall be of reasonable length. Oral depositions shall not, except pursuant to stipulation of the parties or order of the court, exceed six hours in length for parties, independent expert witnesses, and treating physicians and three hours in length for other deponents. The court shall allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another party impedes or delays the examination. In deciding whether to allow additional time for fair examination of a deponent or class of deponents, the court may take into account, among other factors, the complexity of the case, the number of parties likely to examine a deponent, and the extent of relevant information possessed by the deponent. If the court finds that there has been an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof.

(3) At any time during a 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 or the court in the judicial district where the deposition is being taken 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 Rule 26(c). 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 provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

(e) Review by Witness; Changes; Signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days in which to review the transcript or recording after being notified by the officer that the transcript or recording is available and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subparagraph (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.

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

(1) The officer shall certify that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. This certificate shall be in writing and accompany the record of the deposition. The officer shall securely seal the deposition in an envelope or package indorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly send it to the attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party, except that if the person producing the materials desires to retain them the person may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to 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) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any deposition taken stenographically or a copy of the recording of any deposition taken by another method. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording 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.

(4) A party dismissed from an action shall deliver original depositions in the party's possession to the plaintiff or another party remaining in the action and shall promptly certify to the court that all depositions have been delivered and identify the party now responsible for their safekeeping. Unless otherwise ordered by the court or agreed to by the parties, a party who has custody of an original deposition at the conclusion of a case must retain the deposition for one year after expiration of the time for filing an appeal, or, if an appeal is filed, for one year after conclusion of the appeal and any proceedings after remand. The deposition must be stored under conditions that will protect it against loss, destruction, tampering, or deterioration.

(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 that party and that party's 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 the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party 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 that party and that party's attorney in attending, including reasonable attorney's fees.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 634 effective September 15, 1985: by SCO 731 effective December 15, 1986; by SCO 732 effective December 15, 1986; by SCO 773 effective December 15, 1986; by SCO 1085 effective January 15, 1992; by SCO 1124 effective July 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; and by SCO 1446 effective October 15, 2001)

NOTE to Rule 30(a)(2)(A): Evidence Rule 702(b) limits the number of expert witness who may be called to testify at trial.

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Rule 30.1. Audio and Audio-Visual Depositions.

(a) Authorization of Audio-Visual Depositions.

(1) Any deposition upon oral examination may be recorded by audio or audio-visual means without a stenographic record. Any party may make at the party's own expense a simultaneous stenographic or audio record of the deposition. Upon request and at the expense of the requesting party, any party is entitled to an audio or audio-visual copy of the audio-visual recording.

(2) The audio or audio-visual recording is an official record of the deposition. A transcript prepared in accordance with Rule 30(c) is also an official record of the deposition.

(3) On motion for good cause the court may order the party taking, or who took, a deposition by audio or audio-visual recording to furnish at that party's expense a transcript of the deposition.

(b) Use. An audio or audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.

(c) Notice. The notice for taking an audio or audio-visual deposition and the subpoena for attendance at that deposition must state that the deposition will be recorded by audio or audio-visual means. If a court reporter will not be used to record the deposition, the notice must also state this fact.

(d) Procedure. The following procedure must be observed in recording an audio or audio-visual deposition:

(1) The deposition must begin with an oral statement which includes:

(A) the operator's name and business address;

(B) the name and business address of the operator's employer;

(C) the date, time, and place of the deposition;

(D) the caption of the case;

(E) the name of the witness;

(F) the party on whose behalf the deposition is being taken; and

(G) any stipulations by the parties.

(2) Counsel shall identify themselves on the recording.

(3) The oath must be administered to a witness on the recording.

(4) The videotaped deposition shall depict the witness in a waist-up shot, seated at a table. The camera and lens shall not be varied except as may be necessary to follow natural body movements of the witness or to present exhibits or describe evidence that is being used during the deposition.

(5) If the length of the deposition requires the use of more than one recording unit, the end of each unit and the beginning of each succeeding unit must be announced on the recording.

(6) At the conclusion of the deposition, a statement must be made on the recording that the deposition is concluded. A statement may be made on the recording setting forth any stipulations made by counsel concerning the custody of the recording and exhibits or other pertinent matters.

(7) Audio depositions must be indexed by a brief written log notation of the recorder counter number at the beginning of each examination whether direct, cross, redirect, etc. The log must be attached to the tape.

(8) Audio-visual depositions may be indexed by a time generator or similar method.

(9) An objection must be made as in the case of stenographic depositions.

(10) Unless otherwise stipulated by the parties, the original audio or audio-visual recording of a deposition shall be held by the party noticing the deposition.

(11) If the court issues an editing order, the original audio or audio-visual recording must not be altered.

(e) Costs. The reasonable expense of recording, editing, and using an audio or audio-visual deposition may be taxed as costs.

(f) Standards. The Administrative Director may establish standards for audio or audio-visual equipment and guidelines for taking and using audio or audio-visual depositions. Incompatible audio or audio-visual recordings must be conformed to the standards at the expense of the proponent. Conformed recordings may be used as originals.

(SCO 734 effective December 15, 1986; amended by SCO 990 effective January 15, 1990; and by SCO 1153 effective July 15, 1994)

Note to Civil Rule 30.1(f): The Administrative Director has not established standards for audio or audio-visual equipment or guidelines for taking and using audio or audio-visual depositions.

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Rule 31. Depositions Upon Written Questions.

(a) Serving Questions; Notice.

(1) A party may take the testimony of any person, including a party, by deposition upon written questions without leave of court except as provided in paragraph (2). The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45.

(2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties,

(A) a proposed deposition would result in more than three depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by third-party defendants, of witnesses other than:

(i) parties, which means any individual identified as a party in the pleadings and any individual whom a party claims in its disclosure statements is covered by the attorney-client privilege;

(ii) independent expert witnesses expected to be called at trial;

(iii) treating physicians; and

(iv) document custodians whose depositions are necessary to secure the production of documents or to establish an evidentiary foundation for the admissibility of documents;

(B) the person to be examined already has been deposed in the case; or

(C) a party seeks to take a deposition before the time specified in Rule 26(d).

(3) 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 the person or the particular class or group to which the person belongs, and (2) the name or 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 Rule 30(b)(6).

(4) 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 Rule 30(c), (e), and (f), 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 the officer.

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

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 888 effective July 15, 1988; by SCO 1153 effective July 15, 1994; and by SCO 1172 effective July 15, 1995)

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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, or for any other purpose permitted by the Alaska Rules of Evidence.

(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) 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 at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, 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; or

(F) that the witness' testimony has been recorded on video tape.

A deposition taken without leave of court pursuant to a notice under Rule 30(a)(2)(C) shall not be used against a party who demonstrates that, when served with the notice, the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition; nor shall a deposition be used against a party who, having received less than 11 days notice of a deposition, has promptly upon receiving such notice filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror 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 Rule 25 does not affect the right to use depositions previously taken; and, when an action has been brought in any court of the United States or of any State 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. A deposition previously taken may also be used as permitted by the Alaska Rules of Evidence.

(b) Objections to Admissibility. Subject to the provisions of Rule 28(c) 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) Effect of Taking or Using Depositions. A party does not make a person the party's witness for any purpose by taking the person's deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision (a)(2) of this rule. At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by that party or by any other party.

(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 within the time allowed for serving the succeeding cross or other questions and within five 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, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are 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.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973 and by Amendment No. 1 to SCO 158 effective February 15, 1973; by SCO 888 effective July 15, 1988; by SCO 1026 effective July 15, 1990; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; by SCO 1203 effective July 15, 1995; and by SCO 1482 effective October 15, 2002)

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Rule 33. Interrogatories to Parties.

(a) Availability. 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, a partnership, an association, or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Without leave of court or written stipulation, a party may serve only thirty interrogatories upon another party, including all discrete subparts. This limit includes interrogatories served under Rule 26(d)(1). Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2). Without leave of court or written stipulation, interrogatories may not be served before the time specified in Rule 26(d). There shall be sufficient space provided so that answers to the interrogatories propounded may be inserted thereon.

(b) Answers and Objections.

(1) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable.

(2) The answers are to be signed by the person making them, and the objections signed by the attorney making them.

(3) 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. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to Rule 29.

(4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown.

(5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory.

(c) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b)(1), and the answers may be used to the extent permitted by the 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 pretrial conference or other later time.

(d) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, 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 from 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 readily as can the party served, the records from which the answer can be ascertained.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; amended by SCO 337 effective January 1, 1979; by SCO 465 effective June 1, 1981; by SCO 1172 effective July 15, 1995; by SCO 1266 effective July 15, 1997; by SCO 1305 effective January 15, 1998; and by SCO 1682 effective April 15, 2009)

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Rule 34. Production of Documents, Electronically Stored Information, and Things, and Entry Upon Land for Inspection and Other Purposes.

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information (including writings, drawings, graphs, charts, photo-graphs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained), translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody, or control of the party upon whom the request is served; or (2) to permit entry 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 Rule 26(b).

(b) Procedure. The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d).

The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. 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, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information – or if no form was specified in the request – the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) 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.

Unless the parties otherwise agree or the court otherwise orders:

(1) 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.

(2) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained, or, if that form is not reasonably usable, it must be produced in a form or forms that are reasonably usable; and

(3) a party need not produce the same electronically stored information in more than one reasonably usable form.

(c) Persons 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.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 1026 effective July 15, 1990; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; and by SCO 1682 effective April 15, 2009)

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Rule 35. Physical and Mental Examination of Persons.

(a) Order for 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 suitably licensed or certified examiner or to produce for examination the person in the party's 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 Examiner.

(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of a detailed written report of the examiner setting out the examiner's 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 of a report of examination of a person not a party, the party shows that the party 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 an examiner fails or refuses to make a report the court may exclude the examiner's testimony if offered at 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 the party 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 the party 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. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; and by SCO 1122 effective July 15, 1993)

NOTE: Ch. 69, § 3, SLA 1989, provided that AS 25.20.050(e), enacted by ch. 69, § 1, SLA 1989, amended Civil Rule 35 by requiring the court, in action in which paternity is contested and to which the state is a party, to order certain genetic tests on the request of a party.

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Rule 36. Requests for Admission.

(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 Rule 26(b)(1) 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. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d).

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 or as the parties may agree to in writing, subject to Rule 29, 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 the party's attorney. If objection is 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 an answer or deny only a part of the matter of which an admission is requested, the party 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 the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party 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; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.

The party who has requested the admissions 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 pretrial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) 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 Rule 16 governing amendment of a pretrial 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 the party in maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.

(Adopted by SCO 5 October 9, 1959; amended by SCO 98 effective September 16, 1968; amended by SCO 158 effective February 15, 1973; by SCO 1153 effective July 15, 1994; and by SCO 1172 effective July 15, 1995)

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

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

(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the judicial district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the judicial district where the deposition is being taken.

(2) Motion.

(A) If a party fails to make a disclosure required by Rule 26(a) or Rule 26.1(b), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.

(B) 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 Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

(3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.

(4) Expenses and Sanctions.

(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, 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 making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust.

(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing 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.

(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, 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 Judicial District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the judicial district in which the deposition is being taken, the failure may be considered a contempt of that 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 Rule 30(b)(6) or 31(a) 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 Rule 35, or if a party fails to obey an order entered under Rule 16(e) or 26(b), the court in which the action is pending may make such 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 that party 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 judgment 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 physical or mental examination;

(E) Where a party has failed to comply with an order under Rule 35(a) requiring that party 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 that party 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 that party 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.

(3) Standard for Imposition of Sanctions. Prior to making an order under sections (A), (B), or (C) of subparagraph (b)(2) the court shall consider

(A) the nature of the violation, including the willfulness of the conduct and the materiality of the information that the party failed to disclose;

(B) the prejudice to the opposing party;

(C) the relationship between the information the party failed to disclose and the proposed sanction;

(D) whether a lesser sanction would adequately protect the opposing party and deter other discovery violations; and

(E) other factors deemed appropriate by the court or required by law.

The court shall not make an order that has the effect of establishing or dismissing a claim or defense or determining a central issue in the litigation unless the court finds that the party acted willfully.

(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.

(1) A party that without substantial justification fails to disclose information required by Rules 26(a), 26(e)(1), or 26.1(b) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under sections (A), (B), and (C) of subparagraph (b)(2) of this rule and may include informing the jury of the failure to make the disclosure.

(2) If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) 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 Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, 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 sections (A), (B), and (C) of subparagraph (b)(2) of this rule. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party 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 paragraph may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c).

(e) Reserved.

(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(g) Failure to Cooperate in Discovery or to Participate in the Framing of a Discovery Plan. If a party or a party's attorney engages in unreasonable, groundless, abusive, or obstructionist conduct during the course of discovery or fails to participate in good faith in the development and submission of a proposed discovery plan as required by Rule 26(f), the court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the conduct.

(Adopted by SCO 5 October 9, 1959; amended by SCO 158 effective February 15, 1973; by SCO 888 effective July 15, 1988; by SCO 1026 effective July 15, 1990; by SCO 1153 effective July 15, 1994; by SCO 1172 effective July 15, 1995; by SCO 1325 effective July 15, 1998; and by SCO 1682 effective April 15, 2009)

Cross References

(b)(1)CROSS REFERENCE: AS 09.50.010

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PART VI. TRIAL

Rule 38. Jury Trial.

(a) Right Preserved. The right of trial by jury as declared by section 16 of article I of the constitution, or as given by a statute of the state, shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand shall be made in a separate written document signed by the party making the demand or by the party's attorney.

(c) Demand -- Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. A party's consent to withdraw the jury trial demand may be implied by a failure to appear at trial.

(Adopted by SCO 5 October 9, 1959; amended by SCO 66 effective July 1, 1964; by SCO 74 effective January 25, 1965; by SCO 465 effective June 1, 1981; by SCO 620 effective June 15, 1985; and by SCO 1153 effective July 15, 1994)

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(b) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 38 by requiring a court trial in matters involving public health.

Rule 39. Trial by Jury or by the Court.

(a) By Jury. When trial by jury has been demanded and not waived as provided in Rule 38, the trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court, consent to trial by the court sitting without a jury or (2) the court upon motion by a party or upon its own motion finds that a right of trial by jury of some or all of those issues does not exist under the state constitution or statutes of the state.

(b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.

(c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the court upon motion by a party or upon its own motion may try an issue with an advisory jury or, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

(Adopted by SCO 5 October 9, 1959; amended by SCO 554 effective April 4, 1983; and by SCO 621 effective June 15, 1985)

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Rule 40. Assignment and Hearing of Cases -- Calendars -- Continuances.

(a) Master Calendar. At the commencement of each regular or special term of the court, or at such other time as the presiding judge shall direct, the clerk shall prepare a calendar of all cases on the docket which are not on the trial calendar or motion calendar or in which neither party has requested setting for trial. The clerk shall list the cases in numerical order and show the number, title and names of counsel of record in each case, together with such information as will enable the court to readily determine the type and status of the case. At such times as the court shall direct, the calendar shall be called, at which time the court (1) may order cases placed on the trial calendar if desired, or (2) may order that cases be dismissed for want of prosecution under the provisions of Rule 41, or (3) may make such other disposition of cases as the court may consider appropriate.

(b) Trial Calendar -- Memorandum to Set Civil Case for Trial.

(1) Unless otherwise ordered, a civil case shall be set for a pretrial conference, a trial setting conference, or a trial when it is at issue and when a party thereto has served and filed therein a memorandum to set civil case for trial, stating:

(a) The title and number of the case;

(b) The nature of the case;

(c) That all essential parties have been served with process or appeared herein and that the case is at issue as to all such parties;

(d) Whether the case is entitled to legal preference and, if so, the citation of the section number of the statute or other authority granting such preference;

(e) Whether or not a jury trial has been demanded;

(f) The time estimated for trial;

(g) The names, addresses and telephone numbers of the attorneys for the parties or of the parties appearing in person.

(2) Any party not in agreement with the information or estimates given in the memorandum to set civil case for trial shall within ten days after the service thereof serve and file a memorandum on his behalf.

(c) Visiting Judges. Whenever a visiting judge may be present, assisting the judge of any judicial district, the presiding judge of that district shall be solely responsible for the assignment of cases and proceedings to the visiting judge. The judge to whom any particular action or proceeding is assigned will thereupon have charge of such action or proceeding so long as such assignment continues.

(d) Application for Orders. Except as provided in Rule 63, application for any order in an action or proceeding, including appellate proceedings, shall be made to, and ruled upon, by the judge to whom the action or proceeding is assigned. However, application may be made to and signed by another judge if the judge who is assigned the case is not available and the application concerns a stipulation or uncontested motion; a petition for emergency domestic violence injunction; a motion for temporary restraining order or other emergency motion; findings, judgments and orders based upon decisions previously announced by the judge assigned to the case; or other matters when the application is presented to the presiding judge, or in the presiding judge's absence, to any other available judge within the state, upon good cause shown.

(e) Continuances.*

(1) All cases set for trial shall be heard on the date set unless the same are continued by order of the court for cause shown. The presiding judge of a judicial district may require that a visiting or pro tem judge obtain approval from the presiding judge before granting any continuance of trial.

(2) Unless otherwise permitted by the court, application for the continuance of the trial of the case shall be made to the court at least five days before the date set for trial. The application must be supported by the affidavit of the applicant setting forth all reasons for the continuance. If such case is not tried upon the day set, the court in its discretion may impose such terms as it sees fit, and in addition may require the payment of jury fees and other costs by the party at whose request the continuance has been made.

(3) When parties are present in court and ready for trial on the day set for trial, but their case is not reached on that day, they will retain their relative position on the calendar and on the next open trial day they will be entitled to precedence over cases set for trial on the last-mentioned day.

(Adopted by SCO 5 October 9, 1959; amended by SCO 36 effective May 8, 1961; by SCO 44 effective February 26, 1962; by SCO 193 effective November 1, 1974; by SCO 229 effective January 1, 1976; by SCO 393 effective January 2, 1980; by SCO 710 effective September 15, 1986; by SCO 717 effective September 15, 1986; by SCO 766 effective March 15, 1987; by SCO 894 effective July 15, 1988; by SCO 1153 effective July 15, 1994; and by SCO 1172 effective July 15, 1995)

*EDITOR'S NOTE: Subsection (e) (3) of Alaska Civil Rule 40 is hereby suspended for the Anchorage trial courts until further notice. The presiding judge shall determine appropriate alternative calendaring procedures.

Note: In 1997 the legislature enacted AS 18.16.030(c), which required the court to hold a hearing in a proceeding to bypass parental consent to an abortion within five days after the petition is filed. According to ch. 14, § 7 SLA 1997, this provision has the effect of amending Civil Rule 40 by setting a specific timetable for hearing certain cases. Instead of amending individual rules to implement AS 18.16.030, the supreme court has adopted a separate rule on judicial bypass proceedings. See Probate Rule 20.

Note: Chapter 54 SLA 2005 (HB 95) enacted extensive amendments and new provisions related to public health, including public health emergencies and disasters. According to Section 13(c) of the Act, AS 18.15.375(c)(3), (d), and (e), and 18.15.385(d) – (k), enacted in Section 8, have the effect of amending Civil Rule 40 by requiring expedited hearings and specific standards for and timing of granting of continuances in matters involving public health.

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Rule 41. Dismissal of Actions.

(a) Voluntary Dismissal -- Effect Thereof.

(1) By Plaintiff -- By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66 and of any statute of the state, an action may be dismissed by the plaintiff without an order of the court: [a] 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 [b] by filing a stipulation of dismissal signed by all parties who have appeared in the action. A notice of dismissal must include a certification signed by or on behalf of the plaintiff that the plaintiff has submitted the information required under AS 09.68.130 and (a) (3) of this rule to the Alaska Judicial Council or that the case is exempt from this requirement. A stipulation of dismissal must include a certification signed by or on behalf of 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 this state, or of any other state, or in any court of the United States, an action based on 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 the defendant 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) Information about the Resolution of Civil Cases. If an action is voluntarily dismissed under paragraph (a) of this rule, each party or, if a party is represented by an attorney, the party's attorney must submit the information described in AS 09.68.130(a) to the Alaska Judicial Council. The information must be submitted within 30 days after the case is finally resolved as to that party and on a form specified by the Alaska Judicial Council. The following types of cases are exempt from this requirement:

(A) divorce and dissolution;

(B) adoption, custody, support, visitation, and emancipation of children;

(C) children-in-need-of-aid cases under AS 47.10 or delinquent minors cases under 47.12;

(D) domestic violence protective orders under AS 18.66.100 - 18.66.180;

(E) estate, guardianship, and trust cases filed under AS 13;

(F) small claims under AS 22.15.040.

(G) forcible entry and detainer cases;

(H) administrative appeals; and

(I) motor vehicle impound or forfeiture actions under municipal ordinance.

(b) Involuntary Dismissal -- Effect Thereof. For failure of the plaintiff to 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 the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event that a motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then weigh the evidence, evaluate the credibility of witnesses and render judgment against the plaintiff even if the plaintiff has made out a prima facie case. Alternately, the court may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an 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.

(e) Dismissal for Want of Prosecution.

(1) The court on its own motion or on motion of a party to the action may dismiss a case for want of prosecution if

(A) the case has been pending for more than one year without any proceedings having been taken, or

(B) the case has been pending for more than one year, and no trial or mandatory pretrial scheduling conference has been scheduled or held.

(2) The clerk shall review all pending cases semi-annually and in all cases that are subject to dismissal under (e)(1), the court shall hold a call of the calendar or the clerk shall send notice to the parties to show cause in writing why the action should not be dismissed.

(3) If good cause to the contrary is not shown at a call of the calendar or within sixty days after distribution of the notice, the court shall dismiss the action. The clerk may dismiss actions under this paragraph if a party has not opposed dismissal.

(4) A dismissal for want of prosecution is without prejudice unless the court states in the order that the case is dismissed with prejudice.

(5) If a case dismissed under this paragraph is filed again, the court may make such order for the payment of costs of the case previously dismissed as it may deem proper, and may stay the proceedings in the case until the party has complied with the order.

(Adopted by SCO 5 October 9, 1959; amended by SCO 239 effective March 1, 1976; by SCO 258 effective November 15, 1976; by SCO 465 effective June 1, 1981; by SCO 798 effective March 15, 1987; by SCO 834 effective August 1, 1987; by SCO 1153 effective July 15, 1994; by SCO 1266 effective July 15, 1997; and by SCO 1283 effective September 2, 1997; and by SCO 1361 effective October 15, 1999)

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Rule 42. Consolidation--Separate Trials--Change of Judge.

(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.

A motion requesting consolidation shall be filed in the court where the case is sought to be consolidated. The motion shall contain the name of every case sought to be consolidated. A notice of filing together with a copy of the motion shall be filed in all courts and served on all parties who would be affected by consolidation.

(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 issues, always preserving inviolate the right of trial by jury as declared by the Alaska Constitution and Statutes of Alaska.

(c) Change of Judge as a Matter of Right. In all courts of the state, a judge or master may be peremptorily challenged as follows:

(1) Nature of Proceedings. In an action pending in the Superior or District Courts, each side is entitled as a matter of right to a change of one judge and of one master. Two or more parties aligned on the same side of an action, whether or not consolidated, shall be treated as one side for purposes of the right to a change of judge, but the presiding judge may allow an additional change of judge to a party whose interests in the action are hostile or adverse to the interests of another party on the same side. A party wishing to exercise the right to change of judge shall file a pleading entitled "Notice of Change of Judge." The notice may be signed by an attorney, it shall state the name of the judge to be changed, and it shall neither specify grounds nor be accompanied by an affidavit.

(2) Filing and Service. The notice of change of judge shall be filed and copies served on the parties in accordance with Rule 5, Alaska Rules of Civil Procedure.

(3) Timeliness. Failure to file a timely notice precludes change of judge as a matter of right. Notice of change of judge is timely if filed before the commencement of trial and within five days after notice that the case has been assigned to a specific judge. Where a party has been served or enters an action after the case has been assigned to a specific judge, a notice of change of judge shall also be timely if filed by the party before the commencement of trial and within five days after a party appears or files a pleading in the action. If a party has moved to disqualify a judge for cause within the time permitted for filing a notice of change of judge, such time is tolled for all parties and, if the motion to disqualify for cause is denied, a new five-day period runs from notice of the denial of the motion.

(4) Waiver. A party waives the right to change as a matter of right a judge who has been permanently assigned to the case by knowingly participating before that judge in:

(i) Any judicial proceeding which concerns the merits of the action and involves the consideration of evidence or of affidavits; or

(ii) A pretrial conference; or

(iii) The commencement of trial; or

(iv) If the parties agree upon a judge to whom the case is to be assigned. Such waiver is to apply only to the agreed upon judge.

(5) Assignment of Action. After a notice of change of judge is timely filed, the presiding judge shall immediately assign the matter to a new judge within that judicial district. Should that judge be challenged, the presiding judge shall continue to assign the case to new judges within the judicial district until all parties have exercised or waived their right to change of judge or until all superior court judges, or all district court judges, within the judicial district have been challenged peremptorily or for cause. Should all such judges in the district be disqualified, the presiding judge shall immediately notify the administrative director in writing and request that the administrative director obtain from the Chief Justice an order assigning the case to another judge.

If a judge to whom an action has been assigned later becomes unavailable because of death, illness, or other physical or legal incapacity, the parties shall be restored to their several positions and rights under this rule as they existed immediately before the assignment of the action to such judge.

(Adopted by SCO 5 October 9, 1959; amended by SCO 186 effective July 1, 1974; by SCO 258 effective November 15, 1976; by SCO 262 effective December 31, 1976; by SCO 465 effective June 1, 1981; by SCO 705 effective September 15, 1986; by SCO 716 effective September 15, 1986; by SCO 741 effective December 15, 1986; by SCO 877 effective July 15, 1988; by SCO 1153 effective July 15, 1994; by SCO 1196 effective July 15, 1995; and by SCO 1698 effective October 15, 2009)

Note: Ch. 80 SLA 2002 (HB 196), Section 1, adds new sections to AS 25.24 concerning the right of action for legal separation. According to Section 3 of the Act, AS 25.24.430 has the effect of amending Civil Rule 42(a) by requiring consolidation of subsequent divorce and annulment actions with legal separation actions filed by the same parties.

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PART VII. EVIDENCE AND CONDUCT OF TRIAL

Rule 43. Evidence.

(Rescinded by Supreme Court Order 366 effective August 1, 1979)

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Rule 43.1. Exhibits.

(a) Parties Mark Exhibits. All intended exhibits shall be marked by the parties for identification prior to trial. At the beginning of trial an original and one copy of an exhibit list shall be filed with the in-court clerk.

(b) Procedure. Exhibits shall be marked for identification in the manner prescribed by the administrative director in the bulletin required by paragraph (h) of this rule. All exhibits marked for identification shall be listed on an exhibit list provided by the court. The form of the exhibit list shall be prescribed by the administrative director.

(c) Admission. Exhibits properly marked for identification may be admitted into evidence upon the motion of any party or upon the court's own motion. After an identified exhibit is admitted by the court, the clerk shall mark the exhibit "admitted" in a manner prescribed by the administrative director. When an exhibit is admitted into evidence, the fact of its admission shall be noted immediately on the exhibit list.

(d) Custody of Exhibits. At the time an exhibit is offered into evidence, the exhibit shall be placed in and remain in the clerk's custody until released as provided in paragraph (g) of this rule or as set forth in the administrative bulletin required by paragraph (h) of this rule. Exhibits which have not been offered into evidence shall not be placed in the custody of the clerk unless otherwise ordered by the court.

(e) Final Check. Prior to submission of the case to the jury or to the court sitting without a jury, the court shall require counsel and those parties not represented by counsel to (1) examine all intended, identified, offered, or admitted exhibits and the in-court clerk's exhibit list, (2) confirm to the court that the list accurately reflects the status of the exhibits, and (3) confirm that any modifications to the exhibits ordered by the court have been made. Upon proper motion or the court's own motion, the court may order additional exhibits marked for identification and/or admitted into evidence. At the time of the final check, identified exhibits which have not been offered for admission but which the court has previously ordered placed in the clerk's custody shall be returned to the appropriate party, unless otherwise ordered by the court.

(f) Submission to the Jury. Unless otherwise ordered by the court, all exhibits admitted into evidence shall be given to the jury for deliberation, except the following exhibits will not be given to the jury without a specific court order:

(1) live ammunition;

(2) firearms;

(3) drugs and alcoholic beverages;

(4) perishable, flammable or hazardous materials; and

(5) money, jewelry or other valuable items.

The court may allow a photograph to be submitted to the jury in place of the physical exhibit.

(g) Return of Some Exhibits After Hearing or Trial. At the conclusion of a hearing or trial, the court shall inquire whether counsel stipulate to the return of any exhibits to counsel for safekeeping pending appeal and to the substitution of photographs for any of the physical (i.e., nondocumentary) exhibits. Whether or not counsel stipulate, the court may also order counsel to take custody of the following exhibits, store said exhibits in a safe location and maintain the chain of custody pending appeal:

(1) live ammunition;

(2) firearms;

(3) drugs and alcoholic beverages;

(4) perishable, flammable or hazardous materials;

(5) money, jewelry or other valuable items; and

(6) items which are unwieldy due to bulk and/or weight.

Whenever exhibits are returned to counsel for safekeeping pending appeal, the court may require counsel to submit an affidavit setting forth the specific measures taken to ensure safekeeping of the exhibits.

(h) Administrative Bulletin. The administrative director shall establish standards and procedures by appropriate bulletin consistent with these rules governing the marking, handling, storage, safekeeping, and disposal of all exhibits coming into the court's custody. Unless otherwise ordered by the court, such standards and procedures are controlling.

(Added by SCO 598 effective September 1, 1984; amended by SCO 948 effective January 15, 1989)

Administrative Bulletin 9 Adobe Acrobat PDF logo

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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 title of the action, and shall command each person to whom it is directed to attend and give testimony or to produce documents at a time and place therein specified. The clerk shall issue a subpoena for the attendance of a witness, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. The clerk shall issue a subpoena for the production of documentary evidence signed and sealed and indicating the date, time and place of the deposition or court proceeding at which the documentary evidence is to be produced.

(b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, electronically stored information, 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) void 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. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(c) Service. A subpoena may be served by a peace officer, or 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 the person the fees for one day's attendance and the mileage prescribed by rule. When the subpoena is issued on behalf of the state, a municipality, a borough, a city, or an officer or agency thereof, fees and mileage need not be tendered. A subpoena may also be served by registered or certified mail. In such case the clerk shall mail the subpoena for delivery only to the person subpoenaed and, unless not required under this rule, shall enclose a warrant or postal money order in the amount of the fees for one day's attendance and of the mileage prescribed by rule. The returned delivery receipt shall be so addressed that it is returned to the party requesting the subpoena or that party's attorney. Proof of service shall be made by affidavit.

(d) Subpoena for Taking Depositions--Place of Examination.

(1) Proof of service of a notice to take a deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the court for any judicial district 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 constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subparagraph (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 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 material 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 or during the taking of the deposition.

(2) A resident of the judicial district in which the deposition is to be taken may be required to attend an examination at any place within the district, unless otherwise ordered by the court. A nonresident of the judicial district in which the deposition is to be taken, and a nonresident of the state subpoenaed within the state, may be required to attend at any place within the district wherein the nonresident is served with a subpoena, unless otherwise ordered by the court.

(e) Subpoena for a Hearing or Trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court for the judicial district in which the hearing or trial is held. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the state.

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

(g) Enforcement of Administrative Subpoenas. When any officer or agency of the state has the authority to issue subpoenas, enforcement of such subpoenas to compel the giving of testimony or the production of documents may be secured by proceedings brought in the court in the manner provided by the Administrative Procedures Act of the state.

(Adopted by SCO 5 October 9, 1959; amended by SCO 90 effective July 24, 1967; by SCO 167 dated June 25, 1973; by SCO 258 effective November 15, 1976; by SCO 374 effective August 15, 1979; by SCO 465 effective June 1, 1981; by SCO 558 effective May 2, 1983; by SCO 934 effective January 15, 1989; by SCO 1153 effective July 15, 1994; and by SCO 1682 effective April 15, 2009)

Cross References

CROSS REFERENCE: AS 09.50.010; AS 09.20.120; AS 09.20.130; AS 09.20.140; AS 09.20.150; AS 09.20.160; AS 09.50.010

(c) CROSS REFERENCE: AS 09.20.110

(f) CROSS REFERENCE: AS 09.20.120; AS 09.50.010

Note: Ch. 75 SLA 2002 (HB 106), Section 4, adds a new section to AS 06.01 relating to the confidentiality of depositor and customer records at banking and other financial institutions. According to Section 56 of the Act, AS 06.01.028(b) has the effect of changing Civil Rule 45, Criminal Rules 17 and 37, and Alaska Bar Rule 24 by requiring certain court orders compelling disclosure of records to provide for reimbursement of a financial institution's reasonable costs of complying with the order.

Note: Chapter 10 FSSLA 2005 (SB 130) enacted changes relating to workers compensation. According to section 76 of the Act, AS 23.30.280(i), as enacted by section 65 of the Act, has the effect of changing Civil Rule 45 by changing the procedure relating to subpoenas.

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Rule 46. Conduct of Trials.

(a) Statement of Case. Before the introduction of any evidence, the plaintiff shall state briefly the claim for relief and the issues to be tried. The defendant shall then state the defense or counterclaim.

(b) Introduction of Evidence. Unless otherwise ordered by the court, which may regulate the order of proof in the exercise of sound discretion, the plaintiff shall then introduce evidence, and when the plaintiff has concluded the defendant shall do the same.

(c) Rebutting Evidence. The parties may then respectively introduce rebutting evidence only, unless the court, for good reason and in the furtherance of justice, permits them to introduce other evidence.

(d) Examination of Witnesses. Unless otherwise ordered by the court no more than one attorney on each side may examine or cross-examine a witness.

(e) Attorney as Witness. If counsel for either party is a witness on behalf of that counsel's client and gives evidence on the merits of the case, that counsel shall not argue the case to the jury unless by permission of the court.

(f) 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 the party desires the court to take or the party's objection to the action of the court and the 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 the party.

(g) Argument of Counsel. When the evidence is concluded, and unless the case is submitted to the jury by mutual agreement of both sides without argument, the plaintiff shall open with the plaintiff's argument; the defendant shall follow with the defendant's argument and the plaintiff may conclude the argument. Not more than two counsel shall be allowed to address the jury on behalf of either party, unless otherwise allowed by the court. If the plaintiff waives the opening argument and the defendant then argues the case to the jury, the plaintiff shall not be permitted to reply to the defendant's argument.

(h) Time for Opening Statements and Argument. The court may fix the time allowed each party for opening statements and final argument. The parties shall be given adequate time for argument having due regard to the complexity of the case and may make separate time allowances for co-parties whose interests are adverse.

(i) Regulation of Conduct in the Courtroom. The taking of photographs in the courtroom during the progress of judicial proceedings, or radio or television broadcasting of judicial proceedings from the courtroom shall not be permitted except in accordance with Administrative Rule 50.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 321 effective September 15, 1978; by SCO 994 effective January 15, 1990; and by SCO 1153 effective July 15, 1994)

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Rule 47. Jurors.

(a) Examination of Jurors. The court shall require the jury to be selected in a prompt manner. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. The court may also require the parties to question the panel as a whole rather than individually and impose reasonable time limits on the examination of prospective jurors.

(b) Alternate Jurors.

(1) Generally. A court may impanel alternate jurors using one of the procedures set out in subparagraph (b)(2) below. If alternate jurors are called,

(A) they shall be drawn in the same manner, shall have the same qualification, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities and privileges as the principal jurors; and

(B) each party is entitled to one peremptory challenge in addition to those otherwise allowed by paragraph (d) of this rule.

(2) Procedures.

(A) The court may direct that one or two jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a principal juror shall be discharged after the jury retires to consider its verdict.

The additional peremptory challenge allowed by section (b)(1)(B) may be used only against an alternate juror, and the other peremptory challenges allowed by paragraph (d) of this rule, shall not be used against the alternates.

(B) The court may direct that one or two jurors be called and impaneled in addition to the number of jurors required by law to comprise the jury. The court may excuse jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. If more than the required number are left on the jury when the jury is ready to retire, the clerk in open court shall select at random the names of a sufficient number of jurors to reduce the jury to the number required by law. The jurors selected for elimination shall be discharged after the jury retires to consider its verdict.

(c) Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. A juror challenged for cause may be directed to answer every question pertinent to the inquiry. Every challenge for cause shall be determined by the court. The following are grounds for challenge for cause:

(1) That the person is not qualified by law to be a juror.

(2) That the person is biased for or against a party or attorney.

(3) That the person shows a state of mind which will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or as to what the outcome should be, and cannot disregard such opinion and try the issue impartially.

(4) That the person has opinions or conscientious scruples which would improperly influence the person's verdict.

(5) That the person has been subpoenaed as a witness in the case.

(6) That the person has already sat upon a trial of the same issue.

(7) That the person has served as a grand or petit juror in a criminal case based on the same transaction.

(8) That the person was called as a juror and excused either for cause or peremptorily on a previous trial of the same action, or in another action by the same parties for the same cause of action.

(9) That the person is related within the fourth degree (civil law) of consanguinity or affinity to one of the parties or attorneys.

(10) That the person is the guardian, ward, landlord, tenant, employer, employee, partner, client, principal, agent, debtor, creditor, or member of the family of a party or attorney; provided, however, that challenge for cause may not be taken because of the employer-employee relationship when the State of Alaska or a municipal corporation is the employer and the person challenged is not employed by an agency, department, division, commission, or other unit of the State or municipal corporation which is directly involved in the case to be tried.

(11) That the person is or has been a party adverse to the challenging party or attorney in a civil action, or has been a complaining witness against the challenging party or attorney in a criminal prosecution.

(12) That the person has, within the previous two years, been accused by the challenging party or attorney in a criminal prosecution.

(13) That the person has a financial interest, other than that of a taxpayer or a permanent fund dividend recipient in the outcome of the case.

(14) That the person was a member of the grand jury returning an indictment in the case.

(d) Peremptory Challenges. A party who waives peremptory challenge as to the jurors in the box does not thereby lose the challenge but may exercise it as to new jurors who may be called. A juror peremptorily challenged is excused without cause. Each party may challenge peremptorily three jurors. Two or more parties on the same side are considered a single party for purposes of peremptory challenge, but where multiple parties having adverse interests are aligned on the same side, three peremptory challenges shall be allowed to each such party represented by a different attorney.

(e) Procedure for Using Challenges. The court has discretion to set procedures for the exercise of challenges and for the replacement of challenged jurors, except that the entire trial panel will be asked general questions concerning the for cause challenges listed in Civil Rule 47(c)(5) - (13) before proceeding to other questioning.

(f) Juries of Less Than Twelve - Majority Verdict. The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

(g) Oath of Jurors. The jury shall be sworn by the clerk substantially as follows:

"Do each of you solemnly swear or affirm that you will well and truly try the issues in the matter now before the court solely on the evidence introduced and in accordance with the instructions of the court?"

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 277 effective June 30, 1977; by SCO 465 effective June 1, 1981; by SCO 808 effective August 1, 1987; by SCO 969 effective July 15, 1989; by SCO 1013 effective January 15, 1990; by SCO 1095 effective January 15, 1993; by SCO 1153 effective July 15, 1994; by SCO 1448 effective October 15, 2001; by SCO 1447 effective October 15, 2002; and by SCO 1593 effective April 15, 2006)

Cross References

CROSS REFERENCE: AS 09.20.010; AS 09.20.100

(c) CROSS REFERENCE: AS 09.20.010; AS 09.20.020

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Rule 48. Order of Trial Proceedings--Management of Juries.

(a) Conduct of Trial. Conduct of a jury trial shall be governed by Rule 46 and this rule.

(b) Instructions -- Argument -- Retirement of Jury. When argument of counsel is concluded or waived, the court shall then charge the jury. Such charge shall be reduced to writing and read to the jury. The jury must take the written charge with it to the jury room.

(c) View of Premises by Jury. When the court deems proper, it may order a proper officer to conduct the jury in a body to view the property which is the subject of the litigation or the place where a material fact occurred and to show such property or place to it. While the jury is making its inspection no one shall speak to it on any subject connected with the trial. The court may order the person applying for a jury view to pay the expenses connected therewith.

(d) Separation of Jury -- Admonition -- Manner of Keeping Jury Before Submission of Case. If any juror is permitted to separate from the jury during the trial the juror must be admonished by the court that it is the juror's duty not to converse with any person, including another juror, on any subject connected with the trial, nor to form or express any opinion thereon until the case is finally submitted to the jury. If any juror is permitted to separate from the jury after the case is submitted the juror must be admonished by the court that it is the juror's duty not to converse with any person on any subject connected with the trial, and that the juror is to discuss the case only with other jurors in the jury room.

(e) Juror Unable to Continue. If, prior to the time the jury retires to consider its verdict, a juror is unable or disqualified to perform the juror's duty, the court may order the juror to be discharged. If an alternate juror has not been impanelled as provided in the rules, the trial may proceed with the other jurors with the consent of the parties, or another juror may be sworn and the trial may begin anew; or the jury may be discharged and a new jury then or afterwards formed.

(f) Jury -- Deliberation -- Communications. After hearing the charge the jury shall retire for deliberation. No persons other than the jurors and any interpreter necessary to assist a juror who is hearing or speech impaired shall be present while the jury is deliberating or voting. The jury shall be and remain under the charge of an officer until it agrees upon its verdict or is discharged by the court. Unless otherwise ordered by the court, the officer having charge of the jury must keep the jury together, separate from other persons; and the officer must not suffer any communication to be made to it, nor make any except to ask it if it has agreed upon its verdict, and the officer must not, before the verdict is rendered, communicate to any person the state of its deliberations or the verdict agreed upon. Such officer shall be sworn to act according to the provisions of this section.

(g) Items Which May Be Taken Into the Jury Room. Upon retiring for deliberation the jury shall take with it any exhibits, except depositions, that have been introduced into evidence which the court deems proper.

(h) Discharge of Jury Before Verdict. Except as may be provided in these rules or as the interest of justice may require, the jury shall not be discharged after the cause is submitted to them until they have agreed upon a verdict and given it in open court, except:

(1) By the consent of all parties entered in the record.

(2) At the expiration of such period as the court deems proper if it appears that there is no probability of an agreement being arrived at among the jurors necessary to return a verdict.

(i) Retrial in the Event of Discharge Without Verdict. In all cases where the jury is discharged without having given a verdict, or is prevented from giving a verdict by reason of accident or other cause during the progress of the trial, or after the cause is submitted to it, the action may be again tried immediately, or at a future time, as the court directs.

(j) Adjournment During Absence of Jury. While the jury is absent the court may adjourn from time to time, in respect to other business, but it is nevertheless open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged.

(Adopted by SCO 5 October 9, 1959; amended by SCO 49 effective January 1, 1963; by SCO 1153 effective July 15, 1994; and by SCO 1439 effective October 15, 2001)

Cross References

CROSS REFERENCE: AS 09.50.010

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Rule 49. Special Verdicts and Interrogatories.

(a) Returning a Verdict -- Polling a Jury -- Filing and Entering Verdict. When the jury, or such a majority of it as may be required by the law or stipulation of the parties, have agreed upon a verdict, they shall be conducted into court, their names called, and the verdict shall be given by the foreperson. The verdict shall be in writing and signed by the foreperson. The court may permit the foreperson of the jury to date, sign and seal in an envelope a verdict reached after the usual business hours. The jury may then separate, but all must be in the jury box to deliver the verdict when the court next convenes or as instructed by the court. When the court authorizes a sealed verdict, it shall admonish the jurors not to make any disclosure concerning it nor speak with other persons concerning the case until the verdict has been returned and the jury discharged. Any party may require the jury to be polled as to any verdict, which is done by asking each juror if it is the juror's verdict. If upon such polling it appears that a verdict has not been agreed upon, the jury shall be sent out for further deliberation. After a verdict has been agreed upon, the jury shall be discharged from the case. The verdict shall be filed and an entry thereof made in the minutes of the court. The word "verdict" shall include, where applicable, answers to questions or interrogatories.

(b) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.

(c) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 715 effective September 15, 1976; by SCO 1153 effective July 15, 1994; and by SCO 1281 effective August 7, 1997)

NOTE: Ch. 139, § 5, SLA 1986, provided that AS 09.17.040 and 09.17.080, enacted by ch. 139, § 1, SLA 1986, amended Civil Rule 49 by requiring the jury to answer the special interrogatories listed in AS 09.17.090 regarding the amount of damages and the percentage of fault to be allocated among the parties and to itemize the verdict regarding economic, noneconomic and punitive damages as specified in AS 09.17.040.

§ 09.17.040. Award of damages. (a) In every case where damages for personal injury are awarded by the court or jury, the verdict shall be itemized between economic loss and noneconomic loss, if any, as follows:

(1) past economic loss;

(2) past noneconomic loss;

(3) future economic loss;

(4) future noneconomic loss; and

(5) punitive damages.

(b) The fact finder shall reduce future economic damages to present value. In computing the portion of a lump-sum award that is attributable to future economic loss, the fact finder shall determine the present amount that, if invested at long-term future interest rates in the best and safest investments, will produce over the life expectancy of the injured party the amount necessary to compensate the injured party for

(1) the amount of wages the injured party could have been expected to earn during future years, taking into account future anticipated inflation and reasonably anticipated increases in the injured party's earnings; and

(2) the amount of money necessary during future years to provide for all additional economic losses related to the injury, taking into account future anticipated inflation.

(c) Subsection (b) of this section does not apply to future economic damages if the parties agree that the award of future damages may be computed under the rule adopted in the case of Beaulieu v. Elliott, 434 P2d 655 (Alaska 1967).

(d) In an action to recover damages, the court shall, at the request of an injured party, enter judgment ordering that amounts awarded a judgment creditor for future damages be paid to the maximum extent feasible by periodic payments rather than by a lump-sum payment.

(e) The court may require security be posted, in order to ensure that funds are available as periodic payments become due. The court may not require security to be posted if an authorized insurer, as defined in AS 21.90.900, acknowledges to the court its obligation to discharge the judgment.

(f) A judgment ordering payment of future damages by periodic payment shall specify the recipient, the dollar amount of the payments, the interval between payments, and the number of payments in the period of time over which payments shall be made. Payments may be modified only in the event of the death of the judgment creditor, in which case payments may not be reduced or terminated, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately before death. In the event the judgment creditor owed no duty of support to dependents at the time of the judgment creditor's death, the money remaining shall be distributed in accordance with a will of the deceased judgment creditor accepted into probate or under the intestate laws of the state if the deceased had no will.

(g) If the court finds that the judgment debtor has exhibited a continuing pattern of failing to make payments required under (c) of this section, the court shall, in addition to the required periodic payments, order the judgment debtor to pay the judgment creditor any damages caused by the failure to make periodic payments, including costs and attorney fees. (§ 1 ch. 139 SLA 1986)

§ 09.17.080. Apportionment of damages. (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.17.090, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating

(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and

(2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.17.090.

(b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished.

(c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.17.090, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault.

(d) The court shall enter judgment against each party liable on the basis of joint and several liability, except that a party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party. (§ 1 ch. 139 SLA 1986)

NOTE: Ch. 26, § 11, SLA 1997 amends AS 09.17.080(a) concerning allocation of fault. This provision applies to causes of action accruing on or after August 7, 1997. See ch. 26, § 55, SLA 1997. According to § 50 of the Act, the amendments to AS 09.17.080(a) have the effect of amending Civil Rule 49 by requiring the jury to answer the special interrogatory listed in AS 09.17.080(a)(2) regarding the percentages of fault to be allocated among the claimants, defendants, third-party defendants, persons who have been released from liability, or other persons who are potentially responsible for the damages.

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Rule 50. Motion for a Directed Verdict and for Judgment.

(a) Motion for Directed Verdict -- When Made -- Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after the date shown in the clerk's certificate of distribution on the judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with the party's motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may set aside the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

(c) Same -- Conditional Rulings on Grant of Motion.

(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.

(d) Same -- Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

(Adopted by SCO 5 October 9, 1959; amended by SCO 258 effective November 15, 1976; by SCO 554 effective April 4, 1983; and by SCO 1153 effective July 15, 1994)

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Rev. 15 April 2014
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