(1) Scope. Unless a statute provides otherwise, a court may appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by:
(i) some exceptional condition, or
(ii) the need to perform an accounting or resolve a difficult computation of damages; or
(C) address pretrial and post-trial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.
(2) Disqualification. A master must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under N.D. Code Jud. Conduct Canon 3(E) unless the parties, with the court's approval, consent to appointment after the master discloses any potential grounds for disqualification.
(A) Any party may object to the appointment of any person as master for the same cause that a challenge for cause may be taken of a juror in the trial of a civil action.
(B) Any objections to the appointment of any person as master must be heard and disposed of by the court. Declarations may be read and witnesses examined as to those objections.
(3) Possible expense or delay. In appointing a master, the court must consider the fairness of imposing the likely expenses on the parties and must protect against unreasonable expense or delay.
(b) Order appointing master.
(1) Notice. Before appointing a master, the court must give the parties notice and an opportunity to be heard. A party may suggest candidates for appointment.
(2) Contents. The appointing order must direct the master to proceed with all reasonable diligence and must state:
(A) the master's duties, including any investigation or enforcement duties, and any limits on the master's authority under Rule 53(c);
(B) the circumstances, if any, in which the master may communicate ex parte with the court or a party;
(C) the nature of the materials to be preserved and filed as the record of the master's activities;
(D) the time limits, method of filing the record, other procedures, and standards for reviewing the master's orders, findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the master's compensation under Rule 53(g).
(3) Issuing. The court may issue the order only after:
(A) the master files a declaration disclosing whether there is any ground for disqualification under N.D. Code Jud. Conduct Canon 3(E); and
(B) if a ground is disclosed, the parties, with the court's approval, waive the disqualification. Before proceeding to hear any testimony, a master must be sworn to fairly hear and determine the facts referred and to make true findings according to the evidence.
(4) Amending. The order appointing a master may be amended at any time after notice to the parties, and an opportunity to be heard.
(5) Masters in eminent domain actions. In an eminent domain action in which the condemnor and the owner of the property sought to be taken for public use waive the right to have a jury determine just compensation or damages, the court, upon request of a party, may appoint one or three masters to determine the issue of just compensation or damages. If three masters are appointed a majority of them must determine their action and report. Trial of all issues other than compensation or damages must be by the court.
(1) In general. Unless the appointing order directs otherwise, a master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the assigned duties fairly and efficiently; and
(C) unless the appointing court orders otherwise, if conducting an evidentiary hearing, exercise the appointing court's power to compel, take, and record evidence.
(2) Sanctions. The master may by order impose on a party any noncontempt sanction provided by Rule 37 or 45, and may recommend a contempt sanction against a party and sanctions against a nonparty.
(d) Master's orders. A master who issues an order must file it and promptly serve a copy on each party. The clerk must enter the order on the docket.
(e) Master's reports. A master must report to the court as required by the appointing order. The master must file the report and promptly serve a copy of the report on each party, unless the court directs otherwise.
(f) Action on master's order, report, or recommendations.
(1) Opportunity for hearing; Action in general. In acting on a master's order, report, or recommendations, the court must give the parties notice and an opportunity to be heard; may receive evidence; and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions.
(2) Time to object or move to adopt or modify. A party may file objections to, or a motion to adopt or modify, the master's order, report, or recommendations no later than 21 days after a copy is served, unless the court determines otherwise.
(3) Reviewing factual findings. The court must decide de novo all objections to findings of fact made or recommended by a master, unless the parties, with the court's consent, stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final.
(4) Reviewing legal conclusions. The court must decide de novo all objections to conclusions of law made or recommended by a master.
(5) Reviewing procedural matters. Unless the appointing order establishes a different standard of review, the court may set aside a master's ruling on a procedural matter only for an abuse of discretion.
(1) Fixing compensation. Before or after judgment, the court must fix a master's compensation on the basis and terms stated in the appointing order, but the court may set a new basis and terms after giving notice and an opportunity to be heard.
(2) Payment. The compensation fixed must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action within the court's control.
(3) Allocating payment. The court must allocate payment of the master's compensation among the parties after considering the nature and amount of the controversy, the means of the parties, and the extent to which any party is more responsible than other parties for the reference to a master. An interim allocation may be amended to reflect a decision on the merits.
Rule 53 was amended effective September 1, 1983; March 1, 1990; March 1, 1994; and March 1, 2005; March 1, 2011; March 1, 2021.
Rule 53 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 53 was amended, effective March 1, 2005, based upon the December 1, 2003, amendment of Fed.R.Civ.P. 53.
Paragraph (f)(2) was amended, effective March 1, 2011, to increase the time to file objections to a master's order from 20 to 21 days.
Rule 53 is derived from Fed.R.Civ.P. 53, except for several modifications based on statutory provisions the rule superseded. Subparagraphs (a)(2)(A) and (a)(2)(B) of the rule provide for objections to the appointment of a given person as master. Paragraph (b)(3) requires the master to be sworn.
Paragraph (b)(5) is derived from Fed.R.Civ.P. 71A(h) and provides an additional option of having a master or masters ascertain just compensation or determine the damages in eminent domain actions in which the parties have waived the right to a jury.
Rule 53 was amended, effective March 1, 2021, to delete the term "affidavit" and replace it with "declaration." This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
Rule 53(a) limits when a court may appoint a master to three situations: duties the parties have consented to, holding trial proceedings and making or recommending findings on nonjury issues when some exceptional condition exists or a difficult accounting or damages computation calls for it, or handling pretrial and post-trial matters that an available district or magistrate judge can't effectively and timely address. A master must not have a relationship to the case that would require a judge's disqualification under the state's judicial conduct rules, unless the parties consent with the court's approval after the master discloses any potential ground. A party may object to a proposed master on the same grounds available for a for-cause juror challenge, and the court must consider expense fairness and guard against unreasonable expense or delay before appointing one.
Rule 53(b) requires notice and a chance to be heard before any appointment, and lets parties suggest candidates. The appointing order must spell out the master's duties and any limits on them, when ex parte communication with the court or a party is allowed, what records the master must keep, the timeline and standard for reviewing the master's work, and how compensation will be set — and it can only issue after the prospective master discloses any disqualification ground and, if needed, the parties waive it. The master must be sworn to hear the matter impartially and make true findings. A special option exists in eminent domain cases: when the condemnor and property owner waive a jury on just compensation, the court may appoint one or three masters to decide that issue, with a majority of three controlling if there are three.
Rule 53(c) gives a master authority to regulate the proceedings and take whatever measures are needed to do the job well and efficiently, including exercising the court's own power to compel, take, and record evidence at an evidentiary hearing, unless the appointing order says otherwise. A master can impose noncontempt sanctions under Rule 37 or 45 directly, and can recommend contempt sanctions against a party or sanctions against a nonparty. Every order and report the master issues must be filed and promptly served on each party.
Rule 53(f) governs how the court acts on a master's order, report, or recommendations: notice and a chance to be heard come first, and the court can adopt, modify, reject, reverse, or send the matter back to the master with instructions. A party has 21 days after being served to object or move to adopt or modify the master's work. The court reviews factual findings and legal conclusions de novo by default, though the parties can stipulate, with the court's consent, to clear-error review, or to treat as final the findings of a master appointed for consented-to duties or unavailable-judge matters; procedural rulings get reviewed only for abuse of discretion unless the appointing order sets a different standard. Rule 53(g) has the court fix the master's compensation on the basis stated in the appointing order, paid by the parties or from a fund within the court's control, and allocated among the parties based on the nature of the dispute, the parties' means, and how much each party is responsible for needing a master in the first place.