RULES OF CIVIL PROCEDURE
I. SCOPE OF RULES--ONE FORM OF ACTION
RULE 1. SCOPE AND PURPOSE OF RULES
These rules govern the procedure in all trial courts of record
in all actions, suits, or other judicial proceedings of a civil
nature whether cognizable as cases at law or in equity, with the
qualifications and exceptions stated in Rule 81. They shall be
construed and administered to secure the just, speedy, and
inexpensive determination of every action.
[Effective July 1, 1960; amended effective November 6, 1967; April
6, 1998.]
I. SCOPE OF RULES--ONE FORM OF ACTION
RULE 2. ONE FORM OF ACTION
There shall be one form of action to be known as "civil
action".
[Effective July 1, 1960; amended effective April 6, 1998.]
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS
RULE 3. COMMENCEMENT OF ACTION
(a) Complaint. A civil action is commenced by filing a
complaint with the court.
(b) Civil Case Information Statement. Every complaint shall be accompanied by a completed civil case information statement in
the form prescribed by the Supreme Court of Appeals.
(c) Divorce Complaints. Every divorce complaint involving
spousal support, child support, child custody, or child visitation
shall be accompanied by an application for services pursuant to
Title IV-D of the Social Security Act and no hearing shall be
conducted, except upon motion for emergency temporary relief, until
an application for services pursuant to Title IV-D of the Social
Security Act has been filed.
[Effective July 1, 1960; amended effective July 1, 1978; July 1,
1992; September 1, 1994; April 6, 1998.]
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS
RULE 4. SUMMONS
(a) Form. 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, if unrepresented, of the plaintiff. 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 a
judgment by default against the defendant for the relief demanded
in the complaint. The court may allow a summons to be amended.
(b) Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons to be served as directed by the
plaintiff. A summons, or a copy of the summons if addressed to
multiple defendants, shall be issued for each defendant to be
served.
(c) Service With Complaint; by Whom Made.
(1) A summons shall be served together with a copy of the
complaint. The plaintiff is responsible for directing the clerk in
the manner of service of the summons and complaint within the time
allowed under subdivision (k).
(2) Service may be effected by any person who is not a party
and who is at least 18 years of age.
(3) At the request of the plaintiff and upon payment of the
applicable fees and costs of service, the clerk shall:
(A) Deliver the summons and complaint to the sheriff for
service as directed by the plaintiff; or
(B) Make service by either certified mail or by first class
mail as directed by plaintiff; or
(C) Forward a copy of the summons and complaint to the
Secretary of State, as statutory attorney-in-fact, for service as
specified by any applicable statute.
(d) Manner of Service. Personal or substitute service shall
be made in the following manner:
(1) Individuals. Service upon an individual other than an
infant, incompetent person, or convict may be made by:
(A) Delivering a copy of the summons and complaint to the individual personally; or
(B) Delivering a copy of the summons and complaint at the
individual's dwelling place or usual place of abode to a member of
the individual's family who is above the age of sixteen (16) years
and by advising such person of the purport of the summons and
complaint; or
(C) Delivering a copy of the summons and complaint to an agent
or attorney-in-fact authorized by appointment or statute to receive
or accept service of the summons and complaint in the individual's
behalf; or
(D) The clerk sending a copy of the summons and complaint to
the individual to be served by certified mail, return receipt
requested, and delivery restricted to the addressee; or
(E) The clerk sending a copy of the summons and complaint by
first class mail, postage prepaid, to the person to be served,
together with two copies of a notice and acknowledgment conforming
substantially to Form 14 and a return envelope, postage prepaid,
addressed to the clerk.
The plaintiff shall furnish the person making service with
such copies of the complaint or order as are necessary and shall
advance the costs of service. For service by certified mail, the
plaintiff shall pay to the clerk a fee of ten dollars for each
complaint to be served. For service by first class mail, the
plaintiff shall pay to the clerk a fee of five dollars for each
complaint to be served.
Service pursuant to subdivision (d)(1)(D) shall not be the
basis for the entry of a default or a judgment by default unless
the record contains a return receipt showing acceptance by the
defendant or a return envelope showing refusal of the registered or
certified mail by the defendant. If delivery of the summons and
complaint pursuant to subdivision (d)(1)(D) is refused, the clerk,
promptly upon receipt of the notice of such refusal, shall mail to
the defendant, by first class mail, postage prepaid, a copy of the
summons and complaint and a notice that despite such refusal, the
case will proceed and that judgment by default will be rendered
against the defendant unless the defendant appears to defend the
suit. Any such default or judgment by default shall be set aside
pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates
to the court that the return receipt was signed by or delivery was
refused by an unauthorized person. The notice and acknowledgment
of receipt of the summons and complaint pursuant to subdivision
(d)(1)(E) shall be executed in the manner prescribed on Form 14.
Unless good cause is shown for failure to complete and return the
notice and acknowledgment of receipt of summons and complaint
pursuant to subdivision (d)(1)(E) within twenty (20) days after
mailing, the court may order the payment of costs of personal
service by the person served. Service pursuant to subdivision
(d)(1)(E) shall not be the basis for entry of default or a judgment
by default unless the record contains a notice and acknowledgment
of receipt of the summons and complaint. If no acknowledgment of service pursuant to subdivision (d)(1)(E) is received by the clerk
within twenty (20) days after the date of mailing, service of such
summons and complaint shall be made under subdivisions (d)(1)(A),
(B), (C), or (D).
(2) Infants and Incompetents Under 14 Years. Upon an infant
or incompetent younger than 14 years of age, by delivering a copy
of the summons and complaint to the infant's or incompetent's
guardian or conservator resident in the State; or, if there be no
such guardian or conservator, then to either the infant's or
incompetent's father or mother if they be found. If there is no
such guardian or conservator and if the father or mother cannot be
found, service of the summons and complaint shall be made upon a
guardian ad litem appointed under Rule 17(c). But if any of the
persons upon whom service is directed to be made by this paragraph
is a plaintiff, then service shall be upon the person who stands
first in the order named in this paragraph who is not a plaintiff.
(3) Infants and Incompetents 14 Years or Older. Upon an
infant or incompetent 14 years of age or older, by making service
as provided in paragraph (2) above, and in addition by making
service upon the infant or incompetent as provided in paragraph (1)
above.
(4) Convicts. Upon a person confined in the penitentiary of
this or any other state, or of the United States, by delivering a
copy of the summons and complaint to that person's committee,
guardian, or like fiduciary resident in the State; or, if there be no such committee, guardian, or like fiduciary, or if the
committee, guardian, or like fiduciary is a plaintiff, service of
process shall be made upon a guardian ad litem appointed under Rule
17(c).
(5) Domestic Private Corporations. Upon a domestic private
corporation,
(A) by delivering or mailing in accordance with paragraph (1)
above a copy of the summons and complaint to an officer, director,
or trustee thereof; or, if no such officer, director, or trustee be
found, by delivering a copy thereof to any agent of the corporation
including, in the case of a railroad company, a depot or station
agent in the actual employment of the company; but excluding, in
the case of an insurance company, a local or soliciting agent; or
(B) by delivering or mailing in accordance with paragraph (1)
above a (copy thereof to any agent or attorney in fact authorized
by appointment or (by statute to receive or accept service in its
behalf.
(6) Domestic Public Corporations.
(A) Upon a city, town, or village, by delivering or mailing in
accordance with paragraph (1) above a copy of the summons and
complaint to its mayor, city manager, recorder, clerk, treasurer,
or any member of its council or board of commissioners;
(B) Upon a county commission of any county or other tribunal
created to transact county business, by delivering or mailing in
accordance with paragraph (1) above a copy of the summons and complaint to any commissioner or the clerk thereof or, if they be
absent, to the prosecuting attorney of the county;
(C) Upon a board of education, by delivering or mailing in
accordance with paragraph (1) above a copy of the summons and
complaint to the president or any member thereof or, if they be
absent, to the prosecuting attorney of the county;
(D) Upon any other domestic public corporation, (i) by
delivering or mailing in accordance with paragraph (1) above a copy
of the summons and complaint to any officer, director, or governor
thereof, or (ii) by delivering or mailing in accordance with
paragraph (1) above a copy thereof to an agent or attorney in fact
authorized by appointment or by statute to receive or accept
service in its behalf.
(7) Foreign Corporations and Business Trusts Qualified to Do
Business. Upon a foreign corporation, including a business trust,
which has qualified to do business in the State, by delivering or
mailing in accordance with paragraph (1) above a copy of the
summons and complaint as provided in Rule 4(d)(5).
(8) Foreign Corporations and Business Trusts Not Qualified to
Do Business. Upon a foreign corporation, including a business
trust, which has not qualified to do business in the State,
(A) by delivering or mailing in accordance with paragraph (1)
above a copy of the summons and complaint to any officer, director,
trustee, or agent of such corporation; or
(B) by delivering or mailing in accordance with paragraph (1) above copies thereof to any agent or attorney in fact authorized by
appointment or by statute to receive or accept service in its
behalf.
(9) Unincorporated Associations. Upon an unincorporated
association which is subject to suit under a common name, by
delivering a copy of the summons and complaint to any officer,
director, or governor thereof, or by delivering or mailing in
accordance with paragraph (1) above a copy of the summons and
complaint to any agent or attorney in fact authorized by
appointment or by statute to receive or accept service in its
behalf; or, if no such officer, director, governor, or appointed or
statutory agent or attorney in fact be found, then by delivering or
mailing in accordance with paragraph (1) above a copy of the
summons and complaint to any member of such association and
publishing notice of the pendency of such action once a week for
two successive weeks in a newspaper of general circulation in the
county wherein such action is pending. Proof of publication of
such notice is made by filing the publisher's certificate of
publication with the court.
(e) Constructive Service.
(1) Service by Publication. If the plaintiff files with the
court an affidavit:
(A) That the defendant is a foreign corporation or business
trust for which no officer, director, trustee, agent, or appointed
or statutory agent or attorney in fact is found in the State upon whom service may be had; or
(B) That the defendant is a nonresident of the State for whom
no agent, or appointed or statutory agent or attorney in fact is
found in the State upon whom service may be had; or
(C) That the plaintiff has used due diligence to ascertain the
residence or whereabouts of the defendant, without effect; or
(D) That process, delivered to the sheriff of the county in
which the defendant resides or is, has twice been delivered to such
officer and has been returned without being executed; or
(E) That there are or may be persons, other than those named
in the complaint as plaintiff and defendant, interested in the
subject matter of the action, whose names are unknown to the
plaintiff and who are made defendants by the general description of
unknown defendants;
then the clerk shall enter an order of publication against such
named and unknown defendants. Every order of publication shall
state the title of the action; the object thereof; the name and
address of the plaintiff's attorney, if any; that a copy of the
complaint may be obtained from the clerk; and that each named and
unknown defendant must appear and defend on or before a date set
forth in the order, which shall be not fewer than 30 days after the
first publication thereof; otherwise, that judgment by default will
be rendered against the defendants at any time thereafter. Every
such order of publication shall be published once a week for two
successive weeks (or for such period as may be prescribed by statute, whichever period is longer) in a newspaper of general
circulation in the county wherein such action is pending. Proof of
service by publication is made by filing the publisher's
certificate of publication with the court.
(2) Service by Mailing. When plaintiff knows the residence of
a defendant upon whom service has been unsuccessfully attempted as
described in Rule 4(e)(1)(D), or when plaintiff knows the residence
of a nonresident defendant or the principal office of a nonresident
defendant foreign corporation or business trust for which no
officer, director, trustee, agent, or appointed or statutory agent
or attorney in fact is found in the State upon whom service may be
had, plaintiff shall obtain constructive service of the summons and
complaint upon such defendant by the method set forth in Rule
4(d)(1)(D). The summons in such instance shall notify the
defendant that the defendant must appear and defend within thirty
days of the date of mailing pursuant to Rule 4(d)(1)(D); otherwise,
that judgment by default will be rendered against the defendant at
any time thereafter. (However, service pursuant to Rule 4(d)(1)(D)
shall not be the basis for the entry of a judgment by default
unless the record contains a return receipt showing acceptance by
the defendant or a return envelope showing refusal of the certified
mail by the defendant. If delivery of the summons and complaint
sent by certified mail is refused, the clerk, promptly upon notice
of such refusal, shall mail to the defendant, first class mail,
postage prepaid, a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment
by default will be rendered against defendant unless defendant
appears to defend the suit. If plaintiff is unable to obtain
service of the summons and complaint upon such defendant by use of
the method set forth in Rule 4(d)(1)(D), then, upon affidavit to
such effect filed with the court, the clerk shall issue an order of
publication, and the procedures described in subdivision (e)(1)
shall be followed to effectuate constructive service.
(f) Personal Service Outside State. Personal service of a
copy of the summons and complaint may be made outside of this State
on any defendant. If any such defendant be then a resident of this
State and if the plaintiff shall during the pendency of the action
file with the court an affidavit setting forth facts showing that
the defendant is such a resident, such service shall have the same
effect as personal service within this State and within the county
of the defendant's residence; otherwise, such service shall have
the same effect as constructive service. In either case, the
summons shall notify the defendant that the defendant must appear
and defend within 30 days after service, otherwise judgment by
default will be rendered against the defendant at any time
thereafter.
(g) Summons; Service Thereof in Addition to Constructive
Service. (The plaintiff may, at any time before judgment, have a
copy of the summons and complaint served on a defendant in the
manner provided by subdivisions (d) or (f) of this rule, although constructive service under subdivision (e) of this rule has been
made. After such service under subdivision (d) of this rule, the
action shall proceed as in other cases of personal or substituted
service within the State; and after such service under subdivision
(f) of this rule, the action shall proceed as in other cases of
personal or constructive service.
(h) Process Part of Record. Summonses, complaints, proofs of
service and returns endorsed thereon, all orders and notices served
or published, all proofs of service and certificates of
publication, and all other papers filed relating to such process,
orders, and notices, are a part of the record of an action for all
purposes.
(i) Proof of Service or Publication. The person serving the
process or order or publishing a notice or order shall make proof
of service of publication to the court promptly and in any event
within the time during which the person served must respond to the
process, notice, or order. If service is made by a person other
than the sheriff or clerk, that person shall make proof thereof by
affidavit. Failure to make proof of service or publication within
the time required does not affect the validity of the service of
the process, notice, or order.
(j) Amendment. At any time in its discretion and upon such
terms as it deems just, the court may allow any process, notice, or
order, or proof of service or publication thereof to be amended,
unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process,
notice, or order issued or was entered.
(k) Time Limit for Service. If service of the summons and
complaint is not made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that service be
effected within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend the time
for service for an appropriate period.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; January 1, 1990; July 1, 1990; January 1, 1995; April 6,
1998; October 26, 1998.]
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS
RULE 4.1 SERVICE OF OTHER PROCESS
(a) Generally. Whenever an order of court provides for
service of a rule, or of an order in lieu of summons or a rule,
upon a party, service shall be made in the manner provided in Rule
4(d), unless the order prescribes a different mode of service.
Rule 45 governs the service of subpoenas.
(b) Process Part of Record. Original, mesne, and final writs
and process of every nature, and proofs of service and returns endorsed thereon, and all orders and notices served or published,
and all proofs of service and certificates of publication and all
other papers filed in relation to such process, orders, and
notices, are a part of the record of an action for all purposes.
[Adopted effective April 6, 1998.]
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS
RULE 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
(a) Service: When Required. Except as otherwise provided in
these rules, every order required by its terms to be served, every
pleading subsequent to the original complaint unless the court
otherwise orders because of numerous defendants, every paper
relating to discovery required to be served upon a party unless the
court otherwise orders, every written motion other than one which
may be heard ex parte, and every written notice, appearance,
demand, offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of the parties. For
purposes of this rule, guardians ad litem are considered parties.
No service need be made on parties in default for failure to appear
except that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for
service of summons in Rule 4.
(b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an
attorney, the service shall be made upon the attorney unless
service upon the party 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; or by mailing it to the attorney or party at the
attorney's or party's last-known address or, if no address is
known, by leaving it with the clerk of the court; or by facsimile
transmission made to the attorney or party pursuant to the West
Virginia Supreme Court of Appeals Rules for Filing and Service by
Facsimile Transmission. 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 the office is closed or the person to be served has
no office, leaving it at the person's dwelling house or usual place
of abode with some member of the person's family above the age of
16 years. Service by mail is complete upon mailing.
(c) Same: Numerous Defendants. In any action in which there
are unusually large numbers of defendants, the court, upon motion
or of its own initiative, may order that service of the pleadings
of the defendants and replies thereto need not be made as between
the defendants and that any cross-claim, counterclaim, or matter
constituting an avoidance or affirmative defense contained therein
shall be deemed to be denied or avoided by all other parties and
that the filing of any such pleading and service thereof upon the
plaintiff constitutes due notice of it to the parties.
(A copy of every such order shall be served upon the parties
in such manner and form as the court directs.
(d) Filing; Certificate of Service.
(1) All papers after the complaint required to be served upon
a party, together with a certificate of service, shall be filed
with the court within a reasonable time after service.
(2) Unless filing is required by the court on motion or upon
its own initiative, depositions, interrogatories, requests for
admissions, requests for production and entry, and answers and
responses thereto shall not be filed. Unless required to be filed
for issuance of a subpoena for a deposition, a notice of deposition
need not be filed. Certificates of service of discovery materials
shall be filed.
(3) Unless otherwise stipulated or ordered, the party taking
the deposition or obtaining any material through discovery is
responsible for its custody, preservation, and delivery to the
court if needed or ordered. Such responsibility shall not
terminate until one year after final disposition of the action.
The responsibility shall not terminate upon dismissal of any party
while the action is pending. The custodial responsibility of a
dismissed party may be discharged by stipulation of the parties to
transfer the custody of the discovered material to one or more of
the remaining parties.
(e) Filing With the Court Defined. The filing of papers with
the court as required by these rules shall be made by filing them with the clerk of the court, who shall note thereon the filing
date, 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; the
notation by the clerk or the judge of the filing date on any such
paper constitutes the filing of such paper, and such paper then
becomes a part of the record in the action without any order of the
court. Filing by facsimile is permitted pursuant to the West
Virginia Supreme Court of Appeals Rules for Filing and Service by
Facsimile Transmission.
[Effective July 1, 1960; amended effective July 1, 1978; September
1, 1996; April 6, 1998.]
II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS
RULE 6. TIME
(a) Computation. In computing any period of time prescribed
or allowed by these rules, by the local rules of any court, by
order of court, or by any applicable statute, the day of the act,
event, or default from which the designated period of time begins
to run shall not be included. The last day of the period so
computed shall be included, unless it is 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, a Sunday, or a legal holiday. When the period of time prescribed or allowed is fewer than 11
days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation. As used in this rule and in Rule
77(c), "legal holiday" includes New Year's Day, Martin Luther
King's Birthday, Lincoln's Birthday, Washington's Birthday,
Memorial Day, West Virginia Day, Independence Day, Labor Day,
Columbus Day, Veteran's Day, Thanksgiving Day, Christmas Day, any
day on which a general, special or primary election is held in the
state or in the county in which the circuit court sits, and any
other day appointed as a holiday by the Governor or by the
President of the United States as a day of special observance or
thanksgiving, or a day for the general cessation of business.
(b) Enlargement. When by these rules or by a notice given
thereunder or by order of court an act is required or allowed to be
done at or within a specified time, all the parties to the action,
by written stipulation filed with the court, may agree at any time
to a different period, or 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), (d) and (e),
and 60(b), except to the extent and under the conditions stated in them.
(c) Unaffected by Expiration of Term. The period of time
provided for the doing of any act or the taking of any proceeding
is not affected or limited by the continued existence or expiration
of a term of court. The continued existence or expiration of a
term of court in no way affects the power of a court to do any act
or take any proceeding in any civil action which has been pending
before it.
(d) For Motions--Affidavits.
(1) Service; Motion. Unless a different period is set by
these rules or by the court, a written motion (other than one which
may be heard ex parte), notice of the hearing on the motion, and
any supporting brief or affidavits shall be served as follows:
(A) at least 9 days before the time set for the hearing, if
served by mail, or
(B) at least 7 days before the time set for the hearing, if
served by hand delivery or by fax to the opposing attorney, or if
left with a person in charge at the opposing attorney's office, or
in the event that the opposing party is not represented by counsel,
then if served by hand delivery or by fax to the opposing party, or
if left at the party's usual residence with a person capable of
accepting service pursuant to Rule 4(d)(1)(B).
(2) Service; Response. Unless a different period is set by
these rules or by the court, any response to a written motion,
including any supporting brief or affidavits, shall be served as follows:
(A) at least 4 days before the time set for the hearing, if
served by mail, or
(B) at least 2 days before the time set for the hearing, if
served by hand delivery or by fax to the opposing attorney, or if
left with a person in charge at the opposing attorney's office, or
in the event that the opposing party is not represented by counsel,
then if served by hand delivery or by fax to the opposing party, or
if left at the party's usual residence with a person capable of
accepting service pursuant to Rule 4(d)(1)(B).
(3) Filing. Unless the court sets a different period, a
written motion, notice of hearing on the motion, and any supporting
briefs or affidavits shall be filed at least 7 days before the
hearing, and any response to a motion and supporting briefs or
affidavits shall be filed at least 2 days before the hearing.
(e) Additional Time After Service by Mail. Whenever a party
has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a
notice or other paper upon the party and the notice or paper is
served upon the party by mail, 3 days shall be added to the
prescribed period.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
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 a person who was not an original party is summoned
under the provisions of Rule 14; 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 and other matters of form
of pleadings apply to all motions and other papers provided for by
these rules.
(3) All motions shall be signed in accordance with Rule 11.
(c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and
exceptions for insufficiency of a pleading shall not be used.
[Effective July 1, 1960; amended effective July 1, 1978; October 1, 1988; April 6, 1998.]
III. PLEADINGS AND MOTIONS
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 types may be demanded. Every such
pleading shall be accompanied by a completed civil case information
statement in the form prescribed by the Supreme Court of Appeals.
(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. Denials shall fairly
meet the substance of the averments denied. When a pleader intends
in good faith to deny only a part or a qualification of an
averment, 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 alternately or hypothetically, either in one count or
defense or in separate counts or defenses. When two or more
statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
statements. A party may also state as many separate claims or
defenses as the party has 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 Pleadings. All pleadings shall be so
construed as to do substantial justice.
[Effective July 1, 1960; amended effective July 1, 1992; April 6,
1998.]
III. PLEADINGS AND MOTIONS
RULE 9. PLEADING SPECIAL MATTERS
(a) Capacity. It is not necessary to aver the capacity of a
party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity or the legal existence of an
organized association of persons that is made a party. 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, Negligence. 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. Negligence may also be averred generally.
(c) Conditions Precedent. In pleading the performance or
occurrence of conditions precedent, it is sufficient to aver
generally that all conditions precedent have been performed or have
occurred. A denial of performance or occurrence shall be made
specifically and with particularity.
(d) Official Document or Act. In pleading an official
document or official act it is sufficient to aver that the document
was issued or the act done in compliance with law.
(e) Judgment. In pleading a judgment or decision of a
domestic or foreign court, judicial or quasi-judicial tribunal, or
of a board or officer, it is sufficient to aver the judgment or
decision without setting forth matter showing jurisdiction to
render it.
(f) Time and Place. For the purpose of testing the
sufficiency of a pleading, averments of time and place are material
and shall be considered like all other averments of material
matter.
(g) Special Damage. When items of special damage are claimed, they shall be specifically stated.
(h) Eminent Domain. In proceedings to condemn real or
personal property pursuant to Rule 71A, pleadings shall state with
particularity: (1) A description of the property; and (2) the
purpose for which the property is to be used. Further, if the
proceeding is brought by a public utility, a copy of its
Certificate of Convenience and Necessity must be attached as an
exhibit to the complaint as a condition of maintaining the eminent
domain action.
[Effective July 1, 1960; amended effective April 6, 1998.]
III. PLEADINGS AND MOTIONS
RULE 10. FORM OF PLEADINGS
(a) Caption; Names of Parties. Every pleading shall contain
a caption setting forth the name of the court, the title of the
action, the file 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 an appropriate indication
of other parties.
(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.
[Effective July 1, 1960.]
III. PLEADINGS AND MOTIONS
RULE 11. SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS;
REPRESENTATIONS TO COURT; SANCTIONS
(a) Signature. Every pleading, motion and other paper shall
be signed by at least one attorney of record in the attorney's
individual name, or, if the party is not represented by an
attorney, shall be signed by the party. Each paper shall state the
signer's address and phone number, if any, and The West Virginia
State Bar identification number, if any. Except when otherwise
specifically provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. An unsigned paper shall be
stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.
(b) Representations to Court. By presenting to the court
whether by signing, filing, submitting, or later advocating) a
pleading, written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of the 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 or to cause unnecessary delay or needless increase in
the cost of litigation;
(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are likely
to have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity
to respond, the court determines that subdivision (b) has been
violated, the court may, subject to the conditions stated below,
impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for
the violation.
(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall
be made separately from other motions or requests and shall
describe the specific conduct alleged to violate subdivision (b).
It shall be served as provided in Rule 5, but shall not be filed
with or presented to the court unless, within 21 days after service
of the motion (or such other period as the court may prescribe),
the challenged paper, claim, defense, contention, allegation, or
denial is not withdrawn or appropriately corrected. If warranted,
the court may award to the party prevailing on the motion the
reasonable expenses and attorney's fees incurred in presenting or
opposing the motion. Absent exceptional circumstances, a law firm
shall be held jointly responsible for violations committed by its
partners, associates, and employees.
(B) On court's Initiative. On its own initiative, the court
may enter an order describing the specific conduct that appears to
violate subdivision (b) and directing an attorney, law firm, or
party to show cause why it has not violated subdivision (b) with
respect thereto.
(2) Nature of Sanction; Limitations. A sanction imposed for
violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct or comparable conduct by others
similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of
a nonmonetary nature, an order to pay a penalty into court, or, if
imposed on motion and warranted for effective deterrence, an order
directing payment to the movant of some or all of the reasonable
attorneys' fees and other expenses incurred as a direct result of
the violation.
(A) Monetary sanctions may not be awarded against a
represented party for a violation of subdivision (b)(2).
(B) Monetary sanctions may not be awarded on the court's
initiative unless the court issues its order to show cause before
a voluntary dismissal or settlement of the claims made by or
against the party which is, or whose attorneys are, to be
sanctioned.
(3) Order. When imposing sanctions, the court shall describe
the conduct determined to constitute a violation of this rule and
explain the basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions (a) through
(c) of this rule do not apply to discovery requests, responses,
objections, and motions that are subject to the provisions of Rules
26 through 37.
[Effective July 1, 1960; amended effective October 1, 1988; April
6, 1998.]
III. PLEADINGS AND MOTIONS
RULE 12. DEFENSES AND OBJECTIONS--WHEN AND HOW PRESENTED--BY
PLEADING OR MOTION--MOTION FOR JUDGMENT ON THE
PLEADINGS
(a) When Presented.
(1) A defendant shall serve an answer within 20 days after the
service of the summons, unless before the expiration of that period
the defendant files with the court and serves on the plaintiff a
notice that the defendant has a bona fide defense, and then an
answer shall be served within 30 days after the defendant was
served; except that when service of the summons is made on or
accepted on behalf of a defendant through or by an agent or
attorney in fact authorized by appointment or by statute to receive
or accept service on behalf of such defendant or when service of
process is made upon a defendant in the manner provided in Rule
4(e) or (f), the answer shall be served within 30 days after
service of the summons or not later than the day specified in the
order of publication. Every answer shall be accompanied by a
completed civil case information statement in the form prescribed
by the Supreme Court of Appeals.
(2) A party served with a pleading stating a cross-claim
against that party shall serve an answer thereto within 20 days
after being served. The plaintiff shall serve a reply to a
counterclaim in the answer within 20 days after service of the
answer or, if a reply is ordered by the court, within 20 days after
service of the order, unless the order otherwise directs.
(3) Unless a different time is fixed by court order, the
service of a motion permitted under this rule alters these periods
of time as follows:
(A) 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;
or
(B) if the court grants a motion for a more definite
statement, the responsive pleading shall be served within 10 days
after the service of the more definite statement.
(b) How Presented. Every defense, in law or fact, to a claim
for relief in any pleading, whether a claim, counterclaim,
cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by
motion: (1) lack of jurisdiction over the subject matter, (2) lack
of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process,
(6) failure to state a claim upon which relief can be granted, (7)
failure to join a party under 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.
(c) Motion for Judgment on the Pleadings. After the pleadings
are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings. If, on a motion for
judgment on the pleadings, matters outside the pleadings are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
(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 time as the court
may fix, the court may strike the pleading to which the motion was
directed or make such order as it deems just.
(f) Motion to Strike. Upon motion made by a party before
responding to a pleading or, if no responsive pleading is permitted
by these rules, upon motion made by a party within 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 this 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 a motion 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.
[Effective July 1, 1960; amended effective July 1, 1978; July 1,
1992; September 1, 1994; April 6, 1998.]
III. PLEADINGS AND MOTIONS
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 assert 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 asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant.
(h) Joinder of Additional Parties. Persons other than those
made parties to the original action may be made parties to a
counterclaim or cross-claim in accordance with the provisions of
Rules 19 and 20.
(i) Separate Trials; Separate Judgments. If the court orders
separate trials as provided in Rule 42(c), judgment on a
counterclaim or cross-claim may be rendered in accordance with the
terms of Rule 54(b) when the court has jurisdiction to do so, even
if the claims of the opposing party have been dismissed or
otherwise disposed of.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
III. PLEADINGS AND MOTIONS
RULE 14. THIRD-PARTY PRACTICE
(a) When Defendant May Bring in Third Party. At any time
after commencement of the action a defending party, as a
third-party plaintiff, may cause a summons and complaint to be
served upon a person not a party to the action who is or may be
liable to 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 defendant
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 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 a 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
III. PLEADINGS AND MOTIONS
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. An amendment of a pleading
relates back to the date of the original pleading when:
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action; or
(2) 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; or
(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing paragraph (2) is
satisfied and, within the period provided by Rule 4(k) for service
of the summons and complaint, the party to be brought in by
amendment (A) 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 (B) knew or should have known that, but
for a mistake concerning the identity of the proper party, the
action would have 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
III. PLEADINGS AND MOTIONS
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.
(b) Scheduling and Planning. Except in categories of actions
exempted by the Supreme Court of Appeals, the judge shall, after
consulting with the attorneys for the parties and any unrepresented
parties, by a scheduling conference, telephone, mail or other
suitable means, enter a scheduling order that limits the time:
(1) To join other parties and to amend the pleadings;
(2) To file and hear motions; and
(3) To complete discovery.
(The scheduling order also may include:
(4) The date or dates for conferences before trial, a final
pretrial conference, and trial; and
(5) Any other matters appropriate in the circumstances of the
case.
A schedule shall not be modified except by leave of the judge.
(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 Rule 702 of the West Virginia Rules of Evidence;
(5) The appropriateness and timing of summary adjudication
under Rule 56;
(6) The control and scheduling of discovery;
(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 commissioner or
master;
(9) The possibility of settlement or the use of extrajudicial
procedures to resolve the dispute;
(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) or a judgment on partial findings under Rule
52(c);
(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), and (D). In lieu of or in addition to any other
sanction, the judge may require the party or the attorney representing the party or both to pay 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.
[Effective July 1, 1960; amended effective October 1, 1988; July 1,
1992; April 6, 1998.]
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, bailee, trustee of an express trust, or
any other fiduciary, a party with whom or in whose name a contract
has been made for the benefit of another, or a party authorized by
law may sue in that person's own name without joining the party for
whose benefit the action is brought. When a law of the state so
provides, an action for the use or benefit of another shall be
brought in the name of the state or any political subdivision
thereof. 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) [Reserved].
(c) Infants, Incompetent Persons, or Convicts. Whenever an
infant, incompetent person, or convict has a representative, such
as a general guardian, curator, committee, conservator, or other
like fiduciary, the representative may sue or defend on behalf of
the infant, incompetent person, or convict. An infant, incompetent
person, or convict who does not have a duly appointed
representative may sue by a next friend or by a guardian ad litem.
The court or clerk shall appoint a discreet and competent attorney
at law as guardian ad litem for an infant, incompetent person, or
convict not otherwise represented in an action, or shall make such
other order as it deems proper for the protection of the infant,
incompetent person, or convict. A guardian ad litem is deemed a
party for purposes of service; failure to serve a guardian ad litem
in circumstances where service upon a party is required constitutes
failure to serve a party.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
IV. PARTIES
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, legal or equitable, 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
IV. PARTIES
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 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 so 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 subdivision (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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
IV. PARTIES
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
defendants will arise in the action. A plaintiff or defendant need
not be interested in obtaining or defending against all the relief
demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or
more defendants according to their respective liabilities.
(b) Separate Trials. The court may make such 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
IV. PARTIES
RULE 21. MISJOINDER AND NONJOINDER 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.
[Effective July 1, 1960.]
IV. PARTIES
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.
[Effective July 1, 1960; amended effective April 6, 1998.]
IV. PARTIES
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 refused to act
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common
to the members of the class predominate over any 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
findings 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 counsel.
(3) The judgment in an action maintained as a class action
under subdivision (b)(1) or (b)(2), whether or not favorable to the
class, shall include and describe those whom the court finds to be
members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to
the class, shall include and specify or describe those to whom the
notice provided in subdivision (c)(2) was directed, and who have
not requested exclusion, and whom the court finds to be members of
the class.
(4) When appropriate (A) an action may be brought or
maintained as a class action with respect to particular issues, or
(B) a class may be divided into subclasses and each subclass
treated as a class, and the provisions of this rule shall then be
construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions
to which this rule applies, the court may make appropriate orders:
(1) determining the course of proceedings or prescribing measures
to prevent undue repetition or complication in the presentation of
evidence or argument; (2) requiring, for the protection of the
members of the class or otherwise for the fair conduct of the
action, 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
IV. PARTIES
RULE 23.1 DERIVATIVE ACTIONS BY SHAREHOLDERS
In a derivative action brought by one or more shareholders or
members to enforce a right of a corporation or of an unincorporated
association, the corporation or association having failed to
enforce a right which may properly be asserted by it, the complaint
shall be verified and shall allege (1) that the plaintiff was a
shareholder or member at the time of the transaction of which the
plaintiff complains or that the plaintiff's share or membership
thereafter devolved on the plaintiff by operation of law, and (2)
that the action is not a collusive one to confer jurisdiction on a
court of the United States which it would not otherwise have. The
complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires
from the directors or comparable authority and, if necessary, from
the shareholders or members, and the reasons for the plaintiff's
failure to obtain the action or for not making the effort. The
derivative action may not be maintained if it appears that the
plaintiff does not fairly and adequately represent the interests of
the shareholders or members similarly situated in enforcing the
right of the corporation or association. The action shall not be
dismissed or compromised without the approval of the court, and
notice of the proposed dismissal or compromise shall be given to
shareholders or members in such manner as the court directs.
[Adopted effective April 6, 1998.]
IV. PARTIES
RULE 23.2 ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS
An action brought by or against the members of an
unincorporated association as a class by naming certain members as
representative parties may be maintained only if it appears that
the representative parties will fairly and adequately protect the
interests of the association and its members. In the conduct of
the action the court may make appropriate orders corresponding with
those described in Rule 23(d), and the procedure for dismissal or
compromise of the action shall correspond with that provided in
Rule 23(e).
[Adopted effective April 6, 1998.]
IV. PARTIES
RULE 25. SUBSTITUTION OF PARTIES
(a) Death.
(1) If a party dies and the claim is not thereby extinguished,
the court may order substitution of the proper parties. The motion
for substitution may be made by any party or by the successors or
representatives of the deceased party and, together with the notice
of hearing, shall be served on the parties as provided in 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.
(2) In the event of the death of one or more of the plaintiffs
or of one or more of the defendants in an action in which the right
sought to be enforced survives only to the surviving plaintiffs or
only against the surviving defendants, the action does not abate.
The death shall be suggested upon the record and the action shall
proceed in favor of or against the surviving parties.
(b) Incompetency; Convict. If a party becomes incompetent or
becomes a convict, 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) A public officer who sues or is sued in an official
capacity may be described as a party by the officer's official
title rather than by name; but the court may require the officer's
name to be added.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 26. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) Discovery Methods. Parties may obtain discovery by one or
more of the following methods: depositions upon oral examination
or written questions; written interrogatories; production of
documents or things or permission to enter upon land or other
property for inspection and other purposes; physical and mental
examination; 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. It is not ground for
objection that the information sought will be inadmissible at the
trial if the information sought appears reasonably calculated to
lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set
forth in subdivision (a) shall be limited by the court if it
determines that:
(A) The discovery sought is unreasonably cumulative or
duplicative or is obtainable from some other source that is more
convenient, less burdensome, or less expensive;
(B) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(C) The discovery is unduly burdensome or expensive, taking
into account the needs of the case, the amount in controversy,
limitations on the parties' resources, and the importance of the
issues at stake in the litigation.
The court may act upon its own initiative after reasonable
notice or pursuant to a motion under subdivision (c).
(2) Insurance Agreements. A party may obtain discovery of the
existence and contents of any insurance agreement under which any
person carrying on an insurance business may be liable to satisfy
part or all of a judgment which may be entered in the action or to
indemnify or reimburse for payments made to satisfy the judgment.
Information concerning the insurance agreement is not by reason of
disclosure admissible in evidence at trial. For purposes of this
paragraph, an application for insurance shall not be treated as
part of an insurance agreement.
(3) Trial Preparation: Materials. Subject to the provisions
of subdivision (b)(4) of this rule, a party may obtain discovery of
documents and tangible things otherwise discoverable under
subdivision (b)(1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for that other party's representative (including the 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. Discovery of facts known and
opinions held by experts, otherwise discoverable under the
provisions of subdivision (b)(1) of this rule and acquired or
developed in anticipation of litigation or for trial, may be
obtained only as follows:
(A)(i) A party may through interrogatories require any other
party to identify each person whom the other party expects to call
as an expert witness at trial, to state the subject matter on which
the expert is expected to testify, and to state the substance of
the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.
(ii) A party may depose any person who has been identified as
an expert whose opinions may be presented at trial.
(B) A party may discover facts known or opinions held by an
expert who has been retained or specially employed by another party
in anticipation of litigation or preparation for trial and who is
not expected to be called as a witness at trial, only as provided
in 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 subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this
rule; and
(ii) With respect to discovery obtained under subdivision
(b)(4)(A)(ii) of this rule the court may require, and with respect
to discovery obtained under subdivision (b)(4)(B) of this rule the
court shall require, the party seeking discovery to pay the other
party a fair portion of the fees and expenses reasonably incurred
by the latter party in obtaining facts and opinions from the
expert.
(c) Protective Orders. Upon motion by a party or by the
person from whom discovery is sought, including 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 circuit 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 discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only by a method of
discovery other than that selected by the party seeking discovery;
(4) That certain matters not be inquired into or that the
scope of the discovery be limited to certain matters;
(5) That discovery be conducted with 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 disclosed or be
disclosed only in a designated way;
(8) That the parties simultaneously file specified documents
or information enclosed in sealed envelopes to be open as directed
by the court.
If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just,
order that any party or person provide or permit discovery. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred
in relation to the motion.
(d) Timing and 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 Responses. A party who has responded
to a request for discovery with a response that was complete when
made is under no duty to supplement the response to include
information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement that party's response with respect to any question directly addressed
to:
(A) The identity and location of persons having knowledge of
discoverable matters, and
(B) The identity of each person expected to be called as an
expert witness at trial, the subject matter on which the expert is
expected to testify, and the substance of the expert's testimony.
(2) A party is under a duty seasonably to amend a prior
response if the party obtains information upon the basis of which:
(A) The party knows that the response was incorrect when made,
or,
(B) The party knows that the response though correct when made
is no longer true and the circumstances are such that a failure to
amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of
the court, agreement of the parties, or at any time prior to trial
through new requests for supplementation of prior responses.
If supplementation is not made as required by this Rule, the
court, upon motion or upon its own initiative, may impose upon the
person who failed to make the supplementation an appropriate
sanction as provided for under Rule 37.
(f) Discovery Conference. At any time after commencement of
an action the court may direct the attorneys for the parties to
appear before it personally or by telephone for a conference on the
subject of discovery. (The court shall do so upon motion by the attorney for any party if the motion includes:
(1) A statement of the issues as they then appear;
(2) A proposed plan and schedule of discovery;
(3) Any limitations proposed to be placed on discovery;
(4) Any other proposed orders with respect to discovery; and
(5) A statement showing that the attorney making the motion
has made a reasonable effort to reach agreement with opposing
attorneys on the matters set forth in the motion. Each party and
the party's attorney are under a duty to participate in good faith
in the framing of a discovery plan if a plan is proposed by the
attorney for any party. Notice of the motion shall be served on
all parties. Objections or additions to matters set forth in the
motion shall be served not later than 10 days after service of the
motion.
Following the discovery conference, the court shall enter an
order tentatively identifying the issues for discovery purposes;
establishing a plan and schedule for discovery; setting limitations
on discovery, if any; and, determining such other matters,
including the allocation of expenses, as are necessary for the
proper management of discovery in the action. An order may be
altered or amended whenever justice so requires.
Subject to the right of a party who properly moves for a
discovery conference to prompt convening of the conference, the
court may combine the discovery conference with a pretrial
conference authorized by Rule 16.
(g) Signing of Discovery Requests, Responses, and Objections.
Every request for discovery or response or objection thereto made
by a party represented by an attorney shall be signed by at least
one attorney of record in the attorney's individual name, whose
address shall be stated. An unrepresented party shall sign the
request, response, or objection and state the party's address. The
signature of the attorney or party constitutes a certification that
the attorney or party has read the request, response, or objection,
and that to the best of the attorney's or party's knowledge,
information, and belief formed after a reasonable inquiry it is:
(1) Consistent with these rules and warranted by existing law
or a good faith argument for the extension, modification, or
reversal of existing law;
(2) Not interposed for any improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of
litigation; and
(3) Not unreasonable or unduly burdensome or expensive, given
the needs of the case, the discovery already had in the case, the
amount in controversy, and the importance of the issues at stake in
the litigation.
If a request, response, or objection is not signed, it shall
be stricken unless it is signed promptly after the omission is
called to the attention of the party making the request, response
or objection and a party shall not be obligated to take any action
with respect to it until it is signed.
If without substantial justification a certification is made
in violation of the rule, the court, upon motion or upon its own
initiative, may impose upon the person who made the certification,
the party on whose behalf the request, response, or objection is
made, or both, an appropriate sanction, which may include an order
to pay the amount of the reasonable expenses incurred because of
the violation, including a reasonable attorney's fee.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 27. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
(a) Before Action.
(1) Petition. A person who desires to perpetuate his own
testimony or that of another person regarding any matter may file
a verified petition in any court wherein a complaint might be filed
as to such matter or in any court having general civil jurisdiction
in the county where any expected adverse party resides.
The petition shall be entitled in the name of the petitioner
and shall show: 1, That the petitioner expects that the
petitioner, or the petitioner's personal representative,
distributees, heirs, legatees, or devisees will be a party to an
action cognizable in any court 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 a
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
in the manner provided in Rule 4(d) for service of process; 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. If
any expected adverse party is a minor, incompetent, or convict the
provisions of Rule 17(c) apply.
(3) Order and Examination. If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the
persons whose depositions may be taken and specifying the subject
matter of the examination and whether the depositions shall be
taken upon oral examination or written interrogatories.
The depositions may then be taken in accordance with these
rules; and the court may make orders of the character provided for
by 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 deposition 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 a federal district court, it may be used
in any action involving the same subject matter subsequently
brought in any court of this State, in accordance with the
provisions of Rule 32(a).
(b) Pending Appeal. If an appeal has been granted from a
judgment of any court or before the granting of an appeal if the
time for filing a petition for an appeal has not expired, the court
in which the judgment was rendered may allow the taking of the
depositions of witnesses to perpetuate their testimony for use in
the event of further proceedings in such court. In such case the party who desires to perpetuate the testimony may make a motion for
leave to take the depositions, upon the same notice and service
thereof as if the action were pending. 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 further proceedings in the action in the same manner and
under the same conditions as are prescribed in these rules for
depositions taken in actions pending in the court.
(c) Perpetuation by Action. This rule does not limit the
power of a court to entertain an action to perpetuate testimony.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
(a) Within the United States. Within the United States or
within a territory or insular possession subject to the dominion of
the United States, depositions shall be taken before an officer
authorized to administer oaths by the laws of the United States or of this State or of the place where the examination is held, or
before a person appointed by the court in which the action is
pending. A person so appointed has power to administer oaths and
take testimony. The term officer as used in Rules 30, 31, and 32
includes a person appointed by the court or designated by the
parties under Rule 29.
(b) In Foreign Countries. Depositions may be taken in a
foreign country (1) pursuant to any applicable treaty or
convention, or (2) pursuant to a letter of request (whether or not
captioned a letter rogatory), or (3) 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 of this State, or (4) 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. A commission or a letter of request 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 of
request that the taking of the deposition in any other manner is
impracticable or inconvenient; and both a commission and a letter
of request 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 of request may be
addressed "To the Appropriate Authority in [here name the
country]." When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be
captioned in the form prescribed by that treaty or convention.
Evidence obtained in response to a letter of request 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
State under these rules.
(c) Disqualification for Interest. No deposition shall be
taken before a person who is a relative or employee or attorney or
counsel of any of the parties, or is a relative or employee of such
attorney or counsel, or is financially interested in the action.
(d) Depositions for Use in Foreign Jurisdictions. Whenever
the deposition of any person is to be taken in this State pursuant
to the laws of another state or of the United States or of another
country for use in proceedings there, any court having general
civil jurisdiction in the county wherein the deponent resides or is
employed or transacts his business in person may, upon petition,
make an order directing issuance of a subpoena as provided in Rule
45, in aid of the taking of the deposition.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE
(a) Deposition Procedure. Unless the court orders otherwise,
the parties may agree that depositions may be taken before any
person, at any time or place, upon any notice, and in any manner
and when so taken may be used like other depositions.
(b) Modification of Scheduling Order and Discovery Procedures
or Limitations. Unless the Court orders otherwise, a scheduling
order may be modified only as follows:
(1) Time limits set forth in a scheduling order for the
joinder of other parties, amendment of pleadings, filing of
motions, and completion of discovery, and any date or dates set
forth therein for conferences before trial, a final pretrial
conference, and for trial may be modified for cause by order of the
court.
(2) Subject to paragraph (3), stipulations to modify discovery
procedures or limitations will be valid and will be enforced as if
established by order of the court, provided the stipulations are in
writing, signed by the parties making them or their counsel, timely
filed with the clerk of the court, and do not affect the time
limits specified in subparagraph (1).
(3) A private agreement to extend discovery beyond the
discovery completion date as set in a scheduling order will be
respected by the court if the extension does not affect the other
time limits specified in subparagraph (1). A discovery dispute
which arises from such a private agreement to extend discovery
beyond a discovery completion date need not, however, be resolved by the court.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 30. DEPOSITIONS UPON ORAL EXAMINATION
(a) When Depositions May Be Taken; When Leave Required. After
commencement of the action, any party may take the testimony of any
person, including a party, by deposition upon oral examination.
Leave of court, granted with or without notice, must be obtained
only if the plaintiff seeks to take a deposition prior to the
expiration of 30 days after service of the summons and complaint
upon any defendant or service made under Rule 4(e), except that
leave is not required (1) if a defendant has served a notice of
taking deposition or otherwise sought discovery, or (2) if special
notice is given as provided in subdivision (b)(2) of this rule.
The attendance of witnesses may be compelled by subpoena as
provided in Rule 45. The deposition of a person confined in prison
may be taken only by leave of court on such terms as the court
prescribes.
(b) Notice of Examination: General Requirements; Special
Notice; 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) Leave of court is not required for the taking of a
deposition by plaintiff if the notice A) states that the person to
be examined is expected to leave the State and be unavailable for
examination in this State unless deposed before expiration of the
30-day period, and (B) sets forth facts to support the statement.
The plaintiff's attorney shall sign the notice, and the attorney's
signature constitutes a certification by the attorney that to the
best of the attorney's knowledge, information, and belief the
statement and supporting facts are true. The sanctions provided by
Rule 11 are applicable to the certification.
If a party shows that when the party was served with notice
under this subdivision (b)(2) the party was unable through the
exercise of diligence to obtain counsel to represent the party at
the taking of the deposition, the deposition may not be used
against the party.
(3) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the
court orders otherwise, it may be recorded by sound,
sound-and-visual, or stenographic means, and the party taking the
deposition shall bear the cost of the recording. Any party may
arrange for a transcription to be made from the recording of a
deposition taken by nonstenographic means.
(4) With prior notice to the deponent and other parties, any
party may designate another method to record the deponent's
testimony in addition to the method specified by the person taking
the deposition. The additional record or transcript shall be made
at that party's expense unless the court otherwise orders.
(5) Unless otherwise agreed by the parties, a deposition shall
be conducted before an officer appointed or designated under Rule
28 and shall begin with a statement on the record by the officer
that includes (A) the officer's name and business address; (B) the
date, time, and place of the deposition; (C) the name of the
deponent; (D) the administration of the oath or affirmation to the
deponent; and (E) an identification of all persons present. If the
deposition is recorded other than stenographically, the officer
shall repeat items A) through (C) at the beginning to each unit of
recorded tape or other recording medium. The appearance or
demeanor of the deponents or attorneys shall not be distorted
through camera or sound-recording techniques. At the end of the
deposition, the officer shall state on the record that the
deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and
the exhibits, or concerning other pertinent matters.
(6) 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.
(7) A party may in a 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 non-party 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 subdivision (b)(6) does not preclude taking a deposition by
any other procedure authorized in these rules.
(8) 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 the purposes of this rule and Rules
28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by
telephone is taken in the state and at the place where the deponent
is to answer questions propounded to the deponent.
(c) Examination and Cross-Examination; Record of Examination;
Oath; Objections. Examination and cross-examination of witnesses
may proceed as permitted at the trial under the provisions of the
West Virginia Rules of Evidence. The officer before whom the
deposition is to be taken shall put the witness on oath and shall
personally, or by someone acting under the officer's direction and
in the officer's presence, record the testimony of the witness.
The testimony shall be taken stenographically or recorded by any
other means ordered in accordance with subdivision (b)(3) of this
rule.
(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. 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).
(2) By order or local rule, the court may limit the time
permitted for the conduct of a deposition, but shall allow
additional time consistent with Rule 26(b)(1) if needed for a fair
examination of the deponent or if the deponent to another party
impedes or delays the examination. If the court finds such 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 the taking of the deposition, on motion
of a party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party,
the court in which the action is pending or the circuit court of
the county 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 after being notified by the officer
that the transcript or recording is available in which to review
the transcript or recording 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 subdivision (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. Unless
otherwise ordered by the court, the officer shall securely seal the
deposition in an envelope or package endorsed with the title of the
action and marked "Deposition of [here insert name of witness]" and
shall promptly file it with the court in which the action is
pending or send it 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 that person may:
(A) Offer copies to be marked for identification and annexed
to the depositions 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 ordered otherwise 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
deposition to any party or to the deponent.
(3) The party taking the deposition shall give prompt notice
of its filing to all other parties.
(g) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another party
attends in person or by attorney pursuant to the notice, the court
may order the party giving the notice to pay to such other party
the reasonable expenses incurred by 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 the 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 attorney
in attending, including reasonable attorney's fees.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
V. DEPOSITIONS AND DISCOVERY
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 if the person to be
examined is confined in prison or if, without the agreement or
written stipulation of the parties, the person to be examined has
already been deposed in the case under Rule 30.
(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 14 days after the notice and written questions are
served, a party may serve cross questions upon all other parties.
Within 7 days after being served with cross questions, a party may
serve redirect questions upon all other parties. Within 7 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
V. DEPOSITIONS AND DISCOVERY
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 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 West Virginia Rules of
Evidence.
(2) The deposition of a party or of anyone who at the time of
taking the deposition was an officer, director, or managing agent,
or a person designated under 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 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.
A deposition shall not be used against a party if the party,
having received fewer 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 parts 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 this 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 West Virginia Rules of Evidence.
(b) Objections to Admissibility. Subject to the provisions of
Rule 28(b) 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) Form of Presentation. Except as otherwise directed by the
court, a party offering deposition testimony pursuant to this rule
may offer it in stenographic or nonstenographic form, but, if in
nonstenographic form, the party shall also provide the court with
a transcript of the portions so offered. On request of any party
in a case tried before a jury, deposition testimony offered other
than for impeachment purposes shall be presented in nonstenographic
form, if available, unless the court for good cause orders
otherwise.
(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 5 days after service of the
last questions authorized.
(4) As to Completion and Return of Deposition. Errors and
irregularities in the manner in which the testimony is transcribed
or the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under
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.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; January 1, 1989; April 6, 1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 33. INTERROGATORIES TO PARTIES
(a) Availability. --Without leave of court or written
stipulation, any party may serve upon any other party written
interrogatories, not exceeding 40 in number including all discrete
subparts, to be answered by the party served or, if the party
served is a public or private corporation or a partnership or
association or governmental agency, by any officer or agent, who
shall furnish such information as is available to the party. Leave
to serve additional interrogatories shall be granted to the extent
consistent with the principles of Rules 26(b).
Interrogatories may, without leave of court, be served upon
the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that
party.
(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, except that a
defendant may serve answers or objections within 45 days after the
service of the summons and complaint upon that defendant. 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 pre-trial 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 of the party upon whom the interrogatory has been served or
from an examination, audit or inspection of such business records,
including a compilation, abstract or summary thereof, 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 may be ascertained.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998; October 4, 2001, effective October 4, 2001.]
V. DEPOSITIONS AND DISCOVERY
RULE 34. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND
FOR INSPECTION AND OTHER PURPOSES
(a) Scope. Any party may serve on any other party a request
(1) to produce and permit the party making the request, or someone
acting on the requestor's behalf, to inspect and copy, any
designated documents (including writings, drawings, graphs, charts,
photographs, phono-records, and other data compilations from which
information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form),
or to inspect and copy, test, or sample any tangible things which
constitute or contain matters within the scope of 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 may, without leave of court, be
served upon the plaintiff after commencement of the action and upon
any other party with or after service of the summons and complaint
upon that party. 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 party upon whom the request is served shall serve a
written response within 30 days after the service of the request,
except that a defendant may serve a response within 45 days after
service of the summons and complaint upon that defendant. 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, in which
event the reasons for objection shall be stated. If objection is
made to part of an item or category, the part shall be specified
and inspection permitted of the remaining parts. 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.
A party who produces documents for inspections shall produce
them as they are kept in the usual course of business or shall
organize and label them to correspond with the categories in the
request.
(c) Persons Not Parties. A person not a party to the action
may be compelled to produce documents and things or to submit to an
inspection provided in Rule 45.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
V. DEPOSITIONS AND DISCOVERY
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 examining physician or other
qualified expert 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 such
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 the physician or other qualified expert fails
or refuses to make a report the court may exclude the examiner's
testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party
examined waives any privilege 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
V. DEPOSITIONS AND DISCOVERY
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) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including
the genuineness of any documents described in the request. Copies
of documents shall be served with the request unless they have been
or are otherwise furnished or made available for inspection and
copying. The request may, without leave of court, be served upon
the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that
party.
Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30
days after service of the request, or within such shorter or longer
time as the court may allow 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, but, unless the court shortens the time,
a defendant shall not be required to serve answers or objections
before the expiration of 45 days after service of the summons and
complaint upon him. 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 pre-trial 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 pre-trial order, the
court may permit withdrawal or amendment when the presentation of
the merits of the action will be subserved thereby and the party
who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice that party in maintaining
that party's 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
V. DEPOSITIONS AND DISCOVERY
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) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including
the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been
or are otherwise furnished or made available for inspection and
copying. The request may, without leave of court, be served upon
the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that
party.
Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30
days after service of the request, or within such shorter or longer
time as the court may allow 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, but, unless the court shortens the time,
a defendant shall not be required to serve answers or objections
before the expiration of 45 days after service of the summons and
complaint upon him. 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 pre-trial 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 pre-trial order, the
court may permit withdrawal or amendment when the presentation of
the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice that party in maintaining
that party's 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
V. DEPOSITIONS AND DISCOVERY
RULE 37. FAILURE TO COOPERATE IN DISCOVERY; SANCTIONS.
(a) Motion for Order Compelling Discovery. A party, upon
reasonable notice to other parties and all persons affected
thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party
may be made to the court in which the action is pending, or, on
matters relating to a deposition, to the circuit court of the
county where the deposition is being taken. An application for an
order to a person who is not a party shall be made to the circuit
court of the county where the discovery is being, or is to be,
taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under Rule 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 in good faith has conferred or attempted to confer with the
person or party failing to make the discovery in an effort to
secure the information or action 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.
If the court denies the motion in whole or in part, it may
make such protective order as it would have been empowered to make
on a motion made pursuant to Rule 26(c).
(3) Evasive or Incomplete Answer or Response. For purposes of
this subdivision, an evasive or incomplete answer or response is to
be treated as a failure to answer or respond.
(4) Expenses and Sanctions.
(A) If the motion is granted, 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 obtaining the order, 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
discovery without court action, or that the opposing party's
answer, 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 advising the motion or both of them to pay to the
party or deponent who opposed the motion the reasonable expenses
incurred in opposing the motion, including attorney's fees, unless
the court finds that the making of the motion was substantially
justified or that other circumstances make an award of expenses
unjust.
(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 Where Deposition is Taken. If a
deponent fails to be sworn or to answer a question after being
directed to do so by the circuit court of the county 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 Rules 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 supplement as provided for under Rule
26(e), or if a party fails to obey an order entered under Rule
26(f), 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 a 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 subparagraphs A), (B), and (C) of this
paragraph, 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.
(c) Expenses on Failure to Admit. If a party fails to admit
the genuineness of any document or the truth of any matter as
requested under 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 (1) the
request was held objectionable pursuant to Rule 36(a), or (2) the
admission sought was of no substantial importance, or (3) the party
failing to admit had reasonable ground to believe that the party
might prevail on the matter, or (4) there was other good reason for
the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or
a person designated under 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 subparagraphs A), (B), and (C) of
subdivision (b)(2) of this rule. Any motion specifying a failure
under paragraphs (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 subdivision may not be
excused on the ground that the discovery sought is objectionable
unless the party failing to act has applied for a protective order as provided by Rule 26(c).
(e) Failure to Participate in the Framing of a Discovery Plan.
If a party or a party's attorney fails to participate in good faith
in the framing of a discovery plan by agreement as is 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 failure.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
VI. TRIALS
RULE 38. JURY TRIAL OF RIGHT
(a) Right Preserved. The right of trial by jury as declared
by the Constitution or statutes 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 (1) 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, and (2) filing the demand as
required by Rule 5(d). Such demand may be indorsed upon a pleading
of the party.
(c) Same: 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. Subject to the provisions of Rule 39(b), the
failure of a party to serve and file a demand as required by this
rule constitutes a waiver by the party of trial by jury. A demand
for trial by jury made as herein provided, or a timely motion or
request pursuant to Rule 39(b), may not be withdrawn without the
consent of the parties.
[Effective July 1, 1960; amended effective April 6, 1998.]
VI. TRIALS
RULE 39. TRIAL BY JURY OR BY THE COURT
(a) By Jury. When trial by jury has been demanded as provided
in Rule 38 or a timely motion or request therefor has been made
under subdivision (b) of this rule, the action shall be designated
upon the docket as a jury action. The trial of all issues so
demanded or requested 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 and entered in
the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a
right of trial by jury of some or all of those issues does not
exist under the 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 upon motion or of its own initiative may at any time 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 or of its own
initiative may try any issue with an advisory jury or, with the
consent of the 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.
[Effective July 1, 1960; amended effective April 6, 1998.]
VI. TRIALS
RULE 40. ASSIGNMENT OF CASES FOR TRIAL
The circuit courts shall provide by rule for the placing of
actions upon the trial calendar (1) without request of the parties,
or (2) upon request of a party and notice to the other parties, or
(3) in such other manner as the courts deem expedient. Such rules
shall be promulgated in accordance with Rule 83. Precedence shall
be given to actions entitled thereto by the Constitution or statutes of the State.
[Effective July 1, 1960; amended effective April 6, 1998.]
VI. TRIALS
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 order of court (i)
by filing a notice of dismissal at any time before service by the
adverse party of an answer or of a motion for summary judgment,
whichever first occurs, or (ii) by filing a stipulation of
dismissal signed by all parties who have appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation,
the dismissal is without prejudice, except that a notice of
dismissal operates as an adjudication upon the merits when filed by
a plaintiff who has once dismissed in any court of the United
States or of this or any other state 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.
(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. (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 or for improper venue, operates
as an adjudication upon the merits.
Any court in which is pending an action wherein for more than
one year there has been no order or proceeding, or wherein the
plaintiff is delinquent in the payment of accrued court costs, may,
in its discretion, order such action to be struck from its docket;
and it shall thereby be discontinued. The court may direct that
such order be published in such newspaper as the court may name.
The court may, on motion, reinstate on its trial docket any action
dismissed under this rule, and set aside any nonsuit that may be
entered by reason of the nonappearance of the plaintiff, within
three terms after entry of the order of dismissal or nonsuit; but
an order of reinstatement shall not be entered until the accrued
costs are paid.
Before a court may dismiss an action under Rule 41(b), notice
and an opportunity to be heard must be given to all parties of
record.
(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) Cost 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.
[Effective July 1, 1960; amended effective July 1, 1992; April 6,
1998.]
VI. TRIALS
RULE 42. CONSOLIDATION; SEPARATE TRIALS
(a) Consolidation of Actions in Same Court. 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. An action
is pending before the court within the meaning of this subdivision
if it is pending before the court on an appeal from a magistrate.
(b) Consolidation of Actions in Different Courts. When two or
more actions arising out of the same transaction or occurrence are
pending before different courts or before a court and a magistrate,
the court in which the first such action was commenced shall order
all the actions transferred to it or any other court in which any
such action is pending. The court to which the actions are
transferred may order a joint hearing or trial of any or all of the
matters in issue in any of the actions; it may order all the
actions consolidated; and it may make such other orders concerning
proceedings therein as may tend to avoid unnecessary costs or
delay. Whenever one of the actions is pending before a magistrate
and a judgment is rendered by the magistrate for $15.00 or less,
such judgment of the magistrate shall in no manner affect the other
action pending in the court; the doctrine of res judicata shall not
apply to such judgment, nor shall any such judgment of the
magistrate be admissible in evidence in the trial of the other
action pending in the court.
(c) 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 Article III,
Section 13 of the West Virginia Constitution or as given by a
statute of this State.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VI. TRIALS
RULE 43. TAKING OF TESTIMONY
(a) Form. In all trials the testimony of witnesses shall be
taken in open court, unless otherwise provided by a statute or by
these rules, the West Virginia Rules of Evidence, or other rules
adopted by the Supreme Court of Appeals.
(b) [Abrogated].
(c) [Abrogated].
(d) Affirmation in Lieu of Oath. Whenever under these rules
an oath is required to be taken, a solemn affirmation may be
accepted in lieu thereof.
(e) Evidence on Motions. When a motion is based on facts not
appearing of record the court may hear the matter on affidavits
presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or
deposition.
(f) Interpreters. The court may appoint an interpreter of its
own selection and may fix the interpreter's reasonable
compensation. The compensation shall be paid out of funds provided
by law or by one or more of the parties as the court may direct and
may be taxed ultimately as costs, in the discretion of the court.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
VI. TRIALS
RULE 44. PROOF OF OFFICIAL RECORD
(a) Authentication.
(1) Domestic. An official record kept within the United
States, or any state, district, commonwealth, or within a territory
subject to the administrative or judicial jurisdiction of the
United States, or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by
a copy attested by the officer having the legal custody of the
record, or by the officer's deputy, and accompanied by a
certificate that such officer has the custody. The certificate may
be made by a judge of a court of record of the district or
political subdivision in which the record is kept, authenticated by
the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or
political subdivision in which the record is kept, authenticated by
the seal of the officer's office.
(2) Foreign. A foreign official record, or an entry therein,
when admissible for any purpose, may be evidenced by an official
publication thereof; or a copy thereof, attested by a person
authorized to make the attestation, and accompanied by a final
certification as to the genuineness of the signature and official
position (i) of the attesting person, or (ii) of any foreign
official whose certificate of genuineness of signature and official
position relates to the attestation or is in a chain of
certificates of genuineness of signature and official position
relating to the attestation. A final certification may be made by
a secretary of embassy or legation, consul general, consul, vice
consul, or consular agent of the United States, or a diplomatic or
consular official of the foreign country assigned or accredited to
the United States. If reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of the
documents, the court may, for good cause shown, (i) admit an
attested copy without final certification, or (ii) permit the
foreign official record to be evidenced by an attested summary with
or without a final certification. The final certification is
unnecessary if the record and the attestation are certified as
provided in a treaty or convention to which the United States and
the foreign country in which the official record is located are parties.
(b) Lack of Record. A written statement that after diligent
search no record or entry of a specified tenor is found to exist in
the records designated by the statement, authenticated as provided
in subdivision (a)(1) of this rule in the case of a domestic
record, or complying with the requirements of subdivision (a)(2) of
this rule for a summary in the case of a foreign record, is
admissible as evidence that the records contain no such record or
entry.
(c) Other Proof. This rule does not prevent the proof of
official records or of entry or lack of entry therein by any other
method authorized by law.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VI. TRIALS
RULE 44.1 DETERMINATION OF FOREIGN LAW
A party who intends to raise an issue concerning the law of a
foreign country shall give notice by pleadings or other reasonable
written notice. The court, in determining foreign law, may
consider any relevant material or source, including testimony,
whether or not submitted by a party or admissible under the West
Virginia Rules of Evidence. The court's determination shall be
treated as a ruling on a question of law.
[Adopted effective July 1, 1978; amended effective April 6, 1998.]
VI. TRIALS
RULE 45. SUBPOENA
(a) Form; Issuance.
(1) Every subpoena shall be in a form which substantially
complies with Form 33. Civil Case Subpoena, as set forth in the
Appendix of Forms of the Rules of Civil Procedure. Every subpoena
shall run in the name of the State, and shall
(A) state the name of the court from which it is issued;
(B) state the title of the action, the name of the court in
which it is pending, and its civil action number;
(C) command each person to whom it is directed to attend and
give testimony or to produce and permit inspection and copying of
designated books, documents or tangible things in the possession,
custody or control of that person, or to permit inspection of
premises, at a time and place therein specified; and
(D) set forth the text of subdivisions (c), (d) and (e) of
this rule.
A command to produce evidence or to permit inspection may be joined
with a command to appear at trial or hearing or at deposition, or
may be issued separately.
(2) A subpoena commanding attendance at a trial or hearing
shall issue from the court for the circuit in which the hearing or
trial is to be held. A subpoena for attendance at a deposition shall issue from the court for the circuit designated by the notice
of deposition as the circuit in which the deposition is to be
taken. If separate from a subpoena commanding the attendance of a
person, a subpoena for production or inspection shall issue from
the court for the circuit in which the production or inspection is
to be made.
(3) The clerk shall issue a subpoena, signed but otherwise in
blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and
sign a subpoena.
(b) Service.
(1) A subpoena may be served by any 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 in the same manner provided
for service of process under Rule 4(d)(1)A) and by tendering to
that person if demanded the fees for one day's attendance and the
mileage allowed by law. When the subpoena is issued on behalf of
the State or an officer or agency thereof, fees and mileage need
not be tendered. Prior notice of any commanded production of
documents and things or inspection of premises before trial shall
be served on each party in the manner prescribed by Rule 5(b).
(2) A subpoena may be served at any place within the State.
(3) Proof of service when necessary shall be made by filing
with the clerk of the court by which the subpoena is issued a
statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
(c) Place of the Examination. A deponent may be required to
attend an examination only in the county in which the deponent
resides or is employed or transacts business in person, or at such
other convenient place as is fixed by an order of court.
(d) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and
service of a subpoena shall take reasonable steps to avoid imposing
undue burden or expense on a person subject to that subpoena. The
court on behalf of which the subpoena was issued may enforce this
duty and impose upon the party or attorney in breach of this duty
an appropriate sanction, which may include, but is not limited to,
lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and
copying of designated books, papers, documents or tangible things,
or inspection of premises need not appear in person at the place of
production or inspection unless commanded to appear for deposition,
hearing, or trial.
(B) Subject to paragraph (e)(2) of this rule, a person
commanded to produce and permit inspection and copying may, within
14 days after service of the subpoena or before the time specified
for compliance if such time is less than 14 days after service,
serve upon the party or attorney designated in the subpoena written
objection to inspection or copying of any or all of the designated
materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the
materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued. If objection has been
made, the party serving the subpoena may, upon notice to the person
commanded to produce, move at any time for an order to compel the
production. Such an order to compel production shall protect any
person who is not a party or an officer of a party from significant
expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court by which a subpoena was issued
shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person to travel for a deposition to a place
other than the county in which that person resides or is employed
or transacts business in person or at a placed fixed by order of
the court;
(iii) requires disclosure of privileged or other protected
matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other
confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or
information not describing specific events or occurrences in
dispute and resulting from the expert's study made not at the
request of any party.
The court may, to protect a person subject to or affected by
the subpoena, quash or modify the subpoena or, if the party in
whose behalf the subpoena is issued shows a substantial need for
the testimony or material that cannot be otherwise met without
undue hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated, the court may order
appearance or production only upon specified conditions.
(e) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents
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 demand.
(2) When information subject to a subpoena is withheld on a
claim that it is privileged or subject to protection as trial
preparation materials, the claim shall be made expressly and shall
be supported by a description of the nature of the documents,
communications, or things not produced that is sufficient to enable
the demanding party to contest the claim.
(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. An adequate cause for
failure to obey exists when a subpoena purports to require a
non-party deponent to attend at a place not within the limits
provided by subdivision (c) of this rule.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998; May 14, 1998.]
VI. TRIALS
RULE 46. EXCEPTIONS UNNECESSARY
Formal exceptions to rulings or orders of the court are
unnecessary; but for all purposes for which an exception has
heretofore been necessary it is sufficient that a party, at the
time the ruling or order of the court is made or sought, makes
known to the court the action which 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.
[Effective July 1, 1960; amended effective April 6, 1998.]
VI. TRIALS
RULE 47. SELECTION OF JURORS
(a) Examination of Jurors. 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.
(b) Jury Selection. Unless the court directs that a jury
shall consist of a greater number, a jury shall consist of six
persons. The plaintiff and the defendant shall each have two
preemptory challenges which shall be exercised one at a time,
alternately, beginning with the plaintiff. Several defendants or
several plaintiffs may be considered as a single party for the
purpose of exercising challenges, or the court may allow additional
peremptory challenges and permit them to be exercised separately or
jointly.
(c) Alternate Jurors. The court may direct that not more than
six jurors in addition to the regular jury be called and impanelled
to sit as alternate jurors. Alternate jurors in the order in which
they are called shall replace jurors who become or are found to be
unable or disqualified to perform their duties. Alternate jurors
shall be drawn in the same manner, shall have the same
qualifications, 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 regular
jurors. Each side is entitled to 1 additional peremptory challenge
if 1 to 3 alternate jurors are to be impanelled and 2 additional
peremptory challenges if 4 to 6 alternate jurors are to be
impanelled. The additional peremptory challenges may be used
against an alternate juror only, and the other peremptory
challenges allowed by law shall not be used against an alternate juror.
(d) Excuse. The court may for good cause excuse a juror from
service during trial or deliberation.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VI. TRIALS
RULE 48. JURIES OF LESS THAN SIX; MAJORITY VERDICT
The parties may stipulate that the jury shall consist of any
number fewer than six 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.
[Effective July 1, 1960; amended effective April 6, 1998.]
VI. TRIALS
RULE 49. SPECIAL VERDICTS AND INTERROGATORIES
(a) 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.
(b) 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 court shall direct the entry of the appropriate
judgment upon the verdict and answers. When the answers are
consistent with each other but one or more is inconsistent with the
general verdict, the court may direct the entry of judgment in
accordance with the answers, notwithstanding the general verdict or 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, the court shall not direct
the entry of judgment but may return the jury for further
consideration of its answers and verdict or may order a new trial.
[Effective July 1, 1960; amended effective April 6, 1998.]
VI. TRIALS
RULE 50. JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE
MOTION FOR NEW TRIAL; CONDITIONAL RULINGS
(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on
an issue and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue, the court
may determine the issue against that party and may grant a motion
for judgment as a matter of law against that party with respect to
a claim or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any
time before submission of the case to the jury. Such a motion
shall specify the judgment sought and the law and the facts on
which the moving party is entitled to the judgment.
(b) Renewal of Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant
a motion for judgment as a matter of law made at the close of all
the evidence, the court is considered to have submitted the action
to the jury subject to the court's later deciding the legal
questions raised by the motion. The movant may renew the request
for judgment as a matter of law by filing a motion no later than 10
days after entry of judgment and may alternatively request a new
trial or join a motion for a new trial under Rule 59. In ruling on
a renewed motion, the court may:
(1) If a verdict was returned:
(A) allow the judgment to stand,
(B) order a new trial, or
(C) direct entry of judgment as a matter of law; or
(2) if no verdict was returned:
(A) order a new trial, or
(B) direct entry of judgment as a matter of law.
(c) Granting Renewed Motion for Judgment as a Matter of Law;
Conditional Rulings; New Trial Motion.
(1) If the renewed motion for judgment, as a matter of law 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 against whom judgment as a matter of law has
been rendered may file a motion for a new trial pursuant to Rule 59
not later than 10 days after entry of the judgment.
(d) Same: Denial of Motion for Judgment as a Matter of Law.
If the motion for judgment as a matter of law 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. 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.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VI. TRIALS
RULE 51. INSTRUCTIONS TO JURY; OBJECTIONS
Either before or at the close of the evidence, any party may
file written requests that the court instruct the jury on the law
as set forth in the requests, and the court shall inform counsel of
its proposed action upon the requests before it instructs the jury.
The court shall instruct the jury before the arguments to the jury
are begun, and the instructions given by the court, whether in the
form of a connected charge or otherwise, shall be in writing and
shall not comment upon the evidence; except that supplemental
written instructions may be given later, after opportunity to
object thereto has been accorded to the parties. The court may
show the written instructions to the jury and permit the jury to
take the written instructions to the jury room. No party may
assign as error the giving or the refusal to give an instruction
unless the party objects thereto before the arguments to the jury
are begun, stating distinctly, as to any given instruction, the
matter to which the party objects and the grounds of the party's
objection; but the court or any appellate court, may, in the
interest of justice, notice plain error in the giving or refusal to
give an instruction, whether or not it has been made the subject of
objection. Opportunity shall be given to make objection to the
giving or refusal to give an instruction out of the hearing of the
jury.
[Effective July 1, 1960; amended effective January 1, 1989; April
6, 1998.]
VI. TRIALS
RULE 52. FINDINGS BY THE COURT
(a) Effect. In all actions tried upon the facts without a
jury or with an advisory jury, the court shall find the facts
specially and state separately its conclusions of law thereon, and
judgment shall be entered pursuant to Rule 58; and in granting or
refusing preliminary injunctions the court shall similarly set
forth the findings of fact and conclusions of law which constitute
the grounds of its action. Requests for findings are not necessary
for purposes of review. Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses. The
findings of a commissioner, to the extent that the court adopts
them, shall be considered as the findings of the court. It will be
sufficient if the findings of fact and conclusions of law are
stated orally and recorded in open court following the close of the
evidence or appear in an opinion or memorandum of decision filed by
the court. Findings of fact and conclusions of law are unnecessary
on decisions of motions under Rules 12 or 56 or any other motion
except as provided in subdivision (c) of this rule.
(b) Amendment. Upon a party's motion filed not later than 10
days after entry of judgment the court may amend its findings or
make additional findings and may amend the judgment accordingly.
The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the
court without a jury, the question of the sufficiency of the
evidence to support the findings may thereafter be raised whether
or not the party raising the question has made in the trial court
an objection to such findings or has made a motion to amend them or
a motion for judgment.
(c) Judgment on Partial Findings. If during a trial without
a jury a party has been fully heard on an issue and the court finds
against the party on that issue, the court may enter judgment as a
matter of law against that party with respect to a claim or defense
that cannot under the controlling law be maintained or defeated
without a favorable finding on that issue, or the court may decline
to render any judgment until the close of all the evidence. Such
a judgment shall be supported by findings of fact and conclusions
of law as required by subdivision (a) of this rule.
[Effective July 1, 1960; amended effective July 1, 1978; October 1,
1988; April 6, 1998.]
VI. TRIALS
RULE 53. COMMISSIONERS
Commissioners in Chancery shall henceforth be known as
"Commissioners." The practice respecting the appointment of such
commissioners and references to them, and respecting their powers
and duties, and the powers and duties of courts to hold hearings upon their reports, shall be in accordance with the practice
heretofore followed in this State. In all other respects, the
action in which a commissioner is appointed, is governed by these
rules.
[Effective July 1, 1960.]
VII. JUDGMENT
RULE 54. JUDGMENTS; COSTS
(a) Definition; Form. "Judgment" as used in these rules
includes a decree and any order from which an appeal lies. A
judgment shall not contain a recital of pleadings, the report of a
commissioner, or the record of prior proceedings.
(b) Judgment Upon Multiple Claims or Involving Multiple
Parties. When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the court
may direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an
express direction for the entry of judgment. In the absence of
such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.
(c) Demand for Judgment. A judgment by default shall not be
different in kind from or exceed in amount that prayed for in the
demand for judgment. Except as to a party against whom a judgment
is entered by default, every final judgment shall grant the relief
to which the party in whose favor it is rendered is entitled, even
if the party has not demanded such relief in the party's pleadings.
(d) Cost. Except when express provision therefor is made
either in a statute of this State or in these rules, costs shall be
allowed as of course to the prevailing party unless the court
otherwise directs; but costs against the State, its officers, and
agencies shall be imposed only to the extent permitted by law. The
clerk shall tax the costs within 10 days after judgment is entered,
and shall send a copy of the bill of costs to each party affected
thereby. On motion by any party served within 10 days after
receipt of the bill of costs, the action of the clerk may be
reviewed by the court.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VII. JUDGMENT
RULE 55. DEFAULT
(a) Entry. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules, and that fact is made to appear
by affidavit or otherwise, the clerk shall enter the party's
default.
(b) Judgment. Judgment by Default May be Entered as Follows:
(1) By the Clerk. When the plaintiff's claim against a
defendant is for a sum certain or for a sum which can by
computation be made certain, the court upon request of the
plaintiff and upon affidavit of the amount due shall direct the
entry of judgment by the clerk for that amount and costs against
the defendant, if the defendant has been defaulted for failure to
appear and is not an infant, incompetent person, or convict.
(2) By the Court. In all other cases the party entitled to a
judgment by default shall apply to the court therefor; but no
judgment by default shall be entered against an infant, incompetent
person, or convict unless represented in the action by a guardian,
guardian ad litem, committee, conservator, curator, or other
representative who has appeared therein. If the party against whom
judgment by default is sought has appeared in the action, the party
(or, if appearing by representative, the party's representative)
shall be served with written notice of the application for judgment
at least 3 days prior to the hearing on such application. If, in
order to enable the court to enter judgment or to carry it into
effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court
may conduct such hearings or order such references as it deems
necessary.
(c) Setting Aside Default. For good cause shown the court may
set aside an entry of default and, if a judgment by default has
been entered, may likewise set it aside in accordance with Rule
60(b).
(d) Plaintiffs, Counterclaimants, Cross-Claimants. The
provisions of this rule apply whether the party entitled to the
judgment by default is a plaintiff, a third-party plaintiff, or a
party who has pleaded a cross-claim or counterclaim. In all cases
a judgment by default is subject to the limitations of Rule 54(c).
(e) Entry of Judgment. The provisions of Rule 58 apply to
default judgments.
[Effective July 1, 1960; amended effective April 6, 1998.]
VII. JUDGMENT
RULE 56. SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory judgment
may, at any time after the expiration of 30 days from the
commencement of the action or after service of a motion for summary
judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or
any part thereof.
(b) For Defending Party. A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory judgment
is sought may, at any time, move with or without supporting
affidavits for a summary judgment in the party's favor as to all or
any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be
served at least 10 days before the time fixed for the hearing. The
adverse party prior to the day of hearing may serve opposing
affidavits. The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. A summary judgment,
interlocutory in character, may be rendered on the issue of
liability alone although there is a genuine issue as to the amount
of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under
this rule judgment is not rendered upon the whole case or for all
the relief asked and a trial is necessary, the court at the hearing
of the motion, by examining the pleadings and the evidence before
it and by interrogating counsel, shall if practicable ascertain
what material facts exist without substantial controversy and what
material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and
directing such further proceedings in the action as are just. Upon
the trial of the action the facts so specified shall be deemed
established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith. The court
may permit affidavits to be supplemented or opposed by depositions,
answers to interrogatories, or further affidavits. When a motion
for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for
trial. If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse party.
(f) When Affidavits Are Unavailable. Should it appear from
the affidavits of a party opposing the motion that the party cannot
for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the
satisfaction of the court at any time that any of the affidavits
presented pursuant to this rule are presented in bad faith or
solely for the purpose of delay, the court shall forthwith order
the party employing them to pay to the other party the amount of
the reasonable expenses which the filing of the affidavits caused
the other party to incur, including reasonable attorney's fees, and
any offending party or attorney may be adjudged guilty of contempt.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VII. JUDGMENT
RULE 57. DECLARATORY JUDGMENTS
The procedure for obtaining a declaratory judgment pursuant to
the West Virginia Uniform Declaratory Judgments Act, Code chapter
55, article 13, shall be in accordance with these rules, and the
right to trial by jury may be demanded under the circumstances and
in the manner provided in Rules 38 and 39. The existence of
another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate. A party may demand declaratory relief or coercive relief or both in one action.
Further relief based on a declaratory judgment may be granted in
the declaratory action or upon petition to any court in which the
declaratory action might have been instituted. The court may order
a speedy hearing of an action for a declaratory judgment and may
advance it on the calendar.
[Effective July 1, 1960.]
VII. JUDGMENT
RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS
(a) Grounds. A new trial may be granted to all or any of the
parties and on all or part of the issues (1) in an action in which
there has been a trial by jury, for any of the reasons for which
new trials have heretofore been granted in actions at law; and (2)
in an action tried without a jury, for any of the reasons for which
rehearings have heretofore been granted in suits in equity. On a
motion for a new trial in an action tried without a jury, the court
may open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make
new findings and conclusions, and direct the entry of a new
judgment.
(b) Time for Motion. Any motion for a new trial shall be
filed not later than 10 days after the entry of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be filed with the motion. The
opposing party has 10 days after service to file opposing
affidavits, but that period may be extended for up to 20 days,
either by the court for good cause or by the parties' written
stipulation. The court may permit reply affidavits.
(d) On Court's Initiative; Notice; Specifying Grounds. No
later than 10 days after entry of judgment the court, on its own,
may order a new trial for any reason that would justify granting
one on a party's motion. After giving the parties notice and an
opportunity to be heard, the court may grant a timely motion for a
new trial for a reason not stated in the motion. When granting a
new trial on its own initiative or for a reason not stated in a
motion, the court shall specify the grounds in its order.
(e) Motion to Alter or Amend a Judgment. Any motion to alter
or amend the judgment shall be filed not later than 10 days after
entry of the judgment.
(f) Effect of Failure to Move for New Trial. If a party fails
to make a timely motion for a new trial, after a trial by jury in
which judgment as a matter of law has not been rendered by the
court, the party is deemed to have waived all errors occurring
during the trial which the party might have assigned as grounds in
support of such motion; provided that if a party has made a motion
under Rule 50(b) for judgment in accordance with the party's motion
for judgment as a matter of law and such motion is denied, the
party's failure to move for a new trial is not a waiver of error in the court's denying or failing to grant such motion for judgment as
a matter of law.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VII. JUDGMENT
RULE 60. RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes. Clerical mistakes in judgments, orders
or other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time of
its own initiative or on the motion of any party and after such
notice, if any, as the court orders. During the pendency of an
appeal, such mistakes may be so corrected before the appeal is
docketed in the appellate court, and thereafter while the appeal is
pending may be so corrected with leave of the appellate court.
(b) Mistakes; Inadvertence; Excusable Neglect; Unavoidable
Cause; Newly Discovered Evidence; Fraud, etc. (On motion and upon
such terms as are just, the court may relieve a party or a party's
legal representative from a final judgment, order, or proceeding
for the following reasons: (1) Mistake, inadvertence, surprise,
excusable neglect, or unavoidable cause; (2) newly discovered
evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason
justifying relief from the operation of the judgment. The motion
shall be made within a reasonable time, and for reasons (1), (2),
and (3) not more than one year after the judgment, order, or
proceeding was entered or taken. A motion under this subdivision
(b) does not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment,
order or proceeding, or to grant statutory relief in the same
action to a defendant not served with a summons in that action, or
to set aside a judgment for fraud upon the court. Writs of coram
nobis, coram vobis, petitions for rehearing, bills of review and
bills in the nature of a bill of review, are abolished, and the
procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action.
[Effective July 1, 1960; amended effective April 6, 1998.]
VII. JUDGMENT
RULE 61. HARMLESS ERROR
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done
or omitted by the court or by any of the parties is ground for
granting a new trial or for setting aside a verdict or for
vacating, modifying or otherwise disturbing a judgment or order,
unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.
[Effective July 1, 1960.]
VII. JUDGMENT
RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(a) Automatic Stay; Exceptions. Except as stated herein, no
writ of execution shall issue upon a judgment nor shall other
proceedings be taken for its enforcement until the expiration of 10
days after its entry, unless otherwise ordered by the court, nor
after that time pending the disposition of a motion for judgment as
a matter of law made pursuant to Rule 50 or of a motion for a new
trial made pursuant to Rule 59(a). Pending disposition of such
motions and for good cause shown, the court may prescribe such
conditions as are necessary to secure the benefit of the judgment
to the party in whose favor it is entered. Unless otherwise
ordered by the court, neither an interlocutory order in any action
nor a final judgment awarding an injunction shall be stayed after its entry.
(b) Discretionary Stay. In its discretion and on such
conditions for the security of the adverse party as are proper, the
court may stay the execution of or any proceedings to enforce a
judgment pending the disposition of a motion to alter or amend a
judgment made pursuant to Rule 59(e), or of a motion for relief
from a judgment or order made pursuant to Rule 60, or of a motion
for amendment to the findings or for additional findings made
pursuant to Rule 52(b).
(c) to (g) [Reserved].
(h) Stay of Judgment as to Multiple Claims or Multiple
Parties. When a court has ordered a final judgment under the
conditions stated in Rule 54(b), the court may stay enforcement of
that judgment until the entering of a subsequent judgment or
judgments and may prescribe such conditions as are necessary to
secure the benefit thereof to the party in whose favor the judgment
is entered.
(i) Stay of Judgment Pending Application for Appeal. On
motion and on such conditions for the security of the adverse party
as are proper, the court may stay the issuance of execution upon a
judgment and any other proceedings for its enforcement for such
reasonable time, to be specified by the court in the stay order, as
will enable the moving party to present to an appellate court a
petition for appeal from the judgment.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VII. JUDGMENT
RULE 63. DISABILITY OF A JUDGE AFTER TRIAL
If at any time after a trial or hearing has been commenced the
judge is unable to proceed, any other judge may proceed with the
matter upon certifying familiarity with the record and determining
that the proceedings in the case may be completed without prejudice
to the parties. In a hearing or trial without a jury, the
successor judge shall at the request of a party recall any witness
whose testimony is material and disputed and who is available to
testify again without undue burden. The successor judge may also
recall any other witness.
[Effective July 1, 1960; amended effective April 6, 1998.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 65. INJUNCTIONS
(a) Preliminary Injunction.
(1) Notice.--No preliminary injunction shall be issued without
notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits.--Before or
after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action
on the merits to be advanced and consolidated with the hearing of
the application. Even when this consolidation is not ordered, any
evidence received upon an application for a preliminary injunction
which would be admissible upon the trial on the merits becomes part
of the record on the trial and need not be repeated upon the trial.
This subdivision (a)(2) shall be so construed and applied as to
save to the parties any rights they may have to trial by jury.
(b) Temporary Restraining Order; Notice; Hearing; Duration.
A temporary restraining order may be granted without written or
oral notice to the adverse party or that party's attorney only if
(1) it clearly appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable injury, loss,
or damage will result to the applicant before the adverse party or
that party's attorney can be heard in opposition, and (2) the
applicant's attorney certifies to the court in writing the efforts,
if any, which have been made to give the notice and the reasons
supporting the claim that notice should not be required. Every
temporary restraining order granted without notice shall be
indorsed with the date and hour of issuance; shall be filed
forthwith in the clerk's office and entered of record; shall define
the injury and state why it is irreparable and why the order was
granted without notice; and shall expire by its terms within such
time after entry, not to exceed 10 days, as the court fixes, unless
within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the
order is directed consents that it may be extended for a longer
period. The reasons for the extension shall be entered of record.
In case a temporary restraining order is granted without notice,
the motion for a preliminary injunction shall be set down for
hearing at the earliest possible time and takes precedence of all
matters except older matters of the same character; and when the
motion comes on for hearing the party who obtained the temporary
restraining order shall proceed with the application for a
preliminary injunction and, if the party does not do so, the court
shall dissolve the temporary restraining order. On 2 days' notice
to the party who obtained the temporary restraining order without
notice or on such shorter notice to that party as the court may
prescribe, the adverse party may appear and move its dissolution or
modification and in that event the court shall proceed to hear and
determine such motion as expeditiously as the ends of justice
require.
(c) Security. No restraining order or preliminary injunction
shall issue except upon the giving of security by the applicant, in
such sum as the court in its discretion deems proper, for the
payment of such costs and damages as may be incurred or suffered by
any party who is found to have been wrongfully enjoined or
restrained. No such security shall be required of the United
States, the State of West Virginia and its political subdivisions
or of an officer or agency thereof.
The provisions of Rule 65.1 apply to a surety upon a bond or
undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order. Every
order granting an injunction and every restraining order shall set
forth the reasons for its issuance; shall be specific in terms;
shall describe in reasonable detail, and not by reference to the
complaint or other document, the act or acts sought to be
restrained; and is binding only upon the parties to the action,
their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them who
receive actual notice of the order by personal service or
otherwise.
[Effective July 1, 1960; amended effective April 6, 1998.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 65.1 SECURITY: PROCEEDINGS AGAINST SURETIES
Whenever these rules require or permit the giving of security
by a party, and security is given in the form of a bond or
stipulation or other undertaking with one or more sureties, each
surety submits to the jurisdiction of the court and irrevocably
appoints the clerk of the court as the surety's agent upon whom any
papers affecting the surety's liability on the bond or undertaking
may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and
such notice of the motion as the court prescribes may be served on
the clerk of the court, who shall forthwith mail copies to the
sureties if their addresses are known.
[Adopted effective July 1, 1978; amended effective April 6, 1998.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 66. RECEIVERS
An action wherein a receiver has been appointed shall not be
dismissed except by order of the court. The practice respecting
the appointment of receivers and the administration of estates by
them or by other similar officers appointed by the court shall be
in accordance with the practice heretofore followed in this State.
In all other respects, the action in which the appointment of a
receiver is sought or which is brought by or against a receiver is
governed by these rules.
[Effective July 1, 1960.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 67. DEPOSIT IN COURT
Except as otherwise provided in Rule 68(b), in an action in which any part of the relief sought is a judgment for a sum of
money or the disposition of a sum of money or the disposition of
any other thing capable of delivery, a party, upon notice to every
other party and by leave of court, may deposit with the court all
or any part of such sum or thing, whether or not that party claims
all or any part of the sum or thing. The party making the deposit
shall serve the order permitting deposit on the clerk of the court.
Money paid into court under this rule shall be deposited and
withdrawn in accordance with applicable statutes and with orders of
the court entered in the action. The fund shall be deposited in a
federally insured interest-bearing account or invested in an
interest-bearing instrument approved by the court.
[Effective July 1, 1960; amended effective October 1, 1988.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 68. OFFER OF JUDGMENT; PAYMENT INTO COURT
(a) Offer of Judgment. At any time more than 10 days before
the trial begins, a party defending against a claim may serve upon
the adverse party an offer to allow judgment to be taken against
the defending party for the money or property or to the effect
specified in the defending party's offer, with costs then accrued.
If within 10 days after the service of the offer the adverse party
serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of
service thereof and thereupon the court shall direct entry of the
judgment by the clerk.
(b) Payment Into Court. A party defending against a claim may
pay into court by depositing with the clerk a sum of money on
account of what is claimed, or by way of compensation or amends,
and plead that the party is not indebted to any greater amount to
the party making the claim or that the party making the claim has
not suffered greater damages. The party making the claim may (1)
accept the tender and have judgment for the party's costs, (2)
reject the tender, or (3) accept the tender as part payment only
and proceed with the party's action on the sole issue of the amount
of damages.
(c) Offer Not Accepted. An offer under subdivision (a) or (b)
above not accepted in full satisfaction shall be deemed withdrawn,
i.e., shall not be disclosed to the jury, and evidence thereof is
not admissible except in a proceeding to determine costs. If the
judgment finally obtained by the offeree is not more favorable than
the offer, the offeree must pay the costs incurred after the making
of the offer. The fact that an offer is made but not accepted, or
accepted only as part payment, does not preclude a subsequent
offer.
(d) Amount or Extent of Liability. When the liability of one
party to another has been determined by verdict or order of
judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may
make an offer of judgment, which shall have the same effect as an
offer made before trial if it is served within a reasonable time
not less than 10 days prior to the commencement of hearings to
determine the amount or extent of liability.
[Effective July 1, 1960; amended effective July 1, 1978; April 6,
1998.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 69. EXECUTIONS AND OTHER FINAL PROCESS; PROCEEDINGS IN AID
THEREOF
(a) For Payment of Money. Process to enforce a judgment for
the payment of money shall be a writ of execution, a writ of
suggestee execution and such other writs as are provided by law.
The procedure on execution and other such final process, in
proceedings supplementary to and in aid of a judgment, and in
proceedings on and in aid of execution or such other final process
shall be in accordance with the practice and procedure prescribed
by the laws of the State existing at the time the remedy is sought,
subject to the following qualifications: (1) A writ of execution
shall be made returnable not less than 30 days nor more than 90
days after issuance, as directed by the person procuring issuance
of the writ; and (2) an answer to a summons issued in a suggestion proceeding shall be served upon the plaintiff within 20 days after
service of the summons; and (3) a return on a writ of suggestee
execution shall be made forthwith on the expiration of one year
after issuance of the writ.
(b) For Possession of Property. When any judgment or order is
for the delivery of possession of property, the party entitled to
the benefit of such judgment or order may have a writ of possession
upon application to the clerk, which shall be forthwith executed
and a return on such writ made within 20 days after issuance of the
writ.
[Effective July 1, 1960; amended effective April 6, 1998.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 70. JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE
If a judgment directs a party to execute a conveyance of land
or to deliver deeds or other documents or to perform any other
specific act and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of
the disobedient party by some other person appointed by the court
as a special commissioner and the act when so done has like effect
as if done by the party. On application of the party entitled to
performance, the clerk shall issue a writ of attachment or
sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper
cases adjudge the party in contempt. If real or personal property
is within the state, the court in lieu of directing a conveyance
thereof may enter a judgment divesting the title of any party and
vesting it in others and such judgment has the effect of a
conveyance executed in due form of law.
[Effective July 1, 1960.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES
When an order is made in favor of a person who is not a party
to the action, that person may enforce obedience to the order by
the same process as if a party; and, when obedience to an order may
be lawfully enforced against a person who is not a party, that
person is liable to the same process for enforcing obedience to the
order as if a party.
[Effective July 1, 1960; amended effective April 6, 1998.]
VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
RULE 71A. EMINENT DOMAIN
(a) Scope of Rule. Eminent domain proceedings in the circuit courts are governed by these rules of civil procedure.
(b) Jury trials.--A jury in an eminent domain proceeding in
circuit court shall consist of twelve freeholders who shall meet
the requirements of W. Va. Code, 54-2-10.
[Adopted effective April 6, 1998; amended effective October 4,
2001.]
VII. PROVISIONAL AND FINAL REMEDIES
AND SPECIAL PROCEEDINGS
RULE 71B. EXTRAORDINARY WRITS
(a) Applicability of Rules. The West Virginia Rules of Civil
Procedure govern the procedure for the application for, and
issuance of, extraordinary writs.
(b) Joinder of Claims in Different Writs. A plaintiff may
join a demand for relief which encompass different types of writs
and other types of relief.
(c) Complaint.
(1) Caption. The complaint shall contain a caption as
provided in Rule 10(a) except that the plaintiff shall name as
defendants the agencies, entities, or individuals of the State of
West Virginia to which the relief shall be directed.
(2) Contents. The complaint shall contain a short and plain
statement of the authority for the writ demanded.
(d) Appearance or Answer.
(1) Right to Relief Conceded. If a defendant agency, entity,
or individual concedes the appropriates of the writ requested, that
defendant may serve notice of the concession and the court shall
enter a writ granting appropriate relief and may substitute the
concession for findings of fact on the need for and the
appropriateness of the relief demanded if justice requires.
(2) Answer. If a defendant agency, entity, or individual
contests the pleintiffs' right to the writ demanded, the defendant
shall answer within the time and in the form specified by the
applicable provisions of this rule.
(3) Default. If a defendant agency, entity, or individual
fails to answer or otherwise appear, the court shall declare the
defendant in default pursuant to Rule 55(a). The court may not
enter default judgment pursuant to Rule 55(b) but shall hold a
hearing or hearings on the relief demanded and award a writ or
writs as justice requires.
(4) Jurisdiction and Venue Unaffected. Jurisdiction and venue
requirements for writ proceedings are unaffected by this rule.
[Adopted effective April 6, 1998.]
IX. APPEALS
RULE 72. RUNNING OF TIME FOR APPEAL
The full time for filing a petition for appeal commences to
run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or
denying a motion for judgment under Rule 50(b); or granting or
denying a motion under Rule 52(b) to amend or make additional
findings of fact, whether or not an alteration of the judgment
would be required if the motion were granted; or granting or
denying a motion under Rule 59 to alter or amend the judgment; or
granting or denying a motion for a new trial under Rule 59.
[Effective July 1, 1960.]
IX. APPEALS
RULE 73. THE RECORD ON PETITION
(a) Composition and Designation of the Record on Petition. At
the time of the filing of the petition for appeal, the petitioner
shall designate by itemization to the clerk of the circuit court
such pleadings, orders and exhibits, in accordance with Rule 4(c)
of the Rules of Appellate Procedure, to enable the Supreme Court of
Appeals to decide the matters arising in the petition. If the
petitioner desires, the petitioner may cause to be prepared,
pursuant to paragraph (b) of this rule, a transcript of such part
of the proceedings not already on file as the petitioner deems
necessary for inclusion in the record, or in lieu of filing all or
part of the transcript of testimony, the petitioner may file under
Rule 4A of the Rules of Appellate Procedure, in which event the
petitioner may rely on the facts stated in the petitioner's petition.
(b) Procedure for Requesting, Preparing, and Filing of
Transcript. The procedure for requesting, preparing, and filing of
transcripts shall be governed by Appendix B to the Rules of
Appellate Procedure.
[Adopted effective July 1, 1990; amended effective January 1, 1996;
April 6, 1998; October 26, 1998.]
IX. APPEALS
RULES 74. [RESERVED]
IX. APPEALS
RULES 75. [RESERVED]
IX. APPEALS
RULES 76. [RESERVED]
X. COURTS AND CLERKS
RULE 77. COURTS AND CLERKS
(a) Courts Always Open. The courts shall be deemed always
open for the purpose of filing any pleading or other proper paper,
of issuing and returning mesne and final process, and of making and
directing all motions, orders, and rules.
(b) Trials and Hearings; Orders in Chambers. Unless otherwise
provided by a statute, by these rules, or by other rules adopted by
the Supreme Court of Appeals, all trials upon the merits shall be conducted in open court and so far as convenient in a regular
courtroom. All other acts or proceedings may be done or conducted
by a judge in chambers, without the attendance of the clerk or
other court officials and at any place either within or without the
circuit; but no hearing, other than one ex parte, shall be
conducted outside the circuit if timely objection to doing so is
made by any of the parties affected thereby.
(c) Clerk's Office and Orders by Clerk. The clerk's office
with the clerk or a deputy in attendance shall be open during
business hours on all days except Sundays and legal holidays, as
defined in Rule 6(a). All motions and applications in the clerk's
office for issuing mesne process, for issuing final process to
enforce and execute judgments, and for other proceedings which do
not require allowance or order of the court are grantable of course
by the clerk; but the clerk's action may be suspended or altered or
rescinded by the court upon cause shown.
(d) Notice of Orders or Judgments. Immediately upon the entry
of an order or judgment the clerk, except as to parties who appear
of record to have had notice thereof, shall serve by mail a notice
of the entry in the manner provided for in Rule 5 upon every party
affected thereby who is not in default for failure to appear, and
shall make a note of the mailing in the docket. Such mailing is
sufficient notice for all purposes for which notice of the entry of
an order is required by these rules; but any party may in addition
serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk
does not affect the time to appeal or relieve or authorize the
court to relieve a party for failure to appeal within the time
allowed.
(e) Waiver of Fees and Costs for Indigents.
(1) Filing of affidavit of indigency. A person seeking waiver
of fees, costs, or security, pursuant to Chapter 59, Article 2,
Section 1 of the Code of West Virginia, shall execute before the
clerk or a deputy an affidavit prescribed by the chief justice of
the Supreme Court of Appeals, which shall be kept confidential in
divorce and domestic violence proceedings. An additional affidavit
of indigency shall be filed whenever the financial condition of the
person no longer conforms to the financial guidelines established
by the chief justice of the Supreme Court of Appeals for
determining indigency or whenever an order has been entered
directing the filing of a new affidavit.
(2) Review of Affidavit of Indigency. If it appears from the
affidavit that the person meets the financial guidelines, the clerk
shall perform the service requested in conjunction with the
affidavit. If it subsequently appears to the court that the person
did not meet the financial guidelines, the person shall be ordered
to pay the required fees, costs, or security, or the court may
enter an appropriate remedial order. If it appears from the
affidavit that the person does not meet the financial guidelines,
the clerk shall inform the person that the service will not be performed without the payment of the appropriate fees, costs or
security, and that the person may request review of the clerk's
determination by the court. If the person requests review of the
clerk's determination, the clerk shall immediately forward a copy
of the affidavit to the court. Upon receipt of the affidavit, the
court shall, within 7 days, either approve the affidavit,
disapprove the affidavit, instruct the person to provide additional
information, or schedule an ex parte hearing to determine
indigency.
(3) Effect of Filing. The filing of an affidavit of indigency
shall be deemed to toll any applicable statute of limitations or
other time requirement. This rule does not govern the appointment
of counsel or the payment of attorney fees.
[Effective July 1, 1960; amended effective September 1, 1993; April
6, 1998.]
X. COURTS AND CLERKS
RULE 78. MOTION DAY
Unless local conditions make it impracticable, each court
shall establish regular times and places, at intervals sufficiently
frequent for the prompt dispatch of business, at which motions
requiring notice and hearing may be heard and disposed of; but the
judge at any time or place and on such notice, if any, as the judge
considers reasonable may make orders for the advancement, conduct, and hearing of actions. A duly elected special judge may serve on
motion day the same as at other times.
To expedite its business, the court may make provision by rule
or order for the submission and determination of motions without
oral hearing upon brief written statements of reasons in support
and opposition.
[Effective July 1, 1960; amended effective April 6, 1998.]
X. COURTS AND CLERKS
RULE 79. BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIES THEREIN
(a) Civil Docket. The clerk shall keep a book known as "civil
docket" of such form and style as may be prescribed by the Supreme
Court of Appeals, and shall enter therein each civil action to
which these rules are made applicable. Actions shall be assigned
consecutive file numbers. The file number of each action shall be
noted on the folio of the docket whereon the first entry of the
action is made. All papers filed with the clerk, all process
issued and returns made thereon, all appearances, orders, verdicts,
and judgments shall be entered chronologically in the civil docket
on the folio assigned to the action and shall be marked with its
file number. These entries shall be brief but shall show the
nature of each paper filed or writ issued and the substance of each
order or judgment of the court and of the returns showing execution
of process. The entry of an order or judgment shall show the date the entry is made. When in an action trial by jury has been
properly demanded or ordered the clerk shall note the word "jury"
on the folio assigned to that action.
(b) Civil Judgments and Orders. The clerk shall keep, in such
form and manner as the Supreme Court of Appeals may prescribe, a
correct copy of every final judgment or appealable order, or order
affecting title to or lien upon real or personal property, and any
other order which the court may direct to be kept.
(c) Indices; Calendars. Suitable indices of the civil docket
and of every civil judgment and order shall be kept by the clerk
under the direction of the court. There shall be prepared under
the direction of the court calendars of all actions ready for
trial, which shall distinguish "jury actions" from "court actions."
(d) Other Books and Records of the Clerk. The clerk shall
also keep such other books and records as may be required from time
to time by the court or by the Supreme Court of Appeals.
[Effective July 1, 1960; amended effective September 1, 1995; April
6, 1998.]
X. COURTS AND CLERKS
RULE 80. MAKING TRANSCRIPT OR STATEMENT OF EVIDENCE PART OF THE
RECORD; AUTHENTICATION THEREOF, ETC.
(a) When Transcript of Stenographically Reported Proceedings
Part of Record. When the proceedings had and testimony taken at a hearing or trial before the court are stenographically or
mechanically reported by the official court or other authorized
reporter, a duly certified transcript thereof becomes a part of the
record of the action when it is filed with the court during the
pendency of the civil action or at any time afterward. When the
proceedings had and testimony taken at a hearing before a
commissioner are stenographically or mechanically reported by the
official court or other authorized reporter, a duly certified
transcript thereof becomes a part of the record of the action if it
is filed with the court before the action is submitted to the court
for disposition of the report of the commissioner.
(b) How Transcript Certified. A transcript of the proceedings
had and testimony taken at a hearing or trial shall be certified by
the official court or other authorized reporter to be an accurate
transcript of the official's or authorized reporter's
stenographically or mechanically recorded report of the proceedings
had and testimony taken at the hearing or trial, and shall state
whether the transcript includes all or a part only of the
proceedings had and testimony taken at such a hearing or trial; no
other or further authentication is necessary. A transcript so
certified by the report shall be deemed prima facie a correct
statement of the proceedings had and testimony taken at any hearing
or trial.
(c) Notice of Filing Transcript. When a transcript of the
proceedings had and testimony taken at a trial is filed with the court, the party causing it to be filed shall promptly give notice
thereof to all other parties.
(d) Correcting the Transcript. On motion served by any party
and therein assigning error or omission in any part of any
transcript of the proceedings had and testimony taken at a hearing
or trial, the court shall settle all differences arising as to
whether such transcript truly discloses what occurred at the
hearing or trial and shall direct that the transcript be corrected
and revised in the respects designated by the court, so as to make
it conform to the whole truth.
(e) Use of Statement of Evidence in Lieu of Transcript. In
the event a stenographic or mechanical report of the proceedings
had and testimony taken at a hearing or trial before the court was
not made or in the event a reporter's stenographic or mechanical
record thereof has become lost or a transcript thereof is not
obtainable, any party to the action may prepare a statement of the
proceedings from the best available means, including the party's
recollection, for use instead of a transcript thereof. The
statement shall be served upon all other adverse parties within a
reasonable time after the hearing or trial, and the adverse parties
may serve objections or amendments thereto within 10 days after
service of the statement upon them. Thereupon the statement, with
the objections or proposed amendments, shall be submitted to the
court for settlement and approval and when and as settled and
approved such statement becomes a part of the record when it is signed by the judge and filed with the court.
(f) Bills and Certificates of Exception Abolished. Bills and
certificates of exception are abolished.
(g) Transcript as Evidence. Wherever the testimony of a
witness at a hearing or trial which was stenographically or
mechanically reported is admissible in evidence at a later hearing
or trial or at a hearing or trial of another action, it may be
proved by the transcript thereof duly certified by the official
court reporter or other authorized person who reported the
testimony.
[Effective July 1, 1960; amended effective April 6, 1998.]
XI. GENERAL PROVISIONS
RULE 81. APPLICABILITY IN GENERAL
(a) To What Proceedings Applicable.
(1) Review of Decisions of Magistrates and Administrative
Agencies. When the appeal of a case has been granted or perfected,
these rules apply, except that, in a case on appeal from a
magistrate court, Rules 26 through 37 may not be used and no
pleadings other than those used in the case in the magistrate court
may be used except by order of the appellate court in the
proceeding after the appeal has been granted or perfected.
Likewise, these rules, where applicable, apply in a trial court of
record when any testimony is taken before the court in the judicial review of an order or decision rendered by an administrative
agency.
(2) Divorce, Annulment, Affirmation, and Separate Maintenance.
These rules apply to actions for divorce, annulment, affirmation,
and separate maintenance, except as to the following qualifications
for actions of divorce, annulment, and affirmation: All pleadings
shall be verified by the party in whose name they are filed; but
the complaint shall not be taken for confessed, and whether the
defendant answers or not, the case shall be tried and heard
independently of the admissions of either party in the pleadings or
otherwise; and costs may be awarded to either party as equity and
justice require, and in all cases the court, in its discretion, may
require payment of costs at any time, and may suspend or withhold
any order or judgment until the costs are paid. A divorce or
annulment action shall not be tried or heard prior to the
expiration of the maximum period of time within which the defendant
in such action is required to file an answer as provided in Rule
12. Unless specifically authorized by statute, no judgment of
divorce, annulment or affirmance of marriage shall be granted on
the uncorroborated testimony of the parties or either of them.
Rules 26 through 37 may not be used in actions for divorce,
annulment, affirmation of marriage and separate maintenance for the
purpose of discovery except by order of the court in the action and
only to the extent provided by the order.
(3) Proceedings for Sale of Forfeited and Delinquent Lands. These rules apply to proceedings to sell land purchased by the
State for nonpayment of taxes and become irredeemable, or forfeited
for nonentry, or escheated, or waste and unappropriated, title to
which remains in the State, subject to the following
qualifications: (1) Rules 13, 14, 18, 19, 20 and 23 do not apply;
(2) Rule 4 does not apply except that the order of publication in
such actions shall be modified to conform with the provisions of
Rule 4(e)(2), and judgment by default may be rendered against any
defendant in such action who shall fail to appear and defend by the
date mentioned therefor in the order of publication; and (3) items,
interests, parties and claims may be joined in such actions as
authorized by W.Va. Code §11A-4-1 even though such joinder would
not be authorized by other provisions in these rules. Except as
provided in this paragraph, W.Va. Code §11A-4-12, repealed, shall
apply in determining the manner in which process shall be served in
such actions.
(4) Ex Parte Proceedings. Rules 5(b), 5(e) and 80 apply to ex
parte proceedings. The other rules do not apply to such
proceedings except by order of the court for cause shown in the
proceeding and only to the extent provided by the order. Such
proceedings include, but are not limited to, adoption; change of
name; statutory summary procedure for the sale, lease, or
encumbrance of property of persons under legal disability; or
statutory summary procedure for the sale, lease, or other
conveyance of property subject to future interests; or statutory summary procedure for the compromise and settlement of claims by a
guardian or committee for personal injuries sustained by the
guardian's or committee's ward.
(5) [Rescinded].
(6) [Rescinded].
(7) Juvenile Proceedings. Rules 5(b), 5(e) and 80 apply, but
the other rules do not apply, to juvenile proceedings brought under
the provisions of chapter 49 [§49-1-1 et seq.] of the West Virginia
Code.
(8) [Rescinded].
(b) [Deleted].
(c) [Deleted].
[Effective July 1, 1960; amended effective February 28, 1961; March
26, 1963; April 6, 1964; March 3, 1969; July 1, 1978; October 1,
1988; September 1, 1995; April 6, 1998.]
XI. GENERAL PROVISIONS
RULE 82. JURISDICTION AND VENUE UNAFFECTED
These rules shall not be construed to extend or limit the
jurisdiction of the courts or the venue of actions therein.
[Effective July 1, 1960.]
XI. GENERAL PROVISIONS
RULE 83. LOCAL RULES
Each court may from time to time make and amend rules
governing its local practice not inconsistent with these rules.
Such rules and amendments shall be effective only after they are
filed with and approved by the Supreme Court of Appeals, which may
order printing of such rules in the West Virginia Reports. Such
rules shall also be recorded in the civil order book of the local
court.
[Effective July 1, 1960; amended effective April 6, 1998.]
XI. GENERAL PROVISIONS
RULE 84. FORMS
The forms contained in the Appendix of Forms are sufficient
under the rules and are intended to indicate the simplicity and
brevity of statement which the rules contemplate. The forms of
suggestee executions heretofore promulgated are approved.
[Effective July 1, 1960.]
XI. GENERAL PROVISIONS
RULE 85. TITLE
These rules shall be known as the West Virginia Rules of Civil
Procedure and may be cited as WV RCP.
[Effective July 1, 1960; amended effective April 6, 1998.]
XI. GENERAL PROVISIONS
RULE 86. EFFECTIVE DATE
(a) Effective Date of Original Rules. These rules shall take
effect on the 1st day of July 1960. They govern all proceedings in
actions brought after they take effect and also all further
proceedings in actions then pending, except to the extent that in
the opinion of the court their application in a particular action
pending when the rules take effect would not be feasible or would
work injustice, in which event the former procedure applies.
(b) Effective Date of Amendments. Any amendments of these
rules shall take effect on the date designated by the Supreme Court
of Appeals of West Virginia in the order adopting such amendments.
They govern all proceedings in actions brought after they take
effect and also all further proceedings in actions then pending,
except to the extent that in the opinion of the court their
application in a particular action pending when the amendments take
effect would not be feasible or would work injustice, in which
event the former procedure applies.
[Effective July 1, 1960; amended effective April 6, 1998.]