NOTICE: The official publication of the Massachusetts Rules of Civil Procedure is found in the bound volumes published and distributed as part of the Massachusetts Reports. Efforts have been taken to accurately compile and publish on this Web site these rules as they were initially published in 365 Mass. 730 (1974), subsequently amended in Massachusetts Reports through September 1, 2008. In the event of discrepancies between the electronic version of the rules found on this Web site and the print version found in the Massachusetts Reports, the print version will be considered authoritative.

TABLE OF CONTENTS

Rule 1. SCOPE OF RULES

RULE 2. ONE FORM OF ACTION.

RULE 3. COMMENCEMENT OF ACTION

Rule 4. PROCESS

Rule 4.1. ATTACHMENT

Rule 4.2. TRUSTEE PROCESS

Rule 4.3. ARREST: SUPPLEMENTARY PROCESS; NE EXEAT

Rule 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

Rule 6. TIME

RULE 7. PLEADINGS ALLOWED: FORM OF MOTIONS

Rule 8. GENERAL RULES OF PLEADING

Rule 9. PLEADING SPECIAL MATTERS

Rule 10. FORM OF PLEADINGS

Rule 11. APPEARANCES AND PLEADINGS

Rule 12. DEFENSES AND OBJECTIONS -- WHEN AND HOW PRESENTED -- BY PLEADING OR MOTION -- MOTION FOR JUDGMENT ON PLEADINGS

Rule 13. COUNTERCLAIM AND CROSS-CLAIM

Rule 14. THIRD-PARTY PRACTICE

Rule 15. AMENDED AND SUPPLEMENTAL PLEADINGS

Rule 16. PRE-TRIAL PROCEDURE: FORMULATING ISSUES

Rule 17. PARTIES PLAINTIFF AND DEFENDANT: CAPACITY

Rule 18. JOINDER OF CLAIMS AND REMEDIES

Rule 19. JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION

Rule 20. PERMISSIVE JOINDER OF PARTIES

Rule 21. MISJOINDER AND NON-JOINDER OF PARTIES

Rule 22. INTERPLEADER

Rule 23. CLASS ACTIONS

Rule 23.1. DERIVATIVE ACTIONS BY SHAREHOLDERS

Rule 23.2. ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS

Rule 24. INTERVENTION

Rule 25. SUBSTITUTION OF PARTIES

Rule 26. GENERAL PROVISIONS GOVERNING DISCOVERY

Rule 27. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

Rule 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

Rule 29. STIPULATIONS REGARDING DISCOVERY PROCEDURE

Rule 30. DEPOSITIONS UPON ORAL EXAMINATION

Rule 30A. AUDIOVISUAL DEPOSITIONS AND AUDIOVISUAL EVIDENCE

Rule 31. DEPOSITIONS OF WITNESSES UPON WRITTEN QUESTIONS

Rule 32. USE OF DEPOSITIONS IN COURT PROCEEDINGS

Rule 33. INTERROGATORIES TO PARTIES

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

Rule 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS

Rule 36. REQUESTS FOR ADMISSION

Rule 37. FAILURE TO MAKE DISCOVERY: SANCTIONS

Rule 38. JURY TRIAL OF RIGHT

Rule 39. TRIAL BY JURY OR BY THE COURT

Rule 40. ASSIGNMENT OF CASES FOR TRIAL: CONTINUANCES

Rule 41. DISMISSAL OF ACTIONS

Rule 42. CONSOLIDATION: SEPARATE TRIALS

Rule 43. EVIDENCE

Rule 44. PROOF OF OFFICIAL RECORDS

Rule 44.1. DETERMINATION OF FOREIGN LAW

Rule 45. SUBPOENA

Rule 46. EXCEPTIONS UNNECESSARY

Rule 47. JURORS

Rule 48. JURORS OF LESS THAN TWELVE -- MAJORITY VERDICT

Rule 49. SPECIAL VERDICTS AND INTERROGATORIES

Rule 50. MOTION FOR A DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Rule 51. ARGUMENT: INSTRUCTIONS TO JURY

Rule 52. FINDINGS BY THE COURT

Rule 53. MASTERS

Rule 54. JUDGMENTS: COSTS

Rule 55. DEFAULT

Rule 56. SUMMARY JUDGMENT

Rule 57. DECLARATORY JUDGMENT

Rule 58. ENTRY OF JUDGMENT

Rule 59. NEW TRIALS: AMENDMENT OF JUDGMENTS

Rule 60. RELIEF FROM JUDGMENT OR ORDER

Rule 61. HARMLESS ERROR

Rule 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

Rule 63. DISABILITY OF A JUDGE

Rule 64. REPORT OF CASE

Rule 65. INJUNCTIONS

Rule 65.1. SECURITY: PROCEEDINGS AGAINST SURETIES

Rule 65.2. REDELIVERY OF GOODS OR CHATTELS

Rule 65.3. PROCEEDINGS FOR CIVIL CONTEMPT

Rule 66. RECEIVERS

Rule 67. DEPOSIT IN COURT

Rule 68. OFFER OF JUDGMENT

Rule 69. EXECUTION

Rule 70. JUDGMENT FOR SPECIFIC ACTS: VESTING TITLE

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

Rule 72. PROBATE ACCOUNTS

Rule 73. [RESERVED]

Rule 74. [RESERVED]

Rule 75. [RESERVED]

Rule 76. [RESERVED]

Rule 77. COURTS AND CLERKS

Rule 78. MOTION DAY

Rule 79. BOOKS AND RECORDS KEPT BY THE CLERK AND ENTRIES THEREIN

Rule 80. STENOGRAPHIC REPORT OR TRANSCRIPT

Rule 81. APPLICABILITY OF RULES

Rule 82. JURISDICTION AND VENUE UNAFFECTED

Rule 83. SUPPLEMENTAL RULES

Rule 84. FORMS

Rule 85. TITLE

I. SCOPE OF RULES -- ONE FORM OF ACTION

These rules govern the procedure before a single justice of the Supreme Judicial Court or of the Appeals Court, and in the following departments of the Trial Court: the Superior Court, the Housing Court, the Probate and Family Court in proceedings seeking equitable relief, the Juvenile Court in proceedings seeking equitable relief, in the Land Court, in the District Court and in the Boston Municipal Court, in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure the just, speedy and inexpensive determination of every action. As used in these rules the following terms shall be deemed to have the following meanings:

"Superior Court" shall mean the Superior Court Department of the Trial Court, or a session thereof for holding court.

"Housing Court" shall mean a division of the Housing Court Department of the Trial Court, or a session thereof for holding court.

"Probate Court" shall mean a division of the Probate and Family Court Department of the Trial Court, or a session thereof for holding court.

"Land Court" shall mean the Land Court Department of the Trial Court, or a session thereof for holding court.

"District Court" or "Municipal Court" shall mean a division of the District Court Department of the Trial Court, or a session thereof for holding court; except when the context means something to the contrary, said words shall include the Boston Municipal Court Department.

"Municipal Court of the City of Boston" or "Boston Municipal Court" shall mean a division of the Boston Municipal Court Department of the Trial Court, or a session thereof for holding court.

"Juvenile Court" shall mean the Juvenile Court Department of the Trial Court, or a session thereof for holding court.

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

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

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A civil action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk. Actions brought pursuant to G. L. c. 185 for registration or confirmation shall be commenced by filing a surveyor's plan and complaint on a form furnished by the Land Court.

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(a) Summons: Issuance. Upon commencing the action the plaintiff or his attorney shall deliver a copy of the complaint and a summons for service to the sheriff, deputy sheriff, or special sheriff; any other person duly authorized by law; a person specifically appointed to serve them; or as otherwise provided in subdivision (c) of this rule. Upon request of the plaintiff separate or additional summons shall issue against any defendant. The summons may be procured in blank from the clerk, and shall be filled in by the plaintiff or the plaintiff's attorney in accordance with Rule 4(b).

(b) Same: Form. The summons shall bear the signature or facsimile signature of the clerk; be under the seal of the court; be in the name of the Commonwealth of Massachusetts; bear teste of the first justice of the court to which it shall be returnable who is not a party; contain the name of the court and the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the time within which these rules require the defendant to appear and defend; and shall notify him that in case of his failure to do so judgment by default may be rendered against him for the relief demanded in the complaint.

(c) By Whom Served. Except as otherwise permitted by paragraph (h) of this rule, service of all process shall be made by a sheriff, by his deputy, or by a special sheriff; by any other person duly authorized by law; by some person specially appointed by the court for that purpose; or in the case of service of process outside the Commonwealth, by an individual permitted to make service of process under the law of this Commonwealth or under the law of the place in which the service is to be made, or who is designated by a court of this Commonwealth. A subpoena may be served as provided in Rule 45. Notwithstanding the provisions of this paragraph (c), wherever in these rules service is permitted to be made by certified or registered mail, the mailing may be accomplished by the party or his attorney.

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

(1) Upon an individual by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process, provided that any further notice required by such statute be given. If the person authorized to serve process makes return that after diligent search he can find neither the defendant, nor defendant's last and usual abode, nor any agent upon whom service may be made in compliance with this subsection, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.

(2) Upon a domestic corporation (public or private), a foreign corporation subject to suit within the Commonwealth, or an unincorporated association subject to suit within the Commonwealth under a common name: by delivering a copy of the summons and of the complaint to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business thereof within the Commonwealth, if any; or by delivering such copies to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by law be given. If the person authorized to serve process makes return that after diligent search he can find no person upon whom service can be made, the court may on application of the plaintiff issue an order of notice in the manner and form prescribed by law.

(3) Upon the Commonwealth or any agency thereof by delivering a copy of the summons and of the complaint to the Boston office of the Attorney General of the Commonwealth, and, in the case of any agency, to its office or to its chairman or one of its members or its secretary or clerk. Service hereunder may be effected by mailing such copies to the Attorney General and to the agency by certified or registered mail.

(4) Upon a county, city, town or other political subdivision of the Commonwealth subject to suit, by delivering a copy of the summons and of the complaint to the treasurer or the clerk thereof; or by leaving such copies at the office of the treasurer or the clerk thereof with the person then in charge thereof; or by mailing such copies to the treasurer or the clerk thereof by registered or certified mail.

(5) Upon an authority, board, committee, or similar entity, subject to suit under a common name, by delivering a copy of the summons and of the complaint to the chairman or other chief executive officer; or by leaving such copies at the office of the said entity with the person then in charge thereof; or by mailing such copies to such officer by registered or certified mail.

(6) In any action in which the validity of an order of an officer or agency of the Commonwealth is in any way brought into question, the party questioning the validity shall forthwith forward to the Attorney General of the Commonwealth by hand or by registered or certified mail a brief statement indicating the order questioned.

(e) Same: Personal Service outside the Commonwealth. When any statute or law of the Commonwealth authorizes service of process outside the Commonwealth, the service shall be made by delivering a copy of the summons and of the complaint: (1) in any appropriate manner prescribed in subdivision (d) of this Rule; or (2) in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or (3) by any form of mail addressed to the person to be served and requiring a signed receipt; or (4) as directed by the appropriate foreign authority in response to letters rogatory; or (5) as directed by order of the court.

(f) Return. The person serving the process shall make proof of service thereof in writing to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a sheriff, deputy sheriff, or special sheriff, he shall make affidavit thereof. Proof of service outside the Commonwealth may be made by affidavit of the individual who made the service or in the manner prescribed by the law of the Commonwealth, or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or such other evidence of personal delivery to the addressee as may be satisfactory to the court. Failure to make proof of service does not affect the validity of the service.

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

(h) Notwithstanding any other provision of these rules, in actions in the Probate Courts in the nature of petitions for instructions or for the allowance of accounts, service may be made in accordance with G. L. c. 215, § 46, in such manner and form as the court may order.

(i) Land Court. In actions brought in the Land Court, service shall be made by the court where so provided by statute.

(j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 90 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

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(a) Availability of Attachment. Subsequent to the commencement of any action under these rules, real estate, goods and chattels and other property may, in the manner and to the extent provided by law, but subject to the requirements of this rule, be attached and held to satisfy the judgment for damages and costs which the plaintiff may recover.

(b) Writ of Attachment: Form. The writ of attachment shall bear the signature or facsimile signature of the clerk, be under the seal of the court, be in the name of the Commonwealth, contain the name of the court, the names and residences (if known) of the parties and the date of the complaint, bear teste of the first justice of the court to which it is returnable who is not a party; state the name and address of the plaintiff's attorney (if any), be directed to the sheriffs of the several counties or their deputies, or any other person duly authorized by law, and command them to attach the real estate or personal property of the defendant to the value of an amount approved by the court, and to make due return of the writ with their doings thereon. The writ of attachment shall also state the name of the justice who entered the order approving attachment of property and the date thereof.

(c) Same: Service. The writ of attachment may be procured in blank from the clerk and shall be filled out by the plaintiff or plaintiff's attorney as provided in subdivision (b) of this rule, either of whom shall deliver to the officer making the attachment the original writ of attachment upon which to make his return and a copy thereof.

No property may be attached unless such attachment for a specified amount is approved by order of the court. Except as provided in subdivision (f) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

An action in which attachment of property is sought may be commenced only by filing the complaint with the court, together with a motion for approval of the attachment. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (h) of this rule. Except as provided in subdivision (f) of this rule, the motion and affidavit or affidavits with the notice of hearing thereon shall be served upon the defendant in the manner provided by Rule 4, at the same time the summons and complaint are served upon him.

Inclusion of a copy of the complaint in the notice of hearing shall not constitute personal service of the complaint upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment he will not thereby submit himself to the jurisdiction of the court nor waive service of the complaint and summons upon him in the manner provided by law.

Except as provided in subdivision (e) of this rule, any attachment of property shall be made within 30 days after the order approving the writ of attachment. When attachments of any kind of property are made subsequent to service of the summons and complaint upon the defendant, a copy of the writ of attachment with the officer's endorsement thereon of the date or dates of the attachments shall be promptly served upon the defendant in the manner provided by Rule 5.

(d) Attachment on Counterclaim, Cross-Claim or Third-Party Complaint. An attachment may be made by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim.

(e) Subsequent Attachment. Either before or after expiration of the applicable period prescribed in subdivision (c) of this rule for making attachments, the court may, subject to the provisions of subdivision (f) of this rule, order another or an additional attachment of real estate, goods, and chattels or other property.

(f) Ex Parte Hearings on Property Attachments. An order approving attachment of property for a specific amount may be entered ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the attachment over and above any liability insurance known or reasonably believed to be available, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear danger that the defendant if notified in advance of attachment of the property will convey it, remove it from the state or will conceal it, or (iii) there is immediate danger that the defendant will damage or destroy the property to be attached. The motion for such ex parte order shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff's attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in subdivision (h) of this rule.

(g) Dissolution or Modification of Ex Parte Attachments. On two days' notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant whose real or personal property has been attached pursuant to an ex parte order entered under subdivision (f) of this rule may appear without thereby submitting his person to the jurisdiction of the court, and move the dissolution or modification of the attachment, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.

(h) Requirements for Affidavits. Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief; and, so far as upon information and belief, shall state that he believes this information to be true.

(i) Form of Hearing. At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party). The court, for cause shown on the evidence so adduced, may make such interlocutory orders concerning disposition of the property sought to be attached as justice may require.

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(a) Availability of Trustee Process. Subsequent to the commencement of any personal action under these rules, except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander or libel, or for assault and battery, trustee process may be used, in the manner and to the extent provided by law, but subject to the requirements of this rule, to secure satisfaction of the judgment for damages and costs which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from him to the defendant for wages or salary for personal labor or services of the defendant except on a claim that has first been reduced to judgment or otherwise authorized by law; and in no event shall the attachment exceed the limitations prescribed by law.

(b) Summons to Trustee: Form. The summons to a trustee shall bear the signature or facsimile signature of the clerk, be under the seal of the court, be in the name of the Commonwealth, contain the name of the court, the names and residences (if known) of the parties and the date of the filing of the complaint, bear teste of the first justice of the court to which it is returnable who is neither a party nor a trustee; state the name and address of the plaintiff's attorney (if any), be directed to the trustee, shall notify him that the goods, effects or credits of the defendant in the hands of the trustee have been attached to the value of the amount authorized by the court, shall state the time within which these rules require the trustee to answer, shall notify him that in case of his failure to do so he will be defaulted and adjudged trustee as alleged, and, if wages, a pension, or a bank account is sought to be attached, shall notify him of such amount of wages, pension, or bank account as are by law exempt from attachment and shall direct him to pay over to the defendant the exempted amount. The summons to the trustee shall also state the name of the justice who entered the order approving the trustee attachment and the date thereof.

(c) Same: Service. The trustee summons may be procured in blank from the clerk and shall be filled out by the plaintiff or the plaintiff's attorney as provided in subdivision (b) of this rule, either of whom shall deliver to the person who is to make service the original trustee summons upon which to make his return and a copy thereof.

No trustee summons may be served unless attachment on trustee process for a specified amount has been approved by order of the court. Except as provided in subdivision (g) of this rule, the order of approval may be entered only after notice to the defendant and hearing and upon a finding by the court that there is a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the trustee process over and above any liability insurance shown by the defendant to be available to satisfy the judgment.

An action in which trustee process is sought may be commenced only by filing the complaint with the court, together with a motion for approval of attachment on trustee process. The motion shall be supported by affidavit or affidavits meeting the requirements set forth in Rule 4.1(h). Except as provided in subdivision (g) of this rule, the motion and affidavit or affidavits with the notice of hearing thereon shall be served upon the defendant in the manner provided by Rule 4, at the same time the summons and complaint are served upon him; and the defendant shall also be served with a copy of the trustee summons in cases where attachment has been approved ex parte as provided in subdivision (g) of this rule. Inclusion of a copy of the complaint in the notice of hearing shall not constitute personal service of the complaint upon the defendant. The notice shall inform the defendant that by appearing to be heard on the motion for approval of an attachment on trustee process he will not thereby submit himself to the jurisdiction of the court nor waive service of the complaint and summons upon him in the manner provided by law.

Except as provided in subdivision (f) of this rule, any trustee process shall be served within 30 days after the date of the order approving the attachment. Promptly after the service of the trustee summons upon the trustee or trustees, a copy of the trustee summons with the officer's endorsement thereon of the date or dates of services shall be served upon the defendant in the manner provided by Rule 5.

(d) Answer by Trustee; Subsequent Proceedings. A trustee shall file, but need not serve, his answer, under oath, or signed under the penalties of perjury, within 20 days after the service of the trustee summons upon him, unless the court otherwise directs. The answer shall disclose plainly, fully, and particularly what goods, effects or credits, if any, of the defendant were in the hands or possession of the trustee when the trustee summons was served upon him. The proceedings after filing of the trustee's answer shall be as provided by law.

(e) Trustee Process on Counterclaim, Cross-Claim or Third-Party Complaint. Trustee process may be used by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim. Such party may use trustee process, even though the trustee does not reside or maintain a usual place of business in the county where the action is pending.

(f) Subsequent Trustee Process. Either before or after expiration of the applicable period prescribed in subdivision (c) of this rule for serving trustee process, the court may, subject to the provisions of subdivision (g) of this rule, order another or an additional service of the trustee summons upon the original trustee.

(g) Ex Parte Hearings on Trustee Process. An order approving trustee process for a specific amount may be entered ex parte upon findings by the court that there is a reasonable likelihood that the plaintiff will recover judgment in an amount equal to or greater than the amount of the trustee process over and above any liability insurance known or reasonably believed to be available, and that either (i) the person of the defendant is not subject to the jurisdiction of the court in the action, or (ii) there is a clear danger that the defendant if notified in advance of the attachment on trustee process will withdraw the goods or credits from the hands and possession of the trustee and remove them from the state or will conceal them, or (iii) there is immediate danger that the defendant will dissipate the credits, or damage or destroy the goods to be attached on trustee process. The motion for an ex parte order shall be accompanied by a certificate by the plaintiff or his attorney of the amount of any liability insurance which he knows or has reason to believe will be available to satisfy any judgment against the defendant in the action. The motion, in the filing of which the plaintiff's attorney shall be subject to the obligations of Rule 11, shall be supported by affidavit or affidavits meeting the requirements set forth in Rule 4.1(h).

(h) Dissolution or Modification of Ex Parte Trustee Process. On two days' notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant whose goods or credits have been attached on trustee process pursuant to an ex parte order entered under subdivision (g) of this rule may appear, without thereby submitting his person to the jurisdiction of the court, and move the dissolution or modification of the trustee process, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At such hearing the plaintiff shall have the burden of justifying any finding in the ex parte order which the defendant has challenged by affidavit. Nothing herein shall be construed to abolish or limit any means for obtaining dissolution, modification or discharge of an attachment that is otherwise available by law.

(i) Form of Hearing. At any hearing held under this rule, either party may adduce testimony and may call witnesses (including any opposing party). The court, for cause shown on the evidence so adduced, may make such interlocutory orders concerning disposition of the goods or credits sought to be subject to trustee process as justice may require.

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(a) Arrest; Availability of Remedy. Except in cases of civil contempt or as specifically authorized by law, no civil arrest shall be permitted in connection with any action under these rules, except as provided in section (c) of this rule.

(b) Supplementary Process. Supplementary process shall be available in the form, manner, and to the extent provided by law.

(c) Ne Exeat. An order of arrest may be entered upon motion with or without notice when the plaintiff has obtained a judgment or order requiring the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, and where the defendant is not a resident of the Commonwealth or is about to depart therefrom, by reason of which nonresidence or departure there is danger that such judgment or order will be rendered ineffectual. The motion shall be accompanied by an affidavit showing that the plaintiff is entitled to the relief requested. The court may fix such terms as are just, and shall in any event afford the defendant an opportunity to obtain his release by the giving of an appropriate bond. In this rule the words "plaintiff" and "defendant" mean respectively the party who has obtained the judgment or order and the person whose arrest is sought.

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(a) Service: When Required. Except as otherwise provided in these Rules, or unless the court on motion with or without notice or of its own initiative otherwise orders, every order required by its terms to be served, every pleading subsequent to the original complaint, every paper relating to discovery required to be served upon a party, every written motion other than one which may be heard ex parte, and every written notice, notice of change of attorney, appearance, demand, brief or memorandum of law, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on any party in default for failure to appear except that any pleading asserting new or additional claims for relief against him shall be served upon him 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 himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it as his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

(c) Same: Multiple Defendants. The court, on motion with or without notice 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 Generally, and Nonfiling of Discovery Materials.

(1) Except as otherwise provided in rule 5(d)(2), all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. Such filing by a party's attorney shall constitute a representation by him, subject to the obligations of rule 11, that a copy of the paper has been or will be served upon each of the other parties as required by rule 5(a). No further proof of service is required unless an adverse party raises a question of notice. In such event, prima facie proof of service shall be made out by a statement signed by the person making service, or by a written acknowledgment signed by the party or attorney served; and such statement or acknowledgment shall be filed within a reasonable time after notice has been questioned. Failure to make proof of service does not affect the validity of service.

(2) Unless the court, generally or in a specific case, on motion ex parte by any party or concerned citizen, or on its own motion shall otherwise order, the following shall not be presented or accepted for filing: notices of taking depositions, transcripts of depositions, interrogatories under Rule 33, answers and objections to interrogatories under Rule 33, requests under Rule 34, and responses to requests under Rule 34. The party taking a deposition or obtaining material through discovery is responsible for its preservation and delivery to court if needed or so ordered. Notwithstanding anything in this rule 5(d)(2), any party pressing or opposing any motion or other application for relief may file any document pertinent thereto.

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

(f) Effect of Failure to File. If any party fails within five days after service to file any paper required by this rule to be filed, the court on its own motion or the motion of any party may order the paper to be filed forthwith; if the order be not obeyed, it may order the paper to be regarded as stricken and its service to be of no effect.

(g) Information Required. On any pleading or other paper required or permitted by these rules to be filed with the court, there shall appear the name of the court and the county, the title of the action, the docket number, the designation of the nature of the pleading or paper, and the name and address of the person or attorney filing it. In any case where an endorsement for costs is required, the name of any attorney of this Commonwealth appearing on the complaint filed with the court shall constitute such an endorsement in absence of any words used in connection therewith showing a different purpose.

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(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute or rule, the day of the act, event, or default after 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, Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 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 those days specified in Mass. G. L. c. 4, § 7 and any other day appointed as a holiday by the President or the Congress of the United States or designated by the laws of the Commonwealth.

(b) Enlargement. When by these rules or by a notice given thereunder or by order or rule of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; or (3) permit the act to be done by stipulation of the parties; 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) For Motions-Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 7 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.

(d) 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 papers upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.

III. PLEADINGS AND MOTIONS

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(a) Pleadings. There shall be a complaint and (except as provided by law) an answer, and a trustee's answer under oath if trustee process is used; 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. In the Land Court, answers in actions for registration, confirmation, or tax foreclosure shall conform to G. L. c. 185, § 41, and G. L. c. 60, § 68, where applicable.

(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.

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

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

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(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 to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

(b) Defenses: Form of Denials. A party shall state in short and plain terms his defenses to such claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in Rule 11. The signature to an instrument set forth in any pleading shall be taken as admitted unless a party specifically denies its genuineness. An allegation in any pleading that a place is a public way shall be taken as admitted unless a party specifically denies such allegation.

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

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

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

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

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

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(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, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

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

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

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

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

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

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

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(a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the county, the title of the action, the docket 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.

(d) Parties' Residence or Place of Business. The complaint, and any subsequent pleading stating a claim against a person not originally a party to the action, shall state the respective residences or usual places of business of the party stating a claim and of each person against whom a claim is stated, if known to the pleader; if unknown, the complaint or pleading shall so state.

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(a) Signing. Every pleading of a party represented by an attorney shall be signed in his individual name by at least one attorney who is admitted to practice in this Commonwealth. The address of each attorney and his telephone number shall be stated. A party who is not represented by an attorney shall sign his pleadings and state his address and telephone number. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay. If a pleading is not signed, or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.

(b) Appearances. (1) The filing of any pleading, motion, or other paper shall constitute an appearance by the attorney who signs it, unless the paper states otherwise.

(2) An appearance in a case may be made by filing a notice of appearance, containing the name, address, and telephone number of the attorney or person filing the notice.

(3) No appearance shall, of itself, constitute a general appearance.

(c) Withdrawals. An attorney may, without leave of court, withdraw from a case by filing written notice of withdrawal, together with proof of service on his client and all other parties, provided that (1) such notice is accompanied by the appearance of successor counsel; (2) no motions are then pending before the court and (3) no trial date has been set. Under all other circumstances, leave of court, on motion and notice, must be obtained.

(d) Change of Appearance. In the event an attorney who has heretofore appeared, ceases to act, or a substitute attorney or additional attorney appears, or a party heretofore represented by attorney appears without attorney, or an attorney appears representing a heretofore unrepresented party, or a heretofore stated address or telephone number is changed, the party or attorney concerned shall notify the court and every other party (or his attorney if the party is represented) in writing, and the clerk shall enter such cessation, appearance, or change on the docket forthwith. Until such notification the court, parties, and attorneys may rely on action by, and notice to, any attorney previously appearing (or party heretofore unrepresented), and on notice, at an address previously entered.

(e) Verification Generally. When a pleading is required to be verified, or when an affidavit is required or permitted to be filed, the pleading may be verified or the affidavit made by the party, or by a person having knowledge of the facts for and on behalf of such party.

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(a) When Presented. (1) After service upon him of any pleading requiring a responsive pleading, a party shall serve such responsive pleading within 20 days unless otherwise directed by order of the court. (2) The service of a motion permitted under this rule alters this period of time as follows, unless a different time is fixed by order of the court: (i) 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; (ii) 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;

(8) Misnomer of a party;

(9) Pendency of a prior action in a court of the Commonwealth;

(10) Improper amount of damages in the Superior Court as set forth in G.L.C. 212, 63, or in the District Court as set forth in G.L.C. 218, 619.

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, he may assert at the trial any defense in law or fact to that claim for relief. If, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. A motion, answer, or reply presenting the defense numbered (6) shall include a short, concise statement of the grounds on which such defense is based.

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

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such 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 him or upon the court's own initiative at any time, the court may after hearing order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.

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

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, misnomer of a party, pendency of a prior action or improper amount of damages 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 a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

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(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim for relief the court has power to give 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 either require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction or constitute an action required by law to be brought in a county or judicial district, as the case may be, other than the county or judicial district in which the court is sitting. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13, or (3) if part or all of the pleader's claim is based upon property damage arising out of a collision, personal injury, including actions for consequential damages, or death. In actions in the Land Court for registration and confirmation pursuant to G. L. c. 185, and tax title foreclosures, brought pursuant G. L. c. 60, no party may assert a counterclaim under this subdivision or subdivision (b), except by leave of court.

(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party.

(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 Commonwealth. 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 Commonwealth of Massachusetts or a political subdivision thereof, or any of their officers and agencies.

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

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

(g) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is 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(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

(j) Transferred, Appealed and Removed Actions. Within 20 days after transfer, removal or appeal to the Superior Court, of any action, the defendant: (1) shall amend the answer to conform to Rule 13(a); (2) may amend the answer to conform to Rule 13(b). Within 20 days after transfer, removal or appeal to the Superior Court of any action, the parties may assert cross-claims. This section shall not apply to any case commenced and tried in a district court or the Municipal Court of the City of Boston.

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(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 (except in cases of registration and confirmation in the Land Court brought pursuant to G. L. c. 185) cause a summons and complaint to be served upon a person who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 20 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his 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, and the plaintiff thereupon shall assert his defenses as provided in Rule 12 and his counterclaims as provided in Rule 13. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his 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 who is or may be liable to him 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, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.

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

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as 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 him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.

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

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

(1) The simplification of the issues;

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

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

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

(5) The advisability of a preliminary reference of issues to a master;

(6) The possibility of settlement;

(7) Agreement as to damages; and

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

The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

IV. PARTIES

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(a) Real Party in Interest. Except for any action brought under General Laws, chapter 152, section 15, every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute so provides, an action for the use or benefit of another shall be brought in the name of the Commonwealth. An insurer who has paid all or part of a loss may sue in the name of the assured to whose rights it is subrogated. 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) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

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(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, or both, as he has against an opposing party.

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

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(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 his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.

(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 him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if 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.

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(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 of the defendants according to their respective liabilities, and the court may issue one or more executions and make such order relative to costs as may be necessary and proper. In any action in which persons not asserting any right to recover jointly join as plaintiffs, and in which the relief sought is not wholly equitable, the entry fee shall be an amount equal to the aggregate of the entry fees which would have been required had separate actions been brought.

(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 he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.

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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, after hearing, 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.

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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 he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.

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(a) Prerequisites to 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 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 a fair and efficient adjudication of the controversy.

(c) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court. The court may require notice of such proposed dismissal or compromise to be given in such manner as the court directs.

(d) Orders to Insure Adequate Representation. The court at any stage of an action under this rule may require such security and impose such terms as shall fairly and adequately protect the interests of the class in whose behalf the action is brought or defended. It may order that notice be given, in such manner as it may direct, of the pendency of the action, of a proposed settlement, of entry of judgment, or of any other proceedings in the action, including notice to the absent persons that they may come in and present claims and defenses if they so desire. Whenever the representation appears to the court inadequate fairly to protect the interests of absent parties who may be bound by the judgment, the court may at any time prior to judgment order an amendment of the pleadings, eliminating therefrom all reference to representation of absent persons, and the court shall order entry of judgment in such form as to affect only the parties to the action and those adequately represented.

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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 by oath and shall allege that the plaintiff was a shareholder or member at the time of the transaction of which he complains or that his share or membership thereafter devolved on him by operation of law from one who was a stockholder or member at such time. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the 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.

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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). Further, the provisions of Rule 23(c), concerning dismissal or compromise of the action are applicable to this Rule.

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(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the Commonwealth confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

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

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.

(d) Intervention by the Attorney General. When the constitutionality of an act of the legislature or the constitutionality or validity of an ordinance of any city or the by-law of any town is drawn in question in any action to which the Commonwealth or an officer, agency, or employee thereof is not a party, the party asserting the unconstitutionality of the act or the unconstitutionality or invalidity of the ordinance or by-law shall notify the attorney general within sufficient time to afford him an opportunity to intervene.

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(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 representative 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 within one year after the date of approval of the bond of the representative of the deceased party, the action shall, upon notice and hearing, be dismissed unless the failure of the surviving party to move for substitution was the result of excusable neglect. If the court finds that the representative of the deceased party has failed within a reasonable period of time after the date of the approval of his bond to notify in writing the surviving party of the decedent's death and to file a suggestion of death upon the record it shall find excusable neglect for purposes of this rule and Rule 6(b).

(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. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against his representative.

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with 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 his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

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

V. DEPOSITIONS AND DISCOVERY

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(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): 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. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.

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

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and 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.

(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 his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the 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) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in 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.

(5) Claims of Privilege or Protection of Trial Preparation Materials: Privilege Log. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as material prepared in anticipation of litigation or for trial, the party shall make the claim expressly and, without revealing information that is privileged or protected, shall prepare a privilege log containing the following information: the respective author(s) and sender(s) if different; the recipient(s); the date and type of document, written communication or thing not produced; and in general terms, the subject matter of the withheld information. By written agreement of the party seeking the withheld information and the party holding the information or by court order, a privilege log need not be prepared or may be limited to certain documents, written communications, or things.

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or judicial district, as the case may be, 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 opened as directed by the court.

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

(d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, 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 his response to include information thereafter acquired, except as follows:

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

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

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(a) Before Action.

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

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least 20 days before the date of hearing the notice shall be served either within or without the Commonwealth in the manner provided in Rule 4 for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise, and shall appoint, for persons not served in the manner provided in Rule 4, an attorney who shall represent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 17(b) 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 those 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 evidence in the courts of the Commonwealth, it may be used in any action involving the same subject matter subsequently brought in such a court, in accordance with the provisions of Rule 32(a).

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

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

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(a) Within the United States. Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. 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. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the laws of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to letters rogatory. A commission or letters rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or letters rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and letters rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. Letters rogatory may be addressed "To the Appropriate Authority in [here name the country]." Evidence obtained in response to letters rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirement for depositions taken within the United States 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.

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Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and (2) modify the procedures provided by these rules for other methods of discovery.

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(a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if: (i) 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); (ii) there is no reasonable likelihood that recovery will exceed $5,000 if the plaintiff prevails; (iii) the action is pending in the Superior Court and there has been a trial in a District Court before a transfer; (iv) there has been a hearing before a master; or (v) the relief sought is the custody of minor children, divorce, affirmance or annulment of marriage, separate support, or any like relief. 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; Non-Stenographic Recording; Production of Documents and Things; Deposition of Organization.

(1) A party desiring to take the deposition of any person upon oral examination shall give at least seven days' notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included 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 about to go out of the county where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage abroad, and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 11 are applicable to the certification.

If a party shows that when he was served with notice under this subdivision (b)(2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition may not be used against him.

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

(4) By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation in writing of all parties, a party taking an oral deposition may have the testimony recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. A party may arrange to have a stenographic transcription made at his own expense. Any objections under subdivision (c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the witness does not sign, as provided in subdivision (e), and the certification of the officer required by subdivision (f) shall be set forth in a writing to accompany a deposition recorded by nonstenographic means. In any event, however, where testimony is to be recorded by audio-visual means, the provisions of rule 30A shall apply.

(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request and, notwithstanding the provisions of subdivision (b)(1) of this Rule, the party making the request shall give at least 30 days' notice in writing to every other party to the action. The court may on motion with or without notice allow a shorter or longer time.

(6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such 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.

(7) By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation in writing of all parties, a deposition may be taken by telephone. For the purpose 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 county and at the place where the deponent is to answer questions propounded to him.

(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 Rule 43(b). 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 by voice writing or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and such party shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition; but the examination shall proceed. Any objection to testimony during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. Testimony to which objection is made shall be taken subject to the objections. Counsel for a witness or a party may not instruct a deponent not to answer except where necessary to assert or preserve a privilege or protection against disclosure, to enforce a limitation on evidence directed by the court or stipulated in writing by the parties, or to terminate the deposition and present a motion to the court pursuant to Rules 30(d) or 37(d).

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the county or judicial district, as the case may be, 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) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

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

(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court generally or in a specific case or stipulated by the parties, he shall then securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly deliver or send it to the party taking the deposition.

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 material desires to retain them he may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he 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) 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 receipt 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 amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees.

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

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(a) Authorization of Audio-Visual Depositions. By leave of court upon motion with notice and an opportunity to be heard in opposition, or by stipulation of all parties, a party taking an oral deposition may have the testimony recorded by audio-visual means by complying with the provisions of this rule. Except as otherwise provided by this rule, the rules governing the practice and procedure in depositions and discovery shall apply. At the taking of any such deposition, unless the parties otherwise stipulate, or the court for good cause otherwise orders, there shall also be prepared a simultaneous stenographic record of the deposition.

(b) Notice. Except by leave of court, granted after notice and opportunity to be heard in opposition, a notice for the taking of an audio-visual deposition shall not be served sooner than six (6) months after the action has been commenced.

Every notice for the taking of an audio-visual deposition and the subpoena for attendance at that deposition shall state that it is to be recorded by audio-visual means and the name and address of the person whose deposition is to be taken. If the operator is an employee of the attorney taking the deposition, the notice shall so indicate.

(c) Procedure. The party taking the audio-visual deposition shall be responsible for assuring that the necessary equipment for making an audio-visual recording of the deposition is present at the time the deposition is taken. The following procedure shall be observed in recording an audio-visual deposition:

(1) Opening of Deposition. The deposition shall begin with an oral or written statement on camera which includes:

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

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

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

(iv) the caption of the case;

(v) the name of the witness-deponent;

(vi) the name of the party on whose behalf the deposition is being taken; and

(vii) any stipulation by the parties.

The opening statement, if oral, shall be made by the officer before whom the deposition is to be taken, unless counsel agree that one of counsel will make the statement.

(2) Counsel. Counsel shall identify themselves on camera by stating their names, their addresses, and the names of the parties or persons for whom they appear at the deposition, and nothing more.

(3) Oath. The officer before whom the deposition is taken shall then identify himself and swear or affirm the witness on camera.

(4) Multiple Units. When the length of the deposition requires the use of more than one recording unit, the end of each recording unit and the beginning of each succeeding recording unit shall be announced on camera by the operator.

(5) Closing of Deposition. At the conclusion of the deposition, a statement shall be made on camera that the deposition is concluded. A statement may be made on camera setting forth any stipulation made by counsel concerning the custody of the audio-visual recording and exhibits and other pertinent matters.

(6) Index. The deposition shall be timed by a digital clock on camera which shall show continually each hour, minute and second of each recording unit of the deposition or otherwise suitably indexed by a time generator. The date(s) on which the deposition is taken shall be shown.

(7) Objections. An objection shall be made as in the case of depositions taken solely by stenographic means.

(8) Interruption of Recording. No party shall be entitled to cause the operator to interrupt or halt the recording of the audio-visual deposition without the assent of all other parties present.

(9) Submission to Witness; Changes; Signing. Unless the parties have stipulated that a simultaneous stenographic record of the deposition not be prepared, the provisions of Rule 30(e) shall apply to the stenographic record of the deposition. Except upon order of the court and upon such terms as may be provided, the witness shall have no right to examine and view the audio-visual recording.

(10) Certification. The officer before whom the audio-visual deposition is taken shall attach to the original audio-visual recording a certificate stating that the witness was sworn or affirmed by him and that the audio-visual recording is a true record of the testimony given by the witness.

(d) Recording Officer; Use of Camera; Copies. The officer before whom an audio-visual deposition is taken shall be subject to the provisions enumerated in Rule 28(a)-(c).

During the taking of the audio-visual deposition, the officer shall assure that the audio-visual tape records the witness in a standard fashion at all times during the deposition, unless all counsel agree otherwise, or unless on motion before the court, the court directs otherwise. In no event shall the officer use, or permit the use of, audio-visual tape camera techniques to vary the view which is being recorded for presentation in the courtroom unless agreed upon or ordered by the court as recited above. As an exception to the foregoing, the officer shall, at the request of the attorney questioning the witness, cause a close-up view of a deposition exhibit or visual aid to be taken while the witness is being questioned concerning the exhibit.

Upon the request of any of the parties, the officer shall provide, at the cost of the party making the request, a copy of the deposition in the form of a videotape or other form of audio-visual recording, an audio recording, or a written transcription.

(e) Custody; Filing; Notice of Filing. Unless the parties have otherwise stipulated, the officer shall take custody of each recording unit upon its completion and shall retain custody of all completed units throughout the deposition. When a deposition is to be completed on another day, the officer shall also take custody of any uncompleted recording unit during the interval. Upon completion of a deposition, unless the parties have otherwise stipulated, the original audio-visual recording and the typewritten transcript of the deposition shall be filed forthwith by the officer with the clerk of the trial court in accordance with subdivision (1) of rule 30(f) and notice of its filing shall be given as provided in subdivision (3) of that rule.

(f) Inspection and Release of Audio-Visual Recordings. Except upon order of the court and upon such terms as may be provided, the audio-visual recordings on file with the clerk of the court in which the action is pending shall not be available for inspection or viewing after their filing and prior to their use at the trial of the case or their disposition in accordance with this rule. The clerk may release the audio-visual recording to the officer taking the deposition, without an order of court, for the purpose of preparing a copy at the request of a party as provided in paragraphs (a) and (d) of this rule.

(g) Rulings on Objections; Editing of Recording. If any party has any objections to the audio-visual deposition which would otherwise be made at trial, pursuant to rule 32(b), such objections shall, if practicable, be submitted to the trial judge prior to commencement of the trial or hearing for the purpose of obtaining rulings on such objections. An audio copy of the sound track or the transcript may be submitted in lieu of the audio-visual recording for this purpose. For the purpose of ruling on the objections, the trial judge may view the entire audio-visual recording, or view only those parts of the audio-visual recording pertinent to the objections made, or he may listen to an audio-tape recording submitted in lieu of the audio-visual recording, or he may read the transcript. The trial judge shall, if practicable, rule on the objections prior to the commencement of the trial or hearing and shall return the recording to the party who took the audio-visual deposition, with notice to all parties of his rulings and of his instructions as to editing. The editing shall reflect the rulings of the trial judge and shall then remove all references to the objections. After making a copy of the audio-visual recording, the officer shall cause said copy to be edited in accordance with the court's instructions. He shall then cause both the original audio-visual recording and the edited version thereof, each clearly identified, to be returned to the trial judge for use during the trial or hearing. The original audio-visual recording shall be preserved intact and unaltered.

(h) Transcribing of Audio Portion; Marking for Identification. At a trial or hearing, that part of the audio portion of an audio-visual deposition which is offered in evidence and admitted, or which is excluded on objection, shall be transcribed in the same manner as the testimony of other witnesses. Both the original unedited audio-visual recording and the edited version shall be marked for identification.

(i) Use of Audio-Visual Deposition and Responsibility for Assuring Necessary Equipment at Time of Use. An audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used.

The party desiring to use the audio-visual deposition for any purpose shall be responsible for assuring that the necessary equipment for playing the audio-visual recording back is available when the audio-visual deposition is to be used. When an audio-visual deposition is used during a hearing, a trial, or any other court proceeding, the party first using such audio-visual deposition in whole or in part shall assure the availability of the same or comparable videotape playback equipment to any other party for such other party's use in further showing such audio-visual deposition during the hearing, the trial, or other court proceeding or at any rehearing, recess, or continuation thereof.

(j) Discrepancy between Audio-Visual Deposition and Stenographic Deposition. Upon the claim of a party that a discrepancy exists between the audio-visual deposition and the stenographic deposition, the trial judge shall determine: (i) whether such discrepancy reasonably appears; and (ii) whether the relevant part of the audio-visual deposition is intelligible. If the relevant part of the audio-visual deposition is not intelligible, the stenographic deposition controls. If the relevant part of the audio-visual deposition is intelligible and the trial judge rules that a discrepancy reasonably appears, the jury, in a jury action, shall determine from the audio-visual deposition the deponent's testimony. The trial judge, in his discretion, may permit the jury to be aided in its determination by the stenographic deposition.

(k) Evidence by Audio-Visual Recording.

(1) (Authorization of Audio-Visual Testimony or Other Evidence). Upon motion with notice and an opportunity to be heard, or by stipulation of all parties approved by the court, or upon the court's motion, the court may order, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, that all or part of the testimony, and such other evidence as may be appropriate, may be presented at trial by audio-visual means. The provisions of rule 30A shall govern such audio-visual recordings.

(2) (Introduction as Evidence). Notwithstanding rule 30A (i) or rule 32 (a)(3), but subject to rulings on objections pursuant to rule 30A(k)(3), any party may introduce any such audio-visual recording, that has been authorized under rule 30A(k)(1), at trial if the court finds its introduction to be in the interest of justice.

(3) (Objections). Before such audio-visual recording is admitted at trial, the trial judge shall rule upon any objection to any portion thereof and the recording shall be edited to reflect the rulings. The objections shall be presented to the trial judge and the editing to reflect the rulings shall be accomplished, each in accordance with the provisions of rule 30A (g).

(4) (Part of the Record; Not an Exhibit). Any portion of the audio-visual recording so introduced shall be part of the record, and subject to the provisions of rule 30A(h), but not an exhibit.

(l) Costs. The reasonable expense of recording, editing, and using an audio-visual deposition may be taxed as costs, pursuant to the provisions of rule 54(e).

(m) Audio-Visual Depositions of Treating Physicians and Expert Witnesses for Use at Trial.

(1) (Authorization and Definitions) Unless the court upon motion orders otherwise, any party intending to call a treating physician or expert witness at trial as that party's own witness may take the oral deposition of any such treating physician or expert witness by audio-visual means for the purpose of its being used as evidence at trial in lieu of oral testimony. Such depositions shall be known as "audio-visual expert witness depositions for trial." This rule 30A(m) does not apply to another party's treating physician or expert, discovery from whom is subject to the provisions of rule 26(b)(4)(A) or 26(b)(4)(B). A "treating physician" is a physician who has provided medical treatment to a party or other person involved in the lawsuit, and who will be questioned about such treatment and matters related thereto. An "expert witness" is a person qualified as an expert by knowledge, skill, experience, training, or education to testify in the form of an opinion or otherwise.

(2) (Timing, Curriculum Vitae, and Report) Except by leave of court, a notice for the taking of an audio-visual expert witness deposition for trial shall not be served (i) sooner than six (6) months after the action has been commenced, and (ii) until thirty (30) days after a written report of that witness has been furnished to all parties. Such report shall contain a curriculum vitae of that witness, shall cover the subjects described in rule 26(b)(4)(A)(i), and, in the case of a treating physician, a description of the treatment and its costs. Any party may move for further discovery of that witness, to take place prior to the audio-visual expert witness deposition for trial, in accordance with rule 26(b)(4)(A)(ii).

(3) (Notice; Opposition) In addition to the requirements of rule 30A(b), every notice for the taking of an audio-visual expert witness deposition for trial shall state that it is to be recorded by audio-visual means with the purpose of its being used as evidence at trial in lieu of oral testimony. Any motion in opposition to the taking of an audio-visual expert witness deposition for trial must be filed within fourteen (14) days of receipt of the notice or on or before the specified time for taking of the audio-visual expert witness deposition for trial, if such time is less than fourteen (14) days from receipt of the notice. The audio-visual expert witness deposition shall not occur until the court rules on the motion opposing the deposition.

(4) (Ruling on Objections; Editing of Recording) When an audio-visual expert witness deposition for trial is taken, all evidential objections shall, to the extent practicable, be made during the course of the deposition. If any party has made objections during the course of the audio-visual expert witness deposition for trial, or has any objections to such deposition which would otherwise be made at trial, pursuant to rule 32(b), such objections shall be filed with the trial judge or a motion judge, if the trial judge had not yet been designated, no later than twenty-one (21) days before the commencement of the trial. Objections not so submitted shall be deemed waived, except to the extent that events at the trial, which could not have reasonably been foreseen by the objecting party, necessitate an objection at trial. The nonobjecting party shall file a response to the submissions by the objecting party within fourteen (14) days of the receipt of the objecting party's submissions. Failure to respond to an objection shall constitute a waiver with respect thereto. The party making the objection shall be responsible for providing the judge with a stenographic record of the deposition, unless it is already on file at the court, and, if the judge requests, with the audio-visual recording or an audio copy of the sound track. For the purpose of ruling on the objections, the judge may utilize the entire stenographic record, audio-visual recording, or audio-tape recording, or those portions that are pertinent to the objections made. The judge shall rule on the objections prior to the commencement of trial or hearing and give notice to all parties of the rulings and instructions as to editing. The editing shall reflect the rulings of the judge and shall remove all references to the objections. The officer shall cause a copy of the audio-visual recording to be edited in accordance with the court's instructions. The officer shall then cause copies of the edited version thereof to be delivered to the parties who ordered them, and to the court, if so instructed by the court. The stenographic record, and the original audio-visual recording and the edited version thereof, if any, shall be preserved intact and unaltered.

(5) (Use at Trial) Unless the court upon motion orders otherwise, an audio-visual expert witness deposition for trial may be used by any party for any purpose and under any circumstances in which a stenographic deposition may be used and, in addition, may be used at trial in lieu of oral testimony whether or not such witness is available to testify.

(6) (Applicability of Rule 30A(a)-(l)) Except as altered by Rule 30A(m), the provisions of Rule 30A(a)-(1) shall apply to audio-visual expert witness depositions for trial.

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(a) Serving Questions; Notice. After commencement of the action, any party make take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in 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.

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name 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).

Within 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a party may serve re-cross 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 deliver or send the deposition to the party taking the deposition, attaching thereto the copy of the notice and questions received by him.

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

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

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

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

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

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

Substitution of parties pursuant to rule 25 does not affect the right to use depositions previously taken; and when an action has been brought in any court of the United States or of any State and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

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

(d) Effect of Errors and Irregularities in Depositions.

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

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

(3) As to Taking of Deposition.

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

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

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

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(a) Availability: Procedures for Use.

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

(2) Number. No party shall serve upon any other party as of right more than thirty interrogatories, including interrogatories subsidiary or incidental to, or dependent upon, other interrogatories, and however the same may be grouped or combined; but the interrogatories may be served in two or more sets, as long as the total number of interrogatories served does not exceed thirty. The court on motion for good cause shown may allow service of additional interrogatories; or the party interrogated, subject to Rule 29, may agree to such service. All interrogatories shall be numbered consecutively.

(3) Answers; Final Request for Answers. Each interrogatory shall be answered separately and fully in writing under the penalties of perjury, unless it is objected to, in which event the reasons for objection shall be stated in lieu of the answer; each answer or objection shall be preceded by the interrogatory to which it responds. The answers are to be signed by the person making them, the objections by the person or attorney making them. The party upon whom the interrogatories have been served shall serve answers and objections, if any, within 45 days after the service of the interrogatories. The court may, on motion with or without notice, specify a shorter or longer time. Unless otherwise specified, further answers to interrogatories shall be served within 30 days of the entry of the order to answer further. The interrogating party may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. Alternatively, for failure to serve timely answers or objections to interrogatories (or further answers, as the case may be), the interrogating party may serve a final request for answers, specifying the failure. The final request for answers shall state that the interrogating party may apply for final judgment for relief or dismissal pursuant to paragraph 4 in the event that answers or objections are not timely received. The party upon whom the interrogatories have been served shall serve the answers or objections either within 30 days from the date of service of the final request or prior to the filing of an application for a final judgment for relief or dismissal, whichever is later.

(4) Application for Final Judgment; Affidavit. In the event that answers or objections have not been received and after the expiration of 40 days from the date of service of the final request for answers, or such further time as the parties may agree upon in writing or the court may allow, the interrogating party may file a written application for entry of final judgment for relief or dismissal. The period of time set forth in the previous sentence shall be deemed to include the three-day period allowed pursuant to Rule 6(d). The application must be accompanied by a copy of the final request for answers and an affidavit containing the following information:

a. the date and manner in which interrogatories were served on the party against whom relief is sought;

b. the fact that the 45-day time period for service of answers or objections has expired, and no answers have been received;

c. the date and manner in which the final request for answers was served;

d. the fact that the 40-day time period for answers or objections after a final request for answers has expired, and that no answers or objections have been received; and

e. that the party now applies for final judgment for relief or dismissal.

(5) Motion to Extend. The pendency of a motion to extend any time hereunder, unless the motion be assented to, or heard within 30 days of filing, shall not stay the entry of any judgment.

(6) Entry of Judgment. Upon receipt of the application for final judgment and only if accompanied by a copy of the final request for answers and by the required affidavit as set forth above, the clerk shall enter an appropriate judgment, subject to the provisions of Rules 54(b), 54(c), 55(b)(1), 55(b)(2) (final sentence), 55(b)(4) (final sentence), 55(b)(6) and 55(c).

(b) Scope: Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.

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

(c) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, 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.

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(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 his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, 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 the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under 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 inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

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

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(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 physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(b) Report of Examining Physician.

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

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition; but he does not otherwise waive his right to object at the trial to the introduction in evidence of the report or any part thereof.

(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 examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

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(a) Request for Admission. A party may serve upon any other party a written request for 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, the party to whom the request is directed serves upon the party requesting the admission either (1) a written statement signed by the party under the penalties of perjury specifically (i) denying the matter or (ii) setting forth in detail why the answering party cannot truthfully admit or deny the matter; or (2) a written objection addressed to the matter, signed by the party or his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it. Each admission, denial, objection, or statement shall be preceded by the request to which it responds.

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 him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

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(a) Motion for Order Compelling Discovery. Upon reasonable notice to other parties and all persons affected thereby, a party 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 court in the county or judicial district, as the case may be, where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the county or judicial district, as the case may be, where the deposition is being taken.

(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under 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. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).

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

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

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

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

(b) Failure to Comply with Order.

(1) Sanctions by Court in County or District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county or judicial district, as the case may be, in which the deposition is being taken, the failure may be considered a contempt of that court.

(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this Rule or Rule 35, 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 him from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a 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 him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court may require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure.

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

(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or a managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party wilfully fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories 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 paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court may require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure.

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

VI. TRIALS

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(a) Right Preserved. The right of trial by jury as declared by Part 1, Article 15 of the Constitution of this Commonwealth or as given by a statute shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such a demand may be endorsed upon a pleading of the demanding party. In an action transferred, retransferred, removed or appealed from a District Court or the Municipal Court of the City of Boston, a demand for a trial by jury by a party entitled of right thereto shall be made in accordance with the statute governing such transfer, retransfer, removal, or appeal; but if the statute makes no provision for such demand, he shall be deemed to have waived such right unless within 10 days after the entry of the action in the Superior Court he files such demand therein.

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

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

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(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. In the District Court, the action shall be designed upon the docket as a jury action in accordance with the statutory provisions governing trials by jury in the District Court. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury as to some or all of the issues 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 this Commonwealth.

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

(c) Framing Jury Issues. In all actions not triable of right by a jury, the court, except where otherwise provided by law, may upon motion frame issues of fact to be tried by a jury.

(d) District Court. This rule is inapplicable to proceedings in the District Court unless otherwise provided by statute.

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(a) Assignment of Cases for Trial. Cases may be assigned to the appropriate calendar or list for trial or other disposition by order of the court including general rules and orders adopted for the purpose of assignment. Precedence shall be given to actions entitled thereto by statute.

(b) Continuances. Continuances shall be granted only for good cause, in accordance with general rules and orders which the court may from time to time adopt.

(c) Affidavit or Certificate in Support of Motion. The court need not entertain any motion for a continuance based on the absence of a material witness unless such motion be supported by an affidavit which shall state the name of the witness and, if know, his address, the facts to which he is expected to testify and the basis for such expectation, the efforts which have been made to procure his attendance or deposition, and the expectation which the party has of procuring his testimony or deposition at a future time. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit. The same rule shall apply, with the necessary changes in points of detail, when the motion is grounded on the want of any material document, thing, or other evidence.

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(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of these rules and of any statute of this Commonwealth, 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 (a), an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal: Effect Thereof.

(1) On Court's Own Motion. The court may on notice as hereinafter provided at any time, in its discretion, dismiss for lack of prosecution any action which has remained upon the docket for three years preceding said notice without activity shown other than placing upon the trial list, marking for trial, being set down for trial, the filing or withdrawal of an appearance, or the filing of any paper pertaining to discovery. The notice shall state that the action will be dismissed on a day certain, (not less than one year from the date of the notice) unless before that day the case has been tried, heard on the merits, otherwise disposed of, or unless the court on motion with or without notice shall otherwise order. The notice shall be mailed to the plaintiff's attorney of record, or, if there be none, to the plaintiff if his address be known. Otherwise such notice shall be published as directed by the court. Dismissal under this paragraph shall be without prejudice.

(2) On Motion of the Defendant. On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff the court shall make findings as provided in Rule 52(a).

(3) Effect. Unless the dismissal is pursuant to paragraph (1) of this subdivision (b), or unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

(c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading or a motion for summary judgment is served, whichever first occurs, or, if there is none, before the introduction of evidence at the trial or hearing.

(d) Costs of Previously-Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

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(a) Courts Other Than District Court: Consolidation. When actions involving a common question of law or fact are pending before the court, in the same county or different counties, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

(b) Courts Other Than District Court: Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trial will be conducive to expedition and economy, may order a separate trial in the county where the action is pending or in a different county of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Constitution of this Commonwealth or as set forth in a statute.

(c) District Court: Joinder for Trial; Consolidation. When actions involving a common question of law or fact are pending before a single District 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 cost or delay.

A party who moves for the consolidation and trial together of cross actions between the same parties or two or more actions, including other court proceedings, arising out of or connected with the same accident, event or transaction, pending in more than one District Court, shall file the original copy of the motion in any such court. The party making such motion shall send notices thereof forthwith, together with a copy of the motion, to interested parties and to the clerk(s) of the other court(s) involved in the requested consolidation. The party making such motion shall annex thereto a certificate stating the time and place of filing such motion, the names and addresses of all interested parties, and showing that the party has given such notices and the time and manner of giving the same. The said motion and certificate shall then be forwarded forthwith by the clerk to the presiding justice of the Appellate Division District of the said court and it shall be marked for hearing and all parties so notified. The clerk shall note upon the motion and docket the day and hour of the filing of same. All notices received by a clerk of the filing of a motion for consolidation in another court shall be docketed by the clerk in the proper case.

Upon allowance of any such motion, the presiding justice or some justice designated by the presiding justice shall make an order providing for the consolidated trial of the actions involved, and copies of such order shall be forwarded to the clerks of the courts involved in the requested consolidation. The clerk of the court in which the consolidated actions will be heard shall notify all interested parties of the order to consolidate. All papers filed in the case, all bonds, and a certified copy of the docket entries shall be forwarded by the clerk(s) of the court(s) of origin to the court where such actions or proceedings are consolidated, and such actions or proceedings shall thereafter proceed in the court to which they are thus transferred as though originally entered there.

If all the parties to any such actions agree upon consolidation and trial together, the order therefor shall be signed by the presiding justice or some justice designated by the presiding justice.

Whenever in this rule any reference is made to the presiding justice, in the Municipal Court of the City of Boston it shall be deemed to refer to the Chief Justice of that court.

(d) District Court: Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Constitution of this Commonwealth or as set forth in a statute.

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(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of this Commonwealth or under the rules of evidence applied in this Commonwealth. The competency of a witness to testify shall be determined in like manner.

(b) Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, except by evidence of bad character, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. Any other witness may be cross-examined without regard to the scope of his testimony on direct, subject only to the trial judge's sound discretion.

(c) Record of Excluded Evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.

(d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation under the penalties of perjury 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 depositions.

(f) Interpreters. The court may appoint an interpreter of its own selection and may fix his 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.

(g) Examination of Witnesses. Unless otherwise permitted by the court, the examination and cross-examination of any witness shall be conducted by one attorney only for each party. The attorney shall stand while so examining or cross-examining unless the court otherwise permits.

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(a) Authentication.

(1) Domestic. An official record kept within the Commonwealth, 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 legal custody of the record, or by his deputy. If the record is kept in any other state, district, commonwealth, territory or insular possession of the United States, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, any such copy shall be accompanied by a certificate that such custodial officer has the custody. This certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official 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.

(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, by any other method authorized by law, of the existence of, or the lack of, an official record, or of entry, or lack of entry therein.

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A party who intends to raise an issue concerning the law of the United States or of any state, territory or dependency thereof or of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The court's determination shall be treated as a ruling on a question of law.

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

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

(c) Service. A subpoena may be served by 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 by delivering a copy thereof to such person, or by exhibiting it and reading it to him, or by leaving a copy at his place of abode; and by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or the Commonwealth or a political subdivision thereof, or an officer, or agency of either, fees and mileage need not be tendered.

(d) Subpoena for Taking Deposition; Place of Examination.

(1) No subpoena for the taking of a deposition shall be issued prior to the service of a notice to take the deposition.

The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by these rules, but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule.

A deposition subpoena upon a party which commands the production of documents or things must give the party deponent at least thirty days for compliance after service thereof. Such subpoena shall not require compliance of a defendant within 45 days after service of the summons and complaint on that defendant. The court may allow a shorter or longer time.

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

(2) Unless the court orders otherwise, a resident of this Commonwealth shall not be required to attend an examination at a place more than 50 airline miles distant from either his residence, place of employment, or place of business, whichever is nearest to the place to which he is subpoenaed. A non-resident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court.

(e) Subpoena for a Hearing or Trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued by any of the persons directed in subdivision (a) of this rule. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the Commonwealth.

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

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Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

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(a) Examination of Jurors. The trial judge shall examine on oath all persons called as jurors, in each case, and shall ask: (1) whether any juror or any member of his family is related to any party or attorney therein; (2) whether any has any interest therein; (3) whether any has expressed any opinion on the case; (4) whether any has formed any opinion thereon; (5) whether any is sensible of any bias or prejudice therein; and (6) whether any knows of any reason why he cannot or does not stand indifferent in the case. The jurors shall respond to each question separately before the next is propounded. The trial judge may submit, of his own motion or on that of any party, such additional questions as he deems proper. The trial judge may also, on motion of any party, permit the parties or their attorneys to make such further inquiry of the jurors on oath as he deems proper.

(b) Courts Other Than District Courts: Additional Jurors. The court may order impanelled a jury of not more than sixteen members and the court shall have jurisdiction to try the case with such jury as provided by law. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 additional jurors are to be impanelled, and 2 peremptory challenges if 3 or 4 additional jurors are to be impanelled.

(c) District Court: Additional Jurors. The court may order impanelled a jury of not more than eight members and the court shall have jurisdiction to try the case with such jury as provided by law. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 additional jurors are to be impanelled.

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The parties may stipulate that the jury shall consist of any number less than twelve or less than six in the District Court, 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.

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(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 his right to a trial by jury of the issue so omitted unless before the jury retires he 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 appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.

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

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

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

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

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

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

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(a) Time for Argument. Counsel for each party shall be allowed thirty minutes for argument; but before the argument commences, the court, on motion or sua sponte, may reasonably reduce or extend the time. When two or more attorneys are to be heard on behalf of the same party, they may divide their time as they elect.

(b) Instructions to Jury: Objection. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

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(a) Courts Other Than District Court: Effect. In all actions tried upon the facts without a 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. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)(2).

(b) Courts Other Than District Court: Amendment. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The 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) District Court: Effect. In all actions tried upon the facts without a jury, except as otherwise provided in Rule 65.3, the court shall find the facts specially and state separately its conclusions of law thereon, provided that any party submits before the beginning of any closing arguments proposed findings of fact and rulings of law. Upon request made before the beginning of any closing arguments, such party shall have the right to submit supplemental proposed findings of fact and rulings of law within three days. Each proposed finding of fact and ruling of law should be set forth concisely in a separately numbered paragraph covering one subject. Judgment shall be entered pursuant to Rule 58. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)(2).

(d) District Court: Amendment. Upon motion of a party made not later than 10 days after entry of judgment, or upon its own initiative not later than 10 days after entry of judgment, the court may amend its findings, if any, 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.

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(a) Definition. The following words, as used in this rule, shall mean:

(i) "master" shall mean any person, however designated, who is appointed by the court to hear evidence in connection with any action and report facts.

(ii) "stenographer" shall mean a stenographer appointed by the master before commencement of the hearing.

(b) Appointment.

(1) Member of Bar. The court in which an action is pending may appoint a master therein subject, however, to a standing order, if any, of the Administrative Justice designating classes of cases not to be tried to a master, and provided further that in the District Court, no master may be appointed without the assent of all parties. No master shall be appointed who is not a member in good standing of the bar of one of the United States or of the District of Columbia.

(2) Selection by Agreement. Prior to appointment of a master, the court shall inquire whether the parties can agree upon a master. The court shall appoint the person agreed upon unless the court is of the opinion that the proposed master is unqualified, or for other good reason should not be appointed.

(3) Selection Without Agreement. If the parties cannot agree upon a master, the court whenever practicable shall select a master from such official standing list of masters, if any, as may have been approved by the department in which the action is pending. The court may select from such list a non-resident of the county in which the action is pending or a person whose office is not in said county. If the court finds that special circumstances make it advisable to select and appoint a master whose name is not on an official standing list, in making such appointment it shall forthwith file with the clerk a statement containing its specific reasons for selecting and appointing a master not on such list.

(4) Objection to Master Selected. If an objection is made by any party to the appointment of a master selected by the court, whether from the official standing list, if any, or otherwise, the objecting party shall file with the court within five (5) days of notice of such appointment a written objection to such appointment, and notice of such filing shall be forwarded forthwith by the clerk of court to the referring justice. The grounds for such objection shall not be included within such written objection but shall be furnished to the referring justice upon his request and in the form that the referring justice shall order.

(5) Inability to Serve. Upon receipt of an order of reference as herein provided, a person appointed a master shall notify the referring justice immediately if he is unable or unwilling to serve as master in the case. No person shall accept appointment as master in any case in which he cannot be impartial. If there are circumstances known to the master, which may give the appearance of partiality, including the existence of any pending matter between the master and any party to the litigation or any party's counsel, the master must make full written disclosure to the referring justice and all parties immediately after receipt of the order of reference.

(c) Compensation. The compensation allowed to a master may be charged in whole or in part upon the parties, or out of any fund or subject matter of the action which is in the custody or control of the court, or, when authorized by law, upon the Commonwealth, as the court may direct. The rate of compensation to be paid by the parties or out of any fund or subject matter of the action shall be fixed by the court; the rate of compensation to be paid by the Commonwealth shall be fixed from time to time by rule of each department. Where compensation is to be paid by the Commonwealth, no additional compensation shall be accepted from the parties, unless approved by the court and stated in the order of reference. When a party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.

(d) Order of Reference. A master shall be appointed by a written order of reference. Said order: (i) shall either fix definite times for the hearings or fix the time when or before which hearings shall be begun and the time within which they shall be ended; (ii) shall fix the time for the filing of the master's report; (iii) may specify or limit the master's powers and may direct him to report only upon particular issues or to do or perform particular acts.

(e) Powers. Subject to the specifications and limitations stated in the order of reference, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and he shall have the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath.

(f) Proceedings.

(1) Hearings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof the master shall forthwith notify the parties or their attorneys of the time, date and place of the first hearing. The order of reference may require that the hearings proceed from day to day, Saturdays, Sundays and holidays excepted, until completed. If the court does not order the master to proceed from day to day, nevertheless he shall proceed as nearly as possible on consecutive days, and shall grant no adjournment for a longer period than seven (7) days except by order of the court. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make his report. The court may change or extend the time for hearings. Hearings shall be held at a court house, unless the parties and the master agree otherwise or, upon application by the master, the court expressly orders that hearings be held elsewhere.

(2) Evidence. Rules 43(a), (b), (d) and (g) will govern hearings before masters. If an objection to a question propounded to a witness is sustained by the master, and there is a stenographer present, upon request the master shall take the proffered evidence as an offer of proof unless the master finds that the proffered evidence is privileged.

(3) Interpreters. The master may appoint an interpreter whose compensation shall be fixed by the court. 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.

(4) Stenographers. No master shall, without prior approval of the court, appoint a stenographer to be paid by the Commonwealth.

(5) Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.

(6) Failure to Appear. If all parties fail to appear at a hearing without showing good cause, the master shall report forthwith to the clerk of the court in which the action is pending, and the clerk shall bring such report forthwith to the attention of the referring justice, if practicable, otherwise to any justice of the court. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment, or apply to the court, with notice to the parties, for the imposition of sanctions.

(7) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished by the court as for a contempt.

(g) Master's Report.

(1) Contents. The master shall prepare a report upon the matters submitted to him by the order of reference, and, if required by the order of reference to make findings of fact and conclusions of law, he shall set them forth in the report. The master's report will contain the master's general finding upon each issue that is within the order of reference and will include and clearly identify the subsidiary findings upon which each general finding is based. No general findings will be presumed by the court to be supported by subsidiary findings which are not stated in the report as the basis therefor. In a jury case, the master's report shall contain findings on damages, separately stated, irrespective of his determination of liability. In a non-jury case the master need not make findings on damages if he determines that there is no liability. Any party, at the conclusion of the evidence may file with the master requests for findings of fact and conclusions of law.

(2) Filing. At least 20 days before filing his report, the master shall submit a draft thereof to counsel for all parties. Counsel for any party may submit to the master suggested amendments in writing, copies of which must be contemporaneously submitted to counsel for all of the parties. The master may, in his discretion, allow a hearing on any suggested amendments. If any suggested amendment is adopted by the master, he shall furnish counsel for all parties with copies of said amendment contemporaneously with the filing of his report. Within 60 days after the close of the evidence, unless the court, on motion or otherwise, for good cause shown, shall alter the time, the master shall file his report and the original exhibits with the clerk of the court. The clerk shall forthwith mail to all parties notice of the filing.

(h) Master's Report in Non-Jury Cases.

(1) Status of Report. In an action to be tried without a jury, the court shall accept the master's subsidiary findings of fact unless they are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master as a matter of law or are otherwise tainted by error of law. Any party who contends that the master's subsidiary findings are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master or are otherwise tainted by error of law must make such contentions by objection as hereinafter provided. The court may draw its own inferences from the master's subsidiary findings. The court may make findings in accordance with Rule 52, which are in addition to the master's findings and not inconsistent therewith, based either on evidence presented to the court or evidence before the master which was recorded by means approved by the master before commencement of the hearing.

(2) Objections to Report. Within 30 days after service of notice of the filing of the report or such other time as the court may allow, any party may serve written objections thereto upon every other party making any of the contentions referred to in paragraph (1) of this section, clearly stating the grounds for each objection and the relief sought. At any time after the filing of objections or the expiration of the time therefor, any party may move the court, with notice to all other parties, to act upon the report and upon any objections thereto, provided, however, the court may so act upon its own motion after notice to all parties.

(3) Limitations on Review. The court will not review a question of law dependent upon evidence before the master unless the evidence was recorded by a stenographer and a transcript of so much of the proceedings before the master as is necessary to dispose of the objections adequately is served, together with the objections, upon every other party. Any party may designate additional portions of the transcript for submission to the court by the service of notice within 10 days after service of the objections. The objecting party shall serve such additional portions upon every other party; but if the objecting party shall refuse to do so, the party designating such additional portions shall either serve them upon every other party or shall move the court to require the objecting party to do so. At the time of ordering a transcript from the stenographer, a party shall make satisfactory arrangements with the reporter for payment of the cost of any transcript ordered. The parties are encouraged to agree as to the portions of the transcript that will accompany the objections.

(4) Action on Report. The court may adopt the report, strike it in whole or in part, modify it, recommit it to the master with instructions or take any other action that justice requires. Any motion to adopt a report shall be deemed to include a motion to enter judgment and shall be accompanied by a proposed form of judgment.

(i) Master's Report in Jury Cases.

(1) Status of Report. In an action to be tried by a jury the master's findings upon all the issues submitted to him are admissible as prima facie evidence of the matters found and may be read to the jury and, in the discretion of the court, may be submitted to the jury as an exhibit, subject, however, to the rulings of the court upon any objections properly preserved as hereinafter provided.

(2) Objections to Report. Within 30 days after service of notice of the filing of the report or within such further time as the court may allow any party may serve written objections thereto upon every other party objecting to the findings as mutually inconsistent, unwarranted by the evidence before the master as matter of law or otherwise tainted by error of law, clearly stating the grounds for each objection and the relief sought. Within 45 days after service of objections or such further time as the court may allow, the objecting party shall move the court to act upon the objections and within said 45 days or such further time as the court may allow said motion must be heard by the court.

(3) Limitations on Review. The court will not review a question of law dependent upon evidence before the master unless the evidence was recorded by a stenographer and a transcript of so much of the proceedings before the master as is necessary to dispose of the objections adequately is served together with the objections upon every other party. Any party may designate additional portions of the transcript for submission to the court by the service of notice within 10 days after service of the objections. The objecting party shall serve such additional portions upon every other party; but if the objecting party shall refuse to do so, the party designating such additional parts shall either serve them upon every other objecting party or shall move the court to require the objecting party to do so. At the time of ordering the transcript from the stenographer, a party shall make satisfactory arrangements with the reporter for payment of the cost of any transcript ordered. The parties are encouraged to agree as to the portions of the transcript that will accompany the objections.

(4) Action on Report. The court may strike the report in whole or in part, modify it, recommit it to the master with instructions or take any other action that justice requires.

VII. JUDGMENT

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(a) Definition; form. The terms "judgment" and "final judgment" include a decree and mean the act of the trial court finally adjudicating the rights of the parties affected by the judgment, including:

(1) judgments entered under Rule 50(b) and Rule 52(a) and (b);

(2) judgments entered under Rule 58 upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, or upon a special verdict under Rule 49(a) or a general verdict accompanied by answers to interrogatories under Rule 49(b).

A judgment shall not contain a recital of pleadings, the report of a master or the record of prior proceedings.

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

(d) Costs. Except when express provision therefor is made either in a statute of the Commonwealth or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the Commonwealth, its officers, and agencies shall be imposed only to the extent permitted by law. Except for those costs which are subject to the discretion of the court, costs shall be taxed by the clerk according to law.

Costs which are subject to the discretion of the court may be taxed by the court upon 5 days' notice. Costs which are taxable by the clerk may be taxed without notice unless a party notifies the clerk at any time after judgment and before execution that he desires to be present at the taxation of costs. Such notification shall be in writing and entered on the docket. If such notification is given, the clerk shall set a time for the taxation of costs, and shall give notice to all interested parties. The clerk shall include in the costs taxed only such items as are shown by the record and files at the time of taxation. On motion served within 5 days after receipt of notice of taxation of costs by the clerk, the action of the clerk may be reviewed by the court.

A party claiming costs shall file such certificates, affidavits and vouchers pertaining to items of costs, as he desires to have considered in taxing costs. Copies of such certificates, affidavits and vouchers shall be served by said party upon all other parties at least 5 days prior to the taxation of costs.

Whenever costs are awarded to two adverse parties in the same case, the court may order one sum to be set off against the other. If such set-off is not ordered, each party may have execution for the costs due him.

(e) Costs on Depositions. The taxation of costs in the taking of depositions, including audio-visual depositions, shall be subject to the discretion of the court, but in no event shall costs be allowed unless the court finds that the taking of the deposition was reasonably necessary, whether or not the deposition was actually used at the trial. Taxable costs may include the cost of service of subpoena upon the deponent, the reasonable fees of the officer before whom the deposition is taken, the fees and mileage allowances of the witnesses, the stenographer's reasonable fee for attendance, and the cost of the transcript of the testimony or such part thereof as the court may fix. When an audio-visual deposition is taken, taxable costs may include a reasonable fee for the use of the audio-visual equipment and for the services of the operator both in recording the deposition and editing it.

(f) Interest. Every judgment for the payment of money shall bear interest up to the date of payment of said judgment. Interest accrued up to the date of entry of a judgment shall be computed by the clerk according to law. Unless otherwise ordered by the court, interest from the date of entry of a judgment to the date of execution or order directing the payment of said judgment shall also be computed by the clerk, and the amount of such interest shall be stated on the execution or order.

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(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 his 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 clerk upon request of the plaintiff and upon affidavit of the amount due and affidavit that the defendant is not an infant or incompetent person, shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear.

(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 or incompetent person unless represented in the action by a general guardian, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 7 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 and proper and shall accord a right of trial by jury to the parties when and as required by statute.

(3) The provisions of subparagraph (b)(2) supplement, but do not supersede, any other requirements of notice established by law.

(4) Affidavit Required. Notwithstanding the foregoing, no judgment by default shall be entered until the filing of an affidavit made by any competent person, on the affiant's own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in the "Servicemembers Civil Relief Act", as set forth in 50 U.S.C. App.§§ 501 et seq., except upon order of the court in accordance with the Act.

(c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment 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).

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(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 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For Defending Party. A party against 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 his 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 responses to requests for admission under Rule 36, 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. Summary judgment, when appropriate, may be rendered against the moving party.

(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 his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

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

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

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The procedure for obtaining a declaratory judgment pursuant to General Laws c. 231A 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. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.

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(a) After Trial or Hearing or by Agreement. Subject to the provisions of Rules 54(b) and 23(c): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, or upon a written agreement for judgment for a sum certain or denying relief, the clerk, unless the court otherwise orders, shall forthwith prepare, sign and enter judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict under Rule 49(a) or a general verdict accompanied by answers to interrogatories under Rule 49(b), the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document; but when any party files an agreement for judgment, or a notice or stipulation of dismissal pursuant to Rule 41(a)(1), the agreement, notice, or stipulation, as the case may be, shall, upon being filed, constitute the judgment, for all purposes, and no separate document need be prepared. A judgment is effective only when so set forth or filed and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall submit forms of judgment upon direction of the court. The court, on motion, may allow a hearing on the form of the judgment.

(b) Upon Order of Supreme Judicial Court. The clerk shall enter any judgment specifically directed by the Supreme Judicial Court.

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(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 in the courts of the Commonwealth; 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 in the courts of the Commonwealth. A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive. A new trial shall not be granted solely on the ground that the damages are inadequate until the defendant has first been given an opportunity to accept an addition to the verdict of such amount as the court adjudges reasonable. 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. A motion for a new trial shall be served not later than 10 days after the entry of judgment.

(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

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

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

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(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) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under 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 set aside a judgment for fraud upon the court. Writs of review, of error, of audita querela, and petitions to vacate judgment 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.

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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.

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

(b) Stay on Motion to Vacate Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for relief from a judgment or order made pursuant to Rule 60.

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

(d) Stay Upon Appeal. Except as otherwise provided in these rules, the taking of an appeal from a judgment shall stay execution upon the judgment during the pendency of the appeal.

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

(f) 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.

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

VIII. PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEDURES

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(a) Courts Other Than District Court. The court, after verdict or after a finding of facts under Rule 52, may report the case for determination by the Appeals Court. If the trial court is of opinion that an interlocutory finding or order made by it so affects the merits of the controversy that the matter ought to be determined by the Appeals Court before any further proceedings in the trial court, it may report such matter, and may stay all further proceedings except such as are necessary to preserve the rights of the parties. The court, upon request of the parties, in any case where the parties agree in writing as to all the material facts, may report the case to the Appeals Court for determination without making any decision thereon. In an action commenced before a single justice of the Supreme Judicial Court, the court may report the case in the circumstances above described to either the Appeals Court or the full Supreme Judicial Court; provided further that a single justice of the Supreme Judicial Court may at any time reserve any question of law for consideration by the full court, and shall report so much of the case as is necessary for understanding the question reserved.

(b) District Court. Report of a case or a ruling by the court to the Appellate Division shall be governed by District/Municipal Courts Rules for Appellate Division Appeal 5.

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(a) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if 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 his attorney can be heard in opposition. 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; 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. In case a temporary restraining order is granted without notice, the application for a preliminary injunction shall be set down for hearing at the earliest possible time, and in any event within 10 days, and takes precedence of all matters except older matters of the same character; and when the matter comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he 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.

(b) 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. This subdivision (b)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

(c) Security. Unless the court, for good cause shown, shall otherwise order, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court 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 or of the Commonwealth or of a political subdivision of the Commonwealth or of any officer or agency of any of them.

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. Unless the court, for good cause shown, otherwise orders, an injunction or restraining order 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.

(e) Labor Disputes. These rules are subject to any statutory provisions relating to restraining orders and injunctions in actions involving or growing out of labor disputes.

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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 himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability 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.

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In an action for the redelivery of goods or chattels brought pursuant to General Laws c. 214, § 3, an order that a party redeliver goods or chattels may be made ex parte, pursuant to the provisions of Rule 65(a) and existing law governing the issuing of restraining orders, or with notice and hearing, pursuant to Rule 65(b) and existing law governing the issuing of preliminary injunctions. No restraining order or preliminary injunction for the redelivery of goods or chattels shall issue except upon the applicant's giving security, in such sum as the court 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.

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(a) Applicability. Enforcement of compliance with the following court orders shall be sought by means of a separate civil proceeding denominated as a "civil contempt proceeding":

(1) temporary restraining orders, preliminary or permanent injunctions pursuant to Rule 65, or stipulations in lieu thereof;

(2) orders issued pursuant to Rule 70; and

(3) any other orders or judgments entered pursuant to these rules, for the violation of which civil contempt is an appropriate remedy, except for matters cognizable under Rules 26(c), 36(a) and 37.

(b) Commencement. A civil contempt proceeding shall be commenced by the filing of a complaint for contempt with the clerk of the court whose injunction, stipulation, order or judgment is claimed to have been violated.

No entry fee shall be required in connection with the filing of the complaint for civil contempt. The proceeding shall be considered part of the civil action out of which the contempt arose.

(c) Contents of the Complaint. The complaint for civil contempt shall:

(1) contain a complete verbatim statement of the injunction, stipulation, order or judgment involved, or a copy thereof if available, and the name of the issuing judge where appropriate;

(2) identify the court that issued the injunction, order or judgment, or in which the stipulation was filed;

(3) contain the case caption and the docket number of the case in which the injunction, order or judgment was issued, or the stipulation was filed;

(4) include a short, concise statement of the facts on which the asserted contempt is based;

(5) include a prayer for the issuance of a summons as specified in subsection (d) below;

(6) be verified or supported by affidavits complying with the provisions of Rule 11(e); and

(7) otherwise comply with the provisions of Rules 8, 9, 10 and 11.

(d) Summons. The summons shall issue only on a judge's order and shall direct the parties to appear before the court not later than ten days thereafter for the purpose or purposes specifically stated therein of: scheduling a trial, considering whether the filing of an answer is necessary, holding a hearing on the merits of the complaint, or considering such other matters or performing such other acts as the court may deem appropriate.

(e) Service of the Summons and Complaint. A copy of the summons, the complaint for contempt, and any accompanying affidavits shall be served, in hand, upon the defendant in accordance with the provisions of Rule 4, unless the court orders some other method of service or notice.

(f) Answer. Unless the court otherwise orders, the defendant shall serve an answer within twenty days after service of the summons and complaint for contempt. The answer shall comply with the provisions of Rules 8, 9, 10 and 11.

(g) Discovery. A party, by motion, may seek an order permitting discovery. Such motion shall set forth the particular need for discovery, the type of discovery sought and the time required for obtaining the discovery. A motion for discovery in a civil contempt proceeding may be heard on three days' notice.

(h) Trial. The complaint for contempt shall be tried upon the facts in accordance with Rule 52. The court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58.

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(a) An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accordance with the practice heretofore followed in the courts of this Commonwealth and with the laws thereof. 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.

(b) Every receiver, within thirty days after his appointment, shall file a detailed inventory of the property of which he has possession or the right to possession, with the estimated values thereof, together with a list of the encumbrances thereon; and also a list of the creditors of the receivership and of the party whose property is in the hands of the receiver, so far as known to him.

(c) Every receiver shall file, not later than the fifteenth day of February of each year, a detailed account under oath of his receivership to and including the last day of the preceding year, substantially in the form required for an account by a guardian in the probate courts, together with a report of the condition of the receivership. He shall also file such further accounts and reports as the court may order.

(d) When an attorney at law has been appointed a receiver, no attorney shall be employed by the receiver or receivers except upon order of court, which shall be made only upon the petition of a receiver, stating the name of the attorney whom he desires to employ and showing the necessity of such employment.

(e) No order discharging a receiver from further responsibility will be entered until he has settled his final account.

(f) The court, in its discretion, may relieve any receiver from any requirement imposed by sections (b)-(e) of this rule.

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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. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of any applicable statute or rule.

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At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with 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 clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment exclusive of interest from the date of offer 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 does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

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

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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 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 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 Commonwealth, 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. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution upon application to the clerk.

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

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(a) Accounts With Written Assent. If a fiduciary files with his account: (1) the proper filing fee; (2) the written assent or waiver of every person interested in the account, including every person entitled to notice pursuant to G. L. c. 206, § 24; and (3) all tax receipts or tax waivers required by law, the court may forthwith allow the account. If any interested person is either incompetent or under lawful age, the conservator or guardian, as the case may be, shall sign the assent, unless the account is his own account.

(b) Accounts Without Written Assent.

(1) Notice: Form. If the account of a fiduciary is filed for allowance with the proper filing fee and all tax receipts or tax waivers required by law but without the written assent of every person interested in the account, notice of the proceeding for allowance of a fiduciary account or the account of a common trust fund shall be served in accordance with Rule 4(h) on those persons required to be served by G. L. c. 206, § 24. The notice in the form of a citation issued by the court shall state a return date pursuant to General Rule 6 of the Probate Courts and state that any person having an interest affected by the account:

(A) may (and, if he desires to preserve his right to file an objection, shall) file an appearance in accordance with Rule 11(b)(2) on or before the return day;

(B) may, upon written request to the accountant (fiduciary) or counsel by registered or certified mail, obtain without cost to himself, a copy of the account except that, in a proceeding for the allowance of an account of a common trust fund, the notice shall state that any person so requesting may obtain without cost to himself a copy of the annual report of said common trust fund for the period of the account, and may obtain a copy of the account on request, subject to such terms, if any, as to costs which the court may determine upon application of the accountant; and

(C) shall, if he desires to object to any item of the account, file within thirty days after the return day (or such other time as the court, on motion with notice to the accountant, may order) a written statement of each such item, together with the grounds for each objection thereto, a copy thereof to be served upon the accountant pursuant to Rule 5.

(2) Guardian Ad Litem. Whenever the court shall, conformably to law, appoint a guardian ad litem to represent any individual or class concerned in the account, the accountant shall forthwith serve upon such guardian, without cost to the guardian, a copy of the account and the citation. The guardian shall within ninety days after the return day file his report, serving a copy thereof upon the accountant and any person who has filed an appearance; provided that the court may upon ex parte application of the guardian extend the time for filing such report for an additional twenty days or such further time as the court, on motion with notice to the accountant and any person who has filed an appearance, may order.

(3) Failure to Object: Effect. If any person who has filed an appearance shall fail to file an objection within the time specified by par. (b)(1)(C) of this rule, the court, upon motion by the accountant, the guardian ad litem, or any person whose objection is on file (with notice, as the case may be, to the person filing the appearance, the accountant, the guardian, and any person whose objection is on file), may order the appearance struck.

(4) Objection: Effect. If, at any time, there shall have been filed either (A) an objection pursuant to par. (b)(1)(C) of this rule; or (B) a guardian ad litem's report containing an objection, the account shall thenceforth be regarded as contested, and further proceedings shall be governed by the following rules, in addition to this rule, and none other: Rules 1, 4(h), 5, 6, 7(b)-(c), 10(a) (first sentence, except that the caption shall retain the title and docket number of the underlying Probate Court proceedings), 11(a)-(d), 15, 16, 25-37, 40, 42-46, 52-54, 56-59, 60 (except that the provisions of G. L. c. 206, § 24, shall govern the granting of any relief under Rule 60 [b]; and Rule 60[b][3] shall not apply); 61-65(a)-(d), 65.1, 67-71, 77-83, 85. Any reference in any of the specified rules to "plaintiff" or "defendant," or to any particular type of pleading, shall not apply to any proceeding under this rule, except that the word "pleading" as it may appear in those rules shall be taken to include account, objection, or report, as the case may be.

(5) Objection: Withdrawal; Striking.

(A) Any objection previously filed, whether by an interested person or a guardian ad litem, may be withdrawn by filing a statement to that effect, signed by the person or the guardian ad litem, as the case may be, or counsel, and served on any person (including, as necessary, the guardian ad litem) whose appearance is then on file. The conservator or guardian of an incompetent interested person or the guardian of a minor shall sign for the ward.

(B) The court, upon motion by the accountant, the guardian ad litem, or any person whose objection is on file (with notice, as the case may be, to the accountant, the guardian ad litem, and any person whose objection is on file) may order any objection struck for failure to state a valid ground of objection, for frivolity, or for any other similar reason.

(6) Contested Accounts: Hearings. The accountant, any person whose objection is then on file, or the guardian ad litem may mark a contested account for hearing, or request that the court assign a hearing date; or the court may, of its own motion, assign a hearing date.

(7) Uncontested Accounts. An account shall be regarded as uncontested if:

(A) It shall have been filed pursuant to par. (a) of this rule; or

(B) After the return day (i) either no appearance shall be on file or any appearance or objection previously filed shall have been withdrawn or struck; and (ii) the report of the guardian ad litem, if any, shall be on file and contain no objection.

Judgment on any uncontested account may be entered forthwith subject only to the provisions of Rule 60 (except that the provisions of G. L. c. 206, § 24, shall govern the granting of any relief under Rule 60[b]; and Rule 60[b][3] shall not apply).

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IX. COURTS AND CLERKS

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(a) Courts Always Open. Unless otherwise provided by law, the courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning process, and of making and directing all interlocutory motions, orders, and rules.

(b) Clerk's Office and Orders by Clerk. The clerk's office with a clerk or assistant clerk in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays. All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but his action may be suspended or altered or rescinded by the court upon cause shown.

(c) Filing Date of All Papers Received by Clerk. The clerk shall date-stamp all papers whatsoever received by him, whether by hand or by mail. Any paper so received, whether stamped or not, shall be deemed to have been filed as of the date of receipt. If at any subsequent time, any party disputes the fact of such filing, the court shall determine the question, taking whatever evidence it deems appropriate. Proof of mailing shall constitute prima facie proof of receipt.

(d) Notice of Orders or Judgments. Unless an order or judgment is entered in open court in the presence of the parties or their counsel, the clerk shall immediately upon the entry of an order or judgment serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing. In the District Court, such notice shall indicate the court's ruling on any requests for rulings which may have been made. 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, except as permitted in Rule 4 of the Massachusetts Rules of Appellate Procedure or Rule 4 of the District/Municipal Courts Rules for Appellate Division Appeal, and except as relevant to a motion for relief from judgment under Rule 60(b)(6) of the Massachusetts Rules of Civil Procedure.

(e) Transmittal of Papers. In courts other than the District Court, at the direction of any judge of the court, the clerks for the several counties shall transmit the papers in any action from one county to another when a matter has been duly set down for hearing in a county other than that in which the action is pending. Pleadings, motions, and papers to be filed in such case shall be filed in the office of the clerk for the county in which the case is pending. The clerk for the county in which the case is heard shall certify the proceedings had in his county to the clerk for the county in which the case is pending and, at the direction of any judge of the court, shall return to such clerk all the papers, to be kept there on file.

When the court orders a change of venue, such order shall include a direction to the clerk to transmit all papers to the clerk for the county to which the action is transferred and thereafter all the papers shall be filed and all proceedings taken as if the action had been commenced in the county to which it is transferred.

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The 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 a judge at any time or place and on such notice, if any, as he considers reasonable may make orders for the advancement, conduct, and hearing of such motions.

To expedite its business, the court may provide by order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.

The court may require the filing of briefs, in such form and within such time as it may direct.

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(a) Civil Docket. The clerk shall keep the civil docket 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 enter the word "jury" on the folio assigned to that action.

(b) Indices; Calendars. Suitable indices of the civil docket shall be kept by the clerk according to law under the direction of the court.

(c) Other Books and Records of the Clerk. The clerk shall also keep such other books and records as may be required by law or by direction of the court.

(d) Land Court. In the Land Court, the clerk may assign to actions for registration and confirmation, actions for tax liens, and miscellaneous other actions, separate dockets, each having consecutive file numbers, designated respectively, "Registration and Confirmation," "Tax Lien," and "Miscellaneous."

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(a) Courts Other Than District Court: Evidence in Subsequent Trial. Whenever the testimony of a witness at a trial or hearing which was officially stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony.

(b) Courts Other Than District Court: Part of Record on Appeal. A transcript, duly certified by the person officially reporting the testimony, shall be considered part of the record on appeal. The trial court need not appoint said person a commissioner to report the evidence.

(c) District Court: Stenographers. The appointment of stenographers in District Court proceedings shall be in accordance with the applicable statute. Whenever the testimony of a witness at a trial or hearing which was officially stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony. Subject to the discretion of the court, parties may be permitted to record stenographically the proceedings in civil actions at their own expense.

(d) District Court: Sound Recording Devices. The use of sound recording devices to record civil proceedings shall be governed by Rule 114 of the District/Municipal Courts Supplemental Rules of Civil Procedure.

X. GENERAL PROVISIONS

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(a) Applicability in General.

(1) Courts Other Than District Court. These rules apply to all civil proceedings in courts whose proceedings they govern except:

1. proceedings pertaining to the writ of habeas corpus;

2. proceedings pertaining to naturalization;

3. proceedings pertaining to the disciplining of an attorney;

4. proceedings pertaining to juvenile delinquency;

5. proceedings pertaining to contested elections;

6. proceedings pertaining to dissolution of corporations and distribution of their assets;

7. proceedings pertaining to summary process, small claims, and supplementary process;

8. proceedings pertaining to the adjudication, commitment and release of sexually dangerous persons;

9. proceedings for divorce or for the annulment or affirmation of marriage; and

10. proceedings to foreclose any mortgage on real estate brought in compliance with the "Servicemembers Civil Relief Act", as set forth in 50 U.S.C. App. §§ 501 et seq.

(2) District Court. These rules apply to all civil proceedings involved in cases traditionally considered tort, contract, replevin, or equity actions, except small claims actions.

(3) In respects not governed by statute, or in the case of the District Court not governed by other District Court rules, the practice in civil proceedings to which these rules do not apply shall follow the course of the common law, as near to these rules as may be, except that depositions shall not be taken, nor interrogatories served, save by order of the court on motion, with notice, for good cause shown.

(b) Writs Abolished. The following writs are abolished: audita querela; certiorari; entry; error; mandamus; prohibition; quo warranto; review; and scire facias. In any action seeking relief formerly obtainable under any such writ, procedure shall follow these rules.

(c) Superior Court: Trial of Framed Jury Issues. These rules govern the trial of any issues framed in another court for trial in the Superior Court; but nothing herein contained shall authorize the use of discovery procedures contained in these rules, except as a justice of the Superior Court, on motion with notice, may allow for good cause shown.

(d) Terminology in Statutes. In applying these rules to any proceedings to which they apply, the terminology of any statute which also applies shall, if inconsistent with these rules, be taken to mean the analogous device or procedure proper under these rules.

(e) Procedure Not Specifically Prescribed. When no procedure is specifically prescribed, the court shall proceed in any lawful manner not inconsistent with the Constitution of this Commonwealth, these rules, or any applicable statute.

(f) Superior Court: Actions Removed, Transferred or Appealed from Another Court. Except as otherwise provided in subdivision (a) of this rule, these rules apply to civil actions removed, transferred or appealed to the Superior Court from any other court. Repleading is not necessary unless a justice of the Superior Court so orders. If the defendant has not answered prior to removal or transfer, he shall answer or present the other defenses or objections available to him under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleadings, then filed, or within 5 days after the filing of the removal or transfer papers, whichever period is longest.

(g) Actions Transferred or Remanded to District Court. In any action commenced in the Superior Court and transferred to a district court or the Boston Municipal Court, or in any action remanded to either such court after removal to the Superior Court, the rules for the time being in force in the district court or the Boston Municipal Court shall control all proceedings subsequent to the filing of the order for transfer or remand; but all proceedings in the Superior Court shall be governed by these rules.

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These rules shall not be construed to extend or limit the jurisdiction of the courts or the venue of actions therein.

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Any court whose procedure is regulated in whole or in part by these rules may from time to time make and amend supplemental rules, or continue in force existing rules, governing its procedure not inconsistent with these rules. In instances not provided for by rule, each said court may regulate its practice in a manner not inconsistent with these rules and the said supplemental rules.

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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. Unless these rules or the supplemental rules of the Land Court, adopted under Rule 83, otherwise indicate, parties in the Land Court must use forms specified in the Land Court's supplemental rules.

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These rules may be known and cited as the Massachusetts Rules of Civil Procedure. (Mass.R.Civ.P.)

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