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When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.
(b) Enlargement. When by these rules or by a notice given thereunder or by order of the Commission an act is required or allowed to be done at or within a specified time, the Commission, or a Commissioner or examiner in a case being heard by him, or by stipulation of the parties, for cause shown may at any time in its or his discretion (1) with or without motion or notice 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.
(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 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the Commission. 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 opposing affidavits may be served not later than 1 day before the hearing, unless the Commission 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 paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.
Sec. 6. Pleadings allowed, form of motions. (a) Pleadings. There shall be a petition and an answer; and there shall be a reply to a counterclaim denominated as such. No other pleading shall be allowed, except that the Commission may order a reply to an answer.
(b) Motions and other papers. (1) An application to the Commission for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.
(c) Demurrers, pleas, etc. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.
Sec. 7. General rules of pleading. (a) 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 regardless of the nature of the grounds on which they are based. All statements shall be made subject to the obligations set forth in section 10 (b).
(b) A petition shall state with particularity. (1) Any action on the claim previously taken by Congress or by any department of the Government or in any judicial proceeding and whether the claim or any part thereof is included in any suit pending in the Court of Claims or in the Supreme Court of the United States or whether the same has been filed in the Court of Claims under any legislation in effect on the date of the approval of the Indian Claims Commission Act.
(2) If the claim or defense is founded upon an act of Congress or upon the regulation of an executive department or independent establishment, the act and the section thereof on which the pleader relies shall be specified and the particular regulation of the department or independent establishment stated, and a copy of such regulation attached to the petition.
(3) If the claim or defense is founded on a contract or treaty with the United States or an Executive order of the President, the substance of the same shall be set forth in the petition; if in writing, the original or a copy thereof shall be annexed thereto. All parts immaterial to the claim or defense or to the relief sought may be omitted.
(c) Construction of pleading8. All pleadings shall be so construed as to do substantial justice.
Sec. 8. Capacity. (a) Petitions filed by any tribal organization recognized by the Secretary of the Interior as having authority to represent a tribe, band, or group need not aver the capacity of such organization to sue except to the extent required to show the jurisdiction of the Commission. When the United States desires to raise an issue as to the capacity of such a recognized tribal organization to sue, it shall do so by specific negative averments, which shall include supporting particulars.
(b) If a petition is filed by one or more members of a tribe, band, or other identifiable group having a tribal organization which is recognized by the Secretary of the Interior because the tribal organization has failed or refused to take any action authorized by the act,
the petition shall be verified and shall aver that the petitioner is a member of the tribe, band, or group. The petitioner shall also set forth with particularity the efforts of the petitioner to secure from the duly constituted and recognized officers of said tribal organization such action as he desires and the reasons for his failure to obtain such action (such as fraud, collusion, or laches) or the reasons for not making such effort.
(c) Petitions filed by one or more members on behalf of an unorganized tribe, band, or other identifiable group shall be verified and shall aver (1) that the petitioner or petitioners are members of the tribe, band, or group (2) a description of the unorganized tribe, band, or group of sufficient comprehension to identify the tribe, band, or group on whose behalf the petition is filed.
SEC. 9. Form of pleadings. (a) Caption; names of parties. Every pleading shall contain a caption setting forth the name of the Commission, and the title of the action, and a designation as in section 6 (a). A petition filed on behalf of a tribal organization under the provisions of section 1 (b) shall be commenced in the name of such tribe, band, or group. A petition filed on behalf of an organized tribe, band, or group under the provisions of section 1 (c), or an unorganized group under section 1 (d), shall be in the name of the member or members filing the same on the relation of the tribe, band, or group. In the petition the title of the action shall include the names of all the parties, but in other pleadings it shall be unnecessary to name more than one of the petitioners.
(b) Paragraphs; Separate Statements. All averments of claims or defenses 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.
Sec. 10. Signing of Pleadings. (a) Petitioner. Every pleading of a party other than the United States represented by an attorney shall be signed by the attorney of record, designated under section 35, in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign its pleading and state its address.
(b) Effect of. The signature of an attorney constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge,
information, and belief there is good ground to support it; and that it is not interposed for delay.
SEC. 11. Defenses and objections. (a) When presented. The United States shall serve its answer to the petition except a demand for a counterclaim or set-off, within 60 days after service on the Attorney General as herein provided. The service of any motion permitted under this section alters this period of time as follows, unless a different time is fixed by order of the Commission: (1) If the Commission denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 30 days after notice of the Commission's action or before the expiration of 60 days from the service of the petition, whichever is latest; (2) if the Commission grants a motion for a more definite statement the responsive pleading shall be served within 60 days after the service of the more definite statement.
(b) How presented. Every defense to a claim for relief in any pleading except a counterclaim or set-off by the United States, 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) insufficiency of service, (4) failure to state a claim upon which relief can be granted. 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, it may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (4) 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 Commission, the motion shall be treated as one for summary judgment and disposed of, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.
(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 Commission, the motion shall be treated as one for summary judgment and disposed of, and all parties shall be given a reasonable opportunity to present all material pertinent to such a motion.
(d) Preliminary hearings. The defenses specifically enumerated
as subparagraphs (1)-(4) in paragraph (b) of this section, whether made in a pleading or by motion, and the motion for judgment mentioned in paragraph (c) of this section shall be heard and determined before trial on application of any party, unless the Commission orders that the hearing and determination thereof be deferred until the trial. Any pleading which includes any of the defenses enumerated in paragraph (b) of this section shall be accompanied by the statement of points and authorities required by section 22 (a) (1).
(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, it may move for a more definite statement before interposing its 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 Commission is not obeyed within 10 days after notice of the order or within such other time as the Commission may fix, the Commission 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 it or upon the Commission's own initiative at any time, the Commission may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
(g). Consolidation of motions. A party who makes a motion under this section may join with it the other motions provided for in this section and then available to it. If a party makes a motion under this section and does not include therein all defenses and objections then available to it which this section permits to be raised by motion, it shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in paragraph (h) of this section.
(h) Waiver of defenses. The United States waives all defenses and objections which it does not present either by motion as hereinbefore provided or, if it has made no motion, in its answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, and the objection of failure to state a defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleading or at the trial on the merits, and except (2) that, whenever it appears by suggestion of the parties or otherwise that the Commission lacks jurisdiction of the subject matter, the Commission shall dismiss the action. The objection or defense, if made at the trial, shall be disposed of as provided in section 13 in the light of any evidence that may have been received.