Civil Procedure Outline • For cases relating to justiciability, such as standing, mootness and ripeness, cases relating to the

powers of the Court or cases relating to maintaining order in the Courtroom, see Courts Outline. • For cases relating to the subject matter jurisdiction of Navajo courts as it arises from the

sovereignty of the Navajo government, see Federal Indian Law Outline. • For cases relating to the enforcement of judgments, see Remedies Outline.

Contents

I.  General .................................................................................................................................... 1 

A.  Court’s power to enforce .................................................................................................. 1 

B.  Use of case law from other jurisdictions .......................................................................... 1 

C.  Translators ........................................................................................................................ 1 

D.  No removal to federal courts ............................................................................................ 1 

E.  Conflict of laws ................................................................................................................ 1 

II.  Jurisdiction .............................................................................................................................. 2 

A.  General Jurisdictional Concepts ....................................................................................... 2 

1.  Defined ......................................................................................................................... 2 

2.  Necessity for courts ...................................................................................................... 2 

3.  Authority to rule on jurisdiction ................................................................................... 2 

4.  Allegations in complaint ............................................................................................... 2 

5.  Factors considered ........................................................................................................ 3 

6.  Challenging jurisdiction ............................................................................................... 3 

7.  Discovery on jurisdiction.............................................................................................. 4 

8.  Ancillary jurisdiction .................................................................................................... 4 

9.  Navajo courts must rule on jurisdiction first ................................................................ 4 

B.  Subject Matter Jurisdiction ............................................................................................... 4 

1.  Presumption of jurisdiction .......................................................................................... 4 

2.  Policy of exercising jurisdiction to the permissible limits ........................................... 4 

3.  Resolving subject matter jurisdiction disputes ............................................................. 4 

4.  Subject matter jurisdiction of Navajo courts defined ................................................... 5 

5.  Presumed to correspond to sovereignty and territory ................................................... 5 

6.  Not subject to accusations of local bias ........................................................................ 5 

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7.  Sources of judicial authority ......................................................................................... 6 

8.  Circumstances conferring jurisdiction on Navajo courts ............................................. 7 

9.  Exclusive jurisdiction over Indian parties .................................................................... 8 

10.  General civil jurisdiction over non-Indians .................................................................. 8 

11.  Jurisdiction over allotments .......................................................................................... 8 

C.  Personal Jurisdiction ........................................................................................................ 9 

1.  General.......................................................................................................................... 9 

2.  Personal jurisdiction based upon causing injury to occur on Navajo Nation ............... 9 

3.  Due process rights ...................................................................................................... 10 

4.  Minimum contacts ...................................................................................................... 10 

5.  Fairness under Navajo values ..................................................................................... 11 

6.  Personal jurisdiction due to doing business on Navajo Nation .................................. 11 

7.  Waiver ........................................................................................................................ 11 

D.  Venue ............................................................................................................................. 12 

E.  Abstention ...................................................................................................................... 13 

F.  Comity................................................................................................................................ 13 

1.  General........................................................................................................................ 13 

2.  Considerations ............................................................................................................ 13 

3.  Propriety of proceedings ............................................................................................. 14 

4.  Compared to full faith and credit ................................................................................ 14 

5.  Specific instances of comity ....................................................................................... 14 

III.  Pleadings ............................................................................................................................ 14 

A.  One form of action ......................................................................................................... 14 

B.  Complaint ....................................................................................................................... 14 

1.  Purpose ....................................................................................................................... 14 

2.  Necessary allegations ................................................................................................. 15 

3.  Due process concerns ................................................................................................. 15 

4.  Pre-judgment interest .................................................................................................. 15 

C.  Filing .............................................................................................................................. 15 

D.  Service ............................................................................................................................ 15 

1.  Service by publication ................................................................................................ 15 

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2.  Service by certified mail ............................................................................................. 16 

3.  Standard of review ...................................................................................................... 16 

4.  Service of summons required ..................................................................................... 16 

5.  Notice required ........................................................................................................... 16 

6.  Defects cured by Defendant’s appearance in court .................................................... 17 

7.  Dismissal of complaint for failure to serve ................................................................ 17 

8.  Sufficiency of notice ................................................................................................... 17 

9.  Service requirements jurisdictional ............................................................................ 17 

10.  Service is complete despite Defendant’s refusal to accept ......................................... 17 

11.  Process server must know identity of Defendant ....................................................... 18 

12.  Who may serve summons ........................................................................................... 18 

13.  Service of papers after initial complaint ..................................................................... 18 

E.  Time ............................................................................................................................... 18 

F.  Answers and affirmative defenses ..................................................................................... 19 

1.  Answers ...................................................................................................................... 19 

2.  Affirmative defenses................................................................................................... 19 

G.  Specific Pleading Issues ................................................................................................. 20 

H.  Rule 12 Motions ............................................................................................................. 20 

1.  Failure to state a claim ................................................................................................ 20 

2.  Failure to serve summons ........................................................................................... 20 

3.  Improper venue ........................................................................................................... 21 

4.  General rules for motions ........................................................................................... 21 

I.  Amendments ...................................................................................................................... 21 

J.  Third-Party Practice ........................................................................................................... 21 

K.  Counterclaims ................................................................................................................. 21 

1.  Jurisdiction.................................................................................................................. 21 

2.  Defined ....................................................................................................................... 22 

3.  Reply necessary .......................................................................................................... 22 

4.  Compulsory counterclaims ......................................................................................... 22 

IV.  Pre-trial conferences .......................................................................................................... 22 

V.  Parties .................................................................................................................................... 22 

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A.  Interpleader ..................................................................................................................... 22 

B.  Intervention .................................................................................................................... 23 

C.  Indispensible Parties ....................................................................................................... 23 

D.  Substitution of parties..................................................................................................... 23 

E.  Class actions ................................................................................................................... 23 

VI.  Discovery ........................................................................................................................... 24 

A.  General ........................................................................................................................... 24 

1.  Purpose of discovery .................................................................................................. 24 

2.  Failure to respond ....................................................................................................... 24 

3.  Scheduling .................................................................................................................. 24 

4.  Experts ........................................................................................................................ 24 

5.  Standard of discovery ................................................................................................. 24 

B.  Depositions ..................................................................................................................... 25 

C.  Interrogatories ................................................................................................................ 25 

D.  Requests for inspection .................................................................................................. 25 

E.  Requests for admissions ................................................................................................. 25 

F.  Physical or mental examinations ....................................................................................... 25 

G.  Subpoenas....................................................................................................................... 25 

H.  Sanctions ........................................................................................................................ 25 

1.  Authority to impose .................................................................................................... 25 

2.  Purpose of sanctions ................................................................................................... 25 

3.  Default as sanction...................................................................................................... 26 

4.  Dismissal as sanction .................................................................................................. 26 

5.  Attorneys’ fees as sanction ......................................................................................... 26 

VII.  Trial .................................................................................................................................... 26 

A.  Jury trials ........................................................................................................................ 26 

1.  Right to jury trial ........................................................................................................ 26 

2.  Composition of jury .................................................................................................... 27 

3.  Jury selection .............................................................................................................. 27 

4.  Jury instructions .......................................................................................................... 28 

5.  Jury fees ...................................................................................................................... 28 

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6.  Waiver ........................................................................................................................ 28 

7.  Verdicts ....................................................................................................................... 28 

B.  Bifurcation ...................................................................................................................... 28 

C.  Motions for directed verdict ........................................................................................... 28 

D.  Burden of proof .............................................................................................................. 29 

E.  Dismissal of actions ....................................................................................................... 29 

F.  Opening statement ............................................................................................................. 29 

G.  Closing argument ........................................................................................................... 30 

H.  Judge responsible for questions of law .......................................................................... 30 

VIII.  Orders and Judgment ...................................................................................................... 30 

A.  Orders ............................................................................................................................. 30 

B.  Judgments ....................................................................................................................... 30 

1.  General........................................................................................................................ 30 

2.  Default judgment ........................................................................................................ 32 

3.  Summary judgment..................................................................................................... 34 

4.  Declaratory judgment ................................................................................................. 35 

5.  Res judicata................................................................................................................. 36 

IX.  Post-judgment motions ...................................................................................................... 39 

A.  Motion for new trial ....................................................................................................... 39 

1.  Permissible post-trial motions .................................................................................... 39 

2.  Trial court’s discretion................................................................................................ 39 

3.  Standards for granting ................................................................................................ 39 

4.  Presumption in favor of upholding verdict ................................................................. 40 

5.  Must be separate motion ............................................................................................. 40 

6.  Divorce decrees .......................................................................................................... 40 

7.  Failure to identify witness .......................................................................................... 40 

8.  Jury confusion............................................................................................................. 40 

9.  Verdict contrary to law ............................................................................................... 41 

10.  Inconsistent factual findings/errors ............................................................................ 41 

11.  Change of judge .......................................................................................................... 41 

12.  Court’s own motion .................................................................................................... 41 

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13.  Due process................................................................................................................. 41 

14.  Collateral appeal ......................................................................................................... 41 

15.  Newly discovered evidence ........................................................................................ 41 

B.  Motion on Ground of Excessive or Inadequate Damages .............................................. 41 

C.  Judgment notwithstanding verdict ................................................................................. 42 

D.  Motion to alter or amend judgment ................................................................................ 42 

E.  Motion to set aside judgment ......................................................................................... 42 

1.  General........................................................................................................................ 42 

2.  Standard of review ...................................................................................................... 42 

3.  Discretion of the court ................................................................................................ 42 

4.  Appeal time not tolled ................................................................................................ 42 

5.  Balance of finality vs. correcting mistakes ................................................................. 42 

6.  Conditions for setting aside judgment ........................................................................ 43 

7.  Inapplicable to administrative orders ......................................................................... 43 

8.  Fraud ........................................................................................................................... 43 

9.  Void judgments........................................................................................................... 43 

10.  Lack of notice ............................................................................................................. 43 

11.  Diligence of counsel or party...................................................................................... 43 

12.  Reliance on court ........................................................................................................ 44 

13.  Time for filing ............................................................................................................ 44 

14.  May not be used to create new case ........................................................................... 44 

X.  Injunctions............................................................................................................................. 44 

A.  Proper subject matter for injunctions. ............................................................................ 44 

B.  Prohibitory and mandatory injunctions .......................................................................... 44 

C.  Elements ......................................................................................................................... 45 

D.  Need not wait for injury ................................................................................................. 45 

E.  Temporary restraining orders ......................................................................................... 45 

I. General

A. Court’s power to enforce

• District Court has discretion to dismiss a claim for failing to follow Navajo Rules of Civil Procedure. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• District Court did not abuse its discretion in dismissing case where lawyer was 15 minutes late to hearing. Whitehorse v. Kayenta Chapter, 7 Nav. R. 349 (Nav. Sup. Ct. 1998).

• When a party fails to follow the Rules of Civil Procedure, he gives up the right to be heard. Yazzie v. James, 7 Nav. R. 324 (Nav. Sup. Ct. 1998).

B. Use of case law from other jurisdictions

• When a statute or court rule is derived from general American law, the Supreme Court will look to general interpretations of the applicable law and apply them, if they are in accord with the Navajo Nations statutory intent and Navajo common law. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002).

• Absent Navajo case law, Navajo courts look to federal case law on the Rules of Civil Procedure. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• The Navajo Rules of Civil Procedure track the federal rules with adjustments to conform to Navajo Nation circumstances. Singleton’s Mobile Home Sales v. Crosby, 7 Nav. R. 553 (Ship. Dist. Ct. 1997).

• The Navajo Rules of Civil Procedure track the Federal Rules with adjustments to conform to Navajo Nation circumstances. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

C. Translators

• Where Navajo is spoken, it is up to the non-Navajo speaking party and counsel who would benefit from the translation to make arrangements beforehand. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

• Ethics and Rules Committee did not violate civil rights or procedural rules by declining to translate brief portions of the record. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

D. No removal to federal courts

• A party may not remove a case in Navajo courts to federal courts. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

• Cases may be removed from Tribal Court to Federal Court. The Tribal Court is a “State Court” for the purpose of the removal statute. Mariano v. Arviso, 3 Nav. R. 196 (Crwn. Dist. Ct. 1981).

E. Conflict of laws

• It is hornbook law that the activities of people performing contracts are governed by the law of the place where they will be performed. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 222 (Nav. Sup. Ct. 1990).

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F. Judicial Branch Case Management Policy

• Pursuant to our case management policy, a final judgment in a civil case should be entered within 180 days of the filing of a complaint or petition. Green Tree Servicing v. King, 8 Nav. R. 833 (W.R. Dist. Ct. 2005).

G. Power of lower courts to adopt procedural rules

• Lower courts may adopt procedures, consistent with due process, that they deem fit and apply them consistently. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Lower courts may adopt procedures, consistent with due process, that they deem fit and apply them consistently. Bizardi v. Navajo Nation, 8 Nav. R. 593 (Nav. Sup. Ct. 2004).

II. Jurisdiction

A. General Jurisdictional Concepts

1. Defined

• Jurisdiction is an aspect of sovereignty and refers to judicial, legislative and administrative competence. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982).

• Jurisdiction is the power and authority of a court to act. Lynch v. Lynch, 3 Nav. R. 219 (W.R. Dist. Ct. 1982).

2. Necessity for courts

• To hear a case, our courts must have both subject matter jurisdiction and personal jurisdiction. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

3. Authority to rule on jurisdiction

• The Navajo Nation Court of Appeals has the authority to determine the jurisdiction of Navajo courts. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

4. Allegations in complaint

• It is plaintiff’s responsibility to plead in the complaint sufficient facts to establish the court’s jurisdiction. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• Absent contrary evidence, the Court must take the jurisdictional allegations of the complaint to be true. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• If the case concerns tribal land, the complaint only needs to allege specific facts showing the cause of action arose on tribal land. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• If the cause of action arises on non-Indian fee land, the plaintiff must plead facts showing he fulfills the Montana exceptions. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

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5. Factors considered

• In case where insurance company is challenging subject matter jurisdiction, some of the crucial questions that need to be answered are: 1) Is the highway in question like the state highway in Strate v. A-1 Contractors, 520 U.S. 438 (1997)?; 2) Does the insurance company do business on the Navajo Nation or do its insurance agents come onto the Navajo Nation to further its business?; 3) What was the extent of the insurance company’s contacts with the Navajo Nation when negotiating the Appellants’ claims?; and 4) Is a bad faith insurance settlement claim a separate tort action independent of the underlying insurance contract and the accident? Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

• In case where insurance company is challenging subject matter jurisdiction, some of the crucial questions that need to be answered are: 1) Is the highway in question like the state highway in Strate v. A-1 Contractors, 520 U.S. 438 (1997)?; 2) Does the insurance company do business on the Navajo Nation or do its insurance agents come onto the Navajo Nation to further its business?; 3) What was the extent of the insurance company’s contacts with the Navajo Nation when negotiating the Appellants’ claims?; and 4) Is a bad faith insurance settlement claim a separate tort action independent of the underlying insurance contract and the accident? These questions are not exclusive. Clark v. Allen, 7 Nav. R. 422 (Nav. Sup. Ct. 1999).

• On remand, District Court in jurisdiction dispute should give particular attention to those federal cases that address tribal subject matter jurisdiction, including Montana v. United States, 450 U.S. 544 (1981); Strate v. A-1 Contractors, 520 U.S. 438; Allstate Indemnity Co. v. Stump, 191 P.3d 1071 (9th Cir. 1999), Allstate Indemnity Co. v. Stump, 994 F. Supp. 1217 (D. Mont. 1997), and R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir. 1983). This list is not exclusive. Clark v. Allen, 7 Nav. R. 422 (Nav. Sup. Ct. 1999).

• In civil cases, courts normally look at where the facts in issue took place, as well as questions of allegiance, domicile, submission to the jurisdiction and like matters. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982).

6. Challenging jurisdiction

• In a “facial” jurisdictional challenge, the court accepts the facts of the complaint as true, with all reasonable inferences being taken for the plaintiff. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• In a factual challenge, the court weighs evidence on both sides and makes findings of fact as it would in the merits phase of plaintiff’s case. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• Plaintiff must prove jurisdiction by a preponderance of the evidence. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• At any time, the Court may review the complaint and find it lacks facts or take judicial notice of facts that contradict the jurisdictional allegations. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

• If the plaintiff makes sufficient factual allegations, the defendant does not dispute them, and no contradictory evidence is presented, the court must take them as true and find jurisdiction. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

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7. Discovery on jurisdiction

• Courts may allow discovery or evidentiary hearings on Montana exceptions. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417 (Nav. Sup. Ct. 2004).

8. Ancillary jurisdiction

• Ancillary jurisdiction ensures that disputes relating to a single dispute are resolved in a single forum. It requires a direct relationship to property or assets actually or constructively drawn into the court’s control. Singleton’s Mobile Home Sales v. Crosby, 7 Nav. R. 553 (Ship. Dist. Ct. 1997).

9. Navajo courts must rule on jurisdiction first

• Navajo courts must have first opportunity to decide jurisdiction. Navajo Nation v. O’Hare, 5 Nav. R. 121 (Nav. Sup. Ct. 1987).

10. Factual findings necessary

• District Courts must provide detailed factual findings in cases involving insurance coverage, where insurers contest subject matter jurisdiction. Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

B. Subject Matter Jurisdiction

1. Presumption of jurisdiction

• Consistent with congressional policy, tribal courts presumptively have civil jurisdiction over reservation activities unless affirmatively limited by treaty or a federal statute. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

• Civil jurisdiction over the activities of non-Indians on reservation land presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

2. Policy of exercising jurisdiction to the permissible limits

• The Navajo Nation has a policy of exercising Navajo Nation court jurisdiction to the permissible limits as a means of protecting its citizens, resources, and sovereignty. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

3. Resolving subject matter jurisdiction disputes

a) Factors considered

• The existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which the sovereignty has been altered, divested or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and

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elsewhere, and administrative or judicial decisions. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

b) Court must review its own subject matter jurisdiction

• A court can question its own jurisdiction. Fort Defiance Housing Corp. v. Lowe, 8 Nav. R. 463 (Nav. Sup. Ct. 2004).

• On the issue of subject matter jurisdiction, court must review its own jurisdiction notwithstanding the stipulation of the parties. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005).

4. Subject matter jurisdiction of Navajo courts defined

• Subject matter jurisdiction means that a court has authority over a case or issue, as defined by Navajo Nation statutory law and the Treaty of 1868. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• Navajo Tribal Courts shall have original jurisdiction over all civil actions in which the defendant is an Indian and is found within its territorial jurisdiction, and all civil actions in which the defendant is a resident of Navajo Indian Country or has caused an action to occur in Navajo Indian Country. Yazzie v. Yazzie, 5 Nav. R. 66 (Nav. Sup. Ct. 1985).

• Navajo courts are courts of general jurisdiction with few jurisdictional limitations as regards the subject matter of the suits brought a before them. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

5. Presumed to correspond to sovereignty and territory

• The authority of any court to act is derived from the government which created it. Bedoni v. Navajo Nation Office of Hearings and Appeals, 8 Nav. R. 349 (Nav. Sup. Ct. 2003).

• The Indian Country statute is the measure of tribal civil authority. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• The Indian Country statute “represents an express Congressional delegation of civil authority over Indian country to the tribes.” Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• Navajo civil jurisdiction is co-extensive with its sovereignty. Farley v. McGee, 7 Nav. R. 490 (Ship. Dist. Ct. 1996).

• Civil jurisdiction derives from a tribe’s retained inherent sovereignty. Taylor v. Bradley, 6 Nav. R. 147 (Nav. Sup. Ct. 1989).

• Navajo courts derive their authority from the inherent sovereignty of the Navajo People, and they are affirmatively required to exercise that authority to further that sovereignty by protecting its land and property base. Tome v. Navajo Nation, 4 Nav. R. 159 (W.R. Dist. Ct. 1983).

• There is a presumption that jurisdiction is territorial. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982).

6. Not subject to accusations of local bias

• Tribal courts are not open to attack based on allegations of local bias. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

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7. Sources of judicial authority

a) Generally

• Jurisdiction comes from (1) inherent authority, (2) treaties, and (3) statutes. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

b) Inherent power

• Navajo courts have inherent jurisdiction over all matters not specifically denied by the Navajo Tribal Council or taken over specifically by the government of the United States. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

• Navajo judicial authority is a retained authority, not dependent upon a grant from the United States, and such authority will be exercised in concurrent jurisdiction with the United States, where concurrent and not exclusive tribal jurisdiction lies. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

c) Treaties

• Treaties may confer authority on Navajo Nation courts. Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003).

d) Federal or state statutes

• Federal or state law may confer authority on Navajo Nation courts. Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003).

• Navajo courts must examine the legislative history of the federal statute at issue and the language expressed on the face of the statute to determine whether Congress has divested tribal courts of jurisdiction. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

• The argument that tribal courts lose jurisdiction when Congress gives concurrent jurisdiction to the state and federal courts and does not mention tribal courts seriously undermines the ability of the Navajo Nation courts to apply federal law. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

• Indian Tribal Courts have inherent jurisdiction over all matters not taken over by the federal government, and federal legislative action and rules promulgated thereunder support the authority of the Tribal Courts. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

• No provision in the Federal Constitution for Indian courts is necessary. The Constitution, by authorizing the making of treaties with them, while not in and of itself establishing the sovereignty of the tribes, nevertheless does recognize their sovereignty. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

• No Congressional Act is necessary to establish the legality of the Tribal Courts. However, regulatory powers over these judicial establishments have been exercised to promote uniformity, gradual assimilation and other ends. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

• Statutes limiting inconsistent tribal laws do not directly restrict tribal court jurisdiction. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

• When there are federal rights which are enforceable in state courts, that doctrine should apply to tribal courts as well, where there is jurisdiction over the person or property. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

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e) Tribal statute

• The Navajo Tribal Council gave the Navajo courts power to reserve to itself its own reasonable and guided interpretation of federal law, and to exercise that power in an independent fashion. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

• Navajo District Courts have original jurisdiction over Navajo Nation grievance matters. Chavez v. Upshaw, 6 Nav. R. 519 (W.R. Dist. Ct. 1989). Note: Navajo Nation employee grievances are now heard by the Office of Hearings and Appeals pursuant to the Navajo Nation personnel manual.

• Navajo District Courts have original jurisdiction over Navajo Nation grievance matters. Manuelito v. Kellogg, 6 Nav. R. 508 (W.R. Dist. Ct. 1989). Note: Navajo Nation employee grievances are now heard by the Office of Hearings and Appeals pursuant to the Navajo Nation personnel manual.

• Courts can only exercise jurisdiction given to them by the Council. Plummer v. Brown, 6 Nav. R. 88 (Nav. Sup. Ct. 1989).

8. Circumstances conferring jurisdiction on Navajo courts

a) Common law causes of action

• Navajo Nation tribal courts haw jurisdiction over common law causes of action. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

b) Contracts

• Where insurance contract was entered into off of the reservation, Navajo Nation District Court will decline to recognize jurisdiction. Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

• If performance of contract has sufficient nexus to activity on tribal land within the Navajo Nation, the cause of action occurs on Navajo Nation for jurisdictional purposes. Jackson v. BHP World Minerals, 8 Nav. R. 560 (Nav. Sup. Ct. 2004).

• The Navajo Nation retains general regulatory authority over a lessee in absence of contrary language in the lease. Office of Navajo Labor Rel. ex rel. Bailon v. Central Consolidated School Dist., 8 Nav. R. 501 (Nav. Sup. Ct. 2004).

• If performance of contract has sufficient nexus to activity on tribal land within the Navajo Nation, the cause of action occurs on the Navajo Nation for jurisdictional purposes. Pacificcorp v. Mobil Oil Corp., 8 Nav. R. 378 (Nav. Sup. Ct. 2003).

• Court has subject matter jurisdiction where contract selected Navajo Nation as forum and contract was entered into and was to be performed on Navajo Nation, Charley v. Descheny, 7 Nav. 455 (Ship. Dist. Ct. 1994).

c) Incorporating or doing business on Navajo Nation

• Subject matter jurisdiction can extend beyond territorial jurisdiction where corporation has been organized under Navajo law. Cabinets Southwest v. Navajo Nation Labor Comm’n, 8 Nav. R. 435 (Nav. Sup. Ct. 2004).

• Navajo courts have jurisdiction over companies engaged in business on Navajo Nation. Brown v. Todacheney, 7 Nav. R. 37 (Nav. Sup. Ct. 1992).

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d) Cause of action arises on the Navajo Nation

• Subject matter jurisdiction is proper whenever the cause of action arises on tribal land within the Navajo Nation. Pacificcorp v. Mobil Oil Corp., 8 Nav. R. 378 (Nav. Sup. Ct. 2003).

• Navajo courts have civil jurisdiction over all persons who cause an action to occur within Navajo Indian Country. This includes all land within exterior boundaries of the Navajo Reservation. Taylor v. Bradley, 6 Nav. R. 147 (Nav. Sup. Ct. 1989).

• Navajo jurisdictional law does not require the consent of a nonmember to suit where the nonmember is a resident of the Navajo Nation or the action arose within the Navajo Nation. Matter of Adoption of S.C.M., 4 Nav. R. 167 (W.R. Dist Ct. 1983).

• Navajo courts have jurisdiction over persons who commit civil wrongs. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

• Tribal courts have civil jurisdiction over non-Indians causing actions to occur in Navajo Indian Country. Keith v. Allred, 3 Nav. R. 191 (Chin. Dist. Ct. 1981).

9. Exclusive jurisdiction over Indian parties

• When parties to the case are Indian, it is fundamental that tribal courts have exclusive jurisdiction. Frejo v. Barney, 3 Nav. R. 233 (W.R. Dist. Ct. 1982).

10. General civil jurisdiction over non-Indians

• The Navajo Nation courts retain civil jurisdiction over the activities of non-Indians on reservation lands. Nez v. Peabody West. Coal Co., 7 Nav. R. 416 (Nav. Sup. Ct. 1999).

• Navajo courts may assert jurisdiction over civil traffic offenses committed by non-Indians. Navajo Nation v. Salandro, 7 Nav. R. 447 (Chin. Dist. Ct. 1992).

• Navajo Courts have civil traffic jurisdiction over non-Indians. Navajo Nation v. Elkins, 6 Nav. R. 539 (Crwn. Dist. Ct. 1990).

• Navajo Courts have civil traffic jurisdiction over non-Indians. Navajo Nation v. Milosevich, 6 Nav. R. 542 (Crwn. Dist. Ct. 1990).

• Navajo courts have jurisdiction over non-Navajos. Babbit Ford, Inc. v. Sellers, 3 Nav. R. 3 (Nav. Ct. App. 1980).

• Navajo courts have jurisdiction over non-Indians. Peterson v. Ford Motor Credit Co., 2 Nav. R. 36 (Crwn. Dist. Ct. 1979).

• Tribal courts have jurisdiction in wrongful repossession cases against non-Indians. Thompson v. Wayne Lovelady’s Frontier Ford, 1 Nav. R. 282 (Ship. Dist. Ct. 1978).

• Navajo courts do not have jurisdiction over non-Indian defendants. Bedonie v. Donaldson, 1 Nav. R. 73 (Nav. Ct. App. 1973). Note: although this case has never been formally overruled, it is likely not good law on this point in light of decisions such as Deal v. Blatchford, 3 Nav. R. 159 (Nav. Ct. App. 1982).

• The jurisdiction of Navajo courts extends to non-Indians in Forcible Entry and Detainer Actions. Navajo Tribe v. Orlando Helicopter Airways, Inc., 1 Nav. R. 40 (Nav. Ct. App. 1972).

11. Jurisdiction over allotments

• Navajo judicial authority over allotment disputes between Navajos does not involve the Bureau of Indian Affairs or the majesty of the United States; it involves a Navajo court applying Navajo law to Navajo parties to settle a Navajo dispute. The Treaty of 1868 and the pledge of the United

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States to respect pre-existing Navajo sovereignty means nothing if Navajo affairs cannot be settled by Navajo courts. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

12. Subject matter jurisdiction may be raised at any time

• Subject matter jurisdiction may be raised at any time, and the Court itself may present the issue. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

• The Court may raise subject matter jurisdiction arguments not raised by the parties. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

C. Personal Jurisdiction

1. General

• Personal jurisdiction means that a court has authority over a party, even if he or she resides outside the Navajo Nation, if he or she consents to have the case heard in the Navajo courts, or if his or her actions have effects within the Navajo Nation. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• The Trial Court has the power to issue such writs as are necessary to the complete exercise of its jurisdiction. NTUA v. Foster, 4 Nav. R. 86 (Nav. Ct. App. 1983).

2. Personal jurisdiction based upon causing injury to occur on Navajo Nation

• Personal jurisdiction is appropriate against auto maker because police vehicles manufactured by auto maker crashed while performing official duties on a dirt road on trust land. It is for these types of cases that the Navajo Nation Council enacted the Navajo Long-Arm Civil Jurisdiction and Service of Process Act, 7 N.N.C. § 253a. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

• Navajo Nation courts have jurisdiction over border town liquor dealers who cause an injury on the Navajo Nation in light of laws outlawing liquor and holding liquor dealers, including border town liquor dealers, liable for injuries that they cause on the Nation. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• A defendant may cause injury actionable in Navajo court without ever setting foot on Navajo soil. Navajo courts have jurisdiction over any person causing an injury within the Navajo Nation. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• If a person violates the rights that a Navajo enjoys while the Navajo resides in the Navajo Nation, the Navajo has suffered personal injury. When those rights that exist only on the Navajo Nation are violated, the injury occurs on the reservation. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• If a person causes injury on the reservation, this is enough minimum contacts to assert jurisdiction. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• There is full civil jurisdiction over any person doing injury within the Navajo Nation because of the inherent sovereignty of the Navajo Nation and because of the residual jurisdiction of the prior courts. Deal v. Blatchford, 3 Nav. R. 159 (Nav. Ct. App. 1982).

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3. Due process rights

• Where action squarely falls within the clear mandate of the long arm statute, District Court may only dismiss on jurisdiction grounds if the statute is invalid as a violation of party’s due process rights under the Navajo Bill of Rights. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• To assert personal jurisdiction, jurisdictional statute must authorize the assertion and due process must be satisfied. Sells v. Espil, 6 Nav. R. 195 (Nav. Sup. Ct. 1990).

• Jurisdictional statute extends to non-resident defendants to the extent allowed by due process. Sells v. Espil, 6 Nav. R. 195 (Nav. Sup. Ct. 1990).

• Due process must be satisfied by minimum contacts test. Sells v. Espil, 6 Nav. R. 195 (Nav. Sup. Ct. 1990).

4. Minimum contacts

Note: Although there are early cases that apply the federal “minimum contacts” test for personal jurisdiction, the Navajo Supreme Court in Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007), ruled that minimum contacts may be considered only after the parties analyze the Defendant’s rights under the Navajo Bill of Rights.

• After considering Navajo Bill of Rights, District Court may consider the federal “minimum contacts” standard, and incorporate it into its analysis. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• District Court shall abide by the minimum contacts standard adopted by the Supreme Court in its jurisdictional analysis. Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

• Due process must be satisfied by minimum contacts test. Sells v. Espil, 6 Nav. R. 195 (Nav. Sup. Ct. 1990).

• To evaluate minimum contacts, all forum related activity counts as minimum contacts. The greater the nexus between the forum activities and the cause of action, the less substantial shall be the necessary contacts. Sells v. Espil, 6 Nav. R. 195 (Nav. Sup. Ct. 1990).

• Navajo due process requires minimum contacts. Denny v. Brown, 6 Nav. R. 497 (W.R. Dist. Ct. 1989).

• Minimum contacts found where defendant resided with decedent while he was employed on the reservation and the life insurance policy in dispute arose out of such employment. Denny v. Brown, 6 Nav. R. 497 (W.R. Dist. Ct. 1989).

• Due process requires a defendant to have minimum contacts with the forum. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• If a person causes injury on the reservation, this is enough minimum contacts to assert jurisdiction. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• Store operating in dependent Indian community had sufficient minimum contacts to establish personal jurisdiction. Sandoval v. Tinian, Inc., 5 Nav. R. 215 (Crwn. Dist. Ct. 1986).

• Minimum contacts can be shown for personal jurisdiction if there is an agency relationship between a car dealership and a person performing repossession. Peterson v. Ford Motor Credit Co., 2 Nav. R. 36 (Crwn. Dist. Ct. 1979).

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• A single act of wrongful repossession is sufficient to establish minimum contacts to allow jurisdiction of Navajo courts. Thompson v. Wayne Lovelady’s Frontier Ford, 1 Nav. R. 282 (Ship. Dist. Ct. 1978).

• Mere absence from Navajo Nation does not negate jurisdiction. The Court must examine the defendant’s contacts with the Navajo Nation. Yazzie v. Wyaco, 1 Nav. R. 134 (Nav. Ct. App. 1977).

5. Fairness under Navajo values

• District Court may not decide jurisdiction exclusively under federal “minimum contacts” standard, as, regardless of federal concepts of due process, the District Court must decide whether, taking into account all the circumstances of the case, the assertion of personal jurisdiction over party is fair under Navajo values. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• In order to consider whether District Court has jurisdiction over dispute, court will use Navajo custom and tradition in deciding the claim and will do so as a matter of law. Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

6. Personal jurisdiction due to doing business on Navajo Nation

• To the extent that a corporation enjoys the privilege of conducting business with a tribe, it should also expect to be brought before a tribal court for claims arising from that business activity. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

• Ford Motor Company has sufficient “minimum contacts” with the Navajo Nation to confer personal jurisdiction where Ford’s products have entered the Nation through financing by a Ford subsidiary and purchase from a Ford Dealership. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

• Navajo Nation has personal jurisdiction over Ford Motor Company because Ford is present through its vehicles that entered the Nation's territory. Ford actively participated in the sale and financing of the vehicles to the Navajo Nation government through a Ford dealer and Ford financing subsidiary. Ford had full knowledge that the vehicles were intended for the specific use of tribal officials performing official tribal activities. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

• Navajo Nation has inherent jurisdiction over a products liability claim when a diabetes drug entered the Nation through prescription, provision and/or ingestion within Nation. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

• Navajo Nation has inherent jurisdiction over a products liability claim when a diabetes drug entered the Nation through prescription, provision and/or ingestion within Nation. Nelson v. Pfizer, 8 Nav. R. 369 (Nav. Sup. Ct. 2003).

• Court may assert jurisdiction over a non-resident doing business on the Navajo Nation even if the cause of action arose elsewhere. Sells v. Espil, 6 Nav. R. 195 (Nav. Sup. Ct. 1990).

7. Waiver

• Where Respondent had made numerous appearances in various proceedings in pending court action, his jurisdictional objection will be deemed waived. In the Matter of A.M.C., 8 Nav. R. 874 (Chin. Fam. Ct. 2005).

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• Navajo courts do not recognize a “Special Appearance” to challenge jurisdiction. By appearing and raising defenses, the jurisdictional challenge is waived. Navajo Tribe v. Orlando Helicopter Airways, Inc., 1 Nav. R. 40 (Nav. Ct. App. 1972). Note: this holding is presented in strikeout format because of the adoption of the Navajo Rules of Civil Procedure. Jurisdiction may now be challenged by appearing and filing a motion under Rule 12 without waiving the jurisdictional challenge.

8. Long Arm Civil Jurisdiction and Service of Process Act

• The Court takes judicial notice that the Long Arm Civil Jurisdiction and Service of Process Act enacted in 2001 does not establish Navajo civil jurisdiction over non-members. The Act codified the inherent authority of the Navajo Nation as affirmed in Article II of the Treaty of 1868. As such, the Act clarified the modern application of this authority. Ford Motor Co. v. Kayenta Dist. Ct., No. SC-CV-33-07 (Nav. Sup. Ct. December 18, 2008).

9. “Residency” for jurisdiction purposes

• In a jurisdiction dispute, there is more to it than just claiming residency on Navajo Nation land and 50% residency is not the way of the Navajos. A Navajo claiming to reside on the Navajo Reservation must have a hogan located on Navajo land, to reside in and live the way of Navajos. Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

• District Court rejects residency claim of party who claims to have 50% residency on the Navajo Nation. Curtis v. AMCO Ins., 8 Nav. R. 838 (Ship. Dist. Ct. 2005).

D. Venue

• Due process governs venue questions. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• The defense of improper venue for an action may be raised in a motion to dismiss. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• Venue should be decided to promote fundamental fairness in court proceedings to assure that every person before the courts has a “day in court.” Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• By custom, Navajo consider themselves to be from the same area their mothers are from. Thus wherever they may be, they return home frequently for religious ceremonies and family functions, as well as to vote. Matter of Adoption of S.C.M., 4 Nav. R. 167 (W.R. Dist Ct. 1983).

• Navajos may be considered to be domiciled where they maintain their traditional and legal ties, regardless of where they actually live. Matter of Adoption of S.C.M., 4 Nav. R. 167 (W.R. Dist Ct. 1983).

• Venue is the place where the power to adjudicate is to be exercised. Venue is grounded in convenience. Unlike jurisdiction, venue may be waived. Lynch v. Lynch, 3 Nav. R. 219 (W.R. Dist. Ct. 1982).

• Venue is a tool of sound judicial administration and a mechanism to ensure a fair trial for the parties and a minimum burden on them and the courts. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

• Domicile for venue purposes can include the traditional notion that a person is from the same area their mothers are from. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

• Venue errors are usually harmless. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

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E. Abstention

• Abstention is reviewed for abuse of discretion. Pacificcorp v. Mobil Oil Corp., 8 Nav. R. 378 (Nav. Sup. Ct. 2003).

• Abstention is not abuse of discretion where done to promote comity. Pacificcorp v. Mobil Oil Corp., 8 Nav. R. 378 (Nav. Sup. Ct. 2003).

• Abstention may not occur absent (1) a case pending in another sovereign; and (2) public policy allows. Pacificcorp v. Mobil Oil Corp., 8 Nav. R. 378 (Nav. Sup. Ct. 2003).

F. Comity

1. General

• Comity means that a Navajo court or administrative tribunal may refuse to refuse to recognize a separate sovereign’s decision,' but, in the interest of promoting respectful relations between governments, such tribunals should recognize the decision unless some strong policy justifies rejection. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• Comity means that the Nation should defer to another sovereign's laws or decisions unless a strong Navajo policy justifies rejection. Cedar Unified School Dist. v. Nav. Nat. Labor Comm’n, No. SC-CV-53-06 & No. SC-CV-54-06, slip op. (Nav. Sup. Ct. November 21, 2007).

• Comity is the courtesy and respect that one court shows another out of good will. Pacificcorp v. Mobil Oil Corp., 8 Nav. R. 378 (Nav. Sup. Ct. 2003).

• Comity is a doctrine derived from international law whereby one sovereign voluntarily relinquishes jurisdiction to another sovereign. Pela v. Peabody Coal Company, 6 Nav. R. 238 (Nav. Sup. Ct. 1990).

• Comity is a willingness to grant a privilege, not as a matter of right, but one of deference and good will. Anderson v. Chuska Energy & Petroleum Company, 4 Nav. R. 187 (W.R. Dist. Ct. 1983).

• Comity says that one court should defer until courts of another sovereign with like powers have had an opportunity to pass on the matter. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982).

2. Considerations

• Our courts or tribunals decide whether to grant comity based on three considerations: (1) the right of the separate sovereign's tribunal to issue the judgment, (2) the propriety of the proceedings, and (3) the relevant public policy of the Navajo Nation. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• The law of the Navajo Nation as to giving recognition to the decrees and judgments of other Indian courts is that where (1) the other court had jurisdiction, (2) the proceedings there were proper and (3) it is within the public policy of the Navajo Nation, those decrees and judgments will be honored and enforced. Matter of Custody of B.N.P., 4 Nav. R. 155 (W.R. Dist. Ct. 1983).

• Navajo courts should tread lightly in dealing with relations with foreign governments absent clear mandates from the Executive Branch because of the importance of relations. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982).

• Although tribal courts do not award “full faith and credit” to judgments of other tribal courts, they will enforce such judgments as a matter of comity upon consideration of the right of such court to

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issue the judgment, the propriety of the proceeding and any relevant public policy of the Navajo Nation. Matter of Guardianship of Chewiwi, 1 Nav. R. 120 (Nav. Ct. App. 1977).

3. Propriety of proceedings

• Propriety does not require deciding a case with both parties' presence. To reject a decision under the “propriety” factor, there must be a fundamental defect in the proceeding that would make it unfair to apply it within Navajo Nation. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• As long as the party who did not participate received notice and had the opportunity to attend and participate, a decision arising out of a default judgment is not unfair under Navajo law. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

4. Compared to full faith and credit

• Comity is different than the doctrine of full faith and credit under which states must recognize decisions of other states unless the other state lacked jurisdiction to make the decision. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

5. Specific instances of comity

• Navajo public policy supports extending comity to Arizona unemployment decisions. Navajo employers pay into the unemployment system, and the Navajo Nation does not have its own unemployment system. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• The Navajo Nation does not grant immunity to any state as a matter of comity. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

III. Pleadings

A. One form of action

• There is one form of action known as a civil action. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

B. Complaint

1. Purpose

• The purpose of a civil complaint, and the requirement that it contain a short plain statement of the claim, is to safeguard the basic concept of adequate notice and to provide the respondent with an opportunity to be heard. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Purpose of complaint is to give everyone notice of the claims upon which the plaintiff relies and the basic facts supporting those claims so that the parties and the court know exactly what is in dispute. Hood v. Navajo Nation Department of Headstart, No. SC-CV-11-05, slip op. (Nav. Sup. Ct. January 5, 2006).

• No judgment can be granted in a suit unless the defendant has actually received notice of the suit and an opportunity to appear. This is normally done by means of a complaint, which outlines the

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plaintiff's claims, and a summons, which is used to notify the defendant of the suit. Matter of Adoption of S.C.M., 4 Nav. R. 167 (W.R. Dist Ct. 1983).

2. Necessary allegations

• If plaintiff is making a claim, he should state it in the complaint. Hood v. Navajo Nation Department of Headstart, No. SC-CV-11-05, slip op. (Nav. Sup. Ct. January 5, 2006).

• A complaint must include a minimum discussion which gives the respondent and the court some theory of what the case is about. Hood v. Navajo Nation Department of Headstart, No. SC-CV-11-05, slip op. (Nav. Sup. Ct. January 5, 2006).

• Civil rules do not intend that a complaint comprise specific or detailed facts and allegations which would merit a judgment. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• A complaint must make a minimum discussion which gives the respondent and the court some theory of what the case is about. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• A pleading must set forth the grounds for the claim. In re Estate of Belone, 5 Nav. R. 161 (Nav. Sup. Ct. 1987).

• Where a claim relies upon Navajo custom, the custom must be alleged and the pleading must state how the custom supports the claim. In re Estate of Belone, 5 Nav. R. 161 (Nav. Sup. Ct. 1987). Note: this holding is presented in strikeout format because it was overruled by Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Local custom must be specifically pleaded. In re Estate of Belone, 5 Nav. R. 161 (Nav. Sup. Ct. 1987). Note: this holding is presented in strikeout format because it was overruled by Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

3. Due process concerns

• Requiring a statement of the claim safeguards the basic concept of due process by giving adequate notice of the case against a party and providing the respondent the opportunity to be heard by filing an answer to the complaint. Hood v. Navajo Nation Department of Headstart, No. SC-CV-11-05, slip op. (Nav. Sup. Ct. January 5, 2006).

4. Pre-judgment interest

• Pre-judgment interest must be claimed in the prayer for relief. Singer v. Nez, 8 Nav. R. 122 (Nav. Sup. Ct. 2001).

C. Filing

• To file an instrument, it must be delivered to the clerk at the office where it is required to be filed; delivery to the clerk at any other place, even though he endorses it “filed,” is not sufficient. Matter of Adoption of Baby Boy Doe, 5 Nav. R. 141 (Nav. Sup. Ct. 1987).

D. Service

1. Service by publication

• Service by publication is appropriate in marriage validation cases where the spouse is deceased. In the Matter of Validation of Marriage of Whitehorse, 8 Nav. R. 292 (Nav. Sup. Ct. 2003).

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• Publication by notice must include proof of service. Navajo Nation ex rel. Div. of Soc. Welfare in interest of Two Minor Children, 4 Nav. R. 57 (Nav. Ct. App. 1983).

• Judgment is voidable for lack of proof of proper publication of notice. Navajo Nation ex rel. Div. of Soc. Welfare in interest of Two Minor Children, 4 Nav. R. 57 (Nav. Ct. App. 1983).

2. Service by certified mail

• Service by certified mail was sufficient where specifically permitted by Trial Court. Peterson v. Ford Motor Credit Co., 2 Nav. R. 36 (Crwn. Dist. Ct. 1979).

• Extra-territorial service by certified mail is allowed since it is reasonably calculated to apprise defendants that an action is pending against them. Thompson v. Wayne Lovelady’s Frontier Ford, 1 Nav. R. 282 (Ship. Dist. Ct. 1978).

• Navajo Nation rules allow service by certified mail. Yazzie v. Wyaco, 1 Nav. R. 134 (Nav. Ct. App. 1977).

3. Standard of review

• Supreme Court will not disturb the trial court's conclusion that service was proper, because the trial judge was in the best position to assess credibility of witness. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

4. Service of summons required

• Rule 4 details the requirement for service of process, emphasizing that personal service is a priority before other means of service will suffice. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Service of summons is required. No “notice” can be substituted for service of summons. Yazzie v. James, 7 Nav. R. 324 (Nav. Sup. Ct. 1998).

5. Notice required

• No judgment shall be given on any suit unless the defendant has been served notice in accordance with the applicable Court rules of such suit and given ample opportunity to appear in Court in his/her defense. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• It comports with both bilagáana legal principles as well as Diné Bi Beenahaz’áanii that decisions made with the input from as many parties as possible are better than those made with input from only one. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• The primary purpose for having rules of service is to ensure the parties are notified and have an opportunity to defend. Yazzie v. Yazzie, 7 Nav. R. 203 (Nav. Rup. Ct. 1996).

• No judgment can be granted in a suit unless the defendant has actually received notice of the suit and an opportunity to appear. This is normally done by means of a complaint, which outlines the plaintiff's claims, and a summons, which is used to notify the defendant of the suit. Matter of Adoption of S.C.M., 4 Nav. R. 167 (W.R. Dist Ct. 1983).

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6. Defects cured by Defendant’s appearance in court

• Although a party has not been served pursuant to the rules, when he is nevertheless present and prepared to argue his case: “any violation of the service rules was cured by the father's appearance.” In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• In some situations, procedurally deficient service may still protect a party’s due process if that party has actual notice and opportunity to be heard. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Any violation of the service rules was cured by the party’s appearance at court. Yazzie v. Yazzie, 7 Nav. R. 203 (Nav. Rup. Ct. 1996).

• Defendant waived objection to service by appearing. Peterson v. Ford Motor Credit Co., 2 Nav. R. 36 (Crwn. Dist. Ct. 1979).

• Navajo rules do not allow for a “special appearance.” Peterson v. Ford Motor Credit Co., 2 Nav. R. 36 (Crwn. Dist. Ct. 1979).

7. Dismissal of complaint for failure to serve

• Rule 6(f) requires court to dismiss complaint when there has been neither issuance nor service of summons within 6 months after filing. Yazzie v. James, 7 Nav. R. 324 (Nav. Sup. Ct. 1998).

• Dismissal is discretionary where there has been issuance of summons but no service in six months. Yazzie v. James, 7 Nav. R. 324 (Nav. Sup. Ct. 1998).

• Dismissal under Rule 6(f) is without prejudice. Yazzie v. James, 7 Nav. R. 324 (Nav. Sup. Ct. 1998).

• Rule 6(f) requires court to dismiss complaint when there has been neither issuance nor service of summons within 6 months after filing. Blackhorse v. Hale, 7 Nav. R. 304 (Nav. Sup. Ct. 1997).

• Rule 6(f) requires court to dismiss complaint when there has been neither issuance nor service of summons within 6 mos. after filing. Lee v. Tallman, 7 Nav. R. 246 (Nav. Sup. Ct. 1996).

• To get an extension, party must show due diligence and good cause. Lee v. Tallman, 7 Nav. R. 246 (Nav. Sup. Ct. 1996).

8. Sufficiency of notice

• Notice was sufficient, despite lack of service on petitioner’s counsel, where (1) petitioner himself was served through certified mail with a copy of the notice of final hearing showing the date and time of the hearing; (2) petitioner's counsel also admits that petitioner advised him of the hearing date over the telephone; and (3) petitioner's counsel was informed by his office staff of the hearing date. Matter of Custody of S.R.T., 6 Nav. R. 407 (Nav. Sup. Ct. 1991).

9. Service requirements jurisdictional

• Strict requirements with the rules for service of process are jurisdictional. Naswood v. Foremost Financial Svcs., 3 Nav. R. 138 (Nav. Ct. App. 1982).

10. Service is complete despite Defendant’s refusal to accept

• Where a defendant is in close proximity to a process server under such circumstances that a reasonable person would be convinced that personal service of a summons is being attempted,

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service is complete even thought the defendant refused physical acceptance of the summons. Naswood v. Foremost Financial Svcs., 3 Nav. R. 138 (Nav. Ct. App. 1982).

11. Process server must know identity of Defendant

• It is incumbent on anyone serving process to know to whom he is giving it. Naswood v. Foremost Financial Svcs., 3 Nav. R. 138 (Nav. Ct. App. 1982).

12. Who may serve summons

• Notice is only effective if served by the Navajo Police or by someone authorized by the court. Matter of Adoption of Four Children, 4 Nav. R. 9 (Nav. Ct. App. 1983).

• Employee of party who has no interest in business may be deputized to serve process. Matter of Application of Thompson, 3 Nav. R. 197 (W.R. Dist. Ct. 1982).

13. Service of papers after initial complaint

• Whenever a party is represented by counsel, then service upon that counsel is service upon the party. The established rule is that notice to the counsel of record serves as notice to the client. Wauneka v. Williams, 6 Nav. R. 63 (Nav. Sup. Ct. 1988).

• Service by the Supreme Court Clerk of all papers shall be on the attorney of record until a substitution is made or until there is an appropriate withdrawal. Wauneka v. Williams, 6 Nav. R. 63 (Nav. Sup. Ct. 1988).

• It is an established rule that notice to the counsel of record serves as notice to the client. Chavez v. Tome, 5 Nav. R. 183 (Nav. Sup. Ct. 1987).

14. Prejudice for failure to serve

• Where party appeared despite lack of service, and subsequently objected, Court observed that “at no time did the father argue that he was prejudiced by the lack of proper service.” In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Party was prejudiced by the lack of service of process. An ex parte temporary guardianship was not granted until almost one month after the underlying petition was filed. Although Family Court is statutorily authorized to enter ex parte temporary or preliminary relief (7 N.N.C. § 256) in some circumstances, a temporary guardianship need not have been ex parte had the party been served with the petition. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Where party appeared despite lack of service, and subsequently objected, Court observed that “at no time did the father argue that he was prejudiced by the lack of proper service.” Yazzie v. Yazzie, 7 Nav. R. 203 (Nav. Sup. Ct. 1996).

E. Time

• Rule 6(a) applies to extend the statute of limitations where the deadline falls on a weekend or holiday. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002).

• To get continuance, party must give court good reasons to show prejudice would result and to state specific, concrete reasons to Court. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• Delay of justice is injustice. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

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• Court has discretion to grant continuance. Decision must not be arbitrary or capricious. Navajo Nation v. Rico, 4 Nav. R. 175 (W.R. Dist. Ct. 1983).

• Court must consider circumstances such as impact of going to trial and impact of delay. Navajo Nation v. Rico, 4 Nav. R. 175 (W.R. Dist. Ct. 1983).

• Party seeking continuance should show prejudice if continuance is denied. Navajo Nation v. Rico, 4 Nav. R. 175 (W.R. Dist. Ct. 1983).

• Court has discretion to grant continuance. Battles v. Gen. Elec. Credit Corp., 4 Nav. R. 26 (Nav. Ct. App. 1983).

• Where counsel fails to appear, courts do not look on the absence with much favor. Battles v. Gen. Elec. Credit Corp., 4 Nav. R. 26 (Nav. Ct. App. 1983).

• Party seeking continuance should show prejudice if continuance is denied. Battles v. Gen. Elec. Credit Corp., 4 Nav. R. 26 (Nav. Ct. App. 1983).

F. Answers and affirmative defenses

1. Answers

• An answer shall state in short and plain terms the defenses to each claim asserted and shall admit or deny the statements in the claim for relief. The party filing the answer may deny a part of a statement and admit the rest. Any claim which is not admitted shall be deemed denied. If no responsive pleading is required, statements in the claim for relief shall be deemed denied. State Farm v. Lambert, 7 Nav. R. 473 (Ship. Dist. Ct. 1995).

• The party filing the answer has a duty to admit what he knows is true. State Farm v. Lambert, 7 Nav. R. 473 (Ship. Dist. Ct. 1995).

• The general rule in an answer is that which is not denied is admitted. State Farm v. Lambert, 7 Nav. R. 473 (Ship. Dist. Ct. 1995).

• Where in one claim, a part of a statement is admitted, the part not admitted is deemed denied. State Farm v. Lambert, 7 Nav. R. 473 (Ship. Dist. Ct. 1995).

2. Affirmative defenses

a) Statute of limitations

• Statute of limitations is an affirmative defense, not a jurisdictional issue. Harvey v. Kayenta Unif. Sch. Dist., 7 Nav. R. 374 (Nav. Sup. Ct. 1999).

• Statute of Limitations is not jurisdictional, it is an affirmative defense. It may be defeated by equitable tolling. Estate of Goldtooth Begay No. 2, 6 Nav. R. 405 (Nav. Sup. Ct. 1991).

b) Fraud

• Fraud must be pleaded at the time the answer is filed. Agricredit Acceptance v. Henderson, 7 Nav. R. 529 (Ship. Dist. Ct. 1997).

c) Res judicata

• Res judicata is recognized as an affirmative defense in the Navajo Rules of Civil Procedure. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

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d) Must be in answer

• Affirmative defense must be pleaded in answer. Riggs v. Riggs, 6 Nav. R. 375 (Nav. Sup. Ct. 1991).

e) Leave of court required after answer is filed

• After the answer is filed, affirmative defenses may only be asserted by leave of Court upon written motion. Riggs v. Riggs, 6 Nav. R. 375 (Nav. Sup. Ct. 1991).

G. Specific Pleading Issues

• Fraud must be pleaded with particularity. Black v. Bigman, 8 Nav. R. 177 (Nav. Sup. Ct. 2001).

H. Rule 12 Motions

1. Failure to state a claim

a) Facts assumed to be true for motion.

• Like the District Court, Supreme Court assumes factual allegations in complaint to be true for purpose reviewing dismissal under Rule 12(b)(6). Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• On a motion to dismiss, all well-pleaded facts of the complaint are considered to be true. The motion shall be granted where, assuming the allegations of the complaint are true; the plaintiff has failed to state a claim for which the court has power to prescribe a remedy. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• On a motion to dismiss, all well-pleaded facts are considered to be true. Chavez v. Upshaw, 6 Nav. R. 519 (W.R. Dist. Ct. 1989).

• On a motion to dismiss, all well-pleaded facts are considered to be true. Curtis v. NNBA, 3 Nav. R. 178 (W.R. Dist. Ct. 1981).

b) No recognized cause of action

• A motion to dismiss is made on the grounds that the plaintiff has failed to state a claim upon which relief can be granted. Secatero v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 385 (Nav. Sup. Ct. 1991).

• Motion to dismiss would be granted where complaint does not allege a recognized cause of action. Denny v. Brown, 6 Nav. R. 497 (W.R. Dist. Ct. 1989).

2. Failure to serve summons

• It was an abuse of discretion to dismiss under 12(a) where there was no summons to alert defendants they had to answer in 30 days. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• Rule 12(b)(5) is the vehicle for attacking the failure to serve summons in six months. Yazzie v. James, 7 Nav. R. 324 (Nav. Sup. Ct. 1998).

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3. Improper venue

• Due process governs venue questions. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• Venue should be decided to promote fundamental fairness in court proceedings to assure that every person before the courts has a “day in court.” Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• The proper remedy for improper venue is a 12(b)(3) motion for dismissal without prejudice. Initial filing in the wrong district tolls the statute of limitations, and it is not a bar to a new filing. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

4. General rules for motions

• The failure to respond to a motion is not an admission that the court should grant the motion. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• The Court will not deny an appellant's right to argue against an order of dismissal if the district court did not give notice of the deadline for a response. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• In the absence of a timeline in the Navajo Rules of Civil Procedure, the district courts can supply their own deadline, but, at a minimum, the courts must inform the party responding to the motion of the deadline to file his or her response. Due process requires no less. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• There will be no hearing on a motion unless the Court orders oral argument on its own motion or grants an application by either party for a hearing. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• Motions must be timely served upon opposing parties. Sweetwater Chapter v. Teec Nos Pos Chapter, 2 Nav. R. 13 (Nav. Ct. App. 1979).

• All motions require a hearing absent a contrary stipulation. Sweetwater Chapter v. Teec Nos Pos Chapter, 2 Nav. R. 13 (Nav. Ct. App. 1979).

I. Amendments

• Motion to amend pleadings to conform to evidence must be made prior to judgment. A-1 Mobile Homes, Inc. v. Becenti, 2 Nav. R. 72 (Crwn. Dist. Ct. 1979).

J. Third-Party Practice

K. Counterclaims

1. Jurisdiction

• Lower court improperly dismissed case where it had no jurisdiction over complaint, but it had jurisdiction over counterclaim. Begay v. Begay, No. SC-CV-65-05, slip op. (Nav. Sup. Ct. May 11, 2006).

• If the court lacks jurisdiction over the original petition, the counterclaim nonetheless survives if there is a separate jurisdictional basis to hear the counterclaim. Begay v. Begay, No. SC-CV-65-05, slip op. (Nav. Sup. Ct. May 11, 2006).

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• A creditor bringing a replevin proceeding in Navajo Court subjects himself to the Court’s jurisdiction over counterclaims. Singleton’s Mobile Home Sales v. Crosby, 7 Nav. R. 553 (Ship. Dist. Ct. 1997).

2. Defined

• Defenses negate an essential element of a claim. By contrast, a counterclaim is a separate claim the defendant has against the plaintiff that does not defeat an element of the claim. Some counterclaims indirectly also negate an element of the claim. Duncan v. Shiprock Dist. Ct. 8 Nav. R. 581 (Nav. Sup. Ct. 2004).

• There is a difference between a counterclaim, which is made in opposition or deduction from a claim, recoupment, which is a discount from a demand, or setoff, which is an extrinsic or independent claim. Manygoats v. GMAC, 4 Nav. R. 94 (Nav. Ct. App. 1983).

3. Reply necessary

• Replies are necessary for counterclaims. Four Corners Auto Sales, Inc. v. Begay, 4 Nav. R. 100 (Nav. Ct. App. 1983).

4. Compulsory counterclaims

• Where repossession claim has been filed, counterclaim on credit transaction is compulsory. Singleton’s Mobile Home Sales v. Crosby, 7 Nav. R. 553 (Ship. Dist. Ct. 1997).

IV. Pre-trial conferences

• Traditional custom should be discovered by an informal pre-trial conference with two or three experts. Counsel may attend the conference, but only to ask clarifying questions. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999).

• Tradition may be discovered by an informal pretrial conference with two or three experts. Counsel may attend the conference, but only to ask clarifying questions. In re Estate of Belone, 5 Nav. R. 161 (Nav. Sup. Ct. 1987).

V. Parties

A. Interpleader

• Navajo interpleader rule does not require permission from the court to submit the funds, but requires that they be submitted to perfect the interpleader action. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005).

• Rule 67(a) of Navajo Rules of Procedure requires that a party seeking "the disposition of a sum of money" ask for leave from the court to deposit the funds. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005).

• A party in an interpleader may not unilaterally deposit funds with the court. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 660 (Nav. Sup. Ct. 2005).

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B. Intervention

• Where a non-party wishes to take part in proceedings, this is done by application for intervention or for substitution of parties. Intervention is not allowed without motion. Navajo Nation ex rel. Div. of Soc. Welfare in interest of Two Minor Children, 4 Nav. R. 57 (Nav. Ct. App. 1983).

C. Indispensible Parties

• Under Rule 19 of the Navajo Rules of Civil Procedure, Navajo courts are required to dismiss certain cases because one or more parties are “indispensable” to the action. However, a party is not indispensable simply because they are one of several tortfeasors; there are multiple elements the party must meet to trigger dismissal of the case. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007).

• Third party is not indispensible when the party itself claims that it is not indispensible and when it is not financially responsible for the defendant. Cedar Unified School Dist. v. Nav. Nat. Labor Comm’n, No. SC-CV-53-06 & No. SC-CV-54-06, slip op. (Nav. Sup. Ct. November 21, 2007).

• Agent of employer was not an “indispensible party” to a Labor Commission Proceeding who was required to be joined to ensure that the employer would comply with a reinstatement order. The evidence in the record indicated that the employer could make a hiring decision without the agent. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Rule 19 provides for mandatory joinder “if feasible” where complete relief cannot be made among the parties. Where a U.S. official was being sued for actions outside of his duties, the U.S. would not be joined. C.M. v. Wright, 7 Nav. R. 594 (Crwn. Dist. Ct. 1999).

• Parties are indispensable when they have an interest of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such condition that its final determination may be wholly inconsistent with equity and good conscience. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

• A party is not indispensable if they will not be adversely affected by the outcome of the case. Halona v. MacDonald, 1 Nav. R. 341 (Ship. Dist. Ct. 1978).

D. Substitution of parties

• Substitution is an extraordinary procedure that is generally not allowed. Johns v. Leupp Schools, Inc., 7 Nav. R. 120 (Nav. Sup. Ct., 1995).

• Substitution may be permitted where the cause of action or appeal issues remain the same and the party substituted is the successor-in-interest. Johns v. Leupp Schools, Inc., 7 Nav. R. 120 (Nav. Sup. Ct., 1995).

• Guiding principle is whether substitution will assist in determining controversies true merits. Johns v. Leupp Schools, Inc., 7 Nav. R. 120 (Nav. Sup. Ct., 1995).

• Courts have discretion to decide substitution motion. Johns v. Leupp Schools, Inc., 7 Nav. R. 120 (Nav. Sup. Ct., 1995).

E. Class actions

Note: Billie v. Abbot was decided before the adoption of the current Navajo Rules of Civil Procedure. The current Navajo Rules provide for class actions, so no reference to the federal rules is necessary.

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• Court may adopt Rule 23 of the Federal Rules of Civil Procedure to allow class action. Four criteria must be met: (1) numerous class; (2) common questions of law or fact; (3) representative party must be typical; (4) representative party must fairly and adequately represent class. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

VI. Discovery

A. General

1. Purpose of discovery

• The purpose of discovery is to facilitate the administration of justice and to aid a party in preparing and presenting his case. It is intended to expedite the litigation by narrowing and clarifying the facts and issues so that the parties may reach a settlement or avoid surprises that may cause delay. Reservation Bus. Svcs. v. Barber, 7 Nav. R. 468 (Ship. Dist. Ct. 1995).

2. Failure to respond

• An unchallenged discovery request has the effect of a court order. Chavez v. Tome, 5 Nav. R. 183 (Nav.Sup. Ct. 1987).

3. Scheduling

• Navajo Rules encourage “mutuality” in the timing and sequence of discovery. The Court should not use a discovery schedule that favors a party. Farley v. McGee, 7 Nav. R. 612 (Ship. Dist. Ct. 1999).

4. Experts

a) Experts on Navajo tradition

• Navajo Rules allow expert depositions. Farley v. McGee, 7 Nav. R. 614 (Ship. Dist. Ct. 1999). • Traditional custom should be discovered by an informal pretrial conference with two or three

experts. Counsel may attend the conference, but only to ask clarifying questions. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999).

• It is preferable to exchange expert reports prior to the expert deposition. Farley v. McGee, 7 Nav. R. 567 (Ship. Dist. Ct. 1999).

• The court has discretion to decline to allow the use of video-taped depositions, especially of experts, at trial. Farley v. McGee, 7 Nav. R. 567 (Ship. Dist. Ct. 1999).

5. Standard of discovery

• A party may get discovery on any matter likely to lead to the discovery of admissible evidence. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999).

• Discovery would be allowed into documents held off site by mill operation because such documents are likely to lead to the discovery of admissible evidence. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999).

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• The scope of discovery is broad. Rules governing discovery are liberally construed in favor of disclosures so that the various purposes of discovery are accomplished. Reservation Bus. Svcs. v. Barber, 7 Nav. R. 468 (Ship. Dist. Ct. 1995).

B. Depositions

• Navajo Rules allow expert depositions. Farley v. McGee, 7 Nav. R. 614 (Ship. Dist. Ct. 1999). • A party served with a notice of deposition duces tecum has the burden to object. Inaction will be

seen as consent. Chavez v. Tome, 5 Nav. R. 183 (Nav. Sup. Ct. 1987).

C. Interrogatories

[No Navajo cases on this topic at this time].

D. Requests for inspection

[No Navajo cases on this topic at this time].

E. Requests for admissions

[No Navajo cases on this topic at this time].

F. Physical or mental examinations

[No Navajo cases on this topic at this time].

G. Subpoenas

• A court may refuse to enforce a subpoena to produce documents (the subpoena duces tecum) if it is overbroad, unreasonable, oppressive, or a “fishing expedition.” MacDonald, Sr. v. Navajo Nation, 6 Nav. R. 290 (Nav. Sup. Ct. 1990).

H. Sanctions

1. Authority to impose

• Adjudicatory authority has discretion to impose sanctions, including default, for failure to obey discovery orders. Chavez v. Tome, 5 Nav. R. 183 (Nav. Sup. Ct. 1987).

2. Purpose of sanctions

• The purposes of imposing sanctions under Rule 37 are to assure future compliance, to punish and to compensate for expenses incurred due to a party’s failures in discovery. Reservation Bus. Svcs. v. Barber, 7 Nav. R. 468 (Ship. Dist. Ct. 1995).

• No party should have to undergo unnecessary expense and effort in an attempt to consistently discover the same materials while the other party simply ignores discovery orders. Chavez v. Tome, 5 Nav. R. 183 (Nav. Sup. Ct. 1987).

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3. Default as sanction

• Failure of Navajo Nation to respond to discovery orders can lead to default as a sanction. Loley v. Dept. of Empl. & Training, 7 Nav. R. 406 (Nav. Sup. Ct. 1999).

• Court may enter judgment against party for discovery abuse. Case holds client responsible for counsel’s failure to respond to discovery. Tohatchi Special Ed. v. Halona, 7 Nav. R. 208 (Nav. Sup. Ct. 1996).

• Entry of judgment against party is appropriate for flagrant disregard of Court’s discovery orders, for flagrant abuse of the discovery process or for willful violations of court orders. Chavez v. Tome, 5 Nav. R. 183 (Nav. Sup. Ct. 1987).

• Court may enter judgment as sanctions for discovery violations. Four Corners Auto Sales, Inc. v. Begay, 4 Nav. R. 100 (Nav. Ct. App. 1983).

4. Dismissal as sanction

• Court has discretion to impose sanctions, including dismissal, for failure to obey discovery order. Jones v. Teller, 7 Nav. R. 53 (Nav. Sup. Ct. 1993).

• Court can rule party gave up right to be heard by failing to follow discovery orders. Wilson v. Wilson, 3 Nav. R. 145 (Nav. Ct. App. 1982).

5. Attorneys’ fees as sanction

• Courts have inherent power to assess attorneys’ fees and expenses against attorneys for the failure to obey discovery orders. Begay v. Nav. Elec. Admin., 7 Nav. R. 139 (Nav. Sup. Ct. 1995).

VII. Trial

A. Jury trials

1. Right to jury trial

• The right to a jury trial is a fundamental right. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. Dec. 7, 2007).

• A jury trial is a fundamental right on the Navajo Nation. A jury is a modern manifestation of the Navajo principle of participatory democracy in which the community talks out disputes and makes collective decisions. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

• Navajo Bill of Rights recognizes right to jury trial in a civil action at law. Duncan v. Shiprock Dist. Ct., 8 Nav. R. 581 (Nav. Sup. Ct. 2004).

• Plaintiffs have an inviolate right to a jury trial. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999).

• The traditional Navajo common law doctrine that applies to jury process is Navajo participatory democracy. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• A modern Navajo jury continues the fundamental tradition of community participation in the resolution of disputes through deliberation and consensus. A jury consists of members of the parties' community who bring their experience, culture and community standards into the jury box. The jury engages in deliberations, relying upon persuasion to reach consensus, to reach its verdict. These essential characteristics of a Navajo jury make it a modern expression of our longstanding legacy of participatory democracy. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

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• Jury trials are available for tort cases. Keith v. Allred, 3 Nav. R. 191 (Chin. Dist. Ct. 1981).

2. Composition of jury

• Non-Navajos may not be excluded from the process of creating a jury pool. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• The groups which must not be excluded include large distinctive groups and identifiable segments playing major roles in the community. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Non-Navajos may not be left off of juries. George v. The Navajo Indian Tribe, 2 Nav. R. 1 (Nav. Ct. App. 1979).

3. Jury selection

• The rules for the creation of a jury pool are as follows: 1) juries must be drawn from a source which is fairly representative of the community, but need not mirror it; 2) all defendants may assert the right, including people who are not members of an excluded group (i.e. Indians can challenge the exclusion of non-Indians from juries); and 3) a defendant can prevail by showing a systematic exclusion of distinctive groups of people; but not an occasional mistaken exclusion. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Where party initiated the jury selection process, he cannot induce errors and then complain of them. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Tribal courts have unique problems selecting juries. If tribal rolls or voter registration lists are used, defendants will complain about the exclusion of nonmember Indians or non-Indians as distinctive groups or identifiable segments of the community. If tribes use county voter registration lists, on-reservation nonmember Indians will challenge being summoned for jury duty, and off-reservation individuals will contest the authority of a tribal court to summon them. It is difficult to cull motor vehicle license or registration lists, assuming they are available, due to the same considerations. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• The proper procedure is to challenge the array or jury panel, addressing the entire panel, in writing. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Minor irregularities in drawing the panel will be disregarded. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Trial Court erred in forcing defendant to use a preemptory challenge to exclude a juror who should have been excluded for cause. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Allowance of juror who would have been excluded if party still had a preemptory challenge will not be reversed if juror was able to lay aside his impression or opinion and render verdict based on the evidence presented in court. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Parties have three peremptory challenges and unlimited challenges for cause. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Trial judges have the discretion to determine the order and method in which peremptory challenges may be used. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Navajo trial judges may not require parties to exhaust their peremptory challenges first, before permitting a challenge for cause. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

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4. Jury instructions

• A party cannot complain about the failure to give an instruction when they did not request it of the Trial Court. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

5. Jury fees

• District courts may require prepayment of costs of a jury trial from those who can afford to make payment, and such requirement does not violate the right to a jury trial. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

• The Court reads the phrase “if prepayment would deny that person the right to a trial by jury,” to mean that if a party cannot prepay such costs, a requirement to nonetheless prepay costs before a jury is cal1ed violates the right to a jury trial. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

• Importantly, the inability to pay is not coextensive with a party’s in forma pauperis status, as even parties who are not indigent may not be able to prepay the potentially significant costs of holding a jury trial. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

• Fairness requires that parties not be denied their right to a jury trial merely because they cannot immediately afford the costs of holding one. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

• The requirement to prepay jury costs is not, in and of itself, a violation of a party's right to a jury trial. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

6. Waiver

• A fundamental right, including the right to a jury trial, may be waived. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

• The waiver must be a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

7. Verdicts

• There is a presumption in favor of verdicts. GMAC v. Bitah, 6 Nav. R. 45 (Nav. Sup. Ct. 1988).

B. Bifurcation

• The Court has discretion with regard to whether to bifurcate case. Farley v. McGee, 7 Nav. R. 596 (Ship. Dist. Ct. 1999).

C. Motions for directed verdict

• A directed verdict is properly invoked only during a jury trial. It takes the case out of the hands of the jury when the plaintiff has not made a prima facie case. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• In reviewing a decision to deny a directed verdict motion, facts must be viewed in a light most favorable to the prevailing party. GMAC v. Bitah, 6 Nav. R. 45 (Nav. Sup. Ct. 1988).

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• Motions for directed verdict must be made at the conclusion of either party’s case in chief and not at any other time. Hawthorne v. Wener, 2 Nav. R. 46 (Nav. Ct. App. 1979).

D. Burden of proof

• Burden of proof at trial is preponderance of evidence. This means evidence that is more convincing than the evidence offered in opposition. Benally v. Benally, 7 Nav. R. 503 (Ship. Dist. Ct. 1996).

E. Dismissal of actions

• After the plaintiff, in a non-jury trial has completed his case, the defendant 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 may render judgment against the plaintiff or may decline to render 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). Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• An involuntary dismissal is an adjudication on the merits under Rule 39(b). Rough Rock Comm. School v. Navajo Nation, 7 Nav. R. 313 (Nav. Sup. Ct. 1998).

• Plaintiff has responsibility to move case along, on penalty of dismissal. Jones v. Teller, 7 Nav. R. 53 (Nav. Sup. Ct. 1993).

• Factors to be weighed: (1) public’s interest in expediting litigation; (2) court’s need to manage docket; (3) risk of prejudice; (4) policy favoring resolving cases on the merits; (5) availability of less drastic sanctions. Jones v. Teller, 7 Nav. R. 53 (Nav. Sup. Ct. 1993).

F. Opening statement

• The function of an opening statement is to permit counsel to present their theory of the case to the jury. It is an “opening” statement, because it gives the jury an overview of the case to be presented. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

• Both parties have an opportunity to outline the evidence they will present. The goal is to educate the jury about what it will hear, so they can understand the evidence. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

• The opening statement is particularly important where the facts of the case may be complex. • The opening statement is not limited to a statement of admissible evidence. Such a rule would

violate the Navajo common 1aw principle of “talking things out.” Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

• In opening statement, the Navajo common law principle of “talking things out” permits discussion of inferences which may arise from admissible evidence and a fair presentation of the parties' theory of the case. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

• Counsel is permitted great leeway in presenting arguments to the court or a jury. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

• Supreme Court disapproves of the reference in opening statement to a party's lifestyle and opulence; however, such statements do not rise to due process proportions where there is no evidence that they swayed the jury. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

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G. Closing argument

• In closing argument, a lawyer may not make an inflammatory or prejudicial argument and thus improperly influence the jury. George v. The Navajo Indian Tribe, 2 Nav. R. 1 (Nav. Ct. App. 1979).

H. Judge responsible for questions of law

• The trial judge is responsible, at all phases of a trial, for resolving questions of law. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

VIII. Orders and Judgment

A. Orders

• As a general rule, there can be no enforcement of an order which has expired. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Court orders must be in writing to be effective. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

• Discretionary decisions must include reasons. Johnson v. Tuba City Dist. Ct. No. SC-CV-12-07, slip op. (Nav. Sup. Ct. November 7, 2007).

• Where an order requires action within 60 days, the action must be completed within 60 days of the signed written order. Kascoli v. Kascoli, 8 Nav. R. 739 (Nav. Sup. Ct. 2005).

B. Judgments

1. General

a) General content requirement

• Judgment shall consist of an order of the court awarding money damages to be paid to the injured party, or directing the surrender of certain property, or the performance of some act for the injured party. NTUA v. Foster, 4 Nav. R. 86 (Nav. Ct. App. 1983).

b) Presumed valid

• In the absence of a clear showing of lack of jurisdiction, fraud, or other grounds which are inconsistent with justice, a judgment of a Navajo Nation court is deemed valid. Little v. Begay, 7 Nav. R. 353 (Nav. Sup. Ct. 1998).

• Judgment is valid absent showing of lack of jurisdiction, fraud or other grounds inconsistent with justice. A judgment that appears valid on its face will be presumed valid. Begay v. Keedah, 6 Nav. R. 416 (Nav. Sup. Ct. 1991).

• There is a presumption that the court intended to make a valid judgment. Tom v. Tom, 4 Nav. R. 12 (Nav. Ct. App. 1983).

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c) Final rulings on procedural issues

• Denial of a request for jury trial is not a final order for appeal. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

• A final ruling on a procedural issue, like a divorce appraisal, is a “judgment.” Kascoli v. Kascoli, 8 Nav. R. 739 (Nav. Sup. Ct. 2005).

d) Writing requirement

• If there is a difference between what a court says and what it writes, the written final judgment is recognized. Salt v. Martinez, No. SC-CV-12-08, slip op. (Nav. Sup. Ct. January 21, 2009).

• Judgment must be in writing. Kascoli v. Kascoli, 8 Nav. R. 739 (Nav. Sup. Ct. 2005). • Judgment must be a written document. Litzin v. Farmington Motors, 7 Nav. R. 396 (Nav. Sup. Ct.

1999).

e) Dismissal

• A dismissal on the merits is a final judgment. In the Matter of Validation of Marriage of Whitehorse, 8 Nav. R. 292 (Nav. Sup. Ct. 2003).

f) Must dispose of case

• Final judgment must include a written document awarding damages, directing surrender of property or performance of an act or declaring rights. It must dispose of the case. Litzin v. Farmington Motors, 7 Nav. R. 396 (Nav. Sup. Ct. 1999).

• A final judgment must dispose of a case. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

g) Must be clear

• Judgments must be reasonable clear. A judgment may be void for uncertainty. Tom v. Tom, 4 Nav. R. 12 (Nav. Ct. App. 1983).

• Judgments should be given practical instructions, not highly technical ones. Tom v. Tom, 4 Nav. R. 12 (Nav. Ct. App. 1983).

h) Court’s intent

• To interpret judgment, look at court’s intent. Tom v. Tom, 4 Nav. R. 12 (Nav. Ct. App. 1983).

i) Motions for reconsideration

• Navajo Courts do not recognize motions for reconsideration as a valid post-trial motion. Lee v. Tallman, 7 Nav. R. 191 (Nav. Sup. Ct. 1996).

• Motions for reconsideration shall be deemed denied after five days. Help v. Silvers, 4 Nav. R. 46 (1983). Note: Rule 5(d) of the Navajo Rules of Appellate Procedure requires a motion for reconsideration to be filed before an appeal may be considered. The Navajo Rules of Civil Appellate Procedure were adopted on March 1, 1987, and they contain no such requirement. As such, counsel is cautioned not to utilize a motion for reconsideration as a post-trial motion given

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the ruling in Lee v. Tallman, 7 Nav. R. 191 (Nav. Sup. Ct. 1996), and the fact that a motion for reconsideration will not toll the time for appeal under Rule 8(b), N.R.C.A.P.

j) Void judgments

• A judgment void when rendered will always remain void. Nez v. Nez, 7 Nav. R. 25 (Nav. Sup. Ct. 1992).

• The validity of a judgment depends on the jurisdiction of the Court entering it. Nez v. Nez, 7 Nav. R. 25 (Nav. Sup. Ct. 1992).

2. Default judgment

a) Requirement of notice to the defendant

• Trial court did not err in enforcing default order from foreign court where defendant had notice of pending action. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

• Party waived right to be heard by not requesting hearing despite plain and bold written notice that such a request was his affirmative burden. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

• Motion for default judgment must be served on opposing party. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• A default judgment may only be rendered against a party properly named and properly served. Tome v. Marshall, 7 Nav. R. 569 (Ship. Dist. Ct. 1999).

b) Due process

• There is nothing in the concept of procedural due process of law that requires a separate warning that a default judgment might be entered. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

• Due process requires a hearing on default judgment where damages are not liquidated and stated in complaint. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Due process requires a hearing on default judgment where damages are not liquidated and stated in complaint. Loley v. Dept. of Empl. & Training, 7 Nav. R. 406 (Nav. Sup. Ct. 1999).

c) Setting aside default

• Motion to set aside default requires showing of irregularity or abuse of discretion denying fair trial. Loley v. Dept. of Empl. & Training, 7 Nav. R. 406 (Nav. Sup. Ct. 1999).

• Standard for setting aside default is sufficient grounds. The judge must be satisfied that there are reasons in fact or law which make it reasonable just or fair to set aside the default. Wilson v. Wilson, 3 Nav. R. 145 (Nav. Ct. App. 1982). Note: This case is presented in strikeout format because it refers to the former Rule 12 of the Navajo Rules of Civil Procedure. The 1989 rules adopted current Rule 55 which uses the “good cause” standard.

• Vacating, opening or setting aside a default judgment is within the discretion of the trial court. Young v. Begay, 3 Nav. R. 134 (Nav. Ct. App. 1982).

• Public policy favors vacating defaults to hear a case on the merits. Brown v. Brown, 3 Nav. R. 239 (W.R. Dist. Ct. 1982).

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d) Court must wait 10 days after entry of default

• Dist. Ct. may not enter default until 10 days after motion for default is filed. Laughing v. Diehl, 7 Nav. R. 293 (Nav. Sup. Ct. 1997).

e) Repossession cases

• Rule 55, Nav.R.Civ.P., governs default in repossession proceedings. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

f) Must be strict adherence to law

• When granting a default judgment, the trial court must require strict adherence to the law. This includes that there is personal jurisdiction over the debtor by personal service on the debtor. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

g) All allegations of complaint taken as true

• All allegations of complaint are taken as true in a default judgment. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

h) Trial on the merits favored

• Trial on the merits is strongly favored. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988). • Public policy favors vacating defaults to hear a case on the merits. Brown v. Brown, 3 Nav. R. 239

(W.R. Dist. Ct. 1982).

i) Balance of preventing delay vs. trying case on merits

• In deciding whether to grant a default judgment, court must strike a balance between preventing delay and policy favoring adjudication on the merits. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• Default judgments serve to prevent continual delay and uncertainty regarding rights. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

j) Should be imposed only in most extreme circumstances

• Default should be imposed only in the most extreme circumstances. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

k) Failure to appear at trial

• Once an answer is filed, a default judgment may not be rendered against the defendant for failure to appear at trial. Plaintiff must still prove his case. Barber v. Barber, 5 Nav. R. 9 (Nav. Ct. App. 1984).

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l) Necessity of damages hearing

• Judgment on default should be entered after a hearing on damages unless damages can be clearly established through simple documentary evidence supplied with a motion. Four Corners Auto Sales, Inc. v. Begay, 4 Nav. R. 100 (Nav. Ct. App. 1983).

3. Summary judgment

a) Defined

• A party against whom a claim is asserted may move with or without supporting affidavits for summary judgment in the party’s favor upon all or any part of the claim. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• A motion for summary judgment is like a motion to dismiss in that it invites the court to consider substantive legal grounds for dismissing the complaint without waiting for trial. Johnson v. Yellowman, 7 Nav. R. 545 (Ship. Dist. Ct. 1997).

b) Standard for granting summary judgment

• Summary judgment may be granted when there is no dispute of material fact and when the moving party in entitled to judgment as a matter of law. Thomas v. Chinle Chapter, No. SC-CV-30-06, slip op. (Nav. Sup. Ct. May 4, 2007).

• The judgment sought on a summary judgment motion shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

c) Genuine dispute of material fact

• A “material fact” precluding summary judgment is a fact (1) required by the substantive law which defines the claim or defense; or (2) a fact that will affect the outcome of the suit. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002).

• A dispute is “genuine” if a reasonable jury could return a verdict for the non-moving party based on the fact. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002).

• On summary judgment, the court must determine whether there is a dispute as to the facts for the case to go to trial. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003).

• A dispute of fact is genuine if a reasonable jury could return a verdict for the nonmoving party based upon a disputed fact. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003).

• If a genuine factual dispute is found, then summary judgment is inappropriate. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003).

• A “material fact” is determined by the substantive law governing the claims or defenses of the parties. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003).

• Summary judgment is to test whether a case should go to trial. The process is to test whether any genuine issue of material fact exists. Thomas v. Succo, 7 Nav. R. 63 (Nav. Sup. Ct., 1993).

• Summary judgment should only be granted where there is no issue of material fact. It is not to decide an issue of fact, but to decide if an issue of fact exists. Begay v. Dennison, 4 Nav. R. 115 (Nav. Ct. App. 1983).

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d) Court may not weigh evidence

• The trial judge's function is not to weigh the evidence or determine the truth of the material facts, but to decide whether there is a genuine issue for trial. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003).

e) Court may not determine sufficiency of pleadings

• Under Rule 56, a Court does not determine the sufficiency of the pleadings. Thomas v. Succo, 7 Nav. R. 63 (Nav. Sup. Ct., 1993).

f) Must be denied if there is “slightest doubt” as to existence of material fact

• Summary judgment is an extreme remedy that should not be employed if there is the slightest doubt as to the existence of an issue of material fact. Benally v. Mobil Oil Corp., 8 Nav. R. 387 (Nav. Sup. Ct. 2003).

• Summary judgment should not be employed if there is the “slightest doubt” as to the existence of an issue of material fact. Begay v. Dennison, 4 Nav. R. 115 (Nav. Ct. App. 1983).

g) Must be granted where party cannot establish element on which they carry burden of proof

• Summary judgment must be granted against a party who fails to establish an element on which they carry the burden of proof. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002).

h) No writing required

• Written motion is not required for motion for summary judgment. Whitehorse v. Kayenta Chapter, 7 Nav. R. 349 (Nav. Sup. Ct. 1998).

i) Differing interpretations of contract

• Summary judgment will not be granted where there are conflicting interpretations of insurance policy. John v. Western Agricultural Ins. Co., 7 Nav. R. 561 (Ship. Dist. Ct. 1997).

j) Responding to summary judgment motions

• A party opposing a motion for summary judgment must file affidavits, memoranda or both after the motion is made. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

4. Declaratory judgment

• Court has power to issue declaratory judgment. Sandoval v. Tinian, Inc., 5 Nav. R. 215 (Crwn. Dist. Ct. 1986).

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5. Res judicata

a) General

• The doctrine of res judicata prohibits the relitigation of the same dispute. The basic rule of res judicata is that a party ordinarily cannot assert a claim arising out of a transaction if he or she has previously litigated a claim arising out of that same transaction, even if the claims made in the two actions are not exactly the same. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• Judgment on merits precludes later litigation on identical claims or causes of action affecting the same thing between the parties or their privies. In the Matter of Validation of Marriage of Whitehorse, 8 Nav. R. 292 (Nav. Sup. Ct. 2003).

• The doctrine of res judicata prohibits the relitigation of the same dispute. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• Party may not assert a civil claim arising out of a given transaction if he has already litigated a claim arising out of that transaction, even if the two claims are not exactly the same. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• Judgment on merits precludes later litigation on identical claims or causes of action affecting the same thing between the parties or their privies. Austin v. Austin, 7 Nav. R. 47 (Nav. Sup. Ct. 1993).

• Res Judicata prohibits a dispute from being legally resolved more than once. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

b) Purpose

• The doctrine of res judicata promotes fairness between parties, and is consistent with the Diné bi beenahaz’ áanii value of finality. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• Res judicata serves a number of important legal and social ends. It promotes efficiency in the administration of justice by conserving scarce judicial resources. It also prevents the occurrence of inconsistent outcomes that could result if the same claims, involving the same parties, were adjudicated by different courts of equal jurisdiction. Such limitations preserve the finality of judgments and, with it, the stability of the legal system as a whole. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• The doctrine of res judicata promotes fairness between parties. Without this limitation on relitigation, losing parties would have a strong incentive to keep re-litigating their claims until they received a more favorable judgment. Winning parties would be forced to expend extra time and money re-litigating the same claims. That situation would advantage the losing side of every case—an outcome that is in conflict with the fundamental principle of fairness. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• Res judicata is necessary for judicial economy to protect the interest of litigants from unfair prejudice and to have disputes once decided to stay decided. Halwood v. Badonie, 6 Nav. R. 16 (Nav. Sup. Ct. 1988).

c) Elements

• For the doctrine to apply, four elements must be met: (1) the parties in the second action must be the same as or in privity with the parties in the first action; (2) the cause of action must be the

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same, or must arise out of the same transaction or event, in both actions; (3) there must have been a final decision in the first action, and (4) the first decision must have been on the merits. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• Elements to establish res judicata: (1) parties same or privies; (2) cause of action must be the same, or must arise from the same transaction or event; (3) there must have been a final decision in the first action; and (4) the final decision must have been on the merits. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• Standards for Res Judicata (1) same parties or privies; (2) same subject matter or cause of action; (3) final decision; (4) on the merits. In the Matter of the Estate of Kindle, 8 Nav. R. 150 (Nav. Sup. Ct. 2001).

d) Similarity of actions

• The causes of action are the same if they are substantially similar. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• Preclusion is inapplicable in the second case where the party was unable to pursue a certain claim for relief or was unable to pursue a certain remedy in the first case. Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nav. Sup. Ct. February 16, 2007).

• Two causes of action arising from the same transaction are the same if the claims are substantially similar. Claims may be deemed substantially similar if the relevant evidence and the applicable rules of law are the same. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• The mere fact that a claim was left out of the first proceeding does not avoid the impact of res judicata. Res judicata bars the claim if it could have been brought in the first proceeding. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• Claims regarding defects in an arbitration procedure are not barred by res judicata because such claims are new and distinct from the transaction or event that gave rise to the initial complaint. Employees who feel that a labor arbitrator's decision on the merits was flawed or that the arbitration procedure was unfair may have remedies available to them in the appropriate court. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

e) Identity of parties

• Res judicata is inapplicable where present parties were not parties to prior proceeding. Matter of Guardianship of Chewiwi, 1 Nav. R. 120 (Nav. Ct. App. 1977).

f) Diné Bi Beenahaz’áanii

• It is a Navajo legal concept that once parties have had an opportunity to have their say, a decision on the matter is final, and should not be disturbed. The Court has applied this concept to recognize the doctrine of res judicata. Matter of Estate of Kindle, No. SC-CV-40-05, slip op. (Nav. Sup. Ct. May 18, 2006).

• Navajos traditionally respected the finality of a decision. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

• When all have been heard on a dispute and the decision is made, it is respected. This has been the Navajo way since before the time of the present judicial system. The Navajo people did not learn this principle from the white man. They have carried it with them through history. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

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• Navajo common law respected finality of decisions. Austin v. Austin, 7 Nav. R. 47 (Nav. Sup. Ct. 1993).

• Navajos respect final decisions. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992). • Navajos traditionally respected the finality of a decision. Halwood v. Badonie, 6 Nav. R. 16 (Nav.

Sup. Ct. 1988). • When all have been heard on a dispute and the decision is made, it is respected. This has been the

Navajo way since before the time of the present judicial system. The Navajo people did not learn this principle from the white man. They have carried it with them through history. Halwood v. Badonie, 6 Nav. R. 16 (Nav. Sup. Ct. 1988).

• Navajos have traditionally respected the finality of a decision. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

• When all have been heard on a dispute and the decision is made, it is respected. This has been the Navajo way since before the time of the present judicial system. The Navajo people did not learn this principle from the white man. They have carried it with them through history. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

g) Finality of first judgment

• A subsequent action is not precluded if the previous judgment was vacated or reversed by an appellate court. Navajo Housing Auth. v. Clark, No. SC-CV-53-05, slip op. (Nav. Sup. Ct. April 4, 2006).

• Final decision on merits is res judicata and may only be reopened on a showing of new evidence or other reasons justifying relief. Davis v. Means, 7 Nav. R. 100 (Nav. Sup. Ct. 1994).

h) Jurisdiction compared

• Res Judicata is not a jurisdictional defect. Cabinets Southwest v. Navajo Nation Labor Comm’n, 8 Nav. R. 435 (Nav. Sup. Ct. 2004).

i) Proper notice required in first action

• If notice is given to heirs, final decision is res judicata as to heirs. In the Matter of the Estate of Kindle, 8 Nav. R. 150 (Nav. Sup. Ct. 2001).

• Res judicata does not prevent hearing on oral will where party did not have notice of previous probate proceeding. Had notice been given in accordance with the rules of civil procedure, res judicata would prevent any further claims. Matter of Estate of Lee, 1 Nav. R. 27 (Nav. Ct. App. 1971).

j) Prior judgment must be offered into evidence

• Res Judicata may only be applied where the prior judgment is either pleaded or offered in evidence. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

k) Court may raise on its own motion

• Trial Court may raise res judicata on its own motion. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

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l) Inapplicable to motions

• Res Judicata does not apply to motions like it does to judgments. Navajo Nation v. Rico, 4 Nav. R. 175 (W.R. Dist. Ct. 1983).

• Normally, an order on a procedural motion or on a matter that falls within the discretion of the Court does not preclude a subsequent motion on the same grounds. Navajo Nation v. Rico, 4 Nav. R. 175 (W.R. Dist. Ct. 1983).

• Res judicata usually does not apply to reopening motions, which may be reconsidered. Brown v. Brown, 3 Nav. R. 239 (W.R. Dist. Ct. 1982).

m) Discrimination claims

• There may be exceptions to the general applicability of the doctrine of res judicata when the claims in question are claims of racial- or gender-based discrimination. Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, 8 Nav. R. 313 (Nav. Sup. Ct. 2003).

IX. Post-judgment motions

A. Motion for new trial

1. Permissible post-trial motions

• Permissible post-trial motions include motions for judgment notwithstanding the verdict, to amend or add findings of fact, to alter or amend the judgment and for a new trial. Lee v. Tallman, 7 Nav. R. 246 (Nav. Sup. Ct. 1996).

2. Trial court’s discretion

• Trial courts have the discretionary right to grant new trial. Begay v. Karty, 5 Nav. R. 267 (W.R. Dist. Ct. 1987).

• Vacating, opening or setting aside a default judgment is within the discretion of the trial court. Young v. Begay, 3 Nav. R. 134 (Nav. Ct. App. 1982).

3. Standards for granting

• Motion to set aside jury verdict should be granted if the verdict is not supported by the evidence, is contrary to law or if new material evidence is discovered. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• Before granting new trial, court must find new evidence (1) would probably change the result; (2) was discovered since the trial; (3) could not have been discovered earlier by due diligence; (4) was material; and (5) was not cumulative or impeaching. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• New trial may be granted for newly discovered evidence where the evidence: (1) would probably change result; (2) was discovered after trial; (3) could not have been discovered earlier in due diligence; (4) is material and (5) is not cumulative or impeaching. Chavez v. Thomas, 5 Nav. R. 32 (Nav. Sup. Ct. 1985).

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• Courts are empowered to correct judgments, reopen cases where new evidence is presented or otherwise review judgments where justice and equity so requires. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

• Normally, a judge should not modify a judgment without serious reasons and a specific written motion. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

• Courts are empowered to correct judgments, reopen cases where new evidence is presented or otherwise review judgments where justice and equity so requires. Zion’s First Nat. Bank v. Joe, 4 Nav. R. 92 (Nav. Ct. App. 1983).

• Normally, a judge should not modify a judgment without serious reasons and a specific written motion. Zion’s First Nat. Bank v. Joe, 4 Nav. R. 92 (Nav. Ct. App. 1983).

• The Court may reopen a case after a final order or judgment: (1) to correct error, (2) to consider newly discovered evidence, (3) for any other reason consistent with justice. Tracey v. Heredia, 4 Nav. R. 149 (W.R. Dist. Ct. 1983).

4. Presumption in favor of upholding verdict

• Under traditional principles, courts give wide latitude to jury verdicts. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

5. Must be separate motion

• Rules 59 and 60 require a moving party to file a separate motion within a specified time stating specific grounds under Rule 59 or 60 along with supporting facts. Sheppard v. Dayzie, 8 Nav. R. 430 (Nav. Sup. Ct. 2004).

• Normally, a judge should not modify a judgment without serious reasons and a specific written motion. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

• Normally, a judge should not modify a judgment without serious reasons and a specific written motion. Zion’s First Nat. Bank v. Joe, 4 Nav. R. 92 (Nav. Ct. App. 1983).

6. Divorce decrees

• It is an abuse of process to modify a divorce decree without the party following Rule 59 or 60. Sheppard v. Dayzie, 8 Nav. R. 430 (Nav. Sup. Ct. 2004).

7. Failure to identify witness

• Failure to identify a witness was sufficient grounds for new trial. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• Failure to identify a witness is sufficient grounds for new trial. Battese v. Battese, 3 Nav. R. 110 (Nav. Ct. App. 1982).

8. Jury confusion

• New trial is appropriate where jury was confused. Begay v. Karty, 5 Nav. R. 267 (W.R. Dist. Ct. 1987).

• New trial is appropriate where jury was confused. Battese v. Battese, 3 Nav. R. 110 (Nav. Ct. App. 1982).

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9. Verdict contrary to law

• New trial is appropriate where verdict is contrary to law on issues presented or special factual findings are inconsistent with each other. Begay v. Karty, 5 Nav. R. 267 (W.R. Dist. Ct. 1987).

10. Inconsistent factual findings/errors

• New trial is appropriate where verdict is contrary to law on issues presented or special factual findings are inconsistent with each other. Begay v. Karty, 5 Nav. R. 267 (W.R. Dist. Ct. 1987).

• Court may reopen judgment to correct errors in the interest of justice. Tom v. Tom, 4 Nav. R. 12 (Nav. Ct. App. 1983).

11. Change of judge

• New trial is appropriate where judge who heard case is different from judge who rendered decision. Benally v. Black, 5 Nav. R. 137 (Nav. Sup. Ct. 1987).

12. Court’s own motion

• A judge may reopen a judgment on his own motion in extreme cases. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

13. Due process

• No judgment should be modified without notice and an opportunity to be heard. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

14. Collateral appeal

• A subsequent district judge may hear a case tried by a previous district judge if such re-hearing is warranted and no abuse of discretion occurs. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

15. Newly discovered evidence

• New trial may be granted for newly discovered evidence where the evidence: (1) would probably change result; (2) was discovered after trial; (3) could not have been discovered earlier in due diligence; (4) is material and (5) is not cumulative or impeaching. Phillips v. Farley, 1 Nav. R. 69 (Nav. Ct. App. 1972).

B. Motion on Ground of Excessive or Inadequate Damages

• To succeed on a motion for an award of additional damages post-verdict, damages must be unconscionably low, bearing no reasonable relationship to the evidence and the award would be unjust. Bryant v. Bryant, 3 Nav. R. 194 (Ship. Dist. Ct. 1981).

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C. Judgment notwithstanding verdict

• Permissible post-trial motions include motions for judgment notwithstanding the verdict, to amend or add findings of fact, to alter or amend the judgment and for a new trial. Lee v. Tallman, 7 Nav. R. 246 (Nav. Sup. Ct. 1996).

• Judgment notwithstanding the verdict is inappropriate where jury made no finding of damages or percentages of fault. Begay v. Karty, 5 Nav. R. 267 (W.R. Dist. Ct. 1987).

D. Motion to alter or amend judgment

• Permissible post-trial motions include motions for judgment notwithstanding the verdict, to amend or add findings of fact, to alter or amend the judgment and for a new trial. Lee v. Tallman, 7 Nav. R. 246 (Nav. Sup. Ct. 1996).

• Normally, a judge should not modify a judgment without serious reasons and a specific written motion. Benally v. Holtsoi, 6 Nav. R. 35 (Nav. Sup. Ct. 1988).

E. Motion to set aside judgment

1. General

• Judgment may be attacked under Rule 60(c). Matter of Adoption of J.L.B., 6 Nav. R. 314 (Nav. Sup. Ct. 1990).

• Court may reopen judgments in the interest of justice. Brown v. Brown, 3 Nav. R. 239 (W.R. Dist. Ct. 1982).

2. Standard of review

• Where no appeal is taken from a judgment, and a motion under Rule 60 is later filed, the subsequent appeal may only examine the ruling on the Rule 60 motion. Mitchell v. Davis, 8 Nav. R. 542 (Nav. Sup. Ct. 2004).

3. Discretion of the court

• Vacating judgments is in the discretion of the court, but public policy favors finality of judgments. Brown v. Brown, 3 Nav. R. 239 (W.R. Dist. Ct. 1982).

4. Appeal time not tolled

• A Rule 60 motion does not toll appeal time. Mitchell v. Davis, 8 Nav. R. 542 (Nav. Sup. Ct. 2004).

5. Balance of finality vs. correcting mistakes

• The purpose of Rule 60 motion is to balance the value in the finality of judgments with the value of correcting serious mistakes in the process leading up to that judgment. Mitchell v. Davis, 8 Nav. R. 542 (Nav. Sup. Ct. 2004).

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6. Conditions for setting aside judgment

• Under Rule 60, a trial court can set aside a judgment only for a few 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 fore a new trial; (3) fraud, misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or prior judgment has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reasons justifying relief from the enforcement of the judgment. Mitchell v. Davis, 8 Nav. R. 542 (Nav. Sup. Ct. 2004).

• Final decision on merits is res judicata and may only be reopened on a showing of new evidence or other reasons justifying relief. Davis v. Means, 7 Nav. R. 100 (Nav. Sup. Ct. 1994).

• Court may reopen a judgment to correct errors, to consider newly discovered evidence or for reasons consistent with justice. Halwood v. Badonie, 6 Nav. R. 16 (Nav. Sup. Ct. 1988).

7. Inapplicable to administrative orders

• Parties cannot use Rule 60 to reopen administrative order. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

8. Fraud

• Judgment may be set aside based upon fraud where witness testifies falsely to Court. Matter of Adoption of J.L.B., 6 Nav. R. 314 (Nav. Sup. Ct. 1990).

9. Void judgments

• A judgment void when rendered will always remain void. Nez v. Nez, 7 Nav. R. 25 (Nav. Sup. Ct. 1992).

• The validity of a judgment depends on the jurisdiction of the Court entering it. Nez v. Nez, 7 Nav. R. 25 (Nav. Sup. Ct. 1992).

• A judgment entered against a defendant under a repealed law is illegal and void. Begay v. Navajo Nation, 6 Nav. R. 132 (Nav. Sup. Ct. 1989).

10. Lack of notice

• Rule 60(c)(6) allows the District Court to vacate a judgment where notice was not properly given to a party and the appeal deadline has passed. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

• Relief is provided under Rule 60(c)(6) only where the court has failed to send a copy of the final decision to a party and the docket sheet does not reflect that the final decision was sent. A party must also show that he attempted to stay informed about the order. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

11. Diligence of counsel or party

• Repeated inquiries to the court provide strong evidence that counsel has been diligent in pursuing an appeal. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

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• A single telephone call by counsel’s secretary to a court employee is not sufficiently diligent to afford movant relief. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

• Counsel should also show inquiries made promptly following the last event leading to entry of the order. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

• Courts will not reopen judgments where claimant did not act with reasonable diligence. Brown v. Brown, 3 Nav. R. 239 (W.R. Dist. Ct. 1982).

12. Reliance on court

• Where the court clearly misleads counsel or instructs counsel to stop inquiring regarding entry of the order, the moving party will ordinarily be entitled to relief. In such cases, the moving party’s diligence is undermined by the court’s affirmative acts. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

• Reliance upon the court staff, as opposed to the court clerk, is inherently unreasonable. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

13. Time for filing

• Rule 60(c)(6) motion must be served within 15 days after receiving actual notice of the decision. Bradley v. Benally, 6 Nav. R. 156 (Nav. Sup. Ct. 1989).

14. May not be used to create new case

• Rule 23 (now Rule 60) may not create new case. It may only reopen old case based on certain grounds. Halwood v. Badonie, 6 Nav. R. 16 (Nav. Sup. Ct. 1988).

X. Injunctions

A. Proper subject matter for injunctions.

• The District Court cannot enjoin theoretical actions that have not yet occurred. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• Injunction appropriate to restrain Executive Branch from imposing its employment rules on Judicial Branch. Injunction properly included successors. Gudac v. Marianito, 1 Nav. R. 385 (Nav. Ct. App. 1978).

• Tribal courts may enter injunctions restraining future criminal behavior. S.R.P. v. Internat’l Brotherhood of Elec. Workers, 1 Nav. R. 277 (T.C. Dist. Ct. 1978).

B. Prohibitory and mandatory injunctions

• There are 2 types of injunctive relief: prohibitory and mandatory. Most injunctions are prohibitory. Mandatory injunctions require an affirmative act. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• Mandatory injunctions are disfavored and should be granted only when the movant shows a clear right to such relief. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

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C. Elements

• At a hearing for a preliminary injunction, petitioner must show likelihood of success, irreparable injury, substantial injury and no adequate remedy at law. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994).

D. Need not wait for injury

• Preventing wrong is better than awarding damages after the fact. An injunction need not be delayed until the injury is actually inflicted. Boyd & McWilliams Energy Group v. Tso, 7 Nav. R. 458 (Ship. Dist. Ct. 1994).

E. Temporary restraining orders

• Temporary restraining orders maintain status quo during lawsuit. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• Mandatory injunctive relief cannot be granted in temporary restraining orders. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• To obtain a temporary restraining order, claimant must show: (1) immediate and irreparable injury; (2) probability of success on the merits; and (3) harm to claimant outweighs harm to respondent and the public. Tome v. Navajo Nation, 4 Nav. R. 159 (W.R. Dist. Ct. 1983).

• Temporary restraining orders are meant to be short-lived. Damon v. MacDonald, 4 Nav. R. 138 (W.R. Dist. Ct. 1983).

• To obtain a temporary restraining order, claimant must show: (1) immediate and irreparable injury; (2) probability of success on the merits; and (3) harm to claimant outweighs harm to respondent and the public. Damon v. MacDonald, 4 Nav. R. 138 (W.R. Dist. Ct. 1983).

• Court has discretion whether to require bond for a temporary restraining order. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

• After a temporary restraining order is issued, the Court should schedule a hearing to determine whether to convert it to a permanent injunction. The burden of proof remains with the plaintiff. Merrion & Bayless v. Begay, 1 Nav. R. 150 (Nav. Ct. App. 1977).