written copies of his exceptions and brief. Four copies thereof shall be furnished by the Clerk to the Attorney General. The defendant may then in like manner file typewritten copies.

(d) Brief of Amicus Curiae: A brief of an amicus curiae may be filed when accompanied by written consent of all parties to the case or upon motion by leave of the Court.

RULE 47. ARGUMENT BEFORE THE COURT

(a) On the Merits: Where a Commissioner has reported findings of fact or where the facts have been stipulated and there is no motion for summary judgment, a case shall be assigned to the calendar when the time has expired for the filing of plaintiff's reply brief, but such assignment shall not be made later than the Thursday preceding the opening of the regular monthly session of the Court, except when otherwise ordered by the Court.

(b) On Motions: When the time has expired for filing objections or responses to a motion to dismiss, to a motion for judgment on the pleadings, or to a motion for summary judgment, a case shall be assigned to the calendar, but such assignment shall not be made later than the Thursday preceding the opening of the regular monthly session of the Court, except when otherwise ordered by the Court.

(c) Time of Argument: Cases on the monthly calendars will be called on the first Monday in each month or such other date as the Court may fix, and, after having been assigned for argument, the cases to be argued shall be posted in the Clerk's office each day for argument on the following day, and if not then argued or submitted by the parties, or by either in the absence of the other, shall be disposed of as the Court may order.

(d) Submission Without Argument: A case on the calendar may be submitted without argument with approval of the Court (1) by waiver of argument filed with the Clerk or stated orally in open court when the case is called or (2) by failure of the attorneys to appear for argument when the case is called.

RULE 48. FINDINGS BY THE COURT

In all actions tried on the facts, the Court shall find the facts specially and state separately its conclusions of law and direct the entry of an appropriate judgment. The Court may adopt the Commissioner's report, including conclusions of fact and of law, or may modify it, or may reject it in whole or in part, or may direct the Commissioner to receive further evidence, or may refer the case back to him with instructions. Due regard shall be given to the opportunity of the trial Commissioner to judge of the credibility of the witnesses, and the findings of fact made by the Commissioner will be presumed to be correct.

RULE 49. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal; Effect Thereof: (1) By Plaintiff; by Stipulation: Subject to the provisions of any statute of the United States, an action may be dismissed by the plaintiff without order of the Court (i) by filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all the parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States an action based on or including the same claim.

(2) By Order of Court: Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the Court and upon such terms and conditions as the Court deems proper. If a counterclaim has been pleaded by the defendant prior to the service upon it of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the

Court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal; Effect Thereof: For failure of the plaintiff to prosecute or to comply with these rules or any order of Court, the defendant may move for dismissal of an action or of any claim against it. Promptly after the plaintiff has completed the presentation of his evidence, the defendant, without waiving its right to offer evidence in the event the motion is not granted, may move the Commissioner for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to recover. If the Commissioner is not clearly con

vinced that the motion should be granted, he shall overrule the motion and the defendant shall thereupon proceed with the presentation of its evidence. If the Commissioner is convinced, upon a consideration of both the facts and the law, that the motion should be granted, he shall make and file his findings of facts material to the issues raised by the motion and his recommendation for conclusions of law thereon. Thereafter all proceedings shall be the same as in a case where a Commissioner's report is filed upon the entire evidence produced by both parties. The Court may render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence.

Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.

VI. JUDGMENTS, REHEARINGS, NEW TRIALS, AND

APPLICATIONS FOR CERTIORARI

RULE 50. JUDGMENT

Definition: "Judgment" as used in these rules includes any decree or order subject to a petition for writ of certiorari.

RULE 51. SUMMARY JUDGMENT

(a) For Claimant: A party seeking to recover upon a claim or counterclaim may, at any time after the expiration of 40 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For Defending Party: A party against whom a claim or counterclaim is asserted may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon: After a motion for summary judgment has been filed and served as provided in Rules 3 and 7 and after expiration of the time allowed by Rule 7 (b) for filing a response thereto, such motion shall be assigned to the calendar, as provided in Rule 47 (b). The judgment sought shall be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone athough there is a genuine issue as to the amount of damages.

(d) Case Not Fully Adjudicated on Motion: If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the Court at the

hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

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

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