responsive pleading shall be served within 60 days after the service of the more definite statement.

(b) How presented. Every defense to a claim for relief in any pleading, except a counterclaim or set-off by the United States, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of service, (4) failure to state a claim upon which relief can be granted. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, it may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (4) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Commission, the motion shall be treated as one for summary judgment and disposed of, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.

(c) Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Commission, the motion shall be treated as one for summary judgment and disposed of, and all parties shall be given a reasonable opportunity to present all material pertinent to such a motion.

(d) Preliminary hearings. The defenses specifically enumerated as subparagraphs (1) through (4) in paragraph (b) of this section, whether made in a pleading or by motion, and the motion for judgment mentioned in paragraph (c) of this section shall be heard and determined before trial on application of any party, unless the Commission orders that the hearing and determination thereof be deferred until the trial. Any pleading which includes any of the

defenses enumerated in paragraph (b) of this section shall be accompanied by the statement of points and authorities required by § 503.22 (a) (1).

(e) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, it may move for a more definite statement before interposing its responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the Commission is not obeyed within 10 days after notice of the order or within such other time as the Commission may fix, the Commission may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this part, upon motion made by a party within 20 days after the service of the pleading upon it or upon the Commission's own initiative at any time, the Commission may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of motions. A party who makes a motion under this section may join with it the other motions provided for in this section and then available to it. If a party makes a motion under this section and does not include therein all defenses and objections then available to it which this section permits to be raised by motion, it shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in paragraph (h) of this section.

(h) Waiver of defenses. The United States waives all defenses and objections which it does not present either by motion as hereinbefore provided in this section or, if it has made no motion, in its answer or reply, except (1) that the defense of failure to state a claim upon which relief can be granted, and the objection of failure to state a defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleading or at the trial on the merits, and except (2) that whenever it appears by suggestion of the parties or otherwise that the Commission lacks jurisdiction of the subject matter, the Commission shall dismiss the action.

The objection or defense, if made at the trial, shall be disposed of as provided in § 503.13 (b) in the light of any evidence that may have been received.

(i) Default by United States. Unless the Attorney General shall within 60 days after the service of the petition serve a defensive pleading upon the petitioner, if the time is not extended by order of the Commission, or consent of the parties, the Commission may, on motion of the petitioner and after notice to the Attorney General, have the Clerk note on the docket that no answer has been filed and the Commission shall hear the petitioner's evidence and such facts as the Investigation Division of the Commission may assemble, before making its final determination. § 503.12 set-off.

Counterclaim, cross-claim and

(a) Set-offs. If, after a preliminary hearing under § 503.22(f) it is determined that the United States is liable to the petitioner in any amount, the United States shall, within 60 days after the entry of the final order determining that right, unless extended by the Commission, amend its answer by setting forth the amount of any set-offs, counter-claims or any other demands against the petitioner authorized by the act.

(b) Omitted counterclaim or set-off. When the United States fails to set up a counterclaim or set-off, through oversight, inadvertence, or excusable neglect, or when justice requires, it may by leave of the Commission set up the counterclaim or set-off by amendment.

(c) Answer to counterclaim or set-off. Within 40 days after the filing of a setoff or counterclaim or other demand by the defendant, the petitioner or his attorney shall serve a reply thereto. § 503.13

Amended and supplemental

pleadings.

(a) Amendments. (1) A party may amend its pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been set for hearing, it may so amend it at any time within 20 days after it is served. Otherwise a party may amend its pleading only by leave of the Commission or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party

shall plead in response to an amended pleading within the time allowed for responding to an original pleading, unless the Commission otherwise orders.

(2) Amended petitions shall be printed and the same number filed as in the case of original petitions, unless printing is waived by the Commission. Where the amendments are slight and can be understood without a reprint of the entire petition they may either be interlined in the existing petition or printed pasters may be attached to the original petition. Where a petition is amended in accordance with that portion of this section which permits interlineations or printed pasters to be attached to the original petition, the Clerk shall endorse on its face the fact that it is an amended petition and also the date of the amendment or amendments and such amended petition shall be verified when required by § 503.8.

(b) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence not within the issues made by the pleadings is offered at a hearing held by a Commissioner or an Examiner, upon objection such evidence shall be rejected; whereupon the party may make an offer of proof. Upon motion to amend the pleading the Commission shall after notice to the adverse party allow the pleading to be amended to conform to the offered evidence and shall do so freely when the presentation of the merits of the claim or defense will be subserved thereby and the objecting party fails to satisfy the Commission that the amendment of the pleading and the admission of such evidence would prejudice it in maintaining its claim or defense. The Commission may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment re

(1)

(a) Interrogatories to parties. Any party may serve upon any adverse party written interrogatories to be answered by the party served or, if the party served is the United States, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served after commencement of the action and without leave of the Commission. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be signed by the person making them; and the party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within 15 days after the service of the interrogatories, unless the Commission, on motion and notice and for good cause shown, enlarges or shortens the time. Within 10 days after service of interrogatories a party may serve written objections thereto together with a notice of hearing the objections at the earliest practicable time. Answers to interrogatories to which objection is made shall be deferred until the objections are determined.

(2) Interrogatories may relate to any matters which can be inquired into under paragraph (c) of this section, and the answers may be used to the same extent as provided in paragraph (e) of this section for the use of the deposition of a party. Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered. The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, expense, embarrassment, or oppression.

(b) When depositions may be taken. Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. After service of the petition the deposition may be taken without leave of the Commission, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the petitioner within 20 days after service of the petition. The

attendance of witnesses may be compelled by the use of subpoena as provided in § 503.24 (a) (1). Depositions shall be taken only in accordance with the rules in this part.

(c) Scope of examination. Unlcss otherwise ordered by the Commission, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

(d) Examination and cross-examination. Examination and cross-examination of deponents may proceed as permitted at the hearings under the provisions of § 503.23.

(e) Use of depositions. At a hearing before the Commission, a Commissioner or Examiner or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

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

(2) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Commission, Commissioner or Examiner finds: (i) that the witness is dead; or (ii) that the witness is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (v) upon application and notice, but such exceptional circumstances exist as to make it desirable, in the interest of justice and with due

regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.

(3) If only a part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

Sub

(f) Objections to admissibility. ject to the provisions of § 503.19 (c), objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(g) Effect of taking or using depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition. At the hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. § 503.15 Depositions

testimony.

to

perpetuate

pro

Depositions taken under the visions of section 13(a) of the act creating the Commission shall be taken pursuant to the notices provided for in this part, which shall be given to the Attorney General of the United States, and if a petition has been filed, to the attorney of record for the petitioner, of which the aged or invalid Indians whose depositions are to be taken are members, provided that the Commission may, if it deems it necessary, authorize the taking of such depositions on shorter notice than that provided for in this part. Depositions of such aged or invalid Indians may be used in any case in which the same may be material.

§ 503.16 Persons before whom depositions may be taken.

(a) Within the United States. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a per

time

(a) Notice of examination; and place. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the Commission may for cause shown enlarge or shorten the time.

(b) Witnesses by other party. When depositions are taken on notice, as provided in this part, if both parties are present or represented at the time and place specified in the notice, either party may, after the examination of the witnesses summoned under the notice, be entitled to summon and examine other witnesses; but in such case one day's notice shall be given to the adverse party or its attorney there present, unless such notice is waived.

(c) Record of examinations; oath; objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim.

(d) Interpreter. If a witness is in need of an interpreter the interpreter shall be sworn to well and truly translate all questions asked and answers given.

(e) Submission to witness; changes; signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness. If the witness refuses to sign the deposition, the officer shall sign it and state on the record the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under § 503.19 (d) the Commission holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(f) Certification and filing by officer; copies; notice of filing. (1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly file it with the Commission or send it by certified or registered mail to the Clerk thereof for filing.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

proposing to take the deposition. Within 5 days thereafter, the latter may serve redirect interrogatories upon a party who has served cross-interrogatories. Within 3 days after being served with redirect interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition.

(b) Officer to take responses and prepare record. A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by § 503.17 (c), (d) and (e) to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him.

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

§ 503.19 Effect of errors and irregularities in depositions.

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

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

(c) As to taking of deposition. (1) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

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

(3) Objections to the form of written interrogatories submitted under § 503.18