Thursday preceding the opening of the regular monthly session of the Court, except when otherwise ordered by the Court. A case shall be deemed to be at issue on the merits (1) where the facts have been stipulated and there is no motion for summary judgment, or (2) where a Commissioner has filed a report pursuant to Rule 45 (a) and his report has not been accepted as the basis of judgment under Rule 46 (a). In assignments under clause (2) of the preceding sentence, or where one party has elected to submit the case without a brief as provided by Rule 46 (d), the opening and closing arguments shall be assigned to the party who filed the first brief.

(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 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 (on motion to dismiss endorsed by the defendant "no objection") 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. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal; Effect Thereof: (1) Upon its own motion the Court may dismiss any action at any time.

(2) For failure of the plaintiff to prosecute or to comply with these rules or any order of the Court or of the Commissioner,

the defendant may move or the Commissioner may recommend that the Court dismiss the action.

(3) Unless the Court in its order for dismissal otherwise specifies, a dismissal under subdivisions (b), (c), or (d) of this rule and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.

(c) Insufficiency of Evidence: (1) Promptly after the plaintiff has completed the presentation of his evidence, the defendant may by motion to the Commissioner ask for a dismissal of the action by the Court on the ground that upon the facts and the law the plaintiff has not shown a right to recover: Provided, That if a counterclaim is pending, the motion shall be deemed to be a motion for judgment by the Court that plaintiff is not entitled as a matter of law to recover. The motion may be made orally in open court or in writing if filed with the Commissioner within the time fixed by him, and shall be without prejudice to the right of the defendant to present evidence if the motion is denied. If the motion is made in open court and there acted upon by the Commissioner, no record of the motion or the action thereon other than that contained in the transcript need be made. When the motion is denied, either by the Commissioner in open court or as hereinafter provided, the defendant may be required to proceed promptly with the presentation of its evidence.

(2) In cases where (i) the Commissioner desires to defer his ruling on a motion made in open court, or (ii) the motion is not made in open court, he may direct the parties to file with him, within such time and in such order as he shall prescribe, such formal statements and briefs in support of and in opposition to the motion as he may require. In such cases, his ruling on the motion shall be set forth in a written order, which shall be filed with the Clerk with sufficient copies for service on the parties as provided in Rule 3.

(3) If, upon a consideration of the motion and the opposition thereto, the Commissioner is convinced that the motion should be granted by the Court, he shall so state in his ruling on the motion, whether the ruling be made in open court or by written order filed with the Clerk, and shall at the same time direct the parties to file requested findings of fact pertinent to the issues raised by the motion. Unless the Commissioner directs that the findings be filed concurrently, the defendant's proposals shall be filed first. Thereafter, the Commissioner shall make and file his findings of fact material to the issues raised by the motion and his recommendation for conclusions of law thereon. His report shall state, at the beginning thereof, that it is submitted pursuant to a motion made under the authority of this subdivision. 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 remand the case for the taking of additional evidence.

(d) Effect of Counterclaim: No action over which the Court has jurisdiction and in which the defendant has pleaded a counterclaim or served notice of motion for leave to plead a counterclaim shall be dismissed against objection by the defendant, unless the Court determines that the counterclaim should also be dismissed: Provided, That after the service of plaintiff's notice of or motion for dismissal of the action, the defendant may move that in lieu of dismissal the Court enter judgment that the plaintiff is not entitled as a matter of law to recover.

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VI. JUDGMENTS; REHEARINGS; NEW TRIALS; 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 (except as provided in subdivision (c) below) after a responsive pleading has been filed (including the 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 (except as provided in subdivision (c) below), move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Leave Required When: A motion for summary judgment may not be filed, except by leave of the Court, after (i) the taking of evidence has begun or (ii) the filing of a stipulation of the parties or a pretrial memorandum containing all of the material facts.

(d) 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