Section VIII. Provisional and Final Remedies and Special Proceedings

RULE 65.1.1


(a) The Judgment. Every bond within the scope of these rules will contain the surety or sureties' consent that in case of the principal's or sureties' default, upon notice of not less than seventeen (17) days, the court may proceed summarily and render judgment against them and award execution.

(b) Service. Any indemnitee or party in interest who seeks the judgment provided by these rules will proceed by motion and with respect to personal sureties and corporate sureties will make the service provided by Fed. R. Civ. P. 5(b) or 31 U.S.C. 9306, respectively.


Revised 8/1/97


Fed. R. Civ. P. 65.1

RULE 65.1.2


(a) Bonds and Sureties.

(1) When Required. A judge may, upon demand of any party, where authorized by law and for good cause shown, require any party to furnish security for costs which may be awarded against such party in an amount and on such items as are appropriate.

(2) Qualifications of Surety.

(A) Every bond must have as surety either: (1) a corporation authorized by the Secretary of the Treasury of the United States to act as surety on official bonds under 31 U.S.C. 9301-9308; (2) a corporation authorized to act as surety under the laws of the state of Idaho; (3) two individual residents of the district, each of whom owns real or personal property within the district of sufficient equity value to justify twice the amount of the bond; or (4) a cash deposit of the required amount made with the Clerk and filed with a bond signed by the principals.

(B) An individual who executes a bond as a surety pursuant to this subsection will attach an affidavit which gives the individual's full name, occupation, residence, and business addresses and demonstrates ownership of real or personal property within this district. After excluding property exempt from execution and deducting liabilities (including those which have arisen by virtue of suretyship on other bonds or undertakings), the real or personal property must be valued at no less than twice the amount of the bond.

(3) Court Officers as Sureties. No clerk, marshal, or other employee of the court nor any member of the bar representing a party in the particular action or proceeding shall be accepted as surety on any bond or other undertaking in any action or proceeding in this court. Cash deposits on bonds may be made by members of the bar on certification that the funds are the property of a specified person who has signed as surety on the bond. Upon exoneration of the bond, such monies shall be returned to the owner and not to the attorney.

(4) Examination of Sureties. Any party may apply for an order requiring any opposing party to show cause why it should not be required to furnish further or different security or requiring personal sureties to justify their financial status in support of their bond.

(b) Approval of Bonds by Attorneys and Clerk (or Judge).

All personal surety bonds must be presented to the judge for approval. When the party is represented by counsel, there shall be appended thereto a certificate of the attorney for the party for whom the bond is being filed substantially in the following form:

This bond has been examined by counsel (for plaintiff/defendant) and is recommended for approval as provided in this rule.

Dated this _____ day of _____________, ____.



Such endorsement by the attorney will signify to the court that said attorney has carefully examined the said financial information of the personal surety, that the attorney knows the contents thereof; that the attorney knows the purposes for which it is executed; that in the attorney's opinion the same is in due form; and that the attorney believes the affidavits of qualification to be true.


Revised 8/1/97


Fed. R. Civ. P. 65(c), 65.1),, 28 U.S.C. 1446

RULE 67.1


(a) Whenever a party seeks an order for money to be deposited by the clerk in an interest bearing account, the party shall prepare a form of order in accord with the following.

(b) The following form of standard order shall be used for the deposit of registry funds into interest bearing accounts or the investment of such funds in an interest bearing instrument:

IT IS ORDERED that the clerk invest the amount of $__________ in an automatically renewable (type of account or instrument, i.e., time certificate, treasury bill, passbook), in the name of the clerk, U.S. District Court, at (name of bank, savings and loan, brokerage house, etc.), said funds to remain invested pending further order of the court.

IT IS FURTHER ORDERED that the clerk shall be authorized to deduct a fee from the income earned on the investment equal to 10 percent of the income earned while the funds are held in the court's registry fund, regardless of the nature of the case underlying the investment and without further order of the court. The interest payable to the U.S. courts shall be paid prior to any other distribution of the account. Investments having a maturity date will be assessed the fee at the time the investment instrument matures.

IT IS FURTHER ORDERED that counsel presenting this order personally serve a copy thereof on the clerk or his or her financial deputy.


Revised 8/1/97


Fed. R. Civ. P. 67, 28 U.S.C. 2041-2042, General Order 70, December 6, 1990

RULE 67.2


(a) Funds may only be withdrawn upon an order of this court. Such order shall specify the amounts to be paid and the names of any person or company to whom the funds are to be paid.

(b) Any person seeking withdrawal of money which was deposited in the court pursuant to Rule 67 and which was subsequently deposited into an interest-bearing account or instrument as required by Rule 67, shall provide, on a separate paper attached to the motion seeking withdrawal of the funds, the social security number or tax identification number of the ultimate recipient of the funds. This separate paper shall be forwarded by the court directly to the institution holding the money.


Revised 8/1/97


Fed. R. Civ. P. 67, 28 U.S.C. 2041-2042

RULE 71A.1


In eminent domain proceedings, additional pretrial disclosure shall be made as follows:

(a) Not later than ten (10) days in advance of the pretrial conference each party appearing shall lodge with the clerk, under seal, the original and sufficient additional copies for the judge and all parties appearing, of a summary "Statement of Comparable Transactions." Said summary shall contain the relevant facts as to each sale or other transaction to be relied upon as comparable to the taking, including the alleged date of such transaction, the names of the parties thereto, and the consideration thereof; together with the date of recordation and the book and page or other identification of any record of such transaction; and such statement shall be in form and content suitable to be presented to the jury as a summary of evidence on the subject. As soon as such statement shall have been lodged by all parties appearing in connection with a particular parcel or parcels of property in issue, the clerk shall unseal the statements, regularly file the originals, and forthwith serve copies of each party's statement by United States Mail on the attorneys for the other parties appearing. Each copy so served shall bear the clerk's stamp showing the filing date of the original;

(b) Not later than the date of filing of the statements required under the foregoing paragraph, each party shall lodge with the clerk, under seal, for examination by the judge in camera, the original and one copy of "Schedule of Witnesses as to Value," setting forth:

(1) The names of all persons, including expert appraisers, owners, and former owners, intended to be called to give opinion evidence as to the value, and

(2) The opinion to be given by each.

(c) The provisions of this subsection do not preclude prior or additional discovery as provided in the Federal Rules of Civil Procedure.


Revised 8/1/97


Fed. R. Civ. P. 71A, 33 U.S.C. 594, 40 U.S.C. 258, 42 U.S.C. 2222

RULE 72.1


(a) Authority of United States Magistrate Judges.

(1) All United States magistrate judges of this court are authorized to perform the duties prescribed by 28 U.S.C. 636(a), (b), (c), and (g).

(2) Prisoner Cases Under 28 U.S.C. 2254 and 2255. The magistrate judge may perform any or all of the duties imposed upon a judge by the rules governing proceedings in the United States district courts under 2254 and 2255 of Title 28 United States Code. In so doing, the magistrate judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceedings and shall submit to a judge a report containing proposed findings of fact and recommendations for disposition of the petition or motion by the judge except in cases where the death penalty has been imposed; in which case, the district judge shall conduct the evidentiary hearing, if necessary. Any order disposing of the petition or motion may only be made by a district judge.

(3) Prisoner Cases Under 42 U.S.C. 1983. The magistrate judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceedings and shall submit to a judge a report containing proposed findings of fact and recommendations for the disposition of petitions or complaints filed by prisoners challenging the conditions of their confinement.

(4) Special Master References. A magistrate judge may be designated by a district judge to serve as a special master in appropriate civil cases in accordance with 28 U.S.C. 636(b)(2) and Fed. R. Civ. P. 53 (b) and 54.

(5) Preliminary Proceedings in Probation Cases. Magistrate judges may conduct preliminary proceedings in probation matters pursuant to Fed. R. Cr. P. 32.1.

(6) A magistrate judge is also authorized to:

(A) Exercise general supervision of civil and criminal calendars, conduct calendar and status calls, and determine motions to expedite or postpone the trial of cases for the judges;

(B) Conduct pretrial conferences, settlement conferences, omnibus hearings, and related pretrial proceedings in civil and criminal cases;

(C) Preside over all arraignments before the district court, accept pleas of not guilty, establish the times within which all pretrial motions will be filed and responded to, and fix trial dates. If a plea of guilty or nolo contendere is offered, the matter will be forthwith calendared before a district judge;

(D) Impanel the Grand Jury, preside when the Grand Jury reports and accept for the court any indictments returned, issue warrants and summonses as appropriate, and establish the terms of release pending trial, continue the same if previously fixed or modify the terms of release as he or she shall see fit;

(E) Accept waivers of indictment, pursuant to Fed. R. Civ. P. 7(b);

(F) Conduct voir dire and select petit juries for the court in civil cases with the consent of the parties;

(G) Accept petit jury verdicts in civil and criminal cases at the request of a district judge and fix dates for imposition of sentence;

(H) Issue subpoenas, writs of habeas corpus ad testificandum or habeas corpus ad prosequendum, or other orders necessary to obtain the presence of parties, witnesses or evidence needed for court proceedings.

(I) Order the exoneration or forfeiture of bonds;

(J) Fix the terms of release pending appeal to the court of appeals

(K) Conduct examinations of judgment debtors in accordance with Fed. R. Civ. P. 69; and

(L) Perform any additional duty that is not inconsistent with the Constitution and laws of the United States.

(b) Objections to Magistrate Judge’s Orders, Reports, and Recommendations.

(1) Nondispositive Matter - 28 U.S.C. 636 (b)(1)(A). When a pretrial matter not dispositive of a claim or defense of a party is referred to a magistrate judge pursuant to 28 U.S.C. 636(b)(1)(A), the magistrate judge shall conduct such proceedings as are required and when appropriate enter a written order setting forth its ruling on the matter.

A party shall serve and file any objections to such order within ten (10) days after being served with a copy of the magistrate judge’s order, unless a different time period is set by the magistrate or district judge. A party waives his or her right to assign as error any defect in the magistrate judge’s order to which a timely objection has not been filed. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. The district court to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the order found to be clearly erroneous or contrary to law. The district court may also consider sua sponte any order found to be clearly erroneous or contrary to law. [Fed. R. Civ. P. 72(a)].

(2) Dispositive Matters - 28 U.S.C. 636(b)(1)(B). When a pretrial matter dispositive of a claim or defense of a party, a post-trial motion for attorney fees, or a prisoner petition is referred to a magistrate judge without consent of the parties pursuant to 28 U.S.C. 636(b)(1)(B), the magistrate judge shall conduct such proceedings as required. The magistrate judge shall enter a recommendation for disposition of the matter, including proposed findings of fact when appropriate.

A party objecting to the recommended disposition of the matter shall serve and file specific, written objections to the proposed findings and recommendations within ten (10) days after being served with a copy of the magistrate judge’s report and recommendation. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. The district judge to whom the case is assigned shall make a de novo determination of any portion of the magistrate judge’s recommended disposition to which specific objection has been made. The district court may also consider sua sponte any portion of the proposed disposition. The district judge may accept, reject, or modify the recommended disposition, receive further evidence, or recommit the matter to the magistrate judge with directions..

(3) Special Master Reports--28 U.S.C. 636(b)(2). Any party may seek review of, or action on, a special master report filed by a magistrate judge in accordance with the provisions of Fed. R. Civ. P. 53(e).


Revised 8/1/97


Fed. R. Civ. P. 72and 73

Fed. R. Civ. P. 53(e) and 54(d)(2)(D).



Upon the consent of the parties, a civil case may be reassigned from a district judge to a magistrate judge under 28 U.S.C. 636(c) for any and all proceedings in a jury or non-jury matter, including pretrial, trial, and post-trial motions, and ordering the entry of judgment.

(a) Notice. The Clerk of Court shall notify the parties in all civil cases that they may consent to have a magistrate judge conduct any or all proceedings in the case and order the entry of a final judgment. The consent notice and election to proceed form shall be handed or mailed to the initiating party or his or her representative at the time an action is filed and initiating party shall cause a copy of the consent notice and election to proceed form to be served on all opposing parties with the complaint and summons. Additional consent notices and election to proceed forms may be furnished to the parties at later stages of the proceedings, and may be included with pretrial notices and instructions.

(b) Reassignment. After the election to proceed form has been executed and filed by all parties, the clerk shall transmit it to the district judge to whom the case has been assigned for consideration of reassignment of the case to a magistrate judge. Once the case has been reassigned to a magistrate judge, the magistrate judge shall have the authority to conduct any and all proceedings to which the parties have consented and to direct the Clerk of Court to enter a final judgment in the same manner as if a district judge had presided.


Revised 8/1/97