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Rule 53 – Referees

May 13, 2021 | Civil Procedure, Maine

(a) Appointment and Compensation. The court in which an action is pending may appoint one or more referees therein, not exceeding three in number. As used in these rules “referee” includes a master and an auditor, and the singular includes the plural. The compensation to be allowed to a referee shall be fixed by the court, and such compensation and necessary expenses incurred by a referee as allowed by the court shall be paid by the state on presentation of the proper certificate of the clerk, or by such of the parties, or out of any fund or subject matter of the action, which is in the custody and control of the court, or by apportionment among such sources of payment, as the court shall direct. The referee shall not retain the report as security for compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.
(b) Reference.

(1)Reference by Agreement. The court may appoint a referee in all cases where the parties agree that the case may be so tried.
(2)Reference Without Agreement. In absence of agreement of the parties, a reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when an investigation of accounts or an examination of vouchers is required; in an action to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it.
(c) Powers. The order of reference to the referee may specify or limit the referee’s powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee’s report. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 103 of the Maine Rules of Evidence for a court sitting without a jury.
(d) Witnesses. The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, the witness may be punished by the court as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45.
(e) Report.

(1)Contents and Filing. The referee shall prepare a report upon the matters submitted to the referee by the order of reference and, if required to make findings of fact and conclusions of law, the referee shall set them forth in the report. In cases where the reference is by agreement of the parties, the referee shall file with the clerk of the court the report, together with the original exhibits and together with any transcript which, at the election and expense of one or more of the parties, may be made of the proceedings and of the evidence before the referee. In cases where the reference is without agreement and where the action is to be tried without a jury, when the order of reference so provides, the referee shall file with the report and the original exhibits a transcript of the proceedings and of the evidence and the cost of such transcript shall be included in the necessary expenses incurred by the referee as provided in Rule 53(a). The clerk shall forthwith mail to all parties notice of the filing.
(2)In Non-jury Actions. In an action where there has been a reference by agreement, the referee’s conclusions of law and findings of fact shall be subject to the right of the parties to object to acceptance of the referee’s report. On waiver by all parties of the right to object to acceptance of the referee’s report, the court shall forthwith enter judgment on the referee’s report. Except where such waiver occurs, any party may within 10 days after being served with notice of the filing of the report serve written objections upon the other parties. Application to the court for action upon the report and upon objections thereto, if any have been served, shall be by motion and upon notice as prescribed in Rule 7(b). The court shall adopt the referee’s findings of fact unless clearly erroneous. Except as otherwise provided in this paragraph (2), the court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. If no objections have been timely filed, the court shall forthwith enter judgment on the referee’s report.
(3)In Jury Actions. In an action to be tried by a jury the referee shall not be directed to report the evidence. The referee’s findings upon the issues submitted to the referee are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
(4)Draft Report. Before filing a report a referee may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
(5)Amendment. On motion of a party made not later than five days after notice of filing of the report, the referee may amend the findings or recommendations or make additional findings or recommendations. The referee shall file a supplemental report containing any amended or additional findings or recommendations or denying the motion, in the manner provided for filing the original report in paragraph (1) of this subdivision. Within ten days after being served with notice of the filing of a supplemental report, any party may serve written objections to the original or the supplemental report as provided in paragraph (2) of this subdivision.

Me. R. Civ. P. 53

Advisory Committee’s Notes 1981

Rule 53(e)(5) is added to cure a difficulty that has arisen in practice under the original rule: There is no provision for resubmission of a case to the referee for clarification or amendment of his report prior to its submission to the court. As originally drafted, the rule apparently envisioned that in such situations objections would be made under Rule 53(e)(2) and the objecting party would then seek remand by the court after review of the record. This is a very cumbersome procedure, especially with a voluminous transcript wholly unfamiliar to the Superior Court justice.

The amended rule provides a procedure for such situations similar to that contained in Rule 52(b) for amendment of the court’s findings in a case tried without a jury. Under the new provision, the referee may, on motion made within five days after notice of filing of the report, make amended or additional findings or recommendations. These new matters, or his denial of the motion, are to be contained in a supplemental report which is to be filed in the same manner as the original report. Objections to either the original or the supplemental report must be made within ten days, as provided in Rule 53(e)(2).

Advisory Committee’s Notes 1991

Rule 53(a) is amended to permit reference in the District Court. Given the broad range of jurisdiction now permitted to that court, there is good reason to make available a procedural device with the potential for saving time and expense for the parties and reducing burdens on the trial docket. Referees’ reports will be subject to objection in the District Court. Appeal from any judgment entered will lie to the Superior Court and then to the Law Court as in other actions.

Advisory Committee’s Notes March 1, 1998

Rule 53(e) is amended to correct a misreference that occurred when Rule 6(d) and Rule 7 were amended on July 1, 1990. The correct reference is now Rule 7(b).

Annotations:

Rule 53: Review. Sylvester v. Vitagliano, 2002 ME 141, 9.

Rule 53: Standard of Superior Court Review of Report. Hennessy v. Fairley, 2002 ME 76.

Rule 53(b): Referee appointment-discretion. Estate of McCormick, 2001 ME 24, 12-14.