RULE 55. DEFAULT; DEFAULT JUDGMENT
(a) Entry. If a party against whom a judgment for affirmative relief is
sought has failed to
plead or otherwise appear and the
fact is made to appear failure is
shown by affidavit or
otherwise, the court may direct the clerk to enter an appropriate default judgment
in favor of the plaintiff and against the defendant as follows:
(1) Action for Money.
When If the plaintiff's
claim against a defendant is for a sum certain or for a sum
that can by computation be made certain by
computation, the court, upon on affidavit of the
amount due and upon on production of the written instrument,
if any, upon on which the
claim is founded based, may direct the entry of
(B) If the defendant's answer does not deny the plaintiff's claim but counterclaims an amount less than the plaintiff's claim, the plaintiff may have default judgment on the excess of the claim over the counterclaim. In that case, the plaintiff must file with the clerk of the court a statement admitting the counterclaim, which will become a part of the judgment roll.
(2) Other Cases. In all other cases, the court, before directing
the entry of judgment,
must require such the necessary proof as
may be necessary to enable it to determine and
grant the any relief to the plaintiff , if any,
to which the plaintiff may be entitled. To this end,
the court may:
the evidence and assess
(B) Direct a reference for
the purpose of an
accounting or for the taking of testimony or for
a determination of the facts; or
(C) Submit any issue of fact to a jury.
No judgment by default may be entered against an
infant or incompetent person unless
represented in the action by a general guardian, or other representative who has appeared
therein. If the party against whom judgment by default is sought has appeared in the action,
the party (or if appearing by representative, the party's representative) must be served with
a motion for judgment. Notice must be served with the motion and must comply with
Against Minor or Incompetent Person. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian or other representative who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with a motion for judgment. Notice must be served with the motion and must comply with N.D.R.Ct. 3.2(a).
When service of the summons has been made by
published notice, or by delivery of a
copy without the state, no judgment shall be entered on default until the plaintiff, if required
by the court, shall have filed a bond, approved by the court, conditioned to abide such order
as the court may make touching the restitution of any property collected or obtained by
virtue of the judgment in case a defense is thereafter permitted and sustained; provided, that
in actions involving the title to real estate or to foreclose mortgages or other liens thereon
such bond shall not be required.
Bond. When service of the summons has been made by published notice, or by delivery of a copy outside the state, default judgment must not be entered until the plaintiff, if required by the court, has filed a court-approved bond that conforms to a court order regarding the restitution of property obtained from the judgment if a defense is later permitted and sustained. A bond is not required in actions involving the title to real estate or to foreclose mortgages or other liens.
(b) Plaintiffs, Counterclaimants, Cross-Claimants. The
provisions of this rule apply whether
the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party
who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject
to the limitations of Rule 54(c). (c) Judgment Against the State. No judgment by default
may be entered against the state
or an officer or agency thereof unless the claimant establishes a claim or right to relief by
evidence satisfactory to the court.
(b) Judgment Against the State. A default judgment may be entered against the state, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.EXPLANATORY NOTE
Rule 55 was amended, effective March 1, 1990; March 1, 2003; _____________.
Rule 55 is derived from Fed.R.Civ.P. 55, with several changes.
The federal rule contains a two-step process: entry of default and then
entry of judgment.
The first step is not specifically required in this rule. Subdivision (a) is a combination of the
first two subdivisions of the federal rule, but specifies that the clerk cannot enter a
by default without being directed to do so by the court, unlike
the federal rule
where the clerk can enter judgment in certain cases without court direction. Paragraph (2)
authorizes the court to require proof before directing the default judgment. Paragraph (4),
derived partly from N.D.R.C. 1943 § 28-0906, authorized the court to require a bond
before judgment is entered when service of the summons has been made by publication or
delivery out of the state, with certain exceptions.
Subparagraph (a)(1)(B) was transferred from Rule 13, effective _______________.
Subdivision (b) is identical to subdivision (d) of the federal
(c) (b) is identical to
subdivision (e) (d) of the federal rule, with the
substitution of the state for United States.
The federal provision [subdivision (c)] for setting aside default was not adopted. See Rule 60(b) regarding relief from a judgment or order.
The operation of this rule is also directly affected by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. Appendix §§ 501, et seq. Section 520 imposes specific requirements that must be fulfilled before a default judgment can be ordered or entered. If a default judgment is entered against a person in military service without compliance with the requirements of § 520, the judgment may be vacated.
Rule 55 was amended, effective March 1, 1990. The amendments were technical in nature and no substantive change was intended.
Rule 55 was amended, effective March 1, 2003. Paragraph (a)(3) was
changed to substitute
the term "motion" for the term "application" and to require that a motion for a default
by default must comply with N.D.R.Ct. 3.2(a).
Rule 55 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Sources: Joint Procedure Committee
Minutes of September 23-24, 2010, pages ______;
September 24-25, 2009, page 23; September 27-28, 2001, pages 15-17; April 20, 1989,
page 2; December 3, 1987, page 11; November 29-30, 1979, page 15;
Fed.R.Civ.P. 55 ,
Affected: Superseded: N.D.R.C. 1943
§§ 28-0902, 28-0903, 28-0904, 28-0905, 28-0906,
Cross Reference: N.D.R.Civ.P. 5(a) (Service -- When Required), N.D.R.Civ.P. 6(d) (For Motions -- Affidavits), N.D.R.Civ.P. 7(b) (Motions and Other Papers), N.D.R.Civ.P. 37 (Failure to Make Discovery -- Sanctions), N.D.R.Civ.P. 54 (Judgment -- Costs), and N.D.R.Civ.P. 60 (Relief from Judgment or Order); N.D.R.Ct. 3.2 (Motions).