RULE 68. OFFER OF SETTLEMENT OR CONFESSION OF
(a) Offer of Settlement.
At any time more than 10 days before the trial begins, any
may serve upon an adverse party an offer, denominated as an offer under this rule, to settle
a claim for the money or property or to the effect specified in the offer, with costs then
accrued and to enter into a stipulation dismissing the claim or to allow judgment to be
entered accordingly. If within 10 days after the service of the offer, the adverse party serves
written notice that the offer is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and thereupon the clerk shall enter
judgment upon order of the court. An offer not accepted is deemed withdrawn and evidence
of the offer is not admissible except in a proceeding to determine costs. If the judgment is
not more favorable than the offer, the offeree must pay the costs incurred after the making
of the offer. The fact that an offer is made but not accepted does not preclude a subsequent
offer. If liability of one party to another has been determined by verdict or order or
judgment, but the amount or extent of the liability remains to be determined by further
proceedings, any party may make an offer of settlement under this rule, which has the same
effect as an offer made before trial if it is served within a reasonable time not less than 10
days before the commencement of hearings to determine the amount or extent of
(1) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the trial begins, a party may serve on an opposing party an offer of settlement on specified terms, with the costs then accrued and to enter into a stipulation dismissing the claim or allowing judgment to be entered accordingly. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment on order of the court.
(2) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.
(3) Offer After Liability Is Determined. When one party's liability to another has been determined but the amount or extent of liability remains to be determined by further proceedings, any party may make an offer of settlement. It must be served at least seven days before a hearing to determine the amount or extent of liability, or as otherwise ordered by the court.
(4) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
(b) Tender of Money in Lieu of Judgment.
(1) Making a Tender. If the action
be is for the recovery
of money, instead of the offer of
settlement provided for in subdivision (a) of this rule, the
defendant any party may, at least
14 days before the trial begins, tender to the plaintiff other party
the full amount to which
the plaintiff that other party is entitled, together with costs and disbursements
(2) Unaccepted Tender. If the tender is not accepted within 14 days, the
may not have costs and disbursements unless the recovery is more than the sum
and the The defendant's offeror's costs and
disbursements must be deducted from the
recovery, or, but if they exceed the recovery, the
defendant offeror is entitled to judgment
for the excess. The fact Evidence of the tender having been
made may not be pleaded or
given in evidence is not admissible except in a proceeding to determine costs.
(c) Confession of Judgment.
(1) A judgment by confession may be entered without action, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this subdivision.
(2) A written statement
in writing must be made, signed by the
defendant, and verified by
oath, to stating the following effect:
1.(A) It must state the the amount for
which judgment may be entered and authorize
authorizing the entry of judgment therefor; and
2.(B) If if the judgment to be confessed
is for money due or to become due, it must state
concisely the concise facts out of which underlying
the debt arose, and must show showing
that the sum confessed therefor debt is justly due or to become due; or
3.(C) If if the judgment to be confessed
is for the purpose of securing the plaintiff against
a contingent liability, it must state concisely the facts constituting the liability and must show
that the sum confessed therefor does not exceed the amount of that liability.
(3) The statement must be presented to the court and, if
it is found sufficient, the
court shall must order the clerk to enter judgment. The statement, order
for judgment, and
judgment entered constitute the judgment roll. Execution may be issued and enforced in
same manner as upon judgments in other cases. If the debt for which the judgment is
recovered is not all due, or is payable in installments, and the installments are not all due,
the execution may issue upon that judgment for the collection of installments due, and must
be in the usual form, but must have endorsed thereon by the attorney or person issuing the
same a direction to the sheriff to collect the amount due on the judgment, which amount
must be stated, with interest thereon and the costs of the judgment. Notwithstanding the
issue and collection of the execution, the judgment remains as security for the installments
thereafter to become due, and whenever any further installments become due, execution in
like manner may be issued for its collection and enforcement.
(4) Execution of the judgment may be issued and enforced according to the statutes of this state. If the amount due on the judgment is payable in installments that are not currently due, the execution may be issued on that judgment for the collection of installments due.
(5) The execution must be in the usual form, and must contain:
(A) a direction to the sheriff to collect the amount due on the judgment;
(B) the amount due on the judgment, including interest and costs; and
(C) the signature of the attorney or person issuing the execution.
(6) Notwithstanding the issue and collection of the execution, the judgment remains as security for the future installments to become due. When future installments become due, execution may be issued for its collection and enforcement.
Rule 68 was amended, effective ________________.
Subdivision (a) is
similar to Rule 68, FRCivP, except for the provisions that the
enter a judgment only upon order of the court and to allow a plaintiff to make an offer of
settlement derived from N.D.R.Civ.P. 68.
Paragraph (a)(1) was amended, effective _____________, to change the time period to make an offer of settlement from 10 to 14 days before a trial begins.
Paragraph (a)(3) was amended, effective _____________, to change the time for making an offer after liability is determined from 10 to 7 days before a hearing.
Subdivision (b) is similar to subdivision (a) except the defendant may tender money instead of making an offer of settlement. Unlike the offer of settlement, this can only be made in an action for the recovery of money.
Subdivision (c) authorizes a judgment by confession to be entered without commencing
an action. This subdivision is the same as Chapter 28-10, NDRC 1943, which previously
governed the subject. However, depending upon the facts of a particular case a confession
of judgment may be vulnerable to constitutional attack. See
, D. H.
Overmyer Co. v. Frick
Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972).
Early in its history, the North Dakota Supreme Court ruled that the authority to confess judgment must be clear and explicit and must be strictly followed. Rasmussen v. Hagler, 108 N.W. 541 (N.D. 1906).
Rule 68 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 April 29-30, 2010, pages 16-17, 18-19;
January 28-29, 2010, pages 19-20; May 21-22, 1987, pages 3-5; February 19-20, 1987,
pages 17-19; September 18-19, 1986, pages 4-7; September 26-27, 1985, pages 6,
9-10;January 17-18, 1980, pages 6-7;
Rule Fed.R.Civ.P. 68 ,
FRCivP. Preliminary Draft of
Proposed Amendments to the Federal Rules of Appellate Procedure, Federal Rules of Civil
Procedure, Federal Rules of Criminal Procedure and Rules Governing Section 2254 cases
and Section 2255 proceedings in the United States District Courts, Proposed Amendment
to Rule Fed.R.Civ.P. 68 , FRCivP (not adopted),
September 1984. Preliminary Draft of
Proposed Amendments to the Federal Rules of Civil Procedure, Proposed Amendment to
Rule Fed.R.Civ.P. 68 , FRCivP (not adopted), August
Superseded: Section 28-0912, 28-1001, 28-1002, 28-1003, NDRC 1943.
Rules N.D.R.Civ.P. 12 (Defenses and
Objections When and How
Presented By Pleading or Motion - Motion for Judgment on Pleadings) and
67 (Deposit in Court) , N.D.R.Civ.P.; Rule N.D.R.Ev.
408 (Compromise and Offers to
Compromise) , N.D.R.Ev.