RULE 68. OFFER OF SETTLEMENT OR CONFESSION OF JUDGMENT; TENDER(a) Offer of Settlement.
(1) Making an offer
; Judgment on an accepted offer. At least 14 days before the
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
(A) At any time more than 14 days before the trial begins, any party may serve on an adverse party a written damages-only or total-obligation offer to allow judgment to be entered to the effect specified in the offer, or to settle the case on the terms specified in the offer.
(B) An offer does not have the consequences provided in Rule 68(a)(2) and Rule 68(a)(3) unless it expressly refers to Rule 68.
(C) An offer made under this rule is a "damages-only" offer unless the offer expressly states that it is a "total-obligation" offer. A damages-only offer does not include then-accrued applicable prejudgment interest, costs and disbursements, or applicable attorney fees, all of which must be added to the amount stated as provided in Rule 68(a)(2) and Rule 68 (a)(3).
(D) The amount stated in an offer that is expressly identified as a "total-obligation" offer includes then-accrued applicable prejudgment interest, costs and disbursements, and applicable attorney fees.
(E) When the liability of one party to another has been determined by verdict, order, or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which has the same effect as an offer made before trial if it is served within a reasonable time not less than 14 days before the commencement of a hearing or trial to determine the amount or extent of liability.
(F) Notwithstanding the provisions of Rule 5(d), no offer under this rule need be filed with the court unless the offer is accepted.
(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 An unaccepted offer is considered withdrawn, but it does not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
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
(2) Acceptance or Rejection of Offer.
(A) Acceptance of the offer must be made by service of written notice of acceptance within 14 days after service of the offer. During the 14-day period the offer is irrevocable.
(B) If the offer accepted is an offer of judgment, either party may file the offer and the notice of acceptance, together with the proof of service, and the court must order entry of judgment as follows:
(i) If the offer is a total-obligation offer as provided in Rule 68(a)(1)(D), judgment must be for the amount of the offer.
(ii) If the offer is a damages-only offer, applicable prejudgment interest, the plaintiff-offeree's costs and disbursements, and applicable attorney fees, all as accrued to the date of the offer, must be determined by the court and included in the judgment.
(C) If the offer accepted is an offer of settlement, the settled claim(s) must be dismissed on:
(i) the filing of a stipulation of dismissal stating that the terms of the offer, including payment of applicable prejudgment interest, costs and disbursements, and applicable attorney fees, all accrued to the date of the offer, have been satisfied; or
(ii) order of the court implementing the terms of the agreement.
(D) If the offer is not accepted within the 14-day period, it is considered withdrawn.
(E) The fact that an offer is made but not accepted does not preclude a subsequent offer. Any subsequent offer by the same party under this rule supersedes all prior offers by that party.
(4) Paying costs after an unaccepted offer. If the judgment that the offeree finally
is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after
the offer was made.
(3) Effect of Unaccepted Offer.
(A) Evidence of an unaccepted offer is not admissible, except in a proceeding to determine costs and disbursements.
(B) An unaccepted offer affects the parties' obligations and entitlements regarding costs and disbursements as follows:
(i) If the offeror prevails or the relief awarded to the offeree is less favorable than the offer, the offeree must pay the offeror's costs and disbursements incurred in the action after service of the offer, and the offeree may not recover its costs and disbursements incurred after service of the offer, provided that applicable attorney fees available to the offeree may not be affected by this provision.
(ii) If the court determines that the obligations imposed under this rule as a result of a party's failure to accept an offer would impose undue hardship or otherwise be inequitable, the court may reduce the amount of the obligations to eliminate the undue hardship or inequity.
(C) To determine for purposes of this rule if the relief awarded is less favorable to the offeree than the offer:
(i) a damages-only offer is compared with the amount of damages awarded to the plaintiff; and
(ii) a total-obligation offer is compared with the amount of damages awarded to the plaintiff, plus applicable prejudgment interest, the plaintiff's taxable costs and disbursements, and applicable attorney fees, all as accrued to the date of the offer.
(4) Applicable Attorney Fees and Prejudgment Interest.
(A) "Applicable attorney fees" for purposes of Rule 68 means any attorney fees to which a party is entitled by statute, common law, or contract for one or more of the claims resolved by an offer made under the rule. Nothing in this rule may be construed to create a right to attorney fees not provided for under the applicable substantive law.
(B) "Applicable prejudgment interest" for the purposes of Rule 68 means any prejudgment interest to which a party is entitled by statute, rule, common law, or contract for one or more of the claims resolved by an offer made under the rule. Nothing in this rule may be construed to create a right to prejudgment interest not provided for under the applicable substantive law.
(b) Tender of money in lieu of judgment.
(1) Making a tender. If the action is for the recovery of money, instead of the offer of settlement provided for in subdivision (a), any party may, at least 14 days before the trial begins, tender to the other party the full amount to which that other party is entitled, together with costs and disbursements then accrued.
(2) Unaccepted tender. If the tender is not accepted within 14 days, the offeree may not have costs and disbursements unless the recovery is more than the sum tendered. The offeror's costs and disbursements must be deducted from the recovery, but if they exceed the recovery, the offeror is entitled to judgment for the excess. Evidence of the tender is not admissible except in a proceeding to determine costs.
(c) Confession of judgment.
(1) In General. 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) Written Statement Required. A written statement must be made, signed by the defendant, and verified by oath, stating the following:
(A) the amount for which judgment may be entered and authorizing the entry of judgment; and
(B) if the judgment to be confessed is for money due or to become due, the concise facts underlying the debt, and showing that the debt is justly due or to become due; or
(C) 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 does not exceed the amount of that liability.
(3) Entry of Judgment. The statement must be presented to the court and, if it is found sufficient, the court must order the clerk to enter judgment. The statement, order for judgment, and judgment entered constitute the judgment roll.
(4) Execution in General. 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) Form of Execution. 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) Future Installments. 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 March 1, 2011;________________________.
is derived from N.D.R.Civ.P. 68 was amended,
incorporate the approach to making an offer of settlement set out in Minn.R.Civ.P. 68.
Paragraph (a)(1) was amended, effective March 1, 2011, to change the time period
an offer of settlement from 10 to 14 days before a trial begins.
Paragraph (a)(3) was amended, effective March 1, 2011, to change the time for
offer after liability is determined from 10 to 7 days before a hearing.
Subdivision Under 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
This subdivision is the same as Chapter 28-10, NDRC 1943, which previously
governed the subject. However, depending upon Depending on the facts of a
a confession of judgment obtained without notice and hearing may be vulnerable to
constitutional attack on due process grounds. See D. H. Overmyer Co. v. Frick Co., 405
174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972). Early in its history, the The
Supreme Court has ruled that the authority to confess judgment must be clear and
and must be strictly followed. Underwood Farmers Elevator v. Leidholm, 460 N.W.2d 711
(N.D. 1990), Rasmussen v. Hagler, 108 N.W. 541 (N.D. 1906).
Rule 68 was amended, effective March 1, 2011, 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 _____________________; January 31-February 1, 2013, pages 26-28; 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; Fed.R.Civ.P. 68. 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 Fed.R.Civ.P. 68 (not adopted), September 1984. Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, Proposed Amendment to Fed.R.Civ.P. 68 (not adopted), August 1983.
Cross Reference: N.D.R.Civ.P. 12 (Defenses and Objections When and How Presented By Pleading or Motion - Motion for Judgment on Pleadings) and N.D.R.Civ.P. 67 (Deposit in Court); N.D.R.Ev. 408 (Compromise and Offers to Compromise).