TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 55, N.D.R.Civ.P., Default
The Chief Justice has requested that the Committee consider amending Rule 55 to make service of the motion for default mandatory in all cases. Under the rule's present language, service of the motion for default is required only in cases where the party against whom default judgment is sought has made an "appearance."
The Supreme Court has observed that it is common practice to serve the motion for default regardless of whether the party against whom default is sought has made an appearance. See Wilson v. Wilson, 364 N.W.2d 113 (N.D. 1985). The Chief Justice suggests that this common practice should be integrated into the rule to avoid confusion (and protracted argument) about what constitutes an appearance. See, e.g., Federal Land Bank v. Lillehaugen, 370 N.W.2d 517 (N.D. 1985).
Proposed amendments to Rule 55 are attached.