RULE 55. DEFAULT
(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 by affidavit or otherwise, the court may direct the clerk to enter an appropriate judgment by default in favor of the plaintiff and against the defendant as follows:
(1) When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court, upon affidavit of the amount due and upon production of the written instrument, if any, upon which the claim is founded, may direct the entry of judgment.
(2) In all other cases, the court, before directing the entry of judgment, shall require such proof as may be necessary to enable it to determine and grant the relief, if any, to which the plaintiff may be entitled. To this end, the court may:
1. Hear the evidence and assess the damages;
2. Direct a reference for the purpose of an accounting or for the taking of testimony or for a determination of the facts; or
3. Submit any issue of fact to a jury.
(3) 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 written notice of the
application motion for judgment at least 8 days before the hearing on the application motion. The notice must be served with the motion and must include the time scheduled for the hearing on the motion.
(4) 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.
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 judgment 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. The time period for notification to a party who has made an appearance has been lengthened to 8 days, from 3 in the federal rule. Paragraph (4), derived partly from N.D.R.C. § 28-0906 (1943), authorizes 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.
Subdivision (b) is identical to subdivision (d) of the federal rule. Paragraph 2 is also applicable to this subdivision.
Subdivision (c) is identical to subdivision (e) 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 are technical in nature and no substantive change is intended.
Rule 55 was amended, effective . Paragraph (a)(3) was changed to substitute the term "motion" for the term "application" and to require that notice of a motion for judgment by default must be served with the motion and must include the time of the hearing. If the moving party intends to submit the motion to the district court on briefs without a hearing, the notice must comply with N.D.R.Ct. 3.2(a).
SOURCES: Joint Procedure Committee Minutes of ; April 20, 1989, page 2; December 3, 1987, page 11; November 29-30, 1979, page 15; Fed.R.Civ.P. 55.
SUPERSEDED: N.D.R.C. §§ 28-0902, 28-0903, 28-0904, 28-0905, 28-0906, 28-0909, 31-0508 (1943).
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).