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
by default in favor of the plaintiff and against the defendant as follows:
When If the plaintiff's claim against a defendant is for a sum certain or for a sum
which 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 judgment.
(2) In all other cases, the court, before directing the entry of judgment,
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
the evidence and assess the damages;
(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 N.D.R.Ct. 3.2(a).
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.
When service of the summons has been made by published notice, or by delivery of a copy outside the state, no default judgment must 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.
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 default 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. 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.
Subdivision (b) is identical to subdivision (d) of the federal rule.
(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
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
27-28, 2001, pages 15-17; April 20, 1989, page 2; December 3, 1987, page 11; November
29-30, 1979, page 15;
Rule Fed.R.Civ.P. 55 , FRCivP.
Superseded: N.D.R.C. 1943 §§ 28-0902, 28-0903, 28-0904, 28-0905, 28-0906, 28-0909, 31-0508.
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).