RULE 68. OFFER OF SETTLEMENT JUDGMENT OR CONFESSION OF JUDGMENT. TENDER
(a) Offer of Settlement. At any time more than 10 days before the trial begins, any party 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 An offer not accepted is deemed withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs.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 liability.
(a) Making an Offer; Judgment on an Accepted Offer. More than ten days before the trial begins, a party may serve on an opposing party an offer to allow judgment of settlement on specified terms, with the costs then accrued. If, within ten 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.
(b) 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 An unaccepted offer is considered withdrawn, but it does not preclude a later offer.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.
(c) Offer After Liability Is Determined. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time, but at least ten days, before a hearing to determine the extent of liability.
(d) 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)(e) Tender Offer of Money in Lieu of Judgment. If the action be is for the recovery of money, instead of the offer of settlement judgment provided for in subdivisions (a)-(d) of this rule, the defendant may tender offer to the plaintiff the full amount to which the plaintiff is entitled, together with costs and disbursements then accrued.
(f) Unaccepted Offer of Money. If the tender offer is not accepted, the plaintiff may not have costs and disbursements unless the recovery is more than the sum tendered offered.; and the The defendant’s costs and disbursements must be deducted from the recovery, or, but if they exceed the recovery, the defendant is entitled to judgment for the excess. The fact Evidence of the tender offer having been made may not be pleaded or given in evidence is not admissible in any proceeding.
(c)(g) 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 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 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 the same 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 the 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 judgment debt is not all due, or is payable in installments that are not all due, the execution may issue on that judgment for the collection of installments due.
(5) The execution must be in the usual form, and must also contain the following:
(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 ________________.
Subdivisions (a)-(d) is are similar to Rule 68, FRCivP, except for the provisions that the clerk may 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.
Subdivisions (b)(e)-(f) is are similar to subdivisions (a)-(d) 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)(g) 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 ________________; 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 1983.
Superseded: Section 28-0912, 28-1001, 28-1002, 28-1003, NDRC 1943.
Cross Reference: Rules 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.Civ.P.; Rule N.D.R.Ev. 408 (Compromise and Offers to Compromise), N.D.R.Ev.