RULE 55. DEFAULT; DEFAULT JUDGMENT

Effective Date: 3/1/2017

(a) Entry. If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the failure is shown by affidavit or otherwise, the court may direct the clerk to enter an appropriate default judgment in favor of the plaintiff and against the defendant as follows:

(1) If the plaintiff's claim against a defendant is for a sum certain or a sum that can be made certain by computation, the court, on affidavit of the amount due and on production of the written instrument, if any, on which the claim is based, may direct the entry of judgment.
(2) In all other cases, the court, before directing the entry of judgment, must require the necessary proof to enable it to determine and grant any relief to the plaintiff. To this end, the court may:
(A) Hear evidence and assess damages;
(B) Direct a reference for an accounting or for taking testimony or for a determination of the facts; or
(C) Submit any issue of fact to a jury.
(3) 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).
(4) When service of the summons has been made by published notice, or by delivery of a copy outside the state, default judgment must not 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) 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; March 1, 2011. The explanatory note was amended, effective March 1, 2017.

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 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. § 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.

Former subdivision (b) was deleted from the rule effective March 1, 2011. The subdivision included two provisions. The first recognized that Rule 55 applies to described claimants. The list was incomplete and unnecessary; Rule 55(a) applies Rule 55 to any party against whom a judgment for affirmative relief is requested. The second provision was a redundant reminder that Rule 54(c) limits the relief available by default judgment.

Subdivision (b) is identical to subdivision (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 Servicemember's Civil Relief Act, 50 U.S.C. §§ 3901, et seq. Section 3931 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 § 3931, 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 default judgment must comply with N.D.R.Ct. 3.2(a).

Rule 55 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 28-29, 2016, page 22; September 24-25, 2009, page 23; September 27-28, 2001, pages 15-17; April 20, 1989, page 2; December 3, 1987, page 11; November 29-30, 1979, page 15; Fed.R.Civ.P. 55. 55.

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).

Effective Date Obsolete Date
03/01/2017 View
03/01/2011 03/01/2017 View
03/01/2003 03/01/2011 View
03/01/1990 03/01/2003 View