RULE 60. RELIEF FROM A JUDGMENT OR ORDER

Effective Date: 3/1/2011

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with notice. But after an appeal has been docketed in the Supreme Court and while it is pending, such a mistake may be corrected only with the Supreme Court's leave.

(b) Grounds for Relief from a Final Judgment or Order. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.

(1) Timing. A motion under Rule 60(b) must be made within a reasonable time, and for reasons (1), (2), and (3) no more than a year after notice of entry of the judgment or order in the action or proceeding if the opposing party appeared, but not more than one year after a default judgment has been entered.
(2) Effect on Finality. The motion does not affect the judgment's finality or suspend its operation.
(3) Leave to make the motion need not be obtained from an appellate court unless an appeal from the judgment is actually pending before that court.

(d) Other Powers to Grant Relief. This rule does not limit a court's power to:

(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;
(2) grant relief under Rule 4(e)(7) to a defendant who was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.

Rule 60 was amended, effective September 1, 1983; March 1, 1990; March 1, 1994; March 1, 2011.

Rule 60 is derived from Fed.R.Civ.P. 60. Subdivision (c) was amended in 1983, effective September 1, 1983, to provide that a motion for relief for reasons (2), (2), and (3) be made not more than one year after "notice that" the judgment or order was entered except for default judgments the time starts to run from date of entry.

Subdivision (b) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.

Subdivision (a) was amended, effective March 1, 1994, by deleting the phrase "and after such notice, if any, as the court orders." The purpose of the amendment is to clarify that notice should be given. See Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D. 1990).

Rule 60 was amended and subdivisions (c), (d), and (e) were added, 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: Supreme Court Conference Minutes of March 31, 1983; Joint Procedure Committee Minutes of January 28-29, 2010, page 11; April 29-30, 1993, page 11; January 28-29, 1993, pages 9-10; April 20, 1989, page 2;December 3, 1987, page 11; September 30-October 1, 1982, pages 6 and 11; November 29-30, 1979, pages 18-19; Fed.R.Civ.P. 60.

CROSS REFERENCE: N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction-Process-Service); N.D.R.Civ.P. 52 (Findings by the Court); and N.D.R.Civ.P. 59 (New Trials-Amendment of Judgments); N.D.R.Ct. 7.1 (Judgments, Orders and Decrees).

Effective Date Obsolete Date
03/01/2011 View
03/01/1994 03/01/2011 View