RULE 60. RELIEF FROM JUDGMENT OR ORDER

Effective Date: 3/1/1994

Obsolete Date: 3/1/2011

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the records and errors therein arising from oversights or omission may be corrected by the court: (1) at any time on its own initiative; or (2) on the motion of any party. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the Supreme Court, and thereafter while the appeal is pending may be so corrected with leave of the supreme court.

(b) Mistakes-Inadvertence-Excusable Neglect-Newly Discovered Evidence-Fraud-Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. The motion must be made within a reasonable time, and for reasons (i), (ii), and (iii) not more than one year after notice that the judgment or order was entered in the action or proceeding if the opposing party appeared, but not more than one year after a judgment by default has been entered. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate court except while an appeal from the judgment is actually pending before that court. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Rule 4(e)(7), or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment must be by motion as prescribed in these rules or by an independent action.

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