RULE 68. OFFER OF SETTLEMENT OR CONFESSION OF JUDGMENT; TENDER

Effective Date: 3/1/2011

(a) Offer of Settlement.

(1) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the trial begins, a party may serve on an opposing party an offer of settlement on specified terms, with the costs then accrued and to enter into a stipulation dismissing the claim or allowing judgment to be entered accordingly. If, within 14 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.
(2) 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 An unaccepted offer is considered withdrawn, but it does not preclude a later offer.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.
(3) Offer After Liability Is Determined. When one party's liability to another has been determined but the amount or extent of liability remains to be determined by further proceedings, any party may make an offer of settlement. It must be served at least seven days before a hearing to determine the amount or extent of liability, or as otherwise ordered by the court.
(4) 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) Tender of Money in Lieu of Judgment.

(1) Making a Tender. If the action is for the recovery of money, instead of the offer of settlement provided for in subdivision (a), any party may, at least 14 days before the trial begins, tender to the other party the full amount to which that other party is entitled, together with costs and disbursements then accrued.
(2) Unaccepted Tender. If the tender is not accepted within 14 days, the offeree may not have costs and disbursements unless the recovery is more than the sum tendered. The offeror's costs and disbursements must be deducted from the recovery, but if they exceed the recovery, the offeror is entitled to judgment for the excess. Evidence of the tender is not admissible except in a proceeding to determine costs.

(c) 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 must be made, signed by the defendant, and verified by oath, stating the following:
(A) the amount for which judgment may be entered and authorizing the entry of judgment; and
(B) if the judgment to be confessed is for money due or to become due, the concise facts underlying the debt, and showing that the debt is justly due or to become due; or
(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 does not exceed the amount of that liability.
(3) The statement must be presented to the court and, if it is found sufficient, the court must order the clerk to enter judgment. The statement, order for judgment, and judgment entered constitute the judgment roll.(4) Execution of the judgment may be issued and enforced according to the statutes of this state. If the amount due on the judgment is payable in installments that are not currently due, the execution may be issued on that judgment for the collection of installments due.
(5) The execution must be in the usual form, and must contain:
(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 March 1, 2011.

Subdivision (a) derived from Fed.R.Civ.P. 68.

Paragraph (a)(1) was amended, effective March 1, 2011, to change the time period to make an offer of settlement from 10 to 14 days before a trial begins.

Paragraph (a)(3) was amended, effective March 1, 2011, to change the time for making an offer after liability is determined from 10 to 7 days before a hearing.

Subdivision (b) is similar to subdivision (a) 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) 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 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 April 29-30, 2010, pages 16-17, 18-19; January 28-29, 2010, pages 19-20; 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 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 Fed.R.Civ.P. 68 (not adopted), September 1984. Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, Proposed Amendment to Fed.R.Civ.P. 68 (not adopted), August 1983.

CROSS REFERENCE: 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.Ev. 408 (Compromise and Offers to Compromise).

Effective Date Obsolete Date
03/01/2011 View
05/21/1987 03/01/2011 View