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

Effective Date: 5/21/1987

Obsolete Date: 3/1/2011

(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 An offer not accepted is deemed withdrawn and evidence of the offer is not admissible except in a proceeding to determine costs.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.

(b) Tender of Money in Lieu of Judgment. If the action be for the recovery of money, instead of the offer of settlement provided for in subdivision (a) of this rule, the defendant may tender to the plaintiff the full amount to which the plaintiff is entitled, together with costs and disbursements then accrued. If the tender is not accepted, the plaintiff may not have costs and disbursements unless the recovery is more than the sum tendered; and the defendant's costs and disbursements must be deducted from the recovery, or, if they exceed the recovery, the defendant is entitled to judgment for the excess. The fact of the tender having been made may not be pleaded or given in evidence.

(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 statement in writing must be made, signed by the defendant, and verified by oath, to the following effect:
1. It must state the amount for which judgment may be entered and authorize the entry of judgment therefor; and
2. If the judgment to be confessed is for money due or to become due, it must state concisely the facts out of which the debt arose, and must show that the sum confessed therefor is justly due or to become due; or
3. 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 is found sufficient, the court shall 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.

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