RULE 55. DEFAULT
Effective Date: 3/1/1990
Obsolete Date: 3/1/2003
(a) Entry. If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the fact is made to appear by affidavit or otherwise, the court may direct the clerk to enter an appropriate judgment by default in favor of the plaintiff and against the defendant as follows:
(1) When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court, upon affidavit of the amount due and upon production of the written instrument, if any, upon which the claim is founded, may direct the entry of judgment.(2) In all other cases, the court, before directing the entry of judgment, shall require such proof as may be necessary to enable it to determine and grant the relief, if any, to which the plaintiff may be entitled. To this end, the court may:
1. Hear the evidence and assess the damages;2. Direct a reference for the purpose of an accounting or for the taking of testimony or for a determination of the facts; or3. Submit any issue of fact to a jury.
(3) No judgment by default may be entered against an infant or incompetent person unless represented in the action by a general guardian, or other representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or if appearing by representative, the party's representative) must be served with written notice of the application for judgment at least 8 days before the hearing on the application.(4) When service of the summons has been made by published notice, or by delivery of a copy without the state, no judgment shall be entered on default until the plaintiff, if required by the court, shall have filed a bond, approved by the court, conditioned to abide such order as the court may make touching the restitution of any property collected or obtained by virtue of the judgment in case a defense is thereafter permitted and sustained; provided, that in actions involving the title to real estate or to foreclose mortgages or other liens thereon such bond shall not be required.
(b) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).
(c) Judgment Against the State. No judgment by default may be entered against the state or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.
Rule 55 was amended, effective March 1, 1990; March 1, 2003; March 1, 2011; March 1, 2021; August 1, 2021. 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.
Paragraph (a)(1) was amended, effective August 1, 2021, to allow the court to direct the entry of judgment for the amount due plus costs and disbursements.
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.
Rule 55 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
SOURCES: Joint Procedure Committee Minutes of April 29, 2021, page 5; January 30, 2020, page 25; 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.
STATUTES AFFECTED:
CONSIDERED: N.D.C.C. ch. 31-15.
CROSS REFERENCE: N.D.R.Civ.P. 5(a) (Service—When Required), N.D.R.Civ.P. 6(d) (Motions), N.D.R.Civ.P. 11. (Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions), 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).