Setting aside a North Dakota default judgment: your year runs from entry, not from notice

North Dakota's Rule 60 contains a sentence with two different starting points in it, and which one applies to you depends on whether you ever appeared.

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.

A party who appeared gets a year from notice of entry. A default judgment gets a year from entry.

That is the harsher trigger, and it falls on exactly the people least likely to know a judgment exists. A defaulted defendant who learns about it through a garnishment eleven months later has weeks, not months.

The deadline

N.D. R. Civ. P. 60(c)(1):

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.

Both are one year, and both apply only to grounds (1), (2) and (3). Everything else runs on reasonable time alone.

Rule 60(c)(2): "The motion does not affect the judgment's finality or suspend its operation."

And Rule 60(c)(3) removes a step other states require:

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.

Several states require appellate leave whenever an appeal is contemplated. North Dakota requires it only where an appeal is actually pending.

The grounds

Rule 60(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

Because the one-year clock is harsher for defaulted defendants, ground (4) — void carries correspondingly more weight in North Dakota. Where service was defective, there is no one-year problem to solve.

Rule 60(a) keeps clerical corrections available "whenever one is found", with Supreme Court leave needed only after an appeal has been docketed.

There is no separate entry of default

North Dakota skips the two-step sequence most states use. Rule 55(a):

Entry. If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the failure is shown by declaration or otherwise, the court may direct the clerk to enter an appropriate default judgment in favor of the plaintiff and against the defendant as follows:

The court directs the clerk — there is no clerk-initiated route and no interlocutory entry of default to be set aside separately. What exists is a default judgment.

Check what the plaintiff had to produce

Rule 55(a)(1) contains a requirement that matters in every debt case:

If the plaintiff's claim against a defendant is for a sum certain or a sum that can be made certain by computation, the court, on a declaration of the amount due and on production of the written instrument, if any, on which the claim is based, may direct the entry of judgment for the amount due plus costs and disbursements.

Two things were required: a declaration of the amount due, and production of the written instrument, if any, on which the claim is based. In an assigned-debt case there is usually a written instrument, and whether it was produced is a checkable question.

Rule 55(a)(2) covers everything else:

In all other cases, the court, before directing the entry of judgment, must require the necessary proof to enable it to determine and grant any relief to the plaintiff. To this end, the court may:

(A) Hear evidence and assess damages; (B) Direct a reference for an accounting or for taking testimony or for a determination of the facts; or (C) Submit any issue of fact to a jury.

"Must require the necessary proof" — not may.

Were you served with a motion?

Rule 55(a)(3):

A default judgment may be entered against a minor or incompetent person only if represented by a general guardian or other representative who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with a motion for judgment. Notice must be served with the motion and must comply with N.D.R.Ct. 3.2 (a).

If you had appeared, you were entitled to be served with a motion for judgment — not merely a notice — and the notice with it had to comply with N.D.R.Ct. 3.2(a).

The bond for absent defendants

Rule 55(a)(4) is unusual and worth knowing:

When service of the summons has been made by published notice, or by delivery of a copy outside the state, default judgment must not be entered until the plaintiff, if required by the court, has filed a court-approved bond that conforms to a court order regarding the restitution of property obtained from the judgment if a defense is later permitted and sustained. A bond is not required in actions involving the title to real estate or to foreclose mortgages or other liens.

Where service was by publication or by delivery outside the state, the court may require the plaintiff to post a bond securing restitution of property if a defense is later permitted and sustained. It is conditional on the court requiring it, and it does not apply in real-estate title or foreclosure actions — but in an ordinary money case against an out-of-state defendant, it is worth asking whether the court considered it.

Rule 55(b) bars a default judgment against the state, its officers or agencies "only if the claimant establishes a claim or right to relief by evidence that satisfies the court."

If you have not been defaulted yet

See responding to a North Dakota complaint.

How North Dakota compares

A short checklist

1. Find the entry date. If you were defaulted, that is where your year starts — not notice.
2. If you appeared, find the date of notice of entry instead. That is the more generous trigger.
3. Test service first. A void judgment under (4) has no one-year problem.
4. Check whether the written instrument was produced for a sum-certain judgment.
5. Check the proof. In all other cases the court had to require the necessary proof.
6. If you had appeared, look for a motion for judgment with compliant notice, not just a notice.
7. If you were served by publication or outside the state, ask about the restitution bond.
8. Get a stay separately — the motion does not suspend the judgment.

Where these rules live

• N.D. R. Civ. P. 55 — Default; Default Judgment
• N.D. R. Civ. P. 60 — Relief From a Judgment or Order

This page explains what the rules say. It isn't legal advice, and what amounts to excusable neglect is developed in case law this site doesn't cover.