Group VIII: Provisional and Final Remedies and Special Proceedings · Last amended March 1, 2011 · Last verified July 15, 2026
(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 An unaccepted offer is considered withdrawn, but it does not preclude a later offer.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) is derived from N.D.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.
Rule 68(a) lets a party serve an offer of settlement at least 14 days before trial begins, on specified terms and with costs accrued so far, along with a stipulation to dismiss the claim or let judgment be entered accordingly. The opposing party has 14 days after being served to accept in writing; once it does, either side can file the offer, the acceptance, and proof of service, and the clerk enters judgment on the court's order. An unaccepted offer is treated as withdrawn — it doesn't stop a party from making a later offer — and it isn't admissible except in a proceeding to determine costs. A party can also make a settlement offer after liability has been decided but before the amount is determined, serving it at least seven days before the hearing on that amount. The consequence for turning down an offer and doing no better at trial is direct: if the judgment the offeree finally gets isn't more favorable than the unaccepted offer, the offeree pays the costs incurred after the offer was made.
Rule 68(b) offers an alternative in actions for recovery of money: instead of an offer of settlement, a party may tender the full amount it believes the other side is entitled to, plus accrued costs and disbursements, again at least 14 days before trial. If the tender isn't accepted within 14 days, the offeree can't recover costs and disbursements unless it ultimately recovers more than the tendered amount; the offeror's costs and disbursements get deducted from any recovery, and if they exceed the recovery, the offeror gets judgment for the excess instead. Evidence of an unaccepted tender, like an unaccepted offer, isn't admissible except to determine costs.
Rule 68(c) covers something different: a confession of judgment, which lets a defendant consent to judgment being entered without any lawsuit being filed, either for money due or to become due or to secure someone against a contingent liability on the defendant's behalf. It requires a written statement, signed by the defendant and verified by oath, stating the amount and authorizing entry of judgment, along with the underlying facts showing the debt is justly due or describing the contingent liability being secured. The court reviews that statement, and if it's sufficient, orders the clerk to enter judgment; the statement, the order, and the judgment together make up the judgment roll. Execution can issue for installments already due even while future installments remain outstanding, and the judgment stays in place as security for those future installments until they come due.