2.05.040 Appearance; Time Allowed Parties; Default Decisions

(a) Non-Appearance.

(1) If the defendant fails to answer the complaint within forty (40) days or otherwise defend, plaintiff is entitled to default judgment upon motion.

(2) A natural person may appear pro se (represent himself or herself), but all other entities must appear by a licensed attorney.

Attorney herein means state licensed attorney or advocate.

(3) An appearance or answer by an attorney who is not admitted under this title and licensed properly as set forth by the Constitution. When an attorney is not licensed, the opposing party shall be entitled to dismissal or default upon a party's motion or complaint and is not entitled to notice of default hearing.

(b) Time to Answer

(1) In all regular civil proceedings, except foreclosure, the defendant shall have 40 days to answer a complaint after lawful service of summons.

(2) In a foreclosure action a defendant shall have 20 days to answer a complaint after lawful service of summons.

(3) Any action against the Turtle Mountain Band of Chippewa or one of its subsidiaries the Tribe or the entity shall have 60 days to answer after lawful service of summons.

(c) Appearance.

(1) If the defendant has appeared by answer or otherwise, the Defendant must be given at least eight (8) days notice of hearing.

(2) No default may be entered against an infant or incompetent person unless represented by a guardian or licensed attorney.

(3) The fault rules apply to counter-claims, cross-claims and third-party plaintiffs' suits.

(d) Hearing. Upon request of a party or attorney, the clerk shall secure a hearing date.

(e) When an appearance has been made, notice of hearing shall be given by the clerk or attorney.

(f) The court, before entering default, may:

(1) Set damages when a claim is sum certain;

(2) Hold a hearing on the evidence and assess damages; or

(3) Submit an issue of fact to a jury.

(g) Setting aside default.

(1) The court may on such terms as may be just and upon payment of costs by defendant, relieve a party from a default decision taken because of inadvertence or excusable neglect by a defendant or attorney.

(2) The defendant's motion must be made within thirty (30) days after entry of default and supported by good cause.

(3) The failure of an attorney to get timely licensed is not excusable neglect or good cause to set aside a default.

(4) This rule does not limit the power of a court to consider relief from the judgment upon other grounds (new evidence, fraud, satisfied judgment).

(h) Judgment against Tribe.

(1) No default judgment may be entered against the Tribe, agency or official acting within the scope of their duties.

(2) The Tribe, agency or official sued in their official and individual capacity shall have sixty (60) days to answer, unless time shortened by the Court.

(3) The Tribe's General Counsel shall be served a copy of the summons and complaint in all actions against the Tribe or any of its entities or agencies.

(i) Attorney's fees for baseless claims.

A claim against a party, including the Tribe, agency or official, that is not supported by facts or law shall entitle the opposing party to attorney's fee and costs under Rule 11 standards which are:

Sanctions.

(j) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(k) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

(l) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(m) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation." Fed. R. Civ. Pro. 11.

(n) Continuance.

(1) A case may be postponed or continued upon motion with good cause shown.

(2) A party must first contact the opposing party or attorney on whether the party objects to the motion or agrees.

(3) The motion must state the attempt or result of talking with the opposing party, or reason why contact should not be made.