DCI Credit Services v. Plemper
2021 ND 215
| N.D. | 2021Background
- DCI sued Plemper in May 2020 for an assigned debt; district court entered a default judgment for $4,397.50 in September 2020.
- Plemper obtained relief from the default in October 2020 and moved for summary judgment in November 2020.
- Parties engaged in settlement discussions and exchanged emails about dismissal but disputed allocation of costs.
- The court granted Plemper’s summary-judgment motion in December 2020, dismissed the complaint with prejudice, and awarded costs and attorney’s fees.
- DCI’s attorney, Daniel Oster, had been seriously ill and died January 11, 2021; DCI filed a Rule 60(b) motion in February 2021 seeking to vacate the summary judgment, citing Oster’s illness and ongoing settlement discussions.
- The district court denied DCI’s Rule 60(b) motion (finding DCI failed its burden) and awarded Plemper additional fees for defending the Rule 60(b) motion; the ND Supreme Court affirmed denial of relief but reversed the fee awards for lack of required findings and pleading under §28-26-01(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by denying DCI’s Rule 60(b) motion to vacate the summary judgment | Oster’s severe, secretly concealed illness and ongoing settlement negotiations justify relief under Rule 60(b)(1), (2), or (6) | DCI failed to specify grounds, and vacating would be futile and increase litigation costs | Affirmed — no abuse of discretion; DCI did not meet its heavy burden |
| Whether Oster’s illness constituted excusable neglect/newly discovered evidence/extraordinary circumstance under Rule 60(b) | Illness prevented response and was extraordinary and secret, warranting relief | Illness and settlement assertions were insufficiently pleaded and not persuasive to warrant relief | Denied — illness/settlement did not establish required Rule 60(b) grounds as presented |
| Whether the district court properly awarded attorney’s fees and costs to Plemper for defending the Rule 60(b) motion under N.D.C.C. §28‑26‑01(2) | Fees were improper because the court never made the statutorily required finding that DCI’s motion was frivolous and Plemper did not properly plead frivolousness | Motion was baseless and fees were warranted | Reversed — court abused discretion by awarding fees without finding the motion frivolous and without the prevailing party having alleged frivolousness in a responsive pleading |
| Whether the appeal is frivolous and warrants fees under N.D.R.App.P. 38 | — (DCI is appellant) | Plemper argued appeal is frivolous and sought double costs and fees | Denied — court concluded appeal was not frivolous |
Key Cases Cited
- US Bank Nat. Ass’n v. Arnold, 2001 ND 130, 631 N.W.2d 150 (discusses abuse-of-discretion standard for Rule 60(b) motions)
- Hatch v. Hatch, 484 N.W.2d 283 (Rule 60(b) motions must contain specific factual detail to afford relief)
- Fleck v. Fleck, 337 N.W.2d 786 (mere recitation of Rule 60(b) grounds without detail is insufficient)
- McCarvel v. Perhus, 2020 ND 267, 952 N.W.2d 86 (court must find a claim frivolous before awarding fees under §28‑26‑01(2))
- CHS Inc. v. Riemers, 2018 ND 101, 910 N.W.2d 189 (district court has discretion to determine frivolousness and fee reasonableness)
- Davis v. Davis, 2021 ND 24, 955 N.W.2d 117 (standard of review for Rule 60(b) is abuse of discretion)
- First Nat’l Bank of Crosby v. Bjorgen, 389 N.W.2d 789 (explains abuse-of-discretion standard)