concurring specially.
Rule 55(a)(3), NDRCivP, provides that if a party against whom judgment by default is sought has appeared in the action, “the party ... must be served with written notice of the application for judgment at least 8 days before hearing on the application.” (Emphasis added). Here, the notice stated that if no answer or payment was submitted within 8 days after service of the notice, “the Bureau will take a default judgment.”
I would apply Rule 55(a)(3), NDRCivP, as written and require that the notice specify that the Bureau has applied for a judgment. If such a notice has been given, I would hold the notice sufficient to require action by Kostka within 8 days of services, notwithstanding Rule 3.2, NDROC. Here the Bureau did not state it had applied for default judgment, and, indeed it had not, which probably indicates that a statement of intention to do something, i.e., take a default judgment may constitute an empty threat compared to the statement required by Rule 55(a)(3) that application for default has been made. C.f. Henley v. Fingal Public School District, 219 N.W.2d 106 (N.D.1974) [notice expressing final decision not to renew teacher’s contract does not comply with statute requiring notice that school board contemplated not renewing contract].
*282The Bureau did not, in fact, apply for default until seven weeks after notice. Although that may be considered a grace period to Kostka when considered with the wording of the notice, it is at least as indicative that the Bureau was only posturing. Had an application actually been made and had the notice so stated, I would deem the notice alone sufficient to require Kostka to act within eight days. If notice of intent is a lever to pry action from the recalcitrant party, an acceptable “extra-legal” procedure, then a subsequent notice of actual application should be given either setting forth the date of the hearing or containing the notice required by Rule 3.2, NDROC.
I concur in the result.
LEVINE, J., concurs.