concurring specially.
On oral argument to this Court, Mr. Brakke was represented by counsel. The focus of oral argument was on the appropriateness of imposing the ultimate sanc*559tion of default without specific prior notice or order.
N.D.R.Civ.P. Rule 37(d) says the court “may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2)” against a party who fails to serve answers to interrogatories. N.D.R.Civ.P. Rule 37(b)(2)(C) includes “rendering a judgment by default against the disobedient party.” But, this is not just a tool to be used at will. Rather, it is the extreme sanction for outrageous conduct, where other available sanctions have been ineffective to obtain discovery compliance. See, for example, Bell v. Inland Mutual Insurance Company, 332 S.E.2d 127 (W.Va.1985).
In this case, default was the only sanction used. The sanction of default was not identified in the motion as the sanction sought. It was argued in this Court, with merit, that Rule 7(b), N.D.R.Civ.P., requires that a motion for sanctions “shall set forth the relief or order sought.”
Rule 55(a)(3), N.D.R.Civ.P., provides: “If the party against whom judgment by default is sought has appeared in the action, he ... shall be served with written notice of the application for judgment at least 8 days prior to the hearing on such application.” [Note that the North Dakota Rules of Civil Procedure, as published in the 1984 Desk Copy of North Dakota Court Rules (1983 West Publishing Co.) at page 115, makes specific cross-reference to Rule 37 following Rule 55.] No such written application for judgment with 8 days notice was served here.
The extreme sanction of default judgment simply should not be applied to any discovery failure without a specific motion and 8 days notice. Of course, alternatively, a court may issue the frequently used conditional order setting a time comparable or longer for correcting the discovery failure and providing for the sanction (including default in an appropriately egregious instance) if there is a failure to properly act within the time allowed. See Bell v. Inland Mutual Insurance Company, supra. Either way, a specific hearing should be held before entering default judgment.
Even here, where there was clear evidence of willful conduct, not only in failing to properly respond to discovery but also in violation of another order of the court, the ultimate sanction of default (which completely forecloses examination of the merits) should not have been applied so abruptly. Contempt proceedings were available to enforce the court’s other order, as well as to seek compliance with any order which the trial court may have entered as to discovery. Rule 37(b)(2)(D), N.D.R.Civ.P. The problem in this case is that the trial court did not enter any order relating to discovery prior to granting default judgment as a discovery sanction and did not hold a specific hearing on entry of a default judgment. If these were the only circumstances in this case, I would deem the entry of this default judgment an abuse of discretion.
However, Brakke was also faced with a motion for summary judgment at the February 20 hearing. The trial court correctly found that Dakota Bank’s request for admissions were deemed admitted. “The matter is admitted unless” written answer or objection is properly made; Rule 36(a), N.D.R.Civ.P. “Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Rule 36(b), N.D.R.Civ.P. Thus, the sanction of admission of requests for admission is imposed by Rule 36 itself, not by any order of the trial court.
Rule 56(e) N.D.R.Civ.P. clearly spells out the consequences of failing to respond to a properly supported motion for summary judgment:
“If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
Brakke failed to respond. The trial court found that Dakota Bank had met its burden of proof and was entitled to summary judgment. It is only on this alternative basis that I would affirm the judgment entered.
*560For some unexplained reason, the trial court chose to enter judgment by default, rather than summary judgment, although the court concluded that Dakota Bank was entitled to both. It would be idle to remand for entry of this judgment on the proper ground. We should keep in mind “the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved;” Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972). Therefore, I concur that the district court judgment should be affirmed.