Civil Procedure Tip of the Week: Default Judgments: not the Default Proceeding

Post authored by Kenny Matuszewski

If you are a plaintiff and serve your complaint on the Defendant, the Defendant has 21 days to answer the complaint after being served with an order to reply, unless the order specifies a different period of time.

If the Defendant does not answer the complaint or request an extension of time to answer the complaint, then the Plaintiff may begin the process for default judgment, a binding judgment based on the defendant’s failure to respond to service or otherwise take action.

Under F.R.C.P. 55, there are two steps in order to obtain a default judgment.

First, the clerk must enter the defendant’s default. This is accomplished by having the plaintiff provide an affidavit or motion showing the defendant has failed to take any action in the case.

Second, either the clerk or the court may enter a default judgment. While there may be only a difference of one word between steps 1 and 2, it is crucial to understand the steps themselves are very different.

The clerk may enter the default judgment if the plaintiff’s claim is for a sum certain (a specified damages amount in the complaint or other documents) or a sum that can be made certain by computation (such as using an expert to calculate the damages). The plaintiff must request this and provide an affidavit showing the amount due.

The court will otherwise enter the default judgment. If the defendant has appeared personally or through counsel in the matter, they must be served with written notice of the default judgment hearing.

Finally, the court may lift the entry of default for good cause and the final default judgment under F.R.C.P. 60(b). For example, the Defendant may lift the entry of default if she responds within sixty days.

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