Default judgment

From LegalLanding

Default judgment is a binding judgment in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. It can be compared to a team forfeiting a game in sports. In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint. If proof of damages is required, the court may schedule another hearing on that issue. The judgment is binding and failure to comply with it means that enforcement action could be taken. A defendant can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.

The law relating to a default judgment depends upon the jurisdiction within which the civil action was filed. State Courts, United States Federal Courts, Tribal Courts and many Administrative Agencies have their own laws and local procedural rules relating to the granting and setting aside of a default judgment. The Federal Rules of Civil Procedure (Rules 55 and 60) are the basis for many procedures in default.



When the defendant fails to respond by motion or answer, then he defaults. This can happen unintentionally or strategically. Defendants sometimes intentionally default in order to prove lack of personal jurisdiction when sued in a far away state. If the plaintiff wants to then enforce a judgment, he will have to come to the defendant’s state and get an order from that state’s court recognizing the judgment. Although valid judgments must be recognized, the defendant will argue that, due to lack of personal jurisdiction, his due process rights were violated, and, thus, the judgment is not valid. The plaintiff can still sue in the defendant’s state, unless the statute of limitations has expired.

If no answer or any motion for FRCP Rule 12(b) defenses, shown by affidavit or otherwise (local rules), clerk must enter the party’s default under FRCP Rule 55(a). The defendant usually gets three days for mailing on top of the twenty days allowed by Rule 12(a)(1), and there is a provision for waiving service of process, where the defendant then gets sixty days. The clerk then has to send notice of entry of default to the defendant. If the notice is sent to the wrong place due to the plaintiff’s mistake, then the defendant might be able to invoke Rule 55(c).

The clerk only has the power to enter a default judgment is he does not have to think. Otherwise the plaintiff must ask for court for default judgment under Rule 55(b). The court can use its discretion, and ask the plaintiff to prove damages or the case (e.g. for an injunction). Once the judgment is entered, it is hard to undo. As a general rule, a default judgment establishes, as a matter of law, that the defendant is liable to the plaintiff as to each cause of action alleged in the complaint. However, a hearing is required for damages, unless the amount claimed is a sum certain.

Rule 55(c) says that, as to an entry of default, the defendant can move for the court to set it aside, but must show good cause. This is an invitation to argue and be persuasive; to convince the court that it was a reasonable misunderstanding (see Shepard Claims Service v. William Darrah and Associates (1986); court looks at whether plaintiff will be prejudiced, defendant has a meritorious defense, and then, if those are met, whether there is a credible explanation [no culpable conduct]). Courts prefer cases to be decided on their merits and will give leeway, but it is within the court’s discretion to deny the motion. Courts are also more lenient when it is the lawyer who causes the default, and less so when it is the client.

As to default judgment, the defendant can move for the court to set it aside under FRCP Rule 60(b). Rule 60(b) asks for relief from (to reopen) a judgment. This is difficult because of the desire for finality; the plaintiff needs to be able to rely on judgments so they can be enforced. Good cause might work here, too.

Entry of default

Typically, the plaintiff (or cross-complainant, cross-plaintiff, counter-claimant, counter-plaintiff, third-party plaintiff, etc.) must show that service of process was effected on the defendant (cross-defendant, counter-defendant, cross-defendant, third-party defendant, etc.). This is typically achieved by the filing of an affidavit of service (also known as a proof of service), which gives enough information to allow the court to confirm that valid service has been accomplished. Typically the affidavit states, under oath or penalty of perjury, that service was effected on a named defendant, briefly describes how it was effected, names the person who made service, and gives the place and date service was effected. Once the requisite time to respond to the complaint has passed, the defendant is "in default"; this may be automatic, or it may require the court clerk to enter the default (which may, in turn, require that the plaintiff request entry of the default). Some defaults do not take effect until a set period of time after the clerk acts. The clerk may have to give the defendant notice of his default, affording a chance to have the default vacated.

The entry of a default typically prevents the defaulted defendant from litigating his case or presenting evidence, and may excuse the other parties from giving him notice of further proceedings.

Relief from default

A defaulted defendant may move the court from relief from his default, but usually must do so promptly and must provide "good cause" for his failure to answer the complaint in time. Often, part of the procedure for relief from default involves the defendant filing an answer to the complaint. The defendant relieved from default may also be required to pay any extra costs and fees incurred by the plaintiff as a result of the delay in the defendant's filing his answer.

Default judgment

Often, a certain additional time is required before a default judgment is permissible, and there may need to be additional notice to the defendant. Some states do not allow a default judgment to be entered against some defendants while other defendants are actively litigating the same case; this is an application of the "one final judgment" rule. Others will allow "several judgment" (judgment with respect to some defendants at one time, and with respect to others at another time), at least under some circumstances.

United States law significantly restricts default judgments against members of the military services. The law requires that before a default judgment may be entered, the plaintiff must make a certification as to the military service status of the defendant whose default is sought. This certification may be made in the complaint, in a document filed with the proof of service, or later. Depending on the circumstances, other requirements may also apply.

Some jurisdictions allow a clerk of court to enter default judgment in certain simple cases. These typically involve no exercise of judgment or discretion. Otherwise, a default judgment must be issued by a judge, who may require the plaintiff to present proof of his claims.

Relief from default judgment

A defendant who has had a default judgment entered against him or her may move for an order vacating the judgment. Such a defendant must show "good cause" for not having responded to the complaint. There are often time limits and other requirements.

A court considering a motion to vacate a default judgment often considers the reasons presented for the defendant's failure to respond (such as "excusable neglect") and other variables (such as prejudice that might be suffered by the other party). The court must weigh these factors in light of two competing considerations: the general preference for cases to be decided "on the merits", and the important need for "finality in litigation."