Default Judgments

Entry of Default is appropriate when the D has failed to answer or otherwise

defend (rule statement)

Defendant must have been properly served with the summons and complaint
(Rule 4) (must be in the rule statement)

Generally, an untimely answer is NOT grounds for default judgment.

If service is improper and a default judgment was entered, you argue that
the default judgment is void

The defendant knew of the action but filed the answer late.
- The court is likely to allow the case to continue and remedy the issue
some other way
- Reasonable minds can defer

If the answer was mailed on the day it was due and default was entered
before the mail was received.
- Generally, an untimely answer is not grounds for default.
- If there is clear neglect, then the default will likely stand
Step 1:
Under Rule 55, default is a two-step process
1. 55(a) provides for ENTRY OF DEFAULT by the clerk of court
- entered by clerk, after defendants failure to plead or otherwise
defend is shown by affidavit or motion
- clerk makes an entry on the docket.
2. Followed by ENTRY OF DEFAULT JUDGEMENT under Rule 55(b) by the
clerk judge
- The clerk can enter the default judgment if: 1) damages are sum
certain; 2) D has never appeared, and; 3) D is not a minor or
incompetent person. OR
- By judge if any of the above conditions are not satisfied.
- So the clerk or the judge can enter it

(Hauser will say default judgment or person entered into default)

**notice that entry of default and entry of default judgment
Step 2:
55(b)(1) Entry of default
1) Entered by the clerk if 3

What is sum certain?

The amount of damages to be awarded is not in dispute
An amount is a sum certain if it is known or can be calculated with
certainty. (needs to be in rule statement)
55(b)(2) Default judgment entered by Judge
(2) Must be entered by the judge if any of the following are true
the defendant has appeared in the action, or
*a defendant can appear even though it does not plead or defend
*a defendant who has appeared must be given at least 7 days
notice of hearing
The defendant is an infant or incompetent person, or
*Only if represented by a general guardian, conservator, or other
like fiduciary who has appeared on their belief
The amount due is not sum certain
*The judge will hold a hearing to determine the amount of damages

If a default judgment must be entered by judge:

Minor/incompetent must have guardian
Judge may conduct hearing if evidence is necessary to establish damages
If D previously appeared, D must be7 days?

55(c) Setting aside default

For good cause shown the court may set aside an entry of default, and, if a
judgment by default has been entered, the judge may set aside in
accordance with Rule 60(b)

Last slide the rules that go with the questions

A default judgment entered because the defendant 60(b)(4)
60(b)(1)

entry of default good cause shown 55(c)

good cause shown