Civil Procedure: Default and Default Judgment

When a defendant fails to answer a lawsuit, the legal system cannot simply stall. Default and default judgment are the procedural mechanisms that allow a case to move forward, ensuring plaintiffs are not left in limbo while simultaneously imposing serious consequences on non-participating defendants. Mastering this area is crucial because it sits at the intersection of procedural fairness and judicial efficiency, often determining whether a plaintiff obtains a swift victory or a defendant loses the chance to defend themselves on the merits.

The Two-Stage Process: Entry of Default vs. Default Judgment

It is critical to understand that default is a two-stage process. The first stage is the entry of default. This is a formal notation by the court clerk, made under Federal Rule of Civil Procedure 55(a), that the defendant has “failed to plead or otherwise defend” the lawsuit. This is not yet a judgment; it is a procedural prerequisite. The clerk enters default after the plaintiff files an affidavit or other proof showing the defendant’s failure to respond. This step cuts off the defendant’s right to file further pleadings without first getting the default set aside.

The second, distinct stage is the default judgment. This is the court’s final ruling awarding the plaintiff relief against the defaulting defendant. Rule 55(b) outlines two paths to obtain this judgment, and the correct path depends largely on the nature of the damages sought.

Paths to Judgment: Clerk vs. Court

For a sum certain or a sum that can be made certain by computation, the plaintiff may request the clerk to enter the judgment. This applies to claims like unpaid liquidated debts, where the amount is unambiguous from the contract or affidavit. The clerk’s role is ministerial; they verify the defendant is in default and the amount is truly certain.

In all other cases—which is most litigation involving unliquidated damages, injunctive relief, or punitive damages—the plaintiff must apply to the court for a default judgment. The court will often, but not always, hold a hearing or proceeding to determine the amount and character of damages. Even when judgment is sought from the court, the plaintiff must still demonstrate that the factual allegations in the complaint, which are deemed admitted by the default, legally entitle them to the relief requested.

Challenging a Default: Setting It Aside

The law strongly prefers resolving cases on their merits, so courts provide avenues to vacate defaults. The standard applied depends on whether a final judgment has been entered.

To set aside an entry of default before judgment, a defendant must show good cause. Courts typically consider three factors under Rule 55(c): (1) whether the default was willful, (2) whether setting it aside would prejudice the plaintiff, and (3) whether the defendant has a meritorious defense. This is a more lenient standard than that for setting aside a judgment.

To set aside a default judgment, a defendant must meet the stricter requirements of Rule 60(b). Common grounds include “mistake, inadvertence, surprise, or excusable neglect” (Rule 60(b)(1)) or, for a longer one-year window, “the judgment is void” due to lack of jurisdiction or improper service (Rule 60(b)(4)). The “good cause” factors are still relevant, but the burden is higher once a final judgment is on the books.

The Damages Hearing and the SCRA Shield

A default only admits the well-pleaded factual allegations of liability in the complaint; it does not automatically admit the amount of damages. Therefore, unless damages are a “sum certain,” the court must conduct an inquiry to ascertain the appropriate amount. At this damages hearing, the plaintiff bears the burden of proof through evidence, such as affidavits, documents, or live testimony. The defendant, even though in default, may cross-examine witnesses and introduce evidence solely on the issue of damages.

A critical protection exists under the Servicemembers Civil Relief Act (SCRA). Before entering a default judgment, the plaintiff must file an affidavit stating whether the defendant is in military service. If the defendant’s status is unknown, the court may require the plaintiff to post a bond. If the defendant is in the military, the court must appoint an attorney to represent them and may stay the proceedings. A judgment entered in violation of the SCRA may be reopened and set aside.

Common Pitfalls

1. Moving for Default Judgment Prematurely: A common mistake is asking the court for a default judgment before the clerk has entered a default. The entry of default is a mandatory first step. Always check the docket to confirm the clerk’s entry before filing a motion for default judgment with the court.
2. Assuming All Damages Are Proven: Plaintiffs often err by believing a default judgment grants them the exact dollar amount requested in the complaint. For non-sum-certain claims, you must prepare for and present evidence at a damages hearing. Failure to do so can result in a judgment for zero or nominal damages.
3. Misapplying the SCRA: For plaintiffs, failing to file the required military affidavit can lead to the judgment being vacated later. For defendants in the military, failing to assert SCRA protections is a missed opportunity to secure a stay and legal representation.
4. Confusing the Standards for Relief: Defendants frequently use the wrong legal standard. Arguing only “excusable neglect” under Rule 60(b)(1) is insufficient if you are only seeking to set aside the entry of default; you should be arguing the more forgiving “good cause” standard under Rule 55(c). Using the wrong rule can doom an otherwise valid request.

Summary

• Default is a two-step process: The clerk first enters default under Rule 55(a) after a defendant fails to respond. The plaintiff then seeks a default judgment under Rule 55(b) as the final relief.
• Judgment paths differ: The court clerk can enter a default judgment only for a “sum certain.” In all other cases, the plaintiff must apply to the court, which will often hold a damages hearing.
• Defaults can be challenged: An entry of default can be set aside for “good cause.” A default judgment is harder to vacate and typically requires meeting a Rule 60(b) standard, such as excusable neglect or a void judgment.
• Damages are not automatic: Except for sums certain, the plaintiff must prove the amount of damages at a hearing, as a default admits only the facts alleging liability, not the damage calculation.
• Military service triggers protections: The SCRA requires an affidavit regarding the defendant’s military status and can prevent a judgment from being entered against active-duty servicemembers without safeguards.