Failing to Plead or Defend

Failing to Plead or Defend

Rule 55(a) asks what a party did and nothing about how the party behaved otherwise. When a party against whom a judgment for affirmative relief is sought “has failed to plead or otherwise defend,” and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.¹ A defendant that is evasive or hard to reach has not defaulted if it filed what the Rules required on time. A defendant that filed nothing by the deadline has defaulted, however cordial its letters to the plaintiff.

The rule needs two verbs because a served party can respond in more than one way. To plead is to file a pleading, which for a defendant ordinarily means an answer. To otherwise defend is to contest the claim by some other step the Rules recognize, such as a motion filed in place of an answer. Together the verbs keep a party that is actively contesting the case out of default before any answer exists, and they leave default for the party that is not contesting it. “Defendant” is shorthand in this unit: any party sued by complaint, counterclaim, crossclaim, third-party complaint, or interpleader has the same three choices, which are to do nothing and risk default, to move to dismiss under Rule 12, or to answer.²

Because the test compares conduct with a time limit, every default problem opens with a calendar. Which deadline governed this party, and what did the docket show when the deadline expired? The unit follows that order. The first subsection fixes the deadline, since no one can fail to plead before the time to plead has run. The second asks which filings count as defending. The third takes up the party that appears and files nothing else, and the fourth the party that answers and then stays away from trial.

Missing the Response Deadline

No one can default before a response is due. On the day after service no defendant has pleaded or otherwise defended, and no one would call that a default, so the failure Rule 55(a) describes must be a failure within the time the Rules set.³ A federal summons tells the defendant to move or answer within twenty-one days after service of the summons and complaint, a deadline that comes from Rule 12(a).⁴ A plaintiff who asks the clerk for entry before that time ends is asking the clerk to record a failure that has not yet happened.

The ordinary period is 21 days after service of the summons and complaint. A defendant that waived formal service has 60 days to respond, or 90 days if it is overseas.⁵ A Rule 12 motion filed inside the period is itself a way of otherwise defending, and Rule 12 lets the defendant answer after the court denies the motion.⁶ Each period measures the same thing, which is how long a defendant may stay silent before silence becomes a failure.

The period runs from service, not from the filing of the complaint. In Garcia v. Sebelius the plaintiffs filed their complaint on March 14, 2011, and served defendant Roses with a summons on July 12, more than four months later. When she failed to respond within 60 days, the plaintiffs moved for entry of default on September 14 and the clerk granted the motion the next day. The plaintiffs then mailed a copy of the docket reflecting the entry to her business and home addresses, and all four mailings were confirmed received.⁷ Counting from the complaint would have ended her time in May, two months before she was served. Virgin Records America, Inc. v. Lacey shows the opposite extreme. Service had been made under Rule 4(e) nearly three months earlier, and Lacey had never filed an answer or otherwise appeared. The clerk entered her default on December 13, 2006, for failure to plead or otherwise defend, and mailed a copy of the entry to the address where process was served.⁸ She did nothing at all, which makes her the plainest case of the failure Rule 55(a) describes.⁹

Two errors are worth naming. One is counting the 21 days from the filing of the complaint, which sets the deadline earlier than the Rules do. The other is treating a defendant's silence in the first days after service as a default.

A defendant that removes a case from state court gets a different clock. It has the longer of 21 days after service of the initial complaint or 7 days after filing the notice of removal to answer or raise defenses, under Rule 81(c)(2). Missing that deadline exposes the defendant to default, although the notice of removal counts as an appearance for purposes of Rule 55(b).¹⁰ The appearance matters later, when the plaintiff seeks a default judgment, as the subsection on appearances explains.

The measure is the deadline, so an answer served after it still comes too late. A defendant that serves its answer on the twenty-fifth day misses a twenty-one-day deadline and has failed to plead within the time the Rules allow. The consequence is softer than that sounds. Rule 55(c) lets the court set aside an entry of default for good cause, and courts have been quite generous in finding good cause in clerical errors, communication lapses, attorney vacations, and sometimes nothing more than the press of business.¹¹

Hernandez v. Apple Auto Wholesalers of Waterbury LLC shows what a defendant does after entry. Defense counsel moved on June 25, 2018, to vacate the default entry, asking for time to retain new counsel and noting that an answer had now been filed. On August 17 the court granted counsel's motion to withdraw and the motion to set the entry aside. The plaintiff moved again ten days later, contending that no successor counsel had appeared despite notice that default might follow, and on July 2, 2019, the court granted his sixth motion for entry of default against Apple Auto.¹² A set-aside restores a party's chance to defend. It does not stop the plaintiff from seeking entry again if the party falls silent.

Two policies pull against each other here. Courts follow a strong policy of deciding cases on the merits and view defaults with disfavor, as the Lacey court observed in quoting Eleventh Circuit authority.¹³ At the same time, the rules that require responsive pleadings within a limited time serve important social goals, and a party should not be permitted to flout them with impunity. A court will not reopen a default judgment merely because the defaulting party asks. It should require a showing both of good reason for the default and of a meritorious defense.¹⁴ A missed deadline therefore makes entry of default available without making it final, and the standards for relief belong to a separate reading. Even a finding that a party failed to plead or otherwise defend is only a threshold. In Thompson v. Lied Animal Shelter the court agreed with the plaintiff that Lied had failed to plead or otherwise defend, and then turned to the Eitel factors as a further inquiry.¹⁵

Otherwise Defending

The second verb in Rule 55(a) widens what counts as a defense. If only an answer sufficed, “otherwise defend” would add nothing. Bass v. Hoagland read the phrase to refer to attacks on the service, motions to dismiss, motions for better particulars (requests that the plaintiff make a vague pleading more specific), “and the like,” which may prevent default without presently pleading to the merits. Bass had filed a denial of the plaintiff's case through his attorney, and the court held that neither the clerk nor the judge could enter a default against him.¹⁷ The list shows the idea. The question is whether the party took a step the Rules recognize as contesting the claim, whatever form the step takes.

The Rules give a served party three responses: doing nothing, moving to dismiss under Rule 12, or answering.¹⁸ A party that attacks service or personal jurisdiction has taken the second route and put a contested question before the court, so the plaintiff does not face the silence that default exists to answer. Entering default against that party would penalize the use of a route the Rules themselves open. It would also turn a procedural step into a loss on the merits before any court had decided whether service was valid or the complaint sufficient.

A motion defends even when it loses. Nothing says a party's initial defense has to succeed, and what matters is that the party is actively defending in the manner and time the Rules set.¹⁹ The Rules complete the arrangement, because a defendant whose Rule 12 motion is denied still may answer.²⁰ If a denied motion retroactively produced a default, the Rules would be giving a defendant time to answer a complaint on which it was already in default. The denial therefore creates no default. Only silence after the denial could create one.

Two limits keep the idea in bounds. The step must be one the Rules recognize, and it must come within the time they set, because the point is that the party is defending in the manner and time the Rules set.²¹ And a bare appearance is a different matter from a defense, which the next subsection takes up.

Courts apply the same reading to a defendant that litigates actively. In Williams v. Giant Food Inc. the court of appeals affirmed the denial of the plaintiff's motion for default judgment because the defendant “vigorously defended this action and was not in default under Fed. R. Civ. P. 55(a).”²² A Michigan court rule worded almost exactly like Rule 55(a) produced the same result in Costa v. Community Emergency Medical Services. Entry of default was not permitted there because the defendants had asserted the complete defense of governmental immunity in their answer, so they had not failed to defend.²³ That decision rests on state law, but the same words carry the same logic.

Appearance Without a Defense

An appearance is a formal entry into the case, usually made by filing a paper that lists the name and address of the party or, for a represented party, of the lawyer.²⁵ The paper tells the court and the plaintiff that someone knows of the suit. It answers no allegation and raises no objection. A mere appearance is not enough to prevent a default,²⁶ because a defendant that appears and does nothing more leaves the plaintiff facing a case that no one is contesting.

Three positions on the docket show how this works. A defendant that never appears and files nothing is in default once the time runs out, and the court in Lacey found that she never even appeared.²⁷ A defendant that timely answers or moves has defended, as the last subsection showed. The middle position is the one that causes trouble. Within the 21 days a lawyer files a paper giving the lawyer's name and address and announcing that the lawyer appears for the defendant, and then nothing more is filed. That defendant is in default, because the paper contests nothing, and a lawyer who stops there leaves the client exposed to entry.²⁸

The text of the rule does not say how much a party must add to an appearance, and courts have not answered uniformly. Some have said that an appearance coupled with some other indication of the defendant's desire to contest the action can be enough.²⁹ That reading draws on the open-ended second verb, which can reach steps that are neither pleadings nor motions. It leaves the line to each court's judgment.

An appearance that does not prevent entry still changes what follows it. Under Rule 55(b)(2), a party that has appeared personally or by a representative must be served with written notice of the application for default judgment at least 7 days before the hearing.³¹ The provision shows that appearing and defaulting can coexist, since it speaks to a party that has appeared and yet faces a default judgment. One treatise adds that when a defendant has appeared and then defaulted, only the court may enter the default judgment, notice must go to the defendant before the damages hearing, and the defendant has the right to be personally served with all the subsequent papers in the action.³² The notice gives the party who has shown it knows of the case a chance to appear at the hearing. The duty runs only to a party that has appeared, which is why courts sort defaults by whether the defendant ever appeared.

On an exam, then, the fact that a defendant appeared starts the inquiry and does not end it. Ask what else the defendant filed within the time allowed. Then note the notice owed before any hearing on a default judgment.

Absence at Trial

Rule 55(a) directs the clerk to enter default against a party that “has failed to plead or otherwise defend,” and the words leave a question open: does a defendant that filed an answer, and so did plead, fail to defend by staying away when the case is called for trial?³⁴ Courts have answered in two ways, and the disagreement is over what the trigger means, since every court starts from the same text. Some read the phrase as a rule about the defendant's initial response to the complaint. Others read it as a rule about participation that continues through the case. The situation has a name, a post-answer default judgment, meaning a judgment for the plaintiff entered after the defendant files an answer but then fails to appear at trial or otherwise provide a defense on the merits.³⁵

Bass v. Hoagland gave the narrower reading. Bass had filed a denial of the plaintiff's case through an attorney, the attorney later withdrew without Bass knowing it, and neither Bass nor counsel appeared at trial. The court held that once the denial was filed, neither the clerk nor the judge could enter a default against him, and his absence generated none. The case was not confessed, and the plaintiff could proceed only by proving it.³⁶ The court added that even if the absence of counsel had caused a default, Rule 55(b)(2) required three days' notice before a judgment by default could be considered. Bass knew he was not in default, did not know his counsel had withdrawn, and had no notice that a default judgment would be sought, and a judgment obtained without evidence and without notice was not due process of law.³⁷

The reasoning rests on what an answer accomplishes. A denial puts the plaintiff's allegations in dispute and leaves the burden of proof on the plaintiff at trial, so the adversary process has already begun. Treating the defendant's later absence as a default would let the plaintiff collect on allegations the defendant denied, with no proof offered. One treatise describes the consequences when a court treats a defendant that took part before trial but did not show up for it as having appeared and defended rather than defaulted. No special notice that a judgment is about to be entered need be sent, and a later motion to reopen the judgment is viewed less favorably than one following a true default. The issues were framed in an adversary fashion, and judgment came only after the court evaluated the strength of the plaintiff's case on liability and damages, even though the evidence came in from one side only.³⁸

The Bass view appears to be a minority position, because most circuits have rejected its approach.³⁹ The objection runs this way: a failure to plead is no greater an impediment to the orderly progress of a case than a failure to appear at trial or to meet other required time schedules, and nothing explains why the first would carry a sanction that the second does not.⁴⁰ On that reasoning the duty to defend continues after the answer is filed. A defendant that disappears at trial has stopped defending, and the court may treat the absence as a failure to defend.

The split concerns the meaning of the trigger and nothing more. Even in a court that accepts the majority view, the clerk's entry is only a first step, and the questions whether judgment should follow and whether the entry can be set aside belong to separate readings.