Affirmative Relief Against a Party

Rule 55(a) speaks of "a party against whom a judgment for affirmative relief is sought," not of a defendant. When that party has failed to plead or otherwise defend, and the failure is shown by affidavit or otherwise, the clerk must enter its default.¹ Affirmative relief is what a pleading asks the court to award against someone, such as damages or an order to act, as opposed to a denial of what another party has demanded. The test therefore looks to the demand a pleading makes, and the caption label does not control. A plaintiff sued no one on the counterclaim, so once a defendant answers with a claim of its own, the plaintiff must respond to that claim as a defendant would.

Every party sued by complaint, counterclaim, crossclaim, third-party complaint, or interpleader has the same three choices: do nothing and risk entry of default, move to dismiss under Rule 12, or answer.² If default reached only original defendants, a defendant who counterclaimed would hold a demand its opponent could ignore with no way to record the silence. Courts close that gap by applying the rule as written. Virgin Records America, Inc. v. Lacey collects decisions on the point, among them Viveros v. Nationwide Janitorial Ass'n, which entered default judgment against a counterclaim defendant who had not answered or otherwise responded within the time Rule 12(a)(2) allowed. Modern courts do not favor default judgments, but they are "certainly appropriate when the adversary process has been halted because of an essentially unresponsive party."³

The words "affirmative relief" also set the outer limit of the rule, because a party with nothing to answer cannot fail to answer.

Hypothetical Illustration

A contractor sues a homeowner for the unpaid balance on a kitchen remodel. The homeowner's answer denies the contractor's allegations and asserts that the work was defective, but it asks for nothing from the contractor. Months pass with no further filing by the contractor. The contractor is not in default, because no pleading seeks relief against the contractor and nothing is waiting to be answered.

Now take a second homeowner, sued by a different contractor on a similar claim, who answers and adds a counterclaim demanding damages for the same kind of defective work. The contractor files nothing within the time allowed for answering the counterclaim. A pleading now seeks affirmative relief against the contractor and has gone unanswered, so the homeowner may show the lapse to the clerk and ask for entry of the contractor's default.

The same grievance appears in both answers, and it does different work in each. As a defense, the allegation of defective work only resists the contractor's claim. As a counterclaim, it becomes a demand that the court award the homeowner something. That is why a plaintiff's silence after an ordinary answer carries no penalty: the Rules require no reply to an answer unless the court orders one.⁴ The same reasoning reaches a party served with a crossclaim by a co-defendant or with a third-party complaint, since each pleading asks for relief against the party who must respond. On an exam, the first question about any silent party is whether some pleading demands relief against that party. The party's label in the caption does not answer it.

Affirmative Relief Against a Party

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