The Clerk's Mandatory Duty

The Clerk's Mandatory Duty

Rule 55(a) ends on a command: once a party facing a claim for affirmative relief 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 The verb leaves the clerk no room to refuse. An earlier text of the rule, quoted by one district court, read "the clerk shall enter the party's default"; the word changed from "shall" to "must," but the duty did not.² So when a defendant defaults at the outset of a case and the plaintiff moves for entry, the clerk must enter the default on the record.³ The earlier sections of this chapter supplied the conditions that trigger the duty: a missed response period or some other failure to defend, a claim for affirmative relief against the silent party, and a showing that rests on effective service. When all of them appear in the record, the clerk's remaining task is to make the notation.

That task is confined to what the file can answer. Was the party served? Has the time to respond run? Does the docket hold an answer or a motion? The rule does not ask the clerk to assess the plaintiff's claim or to weigh the defendant's reasons for silence. Those questions go to the court. The court may set aside a default, or a judgment entered on it, in its discretion, and in most cases only the court can enter the judgment itself, after proof of the damages or other relief sought. In exercising that discretion, the court is guided by the principle that default judgments are not favored in the law.⁴ Entry of default therefore gives the plaintiff less than it may seem to give, since it raises no protectable expectation that a default judgment will follow.⁵

Colleton Preparatory Academy shows the two steps working separately. Colleton served Hoover Universal through its registered agent, which accepted service on June 23, 2003. The agent negligently failed to forward the papers, and Hoover Universal filed no timely answer. Colleton moved for entry of default, and the clerk entered it two days later, on August 5, 2003.⁶ The clerk had no reason to hold back, because the record showed service and silence, and the rule directs the clerk to act on those facts. On appeal, the court did not find the entry erroneous; the error lay in the failure to set the default aside.⁷ The clerk's mandatory act and the court's discretionary refusal were separate events, and only the second was error.

The duty has an edge, and Chudasama v. Mazda Motor Corp. marks it. The court there looked past the title of a paper called a "default judgment." Because there can be no judgment without a determination of relief, it described the paper as "more properly termed simply a 'default.'"⁸ The clerk must enter a default whenever the rule's conditions are met. A clerk may enter a default judgment only in limited situations, as when the claim is for a sum certain and the defendant is neither a minor nor an incompetent person.⁹ The same limit appears in the sum-certain example's companion rule: in most cases the application goes to the court, which requires proof of the damages or other relief sought.¹⁰ The two cases fall on opposite sides of the line. In Colleton the clerk recorded a fact, that the party had not responded. The paper in Chudasama bore a judgment's title without a determination of relief behind it.

A student who treats the clerk's duty as mandatory must still ask what the clerk does when the party in default offers an excuse before entry.

The excuse is not irrelevant. It belongs to the court's later decision on relief, which a separate reading on setting aside defaults takes up. The clerk's question is narrower: whether the failure has been shown.

Review of the entry keeps the mandatory duty from becoming a trap. In one district court, the judge's order directed the clerk to file the plaintiffs' motion that day, and the clerk entered the default of several defendants on January 28, 2003. The defendants moved to reconsider or, alternatively, for relief from the entry. The plaintiffs replied that there was nothing for the court to reconsider, because the clerk, not the court, had entered the default.¹¹ The court rejected that argument. Rule 55(c) expressly provides that the court may set aside an entry of default for good cause shown. The defendants in question had not been effectively served, so it did not appear that they had failed to plead or otherwise defend. Entry was therefore improper, and good cause was shown.¹²

The rule's "must" and its "may" thus work at different levels. The clerk has no discretion to refuse an entry whose conditions are shown, and the court has discretion to undo an entry that should not stand. Because the court controls what follows, a de minimis failure to meet a response deadline is unlikely to end in a default judgment.¹³