From Entry to Judgment

From Entry to Judgment

A clerk's entry of default records that a party has failed to plead or otherwise defend, and it gives the plaintiff no judgment.¹ Rule 55(b) supplies the next step and offers two routes to it. The clerk enters judgment in one narrow class of cases, and the plaintiff must apply to the court in every other.² The line between the routes turns on how much judging the task requires. When the amount is fixed and the defendant never appeared, the work is arithmetic; when anything more must be decided, a judge decides it.

The Clerk's Route

The clerk enters judgment when the plaintiff's claim is for a sum certain, or for a sum that computation can make certain, and the plaintiff asks for judgment with an affidavit showing the amount due. The defendant must have been defaulted for not appearing, and must be neither a minor nor an incompetent person. If every condition is met, the judgment is for that amount and costs.³ Suppose a plaintiff sues on an account for $83,411.22 and files an affidavit proving that figure. Nothing remains for a judge to weigh, and the clerk can enter judgment for that amount.⁴

Each condition removes a reason to involve a judge. A fixed amount leaves no damages to assess. A defendant who never appeared has put no dispute before the court. Minors and incompetent persons fall outside the clerk's route altogether, because a default judgment may be entered against them only if a general guardian, conservator, or like fiduciary who has appeared represents them.⁵

The Court's Route

Every other claim goes to a judge, because in all other cases the party must apply to the court for a default judgment.⁶ Claims for unliquidated damages show why. In Lacey, the plaintiffs sought an indefinite amount that the court would fix after weighing the evidence, together with injunctive relief, and the statute prescribed a range of penalties rather than a specific one. That was not a predetermined sum certain, so the clerk could not simply calculate the figure and enter it.⁷

Reaching the court does not guarantee a judgment. Lacey makes clear that an entry of default alone does not automatically entitle the plaintiffs to one. By defaulting, Lacey admitted the facts alleged in the complaint, but whether those facts establish her liability is a question of law for the court. The court cannot enter a default judgment unless it finds, as a matter of law, that the complaint states a claim for relief, much as if the defaulting party had filed a phantom Rule 12(b)(6) motion that the court must decide first.⁸

Rule 55(b)(2) adds two safeguards for defaulting parties. A default judgment may be entered against a minor or incompetent person only if a general guardian, conservator, or like fiduciary who has appeared represents that person. And if the party against whom judgment is sought has appeared personally or by a representative, that party or its representative must receive written notice of the application at least 7 days before the hearing.⁹ The notice rule reaches the defendant who appeared and then stopped defending, and it ensures that such a party hears about the application before the court acts on it.

The court may also gather what it needs to decide. It may conduct hearings or make referrals, preserving any federal statutory right to a jury trial, whenever it must take one of four steps to enter or effectuate judgment:¹⁰

• conduct an accounting;¹¹
• determine the amount of damages;¹²
• establish the truth of any allegation by evidence; or
• investigate any other matter.¹³

The power is conditional, not routine: the court uses it when it needs to, not in every case. It matters most when the amount is open, as in the unliquidated-damages claim above.

Judgment Against the Government

A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.¹⁴ Against such a defendant, silence cannot carry the plaintiff's case as it can against a private party; the claimant must put in proof.

Flatow v. Islamic Republic of Iran applies the same logic to a foreign state. The court there entered the defendants' default on September 4, 1997, under Rule 55(a) and 28 U.S.C. § 1608(e), and the defendants never appeared. Despite signs that the default was willful, the court felt compelled to inquire further, because the Foreign Sovereign Immunities Act, like the rule for actions against the federal government, permits a default judgment against a foreign state only after the plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.”¹⁵ The court then held an evidentiary hearing on March 2 and 3, 1998. The plaintiff proceeded in the manner of a nonjury trial, and the findings rested on sworn testimony and documents admitted under the Federal Rules of Evidence.¹⁶ For a government defendant, then, the entry of default opens the way to a hearing on the plaintiff's proof, not to an automatic judgment.

Judgment Is Never Automatic

Entry of default does not promise judgment. Whether to enter a default judgment lies in the trial court's sole discretion, and a defendant's default alone does not entitle the plaintiff to one; the Ninth Circuit directs courts to weigh seven discretionary factors before deciding.¹⁷ A plaintiff holding an entry has no protectable expectation that judgment will follow, and prejudice generally cannot be found from delay alone or from the fact that the defaulting party will be permitted to defend on the merits.¹⁸

The defaulting party also has a way back. Rule 55(c) lets a court set aside an entry of default for good cause, and courts have been generous in finding it in clerical errors, communication lapses, attorney vacations, and sometimes nothing more than the press of business.¹⁹