Concept
Entry of Default Versus Judgment
Default judgment by the clerk and relief demanded
Default Judgments and Relief Demanded
Entry of Default Versus Judgment
Rule 55 makes default a two-step process, and the first step produces no judgment at all. In that step the clerk must enter a party's default when a judgment for affirmative relief is sought against the party, the party has failed to plead or otherwise defend, and the failure is shown by affidavit or otherwise.1 The second step, a default judgment under Rule 55(b), comes afterward and builds on the first.2 Webster Industries, Inc. v. Northwood Doors, Inc. shows the order of events. The clerk had already entered the defendants' defaults under Rule 55(a), which completed the first step, so the only questions left were whether to enter judgment under Rule 55(b)(2) or to set the default aside under Rule 55(c).3
The division matters because a default judgment is a drastic action. It confronts the judicial preference for deciding litigation on the merits, especially when the defendant has otherwise been diligent.4 The judgment rests on the earlier entry of default, and depending on the governing rule and the nature of the claim, either the clerk or the court enters it.5 The single word default gets applied loosely to all of this, so three things must be kept apart:
- The default is the defendant's failure to plead or otherwise defend within the time the Rules set.6
- The entry of default is the clerk's notation recording that failure.7
- The default judgment is the later judgment, which exists only once relief has been determined.8
What Counts as Default
Silence alone is not a default, because a defendant who has said nothing on the day after service has failed at nothing. The failure must occur within the time the Rules set, and the benchmark is Rule 12(a): a federal summons presently advises the defendant to move or answer within twenty-one days after service of the summons and complaint.9 A defendant who misses that deadline has defaulted, though the entry can still be set aside under Rule 55(c) for good cause, and courts have been quite generous in finding it in clerical errors, communication lapses, attorney vacations, and sometimes nothing more than the press of business.10
The words otherwise defend reach active contests that stop short of an answer on the merits. They cover attacks on the service, motions to dismiss, and motions for better particulars, any of which may prevent default without a present pleading to the merits.11 In Bass v. Hoagland, the defendant filed a denial of the plaintiff's case through his attorney, and neither the clerk nor the judge could then enter a default against him.12
A Rule 12 motion is one of the responses the summons itself lists, and it need not succeed. Nothing says the initial defense must win; the point is that the defendant is actively defending in the manner and time the Rules set, and Rule 12 even allows an answer after a motion to dismiss is denied.13
The defendant in Virgin Records America, Inc. v. Lacey stands where Brandt stands. Lacey did nothing at all after service, and the court found that she never even appeared in the action, so her silence past the Rule 12(a) period was a failure to plead or otherwise defend.14
A bare appearance does not prevent a default. An appearance is usually entered by filing a paper that lists the name and address of the party or its lawyer, and some courts have held that an appearance coupled with some other sign that the defendant wants to contest the action can suffice.15 Whether a defendant has appeared matters again later, because it determines who may enter judgment and whether the defendant is entitled to notice of the application. A defendant who removes a case from state court must also respond on time. After removal the defendant has the longer of 21 days after service of the initial complaint or 7 days after filing the notice of removal, under Rule 81(c)(2), and missing that deadline exposes the defendant to default, although the notice of removal itself counts as an appearance for purposes of Rule 55(b).16
The Entry of Default
The entry of default is an actual notation in the docket, the clerk-kept list of filings, hearings, and orders in the case, and it is a written indication that the defendant is in default.18 The clerk does not make the notation automatically; the rule requires that the failure be shown by affidavit or otherwise, and in Lacey the plaintiffs made a motion for entry of default.19 Once the notation is made, the defaulting party is precluded from raising any new defenses to liability.20
The entry does no more than that. It is not a judgment, so it cannot be enforced to collect damages; it merely permits the plaintiff to move for a default judgment under Rule 55(b)(2), assuming the default is not set aside under Rule 55(c).21 Nor does the entry guarantee that the motion will succeed, because Rule 55(b) is not mandatory and a court may decline to enter judgment even after the clerk has recorded the default.22
When Judgment Exists
A default judgment exists only when someone with authority has determined the relief, and Rule 55(b) divides that authority between clerk and court. The clerk may enter judgment only when the claim is for a sum certain or a sum that can be made certain by computation, the plaintiff requests it with an affidavit showing the amount due, and the defendant was defaulted for not appearing and is neither a minor nor an incompetent person. The judgment then covers that amount and costs.24 A claim for $83,411.22 due on an account, supported by the plaintiff's affidavit, fits that description, and the clerk can enter judgment for that sum.25 Where the amount of damages is in dispute, only the court may enter judgment, and then only after determining the amount.26 Each condition of the clerk's route receives its own treatment below.
The court's route carries safeguards of its own. A defendant who has in some way appeared, even without responding as the Rules require, is entitled to at least seven days' written notice of a hearing on entering judgment, and at that hearing it can argue against judgment and ask to set aside the entry of default.27
A paper's title does not make it a judgment. In Chudasama v. Mazda Motor Corp., the document entitled default judgment was held to be only a default. The amount of damages was in dispute, so only the court could enter judgment, and only after determining the amount; because there can be no judgment without a determination of relief, the document was more properly termed simply a default.28
The reasoning follows from what a judgment is. Under Rule 54(a) a judgment includes a decree and any order from which an appeal lies, and it is the final decisive act of a court defining the rights of the parties.29 A default judgment therefore cannot be entered until the amount of damages has been ascertained.30 Whatever the document is called, its label cannot supply the missing determination.