Judgment by the Clerk

Rule 55(b)(1) gives the clerk a narrow power: entering a default judgment without sending the matter to a judge. The power rests on three conditions, and the plaintiff must satisfy all of them. First, the claim must be for a sum certain or a sum that can be made certain by computation, and the plaintiff must request judgment with an affidavit showing the amount due. Second, the defendant must have been defaulted for not appearing. Third, the defendant must be neither a minor nor an incompetent person. When all three are present, the clerk must enter judgment for that amount and costs.¹

The word "must" explains the narrowness. A clerk who receives a qualifying request has no room to refuse, so the rule can entrust the task to the clerk only when nothing remains to be decided. Nothing remains when the claim itself, or simple arithmetic on the claim, fixes the figure. Something does remain when the amount is indefinite and a court must determine it after weighing the evidence.² Each condition guards that boundary, and a plaintiff who fails any one of them must apply to the court instead.³ The three conditions are taught in turn below, starting with the sum-certain requirement, which decides whether the clerk's route is open at all.

Sum Certain Claims

A claim is for a sum certain when its own terms fix the figure. A debt stated in a definite amount qualifies at once, and so does a total produced by simple arithmetic from numbers that a contract already set. The plaintiff then needs only a request and an affidavit showing the amount due, and the clerk must enter judgment for that amount and costs.⁴ The standard illustration is a claim for $83,411.22 due on an account: the plaintiff's affidavit shows the amount, and the clerk can enter judgment for it.⁵

Such a claim needs no hearing because the default has already settled everything except the amount. Once default is entered, the complaint's allegations that establish liability are accepted as true, except those relating to the amount of damages.⁶ When the claim fixes the amount, the affidavit gives the record a reliable basis for the figure. Clerk entry is therefore typically available when the damages are liquidated, meaning fixed in amount, and the amount requested is reasonable under the circumstances, conditions commonly met only in some contract actions.⁷

Because the clerk's figure comes from the plaintiff's own claim, it cannot exceed what the plaintiff demanded. Rule 54(c) sets the same limit for every default judgment, which must not differ in kind from, or exceed in amount, what the pleadings demand. A later section develops that ceiling.⁸

The plaintiffs in Virgin Records America, Inc. v. Lacey supply the contrast. Lacey chose not to defend, yet the plaintiffs' claim was not one the clerk could handle. They sought unliquidated damages, an indefinite amount for the court to determine after weighing the evidence, and injunctive relief as well. The statute prescribed no specific penalty but set a range.⁹ A range leaves the choice of figure to the court, and an injunction is not a sum at all.

Other kinds of relief fall on Lacey's side of the line, and an affidavit cannot move them across it. An affidavit proves a number; it cannot turn a discretionary claim into a liquidated one. Punitive damages are the plain example. The opinion in Greathouse v. JHS Security, Inc. recalls that in Flaks v. Koegel the Second Circuit held a hearing necessary to determine punitive damages, because they lie within the discretion of the trier of fact and are clearly not liquidated or computable.¹⁰ Emotional-harm damages work the same way. In Thompson v. Lied Animal Shelter, a plaintiff demanded $5,000,000 in compensatory damages for professional negligence involving his pet. The court found his evidence of the extreme and outrageous conduct required for emotional damages weak, held it certain that no factfinder would award that sum, and expected him to recover only the pet's replacement value and perhaps a small amount for emotional damages.¹¹ The $5,000,000 figure was an ad damnum, the amount demanded in the pleading. It sets the ceiling on damages but does not guarantee that the plaintiff will recover that amount.¹²

The clerk's judgment runs for the amount and costs, and the two words carry different rules. Costs other than attorney's fees should be allowed to the prevailing party unless a federal statute, the rules, or a court order provides otherwise, and the clerk may tax them on 14 days' notice, subject to court review on a motion served within the next 7 days.¹³ A claim for attorney's fees must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.¹⁴ Fees therefore stay outside the clerk's sum unless the substantive law makes them part of the damages claimed.

Two authorities in this chapter pull in different directions on how far a court may question a defaulted claim. The Greathouse opinion reads Rule 55(b)(1) literally. Because the clerk must enter judgment for a sum certain, it reasons, the rule leaves no room for discretion to deny the requested damages on the ground that the complaint fails to state a claim.¹⁵ Other authorities teach that a default admits the complaint's facts but not their legal sufficiency. A court cannot enter a default judgment unless the complaint states a claim, as though the defaulting party had filed a phantom Rule 12(b)(6) motion.¹⁶ The sources here do not reconcile the two views. What default admits, and what the court must still decide about liability, is taken up below with the court's branch of Rule 55(b).

Non-Appearing Defendants

The second condition confines the clerk to a defendant "who has been defaulted for not appearing," and it separates two defendants who have each missed a deadline. One has done nothing in the case. The other filed something, such as a preliminary motion, and then lapsed. The clerk's route fits only the first. Everything else goes to the court under Rule 55(b)(2), which protects the second defendant: a party who 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.¹⁸

The rule treats the two defendants differently because of what each has signaled. A defendant who has filed nothing has shown no interest in contesting the case, which is why entry of default usually occurs without notice and a clerk's default judgment follows the same pattern. A defendant who has appeared has shown interest, so courts following Rule 55(b)(2) require prior notice of a motion for default judgment and give that defendant a hearing at which to contest the amount, extent, or type of relief or to argue that the pleadings fail to state a claim.¹⁹ The later default may also reflect a lawyer's failure to follow procedure instead of the party's conscious choice. Notice offers some protection against that risk and assures the defaulting party a chance at a timely appeal.²⁰

The court in Thompson v. Lied Animal Shelter faced two defendants and sorted them on exactly this fact. VCA had filed a motion to dismiss and several other pleadings before the plaintiff moved for default judgment, so the court found it clear that VCA had not failed to plead or otherwise defend. Lied, by contrast, apparently had made no appearances or filings in the action.²¹ Whether the defendant did anything in the case is the variable that matters. The harder category is the defendant who appears and later lapses.

The two claims in that pair are identical, and so are the entries of default. What moves the judgment from the clerk to the court is whether the defendant did something in the case. Satisfying the sum-certain condition therefore does not settle who enters judgment, because the plaintiff must satisfy the non-appearance condition as well.

The line is clear at one end and contested at the other. A formal filing or submission to the court, such as a motion to dismiss, counts as an appearance under either view. Courts divide over informal contact. Some find no appearance without a formal filing or submission, while many others treat less formal activity, such as an exchange of settlement communications, as an appearance if the defaulting party has indicated an intention to defend. The more generous view reflects a general distaste for judgments entered without an adversarial presentation and a desire to encourage defaulting parties to appear and defend.²²

Removal supplies the clearest filing that counts. After removal, a defendant 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, and missing that deadline exposes the defendant to default. Yet the filing of the notice of removal counts as an appearance for purposes of Rule 55(b).²³ In Martha Stewart Living Omnimedia LLC v. Beers, the court held that the defendant's notice of removal constituted an appearance and that the plaintiff was therefore required to give notice before entry of the default.²⁴ A removing defendant who misses the post-removal deadline thus stands where the second shipper stood. The plaintiff must apply to the court and give written notice at least 7 days before the hearing, even on a claim for a sum certain.²⁵

A defendant who never appeared is owed no notice of the application for default judgment, yet two cases show notice appearing anyway. In Lacey, the plaintiffs did not serve their request for entry of default on Lacey. The court observed that nothing in Rule 55 excuses the service requirement for requests for entry of default, as distinguished from motions for default judgment. The omission was harmless, because the clerk mailed Lacey a copy of the entry of default at the address where she had been served, which put her on notice that the plaintiffs had moved forward and that she had elected not to defend.²⁶ In Taylor Made Golf Co. v. Carsten Sports, Ltd., the defendant never appeared, but the plaintiff mailed its motion papers by international certified mail to the defendant's principal place of business. The opinion describes Rule 55(b)(2) as requiring notice only for a defendant who has appeared, and it states a three-day notice period; the current rule sets that period at 7 days.²⁷

Minors and Incompetent Persons

The third condition removes a class of defendants from the clerk's route, however simple the claim. The clerk may enter judgment only against a defendant who is neither a minor nor an incompetent person.²⁹ A minor is a person under the age of majority, and an incompetent person is one who lacks the capacity to manage legal affairs. A plaintiff holding a liquidated claim against a silent defendant of either kind therefore satisfies only two of the clerk's three conditions, and the matter goes to a judge.

Rule 55(b)(2) governs what the judge may do, and it adds a protection of its own. A default judgment may be entered against a minor or incompetent person only if the defendant is represented by a general guardian, conservator, or other like fiduciary who has appeared.³⁰ A fiduciary is a person charged with managing another's affairs for that other's benefit. The representative's appearance is the condition. The defendant's own silence cannot supply it.

The pairing of these rules suggests the reason. A default judgment treats a served defendant's silence as a choice to forgo a defense. A person who cannot manage litigation may have made no choice at all. The clerk works from the request and the affidavit and cannot tell whether anyone in the case is looking after that defendant's interests. Sending the matter to a judge and requiring a fiduciary's appearance fills that gap.

Because the three clerk conditions run together, a liquidated debt and a silent defendant do not by themselves identify who enters judgment. The defendant's capacity matters as well. When the defendant is a minor or an incompetent person, the answer is the court, and then only after a representative has appeared, even though the sum-certain and non-appearance conditions are both met.

The United States, its officers, and its agencies also meet a judge before judgment. A default judgment may be entered against them only if the claimant establishes a claim or right to relief by evidence that satisfies the court.³¹ For these defendants too, the default alone does not carry the plaintiff to judgment, because a judge demands proof first.