Make Sure You Understand Defaults and Default Judgments and The Key Differences Between Them!

June 1, 2020

What Is a “Default Judgment?”
The Federal Rules of Civil Procedure define “default” as when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,” and define “judgment” as “a decree and any order from which an appeal lies.”  A default judgment results from a combination of these factors.

The Difference Between “Default” and “Default Judgment”
The entry of a default is enacted by the court clerk and establishes that a party is in default. Once in default, a party is no longer able to answer the complaint.

The default judgment can only come after the entry of the default.  Either the clerk or the district judge answers the motion for a default judgment.

How to Request Entry of Default
Requesting an entry of default typically involves filing the following two documents with the court clerk:

Request for Default

This is a request for the court clerk to enter the default of the party who has not answered the complaint, filed for dismissal or otherwise defended their actions.

Supporting Affidavit
This should include the date of service of the summons and complaint, the failure of the defaulting party to respond or file for dismissal, and the absence of an extension of time to respond.  A copy of the proof of service of the summons and complaint will support the request for entry of default.

How to Apply to the Clerk for Default Judgment
Applications for Default Judgment may be made to the clerk in the following circumstances:

  • Plaintiff’s claim must be for a sum certain.
    The defendant must not have appeared or otherwise participated in the action.
    • The defendant must not be an infant or incompetent.
    • The defendant must not be a member of the United States armed forces.

In cases where all the above criteria are satisfied, the application for default judgment consists of the following three or four documents: 

  • Supporting Affidavit-establishes (1) the entry of default by the clerk, (2) the failure of the defaulting party to appear, (3) that the defaulting party is neither an infant nor incompetent, and (4) the “sum certain” of damages being asserted and how those damages are calculated.
  • Proposed Form of Default Judgment-reiterates these basic requirements
  • Bill of Costs and Disbursements-state all costs besides attorneys’ fees
  • Affidavit of Nonmilitary Service-needed when the defaulting party is an individual

    Motions Before District Court Judges for Default Judgment
    Unlike application to a clerk, the judge may deny the motion even if the movant has complied with the technical requirements of the Rules. For example, if the party in default filed an appearance, the movant must provide the defaulting party with at least seven days’ notice of the motion.  A motion can be denied for this reason alone, even if the movant has met other technical requirements.

    Requesting Relief from Entry of Default or a Default Judgment
    The Rules allow for relief from an entry of default or a default judgment for “good cause.”

In considering whether to grant a motion to vacate a default, district courts also consider four factors that are set forth in the Rules:

Whether the plaintiff would be prejudiced by setting the default aside.
• Whether the defendant has a meritorious defense.
• Whether the default was the result of the defendant’s culpable conduct.
• The effectiveness of alternative sanctions. 

A party moving to vacate an entry of default or a default judgment should submit an affidavit explaining the reasons for the default, a request to serve and file an answer to the complaint, and the proposed answer.

At The GC Law Firm, we are familiar with the rules of filing for defaults and defaults judgment and will help you navigate this process.  Contact us at (201)-488-1825, or through our website, to get started!

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(201) 488-1825

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(212) 878-6699

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