Entry of Default: Rule 55(a)

Rule 55(a)Entering a Default

If a party fails to plead or otherwise defend, default may be entered. If a pleading seeks a judgment against a party that involves some kind of affirmative relief, and if a responsive pleading is required,1 the clerk must enter the default of any party who fails to timely file the required responsive pleading or otherwise defend against the pleading seeking judgment.2 In most cases, the pleadings that require a responsive pleading are complaints, counterclaims, cross-claims, and third-party complaints.3 Thus, parties served with those pleadings must file responsive pleadings, such as an answer to a complaint, a reply to a counterclaim, an answer to a cross-claim, or an answer to a third-party complaint,4 or defend against those claims in some manner, or suffer a default.5 Responsive pleading must be timely to avoid default. A responsive pleading will avoid a default.6 However, there are time limits on the filing of responsive pleadings. Rule 12 requires parties to serve (and file) most responsive pleadings within 21 days of service of pleading setting out the claim.7 The principal exceptions to the 21-day limit occur when service of summons has been waived under Rule 4(d)8 and when a United States officer or agency is a party.9 There may be extensions of the time to file responsive pleadings.10 However, if an extension is granted for the filing of a responsive pleading, a default may be entered if the responsive pleading is not filed

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See Fed. R. Civ. P. 7(a) (only certain forms of pleadings are recognized in federal practice, and not all of them require or permit responsive pleadings). Fed. R. Civ. P. 55(a). Fed. R. Civ. P. 7(a). Fed. R. Civ. P. 7(a). Fed. R. Civ. P. 55(a). See Fed. R. Civ. P. 55(a). See Fed. R. Civ. P. 12(a)(1)(A)(i); see also Fed. R. Civ. P. 14(a)(2) (responses to third-party claims are governed by Fed. R. Civ. P. 12). See Fed. R. Civ. P. 4(d), 12(a)(1)(A)(ii) (defendant has 60 days from service to save responsive pleading, or 90 days if defendant located outside of U.S.). Fed. R. Civ. P. 12(a)(2), (3) (United States defendants have 60 days from service to serve responsive pleading). See Fed. R. Civ. P. 6(b).

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within the extension allowed.11 Responsive pleading not required if party otherwise defends against pleading asserting claim for judgment. A responsive pleading is not always required in order to avoid a default. A default may be precluded if the party against whom a claim is asserted otherwise defend[s] against the claim.12 The rule does not define otherwise defend, although courts have universally agreed that the types of defensive motions that may be made under Rule 12(b), (c), (e), and (f) show the partys intent to defend against the claim and will suffice to preclude a default.13 Thus, a motion attacking personal jurisdiction or the validity of service, or for a more definite statement will preclude a default.14 More commonly, a motion to dismiss for failure to state a claim on which relief may be granted will suffice to preclude a default.15 Likewise, a motion for summary judgment clearly demonstrates a partys determination to defend against the claim and precludes a default.16 In contrast, a formal notice of appearance that does not refer to the merits of the claim does not demonstrate a determination to defend against the claim and will not preclude the entry of default.17 Default is entry in courts records by clerk. When a party has failed to serve a responsive pleading in a timely fashion, Rule 55(a) directs the clerk to enter the partys default.18 No other guidance is provided as to what a default is or what the clerk is supposed to do about it. The Rules do require the clerk to keep a civil docket and other books and records, however.19 In practice, the clerk enters a default by making a simple notation in the civil docket.20 On the other hand, a partys factual default is not automatically excused merely because the clerk has failed to record

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See, e.g., FSLIC v. Kroenke, 858 F.2d 1067, 1071 (5th Cir. 1988); Benny v. Pipes, 799 F.2d 489, 499 (9th Cir. 1986), amended on other grounds, 807 F.2d 1514 (9th Cir. 1987) (defendant defaulted for failure to file timely answer despite three extensions of time). Fed. R. Civ. P. 55(a). See Fed. R. Civ. P. 12(b), (c), (e), (f). Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949). See, e.g., Wickstrom v. Ebert, 101 F.R.D. 26, 33 (E.D. Wis. 1984). See, e.g., Rashidi v. Albright, 818 F. Supp. 1354, 1356 (D. Nev. 1993). See 10 Moores Federal Practice, 55.10[2][c] (Matthew Bender, 3d ed.). Fed. R. Civ. P. 55(a). See Fed. R. Civ. P. 79(a),(d). See Dow Chem. Pac. Ltd., v. Rascator Maritime S.A., 782 F.2d 329, 335 (2d Cir. 1986) (The default is entered by the placement of a notation of the partys default on the clerks record of the case).

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it on the docket.21 Furthermore, it is important to note that the Rule 55(a) default entered by the clerk for failure to serve a responsive pleading or otherwise defend differs from other defaults that may be ordered as sanctions for post-pleading conduct by the parties. A default is a possible sanction for failure to comply with a discovery order,22 or for failure to obey a pretrial order,23 or for prosecuting a case without a meritorious claim.24 There types of sanction-defaults always require a court order, and they may not be entered by the clerk on the clerks own initiative.25 Clerk must be informed as to when default is appropriate. Because the time for filling responsive pleadings or otherwise defending against pleadings asserting a claim runs from the time of service of the pleading asserting the claim, the clerk will not automatically be aware of when responsive pleadings or other defenses are due. The clerk will not be in position to make all of the determinations necessary to determine if and when a party is in default for failure to timely file a responsive pleading or otherwise defend. Therefore, the rule requires the clerk to enter the default only when that failure is shown by affidavit or otherwise.26 In general practice, an affidavit informing the court of the default is the normal means by which the clerks entry of a Rule 55(a) entry of default is secured.27 It has been held that, even though the default has not yet been entered by the clerk, notice of an affidavit requesting the entry of a default need not be given to the party that is, in fact, in default.28 Entry of default severely limits defaulting partys subsequent participation in action. The most important consequence of the fact that default is entered is that the defaulting part is not longer entitled to participate in the determination of its liability in the action.29 In fact, the case may proceed to judgment with no notice or limited notice to the defaulting party. The defaulting party has no standing to

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Connecticut Natl Mortg. Co. v. Brandstatter, 897 F.2d 883, 884-885 (7th Cir. 1990) (defendant required to show cause to file late answer even though clerk had not formally noted default). See Fed. R. Civ. P. 37(b)(2)(A)(vi). See Fed. R. Civ. P. 16(f)(1). See Commerical Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 244 (2d Cir. 1994). See Jones v. Winnepesaukee Realty, 990 F.2d 1, 6 (1st Cir. 1993) (failure to appear at pretrial conference). Fed. R. Civ. P. 55(a). See Form No. 55:1. See, e.g., Hawaii Carpenters Trust Fund v. Stone, 794 F.2d 508, 512 (9th Cir. 1986). See, e.g., Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 336 (2d Cir. 1986).

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challenge the factual allegations of the pleading to which he or she defaulted.30 If the damages sought against the defaulting party are in a sum certain or a sum capable of being made certain by simple, arithmetical calculations, the clerk may simply enter a judgment against the defaulting party for the amount due.31 However, if unliquidated damages are sought, a hearing must be held, but the defaulting party is entitled to notice of that hearing only if the defaulting party had previously appeared in the action.32 Entry of default is prerequisite for obtaining default judgment. Entry of default is a procedural formality that must be in place before the issuance of a default judgment.33 Entry of default is not a final judgment, and may not be appealed.34 Rather, a default merely permits the non-defaulting party to move for a default judgment.35 There is no preclusive effect from an entry of default. Preclusion (res judicator and collateral estoppel) occurs only at the time of a default judgment.36

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See, e.g., Taylor v. City of Ballwin, 859 F.2d 1330, 1333 n.7 (8th Cir. 1988) (complaint put defendant on notice of claim for $10,000 and once there was default, defaulting party could not assert set off). See Fed. R. Civ. P. 55(b)(1). See Fed. R. Civ. P. 55(b)(2); see also KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 1721 (1st Cir. 2003). See, e.g., Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1530 (11th Cir. 1985) (entry of default is not default judgment). Enron Oil Corp. v. Masonori Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993) (in appeal from default judgment, court may review both interlocutory entry of default and final judgment). United States v. Di Mucci, 879 F.2d 1488, 1490 n.3 (7th Cir. 1989). See Morris v. Jones, 329 U.S. 545, 552, 67 S. Ct. 451, 91 L. Ed. 488 (1947) (judgment of court having jurisdiction over parties operates as res judicator even if obtained on default).

Matthew Benders Federal Forms of Pleading and Practice, 3d