Q(2) A law firm entered into a contract with an office furniture supplier to purchase a

substantial amount of office furniture. The contract provided that the supplier would deliver and
install the furniture within 30 days. Six months passed and the furniture had not been delivered,
and the supplier informed the law firm that the furniture would not be available for at least
another month. The law firm then filed a breach of contract action against the supplier in
federal district court. The action sought recovery of lost revenues and profits that the law firm
alleged were caused by the supplier’s failure to deliver the furniture as agreed. The law firm
properly served process on the supplier, but the supplier failed to file an answer or otherwise
respond to the complaint. After several months passed, the law firm filed a motion requesting
that the clerk of court make an entry of default, and the clerk did so. What procedure must the
law firm follow to obtain a default judgment against the supplier?
You

Correct Answer: File a motion to have the judge enter the default judgment, which the judge may do
without the supplier receiving any further notice of the motion for default judgment.

Because:

1. To determine whether the clerk or judge will enter the default judgment, we look to FRCP 55.
a. FRCP 55(a) allows the P to ask the clerk to enter a party into default when: (1) The P
seeks affirmative relief from a party who (2) has not responded with an answer or
otherwise defended and (3) P can show this failure through affidavit (in the proof of
service or a statement made under oath indicating when and how service was made. Here,
the facts indicate that P seeks affirmative relief because P wants D to provide relief in the
form lost profit and revenue, as opposed to an injunction. They also indicate that D has
not responded because he has not filed an answer nor has he responded in any other
manner. P is also likely able to provide an affidavit of service because the firm properly
served the supplier with notice of suit. So, as long as P requests the clerk to enter the D
into default on the docket, P may proceed with applying for default judgment.
b. FRCP 55 (b) controls the entry of default judgment after the P has requested the clerk to
enter the default. 55(b)(1) states that only when a P seeks relief for an amount that can be
made certain upon calculation, a sum certain, can the clerk enter the default judgment. In
all other instances, the P must apply directly to the court (Rule 55(b)(2)). Here, P is suing
for recovery of lost profits and revenue, which is not a sum certain because this amount is
calculated based on several factors such as market value, which fluctuates, and could
vary with time, so it is not a certain amount. Accordingly, we apply 55(b)(2) which states
that the P must apply to the judge rather than the clerk for default judgment.
2. We then look to Rule 5(a)(2) to determine whether further notice of the motion for default
judgment is required.
a. Rule 5(a)(2) states that “No service is required on a party who is in default for failing to
appear. But a pleading that asserts a new claim for relief against such a party must be
served on that party under Rule 4.” Here, the facts indicate that the supplier is in default
under Rule 55(a) because supplier never responded with an answer nor ever otherwise
respond to the complaint. Secondly, P is not asserting a new claim for relief triggering
Rule 4 because P is still suing for relief in the form of lost profit and revenue, which is
the relief sought in the original claim. So, no additional service is required because D is
in default for failing to appear and this is not a new claim for relief.
Q(6) Lawyer 1 is assigned to draft an answer to a complaint. Her draft contains a statute of
limitations defense. Lawyer 1 gives the draft answer to Lawyer 2, who is in charge of the case.
Lawyer 2 signs, files, and serves it. Lawyer 3 later argues to the court that the court should
dismiss the case on the statute of limitations. The facts known to the lawyers initially supported
the defense. But by the time Lawyer 3 argued the defense to the court, all of them should have
known that there was no factual basis for it.  Who can be sanctioned under Rule 11?
Correct Answer: Lawyer 2 is subject to sanctions because she had a duty to correct the answer after it became
clear it lacked a factual basis.- Is this based on
 
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