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Rule 55 – Default

May 14, 2021 | Civil Procedure, South Carolina

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default upon the calendar (file book).
(b) Judgment. Judgment by default may be entered as follows:

(1) Cases Involving Liquidated Damages or Sum Certain Amounts. When the claim of a party seeking judgment by default is for a liquidated amount, a sum certain or a sum which can by computation be made certain, the judge, upon motion or application of the party seeking default, and upon affidavit of the amount due, shall enter judgment for that amount and costs against the party against whom judgment by default is sought, if that party has been defaulted for failure to appear and if such party is not a minor or incompetent person. A verified pleading may be used in lieu of an affidavit when the pleading contains information sufficient to determine or compute the sum certain.
(2) All Other Cases. In all other cases, the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or incompetent person unless represented in the action by a guardian ad litem who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the motion or application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties if a proper demand therefor has been made pursuant to Rule 38 and not withdrawn, or when and as required by any statute. Pursuant to Rule 5(a), notice of any trial or hearing on unliquidated damages shall also be given to parties in default by first class mail to the last known address of such party whether or not such party has appeared in the action.
(3) Attorneys Fees. If a party seeks to recover attorneys fees in connection with a default judgment, a hearing pursuant to subdivision (b)(2) of this rule shall be required unless:

(i) the party seeking attorneys fees specifies in the motion for default judgment that such motion includes a request that the court award attorneys fees and also files an affidavit of attorneys fees;
(ii) notice of such motion and affidavit is provided to the defaulted party by first class mail to the last known address of such party; and
(iii) no objection is filed by the opposing party within 10 days of service of such motion and affidavit.
(4) Judgments After Service by Publication; Affidavit; Undertaking. In actions for the recovery of money only, when the summons has been served by publication and the defendant is a non-resident of the State, no default judgment shall be rendered unless the plaintiff or his agent at or before the time of making the application for judgment shall have been examined on oath respecting any payments that have been made to the plaintiff or any one for his use on account of the demand mentioned in the complaint, and shall show by affidavit that an attachment has been issued in the action and levied upon property belonging to the defendant, which affidavit shall contain a specific description of such property, and a statement of its value and shall be filed with proof of publication. Before judgment is rendered the plaintiff shall, unless the court in its discretion dispenses with the same, cause to be filed an undertaking in such amount as shall be ordered by the court with security to be approved by the court or the clerk thereof, that the plaintiff will abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under, or by virtue of, such judgment, in event the defendant or his representative shall apply and be admitted to defend the action and shall succeed in such defense.
(c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
(d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).
(e) Judgment Against the State and Certain Other Parties. No judgment by default shall be entered against the State of South Carolina or an officer or agency thereof, against minors, incompetents, or parties to a suit for divorce or annulment of marriage or against a party upon whom service of summons was made by publication, and who did not subsequently make appearance in the action, or in any in rem action, unless the claimant establishes his claim to relief by evidence satisfactory to the Court.

S.c. R. Civ. P. 55

These Rules 55(a) and 55(b)(1) are drawn from Federal Rule 55 with two changes. This Rule 55(a) requires that the Court enter all judgments by default and preserves Circuit Rule 15. Federal Rule 55(b) permits the Clerk to enter judgments by default for sums certain, if there has been no appearance, and if the defendant is not a minor or incompetent person; and that provision was deleted. The language directing the Clerk to enter the default upon the calendar and a reference to Rule 38, Jury Trial of Right, is added. These changes clarify, but do not change, the operation of the Rule. This Rule 55(b)(2) does not appear in the Federal Rule. It is added to preserve Circuit Court Rule 38, requiring attachment of property against which the money judgment may be collected, when defendant has not been personally served and does not appear in the action. Rules 55(c) and 55(d) are identical to the Federal Rules. Rule 55(e) has been modified to make reference to State government, and add all minors, incompetents, and divorce and annulment actions, to the category of cases in which the claimant must establish the claim by evidence in the event of default. Note to 1986 Amendment: This amendment includes in rem actions in those which the court takes proof on the value of the claim, to insure that a default judgment in any in rem action is limited to the value of the claim rather than the value of the property seized. Note to the 1998 Amendment: The language of Rule 55(b)(1) is new and is based on the federal rule. The phrase “liquidated damages” contained in the first sentence was added since this is the terminology which has traditionally been used in South Carolina. The last sentence relating to verified pleadings is not contained in the federal rule. The language of Rule 55(b)(2) is substantially the language of Rule 55(b)(1) prior to these amendments with the addition of the last sentence. The last sentence simply incorporates the notice requirements of Rule 5(a) into the text of this rule. Rule 55(b)(3) is new and has no counterpart in the federal rules. It provides a procedure for requesting attorneys fees as part of a default judgment. Rule 55(b)(4) is the language of Rule 55(b)(2) prior to these amendments. Note to 1999 Amendment: The 1998 Amendments to Rule 55 gave a clerk of court authority to enter default judgments in cases where judgment is sought for a liquidated amount or for a sum certain. These amendments remove that authority and provide that default judgments, regardless of the nature of the damages being sought, may only be entered by a judge.