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Rule 55 – Default

May 13, 2021 | Civil Procedure, Mississippi

(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.
(b) Judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days’ notice. 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 with or without a jury, in the court’s discretion, or order such references as it deems necessary and proper.
(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, Counter-Claimants, and 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 counter-claim. In all cases a judgment by default is subject to the limitation of Rule 54(c).
(e) Proof Required Despite Default in Certain Cases. No judgment by default shall be entered against a person under a legal disability or a party to a suit for divorce or annulment of marriage unless the claimant establishes his claim or rights to relief by evidence, provided, however, that divorces on ground of irreconcilable differences may be granted pro confesso as provided by statute.

Miss. R. Civ. P. 55

Advisory Committee Notes

Before a default judgment can be entered, the court must have jurisdiction over the party against whom the judgment is sought; which also means that the party must have been effectively served with process.

Entry of default for failure to plead or otherwise defend is not limited to situations involving a failure to answer a complaint, but applies to any of the pleadings listed in M.R.C.P. 7(a).

The words “otherwise defend” refer to a Rule 12(b)(6) motion. See M.R.C.P. Rule 12(b). The mere appearance by the defending party will not keep the party from being in default for failure to plead or otherwise defend, but if the party appears and indicates a desire to contest the action, the court can exercise its discretion and refuse to enter a default judgment. This approach is in line with the general policy that whenever there is doubt whether a default judgment should be entered, the court ought to allow the case to be tried on the merits.

Rule 55(a) does not represent the only source of authority in these rules for the entry of a default that may lead to judgment. For example, Rule 37(b)(2)(C) and Rule 37(d) both provide for the use of a default judgment as a sanction for violation of the discovery rules.

When the prerequisites of Rule 55(a) are satisfied, an entry of default shall be made by the clerk without any action being taken by the court. The clerk’s function, however, is not perfunctory. Before the clerk can enter a default the clerk must examine the affidavits filed and be satisfied that the requirements of Rule 55(a) are met. See M.R.C.P. App. A, Forms 36, 37, and 38. These elements of default must be shown by affidavit or other competent proof.

The traditional requirement that “one had to file documents in or actually physically appear before a court” in order to make a Rule 55(b) appearance has been relaxed. If a party has made “an indicia of defense or denial of the allegations of the complaint,” such party is entitled to written notice of the application for default judgment at least three days prior to the hearing on such application. Wheat v. Eakin, 491 So. 2d 523, 525 (Miss. 1986). “[I]nformal contacts between parties may constitute an appearance.” Holmes v. Holmes, 628 So. 2d 1361, 1364 (Miss. 1993). The Mississippi Supreme Court has found an appearance when “the defendants either 1) served or sent a document to the plaintiff indicating in writing the defendant’s intent to defend, 2) filed a document with the court indicating in writing the defendant’s intent to defend, or 3) had counsel communicate to opposing counsel the defendant’s intent to defend.” American States Ins. Co. v. Rogillio, 10 So. 3d 463, 467 (Miss. 2009). A defendant who has filed an answer to the complaint but who has failed to file a timely answer to an amended complaint has entered an appearance for Rule 55(b) purposes. See Chassaniol v. Bank of Kilmichael, 626 So. 2d 127, 130-31 (Miss. 1993). A defendant whose attorney has written the plaintiff’s attorney in a divorce case and informed him that the defendant desired to settle the case if possible but intended to defend if no settlement could be reached has entered an appearance for Rule 55(b) purposes. See Holmes v. Holmes, 628 So. 2d 1361, 1364 (Miss. 1993). A defendant who has served a motion to set aside the entry of default has entered an appearance for Rule 55(b) purposes. See King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994). A defendant, cannot, however, enter a Rule 55(b) appearance before the case has been commenced. See Kumar v. Loper, 80 So. 3d 808, 814 (Miss. 2012). The defendant bears the burden of proving that an appearance has been made. See Dynasteel Corp. v. Aztec Indus., Inc., 611 So. 2d 977, 982 (Miss. 1992).

Although an appearance by a defending party does not immunize defendant from being in default for failure to plead or otherwise defend, it does entitle defendant to at least three days written notice of the application to the court for the entry of a judgment based on his default. This enables a defendant in default to appear at a subsequent hearing on the question of damages and contest the amount to be assessed against him. Damages must be fixed before an entry of default judgment and there is no estoppel by judgment until the judgment by default has been entered.

When a judgment by default is entered, it is treated as a conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as a judgment rendered after a trial on the merits. A judgment entered pursuant to Rule 55(b) may be reviewed on appeal to the same extent as any other judgment; however, an order denying a motion for a default judgment is interlocutory and not appealable. M.R.C.P. 54(a).

After entry of default by the clerk, defendant has no further standing to contest the actual factual allegations of the plaintiff’s claim for relief. If a defendant wishes an opportunity to challenge plaintiff’s right to recover, a defendant’s only recourse is to show good cause for setting aside the default under Rule 55(c) and, failing that, to contest the amount of recovery.

After entry of default by the clerk, the court must conduct an evidentiary hearing on the record to determine damages in cases in which the plaintiff seeks unliquidated damages. Capitol One Services, Inc. v. Rawls, 904 So. 2d 1010, 1018 (Miss. 2004). “[L]iquidated damages are set or determined by contract, while unliquidated damages are established by a verdict or award and cannot be determined by a fixed formula.” Id. (quoting Moeller v. American Guar. & Liab. Ins. Co., 812 So. 2d 953, 959-60 (Miss. 2002)). Pursuant to M.R.C.P. 54(c), a default judgment shall only order the type of relief sought in the demand for judgment (i.e., money damages, equitable relief, etc.), and shall not order money damages in an amount that exceeds the amount sought in the demand for judgment.

If a default has been entered, but a default judgment has not yet been entered, the defending party may move to set aside the entry of default “[f]or good cause shown” pursuant to M.R.C.P. 55(c). If a default judgment has been entered, the defendant may move to set aside the default judgment pursuant to M.R.C.P. 60(b). The standard for setting aside an entry of default pursuant to M.R.C.P. 55(c) is more liberal than the standard for setting aside a default judgment pursuant to M.R.C.P. 60(b). See King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994).

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