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Rule 55 – Default; Default Judgment

May 8, 2021 | Civil Procedure, Federal

(a) ENTERING A DEFAULT. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
(b) ENTERING A DEFAULT JUDGMENT.

(1)By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk-on the plaintiff’s request, with an affidavit showing the amount due-must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2)By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals-preserving any federal statutory right to a jury trial-when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(c) SETTING ASIDE A DEFAULT OR A DEFAULT JUDGMENT. The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).
(d) JUDGMENT AGAINST THE UNITED STATES. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.

28 APPENDIX U.S.C. § 55

As amended Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 29, 2015, eff. Dec. 1, 2015.

NOTES OF ADVISORY COMMITTEE ON RULES-1937 This represents the joining of the equity decree pro confesso ([former] Equity Rules 12 (Issue of Subpoena-Time for Answer), 16 (Defendant to Answer-Default-Decree Pro Confesso), 17 (Decree Pro Confesso to be Followed by Final Decree-Setting Aside Default), 29 (Defenses-How Presented), 31 (Reply-When Required-When Cause at Issue)) and the judgment by default now governed by U.S.C., Title 28, [former] §724 (Conformity act). For dismissal of an action for failure to comply with these rules or any order of the court, see rule 41(b).Note to Subdivision (a). The provision for the entry of default comes from the Massachusetts practice, 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, §57. For affidavit of default, see 2 Minn.Stat. (Mason, 1927) §9256.Note to Subdivision (b). The provision in paragraph (1) for the entry of judgment by the clerk when plaintiff claims a sum certain is found in the N.Y.C.P.A. (1937) §485, in Calif.Code Civ.Proc. (Deering, 1937) §585(1), and in Conn.Practice Book (1934) §47. For provisions similar to paragraph (2), compare Calif.Code, supra, §585(2); N.Y.C.P.A. (1937) §490; 2 Minn.Stat. (Mason, 1927) §9256(3); 2 Wash.Rev.Stat.Ann. (Remington, 1932) §411(2). U.S.C., Title 28, §785 (Action to recover forfeiture in bond) and similar statutes are preserved by the last clause of paragraph (2).Note to Subdivision (e). This restates substantially the last clause of U.S.C., Title 28, [former] §763 (Action against the United States under the Tucker Act). As this rule governs in all actions against the United States, U.S.C., Title 28, [former] §45 (Practice and procedure in certain cases under the interstate commerce laws) and similar statutes are modified insofar as they contain anything inconsistent therewith.

NOTES OF ADVISORY COMMITTEE ON RULES-1946 SUPPLEMENTARY NOTENote. The operation of Rule 55(b) (Judgment) is directly affected by the Soldiers’ and Sailors’ Civil Relief Act of 1940 ([former] 50 U.S.C. [App.] §501 et seq.) [now 50 U.S.C. 3901 et seq.]. Section 200 of the Act [former 50 U.S.C. Appendix, §520] imposes specific requirements which must be fulfilled before a default judgment can be entered (e.g., Ledwith v. Storkan (D.Neb. 1942) 6 Fed.Rules Serv. 60b.24, Case 2, 2 F.R.D. 539, and also provides for the vacation of a judgment in certain circumstances. See discussion in Commentary, Effect of Conscription Legislation on the Federal Rules (1940) 3 Fed.Rules Serv. 725; 3 Moore’s Federal Practice (1938) Cum.Supplement §55.02.

NOTES OF ADVISORY COMMITTEE ON RULES-1987 AMENDMENTThe amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES-2007 AMENDMENT The language of Rule 55 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.Former Rule 55(a) directed the clerk to enter a default when a party failed to plead or otherwise defend “as provided by these rules.” The implication from the reference to defending “as provided by these rules” seemed to be that the clerk should enter a default even if a party did something showing an intent to defend, but that act was not specifically described by the rules. Courts in fact have rejected that implication. Acts that show an intent to defend have frequently prevented a default even though not connected to any particular rule. “[A]s provided by these rules” is deleted to reflect Rule 55(a)’s actual meaning. Amended Rule 55 omits former Rule 55(d), which included two provisions. The first recognized that Rule 55 applies to described claimants. The list was incomplete and unnecessary. Rule 55(a) applies Rule 55 to any party against whom a judgment for affirmative relief is requested. The second provision was a redundant reminder that Rule 54(c) limits the relief available by default judgment.

COMMITTEE NOTES ON RULES-2009 AMENDMENT The time set in the former rule at 3 days has been revised to 7 days. See the Note to Rule 6.

COMMITTEE NOTES ON RULES-2015 AMENDMENT Rule 55(c) is amended to make plain the interplay between Rules 54(b), 55(c), and 60(b). A default judgment that does not dispose of all of the claims among all parties is not a final judgment unless the court directs entry of final judgment under Rule 54(b). Until final judgment is entered, Rule 54(b) allows revision of the default judgment at any time. The demanding standards set by Rule 60(b) apply only in seeking relief from a final judgment.