Arizona

Civil Procedure

Civil Procedure

Rule 55 – Default; Default Judgment

(a) Entering a Default

(1)Generally. If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided in these rules, default may be obtained under the procedures set forth in this rule.
(2)Application for Default. A party seeking entry of default must file a written application that:

(A) identifies the party against whom default is sought;
(B) states that the party has failed to plead or otherwise defend within the time allowed by these rules;
(C) provides a current mailing address for the party claimed to be in default or, if none is known, so states;
(D) identifies any attorney known to represent the party claimed to be in default in the action in which default is sought or in a related matter, or states that no such attorney is known;
(E) if applicable, states that the party requesting the entry of default does not know the whereabouts of a party claimed to be in default, or the identity and address of an attorney known to represent the party in the action or a related action; and
(F) attaches a copy of the Rule 4(g) proof of service, establishing the date and manner of service on the party claimed to be in default.
(3)Notice.For any default entered under Rule 55(a)(1), notice must be provided as follows:

(A)To the Party. If the party requesting the entry of default knows the whereabouts of the party claimed to be in default, a copy of the application for entry of default must be mailed to the party claimed to be in default, even if the party is represented by an attorney who has entered an appearance in the action.
(B)To the Attorney for a Represented Party. If the party requesting the entry of default knows that the party claimed to be in default is represented by an attorney in the action in which default is sought or in a related matter, a copy of the application also must be mailed to that attorney, whether or not that attorney has formally appeared in the action. A party requesting the entry of default is not required to make affirmative efforts to determine the existence or identity of an attorney representing the party claimed to be in default.
(C)Time of Notice. Any required notice under Rule 55(a)(3)(A) or (B) must be mailed on the date that the application is filed, or as soon as practicable after its filing.
(D)To Other Parties. An application for entry of default must be served on all other parties who have appeared in the action, as provided in Rule 5(c).
(4)A Default’s Effective Date.The filing of the application for default constitutes the entry of default. A default is effective 10 days after the application for entry of default is filed.
(5)Effect of Responsive Pleading. A default will not become effective if the party claimed to be in default pleads or otherwise defends as provided in these rules within 10 days after the application for entry of default is filed.
(b) Default Judgment.

(1)Default Judgment by Motion Without Hearing.

(A)Generally. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the court-on the plaintiff’s motion, with an affidavit showing the amount due and without a hearing-may 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.
(B)Fee Award-Specific Amount Stated. A default judgment entered under Rule 55(b)(1) may include an award of reasonable attorney’s fees if the claim states a specific sum of attorney’s fees that will be sought if judgment is rendered by default, and:

(i) the amount of the award is supported by affidavit;
(ii) the award is allowed by law; and
(iii) the award does not exceed the amount demanded in the claim.
(C)Fee Award-No Specific Amount Stated. If the claim requests an award of attorney’s fees, but does not specify the amount of fees that will be sought if judgment is rendered by default, a default judgment entered under Rule 55(b)(1) may include an award of reasonable attorney’s fees only if:

(i) an affidavit establishes the reasonable amount of the fee award;
(ii) the defendant has not entered an appearance in the action; and
(iii) the award is allowed by law.
(2)Default Judgment by Hearing.

(A)Generally. If Rule 55(b)(1) does not apply, the party must apply to the court for a default judgment.
(B)Default Against a Minor or an Incompetent Person. A default judgment may be entered against a minor or incompetent person only if the person is represented by a general guardian, conservator, or other like fiduciary who has appeared.
(C)Notice. 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 for default judgment at least 3 days before the hearing. The notice must include the date, time, and place of the hearing.
(D)Hearings and Referrals. The court may conduct hearings or make referrals- preserving any right to a jury trial-when, to enter or effectuate judgment, it needs to:

(i) conduct an accounting;
(ii) determine the amount of damages;
(iii) establish the truth of any allegation by evidence; or
(iv) investigate any other matter.
(3)Conformity with the Demand. A judgment by default must not be different in kind from, or exceed in amount, that prayed for in a pleading’s demand for judgment.
(c) Setting Aside a Default or a Final 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 State. A default judgment may be entered against the State of Arizona or one of its officers or agencies only if, after a hearing, the claimant establishes a claim or right to relief by evidence that satisfies the court.
(e) Plaintiffs, Counterclaimants, and Cross-claimants. The provisions of Rule 55 apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a crossclaim or counterclaim.

Ariz. R. Civ. P. 55

Amended effective January 1, 2017; amended August 31, 2017, effective January 1, 2018; amended August 26, 2020, effective January 1, 2021.

Comment

2015 Amendment to Rule 55(b)

This amendment clarifies when a defendant has a right to notice and a hearing if the plaintiff’s claim is for a sum certain or for a sum that can be made certain by computation. Under the amendment, a defendant who has been defaulted on such a claim under Rule 55(b)(1), but who makes a post-default appearance, is not entitled to notice and a hearing before judgment may be entered.

State Bar Committee Note 1984 Amendment to Rule 55(b)

The amendment to Rule 55(b)(1) is intended to avoid the result suggested by dicta in Monte Produce, Inc. v. Delgado, 126 Ariz. 320, 614 P.2d 862 (App. 1980), that a default judgment including attorneys’ fees may not be obtained by motion without a hearing unless the amount of attorneys’ fees is liquidated. The amendment is intended to permit the court to consider and rule upon the issue of attorneys’ fees by motion, even though it may be an unliquidated claim, where the complaint gives notice of an amount sought in the event of default [or if the award is allowed by law and supported by affidavit, and the defendant has not entered an appearance in the action.] The amendment does not attempt to change the substantive law in regard to liquidated or unliquidated damages.