Default and Default Judgment

Question 1

Entering Default

Answer 1

Done (1) by clerk (2) at the request of a party (3) upon a showing that the other party is in default. (4) No notice is required.

Question 2

Entering Default Judgment by Clerk

Answer 2

(1) Claim must be for sum certain (no injunctions, no prejudgment interest)
(2) Claim must be against non-appearing defaulting party
(3) Claim not against minor/incompetent

Note: can’t split claims into by clerk and by court.

Question 3

Default Judgment Award

Answer 3

Must not differ in kind from or exceed in amount what is demanded in the pleadings.

Question 4

Setting Aside Default Judgment

Answer 4

Can set aside for good cause, considering:

• whether default was willful or due to D’s fault
• whether setting aside prejudices P
• whether D has meritorious defenses

Some courts also consider whether the party acts with reasonable promptness, history of dilatory action, and the availability of less drastic sanctions.

Question 5

Standard for Default

Answer 5

Failing to plead or otherwise defend (e.g. didn’t appear, missed deadlines, etc.)

Question 6

Appearing Parties

Answer 6

Waiving service is not an appearance.

Notice of removal/transfer is an appearance.

Question 7

Setting Aside Default

Answer 7

Factors:

• Defaulting party’s culpability
• Prejudice to non-defaulting party
• Defaulting party has a meritorious defense
• Time elapsed
• Whether there was proper service

Question 8

Entering Default Judgment by Court

Answer 8

Applies to appearing parties, minors/incompetents, and non-appearing parties w/o sum certain.

Standard:

(1) Guardian must have appeared and be present
(2) 7-day notice for appearing parties
(3) Hearing to determine damages (defaulting party can show up and contest DJ or just the amount, or demand jury)
(4) Court must make explicit findings and present their conclusions of law

Question 9

Defeating Default Judgment

Answer 9

Stricter here than in default setting.

(1) Due process violated (never got service)
(2) Void for lack of SMJ
(3) Excusable neglect (defaulting party is not culpable, no prejudice to non-defaulting party, and have a meritorious defense)

Question 10

Preclusive effect of default judgment

Answer 10

Claim preclusion: yes

Issue preclusion: no