Disposition without trial - Default Flashcards
What are you trying to do with disposition without trial?
How do I get rid of the case?
Four Methods of Disposition Without Trial
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- Default Judgment FRCP 55
2.Dismissal (Voluntary or Involuntary) FRCP 41 and FRCP 12(b)
- Settlement
- Summary Judgment FRCP 56
What happens if the Defendant (or any defending party) fails to defend the lawsuit?
Has the defendant failed to plead to or otherwise defend against a claim seeking __________ __________ from that party? (You can only get default when seeking _________ ________ against someone.)
By affidavit (or otherwise), has that failure been shown to the court clerk?
The ______ must enter “_________” against the defendant (or other defending party) FRCP 55(a).
affirmative relief
affirmative relief
clerk
default
(a) Entering 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.
What rule?
FRCP 55
Upon entry of default, the defaulting party is deemed to have __________ _______ ________ ____________ allegations against it and to have forfeited all defenses other than lack of jurisdiction, proper service, or a cognizable claim for relief.
A default may be_______ _____ (i.e., vacated) upon a showing of good cause. Rule 55(c).
admitted all well-pleaded
set aside
Is the defaulting party the United States or a federal officer or agency? If so, only the _________ may enter default judgment, and only if the claimant establishes a claim or right to relief by evidence that satisfies the court. Rule 55(d).
judge
Default Against the United States
(d.) Judgement 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.
What rule?
FRCP 55
Is the defaulting party an absent U.S. military serviceperson? Only the _______ may enter the default judgment, and only if the interests of the defaulting party are properly represented. In certain cases, the litigation may even be stayed.
judge
Applies to any civil action or proceeding in which the defendant does not make an appearance.
Servicemembers’ Civil Relief Act
The plaintiff must include in an affidavit either that the defendant who did not make an appearance is either not in the active military service or that the plaintiff does not know whether the defendant is in active military service.
Servicemembers’ Civil Relief Act
Limits the ability of the court to impose default judgment against someone in active military service.
Servicemembers’ Civil Relief Act
Is the defaulting party a minor or incompetent person? Only the _______ may enter the default judgment, and only if the interests of the defaulting party are properly represented. Rule 55(b)(2).
judge
No default judgment entered by the clerk against a “___________ or ________ _________ .” FRCP 55(b)(1).
minor or incompetent person
Default judgment entered by the court against “a minor or incompetent person” only if they are “____________ by a __________ _________, _________, or other like fiduciary duty who has appeared. FRCP 55(b)(2).
If a party has appeared personally or through a representative, the party must be served with written notice of the application to the court at least 7 days before the hearing.
Other statutes may impose limits on default judgment.
represented
general guardian
conservator
Does the claim seek a sum certain (or a sum that can be made certain through a mere computation?
Yes: If supported by an affidavit showing the amount due, the______ ____ _______must enter the default judgment. Rule 55(b)(1).
clerk of court
If the plaintiff’s claim is for a _____ ________ or a sum that can be made _______ ____ __________.
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 FRCP 55(b)(1).
sum certain
certain by computation
Does the claim seek a sum certain (or a sum that can be made certain through a mere computation?
NO: Only the______may enter the default judgment Rule 55(b)(2).
judge
In all other cases the party must_______ _____ ____ _______ for a default judgment. The court may conduct hearings or make referrals. when, to enter or effectuate judgment, it needs to [conduct an accounting, determine the amount of damages, establish the trust of any allegation by evidence, or investigate any other matter.] FRCP 55(b)(2)
i.e., not a sum certain or not a sum that be made certain by computation or has not appeared.
apply to the court
In all other cases the party must apply to the court for a default judgment. The court may conduct hearings or make referrals. when, to enter or effectuate judgment, it needs to [conduct an accounting, determine the amount of damages, establish the trust of any allegation by evidence, or investigate any other matter.] FRCP 55(b)(2).
i.e., not a sum certain or not a sum that be made certain by computation or has not appeared.
Examples include: ______ and __________, ________ of _______ of _________, other ________ __________.
Equitable Relief (___________ or _______ ________)
pain and suffering
loss of enjoyment of life
unliquidated damages
injunction or declaratory judgment
________ ___________ entered by a judge are always _____________.Where the judge would need to conduct an accounting, compute damages, decide evidence, or otherwise investigate, a hearing may be convened. Rule 55(b)(2).
Default Judgments
Discretionary
A default judgment may be set aside (i.e., vacated) upon a showing of both (1) _______ ________ and (2) a _______ under Rule ______. Rule 55(c).
good cause
a basis under Rule 60(b).
Standard for Setting Aside Entry of Default
Standard: “_______ _________ _______-”
good cause shown
“When deciding whether to set aside an _____ ____ _______, a district court should consider whether the moving party has a meritorious defense, whether its acts with reasonable promptness, the personal responsibility of the defaulting party, the prejudice to the party, whether there is a history of dilatory action, and the availability of sanctions less drastic.”
entry of default
Strong preference that __________ be avoided and that claims be disposed of on the merits.
default
________ ________ is a matter of the courts discretion.
good cause
“Good Cause Shown” Factors
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- Whether the moving party has a meritorious defense
“Good Cause Shown” Factors
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- Whether the moving party has acted with reasonable promptness
“Good Cause Shown” Factors
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- The personal responsibility of the moving party
“Good Cause Shown” Factors
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- The prejudice to the non-moving party
“Good Cause Shown” Factors
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- Whether there is a history of dilatory action
“Good Cause Shown” Factors
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- The availability of sanctions less drastic
Whether the moving party has a meritorious defense – valid defense. They actually have a defense to assert here.
What does this refer to?
Good Cause Shown
Whether the moving party has acted with reasonable promptness – when they found out about the lawsuit, what did they do?
What does this refer to?
Good Cause Shown
The personal responsibility of the moving party – was it actually there fault that they didn’t plead?
What does this refer to?
Good Cause Shown
The prejudice to the non-moving party – how bad is this going to be? 1M in the case above is pretty prejudicial.
What does this refer to?
Good Cause Shown
Whether there is a history of dilatory action. – is this a pattern. Do they step back and wait or is this a one off.
What does this refer to?
Good Cause Shown
The availability of sanctions less drastic – is there something else we can do than enter a default judgment. Ex. If P is going to have to go back and re-litigate motions can we make the (d) pay for that?
What does this refer too?
Good Cause Shown
Acts that show an _________ to ________ have frequently prevented a default [judgment] even though not connected to any particular rule.
intent to defend
