Disposition without trial - Default

Question 1

What are you trying to do with disposition without trial?

Answer 1

How do I get rid of the case?

Question 2

Four Methods of Disposition Without Trial
1.
2.
3.
4.

Answer 2

1. Default Judgment FRCP 55

2.Dismissal (Voluntary or Involuntary) FRCP 41 and FRCP 12(b)

3. Settlement
4. Summary Judgment FRCP 56

Question 3

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).

Answer 3

affirmative relief

affirmative relief

clerk

default

Question 4

(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?

Answer 4

FRCP 55

Question 5

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).

Answer 5

admitted all well-pleaded

set aside

Question 6

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).

Answer 6

judge

Question 7

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?

Answer 7

FRCP 55

Question 8

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.

Answer 8

judge

Question 9

Applies to any civil action or proceeding in which the defendant does not make an appearance.

Answer 9

Servicemembers’ Civil Relief Act

Question 10

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.

Answer 10

Servicemembers’ Civil Relief Act

Question 11

Limits the ability of the court to impose default judgment against someone in active military service.

Answer 11

Servicemembers’ Civil Relief Act

Question 12

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).

Answer 12

judge

Question 13

No default judgment entered by the clerk against a “___________ or ________ _________ .” FRCP 55(b)(1).

Answer 13

minor or incompetent person

Question 14

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.

Answer 14

represented

general guardian

conservator

Question 15

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).

Answer 15

clerk of court

Question 16

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).

Answer 16

sum certain

certain by computation

Question 17

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).

Answer 17

judge

Question 18

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.

Answer 18

apply to the court

Question 19

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 _______ ________)

Answer 19

pain and suffering

loss of enjoyment of life

unliquidated damages

injunction or declaratory judgment

Question 20

________ ___________ 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).

Answer 20

Default Judgments

Discretionary

Question 21

A default judgment may be set aside (i.e., vacated) upon a showing of both (1) _______ ________ and (2) a _______ under Rule ______. Rule 55(c).

Answer 21

good cause

a basis under Rule 60(b).

Question 22

Standard for Setting Aside Entry of Default
Standard: “_______ _________ _______-”

Answer 22

good cause shown

Question 23

“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.”

Answer 23

entry of default

Question 24

Strong preference that __________ be avoided and that claims be disposed of on the merits.

Answer 24

default

Question 25

________ ________ is a matter of the courts discretion.

Answer 25

good cause

Question 26

“Good Cause Shown” Factors
1. ?
2.
3.
4.
5.
6.

Answer 26

1. Whether the moving party has a meritorious defense

Question 27

“Good Cause Shown” Factors
1.
2. ?
3.
4.
5.
6.

Answer 27

2. Whether the moving party has acted with reasonable promptness

Question 28

“Good Cause Shown” Factors
1.
2.
3. ?
4.
5.
6.

Answer 28

3. The personal responsibility of the moving party

Question 29

“Good Cause Shown” Factors
1.
2.
3.
4. ?
5.
6.

Answer 29

4. The prejudice to the non-moving party

Question 30

“Good Cause Shown” Factors
1.
2.
3.
4.
5. ?
6.

Answer 30

5. Whether there is a history of dilatory action

Question 31

“Good Cause Shown” Factors
1.
2.
3.
4.
5.
6. ?

Answer 31

6. The availability of sanctions less drastic

Question 32

Whether the moving party has a meritorious defense – valid defense. They actually have a defense to assert here.

What does this refer to?

Answer 32

Good Cause Shown

Question 33

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?

Answer 33

Good Cause Shown

Question 34

The personal responsibility of the moving party – was it actually there fault that they didn’t plead?

What does this refer to?

Answer 34

Good Cause Shown

Question 35

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?

Answer 35

Good Cause Shown

Question 36

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?

Answer 36

Good Cause Shown

Question 37

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?

Answer 37

Good Cause Shown

Question 38

Acts that show an _________ to ________ have frequently prevented a default [judgment] even though not connected to any particular rule.

Answer 38

intent to defend