Pleadings - Default

Question 1

What is the burden of proof for motion to default? What rule?

Answer 1

P has BOP to show D has failed to plea or defend

R.55

Question 2

What is the process for default judgment?

Answer 2

1. Motion to default
2. Clerk enters default
3. Entry of default judgment by clerk or court

Question 3

When does clerk enter default? What rule?

Answer 3

D has failed to plead or otherwise defend

R.55(a)

Question 4

Does the clerk have discretion to enter default?

Answer 4

No, must enter, not may

Question 5

Is entry of default the end of case?

Answer 5

No, just notation on docket

Question 6

What is the legal effect of entry of default (with regard to facts of complaint)?

Answer 6

Entry of default = admitting facts of complaint

Question 7

Does entry of default declare whether complaint’s allegations are legally sufficient?

Answer 7

No

Question 8

Does entry of default establish damages?

Answer 8

No

Question 9

When can clerk enter default judgment? What rule?

Answer 9

Only with sum certain

R.55(b)

Question 10

Sum certain

Answer 10

Specific or fixed amount of money owed to another person as stated in a contract

Question 11

When does court enter default judgment? What rule?

Answer 11

All cases other than sum certain

R.55(b)

Question 12

Are there award limits for default judgment under R.55?

Answer 12

No

Question 13

Does the court have discretion to enter default judgment?

Answer 13

Yes

Question 14

Can default judgment be entered sua sponte?

Answer 14

Yes

Question 15

When can motion to set aside entry of default be made? What rule?

Answer 15

1. Before judgment entered
2. After default
3. Because of good cause

R. 55(c)

Question 16

When must D be served notice for default judgment hearing? What rule?

Answer 16

If D makes appearance, must be served at least 7 days before hearing

R.55(b)(2)

Question 17

What does notice of hearing allow D to do?

Answer 17

Contest damages

Question 18

Reasons for ignoring complaint

Answer 18

1. Don’t understand need to respond
2. Can’t find or afford counsel
3. Judgment-proof

Question 19

Judgment-proof

Answer 19

Calculated against judgment or is otherwise subject to attack judgment later for legal reasons (like jurisdiction)

Question 20

If D fails to plead or otherwise defend, what must happen? What rule?

Answer 20

Clerk must enter default

R.55

Question 21

What must clerk enter default? What rule?

Answer 21

When D fails to plead or otherwise defend

R.55

Question 22

When may court set aside default?

Answer 22

Good cause

R.55

Question 23

Can court set aside final default judgment? What rule?

Answer 23

Yes

R.60(b)

Question 24

What must claimant do for default judgment to be entered? What rule?

Answer 24

Claimant must establish claim or right to relief by evidence that satisfies the court

R.55

Question 25

Can court correct clerical mistake? When? What rule?

Answer 25

Yes, whenever found in judgment

R.60

Question 26

Must court give notice to correct clerical mistake? What rule?

Answer 26

No

R.60

Question 27

Does court correct clerical mistake on motion or sua sponte? What rule?

Answer 27

Both

R.60

Question 28

When may court relieve party from final judgment? What rule?

Answer 28

1. Mistake, surprise, or neglect
2. Newly discovered evidence
3. Fraud
4. Void judgment
5. Judgment has been satisfied, released, or discharged
6. Another other reason that justifies relief

R.60

Question 29

When must motion for relief from judgment or order be made? What rule?

Answer 29

Within reasonable time

R.60

Question 30

Does a motion for relief from judgment or order suspend judgment’s finality or operation? What rule?

Answer 30

No

R.60

Question 31

What does appearance include?

Answer 31

Any actual formal appearance before court and any other action that clearly indicates that D intends to contest case on merits

Question 32

What is an example of D’s “appearance?”

Answer 32

D’s continued settlement negotiations