Pleadings - Default Flashcards
What is the burden of proof for motion to default? What rule?
P has BOP to show D has failed to plea or defend
R.55
What is the process for default judgment?
- Motion to default
- Clerk enters default
- Entry of default judgment by clerk or court
When does clerk enter default? What rule?
D has failed to plead or otherwise defend
R.55(a)
Does the clerk have discretion to enter default?
No, must enter, not may
Is entry of default the end of case?
No, just notation on docket
What is the legal effect of entry of default (with regard to facts of complaint)?
Entry of default = admitting facts of complaint
Does entry of default declare whether complaint’s allegations are legally sufficient?
No
Does entry of default establish damages?
No
When can clerk enter default judgment? What rule?
Only with sum certain
R.55(b)
Sum certain
Specific or fixed amount of money owed to another person as stated in a contract
When does court enter default judgment? What rule?
All cases other than sum certain
R.55(b)
Are there award limits for default judgment under R.55?
No
Does the court have discretion to enter default judgment?
Yes
Can default judgment be entered sua sponte?
Yes
When can motion to set aside entry of default be made? What rule?
- Before judgment entered
- After default
- Because of good cause
R. 55(c)
When must D be served notice for default judgment hearing? What rule?
If D makes appearance, must be served at least 7 days before hearing
R.55(b)(2)
What does notice of hearing allow D to do?
Contest damages
Reasons for ignoring complaint
- Don’t understand need to respond
- Can’t find or afford counsel
- Judgment-proof
Judgment-proof
Calculated against judgment or is otherwise subject to attack judgment later for legal reasons (like jurisdiction)
If D fails to plead or otherwise defend, what must happen? What rule?
Clerk must enter default
R.55
What must clerk enter default? What rule?
When D fails to plead or otherwise defend
R.55
When may court set aside default?
Good cause
R.55
Can court set aside final default judgment? What rule?
Yes
R.60(b)
What must claimant do for default judgment to be entered? What rule?
Claimant must establish claim or right to relief by evidence that satisfies the court
R.55
Can court correct clerical mistake? When? What rule?
Yes, whenever found in judgment
R.60
Must court give notice to correct clerical mistake? What rule?
No
R.60
Does court correct clerical mistake on motion or sua sponte? What rule?
Both
R.60
When may court relieve party from final judgment? What rule?
- Mistake, surprise, or neglect
- Newly discovered evidence
- Fraud
- Void judgment
- Judgment has been satisfied, released, or discharged
- Another other reason that justifies relief
R.60
When must motion for relief from judgment or order be made? What rule?
Within reasonable time
R.60
Does a motion for relief from judgment or order suspend judgment’s finality or operation? What rule?
No
R.60
What does appearance include?
Any actual formal appearance before court and any other action that clearly indicates that D intends to contest case on merits
What is an example of D’s “appearance?”
D’s continued settlement negotiations
