Two-Step Default Process

Clerk's Entry of Default

Two-Step Default Process

Rule 55 sets up two stages between a defendant's silence and a default judgment, and the clerk controls the first.¹ Under Rule 55(a), 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.² The second stage is separate. After the clerk has entered the default, the opposing party may seek a default judgment from the court, although the clerk may enter the judgment against a non-appearing defendant when the plaintiff's claim is for a sum certain and the defendant is neither a minor nor an incompetent person.³ Rule 55(c) lets the court set aside an entry of default for good cause.⁴

A missed deadline starts the default process. After service of the summons and complaint, the defendant has 21 days to serve a responsive pleading.⁵ The defendant can answer, admitting or denying the allegations of the complaint, or can first raise certain objections by motion, such as a motion to dismiss for lack of personal jurisdiction or improper venue.⁶ A defendant who does neither has failed to plead or otherwise defend, and the plaintiff may bring that failure to the clerk's attention and seek an entry of default.⁷ That entry is distinct from the default judgment that may follow it.⁸

The plaintiffs in Rose City Glass show how the sequence runs from silence to judgment. They sued on August 7, 2009, to recover delinquent contributions to the Funds and served the complaint on September 10, 2009. The defendant had not responded by the time the court ruled, and the court granted the plaintiffs' motion for default judgment and awarded $26,354.76 in damages.⁹ Another court records the clerk's stage in its plainest form. The defendant, Lacey, had been served under Rule 4(e) nearly three months earlier and had never answered or otherwise appeared. On the plaintiffs' motion, the clerk entered default for failure to plead or otherwise defend on December 13, 2006, and mailed a copy of the entry to the address where process had been served.¹⁰

Webster Industries, Inc. v. Northwood Doors, Inc. shows the position a court occupies once the clerk's work is done. The clerk had entered the default of three defendants under Rule 55(a), which the court described as completing the first step in the two-step process toward default judgment. That left the court a choice at the second step: enter default judgment under Rule 55(b)(2), or set the entry aside under Rule 55(c).¹¹

A clerk's entry of default looks official but decides nothing about the merits. It is a notation by the clerk that records the fact that the party failed to plead or otherwise defend.¹² As one court put it, an entry of default is not, as such, a judgment; it merely permits the plaintiff to move for a default judgment under Rule 55(b)(2), assuming the default is not set aside under Rule 55(c).¹³ The entry is a step toward a judgment and is not itself an enforceable judgment, so a plaintiff who holds only the entry has nothing to enforce.¹⁴

Rule 55 divides the work along a real difference between the two questions. Whether the party responded is a matter of record, so Rule 55(a) says the clerk must enter default once the failure is shown, and the entry records that fact.¹⁵ Whether the silent party should lose is a question for the court. A defaulting party admits the facts alleged in the complaint, but whether those facts establish liability is a question of law, and the court cannot enter a default judgment unless the complaint states a claim for relief.¹⁶ The clerk steps into the judgment stage only in the narrow case of a sum certain against a defendant who is neither a minor nor an incompetent person.¹⁷

The gap between the stages also protects the defendant. Because Rule 55 provides two steps, the defendant has the opportunity to move the court to set the default aside before default judgment is entered.¹⁸ Default judgments are a drastic action because they confront the judicial preference for deciding cases on the merits, especially when the defendant has otherwise been diligent.¹⁹

The sections that follow take Rule 55(a) phrase by phrase: what it means to fail to plead or otherwise defend, what a claim for affirmative relief covers, how the failure must be shown, and why the clerk's duty is mandatory. They then turn to what an entry does and does not decide, and they close with the move from entry to judgment.