Showing the Default

A silent docket does not by itself produce a default. Rule 55(a) directs the clerk to enter a party's default when the party has failed to plead or otherwise defend and “that failure is shown by affidavit or otherwise.”¹ The earlier sections defined the failure by reference to the response deadline and to what the party filed before it ran out. This section takes up the other half of the trigger: how the failure reaches the clerk, and what must be true about service before there is any failure to show.

The requirement exists because an empty space where an answer would appear fits three different defendants equally well: one who has defaulted, one whose time has not yet run, and one who was never properly brought into the case. The clerk can tell them apart only with facts that live outside the docket, chiefly when and how the defendant was served. The rule therefore puts the showing on the party who wants the entry, and it keeps the defendant from being labeled in default on a hunch.

A complete request establishes two things: that the defendant was obliged to respond, which depends on service that satisfied the Rules, and that the defendant did not respond in time. The first subsection covers the form of the showing the clerk sees. The second covers the service beneath it.

Affidavit or Otherwise

Entry of default is an actual notation on the docket, the clerk-kept list of filings, hearings, and orders in the case, and the clerk does not make it automatically. Because Rule 55(a) conditions the entry on a showing, the plaintiff ordinarily must bring the default to the clerk's attention, as by filing an affidavit, which is a sworn written declaration of facts.²

The burden falls on the plaintiff because service happens outside the courthouse, and only the plaintiff and the person who delivered the papers know when the defendant's response period began. A filed showing reduces the clerk's task to comparing the calendar with the docket. It also leaves a record that the defendant can examine if it later asks the court to set the entry aside.

The first two statements fix the calendar, and the third closes the docket side of the comparison. A request that offers only the third tells the clerk that the defendant is silent, and silence before the deadline is not a default.

Virgin Records America, Inc. v. Lacey shows the pieces fitting together. The plaintiffs filed a return of service reflecting that a private process server had left the summons and complaint at Lacey's dwelling house or usual place of abode on October 26, 2006, and had given them to her son.³ Lacey never filed an answer or otherwise appeared, and on the plaintiffs' motion the clerk entered her default on December 13, 2006, for failure to plead or otherwise defend, and mailed a copy of the entry to the address where she had been served.⁴ The file supplied the date, the place, and the recipient of service before the clerk acted, so the clerk did not have to look beyond the papers or weigh the strength of the claim.

The words “or otherwise” widen the form the showing may take without removing the need for one. Proof other than a sworn affidavit can do the work, and a filed proof of service read against a docket with no response is the natural example, because it records the facts a sworn statement would recite. The reverse also holds: the file can prove service only if proof of service is in it.

Hypothetical Illustration

A process server's signed return, filed with the court, shows that the summons and complaint were delivered to a corporate defendant on April 8. On May 2 the docket shows no answer or motion, and the plaintiff files a short request for entry of default that points the clerk to the return and states that 21 days have passed with nothing filed. The file establishes the first two statements and the request supplies the third, so the clerk has what Rule 55(a) calls for even though the request is not a long sworn narrative.

In another case the plaintiff makes the same request on the same date, but no return of service was ever filed and nothing else records when or whether the defendant received the papers. However quiet the docket has been, the clerk has no basis for the first statement, and the request does not show a failure to respond.

State procedure follows the same pattern. Under California's section 585, subdivision (b), once a defendant has failed to answer and has not filed a demurrer or one of the other listed responses, the clerk enters the defendant's default upon the plaintiff's written application, and the plaintiff may then apply to the court for the relief demanded in the complaint.⁵

What the showing proves is silence, not liability. In a 1997 case against defendants who never appeared, the court had entered their default under Rule 55(a) and still made further inquiry before it would enter a default judgment.⁶ The Lacey court said the same: the clerk's entry and the defendant's failure to appear do not automatically entitle the plaintiffs to a default judgment, because a default is not “an absolute confession by the defendant of his liability and of the plaintiffs right to recover” but “merely an admission of the facts cited in the Complaint, which by themselves may or may not be sufficient.”⁷ One commentary compares the judgment stage to a phantom motion to dismiss for failure to state a claim under Rule 12(b)(6), which the court must decide before entering a default judgment.⁸ Those consequences belong to later sections. The point here is that the showing at entry is narrow: it addresses the failure to defend and says nothing about the merits.

Proper Service First

A defendant cannot fail to respond to a claim it was never effectively served with. Rule 55(a)'s phrase “failed to plead or otherwise defend” presupposes a duty to respond, and under the Rules that duty begins with service.¹⁰ The clerk's entry therefore rests on two premises: that the claim was properly brought before the party, and that the party then stayed silent past the deadline. Proof of silence means little if the first premise is missing. What counts as effective service is a separate subject. This subsection asks only what the lack of it does to an entry of default.

The requirement follows from what default answers. It responds to a party who had the chance to contest a claim and passed it up, and a defendant who was never told of the suit has passed up nothing. Courts therefore insist on proof of proper service in the record before they will entertain a motion for a default judgment, because it would be unfair to enter judgment against a defendant who was never informed of the suit.¹¹ The same source marks the limit of the principle: courts do not refuse a default judgment merely because the defendant may have defenses, even defenses on the merits.¹² The inquiry looks to service, not to who is likely to win. It also asks for proper service, not actual notice, because proper service does not guarantee or require that the papers reach the defendant.¹³

Webster Industries, Inc. v. Northwood Doors, Inc. shows what happens when the service beneath an entry fails. The clerk had entered the defaults of several defendants, including Superior Dimension and Doors, L.L.C., China Hardwood Import Products, L.L.C., and Andrew Richey. That completed the first step of the two-step process, and the question for the court was whether to take the second step by entering judgment under Rule 55(b)(2) or to set the entry aside under Rule 55(c).¹⁴ The plaintiffs had filed an Affidavit of Publication detailing the dates on which the summons ran in the Duluth News Tribune. The defendants answered that the publication complied with neither the Minnesota nor the Iowa rules, and that this case fell within none of the categories in which Minnesota Rule 4.04 permits service by publication.¹⁵ The plaintiffs admitted that their notice did not run in the county where the action was filed. They reasoned that the case was by then in federal court, and that the newspaper they chose was more likely to give actual notice than one in Worth County or Woodbury County.¹⁶ Their alternative claim of “personal” service under Iowa Rule 1.306, which allows “alternate methods” of service, failed because no judge of the court had prescribed any alternate method by order.¹⁷ An affidavit that documents service the rules do not recognize cannot supply the showing Rule 55(a) requires.

The court held that the defendants in question had not been effectively served, and drew the consequence in the rule's own words: it did not appear “by affidavit or otherwise” that any such defendant had “failed to plead or otherwise defend as provided by these [Federal Rules of Civil Procedure].” The entry was therefore improper, and good cause existed to set it aside under Rule 55(c).¹⁸ The court quoted an earlier wording of the rule, and the current text is shorter, but the duty to respond still comes from the Rules. The reasoning ran through service, not through why the defendants stayed away.

The plaintiffs also argued that there was nothing for the court to reconsider, because the clerk, not the court, had entered the default.¹⁹ The court answered with the text of Rule 55(c), which provides that for good cause shown the court may set aside an entry of default.²⁰ That follows from how entry works. The clerk acts on the showing the plaintiff brings, so an entry is only as sound as that showing, and the clerk's signature protects the plaintiff when the showing never established a duty to respond.

The defect was repairable, and the court said how far its order went. It gave the plaintiffs an additional period to attempt service, but cautioned that the extension was in no way permission to use any particular method, and that it would rule on a request to use a specific method only on a motion in full compliance with applicable law.²¹ The defendants had said they would file an answer if the plaintiffs complied with the Iowa and Minnesota provisions for serving corporations through the Secretaries of State.²² A plaintiff who suspects that service was defective is better off repairing it before asking for entry than defending a flawed entry afterward.

A different failure appears in Colleton Preparatory Academy v. Hoover Universal. Hoover Universal's default resulted when its resident agent for service of process failed to deliver the summons and complaint to it, and the court of appeals held that the district court abused its discretion in refusing to vacate the entry of default.²³ The papers had gone to the person the corporation had designated to receive them, so the question was no longer whether the entry was improper. It was whether a court should exercise its discretion to relieve a defendant of an entry that its own agent's lapse had produced. In Webster the record never showed effective service, so the entry failed at the outset. In Colleton service reached the corporation's designated agent, and the defendant's lack of actual notice went to relief from the entry under Rule 55(c).

For analysis, treat a defendant who “never answered” as not yet shown to be in default. Ask first whether the record shows effective service and a response period that has run. If service fails, the entry is improper even though the clerk made it. If service holds, the defendant's complaint that it never learned of the suit goes to a motion to set the entry aside for good cause.