default judgment

Definition of default judgment

Further reading

Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. Federal Rule 37(b)(iii) also states that a balky plaintiff can be found in default and have his case dismissed if the plaintiff repeatedly fails to comply with things like court orders and discovery requests. The failure to take action is the default. The default judgment is the relief requested in the party's original petition, which is why initial pleadings are often so exaggerated.

Default can be compared to a forfeit victory in sports. In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint. If proof of damages is required, the court may schedule another hearing on that issue. A party can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.

United States

In the United States the law relating to a default judgment depends upon the jurisdiction within which the civil action was filed. State courts, United States Federal Courts, Tribal Courts and many Administrative Agencies have their own laws and local procedural rules relating to the granting and setting aside of a default judgment. The Federal Rules of Civil Procedure (Rules 55 and 60) are the basis for many procedures in default.

- Entry of default

Typically, the plaintiff (or cross-complainant, cross-plaintiff, counter-claimant, counter-plaintiff, third-party plaintiff, etc.) must show that service of process was effected on the defendant (cross-defendant, counter-defendant, cross-defendant, third-party defendant, etc.). This is typically achieved by the filing of an affidavit of service (also known as a proof of service), which gives enough information to allow the court to confirm that valid service has been accomplished. Typically the affidavit states, under oath or penalty of perjury, that service was effected on a named defendant, briefly describes how it was effected, names the person who made service, and gives the place and date service was effected. Once the requisite time to respond to the complaint has passed, the defendant is "in default"; this may be automatic,[6] or it may require the court clerk to enter the default (which may, in turn, require that the plaintiff request entry of the default).[7] Some defaults do not take effect until a set period of time after the clerk acts.[8] The clerk may have to give the defendant notice of his default, affording a chance to have the default vacated.[9] The entry of a default typically prevents the defaulted defendant from litigating his case or presenting evidence, and may excuse the other parties from giving him notice of further proceedings.[10] [edit] Relief from default A defaulted defendant may move the court from relief from his default,[11] but usually must do so promptly[12] and must provide "good cause"[13] for his failure to answer the complaint in time.[14] Often, part of the procedure for relief from default involves the defendant filing an answer to the complaint.[15] The defendant relieved from default may also be required to pay any extra costs and fees incurred by the plaintiff as a result of the delay in the defendant's filing his answer.[16] [edit] Default judgment Often, a certain additional time is required before a default judgment is permissible, and there may need to be additional notice to the defendant. Some states do not allow a default judgment to be entered against some defendants while other defendants are actively litigating the same case;[17] this is an application of the "one final judgment" rule. Others will allow "several judgment" (judgment with respect to some defendants at one time, and with respect to others at another time), at least under some circumstances.[18] United States law (specifically the Servicemembers Civil Relief Act) significantly restricts default judgments against members of the military services.[19] The law requires that before a default judgment may be entered, the plaintiff must make a certification as to the military service status of the defendant whose default is sought.[20] This certification may be made in the complaint, in a document filed with the proof of service, or later. Depending on the circumstances, other requirements may also apply.[21] Some jurisdictions allow a clerk of court to enter default judgment in certain simple cases.[22] These typically involve no exercise of judgment or discretion.[23] Otherwise, a default judgment must be issued by a judge, who may require the plaintiff to present proof of his claims.[24] [edit] Relief from default judgment A defendant who has had a default judgment entered against him may move for an order vacating the judgment.[25] Such a defendant must show "good cause" for his not having responded to the complaint. However, "good cause" is rather easy to meet, compared to other instances where "good cause" might be required. For example, mere "excusable neglect" is, at least at the federal level, a sufficient reason to vacate default judgments.[26] There are often time limits and other requirements.[27] A court entertaining a motion to vacate a default judgment often considers the reasons presented the defendant's failure to respond (such as "excusable neglect" and the prejudice that might be suffered by the other party).[28] The court must weigh these factors in light of two competing considerations: the general preference for cases to be decided "on the merits", and the important need for "finality in litigation."[29]

England and Wales

See default judgement.