MOTIONS/APPLICATIONS/REQUESTS FOR ENTRY OF DEFAULT. Federal Jurisdictions: Fed. R. Civ. P. Rule 55.
Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.
MOTIONS/APPLICATIONS/REQUESTS FOR ENTRY OF DEFAULT
(a) Entering a Default. 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.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b).
◘ Serve the unanswering Defendant with the Request for Entry of Default. ◘ Courts will not enter a default judgment if any of the following exists: - The time for the defendant to respond has not expired. - An answer, demurrer, notice of motion to strike, notice of motion to transfer, notice of motion to dismiss, notice of motion to quash service of summons or to stay or dismiss the action, or notice of filing a writ of mandate. - The Proof of service does not indicate that the defendant was properly served. ◘ Courts may not enter a default judgment if any of the following exists: - The names of the defendant(s) are not the same as the names on the complaint or any amendment. - Proof of service of statement of damages has not been filed when the complaint is for personal injury or wrongful death action (using Judicial form CIV 050). - Proof of service of statement of damages has not been filed when the complaint is requesting punitive damages.
Under California Code of Civil Procedure section 585(d), a party may submit an affidavit to support the Application for Entry of Default Judgment.◘ You must provide clear and concise evidence of every element in your cause of action to prove to the judge why you deserve a judgment. ◘ For example, if your cause of action is for negligence, you must prove:Affidavit may be filed on pleading paper or the judicial form: http://courts.ca.gov/documents/mc025.pdf
2. Statement of facts :a. Include when matter was originally filed.b. When opposing party was served with Summons and Complaint. c. Include the declaration of service as exhibit.d. State that opposing party failed to Answer within 20 days as required by CR 12(a)(1). If defendant does appear state it in facts. e. If applicable State when you notified opposing partyor their counsel of their failure to file Answer and request that they file Answer within 5 days of correspondence. f. State if there was any response or agreement from OA or defendant to file Answer and ultimately how they failed. g. If extra time is granted state that the date came and left without any production of outstanding discovery.
Apply the facts to CR 55:
For example: Here the summons and complaint was properly served on _____________. Over twenty days have elapsed since the Defendants were served and the Defendant has failed to appear, plead or otherwise defend against the Plaintiffs’ complaint. Because the Defendants have failed to appear, plead, or otherwise defend this matter in a timely manner as proscribed by the Washington Rules, the Plaintiff therefore is entitled to an Order of Default and Entry of Judgment.