LAW 522-001 – Civil Procedure II

Default


Default is a failure to submit an answer within the time allowed.

A defendant in America has 21 days after being served to submit an answer or 60 days if he waived service under Rule 4(d). Rule 12(a)(1)(A).

The US government always gets 60 days. Rule 12(a)(2)

If a Rule 12 motion is filed, the deadline for an answer is postponed to 14 days after notice of the court's response. Rule 12(a)(4).

Entering a Default Judgment

A clerk must enter a default when the plaintiff requests it with an affidavit stating an amount of damages computable with certainty by the clerk and that the defendant defaulted. Rule 55(b)(1).

In all other cases, the court enters default after the plaintiff files a motion and serves the other side.

Setting Aside a Judgment

The court can only set aside a judgment for good cause as stated in Rule 60.

Federal Rule of Civil Procedure 60(b)

Grounds for Relief from a Final Judgment, Order, or Proceeding.

View on Legal Information Institute

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

  1. mistake, inadvertence, surprise, or excusable neglect;
  2. newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
  3. fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
  4. the judgment is void;
  5. the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
  6. any other reason that justifies relief.

A Rule 60(b) motion must be filed in a reasonable time. This is capped at one year for for Rule 60(b)(1–3), but not (4–6).