Motions for Default Judgments

• Publication year: 1995
• Pages: 1295
• Citation: Vol. 24 No. 6 Pg. 1295

24 Colo.Law. 1295 Colorado Lawyer 1995.

1995, June, Pg. 1295. Motions for Default Judgments

---

1295

Vol. 24, No. 6, Pg. 1295

Motions for Default Judgments

by Sonja S. Rawls

Many motions for default judgments are denied because the motions are defective or incomplete Properly prepared, a motion for default judgment will save attorneys and their clients both time and expense. This article reviews the requirements for default judgments so that counsel can avoid the many pitfalls that exist in the preparation of motions for default judgment

Entry of Default Versus Default Judgment

One area of confusion concerns the distinction between an entry of default and an entry of default judgment. A default judgment is a remedy available to a non-defaulting party when another party has failed to plead or otherwise defend a claim in a timely manner. Default judgments may be entered against a defendant who has failed to answer, as well as against any other party who has failed to respond to a cross-claim, counterclaim or third party complaint. An entry of default alone admits only the nondefaulting party's right to recover and establishes liability on the part of the defendant, but does not fix the amount of damages.(fn1)

A default judgment cannot be entered on motion alone when damages are unliquidated or uncertain. Therefore, when damages are unliquidated, the motion should request only entry of default, rather than a default judgment. Once damages are actually proven, a default judgment can be entered. The clerk of the court may enter a default.(fn2) However, only the court can enter a default judgment.(fn3)

Except in cases involving unliquidated damages, a default and a default judgment may be requested simultaneously in a motion captioned "Motion for Default Judgment." There is no need to treat the entry of default judgment as a two-step process by filing two separate motions.

Before preparing a motion for default judgment, counsel should always review the court file to confirm that an answer or response has not been filed by the defendant. Pro se defendants frequently file answers and do not mail a copy to the plaintiff or plaintiffs counsel. If the defendant has filed an answer prior to the filing of a motion for default judgment, it is likely that the motion will be denied even when an answer or response is untimely.

C.R.C.P. 55 Requirements

Under Colorado Rules of Civil Procedure ("C.R.C.P.") 55, prior to the entry of either a default or a default judgment, there must be proof of service on the defendant in the court's file. The motion should contain a statement indicating that the defendant has failed to respond within twenty days after service for personal service occurring within the state of Colorado and within thirty days for out-of-state service or service by publication.(fn4) When service of process occurs before the complaint is filed, the complaint must be filed within ten days after service, or service will be ineffective for purposes of acquiring personal jurisdiction.(fn5)

When either a default or a default judgment is sought, and the defendant has filed an appearance, three days' written notice of the motion must be given to the defendant before default or default judgment can be entered. This notice is a jurisdictional prerequisite. Consequently, defaults or default judgments entered when such notice is not given are null and void.(fn6)

Because pro se parties frequently file less formal pleadings, a common issue that must be resolved is determining what constitutes an appearance. Colorado courts have been liberal in defining an appearance. For example, where a defendant filed a letter with the court after...