4.5 Motions for Judgment by Default

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2018 Ed.)

4.5 MOTIONS FOR JUDGMENT BY DEFAULT ²⁴⁷

4.501 Scope of Fed. R. Civ. P. 55. By using the term "party," the provisions of Fed. R. Civ. P. 55 apply whether default is entered in favor of a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. ²⁴⁸

As a general principle, default judgments are disfavored and should be avoided so that claims and defenses may be disposed of on their merits. ²⁴⁹ The court should resolve any doubts about granting relief from a default judgment in favor of adjudication on the merits. ²⁵⁰

4.502 First Step—Entry of Default. Before moving for judgment by default under either Fed. R. Civ. P. 55(b)(1) or (2), the clerk must enter the default pursuant to Fed. R. Civ. P. 55(a). ²⁵¹

The clerk will enter a party's default when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by the rules and that failure is shown by affidavit or otherwise. The clerk must examine the affidavits filed and find that they meet the requirements of Fed. R. Civ. P. 55(a). ²⁵²

Typically, a request for entry of default is filed along with an affidavit setting forth why the party is in default. In the usual case of a defendant failing to respond to a complaint, the request and affidavit should set forth:

A.	The date the complaint was filed;
B.	How and when each defendant was served;

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C.	The date the responsive pleading was due for each defendant; and
D.	An affirmative statement that no responsive pleading was filed within the time provided in the rules.

4.503 Motion for Judgment by Default. "Entry of default," however, "raises no protectable expectation that a default judgment will follow." ²⁵³ Rather, entry of default judgment is left to the sound discretion of the trial court. ²⁵⁴

After default has been entered, if "the plaintiff's claim is for a sum certain or a sum that can be made certain by computation," the clerk—upon the plaintiff's request, with a supporting affidavit showing the amount due—"must enter judgment for that amount and costs against a defendant." ²⁵⁵ Specifically, a default judgment may be entered by the clerk pursuant to Fed. R. Civ. P. 55(b)(1), upon the request of a plaintiff, when:

A.	The defendant has been defaulted for failure to appear;
B.	The defendant is not a minor or incompetent person;
C.	The claim is for a sum certain or for a sum that can, by computation, be made certain; and
D.	An affidavit is submitted setting forth the amount due.

In all other cases, the party entitled to a default judgment must apply to the court. ²⁵⁶ No judgment by default will be entered against a minor or incompetent person unless represented in the action by a general guardian, conservator, or other like fiduciary representative who has appeared in the case. ²⁵⁷ If the party against whom a default judgment is sought has appeared personally or by a representative, the party must be served with written notice of the application for default judgment at least seven days before the

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hearing. ²⁵⁸ Conversely, if a defaulting party has not appeared in the action, no notice is required.

Informal contact with opposing counsel is likely insufficient to constitute an "appearance." Ruling that a letter to opposing counsel was not an "appearance," the Eastern District of Virginia observed that "[a] party 'has appeared' in an action under Rule 55(b)(2) 'only where that party has actually made some presentation or submission to the district court in the pending action.'" ²⁵⁹

If needed to enter or effectuate a default judgment, the court may conduct hearings or make referrals, while preserving "any federal statutory right to a jury trial," for the following purposes:

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. 260

Magistrate judges may issue reports and recommendations to the district court concerning judgments by default pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72(b).

Pursuant to Fed. R. Civ. P. 8(b)(6), an allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required but the allegation is not denied. ²⁶¹

However, "a default is not treated as an absolute confession by the defendant of his lability and of the plaintiff's right to recover." ²⁶² While the

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"well-pleaded allegations of fact" are admitted as a consequence of a default, conclusions of law are not deemed admitted, and the court must make an independent determination whether the well-pleaded allegations support the relief sought in the action. ²⁶³

The district court is required to exercise sound judicial discretion in determining whether a judgment by default should be entered. Factors that may be considered include the amount of money involved, whether there are material issues of fact or other substantial issues of public importance, whether the grounds for default are clearly established, whether a judgment by default is a harsh result, and whether there would be good grounds to set aside the default. ²⁶⁴

It is unsettled in the Fourth Circuit whether a court should raise...