Default Judgment and Dismissal for Want of Prosecution

• Author: Jennifer Duncan-Brice
• Pages: 1165-1198

DEFAULT JUDGMENT,

DISMISSAL

31-1

CHAPTER 31

DEFAULT JUDGMENT AND DISMISSAL

FOR WANT OF PROSECUTION

QUICK VIEW

Def‌inition: A judgment by default may be obtained when a party against whom relief is sought fails to plead or oth-

erwise defend the action, or as a sanction for the party’s failure to comply with discovery rules or orders. Conversely,

a complaint may dismissed for want of prosecution by the plaintiff.

Scope of Chapter: The nature of and grounds of judgment by default; how to obtain a default judgment; how to vacate

or set aside a default judgment. Nature, purpose, and requirements for dismissal for want of prosecution.

Strategies and Tactics:

• To avoid default, a defendant must be vigilant in meeting deadlines for appearance and responsive

pleadings, and in cooperating in discovery.

• A plaintiff seeking to obtain entry of a default must be prepared to establish jurisdiction over defendant

and to show facts entitling plaintiff to this drastic form of relief.

• If default is entered, a defendant must act quickly to seek relief from the order by motion or petition.

Statutes and Rules: 735 ILCS 5/2-1301(d) (entry of default judgment); 735 ILCS 5/2-1301(e) (vacating default judgment

within 30 days of entry); 735 ILCS 5/2-1302 (notice of entry of default order); 5/2-1401 (vacating default order after 30

days); SCR 219 sanctions for noncompliance with discovery order or rule); SCR 105 (additional relief against parties in default).

Related Topics: Personal Jurisdiction, Ch 7; Summons and Service of Process, Ch 9; Motion Practice, Ch 14.

TABLE OF CONTENTS

I. DEFAULT JUDGMENT

A. In General

§31:01 Nature and Purpose

§31:02 When Default Judgment May Be Awarded

§31:03 Trial Court’s Discretion

§31:04 Importance of Issue May Affect Court’s Ruling

§31:05 Default Order

B. Default Judgment for Failure to Appear

1. In General

§31:10 Failure to Appear or File Responsive Pleading

§31:11 Failure to Appear Must Be Clear From Record

§31:12 Time for Entry of Default

§31:13 Court Must Have Personal Jurisdiction

DEFAULT JUDGMENT,

DISMISSAL

Illinois Pretrial Practice 31-2

§31:14 Default Judgment Based on Substituted Service

§31:15 Complaint Must State a Cause of Action

§31:16 Defendant Must File a Formal Response

§31:17 Automatic Defaults

§31:18 Not for Failure to Appear at Trial

§31:19 Judgment on the Pleadings Distinguished

2. Amended Pleadings

§31:30 Failure to Respond to Amended Pleading

§31:31 Amended Ad Damnum Clause

3. Co-defendants

§31:40 Effect on Co-Defendants

§31:41 Inadvertent Failure of Co-Defendants to Answer

4. Withdrawal of Appearance

§31:50 After Withdrawal of Appearance

§31:51 Proceeding Stayed

5. Denial of Motion to Dismiss

§31:60 After Denial of Motion to Dismiss

§31:61 After Denial as to Some Counts

C. Default Judgment as Discovery Sanction

§31:70 Discovery Sanctions May Include Default Judgment

D. Obtaining Default Judgment

1. Relief Available

a. Amount Sought in Complaint

§31:80 Limited to Amount Sought in Complaint

§31:81 Determining Amount Allowed Under Prayer

§31:82 Entitled to Hearing on Damages

b. Further Relief Available With Notice

§31:90 Judgment May Exceed Prayer if Notice Served

§31:91 Methods of Service

2. Order of Default

§31:100 Determines Liability, But Not Damages

§31:101 Not a Strict Prerequisite to Default Judgment

§31:102 Procedure

§31:103 Seek Entry Promptly

§31:104 Required Showing

3. Notice of Entry of Order of Default

§31:110 Attorney Required to Give Notice of Entry

§31:111 Notice Issued by Clerk

4. Proof of Damages

§31:120 Be Prepared to Prove Allegations

§31:121 Plaintiff Has Burden of Proof

§31:122 Assessment of Damages

§31:123 Notice of Hearing on Damages Not Required, But Advisable

§31:124 Requirements for Introducing Medical Bills

E. Operation and Effec t of Default Judgment

§31:130 Validity of Judgment

§31:131 Res Judicata Attaches

§31:132 Subject to Motion to Vacate

§31:133 Revestment Doctrine

§31:134 Single Recovery Principle

§31:135 Effect on Other Defendants

II. VACATING A DEFAULT JUDGMENT

A. In General

§31:140 §1301(e) Motion Filed Within 30 Days After Judgment

§31:141 §1401 Motion Filed More Than 30 Days After Judgment

DEFAULT JUDGMENT,

DISMISSAL

31-3 Default Judgment and Dismissal for Want of Prosecution

§31:142 Stay of Execution

§31:143 Final Order

B. §1301 Relief

1. Bases for Relief

§31:150 Liberal Policy

§31:151 Meritorious Defense and Reasonable Excuse Not Required

§31:152 Failure to Move to Vacate Waives Right to Further Relief

§31:153 Factors Considered

§31:154 Relief Not Automatic

2. Time to Move

§31:160 When §1301 Motion Must Be Brought

3. Motion to Vacate

§31:170 Procedure and Notice

§31:171 Aff‌idavit

§31:172 Burden on Petitioner

§31:173 Scope of Hearing

§31:174 Court’s Discretion

§31:175 Successive Motions

§31:176 Service by Mail

4. Terms and Conditions

§31:180 Reasonable Terms and Conditions

§31:181 Reinstatement of Judgment

C. §1401 Relief

1. Bases for Relief

a. In General

§31:190 Meritorious Defense and Due Diligence

§31:191 No Effect on Right to Relief From Void Judgment

b. Meritorious Defense

§31:200 Assert Suff‌icient Facts

§31:201 Conclusory Allegations Insuff‌icient

§31:202 Fairness or Fraud

§31:203 Allegations in Aff‌idavit Taken as True

c. Due Diligence in Trial Court

i. Party’s Lack of Diligence

§31:210 Excusable Mistake, Surprise, or Neglect

§31:211 Excusable Mistake

§31:212 Ignoring Process or Summons Insuff‌icient

§31:213 Trying to Settle Insuff‌icient

§31:214 Failure of Attorney to Inform Petitioner

§31:215 Relitigate Issues

ii. Mistake, Surprise, or Excusable Neglect of Counsel

§31:220 Defendant Normally Bound by Counsel’s Negligence

§31:221 Illness of Attorney

§31:222 Excusable Off‌ice Negligence

§31:223 Failure to Plead

§31:224 Absence of Party or Counsel Caused by Another Trial

§31:225 Reliance on Agreement With Plaintiff

iii. When Due Diligence Not Required

§31:230 Substantial Justice Standard

§31:231 Default Erroneously Entered

d. Due Diligence in Pursuing Petition

§31:240 §1401 Petition Must Be Diligently Pursued

2. Procedure

a. Time to Move

§31:250 When §1401 Petition Must Be Brought