Default Judgment and Dismissal for Want of Prosecution

AuthorJennifer Duncan-Brice
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.
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
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
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
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

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