Default Judgment and Dismissal for Want of Prosecution
Author | Jennifer Duncan-Brice |
Pages | 485-524 |
31-1 (Rev. 12, 9/16)
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 otherwise 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
ILLINO IS PRE TRIAL PRACTICE 31-2
§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
§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
31-3 DEFAULT JUDGMENT AND DISMISSAL FOR WANT O F PROS ECUTIO N
(Rev. 12, 9/16)
§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
E. Operation and Effect 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
§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
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