- Category: Judge Karlin
- Published on 14 May 2012
- Written by Judge Karlin
- Hits: 2028
GUIDELINES FOR OBTAINING A DEFAULT JUDGMENT
April 16, 2012
OBTAINING A DEFAULT JUDGMENT IS A TWO-STEP PROCESS:
Pursuant to Federal Rule of Civil Procedure 55, made applicable to adversaryproceedings by Federal Rule of Bankruptcy Procedure 7055, defaultencompasses two steps: (1) Entry of Default and (2) Default Judgment.1
STEP ONE: Entry of Default
Local Rule 5075.1 authorizes the bankruptcy clerk to sign and enter defaultin adversary proceedings. Entry of default is a procedural formality, and aprerequisite to the issuance of a default judgment.2 The party requesting anEntry of Default should file a “Motion for Entry of Default by the Clerk” withan affidavit, or other unsworn declaration made under penalty of perjury(e.g.,under 28 U.S.C. § 1746), attached. That Affidavit or Declaration shouldset forth the following facts:
Date of service of the complaint;
Date of issuance of the summons;
Date of filing of an affidavit of service;
Date a responsive pleading was due by virtue of Fed. R. Bankr. P.
7012 or any order of the Court;
Statement that no answer or motion has been received by thedate set by Fed. R. Bankr. P. 7012 or an order of the Court;
Statement that the party against whom default is requested isnot a minor or incompetent person, as required by Fed. R. Civ. P.
Statement, pursuant to the Servicemembers Civil Relief Act, “(A)
stating whether or not the defendant is in the military service
and showing necessary facts to support the affidavit; or (B) if theplaintiff is unable to determine whether or not the defendant is inthe military service, stating that the plaintiff is unable todetermine whether or not the defendant is in the military
1 10 James Wm. Moore et al., Moore’s Federal Practice § 55.10 (3d ed. 2001).
2 Id.; see also Garrett v. Seymour, 217 Fed. App’x 835, 838 (10th Cir. 2007) (“[T]heclerk had not entered default under Rule 55(a), a prerequisite for the entry of a defaultjudgment under Rule 55(b)(1).”).
service,”3 and why plaintiff is unable to so determine. In otherwords, what good faith effort have you made to determinemilitary status?4
A sample “Motion for Entry of Default by the Clerk” with attached supportingDeclaration is appended to these Guidelines as Attachment A.
STEP TWO: Default Judgment
The party seeking a default judgment should file a “Motion for DefaultJudgment” that sets forth that the party seeking default judgment is entitledto the relief sought based upon a proper showing of each element of eachclaim.5
No notice of the Motion for Default Judgment must be provided to thedefaulting Defendant unless the party has appeared personally or by arepresentative (and then did not file an answer or other responsive pleading).
If an appearance has been entered, you must serve a copy of the motion atleast 7 days before any hearing, as required by Fed. R. Civ. P. 55(b)(2).
Accordingly, the Motion for Default Judgment need not be “noticed” unlessthere has been an appearance. If there has been an appearance, the Courtwill wait the requisite 21 days for response to the dispositive motion,
pursuant to D. Kan. Rule 6.1(d)(2).
3 50 U.S.C. app. § 521 (emphasis added).
4 A party can request information from the Department of Defense (“DOD”) todetermine whether a person is in the military, and the DOD must issue a statement as tomilitary service. 50 U.S.C. app. § 582(b). Verification can be made electronically throughthe Defense Manpower Data Center (“DMDC”). The DMDC’s web site is located athttps://www.dmdc.osd.mil/scra/ows/home, and additional contact information is as follows:
Defense Manpower Data Center, Attn: Military Verification, 1600 Wilson Boulevard, Suite400, Arlington, VA 22209-2593, Telephone (703) 696-6762, Fax (703)696-4156.
5 See Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (“Even if an entry of defaulthad been appropriate, it would not have been sufficient to entitle plaintiffs to a judgment . .
. Once default is entered, it remains for the court to consider whether the unchallengedfacts constitute a legitimate cause of action, since a party in default does not admit mereconclusions of law. There must be a sufficient basis in the pleadings for the judgmententered.” (internal quotations and citations omitted)).
The Court will determine whether or not judgment should be entered andmay set the matter for hearing in order to make such determination.6 If, in
order to enable the Court to enter judgment, it is necessary to “conduct anaccounting,” “determine the amount of damages,” “establish the truth of anyallegation by evidence,” or “investigate any other matter,” the Court mayconduct such hearings or order such referrals as it deems necessary and
In very limited circumstances, default judgment may be entered by the Clerkunder Rule 55(b)(1), but only if the complaint seeks a “sum certain or a sumthat can be made certain by computation” and the plaintiff files a request forentry of default judgment with an affidavit or declaration of the amount due.8
However, in all other circumstances, Rule 55(b)(2) requires that defaultjudgment be entered by the Court. For instance, when a party against whomdefault is requested has served an answer or motion and then fails to appearat a court hearing, when relief other than money damages is requested, orwhen evidence is required to establish elements of claims or damages, defaultjudgment, if appropriate, must be entered by the Court.
A form “Motion for Default Judgment” is appended to these Guidelines asAttachment B. A form proposed order titled “Default Judgment” is appendedto these Guidelines as Attachment C.
6 The Court may require an actual evidentiary hearing when a party seeks a defaultjudgment on allegations of fraudulent intent. See, e.g., AT&T Universal Card Servs., Corp.
v. Sziel (In re Sziel), 206 B.R. 490, 495 (Bankr. N.D. Ill. 1997) (expressing the court’sreluctance to “rubber stamp” default judgment motions when allegations of fraudulentintent are conclusory). Even if the party against whom default is requested fails to appearat such hearing, the movant must present evidence of fraud and the requisite intent. See,
e.g., FCC Nat’l Bank v. Roberts (In re Roberts), 193 B.R. 828, 831–32 (Bankr. W.D. Mich.
1996) (credit card company denied default judgment because it failed to produce evidence ofdebtor’s intent to defraud).
7 Fed. R. Civ. P. 55(b).
8 This “sum certain” requirement “means that the claim itself must be liquidated orfor a fixed and indisputable amount, even if some calculation is needed to determine thatamount.” 10 James Wm. Moore et al., Moore’s Federal Practice § 55.20 (3d ed. 2001). Aclaim for a specific amount does not necessarily make the sum certain. World Alliance
Consulting, Inc. v. DocPlanet.com, Inc., 57 Fed. App’x 390, 392 (10th Cir. 2003).
- << Prev