Drafting Your Request for Default
Identify the grounds for filing a default motion. Generally, you can get a default judgment if the defendant does not respond to your lawsuit. However, there are other situations in which you can request a default judgment. You should read your court’s Rules of Civil Procedure in order to identify all of the reasons you can bring a motion for default judgment. For example, you can get a default for the following: The defendant never entered an appearance in your lawsuit. The defendant never filed an answer or other response. The defendant failed to appear for trial. The defendant failed to disclose a defense. Either the plaintiff or defendant failed to comply with requests for information in “discovery.”
Check if the defendant is in the military. Federal law prohibits default judgments being entered against service members who are on active duty. You need to check whether or not the defendant is in the military before filing your motion for default judgment. You must search the Servicemember’s Civil Relief Act (SCRA) website to check whether the defendant is on active duty. To perform a search, you will need the defendant’s last name and either their Social Security Number or birth date.
Look for a motion form. You need to request entry of default first. Your court might have a printed “fill in the blank” form you could use to make this request. The court might also publish a sample or informational packet you can use. Since these forms have been pre-approved, you should use it if one is available. Ask the court clerk if there is a form. You can also check on the court’s website. Always follow the information in your court packet. Each court handles default judgments a little differently, so you should always follow the court’s directions whenever they depart from the directions in this article.
Format your document. If no form is available, then open a blank word processing document. You should format the document so that it is legible. Use the same formatting that you used on your complaint. Typically, 14-point Times New Roman or Arial is acceptable.
Insert the caption information. The caption information includes the name of the court, the names of the parties, and the case number. Insert this information at the top of the page. Make sure that the defendant’s name on your motion matches the name on the complaint and on your Proof of Service form. If it doesn’t, then the judge might not grant you a default judgment.
Title the motion. You can title it something like “Motion for Default for Failure to Appear” or something similar. You should insert the title beneath the caption, centered between the left- and right-hand margins.
Draft your motion. The body of your motion can be short. Be sure to mention the rule of civil procedure that gives you the power to request a default. Also state why you are entitled to entry of default. A sample motion might read: “Plaintiff Alice T. Greene requests that the clerk of court enter default against defendant Acme Construction pursuant to Federal Rule of Civil Procedure 55(a). The return date in this matter was March 22, 2015. As of the date of filing this motion, the Defendant has not filed an Appearance with the Court.”
Sign your motion. Add a signature block. Beneath the signature line, add your name and contact information, including your telephone number. Also be sure to include the date.
Draft a proposed entry of default. Many courts will want you to include a proposed entry of default for the clerk of court to sign. In most courts, the clerk (not the judge) must enter default according to your rule of civil procedure. You can put this on a separate sheet of paper with the title “Entry of Default” at the top. Sample language could read: “Plaintiff Alice T. Greene requests that the clerk of court enter default against Defendant Acme Construction pursuant to Federal Rule of Civil Procedure 55(a). It appearing from the record that defendant has failed to appear, plead, or otherwise defend, the default of Acme Construction is hereby entered pursuant to Federal Rule of Civil Procedure 55(a).” Then insert the date and a line for the clerk to sign. Put his or her name under the signature line.
Include a certificate of service. You should tell the court that you sent a copy of the motion to the defendant. Include the date you sent the motion and the method of service. Put the certificate of service on a separate sheet of paper. Your certificate could read: “I certify that a copy of the foregoing has been mailed on March 30, 2016 to all counsel and pro se parties of record: [insert the names and addresses].” You should also sign your certificate of service.
Draft a supporting declaration. You probably need to include a declaration in support. You should title this declaration “Affidavit in Support of Motion for Entry of Default.” The declaration should be set up with the caption information at the top of the page. Include the following in the declaration: If you are a lawyer, then who you represent. The date you filed the summons and complaint. The date you served the summons and complaint on the defendant. The date a response was due. The fact that the defendant has failed to appear, plead, or otherwise defend the action in the time allowed. A request that the clerk enter default against the defendant. Your notarized signature.
Prepare a military affidavit. You need to file an affidavit stating whether or not the defendant is in the military. You also need to explain supporting facts. For example, you may have performed a search at the SCRA website and found out that the defendant is not on active status. You can attach the search results to your affidavit as an exhibit. If you can’t determine whether the defendant is in the military, then you should explain in your affidavit why you can’t find that information. Explain the steps you have taken to determine whether the defendant is on active duty status. In some courts, you don’t need to draft a separate military affidavit. Instead, you can just include the information on your declaration.
Drafting a Motion Requesting Judgment
Draft a motion requesting judgment. At the same time that you request that default be entered, you can request judgment. This is a separate motion you need to file. The court could have a printed form you can fill out to request judgment. Check with your clerk. If not, then you should draft your own. Set up this motion just as you did the other motion: same formatting, caption, etc. Title the motion “Motion for Entry of Default Judgment.” The body of this motion can read: “Plaintiff Alice T. Greene requests that entry of judgment by default be entered against Defendant Acme Construction pursuant to Federal Rule of Civil Procedure 55(b). In support of this request, plaintiff relies upon the record in this case and the affidavit submitted herein.”
Create another affidavit in support. You also need to submit an affidavit in support of your Motion for Entry of Default Judgment. This affidavit should cover some of the same territory as your other affidavit, though it will include additional information. For example, you should include the following: The date you served the summons and complaint. The date the answer was due and the fact that none was served in the time allowed. The date default was entered. A statement that you have confirmed that the defendant is not currently in active military service. A detailed description of your claim. In particular, describe the amount of money sought. If you want additional relief, such as an injunction, then explain the additional relief. Your signature in front of a notary.
Type up a proposed judgment. You should also include a judgment that the judge can sign. On a separate sheet of paper, insert the caption information and then title the document “Default Judgment.” The text of the judgment might read: “The Defendant, Acme Construction, having failed to appear, plead, or otherwise defend in this action, and default having been entered on [insert the date], and plaintiff having requested judgment against the defaulted Defendant and having filed a proper motion and affidavit in accordance with Federal Rule of Civil Procedure 55(a) and (b); Judgment is hereby entered in favor of Plaintiff Alice T. Greene and against Defendant Acme Construction as follows: [describe the amount of money requested or other relief].”
Gathering Supporting Affidavits
Identify who has relevant evidence. The judge will not simply rubber stamp your motion because you filed it. Instead, the judge needs to make sure that your lawsuit has merit. This means showing the judge that you have evidence to support the allegations in the complaint. You can provide this evidence in the form of sworn statements by witnesses. Go through your complaint and check what you need to prove in your case. If you were in a car accident, then witnesses could be you, whoever was in your car, and any bystander.
Ask the witnesses to draft affidavits. Once you have identified relevant witnesses, ask them to draft an affidavit. In the affidavit, they should explain to the court what they observed. They should sign the affidavit in front of a notary public. Make sure the witness drafts the affidavit him or herself. You shouldn’t have a lawyer draft an affidavit. For help writing an affidavit, see Write an Affidavit.
Check if the witness can attend your hearing. In some courts, the judge might actually question the witnesses, in particular if the affidavit is lacking information. For this reason, you should always check whether or not the witness can attend the hearing on the default motion. Try to get the witnesses to attend the hearing with you. This way, they can answer any questions the judge has.
Filing Your Motion
Get your proof of service. In order to get a default judgment, you must have properly served the summons and a copy of your complaint on all defendants. This is called giving “notice.” You need proof that you properly served notice. Get your copy of the Proof of Service or Affidavit of Service which was signed by your server (the sheriff, process server, etc.) Check to make sure that the names on the Proof of Service match the names on your complaint and your motion for default judgment.
Schedule a hearing. Each court handles scheduling a hearing a little differently. In some courts, you might have to go onto the judge’s calendar and schedule a hearing date yourself. In other courts, you might file the motion and then the court clerk will notify everyone of the hearing date. Technically, you don’t need to give the defendant a chance to respond to your lawsuit. However, many judges want you to give the defendant a chance to respond. Read your Rules of Civil Procedure to see when you can schedule the hearing. For example, in Minnesota, judges probably want you to give at least a couple weeks’ notice or, ideally, at least 28 days advance notice.
Serve a copy on the defendant. Although the defendant has not yet entered an appearance in the case, you should still send a copy of your motion to him or her, just to be safe.. You can typically have someone mail the motion first class mail, postage prepaid. Be sure to use the service method mentioned in your certificate of service. In some courts, your server needs to fill out a Proof of Service or Affidavit of Service form. You can get this form from the court clerk. After making service, your server will return the form to you. You can file the signed Proof of Service with your motions.
File your motions with the court. Take your original and your copies and ask the court clerk to file. The clerk can stamp your copies with the date. In some courts you will have to file additional copies with the original. Check with the clerk.
Attending a Hearing
Prepare for the hearing. In some courts, there might not be a hearing. Instead, the judge could decide the motion solely on the paperwork. However, if there is a hearing, then you should prepare. Reread your motions and also all of the affidavits. Try to get a complete understanding of your case so that you feel comfortable discussing any aspect of it with the judge. If you’ve never argued a motion before, then you might want to observe a hearing. Check the judge’s calendar and sit in the back of the courtroom. Pay attention to the questions the judge asks.
Swear to tell the truth. At the start of the default hearing, the judge will probably ask you to raise your right hand and swear to tell the truth. Since you will be testifying before the judge, you need to take the oath.
Explain the facts of your case. The judge also needs to check whether you actually have a valid legal claim before he or she will issue a default judgment. You should have created an outline of your main points. Have the witness affidavits handy so that you can refer to them.
Answer the judge’s questions. The judge will ask a series of questions to see if a default judgment is appropriate. For example, the judge may ask if the defendant is a minor or if the defendant is incompetent. Always answer truthfully. If the defendant is a minor, then he or she could come into court and get any default judgment overturned. When addressing the court, always say, “Your Honor.” Don’t talk over the judge. Be sure to listen closely to any question he or she has.
Listen to the defendant. Sometimes, defendants show up to court. For example, they might not have understood that they needed to respond to your complaint and they might be afraid that they’ll be sent to jail. Accordingly, many defendants first show up at court on the day of the hearing on your motion for default judgment. The judge may also give the defendant a chance to address the court. You might be upset—after all, the defendant never bothered to respond to your complaint. However, the judge might only want to let the defendant feel like he or she was “heard” before receiving a default judgment.
Serve the judgment. After getting the default judgment, you may need to serve a copy on the defendant. In some courts, the clerk will handle this. However, in other courts, you will be sent the judgment and then you must serve it on the defendant. If you have to serve the judgment on the defendant, then serve it the same way you served a copy of your motion: have someone 18 or older make delivery or mail it for you. The server should fill out a Proof of Service form.
Enforce the judgment. Getting judgment is only half the battle. You now need to enforce it. If the defendant doesn’t willingly pay up, you might have to garnish his or her wages or put a lien on the defendant’s property. See Collect a Court Ordered Judgment for more information.
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