MOTIONS/APPLICATIONS/REQUESTS
FOR ENTRY OF DEFAULT
(a) ENTERING A DEFAULT. When a party against whom a judgment for affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party's default.
(b) ENTERING A DEFAULT JUDGMENT.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by
computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—
must enter judgment for that amount and costs against a defendant who has been defaulted for
not appearing and who is neither a minor nor an incompetent person.
(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A
default judgment may be entered against a minor or incompetent person only if represented by a
general guardian, conservator, or other like fiduciary who has appeared. If the party against
whom a default judgment is sought has appeared personally or by a representative, that party or
its representative must be served with written notice of the application at least 7 days before the
hearing. The court may conduct hearings or make referrals—preserving any federal statutory
right to a jury trial—when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(c) SETTING ASIDE A DEFAULT OR A DEFAULT JUDGMENT. The court may set aside an entry of
default for good cause, and it may set aside a default judgment under Rule 60(b).
For example, Central District of California requires that an application for a
default judgment be accompanied with a declaration include the following:
◘ When and against what party the default is requested;
◘ The identification of the pleading to which the default will be entered against;
◘ Whether the defaulting party is an infant or incompetent person, and if so,
whether that person is represented by a general guardian, committee,
conservator or other representative;
◘ That the service members Civil Relief Act (50 U.S.C. App. Section 521) does
not apply; and
◘ That Notice has been served on the defaulting party, if required by F.R.Civ. P.
55 (b)(2).
(2) The party has failed
to plead or otherwise
defend within the
allowed time and that
time has run.
(3) The party has not
requested or has not
been granted an
extension of time to
plead or
otherwise defend.
(1) The party against
whom default is sought
has been properly
served with a summons
and a complaint.
Requires that
the moving
party file with
the application
an affidavit
including:
◘ After 30 days from the date of Service, a Plaintiff may proceed to obtain an entry of
default against a Defendant who has failed to answer.
◘ Before proceeding to file anything with the Court, confirm your timeline, that service
was in fact proper.
◘ Confirm that your Proof of Service was filed with the Court.
Sample Proof of Service Judicial Form:
http://www.courts.ca.gov/documents/pos010.pdf
◘ Confirm whether you need to file a Declaration of Venue: If your lawsuit is based
upon a retail installment contract subject to the Unruh Act (Civil Code §1812.10), on a
financed automobile subject to the Rees-Levering Motor Vehicle Sales and Finance Act
(Civil Code §2984.4), or on a loan or other extension of credit primarily for personal or
household use (Code of Civil Procedure § 395(b)), you must either verify your complaint
or file and serve a declaration of venue.
The declaration of venue must be served upon the defendants like a Summons. If
your complaint was not verified and you did not serve the statement of venue you
must complete this step at least 31 days before filing the Request for Entry of
Default.
Sample: http://www.saclaw.org/Uploads/files/forms/Venue_Decl_fillable.pdf
:
Element 1: Duty –
That the
Defendant owed
a duty to the
Plaintiff;
Element 4:
Damages – That
you were
harmed.
Negligence
Element 3:
Causation – That
the Defendant’s
negligence was a
substantial factor
in causing your
harm;
Element 2:
Breach – That the
Defendant
breached that
duty;
◘ Submit a Proposed Judgment with the Request for Entry of Default.
◘ Look at jurisdictional requirements for the type of complaint filed.
For example, in California, an action to quiet title REQUIRES a
prove up hearing under Cal. Code of Civ. Procedure Section
764.010;
◘ Dismiss any named or doe defendants who should no longer be in the
case;
◘ Send a check for any applicable fees for filing the Request;
◘ Wait for the Court to enter a default;
◘ Remember, if there are any hearings on the matter, for example, a
Case Management Conference or Status
Conference, you should be prepared to appear
at the hearing, even if to say that you are
waiting on the Court to process the Request for
Entry of Default.
-
Washington Court’s prefer entering judgment based on the merits of a case:
-
Default judgments are disfavored because it is the policy of the law that
controversies be determined on the merits rather than by default. Colacurcio v.
Burger 110 Wash.App. 488, 41 P.3d 506 (2002).
1.
Make sure Complaint and Summons were properly served on the
opposing party.
2. Calendar exactly the day Answer was due.
Defendant has 20 days from date of service to
Answer. See CR 12(a)(1).
3. If defendant is represented by counsel or
appeared send letter send reminder that they
are tardy and your intention to file a Motion
for Default within 5 days of letter, if no Answer
filed.
4. If Defendant files Notice of Appearance they still MUST file an
Answer within 20 days of date of service. However, you cannot do a
motion for default without notice to defendant or their counsel.
No Answer or appearance: File
Motion for Default without
Notice (including all 7 parts
listed in the box to the left).
Wait 20 Days for Answer or
Notice of Appearance
Serve Complaint and
Summons:
Note: Determine if person is
serving in the military
overseas. In King County, a
Motion for Default is
divided up into seven parts,
with modifications: 1) Relief
Requested 2) Statement of
Facts; 3) Issued Presented; 4)
Evidence Relied Upon; 5)
Legal Argument; 6)
Conclusion; 7) Proposed Order
Appearance, but no Answer:
File Motion for Default with
Service to Defendant or
Defendant’s Counsel (including
all 7 parts listed in box to the
left.)
** * Include in your declaration
that a search has been done on
the defendant under the
Servicemember Civil Relief Act
Statement and the person is
not a service member or
deployed.
2. Statement of facts :
a. Include when matter was originally filed.
b. When opposing party was served with Summons
and Complaint.
c. Include the declaration of service as exhibit.
d. State that opposing party failed to Answer within
20 days as required by CR 12(a)(1). If defendant does
appear state it in facts.
e. If applicable State when you notified opposing party
or their counsel of their failure to file Answer and
request that they file Answer within 5 days of correspondence.
f. State if there was any response or agreement from OA or defendant to file Answer
and ultimately how they failed.
g. If extra time is granted state that the date came and left without any production of
outstanding discovery.
3. Issue Presented:
Whether the Court should grant a Motion for
Default when Defendant has failed to Answer
as required by CR 12(a)(1)
4. Evidence Relied Upon:
- Include your declaration and any exhibits.
- This includes when Complaint and Answer was
served on defendant.
- This includes the Answer due.
- Optional: Date of when defendant
appeared or defense
counsel filed notice of appearance.
-Optional: Date
when letter sent to defendant or
defense
counsel that they have not filed
Answer
and request that Answer be filed within
5 days.
- Optional: Date of service of Motion for
default.
5. Legal Argument
Why Motion to Compel should be granted?:
- Under CR 12(a)(1) a “Defendant shall serve his answer within 20 days,
exclusive of the day of service, after the service of the summons and
complaint upon him pursuant to rule 4; …”
- Default judgments are disfavored because it is the policy of the law that
controversies be determined on the merits rather than by default.
Colacurcio v. Burger 110 Wash.App. 488, 41 P.3d 506 (2002).
- Default judgments are normally proper only when the adversary process
has been halted because of an essentially unresponsive party. Colacurcio v.
Burger 110 Wn.App. 488, 41 P.3d 506, (2002).
PRO TIP: Plaintiff is not entitled to default judgment as a matter of right
under CR 55(b)(1) when amount due is not certain. J-U-B Engineers, Inc. v.
Routsen 69 Wash.App. 148, 848 P.2d 733 (1993).
PRO TIP: Party against whom default judgment is sought is not entitled to
notice of CR 55(b)(2) hearing to determine previously unspecified damages. JU-B Engineers, Inc. v. Routsen 69 Wash.App. 148, 848 P.2d 733 (1993).
PRO TIP: Conduct search prior to filing motion to determine if defendant is
serving in the military overseas. If defendant is serving motion will not be
granted.
Application: Apply the facts to their failure to Answer.
For example: Here, John Doe was properly served on January 1,
2013. It is now January 30, 2013, and defendant failed to Answer,
defend, or appear within 20 days of service. The adversary process
in this matter has been halted by defendant’s intentional and willful
actions as a unresponsive party. Because over twenty days have
elapsed and defendant has failed to Answer despite Plaintiff ’s
entreaties, the time allowed for filing of pleadings is now closed
and Defendant has failed to conform with CR 12(a)(1). Because
Defendant has failed to conform with CR 12(a)(1), Plaintiff is
entitled to an Order for Default.
Under CR 55(a)(1) “When a party against whom a
judgment for affirmative relief is sought has failed to
appear, plead, or otherwise defend as provided by these
rules and that fact is made to appear by motion and
affidavit, a motion for default may be made.
Apply the facts to CR 55:
For example: Here the summons and complaint was properly served
on _____________. Over twenty days have elapsed since the
Defendants were served and the Defendant has failed to appear,
plead or otherwise defend against the Plaintiffs’ complaint. Because
the Defendants have failed to appear, plead, or otherwise defend this
matter in a timely manner as proscribed by the Washington Rules,
the Plaintiff therefore is entitled to an Order of Default and Entry
of Judgment.
Conclusion - For the
aforementioned reasons,
Plaintiff respectfully asks
this Court to Grant its
Motion.
Always attach a Proposed Order detailing exactly what
you are requesting the Court to do.