Hello everyone... This post is not meant to provide legal advice... Just to relate some of the fun things that I've had to learn recently... It's also something that wasn't clearly explained at my local Federal Court Clerks office, and even the assistants at the Clerk's office had fun trying to figure out what I needed to provide for their own process... Which makes that valuable information to share here... To make sure that I am under the 1,000 character limit, I will break this post up into multiple parts. So, you've gone and run into a situation that litigation is the last resort. You've drafted the complaint, filed it, and it was served upon the defendant, and 21 days later, nothing, no phone call from their attorney, no phone call or letter from them begging you to be reasonable and come to a compromise that's in everyone's best interests. NOTHING! Welcome to the world of DEFAULT, from the OTHER SIDE of the gavel.
Step 1 - Request ENTRY of the DEFAULT Form 1 - Request for Entry of Default "Comes now, plaintiff, _______________, and hereby asks the Clerk to enter a default against, defendant, _______________, on the basis that the record in this case demonstrates that there has been a failure to plead or otherwise defend as provided by Rule 55(a) of the Federal Rules of Civil Procedure." Form 2- Affidavit in Support of Request for Entry of Default "I, plaintiff, _______________, declare under penalty of perjury that the following facts are true and correct to the best of my information and belief. 1. I am the plaintiff, pro-se in this action. 2. A complaint was filed herein on _______________ and service was made on the defendant, _______________, on _______________. 3. More than twenty-one (21) days have elapsed since the defendant in this action was served, and the defendant has failed to plead, or otherwise defend as provided by the Federal Rules of Civil Procedure. _______________ Plaintiff, pro-se Sworn to and subscribed before me this __ day of _________, ____. _______________ Notary Public" Form 3 - Entry of Default "It appearing that the complaint was filed in this case on _______________; that the summons and complaint were duly served upon the defendant, _______________, and no answer or other pleading has been filed by said defendant as required by law; Therefore, upon request of the plaintiff, default is hereby entered against the defendant, _______________, as provided by Rule 55(a), Federal Rules of Civil Procedure. _______________ Clerk By _______________ Deputy Clerk"
After you receive the order providing the entry of the Default, comes the second step of the process. To quote a classic song... Second verse, same as the first! Step 2 - Request the Default Judgement Form 1 - Motion for Default Judgement "Comes now plaintiff, _______________, and requests the Court, pursuant to Rule 55(b)(1) of the Rules of Civil Procedure, for entry of a judgement by default against the defendant, _______________. In support of this request, _______________, relies upon the record in this case and the affidavit submitted herein." Form 2 - Affidavit in Support of Default Judgement "I, , declare under penalty of perjury that the following facts are true and correct to the best of my information and belief: 1. I am the plaintiff, pro-se in this action. 2. A complaint was filed herein on and service of process was had on the defendant on . 3. More than twenty one (21) days have elapsed since the defendant in this action served, and the defendant has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure. ____________________________ Plaintiff, pro-se Sworn to and subscribed before me this __ day of _________, ____. _______________ Notary Public" Form 3 - Default Judgement "The defendant, _______________, having failed to plead or otherwise defend in this action, and default having heretofore been entered; upon application of plaintiff and upon affidavit that defendant is indebted to plaintiff in the principal sum of $_______________ plus interest thereon; that defendant had been defaulted for failure to appear pursuant to Rule 55(a) of the Federal Rules of Civil Procedure; and that the claim is for a sum certain or for a sum which can by computation be made certain; it is hereby ORDERED, ADJUDGED, and DECREED that plaintiff, _______________, recover of the defendant, _______________, the sum of $_______________ , plus costs and interest according to law from the date of this judgment until the entire amount is paid. This judgment is entered by the Clerk at the request of the plaintiff and upon affidavit that said amount is due, in accordance with Rule 55(b)(1) of the Federal Rules of Civil Procedure. _______________ Clerk By _______________ Deputy Clerk"
