Getting a federal default judgment: two routes, seven days' notice, and a ceiling on what you can recover

Federal default is a two-step process, and the steps are often confused. Entry of default under Rule 55(a) is a clerical act recording that a party has not defended. Default judgment under Rule 55(b) is what actually gives you something enforceable — and depending on the claim, it comes from the clerk or from the judge.

Step one: entry of default

Rule 55(a):

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.

Three points.

"Plead or otherwise defend" is broader than filing an answer. A Rule 12 motion is defending; so is appearing to contest jurisdiction.

The clerk must enter it on the showing — this is not discretionary, and it is not a motion.

And there is no notice requirement. Federal practice gives the defaulting party nothing before entry. Compare Alaska, whose Rule 55(a)(1) requires the application to be served on everyone, including the party about to be defaulted, and makes the clerk wait seven days; and Washington, whose CR 55(a)(3) gives five days' notice to a party who has appeared.

Step two, route one: judgment by the clerk

Rule 55(b)(1):

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.

Four conditions, all of which must hold:

1. the claim is for a sum certain, or computable to one;
2. the plaintiff requests it, with an affidavit of the amount due;
3. the defendant was defaulted for not appearing — not merely for failing to answer after appearing; and
4. the defendant is not a minor or incompetent person.

Where all four are met, the clerk must enter judgment. No hearing, no judicial discretion.

Condition 3 is the one most often missed. A defendant who appeared and then stopped participating cannot be dealt with by the clerk; that case goes to the court.

Step two, route two: judgment by the court

Rule 55(b)(2): "In all other cases, the party must apply to the court for a default judgment."

Protected parties: 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."

The seven-day notice:

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.

Note the trigger: having appeared, not having answered. A defendant who appeared and then defaulted is entitled to notice of the application; one who never appeared at all is not.

What the court may do to get there:

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.

Subparagraph (C) is worth reading carefully. Default admits the well-pleaded allegations of liability, but the court may still require evidence of any allegation before entering judgment — and routinely does for damages.

Against the United States — Rule 55(d): a default judgment may be entered against the United States, its officers or its agencies "only if the claimant establishes a claim or right to relief by evidence that satisfies the court."

The ceiling: Rule 54(c)

Rule 54(c):

A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.

The contrast is deliberate. In a contested case the judgment follows the proof, whatever the complaint asked for. In a default, the complaint is the ceiling — in kind as well as amount.

Two practical consequences.

Plead the relief you actually want. A complaint that asks for damages "in an amount to be proven at trial" gives a defaulting defendant no notice of exposure, and creates a Rule 54(c) problem when you go to enter judgment.

And check the demand before applying. Asking the court for more than the complaint sought, or for a different kind of relief, is a ground to deny or to vacate.

Setting a default aside

Rule 55(c):

The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).

The familiar two-tier structure, and the gap between the tiers is wide. Good cause before judgment is a flexible standard. Rule 60(b) after judgment brings six enumerated grounds, a reasonable-time requirement, and a one-year cap on the first three.

That gap is the reason to move immediately on learning of an entry of default. The guide on setting aside a federal default covers the standard, and the guide on relief from a federal judgment covers Rule 60(b).

Partial judgments — Rule 54(b)

Where a default disposes of some parties but not others, Rule 54(b) governs whether you have an appealable judgment.

When an action presents more than one claim for relief … or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.

Otherwise nothing is final:

any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

So a default judgment against one of three defendants is, absent a Rule 54(b) determination, revisable and not appealable. If you want it final, ask for the express determination and the entry of judgment.

Costs and fees afterwards

Rule 54(d)(1) — costs: unless a statute, the rules, or a court order provides otherwise, costs other than attorney's fees "should be allowed to the prevailing party." Costs against the United States and its officers and agencies "may be imposed only to the extent allowed by law."

The clerk may tax costs on 14 days' notice. On motion served within the next 7 days, the court may review the clerk's action.

Two short deadlines, and the second is easy to miss: seven days to seek review of the clerk's taxation.

Rule 54(d)(2) — attorney's fees. A claim for fees and related nontaxable expenses "must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages."

The motion must — Rule 54(d)(2)(B):

(i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.

Fourteen days from entry of judgment, and the grounds must be identified — a motion that asserts entitlement without naming the statute or rule does not comply.

Rule 54(d)(2)(C): subject to Rule 23(h), the court must, on a party's request, "give an opportunity for adversary submissions" under Rule 43(c) or 78.

The sequence

How the federal rule compares

A short checklist

Seeking one

1. Get default entered first. Judgment cannot precede it.
2. Work out which route applies. Sum certain, defendant never appeared, not a minor or incompetent — that is the clerk. Everything else is the court.
3. If the defendant ever appeared, serve the application at least 7 days before the hearing.
4. Check your complaint's demand against what you are asking for. Rule 54(c) caps both amount and kind.
5. Be ready to prove damages. The court may require evidence, an accounting, or a referral.
6. If other parties remain, ask for a Rule 54(b) determination — otherwise the judgment is neither final nor appealable.
7. Diary 14 days for a fee motion, and 7 days to seek review of the clerk's costs taxation.

Facing one

1. Appear, even if you cannot yet answer. Appearance is what earns the 7 days' notice under Rule 55(b)(2).
2. Move before judgment if at all possible. Good cause under Rule 55(c) is a far easier standard than Rule 60(b).
3. Check the demand. A judgment exceeding or differing in kind from the complaint violates Rule 54(c).

Where these rules live

• FRCP 12 — Defenses and objections
• FRCP 54 — Judgment; costs
• FRCP 55 — Default; default judgment
• FRCP 58 — Entering judgment
• FRCP 60 — Relief from a judgment or order
• FRCP 62 — Stay of proceedings to enforce a judgment
• FRCP 69 — Execution

This page explains what the rules say. It isn't legal advice, and the factors courts weigh on a Rule 55(c) good-cause showing come from case law this site doesn't cover.