Rule 69.Default Orders and Judgments

A default under Rule 69 starts with a party who was served with summons, or is otherwise subject to the court’s jurisdiction, and who has not answered, moved, or otherwise defended. The party seeking relief moves first for an order of default. A prospective defendant can head that off by sending written notice of intent to appear; and once a party has appeared or sent that notice, the party seeking default must, in turn, give its own written notice of intent to apply for the order at least 10 days before filing that application, unless the court shortens that period. The motion for the order of default must be backed by an affidavit or declaration covering service and jurisdiction, the failure to appear or defend, whether any notice of intent to appear was received and answered with the required 10-day notice, and two protected-status questions: whether the party is a minor, an incapacitated or protected person, or someone needing a guardian ad litem under Rule 27, and whether the party is in military service under the Servicemembers Civil Relief Act. A “yes” to either one means default can only proceed with a guardian ad litem in place or in compliance with that federal statute. The court grants the order once it is satisfied the request was made in good faith and good cause supports it.

Getting the order of default is only half the process. The party seeking judgment must file a second motion, backed by its own affidavit or declaration, showing that an order of default has been granted or is being sought at the same time, what relief and what amount are due under the pleadings, and whether costs, disbursements, or attorney fees can be claimed too, which they may under Rule 68. The court can rule on the papers, or, at its discretion, hold a hearing, refer the matter, or send the damages question to a jury to pin down the amount or verify what is claimed. Every default judgment remains subject to the limited-judgment rules in Rule 67 B. Motor vehicle cases served through the state’s substitute-service provision carry extra safeguards: the plaintiff must show compliance with that service rule, disclose whether the defendant’s insurance carrier is known or discoverable through Department of Transportation records, and, if it is known, show that the carrier received mailed notice of the summons, complaint, and intent to seek default at least 30 days before the default application went in. Finally, an order of default can be set aside for good cause, and a default judgment already entered can be set aside under Rule 71’s relief-from-judgment procedures.