Local Rule 7055-1: ENTRY OF DEFAULT AND ENTRY OF JUDGMENT BY DEFAULT

RULE 7055-1 ENTRY OF DEFAULT AND ENTRY OF JUDGMENT BY DEFAULT

(A) Entering a Default by the Clerk: To have the Clerk enter a default pursuant to FRCP 55, as incorporated by FRBP 7055 and FRBP 9014, in an adversary proceeding or a contested matter, the party seeking default shall file with the Clerk a motion for entry of default accompanied by an Affidavit of Default or a declaration signed under penalty of perjury or a certification by counsel setting forth the facts related to the party or parties in default. These facts must include:

(1) The name of the party against whom default is sought.

(2) A statement as to the date of issuance of the summons and the date and manner of service of the summons and complaint or motion.

(3) The date of filing of the certificate of service of the summons and complaint or motion upon the party.

(4) A statement that no answer or motion has been filed within the time limit fixed by FRBP 7012(a) or the Court.

(5) A statement that the party is or is not in military service or that the movant is unable to determine the party's military status, pursuant to the Service Members Civil Relief Act of 2003, 50 U.S.C. Appendix §§501-596. (If the party is in the military, or may be, the party is afforded certain protections as set forth at 50 U.S.C. Appendix §521.)

(6) A statement that the party is not a minor or an incompetent person or if the party is a minor or an incompetent person that such party is represented by a general guardian, conservator or other like fiduciary who has appeared.

The Clerk shall review the affidavit, declaration or certification. If the affidavit, declaration or certification is in proper order, the Clerk will proceed to enter a default. As entry of default is a ministerial act, no response deadline is required for a motion for entry of default, and the Clerk will not await the expiration of any response deadline, if one is provided, to enter a default. Pursuant to FRCP 55(a), the party seeking default must request entry of default prior to moving for default judgment.

(B) Motion for Entry of Default Judgment

(1) Entry of a Default Judgment by the Clerk

(a) A default judgment may be entered by the Clerk only if the movant's claim is for a sum certain or a sum that can be made certain by computation, unless the presiding judge determines that a report and recommendation to the District Court is more appropriate. A claim that includes attorney fees – whether set out in the operative document or statute as a fixed amount, a fixed percentage, reasonable or otherwise – is not a claim for a sum certain or a sum that can be made certain by computation. A default judgment on such a claim must be entered by the Court under LBR 7055-1(B)(2).

(b) After a default has been entered, as provided for in paragraph (A), the party seeking entry of a default judgment by the Clerk shall file a Motion for Entry of Default Judgment by the Clerk. The motion shall be accompanied by an affidavit, a declaration signed under penalty of perjury or certification by counsel setting forth the facts related to the party or parties in default. These facts must include:

(i) A statement that the party is or is not in military service or that the movant is unable to determine the party's military status, pursuant to the Service Members Civil Relief Act of 2003, 50 U.S.C. Appendix §§501-596. (If the party is in the military, or may be, the party is afforded certain protections as set forth at 50 U.S.C. Appendix §521.)

(ii) A statement that the party is not a minor or an incompetent person or if the party is a minor or an incompetent person that such party is represented by a general guardian, conservator or other like fiduciary who has appeared.

(iii) The date the Clerk entered the default on the record.

(iv) The amount of the judgment requested together with the grounds for that amount with particularity, including the exact computation made by the movant of the principal amount, interest and costs.

(c) The party seeking entry of a default judgment by the Clerk shall file with the Court and then serve a copy of the motion and the supporting affidavit, declaration or certification on the party in default or its representative and a notice that the Clerk may enter the requested judgment if no objection is filed within 14 days after service of the motion (plus any additional time required by FRBP 9006(a) and (f)). If a timely objection is filed, the party seeking entry of the default judgment will promptly set the matter for a hearing in accordance with the practices of the appropriate division. If no timely objection is filed, in consultation with the Court, the Clerk shall review the affidavit, declaration or certification to determine whether proper service of the summons and complaint was made pursuant to FRCP 4, as incorporated by reference in FRBP 7004(a), and whether the time to answer or file a motion has passed. If the affidavit, declaration or certification is in proper order, the Clerk will proceed to enter judgment as requested and computed by the movant. Pursuant to FRBP 55(a), the party seeking default judgment must request entry of default prior to moving for default judgment. Consistent with FRCP 9013 and LBR 9013-1(A), service by the movant of the motion on the party against whom default judgment is sought must be effected in the manner set forth in FRBP 7004, which shall be reviewed by the Clerk, in consultation with the Court.

(2) Entry of a Default Judgment by the Court

(a) In all other cases, a default judgment may only be entered by the Court, unless the presiding judge determines that a report and recommendation to the District Court is more appropriate.

(b) A party seeking entry of a default judgment by the Court shall file a motion for Entry of Default Judgment by the Court and shall set the matter for a hearing in accordance with the practices of the appropriate division. A party seeking entry of a default judgment shall also submit a proposed order as provided for by an electronic means established by the Court. The motion shall state whether the Court should conduct a hearing to determine the amount of damages, establish the truth of any allegation by evidence or investigate in any other manner and be accompanied by a verified affidavit or a declaration signed under penalty of perjury or certification by counsel setting forth the facts related to the party or parties in default. These facts must include:

(i) A statement that the party is or is not in military service or that the movant is unable to determine the party's military status, pursuant to the Service Members Civil Relief Act of 2003, 50 U.S.C. Appendix §§501-596. (If the party is in the military, or may be, the party is afforded certain protections as set forth at 50 U.S.C. Appendix §521.)

(ii) A statement that the party is not a minor or an incompetent person or if the party is a minor or an incompetent person that such party is represented by a general guardian, conservator, or other like fiduciary who has appeared.

(iii) The date of the issuance of the summons and the date and manner of service of the summons and complaint or motion.

(iv) If the Clerk noted default by entry on the record, the date that it was noted.

(v) If judgment is for a sum certain or a sum that can be made certain by computation, the grounds for that amount with particularity, including the exact computation of the principal amount, interest and costs.

(c) The party seeking entry of a default judgment by the Court shall file with the Court and serve a copy of the motion and the supporting affidavit, declaration, or certification on the party in default or its representative and a notice of a hearing on the motion which will be on at least 14 days' notice except as otherwise provided for in FRCP 55(b)(2). Consistent with FRCP 9013 and LBR 9013-1(A), service by the movant of the motion on the party against whom default judgment is sought must be effected in the manner set forth in FRBP 7004.

Comments 7055-1 This rule is new and provides a procedure for: (1) the Clerk of Court to enter a default in either an adversary proceeding or a contested matter; and (2) if specified conditions are met, entry of a default judgment by the Clerk of Court or, in all other cases, entry of default judgment by the Court, unless, as set forth in paragraphs (B)(1)(a) and (B)(2)(a), "the presiding judge determines that a report and recommendation to the District Court is more appropriate." [New Rule effective 12/1/15.]

7055-1(A) The amendments to this rule clarify the responsibility of the Clerk to evaluate motions for entry of default. The rule is further amended to provide that the movant does not need to provide a response period since the Clerk's entry of default is a ministerial act. [Change effective 12/01/23.]