Local Rule 7055-1: PROCEDURE FOR GRANTING OF DEFAULT JUDGMENTS

Rule 7055. DEFAULT - FAILURE TO PROSECUTE [Former Rule 33] [SO 12/5/83; SO 4/19/84]

7055-1. PROCEDURE FOR GRANTING OF DEFAULT JUDGMENTS Before seeking default judgment, plaintiff's attorney should make certain that he or she has (1) properly and timely served the defendant, and (2) filed an accurate certificate of service. Then, once the time to answer has expired, he or she may seek entry of default judgment, following the procedures described below.

When the underlying action is a core matter The Clerk of the Bankruptcy Court may enter the default judgment if:

A. the underlying action is a core matter; and B. the default judgment is for a sum certain.

In order to obtain a default judgment, in this circumstance, the attorney for the plaintiff is to file (1) an application for default judgment addressed to the Clerk of Court; (2) a certificate of default; (3) a request for judgment by default and affidavit of amount due; and (4) an affidavit of non-military service.

When the underlying action is a non-core matter A. The Bankruptcy Judge to whom the matter has been assigned may execute a recommendation that default judgment be entered, without requiring a hearing, if the judgment is for a sum certain. When it is a non-core matter at issue, final judgment - even default judgment - must be entered in the District Court.

In order to obtain such a recommendation, the plaintiff's attorney is to file: (1) a recommendation for default judgment addressed to the Bankruptcy Judge; (2) an affidavit of non-military service; (3) an order to transmit record in a non-core proceeding to District Court, combined with findings of fact, conclusions of law and recommendation regarding plaintiff's request for entry of default judgment; (4) an affidavit of amount due; and (5) judgment (for execution by a U.S. District Judge).

B. When the Bankruptcy Judge, on the basis of the submitted recommendation for default judgment, determines that a hearing is necessary, the Clerk will inform the parties of the date of that hearing. (For example, if the defendant appeared, but did not answer, the defendant has a right to be heard on the question of the amount of damages.) After that hearing, the plaintiff's attorney is to submit a revised order to transmit, a revised affidavit of amount due, and a judgment (for execution by the U.S. District Judge).

Appropriate sample forms are available from the Bankruptcy Court Clerk.

The Clerk of Court shall enter the fact of default in an adversary proceeding only when requested to do so by the nondefaulting party. Upon entry of the fact of default under Fed.R.Civ.P. Rule 55(a), the nondefaulting party may seek judgment by default from the Clerk or the Court as appropriate under Fed.R.Civ.P. Rule 55(b), (d), and (e). Where relief has been sought against multiple parties not all of whom have failed to plead or defend, the fact of default may be entered as to any party who failed to plead or defend, but no judgment by default shall be entered against such party until the case shall have been decided with respect to the nondefaulting parties, unless the Court orders otherwise. A plaintiff entitled to a default for the failure to answer a complaint must request entry of the fact of default, and make suitable request for judgment, within 60 days after the last day to answer. Failure to make these requests will result in the entry of an order placing the proceeding on a calendar for a hearing on the question of why the complaint should not be dismissed for want of prosecution.