Default and Default Judgment in Federal Court: Rules 55 and 60 and the Cost of Ignoring a Lawsuit

Summary. This article explains how a federal lawsuit turns into a default judgment, what that judgment can and cannot do, and how a defendant who missed the deadline can get out from under it. It walks through the two-step structure of Rule 55, the answer deadlines that trigger default, and the rule that a default admits well-pleaded facts but not damages or conclusions of law. It then covers the checks courts apply before entering judgment, including jurisdiction, service, the Servicemembers Civil Relief Act affidavit, the Eitel factors, Rule 54(c), and the special regimes for foreign states and the United States. The second half covers relief: the good-cause standard for setting aside an entry of default, the Rule 60(b) grounds for vacating a default judgment, the Supreme Court's decisions in Pioneer, Peralta, Espinosa, and Kemp, and the circuit tests built on them. An extended worked example, common mistakes, an FAQ, and takeaways for plaintiffs and defendants close the article.

Hollis Pratt runs a fourteen-person custom millwork shop outside Dayton. On a Tuesday in March a process server hands his office manager a summons and a complaint from Kestrel Hardwood Supply, a Pennsylvania lumber distributor, demanding $184,600 for three shipments of white oak that Pratt says arrived warped and that he refused to pay for. Pratt reads the first page, recognizes the dispute, and puts the papers in the drawer where he keeps the Kestrel correspondence. He has already told Kestrel's sales manager, twice, that he will not pay for wood he cannot use. In his mind the lawsuit is a louder version of the same argument.

Twenty-one days pass. On day thirty-four Kestrel's lawyer files a one-page request and a two-page declaration, and the clerk of the Southern District of Ohio enters Pratt Millwork's default. On day fifty-two, without a hearing, the clerk enters a judgment for $184,600 plus costs. On day ninety, Kestrel registers the judgment, serves a garnishment order on Pratt's bank, and freezes the operating account two days before payroll.

Pratt has a real defense. He has photographs of cupped boards, a moisture-meter log, and an email from Kestrel's own warehouse lead conceding that one lot "sat wet." None of that has been heard, and none of it will be unless Pratt's new lawyer can persuade a federal judge that the judgment should not stand. Whether she can depends on rules most business owners have never read and most litigators touch only a few times a year: Fed. R. Civ. P. 55 and Fed. R. Civ. P. 60.

This article explains those rules: how default happens, what a default judgment admits and decides, what a court must check before entering one, and how and when a defendant can undo it. The step-by-step mechanics for each side are in the companion Obtaining or Setting Aside a Default Judgment: A Practical Guide; the task lists are in the Default Judgment Checklist: A Practical Checklist; and the forms are in the Default Judgment Toolkit: Entry Requests, Damages Declarations, and Motions to Vacate.

The short answer

• Default is two steps, not one. The clerk enters a party's default under Rule 55(a) when the party has failed to plead or otherwise defend. A default judgment comes later, from the clerk under Rule 55(b)(1) for a sum certain against a party who never appeared, or from the court under Rule 55(b)(2) in every other case.
• A default admits the facts, not the money. The defaulting party is treated as admitting the complaint's well-pleaded factual allegations. It does not admit legal conclusions, and it does not admit the amount of damages, which the plaintiff still has to prove.
• A default judgment cannot exceed the complaint. Under Fed. R. Civ. P. 54(c), it "must not differ in kind from, or exceed in amount, what is demanded in the pleadings."
• Courts check their own power first. A judgment entered without subject-matter jurisdiction, without personal jurisdiction, or without valid service is vulnerable forever as void, and many courts screen for those defects before entering judgment.
• Some defendants get extra protection. A plaintiff must file a military-status affidavit under the Servicemembers Civil Relief Act before any default judgment against an individual; a foreign state can be defaulted only on "evidence satisfactory to the court" under 28 U.S.C. § 1608(e); and Rule 55(d) imposes the same evidentiary burden for judgments against the United States.
• Undoing an entry of default is easier than undoing a default judgment. Rule 55(c) lets a court set aside an entry of default "for good cause." A final default judgment can be set aside only under Rule 60(b), most often for excusable neglect (Rule 60(b)(1), one-year outer limit), because the judgment is void (Rule 60(b)(4), no fixed limit), or for extraordinary circumstances (Rule 60(b)(6)).
• The factors are familiar everywhere. Under either rule, courts ask whether the default was willful or culpable, whether the defendant has a meritorious defense, and whether setting aside the default would prejudice the plaintiff, against a strong preference for deciding cases on the merits.
• Speed matters more than eloquence. The single most common reason relief is denied is that the defendant waited months after learning of the default before moving.

Two steps: entry of default and default judgment

Rule 55 has four subdivisions, and the structure explains most of the case law.

Entry of default is a docket notation. It is not a judgment, it is not appealable, and it awards nothing. What it does is cut off the defendant's right to answer as of course: once default is entered, the defendant needs the court's permission, through a Rule 55(c) motion, to file anything on the merits. It also changes the service rules. Under Fed. R. Civ. P. 5(a)(2), no further service is required on a party in default for failing to appear, except that a pleading asserting a new claim for relief must be served under Rule 4. A plaintiff who amends to add a claim after default has to serve the defaulted party all over again, and the defendant gets a fresh chance to respond to the amended pleading.

Default judgment is the judgment itself, enforceable like any other. The clerk can enter it only in the narrow case Rule 55(b)(1) describes: a claim "for a sum certain or a sum that can be made certain by computation," supported by an affidavit of the amount due, against a defendant who defaulted "for not appearing" and who is neither a minor nor an incompetent person. Everything else goes to a judge under Rule 55(b)(2), including any case in which the defendant appeared and then stopped defending, any claim for unliquidated damages, any claim for an injunction, and any claim for attorney's fees that requires a reasonableness determination.

The clerk's power is narrower in practice than on paper. Many districts route all default judgment requests to the judge by local rule or standing order, and many clerks will not compute interest, apply contractual fee provisions, or decide whether a sum is truly "certain." A promissory note with a stated principal and a fixed interest rate is the classic sum certain. A claim for "the reasonable value of services" is not, nor is a claim for lost profits, nor is a statutory damages claim within a range. The rulemakers have noticed the gap between text and practice. In October 2025 the Advisory Committee on Civil Rules, relying on a Federal Judicial Center study of default procedures across the districts, voted to recommend publishing for public comment in August 2026 an amendment that would replace "must" with "may" in Rules 55(a) and 55(b)(1), so that the clerk could refer a request for entry of default or default judgment to the judge. Under the normal rulemaking timetable, that change could not take effect before December 1, 2027; until then, the clerk's duty remains mandatory on paper and discretionary in many clerks' offices in fact.

What "failed to plead or otherwise defend" means

A defendant avoids default by pleading (filing an answer) or by "otherwise defend[ing]," which includes a motion under Fed. R. Civ. P. 12(b). A pending Rule 12 motion suspends the answer deadline; under Rule 12(a)(4), the answer is due 14 days after notice of the court's ruling. Defendants who win a partial dismissal and then forget that an answer is still due on the surviving claims are a steady source of defaults.

"Otherwise defend" also reaches beyond the pleadings stage. A defendant who answers and then abandons the case, refusing to participate in discovery, ignoring pretrial orders, or letting counsel withdraw without replacement, can be defaulted under Rule 55 or as a sanction under Fed. R. Civ. P. 37(b) or Fed. R. Civ. P. 16(f). In City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011), two out-of-state gun dealers litigated for years, lost their motions to dismiss for lack of personal jurisdiction, and then told the court they would no longer participate. The Second Circuit affirmed the default judgments, held that the dealers had forfeited their personal jurisdiction objection by deliberately walking away after appearing, and then vacated the injunctions because they were too vague to satisfy Fed. R. Civ. P. 65(d). The case is a useful map of the whole subject: a defendant can be defaulted mid-case, the defaulted defendant can lose defenses it once had, and the plaintiff still has to earn the specific relief it asks for.

Entities have one more trap. A corporation, LLC, or partnership cannot appear in federal court except through a licensed attorney, as the Supreme Court explained in Rowland v. California Men's Colony, 506 U.S. 194 (1993). An answer signed and filed by the company's owner is usually struck, and an entity whose lawyer withdraws is typically given a short deadline to retain new counsel, after which default follows. Pratt's instinct to write the judge a letter himself would not have protected Pratt Millwork, LLC.

The clocks that produce default

Default is a deadline problem, so the deadlines come first. The table collects the federal answer periods that matter most.

Two features of these clocks cause most of the trouble. First, the clock runs from service, and service is a legal event, not a physical one. In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), the Court held that a faxed courtesy copy of a complaint did not start the removal clock, because a person "becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure." The flip side is that a defendant served through a registered agent it forgot it had, or through substituted service at a home address, is on the clock whether or not anyone actually read the papers.

Second, extensions must be obtained, not assumed. A phone call in which plaintiff's counsel says "don't worry about the deadline while we talk" is worth exactly as much as the email confirming it and the stipulation filed on the docket. Once the deadline passes, Fed. R. Civ. P. 6(b)(1)(B) still lets the court extend time on motion "if the party failed to act because of excusable neglect," and a defendant who discovers the lapse before the clerk enters default should file that motion with a proposed answer attached, immediately. For deadline mechanics in the answering stage generally, see Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings and Drafting an Answer and Affirmative Defenses: A Practical Guide.

Where default judgments come from: a short history

Default is older than the Federal Rules by centuries. At common law a defendant who failed to appear could be outlawed, and one who appeared but said nothing in answer suffered judgment nil dicit. Equity had its own version, the decree pro confesso, under which the bill's allegations were taken as confessed. The equity rule is the source of the modern principle that a default admits facts but not the plaintiff's conclusions: a chancellor would enter a decree only if the confessed facts supported it.

The Supreme Court's first major statement on defaults in multi-defendant cases came out of equity. In Frow v. De La Vega, 82 U.S. 552 (1872), a bill charged several defendants with a joint fraud. Frow defaulted; the others answered, went to trial, and won. The lower court had already entered a final decree against Frow alone. The Supreme Court reversed, calling the result "unseemly and absurd": the same court would have declared the fraud real as to one defendant and imaginary as to the rest. The proper course, the Court said, was to enter Frow's default and wait for the outcome against the answering defendants, entering a final decree against the defaulter only if the plaintiff prevailed on the merits.

The Federal Rules of Civil Procedure took effect in 1938 with Rule 55 in recognizably modern form, and the core text has changed little since. The 2007 restyling replaced "shall" with "must" and tidied the language. The 2009 time-computation amendments converted most short periods to multiples of seven, which is why the answer period is 21 days rather than the 20 many older lawyers remember and why Rule 55(b)(2) notice is 7 days rather than 3. A 2015 amendment added the word "final" to Rule 55(c), so that the rule now refers to setting aside "a final default judgment under Rule 60(b)," confirming that an interlocutory default judgment, one that does not dispose of all claims against all parties, remains revisable at any time under Fed. R. Civ. P. 54(b) without satisfying Rule 60(b).

The deeper constitutional floor was laid by the notice cases. Pennoyer v. Neff, 95 U.S. 714 (1877), itself a collateral attack on a default judgment, held that a personal judgment entered without jurisdiction over the defendant could be disregarded. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) supplied the modern test: due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." And Jones v. Flowers, 547 U.S. 220 (2006) added that when the sender learns its notice did not arrive, as when certified mail comes back unclaimed, it must take additional reasonable steps if any are available. Default practice sits on top of these cases. Every defaulted defendant's best argument, when it exists, is that it never got the notice the Constitution requires.

What a default admits, and what it does not

The most important sentence in default law is not in Rule 55. It comes from Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975): the defendant, by its default, "admits the plaintiff's well-pleaded allegations of fact," but "is not held to admit facts that are not well-pleaded or to admit conclusions of law," and "a default does not in itself warrant the court in entering a default judgment. There must be a sufficient basis in the pleadings for the judgment entered." Every circuit says something similar. The Fourth Circuit put it this way in Ryan v. Homecomings Financial Network, 253 F.3d 778 (4th Cir. 2001): the court must determine whether the well-pleaded allegations support the relief sought. The Second Circuit in Mickalis said the court must accept the factual allegations as true and draw reasonable inferences in the plaintiff's favor, but must also decide whether those allegations establish liability as a matter of law.

Three practical consequences follow.

The complaint has to state a claim. Courts increasingly evaluate a default judgment motion against the plausibility standard of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Eleventh Circuit described the inquiry in Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239 (11th Cir. 2015), as akin to deciding a motion to dismiss for failure to state a claim. A conclusory complaint that would not survive Rule 12(b)(6) will not support a default judgment either, which is why plaintiffs sometimes amend before moving. The Rule 15 mechanics of doing that, and the reservice obligation that comes with a new claim, are covered in Amending Pleadings Under Rule 15: Leave to Amend, Relation Back, and the Scheduling Order Trap.

Damages are not admitted. "While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages," the Second Circuit held in Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155 (2d Cir. 1992). The Ninth Circuit's version, in Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977), is that the factual allegations are taken as true "except those relating to the amount of damages." The plaintiff must prove the amount with evidence, as Credit Lyonnais Securities (USA), Inc. v. Alcantara, 183 F.3d 151 (2d Cir. 1999) emphasized when it required the district court to ascertain damages "with reasonable certainty."

Relief is capped by the demand. Rule 54(c) says a default judgment "must not differ in kind from, or exceed in amount, what is demanded in the pleadings." The reason is notice: a defendant who reads a complaint asking for $50,000 may rationally decide not to spend $80,000 defending it, and the rule protects that decision. A complaint that asks for "damages in an amount to be proven at trial" invites a fight over what the defendant was told. A complaint that asks only for damages cannot support an injunction on default, and a complaint that does not plead a fee-shifting basis cannot support a fee award on default. Plaintiffs who want a specific number should plead it, or plead the formula that produces it.

What the court checks before it enters judgment

A default judgment is entered in the absence of the person most motivated to find its flaws, so judges do some of that work themselves. The checks fall into three groups.

Power: subject-matter jurisdiction, personal jurisdiction, and service

Subject-matter jurisdiction can never be waived, and a court has an independent obligation to confirm it in every case, defaulted or not. Personal jurisdiction is different, because a defendant can waive it. But waiver by silence is not the same as consent, and a judgment entered without personal jurisdiction is void. The Ninth Circuit held in In re Tuli, 172 F.3d 707 (9th Cir. 1999), that a court asked to enter a default judgment has an affirmative duty to look into its jurisdiction over both the subject matter and the parties. The Second Circuit was more permissive in Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207 (2d Cir. 2010), holding that a court may, but need not, raise personal jurisdiction on its own before entering a default judgment, and that it should give the plaintiff a chance to establish jurisdiction before dismissing.

Service is the procedural precondition for personal jurisdiction. "Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied," the Court said in Omni Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987). A plaintiff seeking default judgment should therefore file proof of service that shows the method, the person served, that person's authority to accept, and the rule that authorizes the method under Fed. R. Civ. P. 4. For foreign defendants, the method has to be one Rule 4(f) allows, and if the Hague Service Convention applies it is mandatory, as Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) explains. The Convention's own Article 15 restricts default judgments until service is established or a waiting period has run, and Article 16 gives a defendant who did not learn of the case in time a path to relief. The methods themselves are surveyed in Service of Process: Domestic and International Methods That Work.

Court-ordered alternative service under Rule 4(f)(3) is the modern workhorse for elusive foreign defendants. In Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002), the Las Vegas casino sued a Costa Rican internet gambling business that used a confusingly similar name and could be reached reliably only by email. The Ninth Circuit approved email service under Rule 4(f)(3) as "reasonably calculated" to give notice under Mullane, and it affirmed the default judgment entered after the defendant refused to comply with discovery orders. Email service has since become routine in online infringement cases, including the "Schedule A" cases discussed below.

Personal jurisdiction over an online seller is its own question. The constitutional framework of International Shoe Co. v. Washington, 326 U.S. 310 (1945), Walden v. Fiore, 571 U.S. 277 (2014), and Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021) applies to absent defendants exactly as it applies to present ones. In NBA Properties, Inc. v. HANWJH, 46 F.4th 614 (7th Cir. 2022), the Seventh Circuit held that a foreign online store that shipped a counterfeit product to an Illinois address was subject to specific jurisdiction there, even though the only Illinois sale was a test purchase by the plaintiff's investigator. For the broader doctrine, see Personal Jurisdiction Over Online and Foreign Defendants: From Zippo to Ford Motor.

Protected defendants: servicemembers, minors, incompetents, the United States, and foreign states

Servicemembers. The Servicemembers Civil Relief Act, at 50 U.S.C. § 3931, applies to any civil action in which the defendant does not make an appearance. Before entering judgment for the plaintiff, the court must require an affidavit stating whether the defendant is in military service and "showing necessary facts to support the affidavit," or stating that the plaintiff is unable to determine whether the defendant is in military service. A declaration under penalty of perjury satisfies the requirement. If the defendant is in military service, the court may not enter judgment until it appoints an attorney to represent the servicemember, and it must stay the case for at least 90 days on request or on its own if there may be a defense the servicemember cannot present without being there. Knowingly filing a false affidavit is a federal crime. And under § 3931(g), a servicemember against whom a default judgment was entered during service, or within 60 days after it ended, can reopen the judgment by applying within 90 days after leaving service and showing that military service materially affected the ability to make a defense and that there is a meritorious or legal defense. Practitioners check status through the Defense Manpower Data Center's SCRA website and attach the printed certificate to the affidavit. The statute applies to individuals; for an entity defendant, the affidavit simply says so. More on servicemember protections is in Military Legal Issues: The UCMJ, Servicemember Protections, and Employment Rights.

Minors and incompetent persons. The clerk can never enter a default judgment against them, and a court can do so under Rule 55(b)(2) only if they are represented by a general guardian, conservator, or similar fiduciary who has appeared.

The United States. Rule 55(d) permits a default judgment 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." In practice the government rarely defaults, and when it misses a deadline courts almost always allow it to respond.

Foreign states. The Foreign Sovereign Immunities Act imposes the parallel requirement. Under 28 U.S.C. § 1608(e), no default judgment may be entered against a foreign state or its agency or instrumentality "unless the claimant establishes his claim or right to relief by evidence satisfactory to the court," and a copy of the judgment must be sent to the foreign state by a method prescribed for service. Jurisdiction depends on a statutory exception to immunity under 28 U.S.C. § 1605, and the court must find one even if the state never appears, because 28 U.S.C. § 1330(a) confers jurisdiction only where the state "is not entitled to immunity." Service is strict: in Republic of Sudan v. Harrison, 587 U.S. 1 (2019), the Court set aside a default judgment of roughly $314 million for sailors injured in the bombing of the USS Cole because the service packet had been mailed to Sudan's foreign minister at the Sudanese embassy in Washington rather than to the minister's office in Khartoum. On the other side, the D.C. Circuit has warned against demanding more evidence than a defaulting state's own absence makes possible; in Han Kim v. Democratic People's Republic of Korea, 774 F.3d 1044 (D.C. Cir. 2014), it reversed a district court that had refused default judgment in a case about the abduction of a missionary for want of direct evidence that only North Korea could have supplied. Even after judgment, execution against a foreign state's property waits for a court order under 28 U.S.C. § 1610(c) finding that a reasonable time has elapsed since judgment and notice, and the property must fall within an execution exception. Discovery about those assets is broad; see Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134 (2014).

Discretion: the Eitel factors

Even when every formal requirement is met, a party "is not entitled to a default judgment as of right." Rule 55(b)(2) says the court "may" enter one, and the circuits have built multi-factor tests to channel that discretion. The best known is from Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986), which lists seven considerations:

1. the possibility of prejudice to the plaintiff if judgment is refused;
2. the merits of the plaintiff's substantive claim;
3. the sufficiency of the complaint;
4. the sum of money at stake;
5. the possibility of a dispute concerning material facts;
6. whether the default was due to excusable neglect; and
7. the strong policy underlying the Federal Rules favoring decisions on the merits.

District courts in the Ninth Circuit walk through every factor in nearly every default judgment order, and courts elsewhere borrow the list. Factors two and three, the merits and the sufficiency of the complaint, usually decide the motion; they are the Nishimatsu inquiry by another name. Factor four cuts in an interesting direction: the larger the sum, the more a court wants evidence and the more reluctant it is to award it without a contest. A request for millions of dollars in statutory damages against an absent small seller draws scrutiny that a request for an unpaid invoice does not. Factor seven never favors the plaintiff, but it rarely defeats a motion against a defendant who was properly served and chose not to come.

Proving the amount: declarations, hearings, and statutory damages

Rule 55(b)(2) lets the court "conduct hearings or make referrals" when it needs to conduct an accounting, determine the amount of damages, establish the truth of any allegation by evidence, or investigate any other matter, "preserving any federal statutory right to a jury trial." A hearing is permitted, not required. The Second Circuit held in Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105 (2d Cir. 1997), that a court can award damages without a hearing as long as it ensures there is a basis for the amount, and the Seventh Circuit's statement in Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319 (7th Cir. 1983), is the one most often quoted: damages must be proved unless the amount "is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits."

In practice that means the damages showing is built from declarations under 28 U.S.C. § 1746, business records that would qualify under Fed. R. Evid. 803(6), and summaries that satisfy Fed. R. Evid. 1006. A judge who sees a spreadsheet of invoices, the contract's interest clause, a computation, and a declarant who explains each is likely to rule on the papers. A judge who sees a lost-profits number with no model behind it will set a hearing or refer the matter to a magistrate judge, and the plaintiff who could have proved the case on paper will spend two more months doing it in person.

Some recurring components have their own rules:

Statutory damages deserve a word of caution. Copyright statutory damages run from $750 to $30,000 per work, up to $150,000 for willful infringement, and Lanham Act counterfeiting damages from $1,000 to $200,000 per counterfeit mark per type of goods, up to $2,000,000 for willful counterfeiting. Many courts infer willfulness from the default itself, reasoning that the well-pleaded allegation of willfulness is admitted. But the choice of a number within the range is a judicial judgment, not an admitted fact, and courts look for a relationship to actual harm, the defendant's profits, and deterrence. A plaintiff who asks for the statutory maximum for every work, without explaining why, is inviting a reduced award. The doctrine is collected in Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees.

Injunctions on default also have to satisfy the usual tests. The Trademark Modernization Act of 2020 added a rebuttable presumption of irreparable harm to 15 U.S.C. § 1116(a) on a finding of infringement, which a defaulted defendant will not rebut. Copyright plaintiffs proceed under 17 U.S.C. § 502 and must still satisfy eBay. Either way, the injunction must be specific; Mickalis is the cautionary tale.

Schedule A cases: default judgment at scale

The most prolific source of federal default judgments in the last decade has been the "Schedule A" case, most commonly filed in the Northern District of Illinois. A brand owner sues dozens or hundreds of online storefronts, identified only in a sealed schedule, obtains a temporary restraining order freezing their marketplace accounts, serves them by email under Rule 4(f)(3), and, when most do not appear, moves for default judgment awarding statutory damages and transferring the frozen funds. The model depends on default: the economics work only because most sellers never answer.

Judges have pushed back on parts of the model, questioning joinder of unrelated sellers, the size of statutory awards, sealing, and the adequacy of email service where the Hague Convention may apply. The doctrine and the defense playbook are in Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court. For present purposes the lesson is that every default safeguard described in this article (service, jurisdiction, well-pleaded facts, proof of damages, Rule 54(c), and Frow) is tested hardest in these mass cases, and a seller who does appear, even late, often has more leverage than the default posture suggests.

Multiple defendants: Frow in the modern courtroom

Frow survives, but in a narrower form than its language suggests. Courts read it to bar a default judgment against one defendant that would be logically inconsistent with a judgment on the merits in favor of a co-defendant. The Ninth Circuit applied it in In re First T.D. & Investment, Inc., 253 F.3d 520 (9th Cir. 2001), to defendants who were "similarly situated," even though they were not formally jointly liable, and the Eleventh Circuit took a similar approach in Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499 (11th Cir. 1984). Where liability is joint and several, many courts say Frow does not bar judgment against the defaulter on liability, but they still defer the damages determination until the claims against the others are resolved, to avoid inconsistent awards.

The practical rule for plaintiffs is simple: when one defendant defaults and others defend the same theory, get the entry of default promptly and ask the court to defer judgment against the defaulter until the merits are decided, or ask for a judgment that expressly coordinates with the later result. Rule 54(b) requires an express determination that "there is no just reason for delay" before a judgment against fewer than all parties becomes final. For the defending co-defendants, Frow is a shield worth raising: a default judgment finding the facts against an absent co-defendant can be invoked as persuasive, if not preclusive, against them.

Getting out: two standards, one set of factors

Rule 55(c) creates two doors. An entry of default may be set aside "for good cause." A final default judgment may be set aside only under Rule 60(b). Courts consistently describe the first door as wider. The Seventh Circuit said in Cracco v. Vitran Express, Inc., 559 F.3d 625 (7th Cir. 2009), that the same factors apply but are applied "more liberally" before judgment. The reason is finality. Before judgment, nothing has been adjudicated and the plaintiff has lost only time. After judgment, the plaintiff holds an enforceable right and the system's interest in final judgments weighs against reopening it. Courts also use the flexibility of Rule 55(c) to impose conditions: in Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508 (9th Cir. 1986), the district court set aside an entry of default on condition that the defendant pay the plaintiff's fees and costs, and when the defendant did not pay, the Ninth Circuit upheld the default judgment that followed.

The factors themselves are close to universal. Courts ask three core questions, sometimes with additions:

Culpability and willfulness

The first factor is where the circuits differ most, and where the outcome is usually decided. The Second Circuit treats willfulness as the most important factor and looks for conduct that is more than merely negligent or careless. In Enron Oil, an oil trader named Ronald Fuchs, sued in a sprawling RICO case over sham gasoline contracts, missed his pleading deadlines; the clerk entered his default, and the district court refused to set it aside and later entered a purported default judgment for more than $257 million. The Second Circuit reversed the refusal to set aside the default, explaining that such "extreme measures should be reserved by a trial court as a final, not a first, sanction," stressing the strong policy favoring resolution on the merits, and holding that doubts should be resolved in favor of the party seeking relief.

The Ninth Circuit's test is the most protective. In TCI Group, Janet Knoebber's husband had died of lung cancer at 40, and his employer's life insurance plan filed an interpleader action to decide whether she or her mother-in-law should receive a $50,000 policy. Janet, who was under psychiatric care, taking antidepressants, and in the middle of moving across the country with two children, did not answer the mother-in-law's cross-claim, and a default judgment followed. The Ninth Circuit held that a defendant's conduct is culpable only if the defendant "received actual or constructive notice of the filing of the action and intentionally failed to answer," and that "intentionally" means conduct that is willful, deliberate, or done in bad faith, such as an effort to take advantage of the opposing party, interfere with judicial decision-making, or otherwise manipulate the legal process. A defendant who offers a credible, good-faith explanation negating that intent is not culpable. The court added that the meritorious-defense burden "is not extraordinarily heavy," and that a legally sophisticated defendant who knowingly fails to answer may be held to a stricter standard. In United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085 (9th Cir. 2010), the court reaffirmed that test, reversed a refusal to set aside the default of an unrepresented claimant in a forfeiture case, and held that the same standard governs Rule 55(c) and Rule 60(b)(1) in the default context.

Other courts are less forgiving of careless neglect. A company that ignores a properly served complaint because its registered agent's forwarding email went to a former employee's inbox may get relief in one circuit and be denied it in another. The question to ask is not "did we mean to default?" but "how will this court characterize what happened, given its own cases?"

Meritorious defense

A meritorious defense is not a defense the movant is likely to win. It is a defense that, if proved at trial, would constitute a complete defense. The Sixth Circuit, describing its earlier decision in United Coin Meter Co. v. Seaboard Coastline Railroad, 705 F.2d 839 (6th Cir. 1983), explained in Shepard Claims that a meritorious defense is one "good at law," without reference to the likelihood of success. But the showing must be concrete. Courts reject general denials and conclusory assertions, and they want either a proposed answer or, better, a declaration setting out specific facts. Pratt's photographs, moisture log, and the warehouse email are exactly what a court wants to see; a declaration that "the goods were defective" without more is not.

Prejudice

Delay alone is not prejudice. The plaintiff must show that setting aside the default would harm its ability to pursue the claim: lost evidence, unavailable witnesses, increased opportunity for fraud or collusion, or that the defendant has dissipated assets in the interim. The cost of litigating a case the plaintiff hoped to win by default is not prejudice, because that is the cost of the merits. Plaintiffs who claim prejudice should identify the specific evidence or witness that has been lost.

Promptness

Nearly every test includes, explicitly or implicitly, whether the defendant moved quickly once it learned of the default. A motion filed within days of discovering the default, supported by a declaration explaining the lapse and a proposed answer, wins far more often than the same motion filed four months later. The delay after notice of the default often matters more to the court than the original failure to answer.

Rule 60(b): the grounds that matter after judgment

Once a final default judgment is entered, the defendant must fit within one of Rule 60(b)'s six grounds, and timing is governed by Rule 60(c)(1): every motion must be made "within a reasonable time," and motions under (b)(1), (2), and (3) must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Filing the motion does not suspend the judgment's operation; under Rule 60(c)(2), it "does not affect the judgment's finality or suspend its operation," so a defendant facing collection must also ask for a stay under Fed. R. Civ. P. 62. Rule 62(a) gives an automatic stay of only 30 days after entry.

Excusable neglect: Pioneer and Kemp

The Supreme Court's definition of "excusable neglect" comes from a bankruptcy case. In Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), a creditor's lawyer filed a proof of claim after the bar date, which had appeared in an unusual place: tucked into a notice of a creditors' meeting. The Court held that "neglect" includes "inadvertence, mistake, or carelessness" as well as intervening circumstances beyond the party's control, and that whether neglect is "excusable" is "at bottom an equitable" determination, "taking account of all relevant circumstances surrounding the party's omission." It listed four factors that every court now uses: the danger of prejudice to the other side, the length of the delay and its potential impact on proceedings, the reason for the delay, including whether it was within the movant's reasonable control, and whether the movant acted in good faith. The Court also held that clients are accountable for their lawyers' omissions, so "inexcusable" lawyer neglect is not excused because the client was blameless.

Pioneer dealt with Bankruptcy Rule 9006(b)(1), but courts apply its analysis to Rule 60(b)(1) and Rule 6(b)(1)(B). It is the reason a default caused by an ordinary office mistake, promptly corrected, can be undone.

Kemp v. United States, 596 U.S. 528 (2022) clarified the scope of "mistake." The Court held that the term includes a judge's errors of law, not just a party's mistakes. That sounds generous, but its practical effect is to close a door: a motion arguing that the judge got the law wrong is a Rule 60(b)(1) motion, subject to the one-year limit, and cannot be repackaged under Rule 60(b)(6) to escape it. Kemp's motion, filed more than a year after the judgment he challenged, was therefore untimely. A defaulted defendant who believes the court misapplied the law in entering judgment, for instance by awarding damages the complaint did not support, must move within a year.

Void judgments: Peralta and Espinosa

Rule 60(b)(4) is the defaulted defendant's strongest weapon, because a void judgment must be vacated and the "reasonable time" requirement is applied loosely or not at all. Many circuits hold that a motion to vacate a void judgment can be made at any time; the Fifth Circuit so held in Jackson v. FIE Corp., 302 F.3d 515 (5th Cir. 2002), where the defendant challenged personal jurisdiction years after judgment.

Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988) is the constitutional anchor. A Texas hospital obtained a default judgment against Peralta on a guaranty claim after service that was defective under state law because it occurred after the return date of the citation. Texas courts refused to set it aside because Peralta could not show a meritorious defense. The Supreme Court reversed. A judgment entered without notice or service violates due process, and the defendant need not show that the outcome would have been different. Had he been notified, Peralta might have settled, paid on terms, sold his property in an orderly way, or impleaded others; due process protected his right to make those choices.

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) supplied the limit. A bankruptcy court confirmed a plan that discharged student loan interest without the adversary proceeding and undue-hardship finding the Code required. The creditor had actual notice of the plan and did not object, then sought to have the confirmation order declared void years later. The Court refused. "A void judgment is not simply an erroneous one," and Rule 60(b)(4) "applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard." Lower courts often describe the jurisdictional category as the absence of even an "arguable basis" for jurisdiction, a phrase the Court noted without adopting. For defaulted defendants the takeaway is that voidness arguments must be about power and notice (no service, defective service, no personal jurisdiction, no subject-matter jurisdiction), not about the merits or ordinary procedural error.

Who bears the burden matters. Courts generally hold that a defendant with actual notice of the action, attacking a facially valid return of service, carries the burden of proving that service was defective. The Ninth Circuit said in SEC v. Internet Solutions for Business Inc., 509 F.3d 1161 (9th Cir. 2007), that such a defendant must prove the defect by "strong and convincing evidence." A defendant who simply says "I was never served," against a process server's sworn return, usually loses.

Extraordinary circumstances: Rule 60(b)(6)

Rule 60(b)(6) is a catchall reserved for "extraordinary circumstances," and it is available only when no other clause applies. Two old cases mark its boundaries. In Klapprott v. United States, 335 U.S. 601 (1949), the government obtained a default judgment cancelling Klapprott's citizenship while he was in jail, ill, and without a lawyer; the Court held that he could seek relief under the "any other reason" clause more than four years later. In Ackermann v. United States, 340 U.S. 193 (1950), by contrast, a party who made a "free, calculated, deliberate" choice not to appeal could not use Rule 60(b)(6) to escape the consequences. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) added a three-part framing (the risk of injustice to the parties, the risk of injustice in other cases, and the risk of undermining public confidence in the judicial process), Gonzalez v. Crosby, 545 U.S. 524 (2005) emphasized that relief is rare, and Buck v. Davis, 580 U.S. 100 (2017) found such circumstances in a capital case. Most recently, BLOM Bank SAL v. Honickman, 605 U.S. 204 (2025) held that the extraordinary-circumstances requirement is not relaxed when the movant also wants leave to amend under Rule 15(a); a party must clear Rule 60(b)(6) first.

For defaults, Rule 60(b)(6) usually comes up in two settings: gross misconduct by the defendant's own lawyer that amounts to abandonment (as opposed to ordinary negligence, which falls under (b)(1)), and situations where the one-year limit has run but something truly unusual prevented the defendant from acting. It is a narrow path. Plead it in the alternative, but do not build the motion around it.

Fraud on the court and independent actions

Rule 60(d) preserves the court's power to entertain an independent action to relieve a party from a judgment and to set aside a judgment for fraud on the court. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) is the classic fraud-on-the-court case. A fabricated proof of service, if proved, may be both a Rule 60(b)(3) fraud and a Rule 60(b)(4) voidness problem, and in an egregious case it may support relief under Rule 60(d)(3) after the one-year period.

The gamble of defaulting on purpose

A defendant who believes the court lacks personal jurisdiction has a choice. It can appear, move to dismiss under Rule 12(b)(2), and, if it loses, be bound by that determination; under Baldwin v. Iowa State Traveling Men's Association, 283 U.S. 522 (1931), a defendant who litigates jurisdiction and loses cannot relitigate it collaterally. Or it can stay away, let the plaintiff take a default judgment, and attack the judgment as void when the plaintiff tries to enforce it. The Court acknowledged that second option in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982): a defendant "is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding." The D.C. Circuit described the same choice in Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543 (D.C. Cir. 1987).

The risk is total. If the jurisdictional challenge fails, the defendant has forfeited every defense on the merits, and the judgment stands for whatever the plaintiff proved without opposition. A defendant who appears and then quits, as in Mickalis, may have forfeited even the jurisdictional objection. Deliberate default is a legitimate strategy for a foreign defendant with no U.S. assets and a strong jurisdictional position, and for almost nobody else.

State courts do it differently

Many defaults happen in state court and are then removed, enforced, or domesticated in federal court, and state procedure often gives defendants more room than Rule 60(b).

• California. Cal. Civ. Proc. Code § 473(b) allows discretionary relief from a default or default judgment for "mistake, inadvertence, surprise, or excusable neglect" within a reasonable time not exceeding six months, and mandatory relief when the application is accompanied by an attorney's sworn affidavit attesting to the attorney's own mistake, inadvertence, surprise, or neglect, with the attorney ordered to pay the other side's fees and costs. Cal. Civ. Proc. Code § 473.5 covers defendants whose lack of actual notice in time to defend was not caused by avoidance of service or inexcusable neglect, with outside limits measured from the default judgment and from written notice of it. The discretionary application must be accompanied by the proposed answer. The Legislature has enacted revised versions of sections 473, 473.5, and 585 that become operative on January 1, 2027, so California practitioners should check which version governs their motion. A judgment void on its face can be set aside at any time under section 473(d).
• Texas. The Craddock test, from Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex. Comm'n App. 1939), grants a new trial after default if the failure to answer was not intentional or the result of conscious indifference, the defendant sets up a meritorious defense, and a new trial will not cause delay or otherwise injure the plaintiff. Peralta held that the meritorious-defense prong cannot be applied where service was defective.
• New York. N.Y. C.P.L.R. 5015(a)(1) allows vacatur for excusable default on a motion made within one year after service of the judgment with notice of entry, and N.Y. C.P.L.R. 317 provides a separate route for defendants served by a method other than personal delivery who did not receive actual notice.

Consumers facing state-court collection defaults should also see Defending a Debt Collection Lawsuit: A Practical Guide.

After judgment: enforcement, registration, and appeal

A default judgment is a judgment. It accrues post-judgment interest under 28 U.S.C. § 1961 from the date of entry, it is enforced by writ of execution under Fed. R. Civ. P. 69 using the procedures of the state where the court sits, and it supports post-judgment discovery into the debtor's assets. It must be set out in a separate document under Fed. R. Civ. P. 58, and enforcement is stayed automatically for 30 days under Rule 62(a). Collection mechanics are covered in Collecting a Judgment: Discovery in Aid of Execution, Liens, Levies, and Garnishment.

When the debtor's assets are in another district, the creditor registers the judgment there under 28 U.S.C. § 1963 by filing a certified copy. Registration is available once the judgment "has become final by appeal or expiration of the time for appeal," or earlier "when ordered by the court that entered the judgment for good cause shown." A registered judgment has the same effect as a judgment of the registering court. Defaulted defendants sometimes try to attack the judgment in the registering court; most courts allow a Rule 60(b)(4) voidness challenge there but send other Rule 60(b) arguments back to the rendering court. Enforcing a U.S. default judgment abroad is harder: many foreign courts refuse to recognize default judgments where service did not comply with the Hague Convention or local law, which is one more reason to serve properly at the start. For the reverse situation, see Enforcing a Foreign Judgment in the United States: A Practical Guide.

Appeals follow the ordinary rules, with twists. An entry of default is interlocutory and not appealable. A final default judgment is appealable under 28 U.S.C. § 1291 within the time set by Fed. R. App. P. 4(a), usually 30 days. A defendant who appeals directly, without first moving in the district court, can usually raise only issues apparent on the record: jurisdiction, the sufficiency of the complaint, and the amount or kind of relief. The more common path is a Rule 60(b) motion followed, if it is denied, by an appeal from the denial, which is reviewed for abuse of discretion. A Rule 60(b) motion filed within 28 days of judgment resets the appeal clock under Fed. R. App. P. 4(a)(4)(A)(vi); one filed later does not. The general post-judgment playbook is in Filing or Opposing Post-Trial Motions Under Rules 50, 59, and 60: A Practical Guide.

Practical implications for each side

For plaintiffs

• Serve as if the defendant will challenge service later. Use a method that is unambiguous under Rule 4, document it in detail, and for foreign defendants use the Hague Convention or obtain a Rule 4(f)(3) order before relying on email. A default judgment on doubtful service is a judgment that can be undone at any time.
• Plead the number. Rule 54(c) caps the judgment at the demand. Plead the principal, the interest formula, and the fee basis.
• Plead the elements with facts. The default admits only well-pleaded facts. A complaint that would survive Rule 12(b)(6) supports a default judgment; one that would not, does not.
• Move promptly for entry of default, then build the damages record before moving for judgment. Courts are more receptive to motions supported by complete declarations than to motions that promise proof later.
• Respect Frow. When co-defendants are defending the same theory, ask the court to defer judgment against the defaulter.
• Do not overreach. Maximum statutory damages, sweeping injunctions, and fee requests without records invite reductions and appeals, and they make a later Rule 60(b) motion more sympathetic.
• Give notice even when not required. Mailing the motion for default judgment to the defendant's known addresses, when Rule 55(b)(2) does not require it, makes a later claim of surprise harder to sustain and is required by some local rules.

For defendants

• Calendar the response date the day papers arrive, from the date of service. If the date is unclear, assume the earliest plausible date.
• Ask for an extension in writing and file the stipulation. Courts routinely grant first extensions; they do not enforce handshake agreements.
• If you miss the deadline, move before the clerk enters default. A Rule 6(b)(1)(B) motion with a proposed answer attached usually resolves the problem.
• If default has been entered, move under Rule 55(c) immediately. Explain the lapse in a declaration from a person with knowledge, attach a proposed answer, and set out the meritorious defense in specific facts.
• If judgment has been entered, identify the right Rule 60(b) ground and the clock. Excusable neglect has a one-year outer limit, but courts measure "reasonable time" from when you learned of the judgment, and months of inaction can defeat a motion filed well within a year. Void-judgment arguments have no fixed limit, but delay still hurts credibility.
• Ask for a stay of enforcement. The motion does not stop collection by itself.
• Consider a stipulation. Many plaintiffs will agree to set aside a default in exchange for an immediate answer, a cost payment, or a short schedule, because they know the motion will probably be granted.
• Entity defendants need a lawyer. An owner's letter to the court is not an appearance.

Extended worked example: Kestrel Hardwood Supply v. Pratt Millwork

Return to the millwork shop. The facts, restated with the details that matter:

• Kestrel sued Pratt Millwork, LLC, in the Southern District of Ohio on a diversity breach-of-contract claim, demanding "$184,600, together with prejudgment interest at the contract rate of 1.5% per month, costs, and attorney's fees as provided in the parties' credit agreement."
• Service was made on Pratt's office manager at the shop. Ohio's rules, which Rule 4(e)(1) and 4(h)(1)(A) incorporate, and Rule 4(h)(1)(B) both raise a question whether an office manager is an officer, managing or general agent, or other agent authorized to receive service for an LLC. Kestrel's return of service says the manager stated she was "authorized to accept."
• Pratt did not answer by day 21. On day 34 Kestrel requested entry of default with a declaration showing service and non-response, and the clerk entered it. On day 52 Kestrel requested a clerk's judgment under Rule 55(b)(1) for $184,600 plus costs, supported by an affidavit attaching the invoices and the credit agreement. Kestrel did not include interest or fees, apparently to keep the request within the "sum certain" category. The affidavit stated that Pratt Millwork is a limited liability company and not an individual in military service.
• The clerk entered judgment. On day 90 Kestrel registered the judgment in the Northern District of Ohio, where Pratt banks, and garnished the account.

Day 92: Pratt retains counsel. She has three possible grounds and must choose among them, or more realistically, order them.

Rule 60(b)(4), void for defective service. If the office manager lacked authority to accept service for the LLC, service was invalid and the judgment void under Omni Capital and Peralta. But Pratt had actual notice: the papers reached him. Under the burden rule courts apply to a defendant with actual notice who attacks a facially valid return, counsel will need a declaration from the office manager explaining her actual role, her lack of authority, and what she told the process server. A conflict between the manager and the server will be resolved by the judge, possibly at an evidentiary hearing. The argument is worth making because it is not subject to the one-year limit and does not require a meritorious defense, but it is not certain.

Rule 60(b)(1), excusable neglect. Pratt read the complaint and put it in a drawer because he thought it was a continuation of the dispute. Under Pioneer's factors, the delay (from day 21 to day 92) is moderate, prejudice to Kestrel is limited (no evidence has been lost), and Pratt acted in good faith. The reason for the delay is the weak factor: it was entirely within his control. In a circuit following the Ninth Circuit's TCI Group test, Pratt's misunderstanding is not "culpable" in the bad-faith sense. The Sixth Circuit, where Ohio sits, applies the Shepard Claims and United Coin Meter factors (prejudice, meritorious defense, and whether culpable conduct of the defendant led to the default), and it generally applies them more strictly after judgment than before. Counsel's job is to show that Pratt's conduct, while careless, was not an intent to thwart the proceedings or a reckless disregard of them, and to move fast.

Rule 60(b)(1) or (4), the clerk's power. Was the clerk authorized to enter the judgment at all? The claim was for a sum certain only if the amount was undisputed on the face of the papers. Kestrel's complaint demanded interest and fees as well, and it carved those out only in its request. A court might conclude that a claim whose amount the defendant actively disputed (and had told the plaintiff, in writing, that it disputed) was not appropriate for a clerk's judgment. That argument goes to the procedure rather than the court's power, so most courts would treat it as a Rule 60(b)(1) issue, but it strengthens the equities.

The meritorious defense. Counsel prepares Pratt's declaration describing the delivery, the warped boards, the moisture readings, and the rejection, and attaches the photographs and the warehouse lead's email. Under Ohio's version of UCC § 2-602, a buyer who rightfully rejects nonconforming goods within a reasonable time and notifies the seller is not liable for the price. That is a defense "good at law," supported by specific facts.

The stay. Counsel moves in the Southern District for a stay of enforcement pending the Rule 60(b) motion and offers to post the garnished funds as security. She also files a short notice in the Northern District, where the judgment was registered, so that the garnishment court knows a motion is pending.

The stipulation. Before filing, counsel calls Kestrel's lawyer, sends the draft motion and declarations, and proposes a stipulation: the default and default judgment are vacated; Pratt files its answer within seven days; the garnished funds stay in an escrow account pending judgment; and Pratt pays Kestrel's fees for the default proceedings, capped at an agreed amount. Kestrel's lawyer, looking at the warehouse email and a judge who will probably grant the motion anyway, agrees. The court enters the stipulated order.

The lesson is not that Pratt escaped. It is that he spent roughly three months, two sets of legal fees, a payroll crisis, and his best negotiating leverage to get back to where he would have been for the price of a calendar entry on day one.

Common mistakes

1. Treating the lawsuit as a letter. The most common cause of default is a defendant who reads the complaint and decides it is part of an ongoing negotiation.
2. Relying on an informal extension. Unwritten or unfiled extensions are unenforceable in practice.
3. Forgetting the answer after a partial motion to dismiss. Rule 12(a)(4) gives 14 days after the ruling.
4. Entity defendants appearing without counsel. Filings by non-lawyers on behalf of entities are routinely struck.
5. Plaintiffs asking the clerk for unliquidated amounts. Interest at an unspecified rate, fees, and damages requiring judgment are not a "sum certain."
6. Skipping the SCRA affidavit or filing a boilerplate one. The affidavit must show facts, typically a Defense Manpower Data Center status report run close to the filing date.
7. Damages demands beyond the complaint. Rule 54(c) is strictly enforced.
8. Ignoring Frow. A judgment against a defaulter that conflicts with a later merits ruling for co-defendants may be vacated.
9. Waiting. Defendants who learn of a default and spend months gathering documents before moving often lose on the promptness factor alone.
10. Conclusory meritorious-defense showings. "We have good defenses" is not a showing.
11. Choosing Rule 60(b)(6) to escape the one-year limit. After Kemp, a motion that is really about mistake, including judicial mistake, cannot be relabeled.
12. Forgetting to ask for a stay. A pending motion does not stop garnishment.

Frequently asked questions

Can a court enter a default judgment without a hearing? Yes. Rule 55(b)(2) permits but does not require a hearing. If the damages are liquidated or can be computed from documents and detailed declarations, many courts rule on the papers. If the defendant has appeared, it must receive written notice of the application at least 7 days before any hearing.

Is a default judgment res judicata? Generally, yes, as to the claims adjudicated: a valid default judgment has claim-preclusive effect. Issue preclusion is different, because issues decided by default were not "actually litigated," and most courts do not give default judgments issue-preclusive effect in later cases on different claims. See Res Judicata, Collateral Estoppel, and the Preclusive Effect of Judgments.

Does the plaintiff have to tell me it is seeking a default judgment? Only if you have "appeared personally or by a representative," in which case Rule 55(b)(2) requires 7 days' written notice before the hearing. Some circuits read "appeared" broadly to include informal contacts, such as settlement communications showing a clear intent to defend. Many local rules require notice to all defaulted parties regardless.

What if I was never served but found out about the case anyway? If service was invalid, the judgment is void and must be vacated under Rule 60(b)(4), and under Peralta you need not show a meritorious defense. But actual knowledge may shift the burden to you to prove the defect, and a court may find you waived service defects if you appeared and litigated without raising them. Move quickly, and support the motion with detailed declarations.

Can I get a default set aside if my lawyer missed the deadline? Often, especially before judgment. Under Pioneer, a lawyer's neglect is attributed to the client, but ordinary negligence promptly corrected can still be "excusable." Gross misconduct amounting to abandonment may support relief under Rule 60(b)(6). California's mandatory relief provision, by contrast, makes relief automatic on an attorney's affidavit of fault in state court.

How long does a default judgment last? Federal judgments are enforceable for the period allowed by the law of the state where the court sits for enforcement purposes under Rule 69, and many states allow renewal. Liens and renewal procedures vary; see Judgment Enforcement and Collections Toolkit.

Can a plaintiff default a foreign government? Only by establishing its claim with evidence satisfactory to the court under § 1608(e), after strict service under § 1608(a) or (b), and only if an FSIA immunity exception applies. Execution requires a further court order under § 1610(c).

Does a defaulting defendant have a right to a jury on damages? Generally not, unless a federal statute preserves one; Rule 55(b)(2) preserves "any federal statutory right to a jury trial," and courts have read that narrowly. A defaulting party has also usually forfeited any jury demand it might have made under Fed. R. Civ. P. 38.

Takeaways

• Default is a two-step process, and the second step is where the plaintiff must prove its case on paper.
• The complaint sets the ceiling. Plaintiffs should plead facts, amounts, and fee bases with default in mind.
• Service and jurisdiction are the foundation. A judgment without them is void and will not survive a challenge.
• Protected defendants (servicemembers, minors, the United States, and foreign states) require extra steps, and skipping them puts the judgment at risk.
• Before judgment, good cause is a forgiving standard; after judgment, Rule 60(b)'s grounds and clocks control.
• Willfulness, meritorious defense, and prejudice decide most motions, and promptness after discovering the default often decides the willfulness question.
• Most defaults are cheaper to resolve by stipulation than by motion, for both sides.

This document is general information, not legal advice for any particular situation. Deadlines and local rules vary by court and change over time; confirm them for your case.

Related Documents

Related Articles

• Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings: what a timely response looks like, so default never happens.
• Personal Jurisdiction Over Online and Foreign Defendants: From Zippo to Ford Motor: the jurisdictional ground most often used to attack a default judgment as void.
• Post-Trial Motions in Federal Court: Judgment as a Matter of Law, New Trial, Remittitur, and Relief From Judgment: Rule 60 in the broader post-judgment context.
• Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court: the mass-default model in IP enforcement.
• Amending Pleadings Under Rule 15: Leave to Amend, Relation Back, and the Scheduling Order Trap: amending before moving for default judgment, and reservice of new claims.
• Res Judicata, Collateral Estoppel, and the Preclusive Effect of Judgments: what preclusive effect a default judgment carries.
• Copyright Damages and Remedies: Statutory Damages, Profits, Injunctions, and Fees: the statutory damages ranges courts apply on default.
• Military Legal Issues: The UCMJ, Servicemember Protections, and Employment Rights: the SCRA protections behind the military-status affidavit.
• Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment: motions to compel and Rule 37 sanctions when discovery breaks down.

Related Guides

• Obtaining or Setting Aside a Default Judgment: A Practical Guide: step-by-step procedures for both sides.
• Service of Process: Domestic and International Methods That Work: serving defendants so that the judgment holds.
• Drafting an Answer and Affirmative Defenses: A Practical Guide: the proposed answer that should accompany every motion to set aside.
• Filing or Opposing Post-Trial Motions Under Rules 50, 59, and 60: A Practical Guide: Rule 60 motion practice and appeal timing.
• Defending a Debt Collection Lawsuit: A Practical Guide: where most consumer defaults happen.
• Enforcing a Foreign Judgment in the United States: A Practical Guide: recognition issues for judgments that cross borders.
• Moving for or Opposing Leave to Amend a Pleading: A Practical Guide: when the plaintiff must amend before seeking judgment.
• Bringing or Opposing a Motion to Compel Discovery: A Practical Guide: motions to compel and Rule 37 sanctions when discovery breaks down.

Related Checklists

• Default Judgment Checklist: A Practical Checklist: every step for each side as check-off tasks.
• Answer and Affirmative Defenses Checklist: A Practical Checklist: getting the answer filed on time and complete.
• Post-Trial Motion Checklist: A Practical Checklist: Rule 60 deadlines alongside Rules 50 and 59.
• Serving a Foreign Defendant Under the Hague Convention: A Practical Checklist: service steps that make a default judgment against a foreign party enforceable.
• Motion to Compel and Rule 37 Sanctions Checklist: A Practical Checklist: motions to compel and Rule 37 sanctions when discovery breaks down.

Related Toolkits

• Default Judgment Toolkit: Entry Requests, Damages Declarations, and Motions to Vacate: templates for every filing discussed here.
• Judgment Enforcement and Collections Toolkit: turning the judgment into money.
• Responsive Pleading Toolkit: Answer Templates, Affirmative Defense Libraries, and Counterclaim Outlines: the proposed answer to attach to a motion to set aside.
• Civil Procedure Toolkit: Pleadings, Jurisdiction, Preclusion, and Deadlines: deadline calculators and jurisdiction worksheets.
• Discovery Enforcement Toolkit: Deficiency Letters, Meet-and-Confer Records, and Rule 37 Motions: motions to compel and Rule 37 sanctions when discovery breaks down.