Summary. This guide takes both sides of a federal default through every step, from the day the answer deadline passes to the day the judgment is enforced or vacated. For plaintiffs it covers confirming service and the deadline, requesting entry of default, the Servicemembers Civil Relief Act check, choosing between a clerk's judgment and a court judgment, building the damages record, drafting the Rule 55(b)(2) motion and proposed judgment, and enforcing the result. For defendants it covers triage by procedural posture, stopping enforcement, building the declarations that explain the default and establish a meritorious defense, choosing among Rule 6(b), Rule 55(c), and the Rule 60(b) grounds, and negotiating a stipulation. Each step states what to do, why, the governing authority, common pitfalls, timing, and cost. A timeline and cost table, a worked example that runs through both sides of one case, common mistakes, an FAQ, and takeaways close the guide.

Juniper Ridge Coffee Roasters, a 40-employee roaster in Oakland, ended its wholesale agreement with Halvorsen Cafe Group, LLC, a six-location café chain based in Portland, after Halvorsen stopped paying invoices. Halvorsen kept using the JUNIPER RIDGE name and logo on its menus and cups for another four months. Juniper Ridge sued in the Northern District of California, relying on the agreement's forum clause, for $96,400 in unpaid invoices, contractual interest and fees, and an injunction under the Lanham Act. A registered agent accepted service for Halvorsen in Oregon. Twenty-one days later the docket showed nothing.

Juniper Ridge's lawyer now has a choice of paths. She can ask the clerk to enter default and then ask the clerk for judgment on the invoices; she can ask the court for a judgment that also includes the injunction and fees; or she can pick up the phone. Up in Portland, Erik Halvorsen has a different problem. He forwarded the complaint to his insurance broker and assumed the carrier would hire a lawyer. The carrier's coverage-denial letter went to an address Halvorsen closed two years ago. He will learn about the default from a courtesy copy of a motion that he very nearly files with the insurance paperwork.

This guide follows both of them through each step. The doctrine behind the steps (what a default admits, the circuit tests, and the Supreme Court cases) is in Default and Default Judgment in Federal Court: Rules 55 and 60 and the Cost of Ignoring a Lawsuit. The tasks in checklist form are in the Default Judgment Checklist: A Practical Checklist, and the model papers are in the Default Judgment Toolkit: Entry Requests, Damages Declarations, and Motions to Vacate.

The short answer

  • Plaintiffs: confirm, then request, then prove. Confirm that service was valid and the deadline has passed; request entry of default under Fed. R. Civ. P. 55(a) with a declaration; run the servicemember check; then move for judgment with a damages record that would satisfy a skeptical judge.
  • Use the clerk only for true sums certain. Rule 55(b)(1) covers liquidated amounts against defendants who never appeared. Injunctions, fees, unliquidated damages, and any defendant who appeared go to the judge under Rule 55(b)(2).
  • Keep the judgment inside the complaint. Fed. R. Civ. P. 54(c) bars a default judgment that differs in kind from, or exceeds, what was demanded.
  • Defendants: identify the posture, then move fast. Before default is entered, ask for more time under Fed. R. Civ. P. 6(b)(1)(B). After entry, move to set aside "for good cause" under Rule 55(c). After judgment, move under Fed. R. Civ. P. 60(b), usually (1) excusable neglect, (4) void judgment, or (6) extraordinary circumstances.
  • Every defense motion needs two declarations and a proposed answer. One declaration explains the default; the other (or the same one, in a section) sets out specific facts for a meritorious defense. Attach the answer you would file.
  • Ask for a stay. A Rule 60(b) motion does not suspend enforcement. Rule 62 governs stays.
  • Talk first. A stipulation to set aside an entry of default is often available for the asking, and it is almost always cheaper for both sides than the motion.

Before you start: decision points

For the plaintiff

Question Why it matters If the answer is "no" or "unsure"
Is service clearly valid under Rule 4? A judgment on defective service is void and can be attacked at any time Re-serve or obtain a court order for alternative service before defaulting
Is the defendant an individual who might be in military service? The SCRA affidavit is mandatory Run the Defense Manpower Data Center check before filing
Is the defendant a minor, incompetent person, the United States, or a foreign state? Special rules and evidentiary burdens apply Read Rule 55(b)(2), 55(d), and 28 U.S.C. § 1608(e)
Does the complaint state each claim with facts, not labels? Only well-pleaded facts are admitted Consider amending, and remember the new pleading must be served
Does the complaint demand the specific relief you want? Rule 54(c) caps the judgment Amend before default if the demand is too low or omits a remedy
Are co-defendants defending the same theory? Frow v. De La Vega risk Take the default; defer the judgment
Is the defendant collectible? A judgment you cannot collect is a cost, not an asset Investigate assets before spending on a prove-up
Has the defendant appeared or made informal contact? Triggers 7-day notice in Rule 55(b)(2) and, in some circuits, informal appearance doctrine Serve notice of every filing
Do local rules or the judge's standing order add steps? Many districts send all default judgments to the judge and require specific forms Read them before drafting

For the defendant

Question Why it matters
Has default been entered? Has judgment been entered? Determines whether the standard is excusable neglect for an extension, "good cause" under 55(c), or Rule 60(b)
When did you (or anyone in the company) first receive the papers? The explanation for the default and the promptness of the response both start here
Was service valid? Invalid service makes the judgment void and removes the meritorious-defense requirement
Do you have a defense you can describe in specific facts? Required under every test except voidness
Is enforcement under way? Stay strategy and urgency
Is there insurance? Carriers often must defend; tender immediately if you have not
Is the defendant an entity? Only a lawyer can appear for it
Is the case in state court? State relief rules differ and are often more generous; see the state section below

Part one: the plaintiff's steps

Step 1. Confirm valid service and compute the deadline

What to do. Pull the proof of service and read it against Fed. R. Civ. P. 4. For an individual, check the Rule 4(e) method (personal delivery, abode service on a person of suitable age who resides there, an authorized agent, or a method allowed by the forum or service state). For an entity, check Rule 4(h): delivery to an officer, managing or general agent, or agent authorized by appointment or law, or a state-law method. For a foreign defendant, check Rule 4(f) and the Hague Service Convention. Then compute the response date under Fed. R. Civ. P. 12(a) and Rule 6(a): 21 days after service; 60 days after the request was sent if the defendant waived service under Rule 4(d); 90 days if the waiver request went abroad; the Rule 81(c)(2) periods in a removed case.

Why. A judgment on invalid service is void under Rule 60(b)(4), and the Supreme Court held in Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988) that a defendant attacking such a judgment need not show a meritorious defense. Service is also the precondition of personal jurisdiction under Omni Capital International, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987).

Pitfalls. Returns that describe the recipient as "authorized to accept" without explaining why; abode service at an address the defendant had left; email service on a foreign defendant without a Rule 4(f)(3) order; service on a receptionist for a corporation. If you would not want to defend the return at an evidentiary hearing, re-serve now. Methods are discussed in Service of Process: Domestic and International Methods That Work.

Timing and cost. An hour or two of review. Re-service, if needed, costs a process server's fee and resets the deadline.

Step 2. Check the docket and the file for any appearance, then send a short notice

What to do. Check the docket for any filing by the defendant, including a letter, a notice of appearance, or a motion. Check your file for informal contacts: calls, emails, settlement discussions. Then send defense counsel (if known) or the defendant a short letter: the response date has passed, you intend to request entry of default on a specific date, and you will consider a short stipulated extension if an answer is filed by then.

Why. If the defendant has "appeared personally or by a representative," Rule 55(b)(2) requires written notice at least 7 days before the hearing on a default judgment application. Some circuits treat informal contacts showing a clear intent to defend as an appearance for this purpose. A default judgment entered without required notice is vulnerable. More practically, judges in many districts expect counsel to make a good-faith effort before seeking default, and a defendant who received a warning letter has a much weaker excusable-neglect argument later. A letter costs nothing and protects the eventual judgment.

Pitfalls. Agreeing to an open-ended extension. If you extend, put a date in writing and file a stipulation.

Timing and cost. Under an hour.

Step 3. Request entry of default

What to do. File a request for entry of default (many districts have a form) with a declaration under 28 U.S.C. § 1746 showing: the date and method of service, with the proof of service attached or cited by docket number; the date the response was due and the rule that sets it; that no answer or Rule 12 motion has been filed or served; that no extension was granted (or that any extension has expired); and, for an individual, whether the defendant is a minor or incompetent person. Serve the request on the defendant even though Fed. R. Civ. P. 5(a)(2) does not require it for a party who never appeared.

Why. Rule 55(a) says the clerk "must enter the party's default" when the failure to plead or otherwise defend "is shown by affidavit or otherwise." The declaration is the showing.

Pitfalls. Requesting default the day after the deadline while the defendant's lawyer is known to be preparing a response, which invites a fee-shifting response and an irritated judge; requesting default when a Rule 12 motion is on file; confusing the request for entry of default with the motion for default judgment (they are separate filings in most districts, though some allow them to be combined).

Timing and cost. Clerks typically act within days. Drafting takes one to two hours.

Step 4. Run the servicemember check and prepare the non-military declaration

What to do. For each individual defendant, run a status search on the Defense Manpower Data Center's SCRA website using the defendant's name and date of birth or Social Security number, and save the certificate. Prepare a declaration stating whether the defendant is in military service, with supporting facts (the search, the date run, the identifiers used, and anything else you know), or stating that you are unable to determine status and why. For entity defendants, state that the defendant is an entity and the Act does not apply to it.

Why. Under the Servicemembers Civil Relief Act, 50 U.S.C. § 3931(b)(1), the court must require this affidavit before entering judgment for the plaintiff in any civil action in which the defendant has not appeared. If the defendant is in service, the court must appoint counsel before entering judgment, and a stay of at least 90 days may follow. A knowingly false affidavit is a crime. A default judgment entered against a servicemember without these protections can be reopened under § 3931(g).

Pitfalls. A boilerplate statement that "on information and belief, defendant is not in the military," without a search; a search run months before the motion; a search without a date of birth that returns "no record" for a common name. Run it within 30 days of filing the default judgment motion, and again if the motion is delayed.

Timing and cost. Fifteen minutes per defendant.

Step 5. Decide between a clerk's judgment and a court judgment

What to do. Apply the Rule 55(b)(1) test. The clerk may enter judgment only if (a) the claim is "for a sum certain or a sum that can be made certain by computation," (b) you submit an affidavit showing the amount due, (c) the defendant was defaulted "for not appearing," and (d) the defendant is neither a minor nor an incompetent person. If any element is missing, or if you want an injunction, fees requiring a reasonableness determination, or prejudgment interest that requires judgment, move under Rule 55(b)(2). Check the local rules; many districts direct all default judgments to the judge.

Why. A clerk's judgment entered outside Rule 55(b)(1) is a ready-made ground for vacatur. Courts treat "sum certain" narrowly: there must be no doubt about the amount, as with a promissory note or an account stated with fixed charges.

Pitfalls. Asking the clerk to award contractual attorney's fees, which usually require a reasonableness finding; asking the clerk to compute interest at a disputed rate; splitting a claim to get a clerk's judgment on part and a court judgment on the rest, which can create a partial judgment that is not final without a Rule 54(b) certification.

Timing and cost. A clerk's judgment is fast and cheap. A court judgment takes weeks to months, depending on the judge's docket and whether a hearing is set.

Step 6. Build the damages record

What to do. Assemble the proof you would offer at a bench trial on damages, in declaration form:

  • A damages declaration from a witness with personal knowledge (the controller, the account manager, the owner) authenticating the contract, invoices, payment history, and any demand letters, and walking the judge through the computation line by line.
  • Business records that would qualify under Fed. R. Evid. 803(6), with the declarant laying the foundation, and a summary chart under Fed. R. Evid. 1006 for voluminous records.
  • An interest computation: the rate and its source (contract or statute), the start date for each invoice, and a daily figure so the court can update to the date of judgment.
  • A fee declaration from counsel, if a contract or statute shifts fees: the fee basis, contemporaneous time records, hourly rates with support for their reasonableness in the forum, and a lodestar computation under Hensley v. Eckerhart, 461 U.S. 424 (1983) and Perdue v. Kenny A., 559 U.S. 542 (2010). For Lanham Act fees, address the "exceptional case" standard; most circuits now apply Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014) to 15 U.S.C. § 1117(a), as explained in Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide.
  • A bill of costs limited to items taxable under 28 U.S.C. § 1920.
  • For statutory damages, the registration certificates and dates (for copyright, 17 U.S.C. § 412 bars statutory damages and fees for most infringements that began before registration), the number of works or marks and types of goods, evidence of the defendant's sales or revenue if you have it, and an explanation of why the requested amount within the range fits the case.

Why. A default does not admit damages. Courts require proof, and they decide on the papers only when the amount is liquidated or "capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits," in the words of Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319 (7th Cir. 1983). The Second Circuit said the same in Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105 (2d Cir. 1997). A complete record avoids a hearing and makes the judgment harder to attack.

Pitfalls. A declaration signed by the lawyer about the client's business; numbers that do not tie to the exhibits; fee records with block billing or entries for work unrelated to the defaulting defendant; statutory damages requested at the maximum without explanation; interest computed from the complaint date rather than the invoice due dates (or vice versa) without saying why.

Timing and cost. Usually the most time-consuming plaintiff step: several hours to several days, depending on the claims.

Step 7. Draft the Rule 55(b)(2) motion

What to do. Write a motion and memorandum that does the judge's work. A reliable structure:

  1. Procedural history. Filing, service (with docket citations), the response date, entry of default.
  2. Jurisdiction. Subject-matter jurisdiction (the statute and the facts), personal jurisdiction (the specific contacts, or consent through a forum clause), and venue. Courts may check this on their own; the Ninth Circuit says they must, under In re Tuli, 172 F.3d 707 (9th Cir. 1999). For online defendants, see Personal Jurisdiction Over Online and Foreign Defendants: From Zippo to Ford Motor.
  3. Protected-party showings. The SCRA declaration; minority and competency; for foreign states, the § 1608(e) evidentiary showing.
  4. The discretionary test. In the Ninth Circuit, walk through each factor from Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). Elsewhere, address the circuit's own considerations; most overlap with Eitel.
  5. Liability. For each claim, list the elements and cite the complaint paragraphs that allege facts satisfying each. The default admits well-pleaded facts but not conclusions of law, as Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975) and Ryan v. Homecomings Financial Network, 253 F.3d 778 (4th Cir. 2001) explain, so the allegations must state a plausible claim under Ashcroft v. Iqbal, 556 U.S. 662 (2009).
  6. Relief. Each component of the requested judgment, the evidence that supports it, and the paragraph of the complaint that demanded it, to satisfy Rule 54(c).
  7. Injunction, if sought. The four factors from eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), the presumption of irreparable harm for Lanham Act claims in 15 U.S.C. § 1116(a), and terms specific enough to satisfy Fed. R. Civ. P. 65(d).
  8. Multiple defendants. If others are still defending, explain why judgment now does not risk inconsistency under Frow v. De La Vega, 82 U.S. 552 (1872), or ask the court to defer judgment; if you want a final judgment against fewer than all parties, request a Rule 54(b) determination.

Why. Judges deciding default motions have no adversary to frame the issues. A motion that addresses every requirement, with record citations, is granted on the papers. A motion that assumes the default ends the inquiry is denied without prejudice, and the second round costs more than the first.

Pitfalls. Treating the Eitel factors as boilerplate; requesting relief not in the complaint; citing legal conclusions in the complaint as "admitted"; failing to address personal jurisdiction over a foreign or online defendant; asking for an injunction that tracks the statute rather than describing the forbidden conduct.

Timing and cost. A straightforward contract case: a day of drafting. An IP case with statutory damages and an injunction: several days.

Step 8. Give notice of the motion

What to do. If the defendant has appeared in any way, serve written notice of the application at least 7 days before the hearing, as Rule 55(b)(2) requires. Whether or not it has appeared, mail the motion and supporting papers to every known address for the defendant and its counsel, email it if you have an address, and file a certificate of service listing each.

Why. Notice protects the judgment. A defaulted defendant who received the motion and still did nothing has very little to say later about surprise or excusable neglect, and some local rules require notice regardless of appearance.

Pitfalls. Treating an informal email exchange as "no appearance" when the defendant's representative clearly signaled an intent to defend.

Timing and cost. Minimal.

Step 9. Prepare for the hearing or referral, if the court sets one

What to do. Be ready for three possibilities: the court rules on the papers; it sets an evidentiary hearing (a "prove-up") on damages; or it refers the motion to a magistrate judge for a report and recommendation under 28 U.S.C. § 636(b). For a hearing, bring the declarants, the original records, and an updated interest computation. For a referral, note the 14-day period to object to the recommendation.

Why. Rule 55(b)(2) authorizes hearings to conduct an accounting, determine damages, establish the truth of any allegation, or investigate any other matter, while preserving any federal statutory jury right.

Pitfalls. Treating the hearing as a formality. Judges use prove-ups to probe weak damages theories, especially lost profits and statutory damages at the top of the range.

Timing and cost. A hearing adds weeks and a half day to a day of preparation and attendance.

Step 10. Submit a precise proposed judgment

What to do. Submit a proposed judgment as a separate document under Fed. R. Civ. P. 58 that states: the parties for and against whom judgment is entered; the principal amount; prejudgment interest as a stated figure through a stated date; post-judgment interest under 28 U.S.C. § 1961; fees and costs as stated figures; the terms of any injunction, with the persons bound under Rule 65(d)(2); and, for a judgment against fewer than all parties, the Rule 54(b) determination that there is no just reason for delay.

Why. A judgment that a bank, a sheriff, or a registering court can read without consulting the motion is a judgment that can be enforced. Vague injunctions are vacated, as the Second Circuit did in City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011).

Pitfalls. Leaving the interest figure blank; incorporating the complaint by reference into the injunction; awarding relief against "all persons acting in concert" without tracking Rule 65(d)(2).

Timing and cost. One to two hours.

Step 11. After entry: wait, enforce, register, and preserve

What to do. Calendar the 30-day automatic stay under Fed. R. Civ. P. 62(a) and the 30-day appeal period under Fed. R. App. P. 4(a)(1)(A). Serve the judgment on the defendant. Begin post-judgment discovery and execution under Fed. R. Civ. P. 69. If assets are in another district, register the judgment there under 28 U.S.C. § 1963 once the appeal time has run, or earlier on a good-cause order from the rendering court. Keep the service file, the SCRA certificate, and all correspondence with the defendant together; you will need them if the defendant moves to vacate.

Why. Enforcement during the automatic stay is improper, and registration before finality without an order is invalid. A preserved record is the best defense to a Rule 60(b) motion.

Pitfalls. Garnishing on day 10; registering in a sister district before the appeal period has run; losing the process server's notes.

Timing and cost. Collection costs depend entirely on the debtor. See Collecting a Judgment: Discovery in Aid of Execution, Liens, Levies, and Garnishment and the Judgment Enforcement and Collections Toolkit.

Part two: the defendant's steps

Step 1. Triage: identify the posture and the clock

What to do. Pull the docket the day you are retained. Identify which of four postures you are in, because each has a different standard and a different deadline.

Posture Vehicle Standard Outer time limit
Deadline passed, no default entered Motion to extend time and leave to file answer Excusable neglect, Fed. R. Civ. P. 6(b)(1)(B) None, but every day counts
Default entered, no judgment Motion to set aside entry of default "Good cause," Rule 55(c) None fixed; promptness is a factor
Default judgment entered (final) Motion to vacate under Rule 60(b) Ground-specific (1) to (3): reasonable time, no more than one year; (4) to (6): reasonable time
Default judgment entered, within 28 days Rule 59(e) motion or Rule 60(b) motion; consider appeal Ground-specific 28 days for Rule 59(e); 30 days to appeal

Also identify: who was served, when, and how; whether anyone at the company received the papers; whether an insurer was notified; and whether the plaintiff has started enforcing.

Why. Courts apply a more forgiving standard before judgment. The Seventh Circuit in Cracco v. Vitran Express, Inc., 559 F.3d 625 (7th Cir. 2009) said the same test is applied more liberally under Rule 55(c) than Rule 60(b). If you can move before the plaintiff gets a judgment, do.

Pitfalls. Assuming the clerk has not entered default because nobody told you; assuming judgment is not final because enforcement has not started; missing the 28-day window for Rule 59(e) and the appeal clock.

Timing and cost. One to two hours, on day one.

Step 2. Stop the bleeding: call opposing counsel and ask for a stipulation and a standstill

What to do. Call plaintiff's counsel the day you are retained. Explain that you represent the defendant, that you will be moving to set aside the default (or judgment), and that you would prefer to resolve it by stipulation. Offer a short, specific schedule: you will file an answer within seven days of the order. Ask for an agreement not to enforce while the motion or stipulation is pending. Confirm everything by email.

Why. Many plaintiffs will stipulate, especially to setting aside a mere entry of default, because they know courts favor decisions on the merits and that opposing the motion will cost more than it gains. Courts routinely approve stipulations to set aside an entry of default; a stipulation to vacate a judgment requires a court order, which judges usually grant when both sides ask.

Pitfalls. Arguing the merits on the call; promising a filing date you cannot meet; agreeing to pay "all fees" without a cap.

Timing and cost. An hour. Often the best hour you will spend on the case.

Step 3. Reconstruct exactly what happened, and get it into a declaration

What to do. Interview everyone who touched the papers. Build a timeline: when service occurred, who received the papers, where they went, what was done with them, when the client learned the deadline had passed, and when it learned of the default. Collect the documents (the envelope, the forwarding email, the insurer's letter, the calendar entry that was or was not made). Then draft a declaration from the person with personal knowledge, signed under 28 U.S.C. § 1746, telling that story plainly.

Why. The first factor in every circuit is the defendant's culpability or willfulness. In the Ninth Circuit, conduct is culpable only if the defendant had notice and "intentionally failed to answer," meaning willfully, deliberately, or in bad faith, as TCI Group Life Insurance Plan v. Knoebber, 244 F.3d 691 (9th Cir. 2001) and United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085 (9th Cir. 2010) hold. The Second Circuit looks for more than mere negligence. Elsewhere courts weigh blameworthiness more strictly; see Johnson v. Dayton Electric Manufacturing Co., 140 F.3d 781 (8th Cir. 1998) (distinguishing marginal failures from intentional delay or disregard). Under Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the reason for the delay, including whether it was in the movant's reasonable control, and good faith are central. A specific, credible, documented explanation is what the court weighs.

Pitfalls. Declarations by counsel about events counsel did not witness; vague explanations ("the papers were misplaced"); explanations contradicted by documents the plaintiff will produce (the process server's notes, a phone log, the warning letter); blaming the lawyer without recognizing that, under Pioneer, the client is accountable for counsel's neglect.

Timing and cost. Two to six hours.

Step 4. Build the meritorious defense

What to do. Prepare a proposed answer, with affirmative defenses and any counterclaims, ready to file. Then prepare a declaration (from the client or a knowledgeable employee) setting out specific facts that, if proved, would defeat the claim in whole or in part, with key documents attached. If the defense is legal (limitations, lack of standing, a contractual bar), explain it in the memorandum with citations.

Why. Every test except voidness requires a meritorious defense. The bar is not high (the Ninth Circuit called it "not extraordinarily heavy" in TCI Group), and the Sixth Circuit's formulation in Shepard Claims Service, Inc. v. William Darrah & Associates, 796 F.2d 190 (6th Cir. 1986) is a defense "good at law" without regard to likelihood of success. But it must be specific. A general denial is not enough, and many courts expect facts, not just a proposed pleading. For damages-only disputes, a defense to the amount counts: courts set aside defaults to allow a defendant to contest damages that exceed what the evidence supports. For drafting the answer itself, see Drafting an Answer and Affirmative Defenses: A Practical Guide and the Answer and Affirmative Defenses Checklist: A Practical Checklist.

Pitfalls. Asserting defenses that require the court to disbelieve the complaint without offering facts; boilerplate affirmative defenses; forgetting that a Rule 12(b)(2) through (5) defense omitted from the first response may be waived under Rule 12(h)(1). If personal jurisdiction or service is contested, raise it in the motion and the proposed answer, or file the Rule 12 motion as the proposed response.

Timing and cost. Four to twelve hours, depending on the complexity of the claims.

Step 5. Choose the right vehicle and ground

What to do. Match the posture from Step 1 to the strongest ground, and plead alternatives where they genuinely apply.

  • No default entered yet: move under Rule 6(b)(1)(B) for leave to file the attached answer out of time, with the Step 3 declaration.
  • Default entered: move under Rule 55(c) to set aside the entry of default for good cause, using your circuit's factors.
  • Judgment entered, service or jurisdiction defective: move under Rule 60(b)(4). The judgment is void, and under Peralta no meritorious defense is required. Expect the plaintiff to argue that you had actual notice; courts often put the burden on a defendant with actual notice to prove the defect, by "strong and convincing evidence" in the Ninth Circuit under SEC v. Internet Solutions for Business Inc., 509 F.3d 1161 (9th Cir. 2007). Voidness has no fixed time limit; the Fifth Circuit held in Jackson v. FIE Corp., 302 F.3d 515 (5th Cir. 2002) that a Rule 60(b)(4) motion was not barred by delay. But under United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), voidness is limited to jurisdictional errors and due process violations depriving a party of notice or an opportunity to be heard.
  • Judgment entered, ordinary neglect: move under Rule 60(b)(1) within a reasonable time and in no event more than a year after entry. Address Pioneer's factors and your circuit's default factors, which most courts apply together.
  • Judgment entered, plaintiff's misconduct (false return, false SCRA affidavit, misrepresentation about settlement): add Rule 60(b)(3), within the same one-year limit.
  • Judgment entered, extraordinary circumstances (abandonment by counsel, serious illness, matters truly outside your control): plead Rule 60(b)(6) in the alternative. It is available only when no other clause applies; after Kemp v. United States, 596 U.S. 528 (2022), legal error by the judge is "mistake" under Rule 60(b)(1), not a (b)(6) ground, and the one-year limit applies. BLOM Bank SAL v. Honickman, 605 U.S. 204 (2025) confirms that the extraordinary-circumstances standard is applied with full rigor.
  • Interlocutory default judgment (not all claims or parties resolved, no Rule 54(b) certification): move under Fed. R. Civ. P. 54(b), which allows revision at any time before final judgment, and invoke the Rule 55(c) good-cause standard.

Why. Choosing the wrong ground can be fatal. A motion labeled (b)(6) to avoid the one-year limit will be recharacterized and denied as untimely if it is really a (b)(1) motion.

Pitfalls. Waiting until month eleven because "we have a year"; abandoning a strong voidness argument because it sounds aggressive; forgetting that a Rule 60(b) motion filed within 28 days of judgment tolls the appeal period under Fed. R. App. P. 4(a)(4)(A)(vi), while one filed later does not.

Timing and cost. Included in drafting.

Step 6. Draft the motion

What to do. File a notice of motion, a memorandum, the declarations from Steps 3 and 4, the proposed answer, and a proposed order. In the memorandum:

  1. State the posture and the governing standard, with your circuit's leading case. Useful formulations include Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993) (Second Circuit), Hritz v. Woma Corp., 732 F.2d 1178 (3d Cir. 1984) (Third), Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198 (4th Cir. 2006) (Fourth), Lacy v. Sitel Corp., 227 F.3d 290 (5th Cir. 2000) (Fifth), Falk v. Allen, 739 F.2d 461 (9th Cir. 1984) (Ninth), and Compania Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948 (11th Cir. 1996) (Eleventh).
  2. Address culpability or willfulness with the facts from the Step 3 declaration.
  3. Address the meritorious defense with the facts from Step 4.
  4. Address prejudice: no lost evidence, no unavailable witness, no dissipated assets; delay and the cost of litigating the merits are not prejudice.
  5. Address promptness: the date you learned of the default and the date you filed.
  6. Offer conditions: payment of the plaintiff's reasonable fees and costs incurred in obtaining the default, an expedited answer date, or security for the judgment amount. Courts can impose conditions under Rule 55(c) and Rule 60(b) ("on just terms"), and an offer of conditions often tips a close motion. Take conditions seriously once imposed: in Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508 (9th Cir. 1986), the defendant failed to pay the fees and costs on which the court had conditioned setting aside his default, and the Ninth Circuit affirmed the default judgment that followed.
  7. Address the policy favoring decisions on the merits.

Why. The motion's job is to make granting relief the easy, fair, and conventional outcome.

Pitfalls. Arguing that the plaintiff behaved badly by seeking default, which rarely helps; failing to attach the proposed answer (some local rules and California's Code of Civil Procedure require it); exceeding page limits by reproducing the merits.

Timing and cost. One to three days of drafting.

Step 7. Seek a stay of enforcement

What to do. If judgment has been entered, move for a stay of enforcement pending the motion. Under Fed. R. Civ. P. 62(b), a party may obtain a stay by providing a bond or other security; courts also have discretion to stay enforcement pending a Rule 60 motion. Offer to keep garnished funds in the court registry or an escrow account. If the judgment has been registered elsewhere under § 1963, notify the registering court and the levying officer of the pending motion.

Why. Under Rule 60(c)(2), a Rule 60(b) motion "does not affect the judgment's finality or suspend its operation." Without a stay, garnishments and levies continue.

Pitfalls. Filing the stay motion only in the registering district; assuming the plaintiff's informal promise not to levy binds the sheriff.

Timing and cost. A few hours; the bond premium if one is required.

Step 8. After the ruling

What to do. If the motion is granted, file the answer by the date ordered and comply with any conditions. If it is denied, evaluate an appeal. Denial of a motion to set aside an entry of default is interlocutory and reviewable only after final judgment; denial of a Rule 60(b) motion after a final judgment is itself appealable and reviewed for abuse of discretion, within the time set by Fed. R. App. P. 4(a). Appellate review is deferential but not toothless; courts of appeals reverse refusals to set aside defaults with some regularity because of the policy favoring merits decisions. For appellate options before final judgment, see Interlocutory Appeals and Mandamus: Getting Appellate Review Before Final Judgment.

Why. A defendant who wins relief and then misses the new answer date is unlikely to get a second chance.

Timing and cost. Ordinary litigation from here.

Stipulations to set aside a default

A stipulation is the cheapest exit for both sides. A workable stipulation:

  • recites that the defendant was served on a stated date and that default was entered on a stated date;
  • provides that the entry of default (and, if applicable, the default judgment) is set aside, subject to court approval;
  • sets a firm date for the defendant's answer or Rule 12 motion, usually 7 to 14 days after the order;
  • states whether the defendant reserves or waives defenses based on service and personal jurisdiction (plaintiffs often ask for a waiver of service defenses as the price of the stipulation; defendants should agree only if the defense is weak);
  • addresses fees and costs incurred in obtaining the default, often a fixed sum;
  • addresses any garnished or levied funds (released, or held in escrow pending judgment); and
  • includes a proposed order.

The model stipulation is Template 12 in the Default Judgment Toolkit: Entry Requests, Damages Declarations, and Motions to Vacate. For negotiating it as part of broader settlement discussions, see Planning and Running a Litigation Settlement Negotiation: A Practical Guide.

If the default is in state court

Removal, enforcement, and domestication bring state-court defaults into federal practice, and many defaults begin in state court. State standards differ, often in the defendant's favor:

In a removed case, an entry of default made in state court before removal remains in effect, and the federal court applies federal standards to set it aside. Consumers sued by debt buyers in state court should also see Defending a Debt Collection Lawsuit: A Practical Guide.

Timeline and cost

The figures below are rough ranges for a single-defendant commercial case in federal court, based on typical attorney time; actual costs vary widely with rates, the court, and the complexity of the claims.

Stage Typical timing Plaintiff effort Defendant effort
Service to response deadline 21 days (60 or 90 if service waived) Review proof of service: 1 to 2 hours Calendar and respond; extension request: 1 hour
Pre-default notice letter Days 22 to 28 Under 1 hour Respond immediately
Request for entry of default Days 22 to 45 1 to 2 hours (If retained) stipulation call: 1 hour
Clerk enters default Days to two weeks after request None Triage: 1 to 2 hours
SCRA check and declaration Within 30 days before judgment motion 15 minutes per individual Not applicable
Damages record and Rule 55(b)(2) motion 2 to 8 weeks after entry 8 to 40 hours Monitor docket
Motion to set aside entry (55(c)) Days after learning of default Opposition: 6 to 15 hours 12 to 30 hours with declarations
Ruling on default judgment motion 2 weeks to several months Hearing prep: 4 to 10 hours if set Not applicable
Judgment and automatic stay 30 days under Rule 62(a) Proposed judgment: 1 to 2 hours Stay motion if needed: 3 to 6 hours
Rule 60(b) motion Reasonable time; under one year for (1) to (3) Opposition: 10 to 25 hours 20 to 50 hours, more with an evidentiary hearing on service
Registration in another district After appeal period or on good-cause order 1 to 3 hours Notice of pending motion: 1 hour

Two numbers stand out. The plaintiff's cheapest path to a durable judgment is the hour spent confirming service and sending a notice letter. The defendant's cheapest path out of a default is the hour spent calling opposing counsel the day it is discovered.

Worked example: Juniper Ridge Coffee Roasters v. Halvorsen Cafe Group

Plaintiff, Steps 1 and 2. Juniper Ridge's lawyer, Dana Okafor, reviews the return of service: Halvorsen's registered agent in Oregon was served on March 3. The response date is March 24. On March 26 she sends a letter by email and mail to Halvorsen's registered agent and to Erik Halvorsen's business email (from the parties' prior correspondence): the response is overdue; she will request entry of default on April 2 unless Halvorsen files an answer or contacts her. No one responds; Erik's assistant flags the email as "insurance handling it."

Plaintiff, Steps 3 to 5. On April 2 Okafor files a request for entry of default with her declaration. The clerk enters default on April 4. Because Halvorsen Cafe Group is an LLC, her SCRA declaration states that the defendant is an entity and the Act does not apply. Because Juniper Ridge wants an injunction against continued use of its mark and contractual fees, a clerk's judgment is unavailable, and she prepares a Rule 55(b)(2) motion.

Plaintiff, Steps 6 and 7. Juniper Ridge's controller signs a declaration attaching the wholesale agreement, 31 unpaid invoices totaling $96,400, the payment ledger, and a computation of interest at the contract's 1% monthly rate from each invoice's due date. Juniper Ridge's marketing director signs a declaration attaching photographs of Halvorsen menus and cups bearing the JUNIPER RIDGE mark after termination, dated by metadata and by a test purchase receipt. Okafor's memorandum walks through the Eitel factors, confirms jurisdiction through the forum clause and diversity, ties each element of breach of contract and Lanham Act infringement to the complaint, explains why the presumption of irreparable harm applies, and proposes an injunction that bars Halvorsen from using JUNIPER RIDGE or the pinecone logo on menus, packaging, signage, and social media accounts. Her fee declaration seeks $18,200 under the agreement's fee clause.

Defendant, Steps 1 and 2. On May 1, the registered agent forwards Okafor's courtesy copy of the motion for default judgment, and this time Erik reads past the first page. Erik calls a Portland litigator, Priya Raman, who pulls the docket the same day: default entered April 4, motion for default judgment filed April 28, no hearing set. Posture: entry of default, no judgment. Raman calls Okafor on May 2, says she will move to set aside the default within a week, and proposes a stipulation: default set aside, answer in 10 days, Halvorsen pays the fees incurred in seeking default (capped), and Halvorsen stops using the mark immediately pending the case.

Defendant, Steps 3 and 4. While waiting for an answer, Raman builds the record. Erik's declaration explains that he forwarded the complaint to his broker on March 5 (the email is attached), that the broker confirmed receipt and said the carrier would "assign counsel," that the carrier's denial letter dated March 20 went to the company's former address, and that he learned of the default on May 1. The broker signs a short declaration confirming the forwarding. On the merits, Erik's declaration states that Halvorsen withheld payment on 11 of the invoices because Juniper Ridge shipped stale product that Halvorsen documented and returned, attaching photographs, return slips, and an email from Juniper Ridge's account manager acknowledging "the batch issue." That is a partial defense of roughly $34,000. On the trademark claim, Halvorsen has no real defense to post-termination use, but it disputes that the use continued past the date it reprinted menus, and it offers to stipulate to the injunction.

Plaintiff's decision. Okafor advises Juniper Ridge that a Ninth Circuit court is very likely to find good cause: Halvorsen's conduct was careless but not culpable under TCI Group, it moved within days, it has a partial meritorious defense, and Juniper Ridge cannot identify lost evidence. Opposing the motion would cost more than the fees Halvorsen offers to pay. Juniper Ridge agrees to the stipulation, with two additions: Halvorsen consents to entry of the injunction now, and Halvorsen withdraws any objection to service and personal jurisdiction.

Result. The court enters the stipulated order on May 12, vacating the entry of default, entering a stipulated permanent injunction, and setting an answer date. Halvorsen answers on May 22. The case settles in July for $74,000 plus the fee payment.

What each side did right. Okafor's notice letter and courtesy copies made Halvorsen's explanation turn on the insurer's lost letter rather than on silence, and her complete motion made the stipulation look attractive by comparison to litigating it. Raman moved before judgment, documented the explanation with third-party evidence, offered specific concessions, and converted a procedural loss into a negotiated schedule.

Common mistakes

Plaintiffs

  1. Requesting default without reviewing whether service was valid.
  2. Skipping the notice letter when defense counsel is known.
  3. Asking the clerk for judgment on amounts that are not a sum certain.
  4. Filing a boilerplate SCRA statement without a search.
  5. Requesting relief beyond the complaint's demand, in violation of Rule 54(c).
  6. Supporting damages with an attorney's declaration about the client's books.
  7. Proposing an injunction that tracks the statute rather than the conduct.
  8. Ignoring co-defendants and Frow.
  9. Enforcing during the Rule 62(a) stay or registering before finality.

Defendants

  1. Waiting to gather "everything" before calling opposing counsel or filing.
  2. Filing a motion without a proposed answer or specific meritorious-defense facts.
  3. Offering an explanation the documents contradict.
  4. Relying on Rule 60(b)(6) to avoid the one-year limit of Rule 60(b)(1).
  5. Abandoning a strong service defense in a stipulation without getting value for it.
  6. Forgetting to seek a stay of enforcement.
  7. Having the business owner file papers for an entity.
  8. Missing the new answer date after winning relief.

Frequently asked questions

How soon after the deadline can a plaintiff request default? The day after. Whether it should is another matter. When counsel for the defendant is known, a short warning letter is customary and protects the eventual judgment.

Can the plaintiff get a default judgment if the defendant files an answer late but before default is entered? Usually not. A late answer filed before entry of default generally forecloses default, though the plaintiff can move to strike it as untimely; courts rarely grant such motions absent prejudice.

Do I need a hearing to get a default judgment? No, unless the court wants one. Rule 55(b)(2) permits hearings; courts decide many motions on declarations when damages are liquidated or documented.

What if the plaintiff's proof of service is false? Move under Rule 60(b)(4) (the judgment is void) and Rule 60(b)(3) (misconduct), and support the motion with declarations and documents showing where the defendant actually was. Expect an evidentiary hearing.

Does setting aside the default mean I won? No. It means you can defend. Many defaults are set aside on conditions, such as payment of the plaintiff's fees for the default proceedings, and the case proceeds on the merits.

Can I appeal a default judgment instead of moving to vacate it? Yes, within 30 days, but the appeal is limited to the record: jurisdiction, sufficiency of the complaint, and the relief awarded. Factual explanations for the default must be presented to the district court in a Rule 60(b) motion. Post-judgment practice is covered in Filing or Opposing Post-Trial Motions Under Rules 50, 59, and 60: A Practical Guide.

What happens to garnished funds if the judgment is vacated? The court can order them returned or held pending the merits. Ask for that relief expressly in the motion or the stipulation.

Is there a different process for counterfeit sellers in Schedule A cases? The rules are the same, but the scale is not. Sellers who appear, even late, can often negotiate release of frozen funds or reduced damages. See Counterfeiting, Seizure Orders, and Schedule A Litigation: Fighting Fakes in Federal Court.

Takeaways

  • For plaintiffs, a durable default judgment rests on valid service, a well-pleaded complaint, a demand that matches the relief, the SCRA declaration, and a damages record a judge can rule on without a hearing.
  • For defendants, posture determines the standard: move before judgment if at all possible.
  • Explanation, merits, and promptness win motions. Each needs a declaration with specific facts.
  • Voidness is the strongest ground when service or jurisdiction failed, but courts limit it to real defects of power and notice.
  • Ask for a stay, offer conditions, and attach the proposed answer.
  • Stipulations resolve most defaults faster and more cheaply than motions, for both sides.

This document is general information, not legal advice for any particular situation. Local rules and judges' standing orders often add requirements for default practice; check them before filing.

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