what is a motion for default for failure to appear

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Afterward you file a lawsuit, the person yous sued (the "defendant") has a sure corporeality of fourth dimension to respond. If he or she doesn't respond, then y'all can sometimes file a motion for a default judgment. Before filing your movement, check to see if y'all tin request one. Getting a default judgment requires ii steps. First, you demand to request that default exist entered. Then you tin can request default judgment.

1. 1

   Identify the grounds for filing a default motion. Generally, you can get a default judgment if the defendant does non respond to your lawsuit. However, in that location are other situations in which yous can asking a default judgment. You should read your court'south Rules of Civil Procedure in guild to identify all of the reasons y'all tin bring a movement for default judgment. For case, yous tin become a default for the post-obit:^[1]

   • The defendant never entered an advent in your lawsuit.
   • The defendant never filed an respond or other response.
   • The defendant failed to appear for trial.
   • The defendant failed to disclose a defence.
   • Either the plaintiff or defendant failed to comply with requests for information in "discovery."

2. 2

   Bank check if the accused is in the armed services. Federal constabulary prohibits default judgments being entered against service members who are on active duty.^[two] Y'all need to check whether or not the defendant is in the military before filing your motion for default judgment.

   • You must search the Servicemember'due south Civil Relief Act (SCRA) website to cheque whether the defendant is on active duty.^[three]
   • To perform a search, you lot volition need the defendant's terminal proper noun and either their Social Security Number or nascence engagement.

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3. 3

   Expect for a movement course. You need to request entry of default first. Your court might take a printed "fill in the blank" course you could employ to make this request. The court might as well publish a sample or informational packet you tin can use.^{[4] [5]} Since these forms take been pre-approved, you should use it if one is bachelor.

   • Enquire the courtroom clerk if there is a form. You can also check on the court's website.
   • Always follow the information in your court packet. Each court handles default judgments a little differently, so you should always follow the court's directions whenever they depart from the directions in this commodity.

4. 4

   Format your certificate. If no form is available, then open a blank word processing document. You should format the document so that it is legible. Use the aforementioned formatting that you used on your complaint.

   • Typically, 14-indicate Times New Roman or Arial is acceptable.

5. 5

   Insert the explanation data. The explanation information includes the proper name of the court, the names of the parties, and the case number. Insert this information at the top of the folio.^[6]

   • Brand sure that the defendant's proper noun on your motion matches the proper noun on the complaint and on your Proof of Service form. If information technology doesn't, then the judge might not grant you a default judgment.

6. six

   Championship the move. You can title it something like "Motion for Default for Failure to Appear" or something similar. Yous should insert the title beneath the caption, centered betwixt the left- and correct-hand margins.^[7]

7. vii

   Draft your motion. The body of your motion can be curt. Be sure to mention the dominion of ceremonious procedure that gives yous the power to request a default. Also state why you are entitled to entry of default.

   • A sample move might read: "Plaintiff Alice T. Greene requests that the clerk of court enter default against accused Acme Construction pursuant to Federal Rule of Civil Procedure 55(a). The return date in this matter was March 22, 2015. Every bit of the appointment of filing this move, the Defendant has not filed an Appearance with the Courtroom."^{[8] [9]}

8. 8

   Sign your motion. Add a signature block. Below the signature line, add your name and contact information, including your telephone number.^[x] Also be sure to include the date.

9. 9

   Typhoon a proposed entry of default. Many courts will want you to include a proposed entry of default for the clerk of court to sign. In near courts, the clerk (not the judge) must enter default according to your dominion of ceremonious procedure.^[xi] Y'all tin put this on a separate sheet of paper with the title "Entry of Default" at the height.

   • Sample language could read: "Plaintiff Alice T. Greene requests that the clerk of court enter default against Defendant Acme Construction pursuant to Federal Dominion of Civil Process 55(a). It appearing from the tape that defendant has failed to announced, plead, or otherwise defend, the default of Acme Construction is hereby entered pursuant to Federal Rule of Civil Procedure 55(a)." Then insert the date and a line for the clerk to sign. Put his or her name under the signature line.^[12]

10. 10

    Include a document of service. You should tell the court that you sent a copy of the movement to the defendant. Include the date yous sent the motion and the method of service. Put the certificate of service on a dissever sheet of paper.

    • Your certificate could read: "I certify that a copy of the foregoing has been mailed on March xxx, 2016 to all counsel and pro se parties of record: [insert the names and addresses]."^[13]
    • You should also sign your certificate of service.

11. 11

    Draft a supporting declaration. Yous probably demand to include a declaration in support. You should title this declaration "Affidavit in Back up of Motion for Entry of Default." The declaration should be gear up with the caption information at the summit of the folio. Include the following in the proclamation:^[fourteen]

    • If you are a lawyer, so who you stand for.
    • The date you filed the summons and complaint.
    • The engagement you served the summons and complaint on the defendant.
    • The appointment a response was due.
    • The fact that the defendant has failed to appear, plead, or otherwise defend the action in the time allowed.
    • A asking that the clerk enter default against the defendant.
    • Your notarized signature.

12. 12

    Prepare a military affidavit. You need to file an affidavit stating whether or not the accused is in the armed services. You too need to explain supporting facts. For case, y'all may have performed a search at the SCRA website and found out that the defendant is not on agile status. You tin attach the search results to your affidavit as an exhibit.^[15]

    • If you tin can't determine whether the defendant is in the military, then y'all should explain in your affidavit why you tin can't find that data. Explain the steps you have taken to decide whether the accused is on active duty status.
    • In some courts, you don't need to draft a dissever military affidavit. Instead, you tin just include the data on your announcement.

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1. i

   Draft a motion requesting judgment. At the aforementioned time that you request that default be entered, you lot can asking judgment. This is a separate motion you demand to file. The courtroom could accept a printed class you tin fill out to request judgment.^[16] Check with your clerk.

   • If not, and then you should draft your own. Set upwardly this motion only as you did the other move: same formatting, caption, etc.
   • Title the motility "Move for Entry of Default Judgment."^[17]
   • The body of this move can read: "Plaintiff Alice T. Greene requests that entry of judgment past default be entered against Defendant Peak Construction pursuant to Federal Rule of Ceremonious Process 55(b). In back up of this asking, plaintiff relies upon the record in this instance and the affidavit submitted herein."

2. 2

   Create some other affidavit in back up. You also demand to submit an affirmation in back up of your Motion for Entry of Default Judgment. This affidavit should cover some of the same territory equally your other affidavit, though information technology volition include boosted information. For instance, you should include the following:^[18]

   • The date you served the summons and complaint.
   • The date the answer was due and the fact that none was served in the time allowed.
   • The date default was entered.
   • A argument that you accept confirmed that the defendant is not currently in active military service.
   • A detailed clarification of your merits. In item, describe the corporeality of money sought. If yous want boosted relief, such as an injunction, and so explain the boosted relief.
   • Your signature in front end of a notary.

3. three

   Type up a proposed judgment. You should also include a judgment that the estimate tin sign. On a divide sheet of paper, insert the caption data so championship the document "Default Judgment."^[19]

   • The text of the judgment might read: "The Accused, Acme Construction, having failed to appear, plead, or otherwise defend in this action, and default having been entered on [insert the date], and plaintiff having requested judgment against the defaulted Defendant and having filed a proper motion and affidavit in accord with Federal Rule of Civil Process 55(a) and (b); Judgment is hereby entered in favor of Plaintiff Alice T. Greene and against Defendant Height Construction every bit follows: [describe the amount of coin requested or other relief]."

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1. 1

   Identify who has relevant testify. The judge will non just safe postage your movement because you filed information technology. Instead, the judge needs to make sure that your lawsuit has merit. This means showing the judge that you take evidence to support the allegations in the complaint. You lot tin can provide this evidence in the course of sworn statements past witnesses.^[twenty]

   • Go through your complaint and check what you need to prove in your instance. If you were in a automobile accident, then witnesses could be yous, whoever was in your car, and whatsoever bystander.

2. ii

   Ask the witnesses to draft affidavits. Once you have identified relevant witnesses, ask them to draft an affidavit. In the affidavit, they should explain to the court what they observed. They should sign the affidavit in front of a notary public.

   • Brand sure the witness drafts the affidavit him or herself. Yous shouldn't have a lawyer draft an affirmation.^[21]
   • For assist writing an affidavit, see Write an Affirmation.

3. iii

   Check if the witness tin nourish your hearing. In some courts, the estimate might actually question the witnesses, in detail if the affirmation is lacking information.^[22] For this reason, you should always check whether or non the witness tin can nourish the hearing on the default motion.

   • Try to get the witnesses to attend the hearing with you. This way, they tin answer any questions the gauge has.

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1. i

   Get your proof of service. In society to get a default judgment, you lot must have properly served the summons and a re-create of your complaint on all defendants. This is called giving "observe." You need proof that y'all properly served detect.

   • Get your copy of the Proof of Service or Affidavit of Service which was signed past your server (the sheriff, process server, etc.) Check to brand sure that the names on the Proof of Service lucifer the names on your complaint and your move for default judgment.^[23]

2. two

   Schedule a hearing. Each court handles scheduling a hearing a little differently. In some courts, you might have to go onto the approximate's agenda and schedule a hearing date yourself. In other courts, you might file the movement and then the court clerk will notify everyone of the hearing date.

   • Technically, you don't need to give the defendant a take a chance to respond to your lawsuit. However, many judges want you to requite the defendant a chance to respond. Read your Rules of Civil Process to run into when yous can schedule the hearing.
   • For example, in Minnesota, judges probably want you to give at least a couple weeks' notice or, ideally, at least 28 days accelerate notice.^[24]

3. 3

   Serve a re-create on the defendant. Although the defendant has not yet entered an appearance in the case, you should still ship a re-create of your motion to him or her, just to exist rubber..^[25] You lot can typically take someone postal service the motion commencement grade mail, postage prepaid. Exist sure to use the service method mentioned in your document of service.

   • In some courts, your server needs to fill out a Proof of Service or Affidavit of Service form. You can become this form from the court clerk. Afterward making service, your server volition return the form to you.^[26]
   • You can file the signed Proof of Service with your motions.

4. iv

   File your motions with the court. Take your original and your copies and ask the court clerk to file. The clerk tin stamp your copies with the date. In some courts you will have to file additional copies with the original. Check with the clerk.^[27]

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1. 1

   Prepare for the hearing. In some courts, there might not be a hearing. Instead, the guess could decide the motion solely on the paperwork.^[28] However, if in that location is a hearing, then you should prepare.

   • Reread your motions and also all of the affidavits. Effort to go a complete understanding of your case so that you feel comfy discussing whatever aspect of information technology with the judge.
   • If you've never argued a motility before, then you might want to discover a hearing. Check the judge's agenda and sit in the dorsum of the court. Pay attention to the questions the guess asks.

2. 2

   Swear to tell the truth. At the first of the default hearing, the approximate will probably inquire you to raise your correct hand and swear to tell the truth.^[29] Since you will be testifying earlier the judge, you need to have the oath.

3. 3

   Explicate the facts of your instance. The judge also needs to check whether you really have a valid legal claim earlier he or she will issue a default judgment.^[30] You should take created an outline of your main points. Accept the witness affidavits handy so that you can refer to them.

4. 4

   Answer the judge'southward questions. The estimate will ask a serial of questions to see if a default judgment is appropriate. For case, the approximate may inquire if the defendant is a minor or if the accused is incompetent.^[31]

   • Always answer truthfully. If the defendant is a pocket-size, then he or she could come into court and get any default judgment overturned.
   • When addressing the court, ever say, "Your Honor." Don't discuss the gauge. Be sure to mind closely to any question he or she has.

5. 5

   Listen to the defendant. Sometimes, defendants show upwardly to court. For case, they might not have understood that they needed to reply to your complaint and they might exist afraid that they'll be sent to jail. Accordingly, many defendants commencement show up at court on the twenty-four hours of the hearing on your motion for default judgment.^[32]

   • The guess may also give the accused a gamble to address the court. Yous might be upset—subsequently all, the accused never bothered to respond to your complaint. However, the judge might only want to let the defendant feel like he or she was "heard" before receiving a default judgment.

6. 6

   Serve the judgment. After getting the default judgment, you may need to serve a copy on the defendant. In some courts, the clerk will handle this. However, in other courts, yous will be sent the judgment and then you must serve information technology on the accused.^[33]

   • If you have to serve the judgment on the accused, then serve it the same style you served a copy of your motion: take someone eighteen or older make delivery or postal service it for you. The server should fill out a Proof of Service form.

7. 7

   Enforce the judgment. Getting judgment is just one-half the boxing. Yous now need to enforce it. If the defendant doesn't willingly pay upward, you might have to garnish his or her wages or put a lien on the accused's property.

   • See Collect a Court Ordered Judgment for more information.

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Article Summary Ten

If you've sued someone and they haven't responded, you might be able to file a move for default judgment. You'll need to file a few different forms, which you tin can get from your local court. You'll likewise demand to provide evidence in the class of affidavits from witnesses and proof of service to show that the accused is aware of the lawsuit. Unless it'south a clear cut case, the judge will probably call a hearing and they may want to interview your witnesses before they sign off on your default judgment. For more tips from our Legal co-author, including how to serve notion of your motion to the defendant, read on.

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