Responding to a Kentucky complaint: 20 days, and no clerk's default judgment

Kentucky uses 20 days, one of the shorter periods in the country. Two features set it apart from the federal model it otherwise follows: the clock after a denied motion runs from entry of the order rather than from notice of it, and there is no clerk's route to a default judgment at all.

The deadline

Ky. R. Civ. P. 12.01:

A defendant shall serve his/her answer within 20 days after service of the summons upon him/her. A party served with a pleading stating a cross claim against him/her shall serve an answer thereto within 20 days after the service upon him/her. The plaintiff shall serve his/her reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under Rule 12 alters these periods of time as follows unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after entry of the court's order; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

Twenty days throughout, and note two things about the wording.

The obligation is to serve, not to file.

And after a denied motion, the ten days run from entry of the order — not from notice of the court's action, which is the federal formulation and the one most states copied. That difference is small on paper and large in practice. If an order is entered on a Monday and reaches you on a Thursday, you have spent three of your ten days without knowing it. Watch the docket rather than the mail.

Default: a judge, every time

Ky. R. Civ. P. 55.01:

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he, or if appearing by representative, his representative shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application. The motion for judgment against a party in default for failure to appear shall be accompanied by a certificate of the attorney that no papers have been served on him by the party in default.

Three things follow.

There is no clerk's default judgment in Kentucky. Federal Rule 55(b)(1) lets a clerk enter judgment on a sum certain; Kentucky does not. Every default judgment is applied for and entered by the court.

Three days' notice if you appeared. Shorter than the federal seven, and keyed to the same trigger.

And the plaintiff's lawyer must certify that no papers have been served on them by the party in default. That certificate is worth reading if a default judgment has been taken against you. If you sent anything at all into the case, the certificate may be wrong, and a wrong certificate is a reason to move.

The rule adds one more consequence that is easy to miss:

A party in default for failure to appear shall be deemed to have waived his right of trial by jury.

Answering, or moving

Rule 12.02 carries Kentucky's pre-answer defenses on the familiar model — subject-matter and personal jurisdiction, process and service, failure to state a claim, failure to join a party. Serving one of those motions suspends the answer obligation under Rule 12.01 rather than running alongside it.

Two points for the choice.

Consolidation and waiver work as they do elsewhere. A defense available when you made your first motion, and left out of it, is generally gone.

And outside evidence converts a failure-to-state-a-claim motion into one for summary judgment, with that rule's schedule and standard. Decide deliberately whether to attach anything.

Fixing a missed deadline

Kentucky splits relief the way most states do, and the split matters.

Rule 55.02 governs setting aside an entry of default, on good cause shown. Rule 60.02 governs relief from a judgment, with enumerated grounds and time limits.

The gap between those two standards is the reason to move quickly. Before judgment, you are asking for something the court gives readily. After it, you are asking for something the rule confines.

Either way, expect to show two things: why the deadline was missed, and what defense you would raise if the default were lifted.

How Kentucky compares

A short checklist

1. Calendar 20 days from service of the summons, and note the obligation is to serve your answer.
2. A Rule 12 motion suspends the deadline. You do not have to answer and move at the same time.
3. If your motion is denied, the 10 days run from entry of the order, not from when you hear about it. Watch the docket.
4. Consolidate your defenses into the first motion. Omitted ones that were available are generally foreclosed.
5. Appear. Three days' notice before a default judgment turns on it, and so does the jury right.
6. If a default judgment has been taken, read the attorney's certificate. It has to say that no papers were served by the party in default.
7. Move before judgment if you can. Rule 55.02's good-cause standard is materially easier than Rule 60.02's.

Where these rules live

• Ky. R. Civ. P. 4.01 — Summons — Issuance — By whom served.
• Ky. R. Civ. P. 5.01 — Service — When required.
• Ky. R. Civ. P. 6.02 — Enlargement.
• Ky. R. Civ. P. 8.01 — Claims for relief.
• Ky. R. Civ. P. 12.01 — When presented.
• Ky. R. Civ. P. 12.02 — How presented.
• Ky. R. Civ. P. 15.01 — Amendments.
• Ky. R. Civ. P. 55.01 — Judgment.
• Ky. R. Civ. P. 55.02 — Setting aside default.
• Ky. R. Civ. P. 60.02 — Relief by motion on grounds of mistake, newly discovered evidence, fraud, etc.

This page explains what the rules say. It isn't legal advice, and the good-cause standard for setting aside a default is developed in case law this site doesn't cover.