Striking off a New Hampshire default: a motion is not enough without an affidavit of defense

New Hampshire does not number its default rule 55, and it does not use the language most states use. The rule is Superior Court Rule 42, the operation is "striking off" a default, and the requirement that decides most motions is in a single sentence.

The court shall strike the default only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.

A motion explaining why you were late, without a sworn statement of what your defense actually is, does not meet the rule.

The rule

N.H. Super. Ct. R. 42(a):

When a party against whom a Complaint or other pleading (see Rule 6) requiring a response has been filed fails to timely Answer or otherwise defend, the party shall be defaulted. No such default shall be stricken off, except by agreement, or by order of the court upon such terms as justice may require. The court shall strike the default only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.

Three routes out, and two requirements on the third:

And the affidavit has two jobs, both stated: specifically set forth the defense, and the facts on which the defense is based. A general assertion that you have a good defense is not what the rule asks for.

Notice what the rule does not contain: no list of grounds, no excusable-neglect test, and no deadline. The standard is "such terms as justice may require", which is broad — but the affidavit requirement is not discretionary. It says "shall strike the default only upon".

Default is not the same as judgment

New Hampshire separates the default from the judgment that follows, and there is real time between them.

Rule 42(b):

Final default may be entered by the court, sua sponte, where appropriate, or by motion of a party, a copy of which shall be sent to all parties defaulted or otherwise.

Rule 42(c):

In all cases in which final default is entered, whether due to failure to file an Answer or otherwise, the case shall be marked "final default entered, continued for entry of judgment or decree upon compliance with Rule 42." A copy of the court's order and any subsequent orders shall be mailed or electronically delivered to all parties, defaulted or otherwise.

The case is marked and continued, and copies of the order go to all parties, defaulted or otherwise. A defaulted party in New Hampshire is not cut out of the file the way they are in several other states — which means the paperwork should have reached you, and its absence is worth raising.

What the other side must file to get judgment

Rule 42(d):

The non-defaulting party may then request entry of final judgment or decree, by filing a motion, together with an affidavit of damages or, in cases where equitable relief is requested, a proposed decree. Where the default is based on a failure to file an Answer, the motion shall include a military service statement. The moving party shall certify to the court that a copy of all pleadings has been mailed to the defaulting party and shall include a notice that entry of final judgment or decree is being sought. Any party may request a hearing as to final judgment or decree. All notices under this rule shall be sufficient if mailed to the last known address of the defaulting party.

Five requirements to check against the file:

Any party — including the defaulted one — "may request a hearing as to final judgment or decree." That request is the practical lever between default and judgment, and it costs nothing.

Rule 42(e) confirms the position:

A hearing as to final judgment or decree shall be scheduled upon the request of any party. Otherwise, the court may enter final judgment or decree based on the pleadings submitted or exercise its discretion to hold a hearing depending on the circumstances of the default, the sufficiency of the pleadings and the nature of the damages sought or relief requested.

"Shall be scheduled upon the request of any party." If you ask, you get a hearing.

Rule 42(f): "If the court schedules a hearing, all parties, defaulted or otherwise, shall receive notice and an opportunity to be heard."

The other way to get defaulted: discovery

New Hampshire has a mechanism most states lack — a conditional default for failing to answer written discovery, with its own short cure period.

N.H. Super. Ct. R. 29(d):

Conditional Default. If the party upon whom interrogatories or requests for production have been served, shall fail to answer said interrogatories or requests for production within 30 days, or any enlarged period, unless written objection to the answering of said interrogatories or requests is filed within that period, said failure will result in a conditional default being entered by the clerk upon motion being filed indicating such failure to answer. The party failing to answer shall receive notice of the conditional default. The conditional default shall be vacated if the defaulted party answers the interrogatories or requests within 10 days of receiving notice thereof and moves to strike the conditional default. If the defaulted party fails to move to strike the conditional default within 10 days of receiving notice thereof, the adverse party may move to have a default judgment entered and damages assessed in connection therewith.

The sequence, and the numbers:

The cure is automatic if you do both things: "The conditional default shall be vacated if the defaulted party answers the interrogatories or requests within 10 days of receiving notice thereof and moves to strike the conditional default."

Both halves are required. Serving the answers without moving to strike does not vacate it, and moving to strike without serving the answers does not either. Ten days, both steps.

That is a far better position than an ordinary Rule 42 default, because it needs no affidavit of defense and no exercise of discretion — it is vacated by compliance.

A written objection filed within the 30 days prevents the conditional default from arising at all.

The rule adds a damages safeguard: "If, upon review of an affidavit of damages, the court determines that it does not provide a sufficient basis for determining damages, the court may, in its discretion, order a hearing thereon."

If you have not been defaulted yet

See responding to a New Hampshire complaint for the deadline and what the response must contain.

How New Hampshire compares

A short checklist

1. File a motion and an affidavit of defense together. The rule permits striking a default only on both.
2. Put the defense and its facts in the affidavit specifically. A general assertion does not meet the rule.
3. Ask whether the other side will agree. Rule 42(a) allows a default to be stricken by agreement.
4. Check whether final judgment has been entered or the case is merely marked "final default entered, continued".
5. Request a hearing. Any party may, and the court must schedule one.
6. Check the motion for judgment for the affidavit of damages, the military service statement, the mailing certificate and the notice.
7. If the default came from discovery, act within 10 days of notice — and do both things: serve the answers and move to strike.
8. Within the original 30 days, a written objection prevents a conditional default from arising at all.

Where these rules live

• N.H. Super. Ct. R. 29 — Discovery Motions
• N.H. Super. Ct. R. 42 — Default

This page explains what the rules say. It isn't legal advice, and what justice may require on a motion to strike a default is developed in case law this site doesn't cover.