Setting aside a Rhode Island default judgment: ten days' notice, and no judgment without a military affidavit

Rhode Island gives a defendant who has appeared ten days' written notice before a default judgment hearing. No state gives more.

It also bars any default judgment, in any case, until someone with personal knowledge swears that the defendant is not in military service. Not just in some cases — in all of them.

Both are checkable from the file, and both are better arguments than explaining why you were late.

Ten days

R.I. Super. R. Civ. P. 55(b)(2):

By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian, guardian ad litem, or such other representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least ten (10) days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by statute.

Ten days is a real window. If the file does not show it, the judgment did not follow the rule.

The military affidavit — in every case

Rule 55(b)(3):

Affidavit Required. Notwithstanding the foregoing, no judgment by default shall be entered until the filing of an affidavit made by some competent person on the affiant's own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in the Servicemembers Civil Relief Act (50 U.S.C.A. App. § 501, et seq.), except upon order of the court in accordance with that Act.

Read the three qualifiers, because they are demanding:

"Notwithstanding the foregoing" places this above everything else in the rule — it applies to the clerk route in (b)(1) as well as the court route in (b)(2).

An affidavit sworn on information and belief, or one that simply asserts the conclusion without facts, does not meet the rule. Pull it and read it.

Entry of default versus judgment

Rule 55(c):

Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Establish which one exists first. Good cause with no deadline is a considerably better position.

The one-year rule

R.I. Super. R. Civ. P. 60(b) carries the familiar six grounds, and its timing sentence reads:

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one (1) year after the judgment, order, or proceeding was entered or taken.

What the clerk could do without a judge

Rule 55(b)(1):

By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person.

The clerk route requires four things: a sum certain, a request, an affidavit of the amount due, and a default for failure to appear. Anything else belongs to the court under (b)(2) — and with it, the ten days' notice.

A clerk-entered judgment in a case that was not for a sum certain is worth challenging on that basis alone.

What a default judgment cannot do

Rule 55(d) ends with the usual limit: "In all cases a judgment by default is subject to the limitations of Rule 54(c)" — the judgment cannot exceed or differ in kind from what the complaint demanded. Compare the two documents.

If you have not been defaulted yet

See responding to a Rhode Island complaint for the deadline and what the answer must contain.

How Rhode Island compares

A short checklist

1. Check the ten days. If you had appeared, that notice was owed before the hearing.
2. Pull the military service affidavit. No default judgment could be entered without one.
3. Read it closely — competent person, own knowledge, facts rather than a conclusion.
4. Establish whether a judgment exists or only an entry of default. Good cause has no deadline.
5. If a clerk entered it, confirm the claim really was for a sum certain.
6. Count one year from entry for mistake, newly discovered evidence and fraud.
7. If a year has passed, work on (4), (5) or (6) — void, satisfied, or any other reason justifying relief.
8. Compare the judgment to the complaint under Rule 54(c).

Where these rules live

• R.I. Super. R. Civ. P. 55 — Default
• R.I. Super. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and what amounts to good cause or excusable neglect is developed in case law this site doesn't cover.