Responding to a Vermont complaint: 21 days, and there is no entry of default

Vermont uses the familiar 21 days. What it has done differently is at the other end: there is no entry of default in Vermont. Rule 55 opens not with a clerk's entry but with a motion for a default judgment, and the court cannot grant one without an affidavit that addresses both liability and damages.

That single structural choice makes Vermont one of the harder states in which to take a default.

The deadline

V.R.C.P. 12(a)(1):

A defendant shall serve an answer (A) within 21 days after being served with the summons and complaint, unless the court directs otherwise when service of process is made pursuant to an order of court under Rule 4(d) or 4(g), and provided that a defendant served pursuant to Rule 4(e), 4(f), or 4(k) outside the continental United States or Canada may serve an answer at any time within 49 days after such service; or (B) if service of the summons has been timely waived on request under Rule 4(l), within 60 days after the date when the request for waiver was sent, or within 90 days if the defendant was addressed outside any state or territory of the United States.

Three periods.

Twenty-one days on ordinary service, with the obligation to serve.

Forty-nine days if you were served outside the continental United States or Canada. As in Maine, Canada is grouped with the continental US, so service there carries the ordinary period.

Sixty days if you waived service, ninety if you were addressed outside any state or territory. The 60 days runs from when the request was sent, not from when you returned the waiver.

Cross-claim answers and replies run on 21 days under paragraph (2).

After a motion, paragraph (3):

(A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 14 days after notice of the court's action

No entry of default

V.R.C.P. 55(a):

When a party against whom a judgment for affirmative relief is sought by complaint, cross-claim, counterclaim, or other pleading has failed to plead or otherwise defend, the party seeking the affirmative relief may file a motion for a default judgment.

Compare that with the federal rule, where the clerk enters a default first and a judgment follows later. Vermont collapses the two. There is no clerical entry to be made, none to notice, and none to set aside — the plaintiff simply moves for judgment.

For a defendant, that means the two-tier structure most of this site's guides describe does not apply. There is no easier pre-judgment standard to reach for, because there is no intermediate order. But there is also no default sitting on the docket while you scramble.

The affidavit requirement

V.R.C.P. 55(c)(1):

Affidavits Required. The court shall not enter judgment by default against a party who has not appeared in the action until the moving party files an affidavit made on personal knowledge and setting forth facts as to liability and damages. The court shall not enter judgment by default against a minor or incompetent person unless represented in the action by a guardian, conservator, or other such representative who has appeared therein. The moving party must state in an affidavit whether the opposing party is at least 18 years of age, and whether the moving party has any knowledge as to the competency of the opposing party.

This is where Vermont does the real work, and there are four separate requirements in it.

The affidavit must be on personal knowledge. Not on information and belief, and not on a review of business records by someone with no first-hand knowledge.

It must set out facts as to liability, not only damages. A plaintiff who swears convincingly to an amount but says nothing about why the defendant owes it has not met the rule.

And it must address damages as well.

Plus the age and competency statements. The moving party has to state whether the defendant is at least 18 and what it knows about competency — an affirmative obligation, not a box to leave blank.

If a default judgment has been entered against you in Vermont, the affidavit is the first document to read. Each of those four requirements is a place it may fall short.

Rule 55(b) adds that the rule applies whichever party is seeking the judgment, and that in all cases a judgment by default is subject to the limitations of Rule 54(c) — the award follows the demand of the pleadings.

Answering, or moving

Rule 12(b) carries the pre-answer defenses, and serving one alters the 21 days as subdivision (a)(3) provides. Consolidation and waiver work on the familiar model, and outside material presented on a failure-to-state-a-claim motion converts it into a summary judgment motion.

Because there is no entry of default to worry about, the calculation about whether to move or answer is cleaner in Vermont than in most states: a motion suspends the deadline, and nothing happens on the docket in the meantime.

How Vermont compares

A short checklist

1. Calendar 21 days from service, and note the obligation is to serve your answer.
2. If you were served outside the continental United States or Canada, you have 49 days.
3. If you were sent a waiver request, weigh it — signing gives you 60 days from the date it was sent.
4. A Rule 12 motion suspends the deadline, and a denial gives you 14 days from notice.
5. Raise your Rule 12 defenses together. An available defense omitted from the first motion is generally foreclosed.
6. Understand there is no entry of default. The plaintiff's next step is a motion for judgment, not a clerical entry.
7. If judgment has been sought or entered, read the affidavit closely. It must be on personal knowledge, must set out facts as to both liability and damages, and must address your age and competency.
8. Check the demand. A Vermont default judgment is subject to Rule 54(c) and follows what the pleadings sought.

Where these rules live

• V.R.C.P. 4 — Process and service of the summons
• V.R.C.P. 5 — Serving and filing pleadings and other documents
• V.R.C.P. 6 — Computing time
• V.R.C.P. 8 — General rules of pleading
• V.R.C.P. 12 — Defenses and objections; motion for judgment on the pleadings
• V.R.C.P. 15 — Amended and supplemental pleadings
• V.R.C.P. 55 — Default
• V.R.C.P. 60 — Relief from a judgment or order

This page explains what the rules say. It isn't legal advice, and the standard for relief from a judgment under Rule 60(b) is developed in case law this site doesn't cover.