Rule 55.Default

Subdivision (b)(3) is amended to allow either an original or a copy of the negotiable instrument upon which a default is sought to be filed with the court. This will limit the practice, that now exists, of regularly filing motions to be permitted to file copies in lieu of originals in such circumstances.

Advisory Committee’s Notes

Rule 55(b)(2) is amended to eliminate the requirement of three days’ notice for hearing on default in a case not involving a sum certain when the default is occasioned by defendant’s failure to appear at trial.

The vast majority of defaults are due to other circumstances. In those cases, the three-day notice requirement is entirely appropriate. Where the case has been called for trial, however, the notice of trial puts the defendant on notice that all issues involved in the litigation are ripe for hearing. In such cases the three-day notice requirement may create a significant inequity. For example, where plaintiff appears for trial with witnesses ready to testify, defendant fails to appear, and plaintiff then for the first time applies for default, the present rule precludes immediate consideration of damages by the court. Since notice of trial has already been given, delay for further notice serves no useful purpose. Such delay also may cause significant unfairness if damages witnesses have traveled great distances or are not readily available on the date set for hearing in the further notice. Under the amended rule, the court retains the power to order notice if circumstances indicate that defendant might have grounds to reopen the default judgment by motion under Rule 60(b).

Advisory Committee’s Note — November 1, 1969

Under the amendment to Rule 55(b) (4) no default judgment will be entered without receipt of an affidavit which asserts facts showing that the venue was properly laid in the county where the action was commenced. The amendment is designed to prevent a potential abuse of small collection suits being brought in a county distant from the residence of both the plaintiff and the defendant for the very purpose of discouraging the unrepresented defendant from getting representation and defending. It is well settled under the Federal Rules that a defendant who, validly served with process, submits to default judgment without answer or appearance, thereby waives any objection to the venue. Commercial Cas. Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S.Ct. 98, 73 L.Ed. 252 (1929); Clover Leaf Freight Lines v. Pacific Coast Wholesalers Ass'n, 166 F.2d 626 (7th Cir.1948), certiorari denied 335 U.S. 823, 69 S.Ct. 46, 93 L.Ed. 377; Bavouset v. Shaw's of San Francisco, 43 F.R.D. 296 (S.D.Tex.1967). The danger of this abuse is particularly great in collection suits for relatively small amounts, and the danger exists both in the Superior Court and the District Court. The amendment is taken over automatically into D.C.C.R. 55 through incorporation by reference.

The affidavit required by the amendment would appear to protect adequately against the abuse. Unless the affidavit is filed, no default judgment can be obtained in a collection suit brought in an improper venue. On the other hand, if a false affidavit is filed, grounds would exist for the defaulted defendant to get relief from the default judgment under Rule 60(b).

Explanation of Amendment — February 1, 1960

Rule 55(b) (1) in its original form appeared to place upon the clerk responsibility for determining that the defendant was not an infant or incompetent person. The amendment provides that the clerk in entering a default judgment may rely upon an affidavit stating that the defendant is neither an infant nor an incompetent. The amendment merely serves to eliminate reluctance to enter default judgments which had developed on the part of some clerks. Needless to say, falsity of the affidavit not only may involve serious consequences for the affiant, but also may be a ground for setting aside the judgment in accordance with Rule 60(b).

Reporter's Notes — December 1, 1959

This rule is closely similar to Federal Rule 55. Rule 55(a) provides for the entry of a default by the clerk for failure to plead or otherwise defend as provided by the rules. The typical situation for a default is the failure to file an answer within 20 days as required by Rule 12, but it may also result from the failure to "otherwise defend." It is comparable to a default under R.S.1954, Chap. 113, Sec. 3 (repealed in 1959).

Judgment by default may be entered by the clerk only under the circumstances set forth in Rule 55(b) (1). When a default judgment must be rendered by the court, rather than by the clerk, Rule 55(b) (2) requires an application for judgment with at least 3 days written notice in any case where the defendant has appeared.

Rule 55(b) (2) provides for assessment of damages by a jury in a default cause if the plaintiff so requests. This is in accord with Revised Rules of Court 39. The defaulted defendant is entitled to be heard on damages but is not entitled to a jury.

Rule 55(b) (3) and (4) is not in Federal Rule 55. Rule 55(b) (3) requires the filing with the clerk of a negotiable obligation upon which a default judgment is rendered. The court may dispense with this requirement, however, for cause shown. This makes possible recovery upon an instrument which has been lost or destroyed. Rule 55(b) (4) preserves the substance of Revised Rules of Court 46, and is required in any event by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.

Rule 55(c) permits a default to be set aside for good cause shown. If a default judgment has been rendered, it may be set aside only in accordance with Rule 60(b), which replaces the Maine provisions for review as of right within one year in such a case. R.S.1954, Chap. 113, Sec. 5 (repealed in 1959). Last reviewed and edited December 21, 2011