You Just Obtained An Entry Of Default Against The Defendant—But How Is That Different From An Entry Of Default 'Judgment?'

When you sue someone, and the defendant fails to show up to defend itself, or to otherwise respond properly to the lawsuit complaint, you may wind up with something called an "entry of default" against the defendant.

Such an entry memorializes the defendant's "default" (as the term suggests, of course), which, in a litigation proceeding, basically means that the defendant failed to properly participate in the initial phase of the litigation proceeding. Here are two examples.

Example # 1 - Defendant Fails To Properly Respond To The Lawsuit Complaint

Many times, there are specific time periods provided by statute during which a defendant may properly respond to a lawsuit complaint. These specified time periods may even be accompanied by specific procedures for filing an intended response. In addition, the content of any filed response also matters, as a judge may rule that a given filed response fails to meet the "pleading standard" required for a response to, in essence, qualify as a bona fide response.

Failure to comply with these specifications or standards is what I mean by the word "properly," as it is possible for an intended response to be given too late, to be given outside of the required procedures, or to fail to meet the required content standards.

Typically, if a response has been filed by the defendant at all, the judge will need to assess it before deciding whether an "entry of default" may be appropriate. The judge may specifically look for some indication that the defendant failed to respond on time, or in the proper way, or according to the minimum pleading standards for, in this scenario, one's own defense. Each of those scenarios may warrant an "entry of default" against the defendant.

Example # 2 - Defendant Fails To Respond To The Lawsuit Complaint At All

In contrast, the scenario could be that the defendant failed to respond at all, and the court clerk can typically ascertain this without the need to involve a judge.

Thinking back over the last few weeks that brought you to this point in the litigation process, you may remember the moment that you discovered the significance of this particular scenario, as the court clerk may have explained it to you when you were checking in to inquire if any response had been filed by the defendant yet. The clerk may have said something to you like...

No, I don't see any filed response (or motion) from the defendant in this case. So, at this point, I can enter a default against the defendant.

That's another way to obtain an entry of default against the defendant.

(Note, though, that there are some instances in which the court, rather than the clerk, is still required to enter the default even when the defendant has not responded at all. Whether this possibility could affect your particular case's workflow may depend on things like the types of claims be asserted in your lawsuit complaint.)

'Entry of Default' Versus 'Default Judgment'

Perhaps the easiest way to think about the difference between an an "entry of default" and a "default judgment" is to think of an "entry of default" as the first step to being able to obtain a "default judgment" against the defendant.

In most cases, the primary benefit of obtaining an "entry of default" against the defendant is that the judge will allow you to proceed in the action without giving any further notice to the defendant or waiting for any further input from the defendant. In a scenario in which the defendant has failed to show up at all, or to fully participate in the proceedings, this milestone could be a big turning point in the action's efficiency--since you would no longer have to sit around waiting for a defendant who has proven some degree of disinterest in the matter.

What Happens If A Judge Recommends An Entry of Default Against a Defendant Who Has Responded?

If the judge sees some indication that the defendant has at least made some effort to participate in the proceedings, the judge's finding that an "entry of default" may be appropriate could trigger some notice to the defendant about that finding--and, in turn, the forthcoming "entry of default." In theory, this gives the defendant one more chance to respond with some reason why "entry of default" may not be appropriate after all.

So, the plaintiff's motion for "entry of default" could still be followed by some response from the defendant before the "entry of default" is made, and, thus, could derail the plaintiff's pursuit of that entry at that time.

Generally, any such response from the defendant would again be assessed by the judge. So, the option to obtain an "entry of default" from the clerk would not be available in this circumstance.

What Are A Defendant's Options After An Entry of Default Has Been Made?

Generally, once the "entry of default" is made against a defendant, the defendant's options shrink. To, in essence, "reenter" the case after that point, the defendant would first need to file a motion to vacate the "entry of default." In that motion, the defendant would need to explain the defendant's prior failures...

This is why I responded late.

This is why I did not follow the proper procedures.

This is why my response was substandard.

Then, it would be up to the judge to determine whether or not the defendant's explanations warrant vacating the "entry of default." If the judge is not convinced, then the defendant may be out of luck.

Who Can Enter A Final Default Judgment?

As you may have surmised by this point, an "entry of default judgment" can only be made by a judge. Typically, this can only happen after all of the prerequisites (e.g. grounds, notice to defendant, etc.) have been verified by the judge.

Is It Essential That I Obtain a Default Judgment Against The Defendant?

No, taking a case down the "default" path is not essential in general. This is because the conditions which determine whether or not the "default" path is even available to you have less to do with your behavior than with your opponent's behavior.

That said, in circumstances in which the defendant's behavior serve to stymie your progress toward obtaining the remedy you are seeking, the "default" path may be your best bet, as it provides you with a way to neutralize the defendant's stall tactics.

In any event, in order to obtain the remedy you're seeking by virtue of an adjudicated "win" in your court case, you generally need to court to declare you the winner. Obtaining an "entry of default judgment" is, in essence, one way for you to do this.

To help smooth the path toward obtaining such a judgment, it helps to properly plead your case from the beginning, including the relief your are seeking and the reasons you believe you are entitled to that relief. Fortunately, this seldom requires ant "extra" effort or foresight, as a properly pleading for this purpose is essentially the same as a properly pleading for most other purposes.