Rule 55. Default

Default.

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default. The clerk’s entry of default may be made electronically.

(b) Judgment. Judgment by default may be entered as follows:

(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 a minor or incompetent person.

(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 (A) against a minor or (B) against an incompetent person, unless the minor or the incompetent person is represented in the action by a general guardian or other representative as provided in Rule 17(c) who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the court shall conduct a hearing on the application for judgment, and the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment and the hearing thereon at least three (3) days prior to the hearing on such application, provided, however, that judgment by default may be entered by the court on the day the case is set for trial without such three (3) days' notice. 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 pursuant to the provisions of Rule 38.

(c) Setting aside default. In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.

(d) Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third- party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).

(e) Proof required despite default in certain cases. No judgment by default shall be entered against minors, incompetents, or parties to an action for divorce or annulment of marriage unless the claimant establishes the party’s claim or right to relief by evidence.

(dc) District Court Rule. Rule 55 applies in the district courts, except that

(1) the reference to a jury in Rule 55(b)(2) is deleted; (2) the time period of thirty

(30) days in Rule 55(c) is reduced to fourteen (14) days in all cases except for unlawful-detainer actions subject to appeal under §6-6-350, Ala. Code 1975, and actions for eviction as defined in §35-9A-141(5), Ala. Code 1975, in which actions the thirty-(30-)day time period is reduced to seven (7) calendar days; (3) the provisions dealing with an action for divorce or annulment of marriage at Rule 55(e) are deleted; and (4) a party shall not be deemed in default if the party has served an appearance in the form of a motion to dismiss. [Amended 5-16-83, eff. 7-1-83; Amended 1-23-84, eff. 3-1-84; Amended eff. 10-1-95; Amended eff. 10-24-2008; Amended 5-29-2009, eff. 71-2009; Amended eff. 11-28-2012.]

Committee Notes

Committee Comments on 1973 Adoption This rule is very similar to Federal Rule 55. The differences relate to setting aside of defaults and elimination of Federal Rule 55(e) relating to default against the United States and replacement with a reference to proof required in certain default cases against infants, incompetents, etc. The rule eliminates the requirement of notice prior to entry of judgment by default when the default arises from failure to appear on the day the case is set for trial. Also, when read in conjunction with Rule 38, a jury demand having previously been filed by a party now in default is deemed waived upon default in failing to appear in person or by counsel at the trial. Rule 55(a) authorizes the clerk to enter defaults upon the civil docket when the party fails “to plead or otherwise defend”. Consequently, a party who has appeared can be in default for failing to file subsequent pleadings or otherwise defend. Note, however, that special notice is required when a judgment by default is sought against a party who has appeared and the claim against him is not one capable of being handled by the clerk under Rule 55(b)(1) but is to be entered only by the court under Rule 55(b)(2). Of course, the distinctions between judgment by default and judgment nil dicit, early recognized in Grigg v. Gilmer, 54 Ala. 425 (1875) do not survive these rules. Since these rules apply to one form of action, the equitable counterpart to a default at law, the decree pro confesso, becomes a default under these rules. Rule 55(b)(1) allows the clerk to enter default judgment only when the claim is for a sum certain or a sum which can by computation be made certain. Rule 55(b)(2) relegates the entry of the default judgment to the court in all other cases. This portion of the rule provides for three days notice prior to entry of default judgment, when the defendant has once appeared. Note, however, the three day notice is not applicable when the act of default is the failure