Federal Motion for Default Judgment

[COURT NAME]
[DIVISION] DIVISION

[PLAINTIFF]'S MOTION FOR DEFAULT JUDGMENT UNDER FED. R. CIV. P. 55(b)

NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on [HEARING DATE] at [TIME], or as soon thereafter as counsel may be heard, Plaintiff [PLAINTIFF NAME] will and hereby does move this Court for entry of default judgment against Defendant [DEFENDANT NAME] pursuant to Federal Rule of Civil Procedure 55(b)(2).

The Clerk entered Defendant's default under Rule 55(a) on [DATE] (Dkt. [NO.]). A copy of the Clerk's Entry of Default is attached as Exhibit A.

This motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, the Declaration of [ATTORNEY/CLIENT NAME], the Servicemembers Civil Relief Act Affidavit, the proposed judgment, all exhibits attached hereto, the pleadings and records on file, and any oral argument the Court may permit.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant [DEFENDANT NAME] was duly served with the Summons and Complaint and has failed to plead or otherwise defend this action. The Clerk has entered Defendant's default under Rule 55(a). Plaintiff now moves under Rule 55(b)(2) for entry of default judgment in the amount of $[TOTAL], together with attorneys' fees, costs, and post-judgment interest.

II. PROCEDURAL BACKGROUND

III. LEGAL STANDARD

Rule 55 establishes a two-step process. See Fed. R. Civ. P. 55. First, when a party against whom affirmative relief is sought has failed to plead or otherwise defend, "the clerk must enter the party's default." Fed. R. Civ. P. 55(a). Second, after default has been entered, the plaintiff may seek a default judgment under Rule 55(b).

Rule 55(b) provides two routes:

• Rule 55(b)(1) — By the Clerk. If the claim is for a sum certain or a sum that can be made certain by computation, the clerk must enter judgment on the plaintiff's request supported by an affidavit, against a defendant who has been defaulted for not appearing and who is neither a minor nor incompetent.
• Rule 55(b)(2) — By the Court. In all other cases, the plaintiff must apply to the court. The court may conduct hearings or make referrals to conduct an accounting, determine damages, establish the truth of allegations, or investigate any other matter. Fed. R. Civ. P. 55(b)(2)(A)–(D).

Upon entry of default, the well-pleaded factual allegations of the complaint relating to liability are deemed admitted. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) (per curiam); see also Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). However, allegations as to the amount of damages are not admitted by default and must be proven. Geddes, 559 F.2d at 560. The court must independently determine the sum to be awarded by reliable evidence. See Fed. R. Civ. P. 55(b)(2)(B).

A default judgment is void under Rule 60(b)(4) if the court lacked personal jurisdiction over the defendant due to defective service. See Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992). The Court therefore reviews service of process before entering judgment.

Under Rule 54(c), "[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." The relief sought herein is consistent with the prayer of the operative Complaint.

IV. ARGUMENT

A. Service of process was proper and Defendant failed to respond.

Service on Defendant was made on [DATE] by [METHOD] in compliance with Fed. R. Civ. P. 4[(e)/(h)/(f)/(j) — select applicable subdivision]. Proof of service is filed at Dkt. [NO.]. Defendant's responsive pleading was due on [DATE] and no answer, motion, or other appearance has been filed. The Clerk's Entry of Default was entered on [DATE] (Dkt. [NO.]).

B. The well-pleaded allegations establish liability.

Because default has been entered, the well-pleaded factual allegations of the Complaint are deemed admitted as to liability. Geddes, 559 F.2d at 560. Those allegations establish each element of Plaintiff's claims for [CLAIM(S)]:

C. Damages are supported by competent evidence and do not exceed the prayer for relief.

Although liability is established by default, damages must be proven. Geddes, 559 F.2d at 560. Plaintiff submits the Declaration of [DECLARANT] and supporting exhibits to establish each category of damages by competent evidence. The total relief requested does not differ in kind from, or exceed in amount, what was demanded in the Complaint. Fed. R. Civ. P. 54(c).

D. The Servicemembers Civil Relief Act has been satisfied.

The Servicemembers Civil Relief Act requires the plaintiff, before entry of default judgment in any action in which the defendant has not appeared, to file an affidavit "stating whether or not the defendant is in military service and showing necessary facts to support the affidavit." 50 U.S.C. § 3931(b)(1)(A). The required affidavit, supported by a Department of Defense Manpower Data Center status report, is submitted herewith as Exhibit B. [Defendant is not in military service / Plaintiff is unable to determine Defendant's military status, and requests the Court determine the appropriate procedure under § 3931(b)(3)].

V. REQUESTED RELIEF

Plaintiff respectfully requests that the Court:

1. Grant this Motion and enter default judgment against Defendant [DEFENDANT NAME] under Fed. R. Civ. P. 55(b)(2);
2. Award Plaintiff damages in the total amount of $[TOTAL];
3. Award Plaintiff attorneys' fees in the amount of $[AMOUNT] and costs in the amount of $[AMOUNT];
4. Award post-judgment interest at the rate provided by 28 U.S.C. § 1961; and
5. Grant such other and further relief as the Court deems just and proper.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court enter default judgment in Plaintiff's favor and against Defendant [DEFENDANT NAME] in the form of the proposed judgment submitted herewith.

Respectfully submitted,

Dated: [DATE]

______________________________
[ATTORNEY NAME] ([STATE BAR NO.])
[LAW FIRM]
[ADDRESS]
[PHONE] | [EMAIL]
Attorney for Plaintiff

EXHIBIT B — AFFIDAVIT OF NON-MILITARY SERVICE (50 U.S.C. § 3931)

STATE OF [STATE]
COUNTY OF [COUNTY]

I, [AFFIANT NAME], being duly sworn (or declaring under penalty of perjury under 28 U.S.C. § 1746), depose and state:

1. I am [the Plaintiff / counsel of record for Plaintiff] in the above-captioned action and have personal knowledge of the facts stated herein.

2. I submit this affidavit pursuant to Section 201 of the Servicemembers Civil Relief Act, 50 U.S.C. § 3931(b), in support of Plaintiff's Motion for Default Judgment against Defendant [DEFENDANT NAME].

3. Check one:

☐ Defendant is not in the military service of the United States. The basis for this statement is: [describe inquiry — e.g., DMDC status report dated [DATE], attached hereto; personal knowledge from [SOURCE]; recent communications/employment records reflecting civilian employment]. A Department of Defense Manpower Data Center Status Report obtained from https://scra.dmdc.osd.mil/ on [DATE] is attached.

☐ Defendant is in the military service of the United States. [Plaintiff requests the Court appoint counsel for Defendant under 50 U.S.C. § 3931(b)(2) before further proceedings.]

☐ Plaintiff is unable to determine whether Defendant is in military service after diligent inquiry, including: [describe efforts]. [Plaintiff requests the Court issue any orders deemed necessary to protect Defendant's rights, including, if appropriate, posting of a bond under 50 U.S.C. § 3931(b)(3).]

4. I understand that knowingly making a false statement in this affidavit is a federal offense punishable by fine and/or imprisonment of up to one year. 50 U.S.C. § 3931(c).

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on [DATE] at [CITY, STATE].

______________________________
[AFFIANT NAME]

CERTIFICATE OF SERVICE

I certify that on [DATE], I caused the foregoing Motion for Default Judgment, supporting Declaration(s), SCRA Affidavit, exhibits, and proposed Judgment to be served on Defendant [DEFENDANT NAME] at [ADDRESS] via [METHOD OF SERVICE] in compliance with Fed. R. Civ. P. 5, and on all counsel of record via the Court's CM/ECF system.

______________________________
[ATTORNEY NAME]

[PROPOSED] DEFAULT JUDGMENT

The Court, having considered Plaintiff's Motion for Default Judgment, the supporting Declaration(s), the Affidavit of Non-Military Service under 50 U.S.C. § 3931, the exhibits, and the pleadings and records on file, and good cause appearing, ORDERS, ADJUDGES, and DECREES as follows:

1. Plaintiff's Motion for Default Judgment is GRANTED.
2. DEFAULT JUDGMENT is entered in favor of Plaintiff [PLAINTIFF NAME] and against Defendant [DEFENDANT NAME].
3. Plaintiff is awarded compensatory and other damages in the amount of $[AMOUNT].
4. Plaintiff is awarded prejudgment interest in the amount of $[AMOUNT].
5. Plaintiff is awarded reasonable attorneys' fees in the amount of $[AMOUNT] and taxable costs in the amount of $[AMOUNT].
6. Post-judgment interest shall accrue on the total judgment at the rate set by 28 U.S.C. § 1961 from the date of entry until paid in full.
7. The Clerk is directed to enter judgment accordingly and close the case.

IT IS SO ORDERED.

Dated: [DATE]

______________________________
[JUDGE NAME]
United States District Judge

Sources and References

• Fed. R. Civ. P. 55 (Default; Default Judgment)
• Fed. R. Civ. P. 54(c) (Demand for Judgment; Relief to Be Granted)
• Fed. R. Civ. P. 4 (Summons / Service)
• Fed. R. Civ. P. 60(b)(4) (Relief from void judgments)
• 50 U.S.C. § 3931 (Servicemembers Civil Relief Act — Protection against default judgments)
• 28 U.S.C. § 1746 (Unsworn declarations under penalty of perjury)
• 28 U.S.C. § 1920 (Taxation of costs)
• 28 U.S.C. § 1961 (Post-judgment interest)
• Geddes v. United Fin. Grp., 559 F.2d 557 (9th Cir. 1977)
• Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200 (5th Cir. 1975)
• Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986) (discretionary factors)
• Mason v. Genisco Tech. Corp., 960 F.2d 849 (9th Cir. 1992) (void judgment for defective service)
• DMDC SCRA Status Lookup: https://scra.dmdc.osd.mil/