TBD | How-To Draft a Motion for Clerk Default
Home About Contact |
Icon-UpArrow Motion for Clerk Default

How-To: Write a Motion for Clerk Default


Background: You sued someone for affirmative relief
Problem: That person has failed to respond to your complaint
Solution: You ask the clerk to enter default against the defendant

I. Definitions

Default
"failure to discharge a duty... in the context of judicial proceedings: failure of one of the parties to take procedural steps to prevent entry of a judgment against him (called a default judgment)." Default Judgment
"1. a judgment against defendant who has failed to respond to plaintiff's action or to appear at the trial or hearing."

"2. judgment given without the defendant being heard in his own defense."
Pleadings
"statements, in logical and legal form, of the facts that constitute plaintiff's cause of action and defendant's ground of defense. Pleadings are other allegations by the parties affirming or denying certain matters of fact, or other statements in support or derogation of certain principles of law, which are intended to describe to the court or jury the real matter in dispute." Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016

II. Legal Citations

Rule 1.110(a)(1) Fla. R. Civ. P. | Pleadings and Motions - Pleadings
(a) Pleadings.
There must be a complaint or, when so designated by a statute or rule, a petition, and an answer to it... No other pleadings will be allowed.

Rule 1.140(a)(1) Fla. R. Civ. P. | Defenses - When Presented
Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party must serve an answer to it within 20 days after service on that party. The plaintiff must serve an answer to a counterclaim within 20 days after service of the counterclaim...
Rule 1.500 Fla. R. Civ. P. | Defaults ands Final Judgments Thereon
(a) By the Clerk.
When a party against whom affirmative relief is sought has failed to file or serve any document in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such document.

III. Samples

# PDF Comments
1± TBD case. Pro Se Filing | Duval | 2021 | Defendant failed to appear.
2✓ Duval | 1980 | Commissioner's Filing. Wife vs Husband. Failure to Answer.
3✓ Duval | 1982 | Attorney Filing. Wife vs Husband. Failure to Answer.
4✓ Duval | 2007 | Attorney Filing. Person vs Corporation. Failure to Answer.
5✓ Duval | 2009 | Pro Se Filing. Person vs Corporation. Failure to Answer.
6✓ Duval | 2010 | Attorney Filing. Corporation vs Person. Failure to Answer.
7✓ Duval | 2011 | Attorney Filing. Landlord vs Tenant. Failure to Answer.
8✓ Duval | 2011 | Attorney Filing. Person vs Corporation. Defendant Moved to Dismiss.
9✓ Duval | 2011 | Attorney Filing. Corporation vs Person. Failure to Answer.
10✓ Duval | 2011 | Attorney Filing. Person vs Corporation. Defendant Moved to Dismiss.
11✓ Duval | 2012 | Attorney Filing. Person vs Person. Failure to Answer.
12✓ Duval | 2012 | Attorney Filing. State vs Property Owner. Probable Cause, Service by Publication.
13✓ Duval | 2012 | Attorney Filing. Corporation vs Person. Failure to Answer.
14✓ Duval | 2012 | Attorney Filing. Corp. vs Person. Failure to Answer. Proposed Entry Attached.
15✓ Duval | 2012 | Attorney Filing. Corporation vs Person. Failure to Answer. Pretrial Conference.
16✓ Duval | 2019 | Attorney Filing. State vs Property Owner. Probable Cause, Service by Publication.
17✓ Duval | 2019 | Attorney Filing. State vs Property Owner. Probable Cause. Proposed Entry Attached.
18✓ Duval | 2020 | Attorney Filing. Person vs Corporation. Failure to Answer. Proposed Entry Attached

IV. Templates

# Word Comments
1Duval Version | Replace all placeholder tags (eg "[plfName]" becomes "John Doe").

V. Quick Commentary

  • Purpose: To Establish the Basis for Default Final Judgment
    "We hold that the default for failure to plead, which formed the basis of the final judgment now under review..."

    - see Chester v Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)

  • Important Note #1: File this document ASAP (you should aim to have the Clerk enter default before your civil opponent tries to slip in an untimely filing)
    "In this case, it is undisputed that the answer was filed before the order [of default] and therefore before the default was "entered."" "..." "For these reasons, the final judgment below must be reversed and the cause remanded, with directions to vacate the order of default, and for further proceedings not inconsistent herewith." - see Chester v Marchese, 383 So. 2d 734 (Fla. 3d DCA 1980)
      Background & Analysis:
    1. Defendant contacted Plaintiff/Court, but failed to file an answer
    2. Plaintiff moved for default
    3. Trial Court held a hearing on default (both parties attended)
    4. Trial Court signed the order of default
    5. Defendant slipped in its answer
    6. Trial Court entered its order of default
    7. Appellate Court vacated the order of default because it was "entered" after the answer
    • Takeaway: Get this Motion in the Clerk's hand (not the Judge's; you'll ask the judge later (see how))
  • Important Note #2: Be Very Mindful of the Calculation of Time

    TBD's easy method for determining the Due Date for Default:
    • (a) Take note of the date your opponent was served
    • (b) Add 21 days to that date
    • (c) Determine if this new date is a business day
      • If YES then this new date is the Due Date
      • If NO then find the next business day. This next business day is the Due Date.
    • see Rule 2.514(a) Fla. R. Jud. Admin.
  • Please download as many sample documents as you'd like
    • Contact TBD for more free samples
  • Feel free to use the templates (see Part IV - above) to help draft your 'Motion for Default'
  • Save the final version as a PDF file.
  • File the final version in court

VI. Additional Notes

VII. Bibliography

VIII. Conclusion

If your civil opponent fails to file anything in Court then ask the Clerk to enter a Default as soon as the 20-day window closes.

Congratulations! You're now booked up on how to write a Motion for Default!

Please get the justice you deserve.

Sincerely,



www.TextBookDiscrimination.com
Icon-Email-WBIcon-Email-WG Icon-Youtube-WBIcon-Youtube-WG Icon-Share-WBIcon-Share-WG
Pages You Might Also Like