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How-To: Write a Motion for Default Judgment

Background: You sued someone for affirmative relief
Problem: That person has failed to respond to your complaint
Solution: You ask the Court to enter judgment in your favor

I. Definitions

"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."
Source: Barron's Dictionary of Legal Terms, Steven H. Gifis, 5th Edition; © 2016

II. Legal Citations

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.

(b) By the Court.
When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any document in the action, that party must be served with notice of the application for default.

(e) Final Judgment.
Final judgments after default may be entered by the court at any time... If 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 to enable the court to enter judgment or to effectuate it, the court may receive affidavits, make references, or conduct hearings as it deems necessary and must accord a right of trial by jury to the parties when required by the Constitution or any statute.

III. Samples

# PDF Comments
1± TBD case. Pro Se Filing | Duval | §1983 Case | Failure to Appear (AG tried to rescue, though)
2x Denied | 2020 | Attorney Filing | Defendant Moved to Strike (denied); Failed to answer complaint
3✓ Granted | 2020 | Attorney Filing | Unlawful Detainer; Quitclaim Deed
4✓ Granted | 2020 | Attorney Filing | Attached Proposed Order
5✓ Granted | 2020 | Attorney Filing | Car Crash; Requested hearing on damages
6✓ Granted | 2020 | Attorney Filing | Failure to appear
7✓ Granted | 2019 | Attorney Filing | Unlawful Detainer
8✓ Granted | 2019 | Attorney Filing | Writ of Possession
9✓ Granted | 2019 | Attorney Filing | Eviction Case; Failure to Appear;
10± Pending | 2019 | Pro Se Filing | Non-Lawyer Representative;
11x Denied | 2019 | Attorney Filing | Declaratory Action; Failure to appear
12- No ruling | 2019 | Pro Se Filing | Standard Form; Failure to appear; Calculated Damages (133k)
13✓ Granted | 2019 | Attorney Filing | Fraud case; Motor vehicle; Long-winded; Failure to appear
14✓ Granted | 2019 | Attorney Filing | Failure to appear
15✓ Granted | 2019 | Attorney Filing | Commercial Eviction; incomplete/not proofread
16- no ruling | 2019 | Attorney Filing | Defendant asked for an extension, but still failed to respond
17✓ Granted | 2019 | Attorney Filing | Nice Document; Calculated Damages
18✓ Granted | 2019 | Attorney Filing | Dual Request (Default and Default Judgment); Attached Proposed Order(s)
19✓ Granted | 2019 | Attorney Filing | Included Summary Judgment; Nice Document; Liquidated vs Unliquidated Damages
20✓ Granted | 2019 | Attorney Filing | Mentioned Default Entry
21✓ Granted | 2019 | Pro Se Filing | Prisoner; Willful disregard; Discovery; Many citations; Showed Damages;
22✓ Granted | 2019 | Pro Se Filing | Court-Issued Form
23✓ Granted | 2019 | Proposed Order only (titled "Final Judgment")
24✓ Granted | 2018 | Attorney Filing | Property case; Cited Freeman v Freeman
25✓ Granted | 2018 | Attorney Filing | Declaration Violation; Injunction; Defendant died beforehand
26- no ruling | 2019 | Attorney Filing | Dual Request (Default and Default Judgment)
27✓ Granted | 2018 | Attorney Filing | Failure to Appear; Affidavits; Requested hearing on damages
28✓ Granted | 2018 | Attorney Filing | Writ of Possession; Many Affidavits (Venue, etc.); Failure to Appear
29✓ Granted | 2017 | Attorney Filing | Declaratory Judgment; §86.011 FS; Loan
30- no ruling | 2017 | Pro Se Filing | Cited entry of default; $119k in calculated damages;
31✓ Granted | 2017 | Attorney Filing | Declaratory Judgment; §86.011 FS; Loan
32x Denied | 2017 | Attorney Filing | Discovery Problems; Judicial Notice; Sanctions;
33✓ Granted | 2016 | Attorney Filing | Foreclosure Case; Demand for Payment
34x Denied | 2014 | Pro Se Filing | Qui Tam Case; Corporation; Constitution Cited
35✓ Granted | 2014 | Attorney Filing | Writ of Garnishment
36- no ruling | 2012 | Attorney Filing | Clerk vacated Default; No responsive pleading
37✓ Granted | 2012 | Attorney Filing | Mortgage Case; Many Citations
38✓ Partially Granted | 2011 | Attorney Filing | Eviction Case; Many Citations; Summary Judgment Stated
39✓ Partially Granted | 2010 | Attorney Filing | Eviction Case; No Exceptions; Attached Default
40- no ruling | 2010 | Attorney Filing | Discrimination Case; Motion to Sever; Withdraw Counsel

IV. Templates

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

V. Quick Commentary

  • Important Note: Notify your civil opponent of the Default proceedings if he/she contacted you prior to entry of default. If you don't then an appellate court might overrule the Default Judgment.
    "A paper served prior to the entry of default triggers the requirement that the party against whom a default is sought be served with notice of the application. In the case under consideration, the letter confirming the bank's agreement to an extension of time constituted a paper served within the meaning of rule 1.500(b). Zettler v. Ehrlich, 384 So.2d 928 (Fla. 3d DCA 1980) (Schwartz, J., specially concurring). See also, Roland v. W.L. Motor Lines, Inc., 32 N.C. App. 288, 231 S.E.2d 685 (1977). Any paper served prior to the entry of a default requires the furnishing of notice."

    - see Reicheinbach v Southeast, 462 So. 2d 611 (Fla. 3d DCA 1985)

  • Important Note: Federal Magistrates can only recommend default judgment (ie, they cannot enter it themselves)
    "Article III of the United States Constitution does not allow a magistrate judge to order the entry of a final judgment. See United States v. Flaherty, 668 F.2d 566, 585 (1st Cir.1981); Horton v. State Street Bank & Trust Co., 590 F.2d 403, 404 (1st Cir.1979). A district court judge may assign a case to a magistrate judge to hear evidence regarding the amount of a default judgment under 28 U.S.C. § 636(b)(3); however, issuing an order to enter judgment is an entirely different matter. The district judge must review the magistrate judge's recommendations, and only the district judge can order the entry of the final judgment."

    - see Conetta v. National, 186 FRD 262 (DRI 1999)

  • Purpose: To recover damages for the plaintiff due to the defendant's forfeited admission's of all material fact
    "The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.""

    - see Coggin v Barfield, 8 So. 2d 9 (Fla. 1942)

  • Hearing on Damages: If the relief you claimed for is not exact then request a trial/hearing on all uncalculated damages
    “A default admits every cause of action that is sufficiently well-pled to properly invoke the jurisdiction of the court and to give due process notice to the party against whom relief is sought. A default also admits the plaintiff's entitlement to liquidated damages due under the pleaded cause of action, but not unliquidated damages."

    "Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law. Since every negotiable instrument must be "an unconditional promise or order to pay a sum certain in money" ( see, e.g., §§ 673.104(1)(b) and 673.106, Fla. Stat. (1981)), actions for the sums directly due on negotiable instruments are, by definition, actions for liquidated damages."

    "However, damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment... A defaulting party has a due process entitlement to notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages."

    - see Bowman v Kingsland, 432 So. 2d 660 (Fla. 5th DCA 1983)

  • 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 Leave to Reply'
  • 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 has failed to appear and/or failed to answer your complaint then move the Court for Final Judgment After Default.

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

Please get the justice you deserve.


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