How-To: Write a Motion for 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."

"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."

"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.""

“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."

• Contact TBD for more free samples

• You might want to include a certification that your defendant was not in the military
  • (therefore, he/she cannot be excused from default final judgment)

• Murphy v Stacy, 19-13553 US 11th Circuit Court of Appeals (2020)