TITLE SEVEN — JUDGMENT
Rule 37. Default
Entering a Default. 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 failure is made to appear by affidavit or otherwise, the clerk shall enter that party’s default upon the docket.
Application for Entry of Default. The electronic filing system computes no deadline and enters no default of its own operation. A party seeking entry of a default shall file a request for entry of default through the general filing channel, accompanied by an affidavit or declaration stating:
the username of the party in default and the capacity in which that party is sued;
the date and time at which process was served, and the manner of service, with reference to the return filed under Rule 4.2 or to the record of service maintained by the clerk;
that the period allowed to plead or otherwise defend has expired, computed as provided in Rule 6;
that no pleading, motion, or appearance answering the claim has been filed or accepted; and
whether the party in default has otherwise appeared in the action.
Prerequisites. The clerk shall not enter a default unless the record shows that the summons and complaint were served upon the party in default as provided in Rule 4 and 7 R. Stat. §§ 131.101 through 131.106, or that the party has otherwise submitted to the jurisdiction of the court. A default shall not be entered against a party who has filed a timely appearance, pleading, or motion directed to the claim, notwithstanding that the filing was later rejected by the clerk, until the period for a corrected refiling fixed by the court has expired.
Default Judgment by the Clerk. Where the claim against a party in default is for a sum certain, or for a sum which can by computation be made certain, the clerk shall, upon request of the claimant and upon affidavit of the amount due, enter judgment for that amount and costs against a party who has been defaulted for failure to appear and who has not otherwise appeared in the action.
Default Judgment by the Court. In all other cases the party entitled to a judgment by default shall apply to the court. The court may conduct such proceedings as are necessary to:
conduct an accounting;
determine the amount of damages;
establish the truth of any averment by evidence; or
investigate any other matter.
Proceedings under this subdivision are conducted in the proceeding communications of the case unless the court directs otherwise.
Notice to a Party Who Has Appeared. If the party against whom a default judgment is sought has appeared in the action personally or by counsel of record, that party shall be given notice of the application for default judgment not less than forty-eight (48) hours before the court acts upon it. Notice is given by the electronic filing system upon the clerk’s acceptance of the application; where acceptance has not occurred within a reasonable time, the court may direct that notice be given in the proceeding communications of the case.
Limitation on Relief. A judgment by default shall conform to Rule 36(7). The court shall not award relief different in kind from, or exceeding in amount, that demanded in the pleading upon which the default was entered, and shall not award damages exceeding the limits fixed by statute.
Default Against the Government. A judgment by default shall not be entered against the State of Ridgeway, a county, a municipality, or any agency or department thereof, or against an officer sued in an official capacity, unless the claimant establishes a claim or right to relief by evidence satisfying the court. The Solicitor General shall be served as provided in Rule 4.1 and 7 R. Stat. § 131.106, and shall be afforded notice under Rule 37(6) whether or not an appearance has been entered.
Setting Aside a Default. For good cause shown the court may set aside an entry of default. In determining good cause the court shall consider whether the default was wilful, whether the party in default has a meritorious claim or defence, and whether setting the default aside would prejudice the opposing party. A final judgment by default may be set aside only under Rule 42.
Plaintiffs, Counterclaimants, Cross-Claimants, Third-Party Plaintiffs. This rule applies whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a counterclaim or cross-claim.
Effect of Delinquency Disabilities. A party who has been declared delinquent may not file civil litigation except as permitted by 7 R. Stat. § 132.113(f). A default shall not be entered against a party by reason of a disability imposed by that section without an express finding that the party was able to plead or otherwise defend.