An order of default in a lawsuit is the court’s formal notation that a defendant failed to respond to the complaint within the time the rules allow. In federal court, that window is generally 21 days after being served.1Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections: When and How Presented The order itself is not a ruling against the defendant and does not award the plaintiff anything. It is a procedural marker that strips the defendant of the right to contest liability and clears the way for the plaintiff to seek a final default judgment.
Entry of Default and Default Judgment Are Not the Same
These two steps get mixed up constantly, and the difference matters.
An entry of default is a notation on the court’s docket. The court clerk makes it after the plaintiff files a request showing, usually by affidavit, that the defendant was properly served and did not respond in time.2Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment It records absence. Nothing more.
A default judgment is the final order granting the plaintiff relief. It comes later, in a separate step, and once entered it carries the same weight as any other judgment. The plaintiff can use it to garnish wages, freeze accounts, or place liens. The two steps also have different standards for being undone, which is why defendants who want back into a case need to know which one they are facing.
How an Order of Default Gets Entered
The clerk does not watch deadlines and act on its own. The plaintiff has to ask. The plaintiff files a request for entry of default, attaches proof the defendant was properly served, and shows the response deadline has passed with nothing filed.2Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment
In federal court, the baseline response deadline is 21 days from service.1Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections: When and How Presented State courts set their own deadlines, and these vary widely. Some give as few as 15 days; others allow 30 or more. Which rules apply depends on where the lawsuit was filed.
Proper service is the linchpin. If the plaintiff cannot prove the defendant was served correctly, the clerk should reject the request, and a judge will almost certainly refuse to grant a default judgment later. A defendant who was never properly served has no obligation to respond, and any default entered without proper service is vulnerable to being thrown out.
What a Default Actually Admits
This is where many people go wrong. When default is entered, the defendant is treated as having admitted the factual allegations in the complaint, but only the well-pleaded ones and only on the question of liability. The defendant is not deemed to have agreed to the plaintiff’s claimed damages.2Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment
So the court can accept the complaint’s factual allegations as true for the purpose of deciding whether the plaintiff has a valid claim. But when the damages are not a fixed, calculable amount — things like pain and suffering, lost business, reputational harm — the court will typically require a hearing or at least documentary evidence to set the number. A plaintiff cannot pick a figure and expect the court to rubber-stamp it.
From Default to Default Judgment
After default is entered, the plaintiff’s next step is to seek a default judgment. If the claim is for a specific dollar amount that can be calculated from the face of the complaint — a “sum certain” — the clerk can enter the judgment without a judge, provided the defendant never appeared and is not a minor or legally incompetent.2Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment
Everything else goes to a judge: unliquidated damages, requests for injunctive relief, claims against minors, and situations where the defendant made some appearance before going silent. Judges have discretion and can deny a default judgment even when the technical requirements are met. If the defendant previously appeared in the case, the plaintiff must give at least seven days’ written notice before the hearing.2Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment The court can hold hearings to determine damages, conduct an accounting, require the plaintiff to prove allegations, or investigate anything else it considers necessary.
Setting Aside an Order of Default
If an entry of default is on the record but no default judgment has been entered yet, you are in the easier of the two positions. Courts can set aside an entry of default for “good cause.”2Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment That is a flexible standard, and courts generally weigh three things:
- Whether the default was willful. Deliberately ignoring a lawsuit is treated very differently from missing a deadline because papers were sent to the wrong address or lost in an office transition.
- Whether you have a legitimate defense. You do not need to prove it at this stage, but you need enough facts to show that reopening the case would not be pointless.
- Whether the plaintiff would be unfairly harmed. If the plaintiff relied on the default in ways that cannot be undone, or if delay would destroy evidence or make witnesses unavailable, that weighs against you.
Courts strongly prefer to decide cases on the merits rather than on procedural technicalities. Move quickly, show a reasonable explanation and a viable defense, and the odds are generally favorable. Improper service is an especially strong ground: if you were never properly served, the default must be set aside as a matter of law.
Vacating a Default Judgment
Once a default judgment has been entered, the bar gets significantly higher. You are no longer asking the court to undo a preliminary notation; you are asking it to throw out a final ruling. A separate rule applies, and the standard is “excusable neglect” rather than the more forgiving “good cause” test.3Legal Information Institute. Federal Rules of Civil Procedure Rule 60 – Relief from a Judgment or Order
Grounds for vacating a default judgment include mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, and fraud by the opposing party. For most of these grounds, including mistake and fraud, the motion must be filed within one year after the judgment was entered.3Legal Information Institute. Federal Rules of Civil Procedure Rule 60 – Relief from a Judgment or Order Even inside that one-year window, the motion must be filed within a “reasonable time,” so waiting eleven months to act will raise questions.
If you discover a default against you, act immediately. The difference between learning about it on day five and learning about it on day sixty can be the difference between a routine motion and an uphill battle.
Lawsuits With More Than One Defendant
When a lawsuit names more than one defendant and only some fail to respond, the plaintiff can get an entry of default against the non-responding defendants while the case continues against the others. Getting a final default judgment in that posture is harder than it looks. The Supreme Court established long ago that entering final judgment against one defaulting defendant while the case is still being litigated against co-defendants can produce contradictory outcomes on the same claims. Courts generally avoid this by entering the default but delaying the final judgment until the claims against all defendants are resolved.4Legal Information Institute. Frow v. De La Vega If the remaining defendants win on the merits, that outcome can benefit the defaulting defendant too.
Extra Protection for Servicemembers
Federal law adds a layer of protection when the defendant might be in the military. Before any default judgment can be entered, the plaintiff must file an affidavit stating whether the defendant is in military service, or that the plaintiff could not determine military status.5Office of the Law Revision Counsel. United States Code Title 50 Section 3931 – Default Judgments This is not optional. Courts cannot enter a default judgment without it.
If the defendant is in the military, the court cannot enter judgment until it appoints an attorney to represent the absent servicemember. If the plaintiff cannot determine military status, the court can require the plaintiff to post a bond to compensate the defendant for any losses if the judgment is later overturned.5Office of the Law Revision Counsel. United States Code Title 50 Section 3931 – Default Judgments These rules exist because deployment and military obligations can prevent an active-duty servicemember from responding, and the law does not allow that absence to count against them.