You know the feeling — you’re working through a Civil Procedure practice set, and a question drops about what happens when a defendant just… doesn’t show up. Default and default judgment for the MBE trips up a surprising number of test-takers, not because the rules are complicated, but because students confuse the two-step process or miss the specific conditions that apply at each stage.
Let’s fix that right now.
What Default Actually Means (It’s Not the Same as Default Judgment)
This is the number one mistake students make. Default and default judgment are two separate things. They happen in sequence. You cannot skip the first step to get to the second.
Default is the clerk’s administrative act of recording that a party has failed to plead or otherwise defend. Default judgment is the court’s actual enforceable judgment against that party. One is a notation. The other is a legal ruling with teeth.
Under FRCP 55, the process breaks into two distinct phases: entry of default, then entry of default judgment. Conflating them on the MBE will cost you points.
Step One: Entry of Default
When a defendant fails to plead or otherwise defend — meaning they don’t answer, don’t file a pre-answer motion under FRCP 12, and don’t otherwise appear in the action — the plaintiff can ask the clerk to enter default. The clerk enters it as a matter of right once the plaintiff shows, by affidavit or otherwise, that the defendant has failed to respond.
A few things to keep in mind here:
- Default is not automatic. The plaintiff must affirmatively request it.
- The defendant must have been properly served. If service was defective, default entry is improper regardless of whether the defendant responded.
- Once default is entered, the defendant is generally treated as having admitted the well-pleaded factual allegations of the complaint. But — and this is critical — the defendant has not yet lost the case. No money has changed hands. No judgment has been entered. That comes next.
Step Two: Entry of Default Judgment
After default is entered, the plaintiff must seek a default judgment. Here’s where the MBE loves to test the distinction between two different routes, depending on the type of claim.
Clerk-entered default judgment: If the claim is for a sum certain — a fixed, calculable amount — and the defendant is not an infant or incompetent person, the clerk can enter default judgment without any judicial involvement. Think a contract claim where the defendant owes a specific dollar amount that doesn’t require any calculation or proof beyond the face of the agreement.
Court-entered default judgment: For everything else, the plaintiff must apply to the court. The court has discretion here. It may conduct hearings, require the plaintiff to present evidence on damages, or take other steps to determine what the plaintiff is actually owed. The judgment cannot exceed the amount demanded in the pleadings — this is a hard rule, and the MBE tests it. If the complaint asked for $50,000, the default judgment cannot be for $75,000 even if the plaintiff could theoretically prove more.
The FRCP 55(b) Hearing Requirement
One detail that shows up on bar exam questions: if the defendant has appeared in the action — even informally, even without formally answering — the court must provide that defendant with written notice of the application for default judgment at least seven days before any hearing on the application.
What counts as “appearing”? This is broader than you might think. A defendant who shows up at a scheduling conference, sends a letter to opposing counsel indicating they intend to defend, or otherwise signals participation in the litigation has “appeared” for this purpose. The MBE may give you a fact pattern where a defendant never filed an answer but did send a letter to plaintiff’s attorney. That defendant gets notice before default judgment can be entered.
Setting Aside Default and Default Judgment
The MBE also tests what happens after default or default judgment is entered. These are different standards, and confusing them is another common mistake.
Setting aside entry of default under FRCP 55(c) requires showing good cause. Courts look at whether the default was willful, whether setting it aside would prejudice the plaintiff, and whether the defendant has a meritorious defense. This is a relatively lenient standard. Defendants have a reasonable shot at getting default set aside if they act quickly and have a colorable defense.
Setting aside a default judgment under FRCP 60(b) is harder. The defendant must show one of the specific FRCP 60(b) grounds: mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or that the judgment is void (for example, because the court lacked personal jurisdiction or service was defective). Courts treat default judgments with more finality than mere entries of default, so the bar is higher.
Here’s a classic MBE-style scenario to lock this in:
Plaintiff sues defendant for breach of contract. Defendant is properly served but fails to answer within 21 days. Plaintiff requests entry of default, which the clerk enters. Three weeks later, defendant’s attorney contacts plaintiff’s counsel saying the defendant intends to defend. Plaintiff then applies to the court for default judgment. What must happen before the court enters default judgment?
The court must give the defendant at least seven days’ written notice before any hearing, because the defendant has “appeared” by having counsel contact opposing counsel. And the court cannot enter judgment for more than what the complaint demanded.
Default and the Competency/Military Exception
Don’t overlook this one. Under the Servicemembers Civil Relief Act, a court cannot enter a default judgment against a defendant in military service without first appointing an attorney to represent the absent servicemember. This is a federal statutory protection that operates independently of FRCP 55. If the MBE gives you a fact pattern involving a defendant on active duty, the standard default judgment procedure is not enough.
Similarly, FRCP 55 explicitly protects infants and incompetent persons — a default judgment cannot be entered against them without a representative being appointed.
What Happens to Damages After Default?
One more nuance worth knowing: default does not establish damages. It establishes liability on the well-pleaded facts. The plaintiff still has to prove the amount of damages they’re entitled to, unless the claim is for a sum certain that the clerk can calculate without a hearing.
This matters on the MBE because a question might ask whether a plaintiff who obtained a default judgment is automatically entitled to the full amount claimed. The answer is no — the court must still determine the appropriate damages, and it has discretion to conduct hearings and require proof.
FlashTables is a set of professionally formatted two-column PDF rule tables covering all seven MBE subjects — 704 rules total, organized by the official NCBE Subject Matter Outline. The default and default judgment rules covered in this article are laid out side-by-side in the Civil Procedure table, making it easy to see exactly how entry of default, entry of default judgment, and the standards for setting each aside relate to one another. Whether you’re a law student building your Civil Procedure outline or a bar taker running active recall drills in the final weeks before the exam, the tables give you the black-letter rules in a format built for fast, efficient review. You can find them at getflashtables.com.
Key Takeaways: Default and Default Judgment for the MBE
Before you move on, lock these rules in:
- Default ≠ default judgment. Entry of default is step one. Default judgment is step two. Both require affirmative action by the plaintiff.
- The clerk can enter default judgment only for a sum certain against a non-infant, non-incompetent, non-military defendant.
- All other default judgments require a court order, and the court has discretion on damages.
- Default judgment cannot exceed the amount demanded in the complaint.
- A defendant who has appeared in any way must receive seven days’ written notice before a default judgment hearing.
- Setting aside entry of default requires good cause (lenient standard). Setting aside a default judgment requires an FRCP 60(b) ground (harder standard).
- Servicemembers and incompetent persons have special protections that override the standard default judgment procedure.
Civil Procedure is one of those subjects where the rules feel procedural and dry until you’re staring at a fact pattern with a missing defendant and four answer choices that all sound plausible. Know the sequence. Know the exceptions. That’s how you pick up points here.