Civil Court Rules and Jury Charges

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. (732) 572-0500 http://www.njlaws.com. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co- Chair of the ABA Criminal Law Committee,GP and lectured at the ABA Annual Meeting attended by 10,000 attorneys and professionals. Visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

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Tuesday, November 6, 2007

Entry of Default and Default Judgment

Entry of Default and Default Judgment
If a party has failed to plead or otherwise defend or if the answer has been stricken, according to R. 4:43-1 the clerk shall enter a default on the docket as to such party.
The following must be filed before default can be entered:
 Request for Default (a document, formally requesting of the clerk to enter a default against a specific party identified).
 Affidavit/Proof of Service (identifying the type of service of process, the date of service, the time within which the defendant(s) had to respond, the fact that the time has expired and has not been extended).
The request for default and affidavit for entry of default must be filed within 6 months of the actual default date. Thereafter, default cannot be entered except on notice of motion to the court. However, if the request is submitted beyond the 6-month period, it will be filed as “non-conforming.” If the defendant was originally served with process either personally or by certified/ordinary mail, the party/attorney obtaining the entry of default must send a copy of the request for default to the defaulting party by ordinary mail addressed to the same address at which the defendant was served with process.
A default judgment can be obtained against a party who has failed to respond, i.e., “plead”, or whose pleading has been stricken by the court and against whom default has been entered. Application may be made after entry of default judgment to vacate or void the judgment.
According to R. 4:43- 2, default judgment can be entered in the following ways:
 by the clerk, if the plaintiff’s claim is for a sum certain or for a sum which can by computation be made certain, and
 in such cases, a valid affidavit of proof must be filed; and
 in all other cases, by the court, on notice of motion, after a proof hearing is held.

In addition, pursuant to the Servicemembers’ Civil Relief Act (SCRA) 50 U.S.C. § 521, its New Jersey counterpart, N.J.S.A. 38:23C- 4, and R. 1:5 -7, an affidavit of non- military service must be filed with any application for default judgment.

It should be noted that the entry of default and default judgment cannot be done simultaneously in the Civil Part. Default must be entered and the defaulted party provided with notice of the entry before a default judgment may be sought and entered. See R. 4:43-2.
Rule 4:43-2(b) was recently amended to require that applications for entry of default judgment be brought by notice of motion. Attorneys must make a motion with the relief sought being an order scheduling the proof hearing on a selected date. On the return date of the motion, if no opposition is filed, the motion presumably would be granted on the papers, an order signed and served at the same address as the motion, and the proof hearing would take place on the date specified in the order (not a motion day, but a date convenient to the court and the moving party). If opposition is filed, the court will address it on the return date and, if the opposition is unfounded, will schedule the proof hearing date, advise the parties of the date on the record, and also put the date in the order.