Default and Vacating Default to a Civil Complaint in the Superior Court Law Division Civil. (Suits Over $15,000)

Kenneth Vercammen's Law Office represents individuals and companies involved in serious litigation matters. In a Civil Suit, a Complaint and Case Information Statement is prepared by the Plaintiff's attorney. These are then filed in the Superior Court, Law Division. After the Complaint is filed, the plaintiff's attorney will prepare a Summons and have the defendants personally served with the Summons and Complaint. The defendant generally only has 35 days after service of the Summons and Complaint to have their attorney file an "Answer to Complaint" Details on Answer are set forth in the following Rule 4:6-1: RULE 4:43. DEFAULT Rule 4:43-1. Entry of Default If a party against whom a lawsuit has been filed fails to file a formal " Answer to Complaint", failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, a default can be requested. The Plaintiff's Attorney can make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default. If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process. 4:43-2. Final Judgment by Default When a default has been entered in accordance with R. 4:43-1, except as otherwise provided by R. 4:64 (foreclosures), a final judgment may be entered in the action as follows: (a) By the Clerk. If the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant, if not a minor or mentally incapacitated person. If prejudgment interest is demanded in the complaint the clerk shall add that interest to the amount due provided the affidavit of proof states the date of defendant's breach. If the judgment is based on a document of obligation that provides a rate of interest, prejudgment interest shall be calculated in accordance therewith; otherwise it shall be calculated in accordance with Rule 4:42-11(a). If the claim is founded upon a note, check or bill of exchange or is evidenced by entries in the plaintiff's book of account, or other records, a copy thereof shall be attached to the affidavit. (b) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or mentally incapacitated person unless that person is represented in the action by a guardian or guardian ad litem who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with notice of the motion for judgment filed and served in accordance with R. 1:6. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court may conduct a proof hearing or take such proceedings as it deems appropriate, and in that event, if the defendant was originally served with process either personally or by certified or ordinary mail, the attorney for the claimant shall give notice of the proof hearing to the defaulting defendant by ordinary mail addressed to the same address at which process was served. In tort actions involving multiple defendants whose percentage of liability is subject to comparison and actions in which fewer than all defendants have defaulted, default judgment of liability may be entered against the defaulting defendants but such questions as defendants' respective percentages of liability and total damages due plaintiff shall be reserved for trial or other final disposition of the action. If application is made for the entry of judgment by default in deficiency suits or claims based directly or indirectly upon the sale of a chattel which has been repossessed, the plaintiff shall prove before the court the description of the property, the amount realized at the sale or credited to the defendant and the costs of the sale. In actions for possession of land, however, the court need not require proof of title by the plaintiff. If application is made for the entry of judgment by default in negligence actions involving property damage only, proof shall be made as provided by R. 6:6-3(c). (c) Conformance of Judgment With Pleading; Service of Judgment. Whether entered by the clerk or the court, the final judgment shall not be different in kind nor exceed the amount demanded in the pleading, except that in continuing causes, installments coming due after the filing of the pleading but before entry of judgment may be added to the amount of the demand stated in the pleading. Within seven days after receipt of the executed judgment from the court, the proponent of the judgment shall serve a copy thereof on the defaulting defendant as required by R. 1:5-2 except that service may be made by ordinary mail alone. (d) Failure to Apply for Judgment Within Six Months. If a party entitled to a judgment by default fails to apply therefor within four months after the entry of the default, the court shall issue a written notice to the party entitled to apply for entry of default judgment advising that the action will be dismissed without prejudice when six months have elapsed following the date of the entry of default unless within said period the party files application for entry of default judgment or by affidavit shows exceptional circumstances for the delay in seeking the judgment. If exceptional circumstances are shown, the court shall issue an order extending the time for entry of the judgment for a specified period, which may be further extended on motion. An application for entry of default judgment made after the expiration of six months following the entry of default shall not be granted except on notice of motion filed and served in accordance with R. 1:6. more info at http://www.kennethvercammen.com/default_and_vacating_default_to_a_civil_complaint.html