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What is the procedure for obtaining default judgments? Nevada

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  • What is the procedure for obtaining default judgments? Nevada

    PROCEDURE FOR OBTAINING DEFAULT JUDGMENTS
    BEFORE JUDGE RIEGLE, JUDGE MARKELL, AND JUDGE ZIVE
    November 1, 2004

    1. Time Limit for Service. The summons and complaint must be delivered within 10 days after the summons is issued if service is made pursuant to Fed. R. Civ. P. 4(e), (g), (h)(1), (i), or (j)(2). If service is by mail, the summons and complaint must be deposited in the mail within 10 days after the summons is issued. If it is not timely mailed or delivered, a new summons must be issued and served. These provisions do not apply to service in a foreign country. (Fed. R. Bankr. P. 7004(e)). If service of the summons and complaint is not made upon a defendant within 120 days after filing the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice or direct that service be effected within a specified time. If a plaintiff shows good cause, the court shall extend the time for service for an appropriate period. (Fed. R. Civ. P. 4(m); Fed. R. Bankr. P. 7004(a)).
    2. Service of Process on an Insured Depository Institution. Service on an insured depository institution must be made by certified mail addressed to an officer of the institution unless the institution has appeared by its attorney (in which case the attorney must be served by first class mail); the court orders otherwise(after notice by certified mail of an application to allow service by first class mail sent to an officer designated by the institution); or the institution has waived in writing service by certified mail (by designating an officer to receive service). (Fed. R. Bankr. P. 7004(h)).
    3. Proof of Service. The file must contain proof of service of the summons and complaint. The person making service must provide an affidavit of service. (Fed. R. Civ. P. 4(l); Fed. R. Bankr. P. 7004(a)).
    4. Failure to Appear. The party against whom default is taken must have failed to plead or otherwise defend. (Fed. R. Civ. P. 55(a); Fed. R. Bankr. P. 7055).
    (a). A defendant has 30 days after the issuance of the summons to file an answer to a complaint. (Fed. R. Bankr. P. 7012(a)).
    (b). A party has 20 days after service of the cross-claim to file an answer to the cross-claim. (Fed. R. Bankr. P. 7012(a)).
    (c). A plaintiff has 20 days after service of the answer to reply to a counterclaim (Fed. R. Bankr. P. 7012(a)).
    5. Entry of Default. To obtain an "Entry of Default":
    (a). Make a written application or request for entry of the default.
    (b). File an affidavit or declaration supporting the application or request which proves that the party against whom default is sought has failed to plead or otherwise defend. (Fed. R. Civ. P. 55(a); Fed. R. Bankr. P. 7055).
    (c). Submit an "Entry of Default." The court clerk enters the default. (Official Bankruptcy Form No. B 260).
    6. Judgment by Default. After a default has been entered, submit a "Judgment by Default." (Fed. R. Civ. P. 55(b); Fed. R. Bankr. P. 7055; Official Bankruptcy Form No. B 261).
    (a). While the Federal Rules of Civil Procedure permit the clerk to enter the default judgment, currently all "Judgments by Default" must be entered by the court.
    (b). The moving party must make a written application or request for the default judgment. The application must be supported by an affidavit which contains, among other things, facts showing that the party against whom the default is taken is not in the military service. (Fed. R. Civ. P. 55(b)(2); Fed. R. Bankr. P. 7055; 50 U.S.C. Appx. § 520).
    (c). If the party or party's attorney has appeared, s/he is entitled to at least three days written notice of the application or request for default judgment. (Fed. R. Civ. P. 55(b)(2); Fed. R. Bankr. P. 7055).
    (d). Default against an infant or an incompetent person can be obtained only if the person is represented in the action by a general guardian, committee, conservator, or some other representative. (Fed. R. Civ. P. 55(b)(2); Fed. R. Bankr. P. 7055).
    (e). It is within the Judge's discretion to enter the default judgment.
    (f). The court may hold hearings, as necessary, to determine the appropriate amount of damages or any other matter and shall accord a right of trial by jury when required by any statute of the United States. (Fed. R. Civ. P. 55(b)(2); Fed. R. Bankr. P. 7055).
    7. Demand for Judgment. A default judgment shall not be different in kind from or exceed the amount prayed for in the demand for judgment. (Fed. R. Civ. P. 54(c); Fed. R. Bankr. P. 7054(a)).
    8. Judgment Against the United States. A default judgment cannot be entered against the United States or any officer or agency of the government unless the movant establishes a claim or right to relief "by evidence satisfactory to the court." (Fed. R. Civ. P. 55(e); Fed. R. Bankr. P. 7055).
    9. Attorney’s Fees. Pursuant to the "American Rule," and unless provided for by statute such as 11 U.S.C. § 362(h) or by contract, a prevailing litigant is not entitled to recover attorney's fees. See, Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975); In re LCO Enter., Inc., 180 B.R. 567 (9th Cir. BAP 1995), aff’d, 105 F.3d 665 (9th Cir. 1997). Any request for attorney's fees must be supported by an affidavit showing, among other things, that the fees are reasonable and allowable.
    10. Costs. Costs may be allowed to a prevailing party except when a statute or rule provides otherwise. Costs may be taxed by the clerk on one day's notice; on motion served within five days thereafter, the action of the clerk may be reviewed by the court. (Fed. R. Bankr. P. 7054(b); Local Bankruptcy Rule 7054; Bankruptcy Form No. B 263).
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