Vt. R. Civ. P. 55
Reporter's Notes-2020 Amendment
Rule 55 is amended to reflect the needs of current practice and to modernize language and make it consistent throughout the rule.
The requirement of subdivision (a) for a separate entry of default by the clerk is eliminated in favor of a provision allowing the party seeking relief to file a motion for default judgment to initiate the process. The provision for entry of default as originally adopted in 1971 from Federal Rule 55(a) was intended to facilitate the provision of what was then Rule 55(b)(1) requiring the clerk on the plaintiff's request and affidavit of the amount due to enter judgment when the amount was, or could be computed to be, a sum certain. Federal Rule 55(a) and (b)(1) retain those provisions with minor modifications. Vermont Rule 55(b), however, was substantially modified in 1972, requiring, in a revised paragraph (b)(1), a formal application for any default judgment and providing, in revised paragraph (b)(2), for the clerk to enter judgment for a sum certain "upon order of the Presiding Judge issued without notice and hearing." The practice under former paragraph (b)(1) was deemed to impose "an undesirable responsibility upon clerks who may lack the necessary legal or fiscal training to carry it out." Reporter's Notes to 1972 Amendment. Thus, the formal separate entry of default in subdivision (a) is both unnecessary and superfluous.
Rule 55(a) has been further amended to follow the Federal Rule by the deletion of "as provided by these rules," so that an indication of an intent to defend, even if not in compliance with the rules, does not trigger the rule.
Rule 55(b), making clear the application of the rule to any pleading seeking affirmative relief, is former Rule 55(d), redesignated without change in language.
Rule 55(c) is former Rule 55(b). The introductory sentence of the former rule has been deleted as unnecessary. The first sentence of former Rule 55(b)(1), now Rule 55(c)(1), requiring an application to the court for a default judgment, is deleted as superfluous in light of the provision for a motion added to subdivision (a). The 4 sentence added to paragraph (1) makes clear that the party seeking a default judgment has the burden on the issue of minority and must disclose any information in that party's possession on the issue of competency.
Rule 55(c)(2) is amended to eliminate the reference to entry of judgment by the clerk on order of the judge by providing simply that the court, that is the judge, enters judgment. It is also amended to use the more-generic terms opposing party and moving party in recognition of the fact that default can be sought by parties other than the plaintiff. The time for notice in Rule 55(c)(4) has been changed from five to seven days to allow for increasing slowness in the mail. Rule 55(c)(6) has been amended to make clear that there must be a motion and a hearing under paragraph (c)(4). Other minor verbal amendments are made in Rules 55(c)(3)-(7) for consistency with the preceding amendments.
Rule 55(d), formerly Rule 55(c), has been revised for consistency with the amendment of Rule 55(a) eliminating the formal entry of default. The amendment preserves the distinction presently noted in Vermont cases between setting aside the judge's ruling on a motion for default and setting aside a final judgment of default.
As noted above, former Rule 55(d) is now Rule 55(b). The minor verbal amendments in Rule 55(e) are for consistency with the preceding amendments.
Reporter's Notes-2018 Amendment
Rule 55(b)(4) is amended to extend its 3-day time period to 5 days consistent with the simultaneous "day is a day" amendments to V.RC.P. 6.
Reporter's Notes-2017 Amendment
Rule 55(c) is amended to adopt the amendment to F.R.C.P. 55(c) effective December 1,2015. The federal rule was originally amended in 2007 as part of the general restyling of the Federal Rules. The 2015 amendment inserted "final" in the last clause, to make clear that the standards of Rule 60(b) apply only to a judgment that is "final" because it disposes of all claims among all pmiies, or because the judge has directed entry of final judgment under Rule 54(b). In the absence of finality, the judgment may be revised at any time under Rule 54(b). See Federal Advisory Committee's Note to 2015 amendment ofF.R.C.P. 55(c).