Moving for Final Judgment After Default: Damages Matter


You filed a complaint and waited 20 days for a responsive pleading without the defendant having filed any document. Typically, a plaintiff’s next procedural step is to move for entry of default to later seek an entry of a final judgment after default. Before embarking on that next step, plaintiff’s counsel should consider the effect the type of damages sought in the complaint has on seeking a final judgment in this context. This article aims to inform plaintiff litigators about the procedural technicalities that can affect your chances of success with a motion for entry of final judgment after default.


Preliminary Considerations Before Moving for Default


Plaintiff counsel should determine whether the defendant failed to file or serve “any document in the action”[1] instead of whether the defendant only failed to file or serve an answer to the complaint within 20 days of service. Although failure to file a responsive pleading is a necessary condition for the entry of a default, the type of default sought depends on whether the defendant has filed any paper in the case. If the defendant has filed any document, not necessarily a responsive pleading, then plaintiff needs to obtain a default from the court.[2] Otherwise, plaintiff can obtain a clerk’s default.[3]


Damages Dictate the Appropriate Vehicle for an Entry of Final Judgment After Default


Once a default has been entered, counsel must determine whether the complaint sought liquidated or unliquidated damages. The procedural route for seeking an entry of final judgment after default turns on such determination.[4] First, let’s discuss the two types of damages involved in this step. Liquidated damages are those that the court can determine the amount of damages with exactness as pled in the complaint. Examples of liquidated damages include amounts due on a negotiable instrument, unpaid principal and interest in a foreclosure action, and damages in a breach of contract action when the parties expressly stipulated to a dollar amount if either party breached.


On the other hand, unliquidated damages are those where a court must consider testimony or evidence to determine facts on which to base the exactness of damages. Examples of unliquidated damages include damages for personal injuries, lost profits in a breach of contract action, and attorneys’ fees.


Next, if plaintiff sought liquidated damages in the complaint, the procedural vehicle for an entry of final judgment is straightforward. Counsel need only file a motion for entry of final judgment after default and set the motion for hearing.[5] The motion must have certain supporting documents: (i) plaintiff’s affidavit detailing the complaint’s factual allegation (including the calculation of liquidated damages) and authenticating the complaint’s exhibits; (ii) a proposed final judgment order; and (iii) notice of hearing on the motion.[6] Additionally, plaintiff is not required to serve the defendant with either the motion or the notice of hearing although it is good practice to serve such documents on the defendant.[7]


However, where plaintiff sought unliquidated damage, plaintiff does not file a motion for entry of final judgment after default. Instead, the court holds either a bench or jury trial. If plaintiff requested a jury trial in the complaint, plaintiff must notice the case for a jury trial. Where plaintiff did not demand a jury trial, plaintiff must notice the case for a bench trial. Plaintiff must serve all parties, including the defaulted defendant.[8]


A Final Note About the Trial Order


Finally, plaintiff counsel should ensure that the court’s trial order strictly complies with the procedural requirements of Fla. R. Civ. P. 1.440(c). Although appellate courts disagree on whether deviations from the rule requires reversal[9], it is best practice to ensure strict compliance. Generally, the process of obtaining a final judgment in this context can take months due to busy dockets and the judges’ calendars.[10] As such, ensuring that the court observes the procedural requirements saves time and money for your client.


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[1] See Fla. R. Civ. P. 1.500(a), (b) [2] See Fla. R. Civ. P. 1.500(a), (b). [3] Id. [4] Default Judgment: Procedure (FL), Practical Law Practice Note w-016-9546, last accessed (Dec. 3, 2020). [5] See supra, note 4. [6] Id. [7] See Fla. R. Civ. P. 1.440(c). [8] Kotlyar v. Metro. Cas. Ins. Co., 192 So. 3d 562, 564-65 (Fla. 4th DCA 2016). (finding that while a default terminates a defendant’s right to contest liability to liquidated damages, the defendant may still contest the amount and the plaintiff’s entitlement to unliquidated damages). [9] See Mourning v. Ballast Nedam Const., Inc., 964 So. 2d 889, 896 (Fla. 4th DCA 2007) (final default judgment upheld even though the plaintiff’s attorney, not the court, served the defaulted defendant with the trial order); but see Gawker Media, LLC v. Bollea, 170 So. 3d 125, 131 (Fla. 2d DCA 2015) (holding that a party “is absolutely entitled to strict conformance with the terms of rule 1.440”). [10] See supra, note 6.