COA Holds That Plaintiff Need Not Move For Entry Of Default Before Moving For Default Judgment

Today in Ruiz v. Mecklenburg Utilities, Inc. the Court of Appeals (COA) affirmed a default judgment even though the plaintiff didn't first move for entry of default under Rule 55(a); instead the plaintiff moved straight for a default judgment under Rule 55(b), which the trial court granted even though no entry of default preceded it.

In earlier cases the COA had held that default is a "two-step process requiring (1) the entry of default and (2) the subsequent entry of a default judgment," and that a plaintiff "must abide by these procedural requirements." But today the Court held that plaintiff's broad prayer for relief in his motion for default judgment could be read broadly to ask for entry of default and that the trial court order was "tantamount" to an entry of default in addition to a default judgment. Judge McCullough wrote the decision, joined by Judge Steelman.

Judge Geer concurred in the result only. "I believe that Rule 55 ... requires that a plaintiff obtain an entry of default prior to seeking a default judgment," she wrote. Citing COA precedent (and federal cases applying federal Rule 55), she said that the two-step process contemplated in Rule 55 (and it's commentary) is not simply the better practice but is "mandatory." Judge Geer concurred in the result, however, because the procedural error didn't prejudice the defendant.