The current default judgment system is filled with problems. Default judgments are routinely set aside based upon the party’s “excusable neglect” for failing to timely answer. In such cases, the defaulting party’s negligence is essentially condoned because the non-defaulting party is not properly compensated for the delay and the defaulting party is not adequately reprimanded. Even after obtaining a default judgment, the nondefaulting party may have its victory disappear if a motion to set aside is filed shortly thereafter. On the other hand, some parties involved in litigation are ambushed with a default based on improper service. By sitting on the judgment without giving notice or attempting to collect, the nondefaulting party can even manipulate the one-year cutoff date in Rule 60 of the Federal Rules of Civil Procedure regarding the arguments that can be made in the motion to set aside. Fortunately, there are some simple solutions to improve the default judgment framework.
Arthur J. Park, Fixing Faults in the Current Default Judgment Framework, 34 Campbell L. Rev. 155 (2011).