NOTES TO RULE 55
HISTORY: (Amended Aug. 1, 1987)
Notes of Advisory Committee on Rules.
This represents the joining of the equity decree pro confesso (former Equity Rules 12 (Issue of Subpoena--Time for Answer), 16 (Defendant to Answer--Default--Decree Pro Confesso), 17 (Decree Pro Confesso to be Followed by Final Decree--Setting Aside Default), 29 (Defenses--How Presented), 31 (Reply--When Required--When Cause at Issue)) and the judgment by default now governed by USC, Title 28, former § 724 (Conformity act). For dismissal of an action for failure to comply with these rules or any order of the court, see Rule 41(b).
Note to Subdivision (a).
The provision for the entry of default comes from the Massachusetts practice, 2 Mass Gen Laws (Ter Ed, 1932) ch 231, § 57. For affidavit of default, see 2 Minn Stat (Mason, 1927) § 9256.
Note to Subdivision (b).
The provision in paragraph (1) for the entry of judgment by the clerk when plaintiff claims a sum certain is found in the NYCPA (1937) § 485, in Calif Code Civ Proc (Deering, 1937) § 585(1), and in Conn Practice Book (1934) § 47. For provisions similar to paragraph (2), compare Calif Code, supra, § 585(2); NYCPA (1937) § 490; 2 Minn Stat (Mason, 1927) § 9256(3); 2 Wash Rev Stat Ann (Remington, 1932) § 411(2). USC, Title 28, § 785 (Action to recover forfeiture in bond) and similar statutes are preserved by the last clause of paragraph (2).
Note to Subdivision (e).
This restates substantially the last clause of USC, Title 28, former § 763 (Action against the United States under the Tucker Act). As this rule governs in all actions against the United States, USC, Title 28, former § 45 (Practice and procedure in certain cases under the interstate commerce laws) and similar statutes are modified in so far as they contain anything inconsistent therewith.
Supplementary Note of Advisory Committee Regarding this Rule.
The operation of Rule 55(b) (Judgment) is directly affected by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 USC Appendix, §§ 501 et seq. Section 200 of the Act [50 USC Appendix, § 520] imposes specific requirements which must be fulfilled before a default judgment can be entered, e. g., Ledwith v Storkan, D Neb 1942, 6 Fed Rules Serv 60b.24, Case 2, 2 FRD 539, and also provides for the vacation of a judgment in certain circumstances. See discussion in Commentary, Effect of Conscription Legislation on the Federal Rules, 1940, 3 Fed Rules Serv 725; 3 Moore's Federal Practice, 1938, Cum Supplement § 55.02.
Notes of Advisory Committee on 1987 Amendments to Rules.
The amendments are technical. No substantive change is intended.