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6. May the clerk enter a default judgment?
A builder brought a federal diversity action against a homeowner for breach of contract, seeking $115,000 in damages. The homeowner answered and counterclaimed for $93,000 in damages for breach of warranty. Four weeks later, when the homeowner had not received any responsive pleading from the builder, the homeowner moved for entry of default and a default judgment on the counterclaim. After the clerk entered default, the homeowner asked the clerk to enter a default judgment.
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B is incorrect. A plaintiff has 21 days to respond to a counterclaim. Fed. R. Civ. P. 12(a)(1)(B). Here, four weeks have passed, therefore, the builder's time to respond has expired.
C is incorrect. A clerk may enter a default judgment only when the amount sought is a sum certain and the defaulting party has failed to appear. Fed. R. Civ. P. 55(b)(1). The builder's failure to defend against the counterclaim is the basis for the entry of default, not the basis for the entry of a default judgment.
D is incorrect. A clerk may enter a default judgment only when the amount sought is a sum certain and the defaulting party has failed to appear. Fed. R. Civ. P. 55(b)(1). Here, the clerk is precluded from entering a default judgment regardless of whether the homeowner's damages are a sum certain.