Default Judgment — Can a Letter to the Court Constitute an Answer, Defense to Complaint or Appearance? — Circuit Split — Examples of Inadequate Letters Even Where Informality Permitted

United States v. Abdul Rahim, 2014 U.S. Dist. LEXIS 117621 (E.D. Va. July 25, 2014):

On June 13, 2013, Plaintiff filed a Complaint against Defendant alleging willful concealment or misrepresentation of material fact to procure naturalization, and requesting revocation and cancellation of Defendant's naturalization. (Dkt. No. 1.) Defendant was served by publication on January 2, 2014, and was ordered to appear in court on or before March 7, 2014, to protect her interests. (Dkt. No. 8, 10.) Defendant acknowledged receipt of the order in a letter to this Court dated February 17, 2014. (Dkt. No. 12 Ex. 3 at 40.)

Although Defendant wrote to this Court, her letter does not constitute an answer or defense to the Complaint under Rule 55(a) or an appearance under Rule 55(b)(2) of the Federal Rules of Civil Procedure. Default judgment is appropriate where the defendant fails to file an answer or responsive pleading to the Complaint or a response to a motion for default judgment. E.g. Whorton v. Trawler Kelsey Nicole, Inc., No. 2:09cv411, 2009 WL 4927155, at *3 (E.D. Va. Dec. 19, 2009). In order for the court to enter default judgment, [*6]  a defendant who has appeared in court must be notified seven days before a default judgment hearing. Fed. R. Civ. P. 55(b)(2). Circuits are split on whether appearance in court may also be informal, such as correspondence, but courts agree that the defaulting party must show a clear intention to defend the action. See New York v. Green, 420 F.3d 99, 105-06 (2d Cir. 1998). The Fourth Circuit has not ruled on this issue, but the Eastern District of Virginia has followed the formal standard adopted by the Seventh Circuit. See Town & Country Kids, Inc. v. Protected Venture Investment Trust #1, Inc., 178 F.R.D. 453 (E.D. Va. 1998) (citing Zuelzke Tool and Eng'g Co. v. Anderson Die Castings, Inc., 925 F.2d 226, 230 (7th Cir. 1991)) (holding defendant's letter to plaintiff's counsel was not appearance because 'appearance' is coming into court as a party to a suit, either in person or by an attorney); see also Philos Technologies, Inc. v. Philos & D, Inc., 645 F.3d 851, 859 (7th Cir. 2011) (holding defendant's informal pro se letter to the district court explaining absence was not appearance).

Defendant's letter does not show an intention to defend the action

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