Poll v Paul [1994] FMSC 37; 6 FSM Intrm. 324 (Pon. 1994) (2 February 1994)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Poll v. Paul, [1994] FMSC 37; 6 FSM Intrm. 324 (Pohnpei 1994)

[1994] FMSC 37; [6 FSM Intrm. 324]

SIMON J. POLL, Chief, Division of Labor,
Department of Resources & Development,
Federated States of Micronesia,
Plaintiff,

vs.

DAKIO PAUL,
Defendant.

CIVIL ACTION NO. 1992-091

ORDER

Richard H. Benson
Associate Justice

Decided: February 2, 1994

APPEARANCES:

For the Plaintiff: Daniel Hall, Esq.
Office of the FSM Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Shirley Paiz, Esq.
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

[6 FSM Intrm. 325]

HEADNOTE

Judgments - Default
Entry of a default judgment is a two step process. There must first be an entry of default before a default judgment can be entered. A default judgment can then be entered, by the clerk if it is for a sum certain; otherwise it must be entered by the court. Poll v. Paul, [1994] FMSC 37; 6 FSM Intrm. 324, 325 (Pon. 1994).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

On September 9, 1993, defendant, represented by counsel Shirley Paiz, moved that, inter alia, the judgment by default be set aside in this matter. No opposition has been filed. Failure to timely oppose a motion is deemed a consent to the granting of the motion. FSM Civ. R. 6(d).

The Court, on its own review of the file, finds the so-called default judgment deficient. Obtaining a default judgment is a two-step process. First, when requested to, and shown by affidavit or otherwise that a party has failed to plead or otherwise defend, the clerk must enter a default pursuant to FSM Civil Rule 55(a). Once the clerk has entered a default, only then can a judgment by default be entered, upon request or application, by either the clerk pursuant to FSM Civil Rule 55(b)(1), or by the court pursuant to FSM Civil Rule 55(b)(2).

The plaintiff in this matter has not followed this two-step process. He requested, ostensibly pursuant to FSM Civil Rule 55(b)(1), that the clerk "enter default against the defendant in the amount of $3176.00." The clerk signed such a "Clerk's Entry of Default" on September 10, 1992. Evidently, plaintiff believed that this is all that was necessary to obtain a default judgment because on November 11, 1992, the plaintiff filed a motion for an order in aid of the default judgment it had ostensibly obtained on September 10, 1992.

The plaintiff has misunderstood the procedure. If the paper entered by the clerk on September 10, 1992 was intended to be a default judgment it is insufficient because there must first be an entry of default before a default judgment can be entered. If it was intended only to be an entry of default it is defective because an entry of default is just that and would never include a judgment sum. For these reasons the default judgment, if in fact it really can be considered to be one, is hereby vacated and the request for clerk's entry of default and supporting affidavit filed September 9, 1992, and the "Clerk's Entry of Default" of September 10, 1992 are hereby stricken from the record.

Furthermore, in order for the clerk to enter a default judgment it must be "for a sum certain or for a sum, which by computation can be made certain." FSM Civ. R. 55(b)(1). All other default judgments must be entered by the Court. FSM Civ. R. 55(b)(2). It does not appear from the record that the amounts prayed for are for a sum certain.

The defendant shall have 10 days from entry of this order within which he may answer or otherwise defend.

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