Academic journal article The University of Memphis Law Review

Asserting Failure to State a Claim after Default Judgment under Both the Federal and Tennessee Rules of Civil Procedure

Academic journal article The University of Memphis Law Review

Asserting Failure to State a Claim after Default Judgment under Both the Federal and Tennessee Rules of Civil Procedure

Article excerpt

I. INTRODUCTION

Both the Federal Rules of Civil Procedure and the Tennessee Rules of Civil Procedure provide a method by which a trial court can enter a default judgment against a party.1 While there are some differences between the federal and Tennessee procedures, both allow a party to obtain a default judgment against an opponent who fails to plead in response to a claim.2 In addition, both the federal and Tennessee rules recognize the defense of failure to state a claim upon which relief may be granted.3 Under the rules, a party may assert this defense as late as the trial on the merits, at which point the defense is waived.4 It is undisputed that under modem rules a defendant who has appeared in an action may not raise the defense of failure to state a claim for the first time on appeal.5

For the most part, these two rules work independently of each other. They may come into tension, however, when a party in default seeks to raise the defense that the complaint fails to state a claim. Suppose that a defendant, D, failed to file a responsive pleading or otherwise defend and was, therefore, in default. In some cases, the court may hold a hearing to determine the amount of damages to which a plaintiff is entitled.6 First, if D appears at this hearing, may he raise his defense of failure to state a claim? Second, whether or not a court holds a hearing to determine damages, may D raise the defense of failure to state a claim as a basis for relief from judgment on a Federal Rule 59 or 60 motion after a default judgment has been entered against him?7 Finally, may D raise his failure to state a claim defense for the first time on appeal from a default judgment?

The real tension here is between allowing a defaulting party to raise failure to state a claim for the first time on appeal, while denying that same opportunity to a party that files an answer and follows the rules of civil procedure.8 Should courts place a defaulting party in a better position than a party that follows the rules of civil procedure?

This Note first explains the origins of the default judgment and whether the Federal Rules of Civil Procedure changed the preceding law with respect to permissible defenses for a defendant in default. The purpose of this explanation is to help the reader understand how the courts have inconsistently applied the timetable for when a defendant waives the right to challenge the legal sufficiency of the plaintiff's claim. Second, this Note explains the origin of the defense of failure to state a claim and examines whether the drafters of the Federal Rules of Civil Procedure changed the rules on waiver of that defense. Third, this Note looks at whether federal law and Tennessee law differ on these two points. Finally, this Note considers the question of whether the courts' current application of the rules of civil procedure is correct regarding the situation when a defaulting defendant waives the right to raise the defense of failure to state a claim.

II, DEFAULT JUDGMENT

A. The English Decree Pro Confesso

The main predecessor to the present day default judgment is the equity courts' decree pro confesso.9 The term decree pro confesso originated in the ancient practice of the civil law, which dates back to the rule of Justinian and to the Canonists.10

The ancient civil law permitted a court to issue a decree pro confesso against a party that had appeared before the court but failed to file an answer after a demurrer was overruled.11 The civil law, however, would not permit a court to issue a decree pro confesso against a person against whom the court had issued process but who had not been brought before the court.12

Likewise, the courts of England did not always accept the idea of taking a bill as confessed against a defendant when the defendant had not appeared before the court.13 Initially, the English courts followed the rule that "no bill could be taken pro confesso unless an appearance had been entered. …

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