Federal clerks must enter a default today, and a proposal would let them pass it to the judge instead

A proposed amendment would replace “must” with “may either” in Federal Rule of Civil Procedure 55(a) and Rule 55(b)(1). The clerk could enter the default or default judgment, or refer the matter to the court for directions. Comments are due February 15, 2027.

What Rule 55 says now

Rule 55(a) says the clerk must enter a party’s default when the party against whom relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.

Rule 55(b)(1) says the clerk must enter judgment when the claim is for a sum certain, or for an amount that can be made certain by computation. The defendant must have been defaulted for not appearing and must be neither a minor nor an incompetent person.

Rule 55(b)(2) covers all other default judgments. Those matters go to the court.

The proposed amendment concerns the federal rule only. State courts have their own rules governing defaults.

The amendment would give clerks a choice

Under the proposal, Rule 55(a) would say that the clerk “may either” enter the default or refer the matter to the court for directions. The same change would apply to Rule 55(b)(1), allowing the clerk to enter a sum certain default judgment or refer the matter to the court.

Rule 55(b)(2) would change “the party” to “a party” for clarity. The published materials describe no other changes to Rule 55.

The proposed language would make the clerk’s role permissive rather than mandatory. In a district where clerks routinely enter defaults, a party seeking default could instead see the request referred to the judge for directions. A sum certain default judgment that currently goes to the clerk under Rule 55(b)(1) on an affidavit could likewise be referred.

The proposal would not require clerks to refer matters to judges. Practice could still vary by district and local rules.

While preparing this piece, we found that the Judiciary’s proposed amendments page lists the February 15, 2027 comment deadline and the December 8, 2026 deadline for requests to testify, but does not print the Rule 55 wording. The text appears in a separate preliminary draft linked from that page, so we read the amendment language in the committee’s published materials rather than on the page itself.

The committee says current practice has changed

The rule’s command that the clerk enter defaults and sum certain default judgments has been unchanged since 1938, according to the rules committee’s published rationale. The committee said that command no longer matches practice in most district courts.

The Advisory Committee asked the Federal Judicial Center to study actual practice. Emery Lee and Jason Cantone conducted the study.

The study found that clerks often consult the court before entering a default. Clerks rarely enter a default judgment without consulting the assigned judge. The study also found that entry of a default judgment, whether or not the amount is a sum certain, is widely treated as the judge’s responsibility.

The amendment is intended to match the rule to those practices. It also would assist clerks who have difficulty deciding whether the requirements for a default have been met.

The idea began with a judge’s comment that the process in Rule 55 is followed almost nowhere. The comment was reported in the committee’s October 2025 meeting minutes.

Nothing changes unless the amendment is adopted

The amendment was published for public comment on August 14, 2026, by the Judicial Conference’s Advisory Committees on Appellate, Bankruptcy, Civil, Criminal and Evidence Rules. It is a proposal only. Nothing changes in any federal court now.

Comments remain open through February 15, 2027. Requests to testify at a hearing must be submitted by December 8, 2026. If the amendment proceeds through the normal rulemaking steps, it would take effect no earlier than December 1, 2028.

The proposal does not describe changes to Rule 55(c), which addresses setting aside a default. It also does not describe changes to the hearings covered by Rule 55(b)(2).

The same package includes proposed changes to Civil Rules 5, 5.2 and 6. Those proposals are also open for comment.

For practitioners, the proposed text would add a possible referral at the beginning of a default proceeding and for sum certain judgments. A party filing a request would not know from the amended text alone whether the clerk would enter the default or send the matter to the judge. Lawyers who want to comment must submit comments by February 15, 2027. Lawyers who want to testify must request a hearing by December 8, 2026.

Archivar is an AI operating system for a law firm that answers every call 24/7 in English and Spanish, runs intake, manages matters and remembers everything the firm does. A party who calls a firm late at night after being served with a complaint and says they never answered it is exactly the kind of caller whose service date and response deadline matter in a default, and Archivar’s intake captures those details on the call, in English or Spanish, and keeps them on the matter.