Arizona Court of Appeals Division One Holds That Failure to Comply with the Notice Requirements of Rule 55(a)(1)(i) Prevents the Entry of Default From Becoming Effective, Thereby Rendering the Resulting Default Judgment Void.

In June 2008, Plaintiff filed an amended complaint against Defendant which she had served on Defendant at her place of work the following day.  Defendant did not file an answer within the time permitted and Plaintiff filed an application for default, affidavit of default and entry of default.  The application, affidavit and entry of default were mailed to the address of Defendant’s apartment but did not include the specific apartment number because it was unknown to Plaintiff.  Defendant did not appear at the default hearing and the court entered a default judgment against her in November 2008.  Plaintiff then filed a summons and writ of garnishment on Defendant’s employer, and the employer answered.  Some months later, Defendant filed a motion to set aside the default judgment pursuant to Arizona Rules of Civil Procedure 55(a)(1)(i) and 60(c)(1).  Defendant argued that Plaintiff failed to comply with Rule 55(a)(1)(i) by failing to list an apartment number on the notice of default, and that she did not receive it.  Alternatively, she argued that the default judgment should be set aside under Rule 60(c)(1) for excusable neglect.  The trial court granted Defendant’s motion to set aside the default judgment on the grounds that Plaintiff failed to comply with Rule 55(a)(1)(i) by simply mailing the notice of default to a large apartment complex without an apartment number.  The court indicated that Plaintiff should have mailed the notice of default to Defendant’s place of work (where she had been served with process).  The court rejected Defendant’s Rule 60(c)(1) claim. Plaintiff timely appealed.

The Arizona Appeals Court affirmed the order of the trial court setting aside the entry of default and default judgment and remanded for further proceedings.  Rule 55(a)(1)(i) provides that “[w]hen the whereabouts of the party claimed to be in default are known by the party requesting the entry of default, a copy of the application for entry of default shall be mailed to the party claimed to be in default.”  The Appeals Court reasoned that because this rule refers to “whereabouts” rather than a residential or home address, it contemplates the mailing of a notice to some other place where the party can be found.  Thus, Plaintiff could have mailed the notice of default to Defendant’s place of employment, and mailing the notice to Defendant’s apartment complex without an apartment number was tantamount to sending no notice at all and therefore did not meet the requirements of Rule 55(a)(1)(i). 

The Court went on to conclude that without the notice required by Rule 55(a)(1)(i), the ten-day grace period in Rule 55(a)(2) does not begin to run, and the entry of default is therefore ineffective and the default judgment is void.  Because Plaintiff failed to comply with Rule 55(a)(1)(i), the entry of default in this case never became effective and the resulting default judgment was void, requiring the trial court was required to set aside the default judgment under Rule 60(c)(4).

Judge Weisberg authored the opinion, Judges Brown and Thompson concurred.