MBE Trap: Default vs Default Judgment

You’ll need to understand the difference between a default and a default judgment, since the questions will often attempt to confuse the two. The clerk enters a default once the plaintiff has proven (by affidavit or otherwise) that the defendant has failed to timely serve an answer. 
 
A default judgment, on the other hand, is either entered by the clerk or by the court. Importantly, only the court (not the clerk) can enter a default judgment if any of the following is true:
 
~ the defendant has appeared (a broad term encompassing anything from filing a motion to otherwise acting before the court) 
 
~ the defendant is legally incompetent or a minor. 
 
~ the plaintiff’s claim is not for a sum certain (a specified set amount) or a sum that can reasonably be made certain.
 
~ the plaintiff failed to include an affidavit establishing the amount due. 
 
If any of the above is true, only the court can enter a default judgment and only if the party for whom the default judgment is sought has been served with written notice of the application at least 7 days before the hearing on the default judgment. 
 
Lastly, I’d note that a default can be set aside for good cause and a default judgment can be set aside by following the procedure under the Federal Rules for relief from a final judgment. 

Helpful Link

Not too long ago the Federal Rules of Civil Procedure were updated and these updates are now tested on the MBE.  A good percentage of the testable content deals with discovery (especially that of electronically stored information), but the Amendments span a wider area than just discovery.  A very helpful summary of the information can be found at the following link:

https://www.akingump.com/images/content/3/9/v2/39946/Amendments-to-the-Federal-Rules-of-Civil-Procedure-Effective-Dec.pdf

Collateral Estoppel

Collateral estoppel applies to prevent a person in a civil case from re-litigating an issue.  Once a court has decided an issue of fact or law necessary to its judgment, that decision will preclude re-litagation of that issue in a suit on a different cause of action involving a party to the first case.  A topic within this area that has been showing up in practice questions is that of mutuality.

Traditionally, collateral estoppel only applied where the party seeking to employ collateral estoppel and the party against whom collateral estoppel was being employed were both parties to the previous lawsuit.  If this were true it was said that there was mutuality among the parties.  This requirement has been abandoned by most courts in most circumstances.  For purposes of the MBE, you should understand 4 ways in which collateral estoppel may be used:

Defensive mutual collateral estoppel:  This is when collateral estoppel is used by the defendant from the first suit against the plaintiff from the first suit regarding issues that were previously litigated against the defendant in the first suit.

Defensive non-mutual collateral estoppel:  This is when collateral estoppel is used by a new defendant in a later suit regarding issues that were previously litigated against the plaintiff by a former defendant in a previous suit.

Offensive mutual collateral estoppel:  This is when collateral estoppel is used in a later suit by the plaintiff from the first suit against the defendant from the first suit regarding issues that had already been litigated in that first suit.

Offensive non-mutual collateral estoppel:  This is when collateral estoppel is used by a new plaintiff in a later suit against the defendant from a previous suit regarding issues that were previously litigated against that defendant in the previous suit.