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Defendant's answers are a day late - now what??

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  • Defendant's answers are a day late - now what??

    Defendant's answers to federal complaint were a day late. And prior to
    them filing the answer, I had filed a motion for default judgment.


    What happens now?? Should I just wait to hear about the motion??


    STEve


  • #2
    Defendant's answers are a day late - now what??

    On Wed, 17 Aug 2005, "STEve" <[email protected]> wrote:
    Defendant's answers to federal complaint were a day late. And prior to them filing the answer, I had filed a motion for default judgment. What happens now?? Should I just wait to hear about the motion??
    Absent aggravating circumstances - e.g., a previously proven pattern
    of defaults followed by an order directing the service/filing of an
    answer before a day certain which defendant then violated - it is less
    than less than likely that any federal judge anywhere will grant a
    judgment on default against a defendant who answered the complaint
    only one day late.

    Comment


    • #3
      Defendant's answers are a day late - now what??

      STEve wrote:
      Defendant's answers to federal complaint were a day late. And prior to them filing the answer, I had filed a motion for default judgment.
      So, their answer wasn't even due yet, and you had already filed a
      motion for default?

      They weren't in default yet, until their answer was late.

      Even if you had waited until they were a day late, most judges would
      think you were nitpicking to file such a motion when the defendant has
      indeed indicated they do intend to actively participate in the case.

      Your "jumping the gun" by premature filing is likely to elicit even
      less sympathy for your cause, if the judge had any in the first place.

      In civil cases, about the only deadlines that are completely
      inflexible, unless you're dealing with a super-hardass judge or a court
      with a mandatory local rule that removes all discretion from the trial
      judge, are (a) the statute of limitations (though that can be waived by
      the opposing party), and (b) the time for filing an appeal (which is
      jurisdictional, and cannot be waived).

      Most other deadlines are basically "housekeeping" in nature and some
      reasonable amount of flexibility can be expected as long as its in good
      faith and not for purposes of intentional delay. Of course, if you're
      the one working on a deadline, you should make every effort to comply,
      since there's no guarantee the judge will be lenient when it's your
      turn.
      What happens now?? Should I just wait to hear about the motion??
      Probably, unless you want to emphasize for the judge that your original
      motion for default was a few days premature.

      --
      This posting is for discussion purposes, not professional advice.
      Anything you post on this Newsgroup is public information.
      I am not your lawyer, and you are not my client in any specific legal
      matter.
      For confidential professional advice, consult your own lawyer in a
      private communication.
      Mike Jacobs
      LAW OFFICE OF W. MICHAEL JACOBS
      10440 Little Patuxent Pkwy #300
      Columbia, MD 21044
      (tel) 410-740-5685 (fax) 410-740-4300

      Comment


      • #4
        Defendant's answers are a day late - now what??

        In article <[email protected]>,
        Mike Jacobs <[email protected]> wrote:
        STEve wrote:
        Defendant's answers to federal complaint were a day late. And prior to them filing the answer, I had filed a motion for default judgment.
        So, their answer wasn't even due yet, and you had already filed amotion for default?
        Why do you conjecture that? My guess was (e.g.) their answer was due
        Tuesday, Wednesday morning they hadn't answered so he filed for a
        default judgment, Wednesday afternoon they filed.
        They weren't in default yet, until their answer was late.
        Which it was on Wednesday morning.
        Even if you had waited until they were a day late, most judges wouldthink you were nitpicking to file such a motion when the defendant hasindeed indicated they do intend to actively participate in the case.
        They had? How?
        What happens now?? Should I just wait to hear about the motion??Probably, unless you want to emphasize for the judge that your originalmotion for default was a few days premature.
        A few days?

        Is there a customary amount of time to wait?

        Seth

        Comment


        • #5
          Defendant's answers are a day late - now what??

          Seth Breidbart wrote:
          In article <[email protected]>, Mike Jacobs <[email protected]> wrote:
          STEve wrote:
          Defendant's answers to federal complaint were a day late. And prior to them filing the answer, I had filed a motion for default judgment.
          So, their answer wasn't even due yet, and you had already filed amotion for default?
          Why do you conjecture that?
          It's a question, not a conclusion or an assumption. Are you saying
          that isn't one of the possibilities that also occurred to you?
          My guess was (e.g.) their answer was due Tuesday, Wednesday morning they hadn't answered so he filed for a default judgment, Wednesday afternoon they filed.
          Yes, that's a possibility, and one I recognized later on in my reply to
          OP in the part of my post you quote a few lines below. But I think a
          more likely reading of OP's meaning is that the 2 events didn't occur
          on the same day, or he would have specifically commented about that
          noteworthy coincidence. Also, syntactically, the use of the past
          perfect "_had_ filed" indicates, at least to me, that the earlier
          action had been completed well before the second action began to occur.
          Not that I necessarily believe OP intentionally relied on such
          nuances of the English grammar to get his meaning across to us in an
          oblique way.
          They weren't in default yet, until their answer was late. Which it was on Wednesday morning.
          OK, in your example.
          Even if you had waited until they were a day late, most judges wouldthink you were nitpicking to file such a motion when the defendant hasindeed indicated they do intend to actively participate in the case. They had? How?
          A party indicates an intent to actively participate in the case by
          filing the required written answer to the complaint. That is the act
          that places them indisputably within the jurisdiction of the court
          (since they could, instead, have filed a motion challenging personal
          jurisdiction or the validity of service or of process) and is the only
          thing they are required to do within the time set by the rules after
          receiving the complaint.
          What happens now?? Should I just wait to hear about the motion??Probably, unless you want to emphasize for the judge that your originalmotion for default was a few days premature. A few days?
          Well, if it wasn't, OP would know that from personal knowledge,
          wouldn't he? So he would ignore that part of the reply as not applying
          to him.
          Is there a customary amount of time to wait?
          Not really, and there's nothing wrong with OP filing his motion the day
          after the answer was due, if that is in fact what he did; all I'm
          saying is it would be unrealistic for him to expect any judge to act
          favorably on it and enter a default, where the defendant has in fact
          filed an answer that was only slightly late. OP had no way of knowing
          that defendant would be filing an answer; but once it's done, OP should
          probably just treat the case as being at issue and move on to
          discovery.

          Although some rules do impose inflexible, drop-dead deadlines, the time
          for filing an answer isn't one of them. And there's nothing magic
          about the "race to the courthouse", i.e. who files first, the plaintiff
          claiming default, or the defendant filing a late answer, is less
          important than actually getting everyone involved to submit to the
          jurisdiction of the court and move on to the next step. A judge will
          not hesitate to issue a default if he senses that the defendant's delay
          is intended to keep that from happening, as it sometimes is; and a
          default does force the case to move on to the next step, bypassing the
          dilatory defendant by skipping proof of liability but still requiring
          plaintiff to submit proof of damages. If plaintiff is not prejudiced
          by the delay -- and a delay of one day (in a case that is likely to
          take from several months to a year or more to come to trial) is hardly
          prejudicial -- the judge is not going to impose a draconian punishment
          unless the law leaves him no choice (as in the time for filing an
          appeal).

          --
          This posting is for discussion purposes, not professional advice.
          Anything you post on this Newsgroup is public information.
          I am not your lawyer, and you are not my client in any specific legal
          matter.
          For confidential professional advice, consult your own lawyer in a
          private communication.
          Mike Jacobs
          LAW OFFICE OF W. MICHAEL JACOBS
          10440 Little Patuxent Pkwy #300
          Columbia, MD 21044
          (tel) 410-740-5685 (fax) 410-740-4300

          Comment

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