One factor to learn about litigation is that timing is every part. Many consumers that come to us are unaware that the method of litigating is ruled by a sequence of statutorily-defined deadlines and schedules. Failing to abide by these deadlines can have large results on a litigant’s place in a lawsuit. One of many worst positions somebody can discover themselves in is “in default,” which finally triggers a cut-off of a defendant’s rights to defend itself till a default judgment is entered.
Part 0.5: Being “In Default”
A defendant is technically “in default” in the event that they fail to file a solution or every other permitted response to a grievance inside the time allowed by legislation (sometimes, 30 days inside being personally served). Being in default doesn’t actually have any authorized consequence in and of itself. The court docket can’t refuse to simply accept a response even when it’s just a few days late – the defendant can seem till the clerk has entered the default (which is step 1 outlined beneath).
As a aspect be aware, a response filed after the deadline will be challenged by a movement to strike. However these are typically not granted as a result of, by not requesting entry of default, the legislation typically views this as a scenario through which the plaintiff has allowed the defendant additional time to reply.
Part 1: The Entry of Default
As soon as a defendant is in default, the plaintiff should request the court docket clerk to make a proper entry of default. In California, the plaintiff must make this request inside ten days of the missed deadline. Importantly, entry of default immediately cuts off a defendant’s proper to look within the motion.
The defendant is now what we name “out of court docket.” That defendant now not has any proper to take part within the case till (a) its default is “put aside” and it could actually then reply, or (b) a default judgment is entered. Within the latter case, the defendant can not even take part within the prove-up listening to to problem the default judgment. It’s because by defaulting, the legislation deems the defendant to have admitted the fabric allegations of the grievance. It has to attend for the default judgment to be entered, after which enchantment. That is the worst place to be in.
Part 2: The Default Judgment
After the default is entered, the plaintiff then might apply for a default judgment. This must be performed inside 45 days after entry of default. In California, this breaks down into two kinds of default judgments:
- Clerk judgment: in additional easy instances pursuing a set amount of cash, the clerk can enter a default judgment with none judicial listening to.
- Courtroom judgment: in different instances, the place the plaintiff might must “show up” the default, a court docket listening to is critical.
If the plaintiff is profitable in acquiring a default judgment, that’s it – the defendant now has a judgment entered in opposition to it with out with the ability to do a single factor about it. The defendant now faces the pricey choices of (a) interesting, or (b) making an attempt to achieve a settlement with a celebration that already has a full judgment in opposition to it (not an incredible negotiation place).
The above is a primer on what the default judgment course of is. If you end up or your organization served with a lawsuit, please act on it shortly – interact with skilled litigators who can strategize choices with you and make sure you don’t end up in arguably the worst place attainable in litigation.