More Thoughts on Defaults
When people think about litigation, they often think about plaintiff and defendants in court, responding to each other’s arguments. But often defendants either deliberately ignore complaints, or hide so they never find out about them, or just do not know what to do when they receive notice of a lawsuit. I wrote a 2020 blog post about what happens in that event, and the text of that post is below. But here are some additional thoughts on the subject that I have developed since the original post:
Defendants that are hard to serve may also be hard to enforce a judgment against. And so even if a plaintiff convinces a court to get a default judgment, the judgment may only have value if the plaintiff can find the defendant’s assets. In some situations, the plaintiff may be able to identify the assets. But in others, the defendant may struggle to find assets to collect.
Judges do not just rubber stamp requests for default judgments. They often scrutinize a plaintiff’s request for one to make sure they served papers correctly and that they submitted adequate evidence to support their case.
A major issue in a lot of default judgment matters is whether the plaintiff adequately served the papers on the defendant. This may be hard to do, but before moving for a default, the plaintiff should spend time making sure that her evidence of service is strong. There may even be a hearing where the defendant may argue that the person who claimed to make service wasn’t telling the truth or did not adequately investigate where the defendant lived or whether the defendant had a valid excuse, like military service.
Even if a judge accepts a default judgment on liability, the judge may still require additional evidence - or even hold an inquest hearing - on the amount of damages the plaintiff suffered.
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What Happens If Someone Just Ignores a Lawsuit
Some people do not react well to discovering that they are the defendant in a lawsuit. They may believe that the allegations against them are so ridiculous that they do not need to respond to them. Or they may believe that they do not have any obligation to participate in a lawsuit in a court far from where they live. Or they may believe that, if they ignore the lawsuit, it may just go away.
Generally speaking, people should take lawsuits seriously and respond to them to avoid a default judgment.
Why should you continue reading this post about default judgments?
You have recently been sued and are considering ignoring the lawsuit.
You sued someone and the defendant is ignoring the lawsuit.
You are writing your own post about default judgments and are looking for material to copy.
Plaintiffs Can Move for Default Judgments Against Defendants Who Do Not Respond
Once a defendant receives a complaint, she usually has a deadline to respond to it. In commercial litigation in federal court, defendants usually have 21 days to respond to a complaint. (This deadline is different in various state courts). In my experience, a defendant's lawyer may informally reach out to the plaintiff's lawyer and ask for more time to respond and it is normal for the plaintiff's lawyer to consent to an extension.
If a defendant does not respond before the deadline, then the plaintiff can ask the court to award her a default judgment. A default judgment is (in most ways) the equivalent of a judgment that a plaintiff would have gotten if she had proved her claims at a trial. To get the judgment, the plaintiff usually needs to submit some evidence of her claims and an explanation for why that evidence is sufficient to entitle it to the judgment. Courts often examine this evidence carefully and sometimes decline to grant default judgments, even when there is no opposition.
If You Miss the Deadline to Respond to a Complaint, You May Have an Opportunity to Avoid Judgment and Enforcement
When a plaintiff makes a request for a default judgment, she is often required to notify the defendant of her request. This gives the defendant another opportunity to respond to the complaint. Even though it is technically too late to do so, a court may be persuaded to forgive the lateness if the defendant has a good explanation for the delay.
After a plaintiff gets a default judgment, a defendant can make a motion to "vacate" the judgment. Again, to succeed on this motion, the defendant will likely need to explain why she did not timely respond to the complaint.
And if the plaintiff gets a judgment in a jurisdiction where the defendant does not have assets, and then tries to enforce the judgment in another jurisdiction where the defendant does have assets, the defendant may have another chance to avoid the judgment. The defendant may ask the local court not to enforce a default judgment from another court through a procedure called a "collateral attack." It is easier to collaterally attack a default judgment than one entered against a defendant that appeared in a litigation, but the defendant will still need to explain why the judgment against it in the original lawsuit should not have been granted.
Defendants Have Limited Grounds For Avoiding a Default Judgment
When a defendant gets to explain why it missed a deadline to respond to a complaint, she is unlikely to succeed in avoiding judgment if her excuse is that she just did not want to respond. Instead, she is more likely to succeed if she claims one of the following:
The defendant never actually received the complaint or the complaint was never properly served upon her.
The defendant was never subject to the personal jurisdiction of the court.
There is no law that authorizes the court to hear the kind of case the plaintiff brought against the defendant.
The defendant was serving in the military away from her home at the time the complaint was served.
There was some emergency that prevented the defendant from timely responding.