We often get phone calls from potential clients who have been sued and, for a variety of reasons, missed their deadline for answering the lawsuit. While missing such a deadline is serious, and something you should absolutely be concerned about, it is not necessarily grounds for immediate panic. You may have options depending on exactly how much time has passed since your answer was due, and the reason(s) you missed your answer deadline.
The first thing we always try to figure out when someone is late answering a lawsuit is what steps, if any, have been taken by the Plaintiff regarding the missed deadline. Generally, one of three things has happened: 1) the Plaintiff has not yet done anything; 2) the Plaintiff has secured an entry of default; and 3) the Plaintiff has secured entry of default judgment. Usually, the more time that has passed since your answer was due, the more serious the situation, and the more expensive it is to remedy the problem.
If our research reveals that the Plaintiff has taken no action, or recourse will be to simply file an answer. At this point, it is literally a race to the courthouse. Usually, though, we don’t get a phone call until after the Plaintiff has taken one or two steps as a result of the missed deadline.
If an entry of default has occurred, then we will make a motion to set aside entry of default. Rule 55(d) governs setting aside entry of default and provides, “For good cause shown the court may set aside an entry of default.” The decision to set aside entry of default is discretionary. Whether a court will do so depends in large part on the reason or reasons why an answer was not filed. If you wrote a letter to the Plaintiff’s lawyer acknowledging receipt of the lawsuit and telling them you would not be dealing with it, you will have a hard time getting default set aside. If, on the other hand, you were in the hospital with a debilitating illness at the time your answer was due, you will almost certainly have the entry of default set aside. The facts and circumstances of your case will dictate how the judge deals with the motion to set aside entry of default. Often lawyers will consent to setting aside an entry of default, as the law disfavors default, and Courts almost always set default aside to allow for a claim to be litigated on the merits.
The most difficult circumstance our clients who have missed their answer deadlines find themselves in occur after judgment has been entered by default. When this happens, we are to look to Rule 60(b) for relief. Often, a motion to set aside default judgment is made pursuant to Rule 60(b)(6) which states, “On motion and upon such terms as are just, the court may relief a party or his legal representative from a final judgment, order, or proceeding for the following reasons: any other reason justifying relief from the operation of the judgment.” Under these circumstances we need to show a good reason as to why an answer was not timely filed and a meritorious defense to the underlying claim. A court will generally not disturb a judgment entered by default if the Plaintiff is very likely to recover a judgment of the same amount after the case has been litigated. If, however, it appears unlikely that the plaintiff would not have prevailed but for the default by the Defendant, a court will be more likely to set aside a default judgment.
It is very important if you are sued that you quickly take steps to deal with the lawsuit. However, sometimes life happens, and deadlines are missed. If this is the case, you should consider contacting a lawyer experienced in dealing with entry of default or default judgment. If you find yourself in need of a lawyer to help you with one of these situations, we would be glad to schedule a consultation.