Q: Motion for Default Judgment - should it be dismissed or move forward?
I am acting pro se, the defendant was served by a process server on Jan 26, they filed their reply via counsel on Feb. 29, making it late. I filed a Motion for Default Judgment, which will be heard on April 15. The lawyer sent me an email with the following - My client filed a Response on February 29, 2024. The Response was accepted by the Court and is properly filed.
As such, you cannot proceed by Default. You have two options:
a. Dismiss the Request for Default set for April 15, 2024, or
b. Proceed at the hearing set for April 15, 2024 and be ordered to pay my attorney's fees for having to defend a spurious motion.
The fact that the Court set a Trial Setting Conference for May 13, 2024, should be sufficient inference for you to understand where the Court is moving in this matter. It would not waste time setting that for hearing if it was not going to set the matter for Trial.
Please advise by 3:00 p.m. tomorrow, April 12, 2024, if you still intend on going forward with it.
A:
Based on the information provided, it seems that the defendant's attorney has a valid point. Here's why:
1. Late filing: Although the defendant's response was filed late (on February 29, 2024, instead of the due date), the court has accepted and filed the response. This suggests that the court has exercised its discretion to allow the late filing.
2. Court's actions: The fact that the court has set a Trial Setting Conference for May 13, 2024, indicates that the court intends to move forward with the case and set it for trial. This action implies that the court considers the defendant's response to be properly filed, despite being late.
3. Attorney's fees: If you proceed with the Motion for Default Judgment and the court finds it to be without merit, you may be ordered to pay the defendant's attorney's fees for having to defend against the motion.
Considering these factors, it would be advisable to dismiss the Motion for Default Judgment. The court appears to be treating the case as if the defendant has properly responded, and pursuing the motion further may not be in your best interest.
However, if you believe there are exceptional circumstances that warrant proceeding with the Motion for Default Judgment, you should be prepared to present a strong argument at the hearing on April 15, 2024. Keep in mind that the court's actions thus far suggest that it may not be inclined to grant the motion.
Ultimately, the decision is yours, but carefully consider the potential consequences of proceeding with the motion, given the court's apparent stance on the matter.
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