Q: Defendant’s Late Filing of Answer to Complaint in California
Defendant did not respond to my Complaint within 21 days. As my Default Application was still pending, the court accepted Defendant’s Answer 60 days after the time to respond. Defendant did request an extension, however, it was filed after the 21-day time to respond. Is this appropriate procedure?
A: In State Court There is a difference between a Default and a Default Judgment. First you file a request for entry of default. If there is no answer on file, the Clerk enters a default. After you have this entered you submit a packet for entry of default judgment with your evidence proving up the liability and damages. Things are a little different in Federal Court. You do not specify. If you are in State court (CA) you should have received your default after submitting the correct form. after the 21 days expire. The clerk does not do this automatically. You have to request anything and everything. You should contact a civil practitioner or a Federal civil litigator to discuss your particulars.
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A: The Courts have a great deal of discretion in this area. Usually a Judge will want a showing of excusable neglect, but two principles are at the top of the list of priorities.
1. Everyone should have his day in court.
2. Issues should be tried on the merits, not on the basis of who is fastest to get to the courthouse.
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