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  1. #1

    Default Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    My question involves court procedures for the state of: Federal

    Any federal law or rule states: Default cut off defendant's right to file motions to dismiss a case? Or this is obviously, as defendant has 21 days to response after received the summon. After 21 days no response, defendant defaults. It will no longer has a right to file a motion to dismiss the case, is this correct?

  2. #2
    Join Date
    Mar 2013
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    17,060

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    In a way that's correct but it's not the whole story.

    If the defendant fails to respond to the summons, the default isn't automatic, the plaintiff has to file a motion asking for a default judgment. The motion has to be served on the defendant so the defendant has the opportunity to file a response to the motion giving reasons why it shouldn't be granted. If the defendant fails to respond to the motion and default judgment is issued the defendant still has an opportunity to ask that the judgment be set aside if there are sufficient grounds per Rule 60:

    https://www.law.cornell.edu/rules/frcp/rule_60

  3. #3
    Join Date
    Oct 2014
    Posts
    7,348

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    Quote Quoting worldfg
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    My question involves court procedures for the state of: Federal

    Any federal law or rule states: Default cut off defendant's right to file motions to dismiss a case?
    No rule says that. After the time for the defendant to file a response to the complaint the court may enter a default judgment in favor of the plaintiff as provided in FRCP 55. If the default judgment is entered before the defendant replies then the defendant must first file a motion to vacate the judgment. If that succeeds then the defendant may file his/her motion or answer to the complaint.

    But if the defendant files his/her answer or motion before the default is entered the court may still consider the defendant's response and in most cases it will. Federal courts prefer to resolve cases on the merits where possible, not by issuing default judgments.

  4. #4
    Join Date
    Jun 2006
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    Massachusetts
    Posts
    24,046

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    Post history is relevant here

  5. #5

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    Thanks for your comments and explanation. The timeline is like this:

    4/15 Defendant defaulted,
    5/10 Plaintiff filed motion for default judgement
    5/30 Defendant filed motion to oppose Motion for Default Judgement and filed motion to dismiss
    6/3 Plaintiff filed response to Defendant Motion
    6/4 Judge issued order to deny Plaintiff's motion for default judgment and cancelled the hearing for default judgment scheduled on 6/5
    6/11 Plaintiff filed motion to vacate the order (due to false statements from Defendant witness' declaration about the reasons for default)
    7/1 Plaintiff filed amended complaint (motion to amend was granted on 6/28)
    7/12 Defendant filed motion to dismiss again (including against amended complaint)
    7/19 Plaintiff filed motions to response
    8/15 Judge issued Memo and Recommendation to dismiss all the motions

    I believe that court should resolve the default judgment issue first before consider dismiss issue. Due to so many dispute issues, a trial is proper. However, Plaintiff's motion for hearing was denied and schedule pre-trail conferences were cancelled (scheduled twice)

  6. #6
    Join Date
    Sep 2010
    Posts
    19,147

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    The default judgment issue was resolved. The motion was denied. What motion for a hearing?

  7. #7

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    The default judgment issue was not resolved. Plaintiff has motion to vacate the judge order. The motion was not denied yet. Motion for a hearing is for all the outstanding motions (total of motions).

  8. #8
    Join Date
    Sep 2010
    Posts
    19,147

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    Huh? You said on 6/4 the judge ordered a denial. That was how the motion was dealt with.

  9. #9
    Join Date
    Jul 2018
    Posts
    1,544

    Default Re: Default Cut Off Defendant's Right to File Motions to Dismiss a Case

    Entry of default pursuant to Rule 55 of the Federal Rules of Civil Procedure cuts off a defendant's right to file a responsive pleading. However, simply being late with a responsive pleading is of no practical effect if default hasn't been entered, and the onus is on the plaintiff to seek entry of default.

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