Can I File a Default Judgment Motion if the Answer is Served Late?

In general, a party should not file a motion for default judgment merely because the opposing party’s pleading was untimely served or filed. Attorneys who are new to filing a motion for default judgment may find the following helpful in determining their options.

An attorney asked this question:

If a defendant is untimely in serving or filing an Answer to our Complaint, is it appropriate to file a motion for default judgment? Would a judge grant the motion for default judgment? Also, does the Plaintiff filing a motion for default judgment have a duty to notify opposing counsel that the Defendant is in default prior to filing the motion?

One Minnesota litigation attorney answered:

Here is my experience, which I believe represents the general practice in Minnesota.

I have never seen default granted if an Answer was served, even if the Answer was really late. The law strongly favors resolution on the merits.

If the answer is late, the only issue for the court is whether to award fees for the default motion. Judges typically award fees for a default motion when the motion had to be brought to get the defendant to Answer. If you file a motion for default judgment after receiving a late Answer, you will lose the motion and you probably will not recover fees. Further, the judge might be annoyed at you for bringing a motion for default after you received an untimely Answer.

Another Minnesota litigation attorney answered:

You can file a motion for default after receiving an untimely Answer, but you will probably lose and the judge may yell at you.

Rule 55.01 of the Minnesota Rules of Civil Procedure is helpful:

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend within the time allowed therefor by these rules or by statute, and that fact is made to appear by affidavit, judgment by default shall be entered against that party as follows: . . . (b) In all other cases, the party entitled to a judgment by default shall apply to the court therefor. If a party against whom judgment is sought has appeared in the action, that party shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.

Note Howard v. Frondell:

Finally, appellants contend the judgment should be vacated because they did not receive notice of Howard’s application for default and were not notified of the hearing. A party need only be served with written notice of the application for a default judgment if it has “appeared in the action.” Appellants claim that Hollender’s letter to Howard’s attorney requesting an extension constitutes an appearance. Under the rules, however, a party is deemed to have made an appearance when it “serves or files any paper in the proceeding.”

Minn.R.Civ.P. 5.01. Because appellants had not filed or served any paper at the time of the application for default, they *209 were not entitled to notice. We conclude that the trial court did not abuse its discretion in refusing to vacate the default judgment.

Note section III(F)(2) of the Professionalism Aspirations adopted by Minnesota State Bar Association and approved by the Minnesota Supreme Court: “We will not cause a default or dismissal to be entered, when we know the identity of an opposing counsel, without first making a good faith attempt to inquire about the counsel’s intention to proceed.”

In conclusion, Minnesota courts have a strong preference for deciding cases on the merits, and default judgment is only available where an opposing party has been served a pleading and failed to serve or file a responsive pleading.