Motion for Default Judgment

[annemichellesdad]

State of GA. More than 5 weeks ago, I filed a motion for the vacating/termination of a non-violent protective order obtained by my ex on the grounds that 1) the charges she brought against me which were the basis of the order had been dismissed in my favor, and 2) she had, herself, vititiated and undermined the order by consistently contacting me, approaching me, and soliciting me to do the same.

As of today, no response has been filed to my motion. It is now 7 days overdue. This leads me to believe that she does not intend to file a response. In fact, she had mentioned at one point during the summer that she may file the motion herself. However, as she lives a hundred miles away, it would be an inconvenience for her. So, the distance, along with her apparant indifference to the order at this point may be what has caused her not to respond.

1) Would it be prudent at this time to submit a Motion for Default Judgment? (I understand that SOME jurisdictions have a request form to submit, so I'll need to check on which is necessary in this case should this be the route to go.)

2) I'm not asking you to be a mind reader, but is there a prevailing attitude or pattern among judges to grant default judgments when the other party doesn't respond or show up to court?

3) Any other insights I should be aware of in a case such as this?

Thank you very much. Your help is always appreciated even when it is not the answer we want to hear!

[socrateaser]

>1) Would it be prudent at this time to submit a Motion for
>Default Judgment? (I understand that SOME jurisdictions have a
>request form to submit, so I'll need to check on which is
>necessary in this case should this be the route to go.)

There is no default from a failure to appear on a motion to set aside. Depending on the jurisdiction, you must either (1) appear at the hearing and prove that the other party was personally served in compliance with law, and then argue your case, or (2) if you're in a jurisdiction where the court determines whether to hold oral argument on a matter, then if the court doesn't rule within about 5 days after the time to respond has passed, you can send a letter to the court and copy the other party, and ask that the judge rule based on the pleadings of the parties.

And, you could still lose even if the other party doesn't appear.

The best way to have this set aside is to get the other party to sign a stip agreeing to vacate the order.

>
>2) I'm not asking you to be a mind reader, but is there a
>prevailing attitude or pattern among judges to grant default
>judgments when the other party doesn't respond or show up to
>court?

A default judgment only occurs in a case where an initial petition or complaint is file to start the case, the complaint/petition and summons are served on the other party, and that party never answers/responds.

In your case, this is post-judgment relief you are requesting, which must be on motion for an order to show cause, personally served on the other party. If you didn't do all that, then you haven't done anything, because your opponent has not had her procedural due process.

Where there is a DV restraining order in place, the court will be extremely reluctant to set it aside, unless you can show that the other party had no reasonable fear of abuse at the time that the order was put in place, or that she no longer has any. This is nearly impossible to achieve without the other party's consent.

However, if the other party was personally served, and has not appeared in the case, that by itself suggests that they no longer fear you, so that could work in your favor.

[annemichellesdad]

>
>There is no default from a failure to appear on a motion to
>set aside. Depending on the jurisdiction, you must either (1)
>appear at the hearing and prove that the other party was
>personally served in compliance with law, and then argue your
>case, or (2) if you're in a jurisdiction where the court
>determines whether to hold oral argument on a matter, then if
>the court doesn't rule within about 5 days after the time to
>respond has passed, you can send a letter to the court and
>copy the other party, and ask that the judge rule based on the
>pleadings of the parties.
>


This makes sense. In fact, I found this in the locals rules after reading your response:

Rule 6.3. Hearing. Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict. However, oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled "Request for Oral Hearing," and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.

I need to MEMORIZE these local rules!


>And, you could still lose even if the other party doesn't
>appear.
>

Understandable. It's still within the court's discretion, and they're only going to treat the motion/pleading as if the facts as stated are true, but not necessarily if they have any legal merit, correct? That is, the judge isn't going to argue the defendant's case in their absence, but he still has to follow the law and render a sound judgment within his discretion.

>The best way to have this set aside is to get the other party
>to sign a stip agreeing to vacate the order.
>

My first choice, but not likely due to certain personality characteristics at work here. I have a witness who said that she intended to, but she really has no incentive to go through the trouble.


>
>A default judgment only occurs in a case where an initial
>petition or complaint is file to start the case, the
>complaint/petition and summons are served on the other party,
>and that party never answers/responds.
>
>In your case, this is post-judgment relief you are requesting,
>which must be on motion for an order to show cause, personally
>served on the other party. If you didn't do all that, then you
>haven't done anything, because your opponent has not had her
>procedural due process.
>

QUESTION 2:
Are you suggesting that the motion to vacate the judgment is worthless because it did not include a motion for an order to show cause, and that it must be served personally, and not merely by mail process? Or, can the motion to appear and show cause be served following the already-filed motion to vacate? I'm a bit confused here. If I'm reading this correctly, I must NOW file a motion to show cause on top of the the motion to vacate? (Dumb basic question: can a motion to show cause be filed separately and at any time from a pleading or motion?)


QUESTION 3:
What are the consequences of her not filing a response to my motion within the 30 time limit?

QUESTION 4:
As there was no motion to show cause included with the motion to vacate, was service by mail still most likely proper?

QUESTION 5:
Is the motion to show cause in this case the same as a motion for rule nisi? Or, is it different because it is a motion for post-judgment relief?



>Where there is a DV restraining order in place, the court will
>be extremely reluctant to set it aside, unless you can show
>that the other party had no reasonable fear of abuse at the
>time that the order was put in place, or that she no longer
>has any.
>

The keyphrase here is "no longer has any". She has consistently called, emailed, approached me, initiated socialization, etc. Thankfully, I kept the voice mails, text messages, and emails, as well as a diary of the conduct in which she displayed absolutely no fear. Her behavior has been observed publically.


 
>However, if the other party was personally served, and has not
>appeared in the case, that by itself suggests that they no
>longer fear you, so that could work in your favor.

She has only been served with the motion to vacate, and has not filed a response to it.

[socrateaser]

>QUESTION 1:
>This makes sense, but I have a dumb question: how do I find
>out what the court's procedure is on this matter?

Well, you could go to law school. ;-) Seriously, though, the procedure is usually a combination of state/local court rule and state rules of civil procedure. There is probably a practice guide for your jurisdiction at the county law library. Check with the state bar association or you may be able to purchase a guide from westlaw.com, assuming one exists.

>Understandable. It's still within the court's discretion, and
>they're only going to treat the motion/pleading as if the
>facts as stated are true, but not necessarily if they have any
>legal merit, correct?

Technically correct, but many trial court judges fly by the seat of their pants, so who knows what any particular judge's analytical process is.

>
>QUESTION 2:
>Are you suggesting that the motion to vacate the judgment is
>worthless because it did not include a motion for an order to
>show cause, and that it must be served personally, and not
>merely by mail process? Or, can the motion to appear and show
>cause be served following the already-filed motion to vacate?
>I'm a bit confused here. If I'm reading this correctly, I must
>NOW file a motion to show cause on top of the the motion to
>vacate?

A motion for post judgment relief must generally be personally served so as to provide notice "reasonably calculated under all the circumstances to permit the other party a meaningful opportunity to appear and defend." If you effected service by mail, and you have a statute that supports this process, then you're ok -- otherwise, the other party hasn't received legal notice, and she has NO duty to respond.

The first thing that a judge will look for when only one party shows for a hearing is the proof of service. If service is improper, your motion will be dismissed, and you'll have to either have it reissued, or completely refile it, depending on the jurisdiction.

>QUESTION 3:
>What are the consequences of her not filing a response to my
>motion within the 30 time limit?

None. It's just an evidentiary fact that the court can consider and that you can offer and argue.

>
>QUESTION 4:
>As there was no motion to show cause included with the motion
>to vacate, was service by mail still most likely proper?

The form of the pleading isn't as important as whether the other party was properly served notice. Generally, post-judgment relief comes on an order to show cause, because it's like a summons that begins a case -- the party is ordered to appear at the risk of having the requested order granted against them.

You could file a straight motion, as you apparently did, but unless it was personally served, and you can prove it, then unless you have a statute in your jurisdiction that permits post-judgment relief to go forward on service by mail, your motion is gonna end up being dismissed, as long as your opponent doesn't appear.

>
>QUESTION 5:
>Is the motion to show cause in this case the same as a motion
>for rule nisi? Or, is it different because it is a motion for
>post-judgment relief?

A "rule nisi" is a request for a temporary order. Some jurisdictions (e.g., GA) require a rule nisi motion in order to obtain an oral hearing -- otherwise the court will rule on the pleadings.

A motion is merely an application for a court order. A motion comes after the initial summons and complaint/petition, and does not require personal service (service by mail is sufficient) because the other party is already on notice of a legal action pending.

A motion for an order to show cause is a motion which requires personal service, because (1) the subject matter is such that failure to notify the other party may result in a permanent loss of liberty or property, or (2) the case is in a "final" state (post judgment or final order), and the other party is entitled to a new due process notice that the case is being reopened.

>She has only been served with the motion to vacate, and has
>not filed a response to it.

If she has an attorney, he/she probably told her that if she was served by mail, then she can ignore it, because you cannot prove to the court that personal service was effected as required by law -- that's probably why she hasn't responded.

I can't tell you what the appropriate procedure in your state is for this particular relief (whether you should file an OSC or a straight motion, and whether you must give personal service). You'll need to buy a practice guide, or hire a lawyer.

[annemichellesdad]

Sounds like the safest bet is to have her personally served with the same motion by process server. Since it has been five weeks since the original was filed with the court, do I need to voluntarily dismiss that motion and re-file, or  is the current motion ok to have served upon her. If so, one option might be to ALSO file a motion to show cause with the court and then have both motions served upon her simultaneously. How does this sound?

Much thanks!

[socrateaser]

>Sounds like the safest bet is to have her personally served
>with the same motion by process server. Since it has been five
>weeks since the original was filed with the court, do I need
>to voluntarily dismiss that motion and re-file, or  is the
>current motion ok to have served upon her. If so, one option
>might be to ALSO file a motion to show cause with the court
>and then have both motions served upon her simultaneously. How
>does this sound?

The first issue is: what is the proper motion for this process in your jurisdiction?

I don't know the answer to this question, and I advise you to stop guessing. Find out what's correct, so that you can move forward with confidence.

The second issue is: if you have filed the wrong pleading or if it's the right pleading, but ineffective due to improper service, can you correct it by effecting personal service, or must you file a new pleading?

I don't know the answer to this question, either. However, if you discover that you have filed the wrong pleading, then by filing and serving the correct pleading you can move forward, and the current pleading will be irrelevant to your case.