You would think I wouldn’t have to discuss the absolute need to respond to any served pleadings, particularly after some of the prior examples of what can happen if you fail to respond. Of course, I wouldn’t be starting a post like this if those that were sued contacted an experienced attorney in a timely fashion and followed this advice.
Yet another example of the disastrous results that can occur simply from failing to file responsive pleadings occurred last year in the Eastern District of Virginia federal court in Alexandria, VA. In Pro-Telligent, LLC v. Amex Int’l, Inc. the Court considered a claim for breach of contract (among other causes of action) by Pro-Telligent against Amex. The operative facts are that Pro-Telligent was a subcontractor to Amex that claimed it was unpaid in the amount of $279,660.27, its Complaint was served on January 7, 2021, and Amex did not respond within the required 21-day window. The Court then held a hearing on February 28, 2020, regarding the validity of the Clerk of Court’s entry of default per the rules of court.
After a fully noticed hearing, the Court determined that (1) Amex was properly served, (2) that Amex failed to respond in a timely fashion, and (3) that Amex had full notice of the default judgment motion and hearing. Once these three facts were determined, the remainder of the opinion was practically inevitable. The magistrate recommended liability on all counts. The magistrate further found that Amex was liable for all damages requested ($267,660.27) but did not award attorney fees because the contract between the parties did not allow for such an award. All of this was without the ability for Amex to defend itself due to the lack of a response.
On review of the magistrate’s recommendation, the District Court adopted the report and recommendation of the magistrate on all aspects of its findings except that of unjust enrichment (and this count was only denied because of the existence of the written contract).
Did Amex have valid defenses? We may never know because Amex did not respond in a timely fashion. What is the best way to avoid losing your ability to defend your position? SHOW UP FOR COURT IN THE FORM OF PLEADINGS. Why am I capitalizing this answer? Because it is very important.
The takeaway from this and all of the other default judgment-related cases I’ve “mused” about is to always provide a response. If you do not respond, bad things happen.
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