Motion to reconsider default judgment

[Rexlan]

Georgia:

I am Plaintiff in a civil contract case. Defendants refused to provide discovery and I motioned to compel. Court so ordered and defendants did not comply. The Court as a sanction for willful refusal struck defendants answer and entered judgment by default in my favor. Court also scheduled a subsequent hearing for damages so it appears that the default is not a final order.

The defendants attorney says he is sick so ask for consent continuance .. I agreed and hearing was rescheduled for two months latter.

After the continuance was granted the defendant, through another attorney who has not made an appearance, made a motion for reconsideration of the default signing the original attorneys name with consent. This motion was made after the originally scheduled hearing date that would have settled the case and about 6 weeks after the court ordered the default. This seems to be a cheap trick using the continuance to get in the new motion. The motion only recites all of the case history, offers nothing new or any evidence.

My question is if the Defendant is in default can the court hear the motion for reconsideration without the defendant getting out of default first? Or, is this effectively the same as asking to get out of the default?

 

[seniorjudge]

Georgia:

I am Plaintiff in a civil contract case. Defendants refused to provide discovery and I motioned to compel. Court so ordered and defendants did not comply. The Court as a sanction for willful refusal struck defendants answer and entered judgment by default in my favor. Court also scheduled a subsequent hearing for damages so it appears that the default is not a final order.

The defendants attorney says he is sick so ask for consent continuance .. I agreed and hearing was rescheduled for two months latter.

After the continuance was granted the defendant, through another attorney who has not made an appearance, made a motion for reconsideration of the default signing the original attorneys name with consent. This motion was made after the originally scheduled hearing date that would have settled the case and about 6 weeks after the court ordered the default. This seems to be a cheap trick using the continuance to get in the new motion. The motion only recites all of the case history, offers nothing new or any evidence.

My question is if the Defendant is in default can the court hear the motion for reconsideration without the defendant getting out of default first? Or, is this effectively the same as asking to get out of the default?

Q: My question is if the Defendant is in default can the court hear the motion for reconsideration without the defendant getting out of default first? Or, is this effectively the same as asking to get out of the default?

A: Yes and yes; default judgments are NOT favored by courts. Of course, when you have a defendant who simply will not co-operate (as in your case), it is often the only remedy. You will just have to wait and see what the court decides.

 

[Rexlan]

Q: My question is if the Defendant is in default can the court hear the motion for reconsideration without the defendant getting out of default first? Or, is this effectively the same as asking to get out of the default?

A: Yes and yes; default judgments are NOT favored by courts. Of course, when you have a defendant who simply will not co-operate (as in your case), it is often the only remedy. You will just have to wait and see what the court decides.

Thanks for the reply ... I was concerned that this may be the answer.

I think I will prepare a motion and ask the Court for guidance .... before I spend two days responding to 50 line items for reconsideration. This does not seem fair, but then what is I guess.

 

[seniorjudge]

Thanks for the reply ... I was concerned that this may be the answer.

I think I will prepare a motion and ask the Court for guidance .... before I spend two days responding to 50 line items for reconsideration. This does not seem fair, but then what is I guess.

The court must remain neutral and will not give you guidance.

If you are representing yourself, then you are considered to have as much knowledge about the law as your opponent's attorney.

 

[rmet4nzkx]

Little has changed since May of last year.
You still need an attorney.
https://forum.freeadvice.com/showthread.php?t=246920

 

[Rexlan]

The court must remain neutral and will not give you guidance.

If you are representing yourself, then you are considered to have as much knowledge about the law as your opponent's attorney.

I agree and I misused the term. I would like to object to the motion and ask the Court if it intends to hear it. If so also to extend the time for a proper reply from me.

I have actually done quite well and better than both of the attorneys. I know my place and I am respectful of the Court. I did very well at the hearing. This case is 1 1/2 years old and the judge finally had enough after he ordered them to comply 3 times. I made a motion to strike and we had a hearing .... he granted it and here we are.

I think my aggravation now is the attorney used his illness as an excuse to delay the damages hearing and then 6 weeks latter to motion for reconsideration. Unfortunately, there is no time limit for reconsideration in GA Superior court.

As I understand it once in default you have no standing and must get out of the default ... but like I said maybe this is the same thing with a different title.

Thanks for your input seniorjudge.

 

[seniorjudge]

I agree and I misused the term. I would like to object to the motion and ask the Court if it intends to hear it. If so also to extend the time for a proper reply from me.

I have actually done quite well and better than both of the attorneys. I know my place and I am respectful of the Court. I did very well at the hearing. This case is 1 1/2 years old and the judge finally had enough after he ordered them to comply 3 times. I made a motion to strike and we had a hearing .... he granted it and here we are.

I think my aggravation now is the attorney used his illness as an excuse to delay the damages hearing and then 6 weeks latter to motion for reconsideration. Unfortunately, there is no time limit for reconsideration in GA Superior court.

As I understand it once in default you have no standing and must get out of the default ... but like I said maybe this is the same thing with a different title.

Thanks for your input seniorjudge.

You are welcome.

Keep in mind that your opponent is the one irritating the judge; the nicer you are and the less "trouble" you are will work in your favor.

 

[dcatz]

You're mixing your terminology a bit. What you're going to do is oppose the motion for reconsideration, because its purpose is to get relief from default, and you don't want that.

seniorjudge has given you the touchstone. Your opposition doesn't have to be long, but it should be clear in reminding the Court why it took the action that it did in the first place. Side with the Court

It takes some effort to get slapped with a teminating sanction for non-compliance with discovery. Remind the Court that there was continuing non-complianace in the face of three prior Orders. Have they attempted to remedy that by belated compliance - i.e. are responses now attached to the motion for re-consideration? If not, point that out. Was any excuse ever given? if not, point that out. Were extensions requested to respond? Was your discovery so labor-intensive that delays were reasonable? If not, remind the Court.

There are plenty of cases where defaults have been imposed or relief from default denied because Courts found attorneys and litigants to have "played free and easy" with the rules of civil procedure. Find a few for your state and cite to them.

If you want, touch lightly but don't hammer on the subterfuge that allowed the motion to be filed. Everything should remind the Court that these are bad guys, who don't deserve a fourth chance, and that remind it why it was ticked off before.

Courts are concerned with the management of their caseloads and the "efficient administration of justice". Just remind the Court that the litigants and their attorney(s) ignored their responsibilities in this regard. Unless a particularly good reason is offered, don't worry about attacking each line item. Just present the whole picture of callous disregard, the unnecessary time and expense for the Court and for you and ask it to re-affirm its original ruling.

 

[Rexlan]

You are welcome.

Keep in mind that your opponent is the one irritating the judge; the nicer you are and the less "trouble" you are will work in your favor.

Thank you Senior Judge and thank you Dcatz!

I took your advice and prepared a brief preliminary response point out all of this to the Court. I also asked for expedited review and an extension if the Court intended to hear it.

The Court issued a new Order denying their Motion for Reconsideration and also pointed out to the Defendants that their "ghost attorney" had not made a proper appearance and that he is ALSO required to be at the damages hearing. I think this really ticked the judge and rightfully so.

A new twist however. In their Motion they requested a jury trial for the damages. I know if they are liquidated that they are not entitled to a jury … if they are not they may be.

How can I defeat the jury trial issue? I am not an attorney and do not pretend to be. Hiring one for this would defeat the case from my point of view. There is an unliquidated clause in the Agreement for $10,000; however, I also asked for $50,000 in special damages which I likely will not get. I can probably only prove about $35,000 but with a jury who knows.

Thanks again

 

[Quaere]

Why do you have to defeat their request for a jury? If they asked for it in their motion to reconsider the default and that motion was denied, then the judge has already denied the jury trial request.

 

[seniorjudge]

Thank you Senior Judge and thank you Dcatz!

I took your advice and prepared a brief preliminary response point out all of this to the Court. I also asked for expedited review and an extension if the Court intended to hear it.

The Court issued a new Order denying their Motion for Reconsideration and also pointed out to the Defendants that their "ghost attorney" had not made a proper appearance and that he is ALSO required to be at the damages hearing. I think this really ticked the judge and rightfully so.

A new twist however. In their Motion they requested a jury trial for the damages. I know if they are liquidated that they are not entitled to a jury … if they are not they may be.

How can I defeat the jury trial issue? I am not an attorney and do not pretend to be. Hiring one for this would defeat the case from my point of view. There is an unliquidated clause in the Agreement for $10,000; however, I also asked for $50,000 in special damages which I likely will not get. I can probably only prove about $35,000 but with a jury who knows.

Thanks again

Q: How can I defeat the jury trial issue?

A: The judge already took care of it for you.

 

[Rexlan]

Q: How can I defeat the jury trial issue?

A: The judge already took care of it for you.

Thanks Senior Judge and Quaere.

Well ... dumb me again. I did not say it right.

The judge denied their Motion; however, he also said that he noted that the Def's had requested a Jury trial for damages and that he would determine at the hearing if the damages are liquidated or unliquidated. So it "appears" that if he determines they are unliquidated that the Def's can demand a jury trial on that issue by statute.
GA 9-11-55(a)

There is no way that I can perform at a jury ... the hearing is about all I can handle and it is quite intimidating. It certainly is a waste of the Courts time to have a jury for this simple issue and I do not see how the Def's can be served by this ... just runs the bill up.

Thanks again SJ and Quaere ... you folks have been very helpful.

 

[badapple40]

The jury issue is all about them intimidating you. Whats the case about and what are your damages?

 

[Rexlan]

The jury issue is all about them intimidating you. Whats the case about and what are your damages?

Civil case, breach of a land sale contract in Alaska. My actual damages (costs out of pocket because of the breach) is ~ $35,000 but can be difficult to completely prove since I am in Virginia and the Def’s are in Georgia.

The contract, however, says that if they do not complete the sale I am entitled to keep the earnest money as liquidated damages ($10,000).

In the Complaint I asked for specific performance.
Secondly I asked for special damages as the property is unique ($50,000).
Third, I asked for the $10,000 .... their earnest money check was NSF!

Court denied my SJ motion for specific performance because the Def’s claimed they never paid the earnest money … NSF check. I am clearly entitled to that relief and I believe the Court is in error. Lots of case law and this is the only equitable solution for me.

Def’s continued to disobey the Courts order to provide discovery (three times) after I made two motions to compel. I subsequently made a motion to strike and at the last hearing the court struck their answer and entered a default judgment as a sanction and scheduled another hearing for damages.

 

[dcatz]

The request for a jury is probably intimidation, but nobody can guarantee that. Commercial cases, such as yours are often more successfuly tried to a judge, because issues can become complex, and explaining them to a jury can be time-consuming and expensive. But, if you've been doing this yourself, they may be willing to take the gamble that this will intimidate you into a settlement. It also is a strange tactic to impanel a jury to decide damages, if the case-in-chief was heard by a judge - the jury doesn't know what went on, and that's more time and expense.

We don't know if there's a "fees provision" in you contract but, particularly if there is and you feel overwhelmed, this could be a time to consult an attorney. Also, most states have a requirement to pay jury fees in advance of the hearing or the right is waived - I've never had occasion to look at all states, but my guess would be that the requirement appears everywhere. If it exists in your state (just ask the court clerk), see if they have posted fees by that date, and you'll know if it's intimidation.

You've done alright on your own so far. It appears that some others may think it's a ploy, and I suspect that it is. But you do have options. Whether and how to use them must be your decision. I can't think of a way to absolutely defeat the request.