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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 41221
Experience:  Run my own successful business/contract law practice.
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Breach of contract case. We filed an action, but the defendant

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Breach of contract case. We filed an action, but the defendant did not reply in 40 days. So we filed a motion of entry of default. Then defendant contacted my attorney to ask if we would vacate the default. Is it 'sound' legal strategy to deny vacate in order to create busy work and force the defendant to spend attorney hours to file motion to vacate? The cost is negligible on our side to continue the default forward. Or does this path lead to the courts looking at the action unfavorably?

Thank you for your question. Please permit me to assist you with your concerns.

To answer your question directly, there is no legitimate legal or even practical benefit for you to seek to vacate the default, especially if the other party missed their deadline to properly respond. Until and if the other party offers a potential settlement that would entice you to drop the suit, filing for a default is not just a sound approach but is the most favorable. There is really nothing in this action that the courts would look to unfavorably--while you can also pursue negotiations and a settlement, until it is signed or written, there is no practical reason under which to drop the claim.

Good luck.

Customer: replied 4 years ago.
It is my understanding that courts are likely to grant defendants on a motion to vacate the default, so proceeding with an entry for judgement would create work for us that would be for nothing, since chances are the default will be vacated?Why would the defendant's counsel inquire if we would drop the default? Is this a typical inquiry? Do plaintiffs usually acquiesce to such requests as professional etiquette, or do they barter for concessions, or not grant it at all?

Thank you for your follow-up, Riopua.

It is my understanding that courts are likely to grant defendants on a motion to vacate the default, so proceeding with an entry for judgement would create work for us that would be for nothing, since chances are the default will be vacated?
Yes and no. Courts will evaluate the basis of the default petition. If the other party failed to have raised timely objections, then your side's facts are considered binding, final, and no longer objectionable, which on that virtue alone stands to grant a strong chance for a default judgment. A default is granted when there are no facts in dispute, and by failing to respond timely it may well be that no longer are any facts in dispute.

Why would the defendant's counsel inquire if we would drop the default?
Because he is trying to save himself work. It is hard to demand a dismissal not be granted when they already blew deadlines. Plus, it may well be an attempt to negotiate, but until negotiations take lace their request has no viable merit.

Is this a typical inquiry?
Yes, it is. But unless the parties are amicable (and most are not), the request is denied without a second thought.

Do plaintiffs usually acquiesce to such requests as professional etiquette, or do they barter for concessions, or not grant it at all?
They do not grant it. Makes no good sense to grant it.

Good luck.

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