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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 110513
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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The plaintiff filed motion for default failure to plead. It

Customer Question

The plaintiff filed motion for default failure to plead. It was granted. The judgment has not been entered against the defendant yet.

Which defendant actions would be considered as pleading after which motion to open default could be filed. I want to make sure to take action which will definitely open default and not leave the matter on courts discretion.

Submitted: 3 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 3 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

What actions did you take upon being served with the suit? That is what they are looking for. Pleading would be either you filed an answer to the suit or you filed a motion to dismiss the suit in response to being served. You had to file something in answer to the suit when you were served and if you did not file any type of response in the court, then that is failure to plead.

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Customer: replied 3 years ago.
I understand that. The question is that if a motion to dismiss is filed would it mandate the court to open default or the court could use its discretion and say that since we are denying motion to dismiss we are also denying motion to open default?
Customer: replied 3 years ago.
I know that the answer will definitely cause the default to open.
Expert:  Law Educator, Esq. replied 3 years ago.
Thank you for your response.

If you waited until default were filed for before you filed anything, then you are at the mercy of the court's discretion and they can deny the motion and enter the default against you.

If you can show good reason to dismiss though, then they will not enter the default, such as improper venue, improper service, accord and satisfaction, statute of limitations (these are all examples of reasons the court will not enter the default and will have to dismiss the case).

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