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Tina, Lawyer
Category: Legal
Satisfied Customers: 33167
Experience:  JD, BBA Over 25 years legal and business experience.
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I had given the defense a summons in January and they never

Customer Question

I had given the defense a summons in January and they never answered the summons. I had a 120 days to hand out the summons. On the summons I put all the defense names. I had given the summons to the district attorney and to the general attorney. I didn't put their names on the summons though. I haven't heard from the judge and the defense had till march 19th to respond. I am afraid to hand out a default notice because I don't want to upset the judge and I am also afraid that there might have been a techinal era on my part in the way I went about the summons. My question is I don't know if I should wait for the judge's decision or would I lose the case if I don't hand out a default notice.
Submitted: 4 years ago.
Category: Legal
Expert:  Tina replied 4 years ago.

Hello and welcome.

I am sorry to hear of your difficult situation. Please note: (1) this is general information, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. There may be a delay between your follow ups and my replies as I review your responses and prepare your answer.

In which state is the case pending? Is it in federal or state court?
Customer: replied 4 years ago.

It is a federal case and it is in NY.

Expert:  Tina replied 4 years ago.

I see. Thank you for clarifying the situation for me, John.

It is typically up to you, the plaintiff, to ensure the defendants are personally served, but you cannot serve them yourself since you are a party to the action. Therefore, it is usually best to hire a professional process server to personally serve them and file the return of service with the court, which would then provide proof that they were properly served.

Based on the information you have provided, the defendants have not been personally served with the summons and complaint and that would explain why they have not responded.

It would not be appropriate to file a motion for a default judgment at this point until they have been personally served and provided the appropriate amount of time to respond to the complaint.

You can either file a motion with the court requesting additional time to serve the defendants or you will need to refile the case I'm afraid since it appears you have exceeded the amount of time alloted to provide service of process. I'm sorry.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!


Note: Please feel free to request me if you have future legal questions by going to your “My Questions” page and clicking on “Request Tina again” next to my photo. I look forward to hearing from you again.

Customer: replied 4 years ago.

Dear Tina:

My wife served them and her signature is on the summons.

Expert:  Tina replied 4 years ago.
I see, good. Did you file the return of service with the court, showing that the defendant's were served? If not, you should do that. Since you have served them, it normally would be appropriate to pursue a default judgment against the defendants since they have not responded. That should not upset the judge since it is consistent with proper procedure.
Customer: replied 4 years ago.

Yes I did, I went to the court and gave them all the summons with the signatures on them. I don't understand why the judge wouldn't step in and close the case since the defense went past their time period when it came to not answering the summons.

Expert:  Tina replied 4 years ago.

Hello again, John.

Federal courts do not initiate action in a case unless a motion is pending before them typically, so you would need to file a motion seeking a default judgment and set a hearing on the matter before the court would normally rule. The motion should be mailed by first-class mail to the defendants as well, and a proof of service filed with the court.