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Category: Legal
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Experience:  Civil litigation attorney for individuals and businesses.
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I need to file a motion for default judgment or motion for

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I need to file a motion for default judgment or motion for judgment on the pleadings. I am a pro se Plaintiff in Colorado COUNTY Court. It is not a District Court and I think the rules may differ. Here is the situation - I filed a motion to amend my Complaint and the judge immediately granted the motion. The opposing attorney filed a motion to vacate the order because he was not given an opportunity to respond. She agreed and vacated her order and called a pretrial conference to argue the motion. At the conference she heard both arguments and agreed with me and granted the motion to amend the complaint. In the amended complaint, I removed 3 claims and added 1 claim. The claim I added was Fraud. This is why the attorney was opposed to the amended Complaint and the entire subject matter of the pretrial conference. It has now been 60 days and he has not filed an answer to the Amended Complaint. Therefore, I want to file a motion for default judgment on this claim only. My questions are -
1). Is it within the Courts discretion to allow them to file a late Answer? Why would she do this? He is an educated office of the court that knew or should have know a responsive pleading was required, he filed a motion and went to the hearing specifically dealing with this subject matter. What excuse would he have to have for the Court to allow an Answer 60 days late?
2). Is this a motion for default judgment or a motion for judgment on the pleadings?

William B. Esq. :

Dear Customer, thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

You are correct, this would be a motion for default on the amended complaint (it would be as to the entire complaint - when you filed the amended complaint and they failed to answer, the failure to answer applies to the entire amended complaint).

William B. Esq. :

Unfortunately, it is unlikely that the Court will allow a default to stand if the opposing party appears and makes a motion to set aside the default (usually on grounds of "inadvertence, mistake, or excusable neglect") as most courts prefer to have matters tried on their merits. However, it is possible that the Court will view the same facts that you have - counsel appeared, was aware of the amended complaint, and yet they failed to file an answer.

William B. Esq. :

You have two options. One is to simply file the motion for default and see if the other side responds. The other is to contact opposing counsel and advise them of your intent to file if they do not file a responsive pleading within a set amount of time ("meet and confer"). The second is usually preferred by the courts as they dislike hearing motions that can be decided between the parties, but you certainly have the right to make a motion to win your case on procedural grounds.

William B. Esq. :

A motion for judgment on the pleadings is a motion that you would make if the other party had already filed a responsive pleading (usually an answer) but there was no way that they could possibly win based on the law (there is no factual dispute) and therefore the Court can issue a judgment based solely on the allegations in the pleadings themselves. (Usually this comes in the form of a defense, such as a statute of limitations defense that was not raised in a demurrer).

William B. Esq. :

I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.

Thank you for using our service, please do not forget to rate my answer when you are satisfied. I am going to transfer our conversation to the "Q&A" format to ensure you can review the entire response and that I can follow up to any questions you may have quickly. I do wish you the best of luck in this matter.

Customer: replied 3 years ago.

Thank you, XXXXX XXXXX a couple of ques if you don't mind. I have heard that this only applies to claims that were added an not claims that are the same in the original complaint, how can I verify this? The opposing side is Farmers Insurance Company so they will respond if I inform them so I will file the motion and use this as an opportunity to settle the case instead. When I file the Motion for Default Judgment, should I give an introduction, state my argument, cite case law, anything else, do I need to file a brief? Finally, the proper motion is a motion for default because it is the procedure the same as if they did not file an answer to the original complaint?

If you filed an amended complaint, the entire complaint must be responded to. A failure to file an answer or other responsive pleading acts as a default. You will want to do a quick case law research on this issue to help bolster your motion (you will need to write a motion (motions include several documents see below)). The default is the same as what you would file if they did not respond at all, except you would serve the other side just as you would with any other motion since they have made an appearance in the case.

To file your motion you will need the following:
(1) Notice of motion - a short document saying what motion you are filing (a motion for default), the date, time, and location of the hearing on the motion.

(2) The motion - another short document saying that you are moving for default, giving the statutory and case law authority (just very briefly) for the motion, and stating the relief you are asking for (that judgment be entered in your favor either on all counts, or in the alternative only on the additional count of fraud - it is acceptable to ask for relief in the alternative).

(3) A Memorandum of Points and Authorities - this is your lengthier document. This document will have an introduction (states the basic claim, the procedural status of the case, the relief you are requesting, and the basis for it); the legal authority (gives the case law and statutory law for a default, give the cases that are closest in factual basis to your own); your legal argument (compare your case to the statute, and the facts in the case law you cited in your favor); and a conclusion (ask for judgment to be entered).

(4) A declaration in support of your motion - A declaration under penalty of perjury in which you state the facts necessary to support the motion (in your case it will probably be the date on which the amended complaint was filed, perhaps the fact that the opposing counsel was present at the hearing, the fact that no responsive pleading has been filed, etc.). Any facts that you cite in your points and authorities must be introduced through your declaration (either as a direct statement, or through reference to the Court record, or a document that you can verify or establish as evidence).
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