One thing to know about litigation is that timing is everything. Many clients that come to us are unaware that the process of litigating is governed by a series of statutorily-defined deadlines and schedules. Failing to abide by those deadlines can have huge effects on a litigant’s position in a lawsuit. One of the worst positions someone can find themselves in is “in default,” which ultimately triggers a cut-off of a defendant’s rights to defend itself until a default judgment is entered.
Phase 0.5: Being “In Default”
A defendant is technically “in default” if they fail to file an answer or any other permitted response to a complaint within the time allowed by law (typically, 30 days within being personally served). Being in default doesn’t really have any legal consequence in and of itself. The court can’t refuse to accept a response even if it’s a few days late – the defendant can appear until the clerk has entered the default (which is step 1 defined below).
As a side note, a response filed after the deadline can be challenged by a motion to strike. But these are generally not granted because, by not requesting entry of default, the law
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