§55.5 Purpose and Procedure

• Jurisdiction: Washington

§55.5PURPOSE AND PROCEDURE

The purpose of the default judgment procedure is to protect the rights of a moving party faced with an unresponsive adversary. H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe,432 F.2d 689, 691 (D.C. Cir. 1970). Nonetheless, "[default judgments are not favored in the law." Griggs v. Averbeck Realty, Inc, 92 Wn.2d576,581,599 P.2d 1289 (1979). Indeed, the court in Griggs noted that a default judgment may be "one of the most drastic actions a court may take to punish disobedience to its commands." Id. Washington courts support "the policy of the law that controversies be determined on their merits rather than by default." Dlouhy v. Dlouhy,55 Wn.2d 718, 721, 349 P.2d 1073 (1960).

Yet "[b]alanced against that principle is the necessity of having a responsive and responsible system which mandates compliance with judicial summons, that is, a structured, orderly system not dependent upon the whims of those who participate therein, whether by choice or by the coercion of a summons and complaint." Griggs, 92 Wn.2d at 581.

When a party against whom a judgment for affirmative relief is sought fails to appear, plead, or otherwise defend, a motion for an order of default may be brought after the time for responding has expired. CR 55(a)( 1). The time for answering normally is 20 days for defendants served within the state, and 60 days for out-of-state defendants. CR 4(a)(2); CR 12(a); RCW 4.28.180 (as modified by any provisions of CR 6). If a motion is premature, a judgment of default entered on such a motion shall be vacated. Batchelor v. Palmer,129 Wash. 150, 158-59, 224 P. 685 (1924).

(1)Motion for order of default

If a party fails to plead or otherwise defend the action as provided in the rules, the party seeking affirmative relief may bring a motion for an order of default. The motion must be accompanied by an affidavit showing proper service of the summons and complaint, the expiration of the time to appear and answer, and the basis for venue in a particular county. Five days' notice must be given to any party that has entered an appearance, and that party may plead or otherwise defend at any time before the default motion is heard. A party who has not appeared prior to the motion being filed is not entitled to notice, unless a year has elapsed since service of the summons under circumstances described in CR 55(f), and may not respond to the pleading or otherwise defend without leave of court.

Practice Tip: Bring a motion for default promptly upon expiration of the time to respond in order to compel the responding party to identify procedural defenses that may be cured before the expiration of the applicable statute of limitations, e.g., insufficiency of process See French v. Gabriel,116 Wn.2d 584 806 P.2d 1234 (1991) Omaits v. Raber,56 Wn.App. 668, 785 P.2d 462, review denied,114 Wn.2d 1028 (1990).

Practice Tip: The party seeking default judgment should take care to ensure that proper service has been made. See French, 116 Wn.2d at 588. When the you identify and serve the current designated agent or other defendant is a corporation, be certain appropriate agent.

Practice Tip: Although a party who has failed to appear within the time to respond under CR 55 is not entitled to notice of a motion for default, remember that in multiple-party cases, all other parties who have appeared are entitled to notice. Thus, in multiple-party cases, the motion must be noted and set for hearing. Only in cases against a single defendant can the plaintiff present an ex parte motion for default against the nonappearing defendant.

Practice Tip: Local rules may impact motions for default. Spokane County LCR12, for example, requires every plaintiff to promptly move for entry of default if the answers or responsive pleadings are more than 20 days past due. When a party has failed to defend, the presiding judge may inquire whether the LCR 12 motion for default has been made (and if not, why not) at the status conference set under the case schedule.

(2)Contents of motion and affidavit

The motion and affidavit for an order of default should show that the defendant has been served, that the minimum time for...