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Winc, Part 2: What happens if a company blows a federal court filing deadline?

December 15, 2020 | Filed under Uncategorized | Posted by

Comment from a nationally recognized, experienced litigator, now retired from a prominent international law firm.
If the Answer wasn’t filed and no further extension was given, what happens next is a function of the Federal Rules of Civil Procedure, the Local Rules of Civil Procedure of the Southern District of Ohio court, and possibly even whatever “standing” rules the judge to whom the case is assigned may have.  I’ve been familiar with practice in the Southern District of Ohio; and my once-encyclopedic knowledge of the Federal Rules is rapidly receding in the rear-view mirror, to make room for such things as favorite poems and the rules of Mexican Train.  
 
That said, except to the extent local rules or rule changes generally might now dictate otherwise, what would happen is the plaintiff would make a motion for entry of a default judgment against the defendant by reason of the defendant’s failure to answer.  The defendant would then have an opportunity to oppose the motion and make its own motion for relief from default by attempting to show good cause for its failure to file the Answer and even tendering the Answer that it would file if the Court were to permit it to do so.
 
Note that generally the courts also have discretion to initiate entry of default judgment upon observing that the due date is passed for an Answer to be filed.  Typically this is done through an order to show cause why default judgment should not be entered, which amounts to the court giving the defendant notice and an opportunity to avoid default very similar to a motion by the plaintiff.  Sometimes there are local rules or procedures that automatically trigger such an “OSC” at some point after an answer becomes delinquent.
 
Although the Court has discretion to grant the default judgment or, alternatively, deny it and permit the late filing, its discretion in the former case is constrained.  As you can imagine, it’s a serious matter to deny a party its day in court, just because it missed a technical deadline. There is actually a due process underpinning to this principle.  So, except in really egregious cases, if the defendant acts appropriately chagrined, the court will deny a default judgment and grant leave to file the Answer late. It may, as a condition of doing so, require certain penance, like reimbursing the plaintiff it’s costs of making the motion or otherwise curing problems caused by its delay.