Legal Question in Business Law in Washington

Re: Summons and Complaint for Breach of Contract and Money Damages

In Washington, the rules provide: "When a party against whom a judgment for affirmative relief is sought has failed to appear, plead, or otherwise defend as provided by these rules and that fact is made to appear by motion and affidavit, a motion for default may made." I can't tell from your post, but if the defense has filed a notice of appearance but has not responded with an answer a default will not be granted. If a notice of appearance has not been filed, the attorney may not have filed a motion for default for any number of good reasons notwithstanding the lapse of twenty days. I recommend that you ask him or her to explain to you why they have not. Please consider that you may be off to a poor start in your litigation, and need to improve your communication with your counselor.Having said that, I have been in the same situation and have chosen not to file a motion for default. The reasons are varied. The phrase "or otherwise defend" is a pretty lax term. If there has been communication between attorneys, there is an argument that the rule has been met. There is also an argument that "otherwise defend as provided by these rules" means an appearance or an answer or another approach sanctioned by the rules. I have not researched the scope of that phrase, but would personally consider the rule met, if not the rule itself, the spirit of the rule, if I had been in substantive discussions with opposing counsel. In addition, filing a notice of appearance is a pretty easy thing to do. Once a motion is filed, presuming the defense is aware of it, the motion is easily overcome with the filing of a notice - an answer is not required. So, you press the point - without necessarily gaining an advantage.

If the attorney isn't aware of the motion for default, and the motion is granted I'd venture that many judges would vacate the default if the defense has a credible answer. Defaults are disfavored, and judges are reluctant to grant them or uphold them, if an answer is in.

When a defense attorney is participating, your attorney may be able to resolve the conflict quicker and at a lower cost. Part of that equation is relationship building within the local community of attorneys. Seeking a default on day 23 may be counterproductive - not only in the long run for the attorney, but in the short run for you.I suggest that you discuss the matter with your attorney. Include in that discussion your desire to be particularly aggressive in adhering to deadlines and to take advantage of the rules. Be aware that you will have to be similarly vigilant and responsive. I trust that I've given you something to work with. Unfortunately, each case is unique, and I do not and cannot know why that decision was made. However, if the appearance has not been made, you may direct your attorney to file a motion for or to obtain a default. Best of luck. Kevin Lyon