A client recently contacted me after remembering he had been served with a lawsuit sometime earlier and stuck the lawsuit in his desk, forgetting about it. He called in a panic – afraid he was in default. I have encountered this situation many times because a client hopes “the matter will go away” or that it “will take care of itself.”
My client called on August 8, 2013 and told me he was served on June 25, 2013. Was he in default? O.C.G.A. §9-11-12 states, “A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him…” O.C.G.A. §9-11-55 provides in part, “If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.” Thus, his answer was due on July 25, 2013, and he was in default.
My client was rightfully unnerved and wanted to know what, if anything, he could do. I informed him all was possibly not lost. O.C.G.A. §9-11-55(a) allows for “[t]he default [to] be opened as a matter of right by the filing of [an answer] within 15 days of the day of default, upon the payment of costs.” Fifteen days after the default date fell on August 9, 2013. He still had time to open the default as a matter of right by paying the court costs.
If he waited just two more days to call me, he would have been in default past the fifteen-day grace period, and the plaintiff would have been entitled to a verdict and judgment. It should be noted here a court can open default after the expiration of the 15 day extension period but only because “providential cause prevent[ed] the filing of required pleadings or for excusable neglect.” O.C.G.A. §9-11-55(b). Forgetting about a lawsuit is neither providential cause nor excusable neglect!
We prepared his answer, paid the court costs, and filed it with the court. The default was opened, and the case is moving forward. Needless to say, I had one very satisfied and relieved client.
In light of the above, I suggest to you, the reader, the best course of action is to contact your attorney immediately following service of the lawsuit. Not only are there are legal deadlines to be followed, the sooner you contact your attorney, the earlier he or she can begin working on your defense, gathering documents, interviewing witnesses, saving and protecting evidence, etc. Contacting your attorney as soon as possible upon receipt of a lawsuit can prevent a very costly error.