What a Default in Court Means

Sometime ago, I blogged about the perils of ignoring a lawsuit.  The decision we received from the Appeals Court last week underscored the danger of failing to participate in the litigation process.  The appellant made a conscious decision to refrain from participating in the underlying litigation.  He failed to answer the Verified Complaint, he failed to attend his deposition, he failed to attend the assessment hearing personally to offer testimony to counter that of our client.  His counsel did not cross-examine our client at the assessment hearing, nor did he submit a brief regarding the legal issue raised during the assessment of damages.  The appellant also failed to participate in a number of related actions including two companion cases in Middlesex County.  

When a default is entered against a party, the factual allegations of the Verified Complaint are taken as true, and each of the claims against the defaulted party must be considered established as a matter of law.   Multi Technology, Inc. v. Mitchell Mgmt.Sys., Inc., 25 Mass.App.Ct. 333, 334-335 (1988).  "Such is the peril of a default. [Appellant's] failure to answer, or to respond to deposition notices and other discovery requests, deprived [Appellee] of any opportunity to supplement the factual record; the judge was permitted to take into account the fact that Appellant not only defaulted, but stonewalled discovery. See Multi Technology, Inc., supra at 335-336 ("In reaching [her] conclusions, [the judge] was allowed to hear any evidence material and relevant to the claims alleged in the complaint"). Cf. Mass.R.Civ.P.37(b), as amended, 423 Mass. 1406 (1996) (setting forth sanctions for discovery violations). [Appellant] cannot have it both ways."  Erez v. Batrin, 2015 Mass. App. Unpub. LEXIS 1046 (Mass.App.Ct. 2015).

Deciding whether to fight a lawsuit or let a default enter must be a calculated decision based  on the amount of money at stake, the amount of money you will have to spend to defend, whether the judgment could include an award of attorney's fees for or against you and, of course, the merits of your claim.  The Rules of Civil Procedure were amended in 2013 to require that plaintiffs provide defendants with notice of the damages sought prior to an assessment of damages.  However, by the time you receive this paperwork, a default has already been entered against you.  In other words, the only question is the amount of damages that will be awarded - not whether you are liable.  You should consult with an attorney to assist you in making that determination as these factors can be complicated.