you course mean "if" you receive it (or anything)

She was acting as her own attorney and didn't realize that she had to file an answer with the Court within 30 days.

Although the Courts hate dealing with defaults... and they may give her the opportunity to cure.

Looks like Cash4Gold outright violated the rules of the court by filing for default after being served with the interrogatories. Not a surprise, from this company.

Courts tend to favor defendants who have had a default entered against them and then move to vacate it. The reason is that no judge wants to uphold a default judgment on procedural grounds and deny someone their day in court. I'm sure somewhere it's happened before, but most of the time the default judgment will be waived.

@tedyc03:
They problem isn't that Cash4Gold moved for a default, it's that it didn't serve her with notice of its motion after she had returned the interrogatories. Had she not responded at all, there would have been no duty to serve her with notice; since she responded, she is arguing that they owed her notice. Seems to be her best argument, as it's unlikely she could come up with a reason as to why her failure to file an answer should be excused.

@Esquire99: The real reason is that she's a pro se defendant who didn't know any better. Courts are often inclined to give such people a second chance.

This is one of those stories wherein I'll be checking back furiously for updates.

Let me guess...failure of service.

I can't believe how many judges actually enter default judgments in these kind of cases (you know...where the plaintiff knows where the defendant is but is too lazy to pay for service even via certified mail!).

@mythago:
The real reason for what? Nothing has been done here other than the filing. While the court might be inclined to vacate the default because she's pro se, there hasn't been any sort of ruling yet.

@nstonep:
She clearly was served, otherwise she wouldn't have responded to the interrogatories.

@Crazytree: Courts hate dealing with pro-se litigants. But in the defendant role, they pretty much have to accept that they are dealing with people who have not gone through training on civil litigation procedure. The question is how many judges really understand that the system is rigged in favor of those with money (even if it is other people's money).

@mythago: If it is true that the plaintiff filed the motion without serving a copy on the defendant, then it's an improper motion. The motion should have had sworn statement of the service. If it did not, that's the court's error and it would be proper to correct it. If it did, and they didn't actually serve the defendant, then they are in even more trouble than just filing an improper motion. Either way, it doesn't matter if the defendant is pro-se or represented.

@Esquire99: She was sent the interrogatories. She says she responded. Maybe they didn't get them? Maybe they threw them in the trash? They filed the motion for default judgment and apparently didn't serve her with a copy of that motion.

This is one reason I believe that civil litigation needs to be done with something better than a party of the proceeding swearing out service. Instead, the court should carry out the notifications unless and until the other party agrees to accept direct communications (the losing party having to pay all the court costs to be served).

@Skaperen:
The reason they sought a default was because she failed to answer the complaint. Interrogatories != a proper answer.

However, under the procedural rules for obtaining a default in FL, if the plaintiff has been served with any papers from the defendant, or the defendant has filed any papers with the court, the plaintiff must serve the defendant with a copy of the motion for default. If no such papers have been served or filed, the plaintiff is not obligated to serve the defendant with notice of the motion for default. Since the defendant here is claiming she served them with interrogatories, the assertion is that the plaintiff was obligated to serve notice of the motion for default, which they did not do.

@Skaperen:
It seems like the question is really whether or not they had an obligation to serve notice on the defendant. So it wouldn't necessarily have been unusual to file the motion w/o a cert. of service, thus the court probably shouldn't have been expected to catch it.

@Skaperen: That would be correct if Liberis's service of interrogatory responses counts as "any paper" under the Florida Rules of Civil Procedure. If it doesn't, then they apparently didn't need to give her notice of the default. (I have no idea whether or not her argument is correct; I'm not a Florida lawyer.) It's undisputed that she didn't file a responsive pleading to the Complaint.

@Skaperen: Or maybe they assumed that interrogatory responses are different from a demurrer, a motion to strike or an answer?

You cannot possibly be serious that all service ought to go through the courts. In my state it already takes two weeks for the sheriff's department to serve papers, and that's when you have the option of private service.

@Esquire99: Again, assuming that her interpretation of "any papers" is correct. If it is otherwise defined to mean "papers that are actually responsive to the complaint itself" she's out of luck.

@mythago:
Agreed. I don't think I said anything to the effect that they were obligated to do so, just that she claims they were. If I did make such a statement, it was in error. Clearly this is an issue that the judge will have to decide (whether the interrogatories satisfy the rule, thus requiring notice). I think there is an argument both ways. For one, the FL rule says "Served," thus if she didn't complete a cert. of service and serve it in one of the ways FL specifies as proper, technically the interrogatories, even if they are "papers," weren't served. Of course, given her pro se status the judge *may* be more lenient.

@Skaperen: The worst case I am handling, by far, is a psychotic pro per. And the judge has bent over backwards to accommodate this criminal... it's almost maddening.

Based on the original post she DID file her responses, for some reason the courts did not connect the dots and tie her filing back to the case in question. That is the reason for the filing to vacate.

@mythago: "You cannot possibly be serious that all service ought to go through the courts. In my state it already takes two weeks for the sheriff's department to serve papers, and that's when you have the option of private service. "

Statewide or by county?

In my state all service has to go through the sheriff's department which REPORTS the service to the court, with an exception for some very large counties to allow private service as well. It takes two to three days in my county, because it isn't that populous. I see no reason why private servers couldn't also be required to report to the court and governed under very strict rules to ensure honesty and compliance.

Flip side, when I had to serve a dead guy, it took FOREVER because the service rules are pretty stringent. A state that was a little looser would have made the case a lot shorter.

@guido64:
Had you RTFA, you would have seen that she didn't file an answer to the complaint, which is why she was defaulted. The only question is whether or not her sending responses to the interrogatories the plaintiff also sent her created an obligation on the plaintiff's part to notify her of their motion for default.

@Crazytree: She only sent in answers to Cash4Gold's questions, and didn't technically respond to the complaint. But the responses nontheless show that she denied the allegations and that Cash4Gold knew that she did. The judge will probably vacate.

Looks like she got an attorney this time too.

@Crazytree: Oh great! What's my ex wife dragging me back to court for now! :/

@Eyebrows McGee (now with more baby!): Your state does not permit your law office to serve a complaint by a private server? I'm all for stringent regulation of process servers, mind.

My county has mandatory electronic service for many kinds of civil litigation. It takes two weeks to get the sheriff to serve, say, divorce papers. In unlawful detainer cases, the court is packed on Tuesdays because the sheriff serves all eviction papers on Wednesdays - they don't have time to do it otherwise.

@Skaperen: Judges understand pretty well that most people don't have a lawyer on call and don't always understand what they are supposed to do in a lawsuit. I've had pro se litigants show up hours for hearings without having filed papers first and still be allowed to argue.

@mythago:
IIRC, in Cook County (Chicago-area) you have to use the Sheriff first; if they fail, then you can move the court to appoint a special process server.

@Esquire99: Given how often courts lose or screw up papers, I'm not sure that's a better system.