What Happens When the Defendant Ignores Your Lawsuit?

What happens to a defendant (a party you've sued) who doesn't answer your lawsuit or show up for court? The short answer is: You can probably ask for a default judgment, meaning a judgment that awards you at least some of the damages you asked for in your complaint.

We explain how the default process typically works, with special emphases on:

• how a plaintiff (the party who files a lawsuit) proves they're entitled to a default judgment, and
• how a defendant can ask the court to vacate (set aside or undo) a default judgment.

A couple of cautionary notes before we begin. First, our primary focus here is on small claims cases. But the procedures we outline are probably similar to those you'll encounter in regular court, too.

Second, how the court in your case will actually handle a default depends on several factors, including state law (look for the pulldown menu under "Filing a Small Claims Action in Your State"), the court where the lawsuit was filed, and quite often, the judge's individual courtroom practices.

Don't assume that a default judgment will be automatic. Take time to research the law and procedures, and get help from an attorney if you're not sure what to do. (Learn more about how to do legal research.)

What's a "Default" and When Does It Happen?

The event that triggers a default judgment is called a "default." When and how a default happens mostly depends on the court where the case is pending.

Cases in Regular Court

In regular (meaning non-small claims) court, a default happens when the defendant doesn't file an answer to the plaintiff's lawsuit within the time allowed by the court rules, usually 30 days after the plaintiff files the case. Once the time to file an answer has passed, the plaintiff can ask the court to enter a default judgment.

Before you do anything, make sure the defendant hasn't received an extension of time to answer. Also, check the rules to see if you need to take any additional steps—like sending the defendant a notice that you plan to ask for a default—before asking the court to enter judgment.

You'll file a motion for default judgment, asking the court to enter judgment in your favor and award you damages. The court usually responds by scheduling a hearing on the motion. At the hearing, you can present arguments supporting your request.

Cases in Small Claims Court

Default in a small claims case depends on the procedures the court follows. In some states, the defendant has to file an answer much like in regular court. Failure to timely answer means the defendant is in default. The plaintiff asks for a default judgment as described above.

But many states don't require the defendant to formally answer a small claims lawsuit. They simply show up in court on the date the case is scheduled for hearing. In those states, a default occurs when the defendant fails to appear.

Should that happen, ask the judge about the procedure for requesting a default judgment. You might be able to make that request on the spot. Sometimes, though, the court will try to send the defendant a warning and re-schedule the hearing for a later date.

Courts Don't Like Default Judgments

As a rule, courts prefer to resolve disputes "on the merits," meaning based on the facts and legal issues the case presents. A default judgment short circuits that process, handing the plaintiff a win based on the allegations in their complaint and some proof regarding damages (as discussed below).

Don't be surprised or upset if the judge bends over backwards to give the defendant every reasonable chance to appear and defend the case. At some point, of course, the judge's patience will wear thin. Until that happens, you might find your patience being tested as well. It's all part of the process, and there's little you can do other than follow the rules and comply with the court's directions.

What Happens on Court Day

For the sake of judicial efficiency, most courts schedule multiple hearings during the same time slot. As the hearing date approaches, you'll be expected to keep the court advised regarding case status—whether you've settled (or are about to), and whether you want to proceed or ask for a delay.

Expect to Wait in Line

Most courts organize the day's calendar on a first-come, first-served basis. That is, the parties who asked for a hearing sooner in time get in line before those who scheduled later. When you get to the courthouse, check in with the court clerk. They'll let you know if your case is likely to be heard, and might be able to provide a (very rough) estimate of how long you'll have to wait.

Proving a Default Case

When it's your turn, the judge will call your case. This is your chance to "prove up" the default by showing that the defendant hasn't appeared, and that you're entitled to damages.

Preliminarily, the court will want proof that the defendant was served with your lawsuit, and didn't request a postponement or extension. The court might have this information in its file, but be ready with a proof of service or registered mail return receipt, depending on how service was accomplished. Ask the court clerk to confirm that no request for an extension was filed. You'll also need to show that you've complied with any other procedural prerequisites.

Here's how the default presentation process usually works.

• Proving facts other than injuries and damages. The general rule on default is that a court can accept the "well pleaded allegations" of your complaint as true. So, for example, in a car accident case, the court will accept as true (if you've adequately pled them) the facts that you were lawfully stopped at a red traffic light, the defendant wasn't paying attention and rear-ended you, and because you were rear-ended, you suffered injuries. The court might ask you for proof—maybe pictures of the scene or your vehicle, or a police report—if they think the allegations in your complaint are thin or are missing necessary elements.
• Proving injuries and damages. The rules probably don't let the court accept as true your allegations regarding injuries and damages. You should come to court with proof to back those up. The kind of evidence you'll need will depend on the type of case you filed. In a personal injury case, for example, have copies of your medical records and bills, documentation of your lost wages, and a witness or two who can testify about your pain and suffering and emotional distress. In a breach of contract case, you might need copies of bills you paid to get faulty work done correctly. If you're unsure, get advice from an attorney.

Because the defendant won't be present to contradict anything you say, the judge won't want to hear argument—just the bare bones facts and evidence supporting your claim. It's also likely that the judge won't question the accuracy of your version either, unless your claims simply don't make sense.

Sample Breach of Contract Small Claims Default

"Your Honor, I own the Racafrax Auto Repair Shop. On January 11, 20xx, I repaired defendant's 2009 Honda Civic. He paid me $500 and agreed to pay another $500 on March 1. He hasn't made the second payment. I have copies of the contract the defendant signed, and several unpaid bills I sent him. I'm asking for a judgment of $500 plus $55 for my court filing fee and the cost of having the papers served."

Sample Personal Injury and Property Damage Small Claims Default

"Your Honor, on March 13, 20xx, I was driving north on Main Street here in Anytown. I was stopped at a red light at the intersection of Main and First Streets. Without warning, the defendant hit the back of my car, causing the damages you can see in these accident scene photos.

Because of the collision, I suffered a broken wrist that required casting. I missed two weeks of work. I've attached copies of my medical records and bills, along with a letter from my doctor explaining the treatment I received. I have a letter from my employer's HR office that details my lost wages. My co-worker Jane Doe, who's also a close friend, can testify about the pain I suffered, and my emotional distress over being injured and unable to work. Finally, I spent $1,850 to repair my car, and I've attached a repair bill from the car dealership. In total, I'm asking for damages of $8,500, plus my $60 filing fee and $40 service of process fee."

Vacating a Default Judgment

Sometimes, a defendant who's been defaulted will file a motion asking the court to vacate the judgment. To have any chance of success, they'll need to satisfy the judge that they didn't answer or failed to appear in court due to some good cause or excusable neglect. What kinds of excuses might qualify? Here are a few examples.

No Service of Process

When the defendant wasn't served and had no knowledge of the case, it's not fair to expect them to appear and defend. If service was accomplished by certified or registered mail, the defendant might claim that someone else signed for the mailing, then didn't give them the paperwork. The same can happen when a process server leaves the documents with an adult other than the defendant. An affidavit from the person who signed, backing up the defendant's story, will go a long way toward convincing the judge that the defendant isn't to blame.

Sickness, Disability, or Family Emergency

Everyone gets sick from time-to-time, and family emergencies are an expected, if unfortunate, part of life. Or maybe the defendant suffers from a physical, emotional, or other legal disability. The defendant will be expected to explain why they weren't able to call the court clerk, file a request for postponement, or have someone do so on their behalf. As long as the court believes the defendant acted in good faith and not to dodge or needlessly delay the proceedings, this excuse might convince the court.

Ignorance of the Law or Procedures

Occasionally, a defendant will claim they didn't know they needed to respond to the lawsuit or appear in court. Because the summons and (especially in small claims court) other explanatory paperwork clearly spells out the defendant's duties, persuading the judge to grant leniency for reasons like this will be a tough sell. It's usually the last hope of a desperate defendant.

Arguing the Motion to Vacate

In most cases, the judge will schedule a hearing on the defendant's motion to vacate. At that hearing, each side gets a chance to argue their position.

Plaintiff's Arguments

The plaintiff likely will emphasize that they played by the rules and (in small claims court) showed up on the original hearing date. The defendant, by contrast, didn't bother to answer or appear, and never asked for a postponement.

If the plaintiff had witnesses ready to testify at the hearing, and if coming to court a second time poses a hardship, the plaintiff should say so. Written statements from the witnesses can help to bolster this claim. The plaintiff should emphasize that the default resulted, not from the plaintiff's wrongdoing, but from the defendant's lack of diligence or from circumstances beyond the plaintiff's control.

Defendant's Arguments

The defendant's presentation will focus on the arguments in their motion to vacate the default judgment. The key to success, in each case, is persuading the judge that their failure to answer or appear resulted not from any malicious or reckless disregard of the proceedings, but from a good faith error or innocent neglect.

When the Court Vacates the Default Judgment

When the judge grants the defendant's motion to vacate, then what happens next depends on the court where the case is pending.

In small claims court:

• If all parties are present and agree, the judge might hear the case right away, without rescheduling it.
• If the one or both parties aren't ready to immediately proceed or they ask for a delay, the judge will probably reschedule the trial. The clerk will mail a notice of the new trial date to the parties.

In regular court, once a default is vacated, the case simply picks up where it left off.

Post Default-Judgment Appeal

For starters, note that a plaintiff isn't allowed to appeal the denial of a default judgment. The case simply proceeds to conclusion, and the final outcome can be appealed if an appeal is allowed by law. But even on post-judgment appeal, the trial court's refusal to grant a default isn't an issue the appeals court will consider.

A defendant who's defaulted in regular court can appeal, but more often than not, they're throwing good money after bad. They'll have to overcome a complete record, showing why the default was granted and not vacated. An appeals court will give the trial judge the benefit of the doubt, and will deny the appeal absent a showing that the lower court abused its discretion.

Most states allow some kind of appeal from small claims judgments, but there might be special rules in default cases. When an appeal is possible, the reviewing court will use the same "abuse of discretion" standard discussed above.

Next Steps

When the defendant doesn't answer your lawsuit or show up in court as required, the path to a default judgment is usually straightforward. Be prepared with evidence to support the allegations in your complaint, and come to court with strong proof of your injuries and damages.

The burden switches to the defendant on a motion to vacate a default judgment. Keys to success are convincing the court that you acted in good faith and moved diligently to have the judgment set aside as soon as you learned of it. Because courts strongly prefer on-the-merits case resolutions, you stand a decent chance of success when the court believes you're taking the case seriously.

Regardless of which side you're on, it might make sense to buy an hour or two of lawyer time to plan your strategy, organize your arguments and evidence, and prepare your presentation to the court. That's especially true when you're not sure what you need to prove, or how to go about proving it. A modest investment in legal guidance can end up paying dividends in court.