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Webinar - Navigating the Default Judgment & Beyond

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Webinar - Navigating the Default Judgment & Beyond Webinar - Navigating the Default Judgment & Beyond Michael T. Hensley, Esq. Bressler, Amery & Ross, PC (Florham Park) Willard C. Shih, Esq. Member, Supreme Court Civil Practice Committee Wilentz Goldman & Spitzer, PA (Woodbridge) Lauren Fenton-Valdivia, Esq. Bressler, Amery & Ross, PC (Florham Park) IWCIV000416 © 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. Thank you for logging in – the webinar will begin shortly. 1. All Attendee phone lines are muted. 2. Questions may be submitted Via Chat on the right hand side of your screen. Questions will be answered periodically during the presentation Note: Attendees with dial up connections will see a slower response. 3. See your messages here 1. Type your question here. 2. Send TO ACCESS SEMINAR MATERIALS, ATTENDANCE VERIFICATION AND CLE FORMS PLEASE GO TO: http://tcms.njsba.com/personifyebusiness/njicle/WebinarInformation.aspx PLEASE FAX OR E-MAIL YOUR ATTENDANCE VERIFICATION FORM TO NJ ICLE FAX: 732-249-1428 E-MAIL: [email protected] NAVIGATING THE DEFAULT JUDGMENT AND BEYOND NAVIGATING THE DEFAULT JUDGMENT AND BEYOND It’s not Watergate Spygate, or Bridgegate. Instead, it’s Tunnelgate. TUNNELGATE Jersey Flowers, a wholesaler of flowers in New Jersey, supplies its merchandise to many bodegas in the fictional State of Old York. Its open-air trucks run every morning from 5 am to 7 am through the Roosevelt Tunnel. Six months ago, the operators of the Roosevelt tunnel closed down all inbound lanes in the tunnel for a week between the hours of 5 am and noon. It was later discovered that they did so because they wished to appease the leaders of Old York, who were becoming increasingly upset that its businesses were being supplied by foreign companies, and to curry favor with Old York businesses like York Flowers. TUNNELGATE Jersey Flowers filed suit against the operators of the Roosevelt Tunnel, Old York, the Governor of Old York, York Flowers, and the owner of York Flowers. All answered the complaint except York Flowers. You received notice from the court that claims Against York Flowers will be dismissed for non-prosecution if no action is taken soon. What happens next? SECURING THE DEFAULT JUDGMENT When Is A Default Judgment Available? If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, the clerk shall enter a default on the docket as to such party.... N.J. Court Rule 4:43-1 • Failure to plead or otherwise defend, e.g., failure to answer. • Failure to provide discovery, e.g., answer stricken with prejudice When is a Default Judgment Not Available? “Otherwise defend as provided by these rules or court order.” N.J. Court Rule 4:43-1 Not “any” court order. “A nexus between the violation of rules and orders and an underlying failure to comply with the responsibilities of a litigant is central to the entry of a default based upon the failure to comply with an order.” “Thus, the rule's reference to a failure to ‘defend as provided by these rules or court order’ is fairly read to authorize default only when the rule or order in question concerns the party's obligation to defend.” New Jersey Div. of Youth and Family Svcs. v. M.G., 427 N.J. 154 (App. Div. 2012) How to Obtain a Default Judgment? Two-step process: Entry of Default Default Judgment How to Obtain Entry of Default? [T]he moving party shall make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. Rule 4:43-1 When to Obtain Entry of Default? The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default. Rule 4:43-1 Serving Entry of Default If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process. Rule 4:43-1 Serving Entry of Default Impact of a failure to serve: “a matter of fairness.” [N]either the rules nor any applicable case law impose a penalty for failure to provide such notice. Here, it appears that little if any prejudice…. Nonetheless, we are satisfied that failure to provide the notice required by the last sentence in R. 4:43-1 raises an issue that requires examination by the trial court of whether sufficient excusable neglect was established to permit relief from the judgment under R. 4:50-1(a). Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005) Converting Entry Of Default Into A Default Judgment Apply to the clerk of the court Conduct a proof hearing Application To Clerk Of The Court If the plaintiff's claim... is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant... Rule 4:43-2(a) Application To Clerk Of The Court Preferred approach Speed and efficiency Cost No opportunity to defend: If the application for entry of default judgment is made after the expiration of six months following the entry of default, notice thereof shall be given to the defendant by ordinary mail, and proof of service thereof shall accompany the application. Rule 4:43-2(a) Application To Clerk Of The Court Client affidavit – not attorney affidavit Form provided by the judiciary: http://www.judiciary.state.nj.us/prose/10914.pdf Submit form of judgment (not required) Proof Hearings [T]he party entitled to a judgment by default shall apply to the court therefor by notice of motion pursuant to R. 1:6, served on all parties to the action, including the defaulting defendant or the representative who appeared for the defaulting defendant. If, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant's representative, may conduct such proof hearings with or without a jury or take such proceedings as it deems appropriate. Proof of service of the notice of motion and notice of any proof hearing is required. Rule 4:43-2(b) Proof Hearings Issues to Consider: When? Consider multi-party cases. Who attends? Burden of proof. Judge or jury? Proof Hearings Burden of Proof – Damages? Since the plaintiff did not present adequate proofs at the default hearing, the matter was rescheduled and the plaintiff was directed to serve the defendant with a notice of the new hearing date. Clementi v. Clementi, N.J.Super. (Ch. Div. 2014) Proof Hearings Burden of Proof – Liability? Rule 4:43-2(b) grants a trial court the discretion to require proof of the quantum of damages as well as entitlement to relief, prior to entry of default judgment. EnviroFinance Group, LLC v. Environmental Barrier Co., LLC, 440 N.J. Super. 325 (App. Div. 2015) “[T]he trial court has the discretionary power to require proof of liability.” Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999) Proof Hearings “Where the trial court, undertakes to exercise such discretion, the court should ordinarily apply the prima facie standard to plaintiff's proofs, thus not weighing evidence or finding facts but only determining bare sufficiency.” Kolczycki v. City of East Orange, 317 N.J. Super. 505 (App. Div. 1999) DEFAULT JUDGMENT IN CIVIL VERSUS SPECIAL CIVIL Obtaining a Default Judgment in Civil versus Special Civil Civil Division Special Civil Part To obtain a default pursuant To obtain a default pursuant to R. 4:43-1, the proponent to R. 6:6-2, the proponent is must submit: not required to submit 1) A Request for Default; and anything (the Court enters default automatically after 2) Affidavit (with Proof of Service) the 35 day timeframe to respond to the Complaint has expired. Obtaining a Default Judgment in Civil versus Special Civil Civil Division Special Civil Part Default Judgment: Default Judgment: Entered by the Clerk: Only in Entered by the Clerk either cases where it is for a “sum where it is a judgment for money certain” where it is for a “sum certain” or Affidavit of Proof Must be Filed judgment for possession Where not for a “sum certain,” (landlord/tenant matters).
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