Missing the Deadline

Missing the Deadline

Rule 12(a) sets the time for serving a responsive pleading, unless a federal statute specifies another time, and every period in this chapter is a deadline in that sense.¹ A deadline matters because of what follows a miss. The clerk may enter a default against the party that missed it, and a default left standing can become a final judgment, entered without any trial of the claim. The rules for entering and setting aside a default belong to other units. This unit asks what a court looks at when a late party seeks to be excused, and how a party avoids the question altogether.

Tolson v. Hodge shows how fast a one-day lapse can travel from missed date to final judgment. The plaintiff's attorney received the counterclaim papers on April 5, one day after the time to respond under Rules 12(a) and 6(e) had expired. Someone promptly asked the defendant's attorney for an extension, but consent did not come, and the clerk entered a default judgment nisi the same day.² Three days later the plaintiff moved for leave to file a late response to the counterclaim, and the defendant applied for a final judgment by default. On May 24 the district court denied the plaintiff's motion, noting that he sought relief under Rule 55(c) together with Rule 60(b). On September 16 a final judgment by default dismissed his cause of action as an adjudication on the merits.³ One day late had cost the plaintiff his claim.

The opinion nonetheless treats the lapse as slight. It describes the seriousness of the neglect, if any, as not great, and it finds nothing in the record to suggest that the defendant suffered prejudice, other than giving up the default she thought she had earned. It also observes that the plaintiff's complaint had already alleged the defendant's decedent's negligence as the sole proximate cause of the accident, which, if established at trial, would be a complete defense to the counterclaim. The late answer would have repeated that defense more formally and added the affirmative defense of release.⁴

The reasoning points to three questions a party seeking relief must be ready to answer: how serious the neglect was, whether the opponent lost anything beyond the default itself, and whether the late pleading would present a defense worth hearing. A long delay that left the opponent worse off would weigh the other way. Even a sympathetic account carries no guarantee, because the district court in Tolson refused relief and the plaintiff had to carry his argument further.

The better course is to avoid the question by securing more time before the period runs. Extensions of time to answer are frequently granted, often with the consent of the opposing party.⁵ Timing decides whether the opponent has any reason to agree. Early in the period, agreeing costs the opponent a few weeks. Once the date has passed, the opponent holds a default and has every reason to refuse. The plaintiff in Tolson made his request after the time had run, and when consent was refused he was left asking the court to undo a default already entered.⁶

Because the consequence of a miss is the same whichever clock is running, the first task on an exam is to identify the clock. Each period in this chapter starts with a different event:

• An answer to the complaint is due 21 days after the defendant is served with the summons and complaint.⁷
• An answer after a timely waiver of service is due 60 days after the request for a waiver was sent, or 90 days after it was sent to a defendant outside any judicial district of the United States.⁸
• An answer to a counterclaim or crossclaim is due 21 days after the party is served with the pleading that states it.⁹
• A reply to an answer is due 21 days after the party is served with an order to reply, unless the order specifies a different time.¹⁰

The clocks for federal government defendants and for the period after a Rule 12 motion, covered earlier in this chapter, work the same way, each running from its own triggering event. A party who counts the right number of days from the wrong event still misses the date.