Can you file a motion for default in state court if your opponent sends an ORCP 69 letter after the court has closed on the 30th day after service?
Surprisingly, there is no clear answer to this question. “Day” is not defined in Oregon law for purposes of the timing of default letters. By contrast, “banking day” is defined by ORS 74.1040(c) as “that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions.” Several other jurisdictions have noted that the term is ambiguous in this context, and requires interpretation. See, Naugle v. Beech Grove City Schs., 864 N.E.2d 1058, 1068 (Ind.2007); In re Estate of Stover, 178 Wn App 550, 582-583, 315 P3d 579 (2013), rev. den. 180 Wn2d 1005 (2014).
Finding the answer in Oregon involves looking at the service rules in ORCP 7C, local rules about courthouse hours, and ORCP 69 default rules.
1. Time for Response After Service
ORCP 7C(2) provides:
“Time for response. If the summons is served by any manner other than publication, the defendant shall appear and defend within 30 days from the date of service.”
If the defendant was served by personal service, there is no extra time for mailing. But this rule does not define at what hour the “30 days” ends.
2. Court Day
In Multnomah County, Supplemental Local Rule (SLR) 1.151 provides:
“The court is open for the conduct of business each judicial day from 8:00 am to 5:00 pm, and, in addition, judicial proceedings may be held at other times and on other days when required by the court for the conduct of its business and upon notice to the parties required to appear.”
Fed R Civ P 6(a)(4) provides that unless a different time is set by a statute, local rule, or court order:
‘the last day ends:
(A) for electronic filing, at midnight in the court’s time zone; and
(B) for filing by other means, when the clerk’s office is scheduled to close.”
But as our local trial court has a rule about hours, unless and until that changes due to the new electronic filing system, the end of the court day is at 5:00 p.m. unless otherwise set out.
3. Default Rules
ORCP 69 A provides:
“When a party against whom a judgment for affirmative relief is sought has been served with summons pursuant to Rule 7 or is otherwise subject to the jurisdiction of the court and has failed to plead or otherwise defend as provided in these rules, and these facts are made to appear by affidavit or otherwise, the clerk or court shall order the default of that party.”
In Morrow Co. Sch. Dist. v. Oreg. Land and Water Co., 78 Or.App. 296, 300, 716 P.2d 766 (1986), the court held that the ORCP 69 A requirement that a defendant “plead or otherwise defend” means that “the defendant must either submit a pleading or a motion directed at the sufficiency of the complaint.” The court also noted:
“ORCP 69 is a combination of former ORS 18.080 ( repealed by Or.Laws 1981, ch. 898 § 53), and FRCP 55. The relevant portions of ORCP 69 are, with minor modifications, identical to the comparable provisions of the federal rule. Accordingly, federal authorities may be persuasive in construing ORCP 69.” Id. at 300, n. 3. (citations omitted).
FRCP 55(a) provides:
“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”
Fed.R.Civ.P. 55(b)(2) provides in part:
“If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application.”
Some federal courts have ruled that judgments by default are a drastic remedy and should be resorted to only in extreme situations. E. F. Hutton & Company v. Moffatt, 460 F.2d 284, 285 (5th Cir. 1972). Others note that the appearance required by the rule has been broadly defined, and not limited to a formal court appearance. Charlton L. Davis & Co., P. C. v. Fedder Data Center, Inc., 556 F.2d 308, 309 (C.A.Ga. 1977), citing to: H. F. Livermore Corp. v. Aktiengesellschaft Gebruder L., 432 F.2d 689, 691 (1970) (letters and phone calls); United States v. One 1966 Chevrolet Pickup Truck, 56 F.R.D. 459 (E.D.Tex.1972) (claim and cost bond); Dalminter, Inc. v. Jessie Edwards, Inc., 27 F.R.D. 491 (S.D.Tex.1961) (letter); 6 Moore’s Federal Practice ¶ 55.05(3) (1976); Annot., 27 A.L.R.Fed. 620 (1976). In Charlton L. Davis & Co., P. C., plaintiff knew defendant “had a clear purpose to defend the suit. The knowledge came from a phone call and a letter ‘responsive to plaintiff’s formal Court action.’” Id. The trial court’s default judgment was vacated and the issue was remanded, primarily because the plaintiff’s attorney did not give notice to defendant of the impending default judgment when he knew the defendant was represented by counsel.
If the courthouse closes at 5:00 p.m, and “plead or otherwise defend” means filing a motion or answer with the court, then 5:00 p.m. is the deadline on the 30th day after personal service of the summons and complaint. Receiving defendant’s notice of intent to appear after that time should not preclude the granting of a motion for default. As plaintiff’s counsel, you should give notice to the defendant’s attorney after that attorney has made his or her representation known; put the defendant’s attorney’s name on the certificate of service for your motion for default and other pleadings required by ORCP 7C. For a helpful explanation of the necessary process, and sample forms, see 1 Oregon Civil Pleading and Practice, Chapter 20 (OSB Legal Pubs 2012).