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Civil Procedure Rule 55(a)(3)(B)—Application for Default Need Put Corporation Attorney On Notice

Posted by Ted A. Schmidt | Apr 06, 2021 | 0 Comments

Civil Procedure Rule 55(a)(3)(B)—Application for Default Need Put Corporation Attorney On Notice

Maclean v. Newgioco Group, Inc., No. 1 CA-CV 20-0164 (App. Div. I, March 16, 2021) (J. Portley) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/CV%2020-0164%20MacLean%20OP.pdf

APPLICATION FOR DEFAULT JUDGMENT MUST IDENTIFY AND GIVE NOTICE TO ANY ATTORNEY KNOWN TO REPRESENT PARTY IN DEFAULT

Plaintiff sued the defendant for breach of her employment contract and served the defendant's statutory agent. When a timely appearance did not occur plaintiff filed an application for entry of default which she mailed to the statutory agent. Subsequently, with still no response from the defendant, plaintiff filed a motion for entry of a default judgment, also mailed to the statutory agent.  A default judgment for $1,050,204, plus costs and interest was entered. The defendant moved to set aside the default judgment 3 weeks later. The trial court having also been presented meritorious defenses, granted the motion to set aside for noncompliance with Ariz R. Civ. Pro. 55(a)(2)(D)—failure to provide notice to a company's attorney.  The Arizona Court of Appeals affirmed.

Rule 55(a)(2),(b) requires that an application for default must identify “any  attorney  known to represent the party claimed to be in default in the action in which default is sought or in a related matter.”Rule55(a)(2)(D). Moreover, Rule55(a)(3)(B)also requires a plaintiff to mail a copy of the notice of the default application to an attorney the plaintiff knows represents the defendant in the matter or in a related matter.”  Here plaintiff failed to give notice to the attorneys listed in the very employment contract she was suing on. Notice to the statutory agent only when plaintiff knew of specific attorneys representing her employer on the very matter at issue in the case violates Rule 55.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".

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