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Winc, Part 1: What happens if a company blows a federal court filing deadline?

Comments by Daniel A. Muller

Partner in Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci, Danville, CA

Normally, here in California, if a defendant doesn’t timely file a response (answer or demurrer) to the complaint, the plaintiff can seek to have the Court enter/issue a default judgment against the defendant.

However, doing so is most common when the defendant has simply never made a move, or said a peep. They’re essentially AWOL.  (And sometimes the reason the defendant never responded is because the plaintiff’s service of process (of the summons/complaint) on defendant wasn’t sufficient/proper, so the defendant never really knew it was even being sued in the first place. In such cases, a default judgment can usually be “unwound” via motion for relief from, or to vacate, the default judgment, on grounds such as excusable neglect (of defendant’s counsel), or improper service (by plaintiff), etc.)

By contrast, if a defendant has seemingly already either appeared, or specially appeared, in the case – e.g., by filing a motion seeking to extend the deadline to file its response to the complaint (as seems the case here, for Winc, Inc.), I tend to think it’s unlikely the plaintiff will seriously pursue any default (at least not just because the response is a few days late). Rather, since this is NOT a case of “AWOL defendant”, I’d think the parties would try to work things out – to get the defendant to file response at some point (even if late), rather than chase a default judgment.

For similar reasons, I tend to doubt the Court/Judge would really want to entertain any default request, e.g., if it seems the defendant’s delay in responding can be resolved/cured, or is due to some “settlement negotiations” (which are encouraged by the Court).  For example, here it seems the government/plaintiff has worked out consent decrees, stipulated judgments, or similar settlements, with some of the other defendants. (I didn’t look closely, but it seems no defendants have answered yet, but either sought extensions, or entered into settlements?)  Thus, maybe the delay by is due to such/similar negotiations, too.

Only if the delays seem inexcusable, do I see a judge getting really unhappy, and either entertaining default requests by plaintiff, sanctioning the defendant for failing to timely respond, etc.

Bottom line, to me it seems just a hiccup if is tardy a day or two. Not anything earth-shattering, provocative, or surprising.