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Home / Opinion Digests / Attorneys / Attorneys – Rule 11 Sanctions – Entry of Default – Represented Defendant – General Appearance – Service of Process

Attorneys – Rule 11 Sanctions – Entry of Default – Represented Defendant – General Appearance – Service of Process

Yammy’s Sauces, Inc. v. Packo Bottling, Inc. (Lawyers Weekly No. 012-088-16, 11 pp.) (Robert Hunter Jr., J.) Appealed from Pitt County Superior Court (Alma Hinton, J.) N.C. App. Unpub.

Holding: The trial court properly sanctioned the appellant-attorney who, despite numerous communications with defense counsel and despite the fact that time for filing an answer had not expired, moved for entry of default and a default judgment.

We affirm the trial court’s grant of defendant’s motion for sanctions under N.C. R. Civ. P. 11.

Background

Appellant filed a complaint on Nov. 24, 2014, and emailed the complaint to defense counsel the next day. The summons and complaint were delivered on Nov. 26, 2014, but defendant’s president was not present to receive the documents until Dec. 16, 2014. Therefore, defendant had until Jan. 19, 2015 to respond to the complaint.

Defendant served a discovery request on Nov. 26, 2014. Defense counsel emailed a request for information about service of process on Dec. 8, 2014, but appellant never responded.

Appellant moved for entry of default and for a default judgment on Dec. 30, 2014. Defense counsel warned appellant that, unless he withdrew his motion for default judgment and requested that entry of default be set aside, defendant would seek sanctions. Appellant did not comply.

Defendant moved to set aside entry of default, responded to appellant’s motion for default judgment, and moved for sanctions under Rule 11. Defendant also timely filed its answer.

The trial court granted defendant’s Rule 11 motion and awarded defendant $6,573.75 in attorneys’ fees.

Discussion

Even if defendant had made a general appearance by serving discovery requests on plaintiff, appellant failed to give defendant notice of his motion for entry of default. We cannot agree with appellant that entry of default ex parte was an appropriate litigation tactic.

Before judgment by default may be had on service by registered or certified mail … the serving party shall file an affidavit with the court showing proof of such service….” N.C. R. Civ. P. 4(j2)(2). Unless a defendant to be served waives service, service of summons in compliance with Rule 4 is required before a court may assert personal jurisdiction over that party or enter a default judgment against him.

Appellant knew defendant was represented by counsel and intended to defend itself. Proper service upon defendant was not obtained when appellant attempted to confirm service by emailing defense counsel. Appellant never responded to defendant’s request to explain how he attempted service, or to explain his evidence of attempted service.

Nevertheless, without giving notice to defense counsel, he moved for entry of default and for default judgment. Such a tactic is not well grounded in fact or warranted by existing law or a good faith argument. N.C. R. Civ. P. 11(a). Appellant’s efforts to keep defendant in the dark while moving for an entry of default caused unnecessary delay and needlessly increased the cost of this litigation.

Affirmed.


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