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Civil Practice – Default – Motion to Set Aside – Short Delay – Motion to Dismiss

Pitts v. Tart (Lawyers Weekly No. 012-175-17, 8 pp.) (Chris Dillon, J.) Appealed from Wilson County Superior Court (J. Carlton Cole, J.) N.C. App. Unpub.

Holding: Before filing an answer, defendants filed a partially successful motion to dismiss. After ruling on the motion, the trial court set a new deadline for filing an answer, which defendants missed by only 32 days, and they filed their answer and moved to set aside default the next business day after default was granted. Under these circumstances, the trial court abused its discretion when it denied defendants’ motion to set aside default.


In determining that defendants were not diligent in pursuing the matter, the trial court essentially penalized defendants for exercising their right under N.C. R. Civ. P. 12 to seek dismissal of the complaint before filing their answer. The trial court based its conclusion on the eight-month gap between the filing of the complaint and the time defendants filed their answer, rather than on the mere 32-day gap between the deadline and defendants’ service of the answer.

It appears that defendants were diligent. They apparently provided defense counsel with the information needed to file the answer since counsel faxed the answer to plaintiff’s lawyer the day defense counsel received notice of the entry of default.

It does not appear that plaintiff suffered any harm by virtue of the 32-day delay.

Finally, it is clear that the default would do an injustice to defendants by stripping them of their ability to defend against plaintiff’s claims.

In light of the general disfavor toward default, we find that the trial court abused its discretion in failing to set aside default, and we believe that justice will best be served by allowing this case to be tried on its merits.


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