RAB Performance Recoveries v. Swanson, No. S2171-09 Cnsc (Toor, J., May 12, 2010)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] STATE OF VERMONT CHITTENDEN COUNTY
│ RAB PERFORMANCE RECOVERIES │ Plaintiff │ │ SUPERIOR COURT v. │ Docket No. S2171-09 CnSc │ MELISSA L. SWANSON │ Defendant │ │
ORDER TO SHOW CAUSE
This small claims case was set for hearing before the undersigned on May 4,
2010. Plaintiff’s counsel appeared without any witnesses. Defendant did not appear and
no counsel appeared for him. Plaintiff requested that the court enter a default judgment
for plaintiff at the time of trial based upon defendant’s failure to appear, saying that is the
usual practice in small claims court. The court indicated that it would consider the request
and issue a written decision.
The court views this case as raising two issues. One is whether a default judgment
is appropriate for a defendant’s failure to appear at trial. The other is whether dismissal
for failure to prosecute is appropriate for a plaintiff’s failure to appear ready to proceed to
trial.
1. The Request for Default
The small claims rules say nothing about what happens if a defendant does not
appear at trial. However, they refer “by analogy” to the applicable civil rules. V.R.S.C.P.
13. Rule 55 of the civil rules states that where a defendant has answered but fails to
appear at trial, as in this case, “the plaintiff may either move for default or proceed to
trial.” V.R.C.P. 55(b) (6). The automatic, immediate default requested by Plaintiff, however, is not what is
foreseen by the rule. Instead, it must be read in concert with subdivision (b)(4), which
requires that if a defendant has filed an answer or otherwise appeared prior to the trial
date, no default judgment may be entered except “after hearing, upon at least three days’
written notice served by the clerk.” V.R.C.P. 55 (b) (4). Alternatively, the plaintiff must
proceed to trial and present its evidence.
Prior to the amendment of Rule 55 in 1988, the only option when a defendant had
answered but failed to appear at trial was for the plaintiff to present its evidence:
Although there are rulings to the contrary, we agree with those authorities that have concluded that where the defendant has not appeared for trial, but has otherwise appeared and defended the action, an entry of a default judgment is improper. The plaintiff must present evidence and thereby prove his or her case, just as if defendant had been present at trial.
The trial court in this case erred when it did not proceed to take testimony; the unsworn statement of plaintiff's attorney cannot support the judgment rendered.
Reuther v. Gang, 146 Vt. 540, 542 (1984). See also, Archawski v. Hanioti, 239 F. 2d 806,
808 (2d Cir. 1956) (defendant’s failure to appear was not a default where he had disputed
facts in answer, and plaintiffs “were accordingly put to their proof”); Coulas v. Smith,
395 P. 2d 527, 530 (Az. 1964) (“if the defendant fails to appear at the trial a judgment on
the merits may be entered against him on proper proof”); W.H.H. Trice & Co., v. Faris,
829 A. 2d 189, 193 (D.C. 2003) (where defendant had answered but failed to appear for
trial, proper course was to proceed with the trial, “requiring the plaintiff, Faris, to prove
liability as well as damages”); Reese v. Proppe, 443 N.E.2d 992, 997 (Ohio App. 1981)
(where defendant has answered, it is error “to obviate the responsibility of a plaintiff to
prove his or her case”); 10A Wright, Miller & and Kane, Federal Practice & Procedure,
2 Civil 3d § 2682 (West, Westlaw though 2010 update) (“A defendant who has participated
throughout the pretrial process and has filed a responsive pleading, placing the case at
issue, has not conceded liability. Unlike a default, if the trial proceeds in the absence of
the defendant, the court should require plaintiff to present evidence supporting liability,
as well as damages, and a judgment should be entered in plaintiff’s favor only if the
evidence supports it.”).
The Court in Reuther noted in dicta that even if default had been an option, the
proper procedure for default had not been followed because the court had not “provide[d]
[Defendant] with the statutorily required three-days’ notice before it entered a default
judgment against her.” Reuther, 146 Vt. at 541, 542.
In 1988, Rule 55 was amended to respond to Reuther by permitting the option of a
default judgment when a defendant fails to appear for trial. V.R.C.P. 55, Reporter’s Notes
–1988 Amendment, pp. 290-91. However, that does not mean that default may be entered
at the time of trial as plaintiff here requested. The Notes clarify that when a defendant has
previously appeared (e.g., by filing an answer) but fails to appear at trial, “there must be a
separate hearing on the request for default judgment. The hearing cannot be held until the
clerk has provided the defendant with three days’ written notice.” Id. See also, Housing
Foundation v. Beagle, No. 2007-474, 2008 WL 3976570, at *2 (Vt. Aug. Term 2008)
(mem.) (“The rule was amended to clarify that, in all cases where the defendant has
appeared, the court must provide notice and a hearing prior to default.”).
The Notes go on to explain that the only other option is to proceed with the trial in
the defendant’s absence:
Given that a trial has been scheduled and that the defendant either has not requested a continuance or has been denied a
3 continuance, the plaintiff generally must spend the time and money to have present all the necessary lay and expert witnesses, sometimes under subpoena. No sound reason exists for, in effect, granting the defendant a continuance simply on the ground that the defendant has not appeared. Instead, the plaintiff may proceed forward with the trial.
Reporter’s Notes – 1988 Amendment, p. 291.
Thus, the options when a defendant fails to appear at trial are to take up the
plaintiff’s motion for default and schedule yet another hearing, at which presumably the
witnesses must again appear, or take the evidence at the scheduled trial time. Wool &
Murdoch v. Devost, 152 Vt. 433, 435 (1989) makes clear that the second hearing
provides defendant “the opportunity to avoid the default and contest on the merits.”
(emphasis added). Thus, a plaintiff is clearly expected to have witnesses ready to present
the merits of the case at both hearings. This is apparently why the Reporters Note
suggests that it is an easier choice for a plaintiff to proceed to trial initially -- so its
witnesses do not have to come twice.
In sum, the two options in this case on May 4 were for plaintiff to proceed with its
evidence as scheduled, or to schedule a future hearing on the oral motion for a default
judgment. The third choice requested by plaintiff – an immediate default judgment –was
not an option.
2. The Plaintiff’s Unreadiness for Trial
The discussion above, however, does not address the entire situation in this case.
Not only was the defendant not present and ready to proceed, but the plaintiff was equally
unready to proceed. Although plaintiff’s counsel appeared, he came without witnesses
Free access — add to your briefcase to read the full text and ask questions with AI
RAB Performance Recoveries v. Swanson, No. S2171-09 Cnsc (Toor, J., May 12, 2010)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] STATE OF VERMONT CHITTENDEN COUNTY
│ RAB PERFORMANCE RECOVERIES │ Plaintiff │ │ SUPERIOR COURT v. │ Docket No. S2171-09 CnSc │ MELISSA L. SWANSON │ Defendant │ │
ORDER TO SHOW CAUSE
This small claims case was set for hearing before the undersigned on May 4,
2010. Plaintiff’s counsel appeared without any witnesses. Defendant did not appear and
no counsel appeared for him. Plaintiff requested that the court enter a default judgment
for plaintiff at the time of trial based upon defendant’s failure to appear, saying that is the
usual practice in small claims court. The court indicated that it would consider the request
and issue a written decision.
The court views this case as raising two issues. One is whether a default judgment
is appropriate for a defendant’s failure to appear at trial. The other is whether dismissal
for failure to prosecute is appropriate for a plaintiff’s failure to appear ready to proceed to
trial.
1. The Request for Default
The small claims rules say nothing about what happens if a defendant does not
appear at trial. However, they refer “by analogy” to the applicable civil rules. V.R.S.C.P.
13. Rule 55 of the civil rules states that where a defendant has answered but fails to
appear at trial, as in this case, “the plaintiff may either move for default or proceed to
trial.” V.R.C.P. 55(b) (6). The automatic, immediate default requested by Plaintiff, however, is not what is
foreseen by the rule. Instead, it must be read in concert with subdivision (b)(4), which
requires that if a defendant has filed an answer or otherwise appeared prior to the trial
date, no default judgment may be entered except “after hearing, upon at least three days’
written notice served by the clerk.” V.R.C.P. 55 (b) (4). Alternatively, the plaintiff must
proceed to trial and present its evidence.
Prior to the amendment of Rule 55 in 1988, the only option when a defendant had
answered but failed to appear at trial was for the plaintiff to present its evidence:
Although there are rulings to the contrary, we agree with those authorities that have concluded that where the defendant has not appeared for trial, but has otherwise appeared and defended the action, an entry of a default judgment is improper. The plaintiff must present evidence and thereby prove his or her case, just as if defendant had been present at trial.
The trial court in this case erred when it did not proceed to take testimony; the unsworn statement of plaintiff's attorney cannot support the judgment rendered.
Reuther v. Gang, 146 Vt. 540, 542 (1984). See also, Archawski v. Hanioti, 239 F. 2d 806,
808 (2d Cir. 1956) (defendant’s failure to appear was not a default where he had disputed
facts in answer, and plaintiffs “were accordingly put to their proof”); Coulas v. Smith,
395 P. 2d 527, 530 (Az. 1964) (“if the defendant fails to appear at the trial a judgment on
the merits may be entered against him on proper proof”); W.H.H. Trice & Co., v. Faris,
829 A. 2d 189, 193 (D.C. 2003) (where defendant had answered but failed to appear for
trial, proper course was to proceed with the trial, “requiring the plaintiff, Faris, to prove
liability as well as damages”); Reese v. Proppe, 443 N.E.2d 992, 997 (Ohio App. 1981)
(where defendant has answered, it is error “to obviate the responsibility of a plaintiff to
prove his or her case”); 10A Wright, Miller & and Kane, Federal Practice & Procedure,
2 Civil 3d § 2682 (West, Westlaw though 2010 update) (“A defendant who has participated
throughout the pretrial process and has filed a responsive pleading, placing the case at
issue, has not conceded liability. Unlike a default, if the trial proceeds in the absence of
the defendant, the court should require plaintiff to present evidence supporting liability,
as well as damages, and a judgment should be entered in plaintiff’s favor only if the
evidence supports it.”).
The Court in Reuther noted in dicta that even if default had been an option, the
proper procedure for default had not been followed because the court had not “provide[d]
[Defendant] with the statutorily required three-days’ notice before it entered a default
judgment against her.” Reuther, 146 Vt. at 541, 542.
In 1988, Rule 55 was amended to respond to Reuther by permitting the option of a
default judgment when a defendant fails to appear for trial. V.R.C.P. 55, Reporter’s Notes
–1988 Amendment, pp. 290-91. However, that does not mean that default may be entered
at the time of trial as plaintiff here requested. The Notes clarify that when a defendant has
previously appeared (e.g., by filing an answer) but fails to appear at trial, “there must be a
separate hearing on the request for default judgment. The hearing cannot be held until the
clerk has provided the defendant with three days’ written notice.” Id. See also, Housing
Foundation v. Beagle, No. 2007-474, 2008 WL 3976570, at *2 (Vt. Aug. Term 2008)
(mem.) (“The rule was amended to clarify that, in all cases where the defendant has
appeared, the court must provide notice and a hearing prior to default.”).
The Notes go on to explain that the only other option is to proceed with the trial in
the defendant’s absence:
Given that a trial has been scheduled and that the defendant either has not requested a continuance or has been denied a
3 continuance, the plaintiff generally must spend the time and money to have present all the necessary lay and expert witnesses, sometimes under subpoena. No sound reason exists for, in effect, granting the defendant a continuance simply on the ground that the defendant has not appeared. Instead, the plaintiff may proceed forward with the trial.
Reporter’s Notes – 1988 Amendment, p. 291.
Thus, the options when a defendant fails to appear at trial are to take up the
plaintiff’s motion for default and schedule yet another hearing, at which presumably the
witnesses must again appear, or take the evidence at the scheduled trial time. Wool &
Murdoch v. Devost, 152 Vt. 433, 435 (1989) makes clear that the second hearing
provides defendant “the opportunity to avoid the default and contest on the merits.”
(emphasis added). Thus, a plaintiff is clearly expected to have witnesses ready to present
the merits of the case at both hearings. This is apparently why the Reporters Note
suggests that it is an easier choice for a plaintiff to proceed to trial initially -- so its
witnesses do not have to come twice.
In sum, the two options in this case on May 4 were for plaintiff to proceed with its
evidence as scheduled, or to schedule a future hearing on the oral motion for a default
judgment. The third choice requested by plaintiff – an immediate default judgment –was
not an option.
2. The Plaintiff’s Unreadiness for Trial
The discussion above, however, does not address the entire situation in this case.
Not only was the defendant not present and ready to proceed, but the plaintiff was equally
unready to proceed. Although plaintiff’s counsel appeared, he came without witnesses
and thus unprepared to present any evidence. The question, then, is whether plaintiff is
entitled to request even a default hearing. If so, this means that both parties may come to
4 court unprepared for scheduled trials and gamble on whether the other side will show up.
If plaintiff is not ready with witnesses at the appointed trial time, he may then ask the
court for yet another hearing at which to present his evidence, using more court time in
an already overburdened court system merely because he chose to delay his preparation
for trial.
In essence, both parties here have failed to comply with the court’s directive to
appear and be ready to proceed to trial. If defendant had appeared, plaintiff would have
had no way to establish its case. Although, as counsel for plaintiff pointed out, plaintiff’s
counsel could call the defendant as a witness, the defendant may offer nothing helpful to
plaintiff’s case, and even if useful on some issues is not in a position to testify to the
exact amount due. In fact, in this case, defendant’s answer expressly contested the
amount due. More importantly, however, since the defendant did not appear, plaintiff
had no way of proving its case at all. It was therefore entirely unprepared to proceed to
trial in the absence of defendant.
Trials are set for the purpose of bringing a case to conclusion, not as optional
events that parties may decide to be prepared for or not as they choose. It seems
indisputable that if a plaintiff without good cause utterly fails to appear (meaning no
party and no attorney), dismissal with prejudice is appropriate. “Judges must be firm and
create the expectation that a case will go forward on the specific day that it is assigned. In
order to dispose of our cases in a fair, timely, and efficient manner, everyone involved
must be present on time, prepared, and ready to go forward.” Gionfrido v. Wharf Realty,
193 Conn. 28, 33-4 (Conn. 1984) (citation omitted) (noting that it would “do a disservice
5 to the great majority of attorneys, who are conscientious, and to the litigants of this state”
not to affirm trial court’s dismissal based on party’s failure to appear at trial).
The question here is whether sending an attorney alone, without any evidence to
present, can avoid that result. As the court in Reese noted, courts must be mindful of “the
essential nature of burdens of proof in our system for dispute resolution, and … any order
upsetting these burdens of proof is inordinately drastic…” 443 N.E.2d at 997. If
plaintiff’s counsel appears without any witnesses to present evidence, in direct disregard
of the fact that the case has been scheduled for the presentation of evidence, the court
views this an absence of proof to support the plaintiff’s case. “An action may be
dismissed under … Rule 41(b) if the plaintiff, without offering some explanation that is
satisfactory to the court, is not ready to present his or her case at trial.” 9 Wright, Miller
& Kane, Federal Practice & Procedure, 3d ed. § 2370 (West, Westlaw through 2010
update). “Where a plaintiff does not appear at the trial date or, as in this case, is
inexcusably unprepared to prosecute the case, Rule 41(b) dismissal is particularly
appropriate.” Knoll v. American Telephone & Telegraph Co., 176 F. 3d 359, 364 (6th Cir.
1999). This “constitutes the epitome of ‘failure to prosecute.’” Id. As the Second Circuit
has said, “[i]t is beyond dispute under our precedent that a district court may dismiss a
case under Rule 41(b) when the plaintiff refuses to go forward with a properly scheduled
trial.” Lewis v. Rawson, 564 F.3d 569, 580 (2d Cir. 2009) (internal quotation omitted).
See also, Moffit v. Illinois State Board of Education, 236 F. 3d 868, 873 (7th Cir. 2001)
(“One naturally expects the plaintiff to be present and ready to put on her case when the
day of trial arrives. A litigant’s day in court is the culmination of a lawsuit, and trial
dates--particularly civil trial dates--are an increasingly precious commodity in our
6 nation’s courts.”). The Plaintiff having the burden of going forward, the only appropriate
result in such a situation is dismissal with prejudice. 1
Order
Plaintiff’s motion for a default judgment against defendant is denied. Although
the court “may dismiss a complaint for failure to prosecute even without affording notice
of its intention to do so,” Link, 370 U.S. at 633, the court will permit plaintiff to be heard
before ruling. The case will be dismissed with prejudice unless plaintiff shows good
cause within ten days why it should not be dismissed.
Dated at Burlington this day of May, 2010.
_____________________________ Helen M. Toor Superior Court Judge
1 It is also clear that Rule 41 does not prohibit a court from sua sponte dismissal in such a situation, despite the language of the rule suggesting that the motion must be made by the defendant. Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 (1962) (“Neither the permissive language of the Rule--which merely authorizes a motion by the defendant--nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”); Theilmann v. Rutland Hospital, 455 F. 2d 853, 855 (2d Cir. 1972) (“the authority to invoke [dismissal] for lack of prosecution, both on defendant’s motion and sua sponte, is an inherent” power of the court).