I can't find the answer to this one.
Defendant served with S&C. Kept asking for more time to file responsive pleadings. I gave the time.
About 60 days later, without asking me if I would stipulate, I received a Motion for Change of Venue. I had talked to the attorney for the defendant a couple of days before and he never asked me if I would agree or anything.
Is a Motion for Change of Venue a "responsive pleading?"
Please see the following for more information on your question.
he response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Arizona. Responses are based solely on Arizona law unless stated otherwise.
No, a motion to transfer within the same court system (by itself) does not constitute a general appearance and does not prevent entry of default. However, a motion to dismiss for forum non conveniens would constitute a general appearance and prevents entry of default.
The following documents, if filed with the court, constitute a general appearance which prevents the entry of default against that defendant:
Motion to Strike
Motion to Quash Service of Summons (not a general appearance, but prevents default)
Motion To Dismiss or Stay for Forum Non Conveniens
In contrast, the following documents, if filed with the court, do not constitute a general appearance. As such, the plaintiff may seek file a Request for Entry of Default against that defendant:
Ex Parte Application For Provisional Remedy
Motion to Transfer
Motion to Reclassify
Notice of Related Case
Motion For Summary Judgment
See California Code of Civil Procedure sections 418.10-418.11, 430.10-430.90, 435-437, and 437c.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended nor should be construed as legal advice for any particular case or client. This posting does not create any attorney-client relationship. For specific advice about your particular situation, please consult with your own attorney. This posting is not intended to constitute an advertisement nor a solicitation. Due to the high volume of phone calls and e-mails, not all phone calls or e-mails can be returned.
It may not stop you from requesting default, but if you go ahead and seek entry of default while a venue motion is pending, the court may reject it outright, and if they don't, will more than likely grant a motion to set aside the default. The better practice is to wait for the outcome of the venue motion.
You should probably discuss this with the defendant's attorney. The courts will not look kindly upon you if they feel you are playing games.
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