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, 

, 542 (1984). See also, Archawski v. Hanioti, 

,

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,

, 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,

, 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, 

, 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.” 

, 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.” 

Housing

Foundation v. Beagle, No. 2007-474, 

, 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, 

, 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,

, 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 

. 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., 

, 364 (6th Cir.

1999). This “constitutes the epitome of ‘failure to prosecute.’” 

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, 

, 580 (2d Cir. 2009) (internal quotation omitted).

See also, Moffit v. Illinois State Board of Education, 

, 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,” 

, 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., 

, 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, 

, 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).


                                                       7