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08/09/93 SUZANNE P. IANNUCCI v. PAUL D. PEARLSTEIN

August 9, 1993

SUZANNE P. IANNUCCI, APPELLANT
v.
PAUL D. PEARLSTEIN, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Bruce S. Mencher, Trial Judge)

Before Rogers, Chief Judge, Sullivan, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERs, Chief Judge : This case involves a dispute between counsel and a client over attorneys fees. Appellant, Suzanne P. Iannucci, appeals the entry of judgment on the pleadings and a default judgment on the grounds that appellee, Paul D. Pearlstein, was not entitled to either a judgment on the pleadings since a valid answer had not been filed, or a default judgment since there is insufficient support in the record to justify the entry of a default judgment. Alternatively, she contends that even if a default judgment had been proper, the Judge erred in failing to hold a hearing on damages. Finally, appellant also contends that the Judge abused his discretion in denying her motion for reconsideration. Finding these contentions persuasive, we reverse.

I.

Appellee Pearlstein represented appellant in her divorce. The parties had entered into a written agreement on the payment of legal fees whereby Iannucci was to pay a $1,500 retainer fee and be billed $150 per hour for appellee's time. The agreement also provided for twelve percent interest on all amounts due more than forty-five days. Pearlstein's fees at the Conclusion of his representation totaled in excess of $40,000. After paying $20,000 to Pearlstein, Iannucci wrote to him on December 21, 1990, indicating that she could not afford to pay him the additional $20,000 that he claimed she owed, commenting that she thought that $20,000 was "high" for an uncontested divorce and that an additional $20,000 was "unrealistic."

On February 1, 1991, Pearlstein filed a complaint to collect on the debt of $21,535.50. On March 7, Iannucci, through her then attorney, S. Richard O'Day, filed an answer and counterclaim. Pearlstein moved on March 26 to strike the answer and counterclaim, citing various violations of the pleadings rules as well as the fact that O'Day was not a current member of the District of Columbia Bar. Pursuant to a praecipe dated March 29, 1991, Iannucci moved to replace O'Day with James L. O'Dea, III, Esquire. *fn1 On April 23, new counsel sent Pearlstein a "draft" motion to extend the time to respond to discovery requests and to file an amended answer. This motion was apparently never filed with the court. In the meantime, Pearlstein filed a motion to compel full and complete answers to outstanding discovery requests.

On April 26, 1991, the trial Judge granted Pearlstein's motion to strike Iannucci's answer and counterclaim. The Judge also ordered Iannucci's initial counsel, S. Richard O'Day, to pay for Pearlstein's fees and costs, and instructed that an amended answer be filed by May 20, 1991. A scheduling conference, which Iannucci's counsel did not attend, *fn2 was held on May 3, and a scheduling order was entered, placing the case on a fast track and indicating that the parties had selected mediation as the form of alternative dispute resolution. Mediation was to occur September 3 through October 3, 1991, with pretrial to follow thirty days thereafter. Although Iannucci's counsel did not file an opposition to the motion to compel, he did move on May 17 for an extension of time to respond to the interrogatories, noting that he had experienced medical emergencies which required hospitalization and that he had two lengthy court matters scheduled during the week after May 17.

By order dated May 21, 1991, the trial Judge granted Pearlstein's motion to compel discovery, instructing Iannucci to respond to discovery requests within fifteen days (i.e., June 8, 1991), and ordering Iannucci personally to pay $100 for Pearlstein's reasonable expenses and fees associated with his motion to compel. In a corresponding order issued the same day, the Judge granted Iannucci a fifteen-day extension for responding to the interrogatories, to June 8, past the May 20, 1991, deadline for the amended answer.

On June 7, 1991, Pearlstein filed a motion for judgment on the pleadings under Super. Ct. Civ. R. 55 (b)(2) on the grounds that Iannucci had failed to file an amended answer or otherwise respond by May 20 to the complaint and was therefore in default under Super. Ct. Civ. R. 12 (a). Three days later, Pearlstein received Iannucci's second answer and counterclaim. On June 17, Pearlstein moved to strike the second answer and counterclaim on the ground that it was untimely. Iannucci opposed the motion, and subsequently, on July 18, moved for a further extension of time. *fn3

On July 17, 1991, the trial Judge granted Pearlstein's motion to strike Iannucci's second answer and counterclaim. The Judge also granted Pearlstein's motion for judgment on the pleadings and granted a judgment of default against Iannucci in the amount of $21,535.50 plus seven percent interest. On August 2, 1991, Iannucci filed a motion for reconsideration, referring to counsel's illness at the time that the amended answer was due and the trial Judge's willingness to grant an extension to respond to interrogatories on that basis. While the motion was pending, Iannucci noted an appeal from the underlying order entering judgment. The Judge denied the motion for reconsideration on June 23, 1992, and Iannucci noted her appeal from this order as well.

II.

Under Super. Ct. Civ. R. 12 (c) a party may move for judgment on the pleadings "after the pleadings are closed." *fn4 Rule 12 (c)'s condition that the pleadings be closed requires that an answer have been filed, but in the instant case, Iannucci's first and second answers had both been stricken. Consequently, Pearlstein could not properly move for, and was not entitled to, judgment on the pleadings under Rule 12 (c). See Flora v. Home Fed. Sav. & Loan Ass'n, 685 F.2d 209 (7th Cir. 1982); Geltman v. Verity, 716 F. Supp. 491, 491-92 (D. Colo. 1989) ("A motion for judgment on the pleadings may not be filed before the answer"); Gray v. Rankin, 721 F. Supp. 115, 116 n.1 (S.D. Miss. 1989) ("entry of judgment on the pleadings is proper only after the pleadings have been closed, i.e., after an answer has been filed"); Poliquin v. Heckler, 597 F. Supp. 1004, 1005-06 (D. Me. 1984); 2A JAMES W. MOORE ET AL., MOORE's FEDERAL PRACTICE P 12.15 (2d ed. 1993); see also Goldkind v. Snider Bros., Inc., 467 A.2d 468, 472 (D.C. 1983) (court looks for guidance to federal decisions interpreting identical federal rule) (citations omitted); cf. Super. Ct. Civ. R. 7. Indeed, he concedes this on appeal, arguing instead that the judgment entered in his favor should be affirmed as a properly entered default judgment under Super. Ct. Civ. R. 55 (b)(2). While this relief was available for Pearlstein to seek, see 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1367, at 512-513 (2d ed. 1990), we conclude that he has not shown that he was entitled to receive it.

The trial Judge did not state any reasons for entering a default judgment. However, Iannucci's failure to file a valid answer was not a basis on which the Judge could properly conclude that she was in default under Rule 12 (a) and consequently, Pearlstein was not entitled to a default judgment under Rule 55 (b)(2). On this record, Iannucci cannot properly be viewed as having failed to enter an appearance. Instead, her failure to file a valid answer constituted a technical rather than an actual failure. See 6 MOORE ET AL., supra, P 55.05[2] ("Where defendant's failure to plead or otherwise defend is merely technical, or where the default is de minimis, the court should generally refuse to enter a default judgment") (footnotes omitted); see, e.g., Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980); Davis v. Parkhill-Goodloe Co., 302 F.2d 489, 495-96 (5th Cir. 1962).

Iannucci's counsel had received an extension of time in which to file a new answer, but he failed to meet the May 20, 1991, deadline. In the interim, counsel had been actively involved in the case. In addition to filing a praecipe to enter his appearance, counsel formally moved for and received an extension of time to file the answer. See 6 MOORE ET AL., (supra) , P 55.05[3] ("The filing of a praecipe or notice of appearance, a responsive pleading, . . . or a stipulation extending the time within which the defendant must file an answer would constitute an appearance within the meaning of Rule 55 (b)(2)) (footnotes omitted). Counsel had also assisted with preparation of Iannucci's answers to interrogatories and he had significant contact with appellee's attorney. See Muniz v. Vidal, 739 F.2d 699 (1st Cir. 1984) (hiring of counsel who prepared, but did not file, motion and who entered settlement negotiations constituted "appearance"); Charlton L. Davis & Co. v. Fedder Data Center, Inc., 556 F.2d 308 (5th Cir. 1977) (letter and phone calls from defense counsel to opposing counsel constituted appearance); H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 692 (D.C. Cir. 1970) (five-month period of settlement negotiations via phone and letter constituted appearance). Indeed, Iannucci satisfied even ...


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