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In litigating throughout the country over the last decade, I have found that courts and court clerks sometimes impose their own practices on litigants, practices not supported by, and sometimes directly in conflict with, relevant law, including the court’s own formal rules.  A new procedure recently adopted by the DC Superior Court clerk’s office is a good example—the procedure reduces the clerk’s workload, but it violates the law.

I am pursuing collection lawsuits in D.C. Superior Court on behalf of a client owed substantial sums by a number of individuals.  In the DC system, as in the federal system, if a defendant does not answer a complaint, something that often happens when there is no real dispute about liability on a debt, the court clerk is supposed to promptly enter a “default” against the defendant.  A default is essentially a notation to the file by the clerk that the defendant missed the deadline for responding to a complaint.  It is important (in both DC and federal practice) because, once a default is entered, a defendant cannot answer the complaint unless he or she shows a good reason for missing the deadline.  Furthermore, the entry of a default allows the plaintiff to obtain entry of an actual default judgment.  A default judgment is a final and enforceable determination by a court that a Defendant owes a specific amount of money.  (The distinction between a default and a default judgment is important, but confusing—many lawyers do not understand the difference.)But the DC Superior Court clerk has started a new procedure—instead of entering a default once a defendant misses his or her deadline to reply, either automatically or on a request from a plaintiff that a default be entered, the clerk’s office now says that it will only enter a default 30 days after the filing of an affidavit indicating that the complaint has been served upon the defendant.  The practical impact of this new policy is that it will stretch out the time frame for collecting undisputed debts.  In DC a defendant has twenty days to respond to the complaint against him or her.  The clock is supposed to begin running when a process server delivers a summons and a copy of the complaint to the defendant.  The process server must then file with the clerk an affidavit indicating that he or she has served the complaint on the defendant, a document that is often not filed for a week or two after service is made.  Under the new policy, for example, if a defendant is served, and the affidavit of service is not filed until ten days after service is made, no default will be entered against the defendant until at least forty days after service of process (thirty days after the affidavit is served), even though the law says that a plaintiff is entitled to entry of a default twenty days after service.

The new procedure is meant to reduce the workload on the clerk’s office.  That is an important objective.  But the procedure—which the clerk’s office is willing to talk about but which is not in writing anywhere—is inconsistent with the applicable District of Columbia Rules of Civil Procedure.  These Rules can be changed if procedures are followed, and maybe that should happen here, but the courts are not free to ignore the rules that do exist.  If the courts themselves do not follow the law, how can they expect others do so?