Better Late Than Never: Georgia Supreme Court Issues Favorable Ruling on Defaults for Defendants – by Matthew Dowling

The Georgia Supreme Court just gave defendants in Georgia a big victory as related to rulings on Default for untimely answer. The former rule put a very heavy burden on the defendant which was quite difficult to overcome. The new rule makes the burden much less onerous, thereby affording a defendant a much more reasonable opportunity to open the default and defend the case on the merits.

In Georgia, after service of a complaint (including a third party complaint), the defendant typically has 30 days to respond. If a defendant fails to respond within those 30 days, the case is deemed to be “in default.” By statute, a defendant receives a grace period of an additional 15 days to automatically “open default,” without admitting to the plaintiff’s allegations, under O.C.G.A. § 9-11-55(a).

If a defendant fails to answer after 45 days of service, then a defendant may still be able to “open default.” But the defendant must satisfy specific statutory requirements and preconditions under O.C.G.A. § 9-11-55(b). Along with paying court costs, filing an answer under oath, and stating a readiness to proceed immediately to trial, a defendant must also explain the reason for the late answer, by proving providential cause, excusable neglect, or a “proper case.” The old rule made it very difficult for the defendant to prove a “proper case” which kept many defendants in default.  The Georgia Supreme Court changed the “proper case” standard in Bowen v. Savoy, 308 Ga. 204 (2020).

Before the Court issued its decision in Bowen, establishing a “proper case” to open default required the defendant to show not only that justice would be served by deciding the case based on the facts, but also that there was a reasonable explanation for the untimely response. However, the decision in the Bowen case changed the consequences of a late answer significantly. The Court held that opening default under the “proper case” standard does not require defendants to provide a reasonable explanation for their failure to timely respond.

So now, even after 45 days have passed, litigants do not need an excuse to open default and proceed to the merits, unless the defendant’s failure to answer was due to willful or gross negligence, or the plaintiff will be prejudiced. Defendants are beginning to rely on Bowen in motions to open default and we are aware of multiple successful outcomes. Once a case is in default, acting promptly improves the likelihood of prevailing on proper case grounds. While this case removes a barrier for defendants, opening default after the 45-day mark is inevitably fact-intensive and does not mean a bad outcome is impossible. It goes without saying to avoid default at all costs, but, Bowen v. Savoy provides strong support for opening default when a mistake happens.