If a respondent does not retain an attorney or fails to file a notice of appearance after being served, does the clerk mail the notice of impending dismissal to the respondent?
Self-represented parties should receive the clerk's notice of dismissal. However, CR 41(b)(2) is silent regarding the clerk's requirement to serve self-represented litigants who have not made an appearance. Local courts may reach different conclusions. Legal authority does not exist to support a definitive position for all of the courts.
Should only the attorneys of record receive the clerk's notice of dismissal?
CR 41(b)(2)(A) requires the clerk to notify the attorneys of record by mail that the court will dismiss the case for want of prosecution. This appears to require notice only on attorneys of record. CR 41(b)(2)(A) is silent as to the clerk's requirement to serve self-represented parties. However, CR 41(b)(2)(B) states that "[a] party who does not receive the clerk's notice shall be entitled to reinstatement of the case, without cost, upon motion brought within a reasonable time after learning of the dismissal." CR 41(b)(2)(B) does not say "a party represented by an attorney." The court rule anticipates that the parties will receive notice. If a party does not have an attorney, then the notice would need to be sent directly to the party. CR 41(b)(2)(B) does not refer to "a petitioner" or "the petitioner." It refers to "a party" which includes the petitioner and the respondent. Therefore, self-represented parties should receive the clerk's notice of dismissal.
This conclusion is supported by a comparison to other court rules. CR 5(a) states that every pleading after the original complaint shall be served upon each of the parties. CR5(b)(1) authorizes service on a party's attorney, if the party has one, unless the court orders service on the party. Generally, service must be on the party unless that party has an attorney. Service on a self-represented party is consistent with CR 41(b)(2)(B).
Should the clerk only send the notice of dismissal to a self-represented respondent who makes an appearance?
CR 41(b)(2)(A) requires notice on the attorneys of record. The rule does not state that the clerk only needs to notify a respondent who appeared. Yet, the rule is intended to provide notice to the parties. That intention is expressed in CR 41(b)(2)(B) which allows a party to bring a motion to reinstate the case within a reasonable time after the party learns of the dismissal. It is reasonable to have different requirements for an attorney and for a self-represented party. The clerk would not know who represents a party in the case unless the attorney is "of record." The clerk knows who the parties are because they are listed in the caption. The petitioner may have also filed a Confidential Information Sheet and/or filed the Return of Service with the respondent's address. Because the CR 41(b)(2)(A) requires the attorney to be "of record," it does not also mean the self-represented party must have made an appearance in order to receive the clerk's notice of dismissal.
However, since CR 41(b)(2) is silent regarding the clerk's requirement to send notice of dismissal to self-represented litigants who have not made an appearance, local courts may reach different conclusions on whether that notice is required. On one hand, one can argue that CR 41(b)(2) only requires notice to a person or attorney who appeared and has subjected him or herself to the court's jurisdiction. If a self-represented respondent has not filed a notice of appearance, or other document and has not submitted to the court's jurisdiction, then the self-represented respondent is not entitled to notice of dismissal. On the other hand, one can argue that the court rules read as a whole to support a conclusion that the self-represented respondent who has not made an appearance is still entitled to receive the clerk's notice of dismissal.
CR 5(a) states that:
"No service need be made on parties in default for failure to appear"
This suggests that the clerk would not need to send the notice of dismissal to a defendant who is in default. However, the rules of service stated in CR5(a) are rules for service "[e]xcept as otherwise provided in these rulesâ¦" It is necessary to read other rules. It would be helpful to consider the provisions of CR 55 regarding default judgments. CR 55(a)(3) states that a party who has appeared in the action for any purpose must receive notice of a motion for default; but a party who has not appeared before the motion for default is not entitled to notice. This also suggests a clerk may not need to send notice of dismissal to a respondent who has not appeared. However, CR 55(a)(2) states that any party may respond to any pleading or otherwise defend at any time before a motion for default and supporting affidavit is filed, whether the party previously has appeared or not. If a petitioner has not filed a motion for default, the respondent can still respond even if nothing has occurred in the case for one year after service of the summons and complaint. CR 55 requires the petitioner to serve notice of a motion for default on the respondent if more than one year has passed since service of summons and petition. CR 55(f)(1) states:
"Notice. When more than 1 year has elapsed after service of summons with no appearance being made, the court shall not sign an order of default or enter a judgment until a notice of the time and place of the application for the order or judgment is served on the party in default"
This provision is a procedural safeguard. "CR 55(f)(1) is designed to prevent the taking of surprise defaults in the cases where the parties, through prolonged negotiations or assurances of settlement, may have been given a false sense of security" Karl B. Tegland Washington Practice Series, Vol.4, Rules Practice, 5th Ed. p. 46, 2011 Pocket Part (July 2011). CR 55(f) recognizes that a respondent who has not appeared may be involved in an informal resolution of the case at the time a case may be eligible for a clerk's dismissal. Of course, a default judgment has very different results than a dismissal. However, the respondent may still have an interest in resolving the case, or ceasing settlement negotiations, if the case is dismissed. Since the respondent may have a continuing interest in the case, one can argue that the clerk of the court should send a copy of the notice of dismissal to the respondent who has not made an appearance.
CR 41(b)(2) is not clear regarding the clerk's requirement to send the notice of clerk's dismissal to a self-represented respondent who has not appeared. Since there are a large number of self-represented litigants, it may be timely for the appropriate entity to consider an amendment to the rule to address notice to self-represented litigants, generally, and self-represented respondents who have failed to appear, specifically.
Caveat. This legal analysis is intended to assist the Administrative Office of the Courts (AOC) in making policy decisions. The legal analysis is not intended to be relied upon by those outside of the AOC. Further, it is not intended as, nor should it be construed as, a legal opinion in the nature of an Attorney General's Opinion. The official legal advisor for individual courts is the county prosecutor or city attorney, not the Administrative Office of the Courts.
RN id: 2299