In a case where a plaintiff is in default on a counterclaim due to failure to seasonably file an answer, was the plaintiff validly declared in default? Why?

• A. NO. The plaintiff was not validly declared in default because a motion for extension of time may be filed ex parte and need not be set for hearing.
• B. YES. The plaintiff was validly declared in default.
• C. The extension must be filed for hearing.
• D. The court's default order is final.

Answer: (A)

The key idea is that a default on a counterclaim isn’t proper when the party has sought or been granted more time to plead. Extensions to plead can be requested by motion and, importantly, may be granted ex parte, without a hearing. If such an extension is filed or granted, the period to file an answer hasn’t truly run out, so declaring the plaintiff in default would be premature or improper. That’s why the plaintiff was not validly declared in default in this situation—the possibility (and the fact) of an ex parte extension means the default clock wasn’t necessarily exhausted.

In other words, default hinges on whether the time to plead has actually elapsed without extension; an ex parte extension preserves the plaintiff’s right to answer, so a default order would not be appropriate.