508 Motion for Default Judgment for Failure to Answer
If a defendant fails to file an answer to a complaint during the time allowed therefor, the Board, on its own initiative, may issue a notice of default allowing the defendant time to show cause why default judgment should not be entered against it. If the defendant fails to file a response to the notice, or files a response that does not show good cause, default judgment may be entered against it. [ Note 1.] See TBMP § 312.
The issue of whether default judgment should be entered against a defendant when it fails to file a timely answer to the complaint may also be raised by means other than the Board’s issuance of a notice of default. For example, the plaintiff, realizing that the defendant is in default, may file a motion for default judgment (in which case the motion may serve as a substitute for the Board’s issuance of a notice of default); or the defendant itself, realizing that it is in default, may file a motion asking that its concurrently filed late answer be accepted. However the issue is raised, the standard for determining whether default judgment should be entered against the defendant for its failure to file a timely answer to the complaint is the Fed. R. Civ. P. 55(c) standard, which requires that the defendant show good cause why default judgment should not be entered against it. See TBMP § 312.
If a plaintiff files a motion for default judgment for failure of the defendant to file a timely answer to the complaint, and the defendant fails to file a brief in opposition to the plaintiff’s motion, default judgment may be entered against defendant. [ Note 2.]
If a defendant files an answer after the due date therefor, but before the issuance by the Board of a notice of default, and also files a motion asking that the late-filed answer be accepted, and the plaintiff fails to file a brief in opposition to the defendant’s motion, the motion may be granted as conceded. [ Note 3.] See TBMP § 502.02(b).
Whenever a defendant is in default, and regardless of whether the issue is raised by notice of default from the Board, or one of the referenced motions addressing the issue, a defendant’s failure to file a timely answer tolls all deadlines including the time for the parties to conduct the required discovery conference. When the Board addresses the default in a way that obviates the default, for example, by denying plaintiff’s motion for a default judgment or by granting defendant’s motion for acceptance of its late-filed answer, the Board will reset appropriate dates, including the deadline for the parties to conduct the discovery conference. [ Note 4.]
For further information concerning default judgment for failure of the defendant to file a timely answer to the complaint, see TBMP § 312.
NOTES:
1. 37 C.F.R. § 2.106(a) and 37 C.F.R. § 2.114(a); Fed. R. Civ. P. 55(a) and 55(b); Finanz St. Honore B.V. v. Johnson & Johnson, 85 USPQ2d 1478, 1480 (TTAB 2007) (Board entered notice of default in consolidated cancellation, allowing defendant 30 days to show cause why judgment should not be entered for failure to file an answer); DeLorme Publishing Co. v. Eartha’s, Inc., 60 USPQ2d 1222, 1223-24 (TTAB 2000) (good cause not shown where failure to answer was based on belief that notice of opposition was "incomplete").
2. Fed. R. Civ. P. 55(b) and 55(c); 37 C.F.R. § 2.127(a) (the Board may treat the motion as conceded).