“The fans are hard on me … It’s hard to watch the show … [People] were saying horrible things,” described former child star, Kim Richards in a revealing interview with Dr. Phil on Tuesday, April 28. If RHOBH’s, Kim Richards thought fans were hard on her after last season, wait till she faces the American legal system. Courts do not take kindly to palpable deflection, rampant tardiness or blatant inaction.
BREAKING NEWS: Kim may have to pay one of Kingsley’s dog bite victims over $1M! It should come as no surprise to AATT posters that when a properly served defendant fails to appear in a lawsuit on time, plaintiff might request the Clerk enter default against that defendant. Under Rule 55(a) of the Federal Rules of Civil Procedure, default judgments are available to a party if the opposing party fails “to plead or otherwise defend.”
Ellen Catherine Rozario (“Kay”) asserts that Kim did not file her answer within 21 days after being served with the Complaint, which is required under Rule 12(a)(1)(A)(1). Kay states “Service of the summons and a copy of the [First Amended Complaint], by personal service, was obtained upon Defendant Kim Richards by and through Chad Doe [a.k.a. Chad Davis], Defendant’s son, at Defendant’s residence … on March 2, 2015.” As a result, Request for Entry of Default by Clerk against Kim was filed on March 30, 2015 and a Default by the Clerk as to Kim Richards was entered on April 1, 2015. On April 21, 2015, Kay made an application to the Court to get a final court judgment and render a Default Judgment Against Kim.
Kim admitted in her Dr. Phil interview, “I’ve got a situation with my sister, my niece, my dog …” There is no question Kim’s dog Kingsley has caused her marked angst and anguish. But that pain could triple should the Court decide there is no need for a trial because Kim failed to answer, plead or otherwise defend against Kay’s Complaint. (The allegations and causes of action in the Complaint against Kim may be deemed admitted by her failure to answer.)
A court is given authority to render a default judgment against a party who has not filed a responsive pleading – such as an answer – or otherwise defended the suit pursuant to Rule 55(a), (b)(2). If the plaintiff presents evidence supporting the claims in the complaint, the court can render a default judgment against the defendant. Should the court exercise its discretion here and grant judgment for Kay?
Pony up. Tickle the palm. Atone. Kay has asked the Court to render a default judgment in the amount of $1,050,000.00, plus court costs and interest. Kay seeks unliquidated damages in the amount of $350,000.00 and punitive damages in the amount of $700,000.00.
Under California law, punitive damages are warranted where the defendant is guilty of “oppression, fraud or malice.” Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 402 [185 Cal.Rptr. 654, 650 P.2d 1171). Kay argues Kim had a conscious disregard for her safety after the attack since she “begged Plaintiff not to call 911.” Do you think punitive damages are appropriate here? Remember, Defendant Evolution Film & Tape, Inc. was dropped from the suit while Judge André Birotte, Jr. ruled Richards shall remain a party to this litigation.
If the Court, having examined the pleadings and the record, is of the opinion that Kay’s request for a default judgment against Kim is well-founded and should be granted, the next step is for the Court to conduct hearings to make an accounting and determine the amount of damages. Kay has submitted, along with the Application for a default judgment, evidence of the amount of damages. Based on Kim’s failure to answer or otherwise defend the suit, Kay submits that a hearing may not be necessary because the Court may find the facts, declarations, and evidentiary materials support her calculations.
Should a default judgment be entered against Kim, she has legal recourse under Rule 60, which is a tool used to overturn a default judgment in United States District Court. It provides six grounds for relief from final default judgments but a common one cited is “mistake, inadvertence, surprise, or excusable neglect” under Rule 60(b)(1).
A court may set aside entry of default and even default judgment if the defendant has a good explanation for why it failed to appear earlier in the case. Courts generally disfavor default judgments because a defaulted defendant like Kim is prevented from litigating her case or presenting any evidence in court. There will always be a strong judicial partiality for deciding cases on their merits rather than on procedural or technical grounds.
Nevertheless, if a party to a lawsuit irritates the court by exhibiting a pattern of extensive delays, dilatory practices, and infinite missed deadlines, you can bet the court will refuse to vacate the default judgment.
Dr. Phil, a venerable psychologist, said he has never seen an alcoholic that reports things accurately. Kim explained on his program she only “remembered pieces … It’s more like a fog … Everything is kind of in waves” as to the incident at the renowned Polo Lounge at the Beverly Hills Hotel resulting in her arrest. That does not bode well for her should she be called to testify at trial in the dog bite case.
In closing, Kim told Dr. Phil, “I need to recharge myself” and “get away.” Something is not penetrating. Adults must answer pleadings, and they cannot play fast and loose with the Federal Rules of Civil Procedure. Grab your gavel, join the conversation, and let us know what you think about Kay’s Application For Default Judgment Against Defendant Kim Richards.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.