RAB Performance Recoveries v. Swanson, No. S2171-09 CnSc (Toor, J., May 12, 2010) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.] 

STATE OF VERMONT

CHITTENDEN COUNTY

│ 

RAB PERFORMANCE RECOVERIES │ 

 Plaintiff │ 

│ SUPERIOR COURT

 v. │ Docket No. S2171-09 CnSc 

│ 

MELISSA L. SWANSON │ 

 Defendant │ 

│ 

ORDER TO SHOW CAUSE

This small claims case was set for hearing before the undersigned on May 4, 

2010. Plaintiff’s counsel appeared without any witnesses. Defendant did not appear and 

no counsel appeared for him. Plaintiff requested that the court enter a default judgment 

for plaintiff at the time of trial based upon defendant’s failure to appear, saying that is the 

usual practice in small claims court. The court indicated that it would consider the request 

and issue a written decision. 

The court views this case as raising two issues. One is whether a default judgment 

is appropriate for a defendant’s failure to appear at trial. The other is whether dismissal 

for failure to prosecute is appropriate for a plaintiff’s failure to appear ready to proceed to 

trial. 

1. The Request for Default 

The small claims rules say nothing about what happens if a defendant does not 

appear at trial. However, they refer “by analogy” to the applicable civil rules. V.R.S.C.P. 

13. Rule 55 of the civil rules states that where a defendant has answered but fails to 

appear at trial, as in this case, “the plaintiff may either move for default or proceed to 

trial.” V.R.C.P. 55(b) (6). 
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The automatic, immediate default requested by Plaintiff, however, is not what is 

foreseen by the rule. Instead, it must be read in concert with subdivision (b)(4), which 

requires that if a defendant has filed an answer or otherwise appeared prior to the trial 

date, no default judgment may be entered except “after hearing, upon at least three days’ 

written notice served by the clerk.” V.R.C.P. 55 (b) (4). Alternatively, the plaintiff must 

proceed to trial and present its evidence. 

Prior to the amendment of Rule 55 in 1988, the only option when a defendant had 

answered but failed to appear at trial was for the plaintiff to present its evidence: 

Although there are rulings to the contrary, we agree with 

those authorities that have concluded that where the 

defendant has not appeared for trial, but has otherwise 

appeared and defended the action, an entry of a default 

judgment is improper. The plaintiff must present evidence 

and thereby prove his or her case, just as if defendant had 

been present at trial. 

The trial court in this case erred when it did not proceed to 

take testimony; the unsworn statement of plaintiff's 

attorney cannot support the judgment rendered. 

Reuther v. Gang, 146 Vt. 540, 542 (1984). See also, Archawski v. Hanioti, 239 F. 2d 806, 

808 (2d Cir. 1956) (defendant’s failure to appear was not a default where he had disputed 

facts in answer, and plaintiffs “were accordingly put to their proof”); Coulas v. Smith, 

395 P. 2d 527, 530 (Az. 1964) (“if the defendant fails to appear at the trial a judgment on 

the merits may be entered against him on proper proof”); W.H.H. Trice & Co., v. Faris, 

829 A. 2d 189, 193 (D.C. 2003) (where defendant had answered but failed to appear for 

trial, proper course was to proceed with the trial, “requiring the plaintiff, Faris, to prove 

liability as well as damages”); Reese v. Proppe, 443 N.E.2d 992, 997 (Ohio App. 1981) 

(where defendant has answered, it is error “to obviate the responsibility of a plaintiff to 

prove his or her case”); 10A Wright, Miller & and Kane, Federal Practice & Procedure, 
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Civil 3d § 2682 (West, Westlaw though 2010 update) (“A defendant who has participated 

throughout the pretrial process and has filed a responsive pleading, placing the case at 

issue, has not conceded liability. Unlike a default, if the trial proceeds in the absence of 

the defendant, the court should require plaintiff to present evidence supporting liability, 

as well as damages, and a judgment should be entered in plaintiff’s favor only if the 

evidence supports it.”). 

The Court in Reuther noted in dicta that even if default had been an option, the 

proper procedure for default had not been followed because the court had not “provide[d] 

[Defendant] with the statutorily required three-days’ notice before it entered a default 

judgment against her.” Reuther, 146 Vt. at 541, 542. 

 In 1988, Rule 55 was amended to respond to Reuther by permitting the option of a 

default judgment when a defendant fails to appear for trial. V.R.C.P. 55, Reporter’s Notes 

–1988 Amendment, pp. 290-91. However, that does not mean that default may be entered 

at the time of trial as plaintiff here requested. The Notes clarify that when a defendant has 

previously appeared (e.g., by filing an answer) but fails to appear at trial, “there must be a 

separate hearing on the request for default judgment. The hearing cannot be held until the 

clerk has provided the defendant with three days’ written notice.” Id. See also, Housing 

Foundation v. Beagle, No. 2007-474, 2008 WL 3976570, at *2 (Vt. Aug. Term 2008) 

(mem.) (“The rule was amended to clarify that, in all cases where the defendant has 

appeared, the court must provide notice and a hearing prior to default.”). 

The Notes go on to explain that the only other option is to proceed with the trial in 

the defendant’s absence: 

Given that a trial has been scheduled and that the defendant 

either has not requested a continuance or has been denied a 
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continuance, the plaintiff generally must spend the time and 

money to have present all the necessary lay and expert 

witnesses, sometimes under subpoena. No sound reason 

exists for, in effect, granting the defendant a continuance 

simply on the ground that the defendant has not appeared. 

Instead, the plaintiff may proceed forward with the trial. 

Reporter’s Notes – 1988 Amendment, p. 291. 

Thus, the options when a defendant fails to appear at trial are to take up the 

plaintiff’s motion for default and schedule yet another hearing, at which presumably the 

witnesses must again appear, or take the evidence at the scheduled trial time. Wool & 

Murdoch v. Devost, 152 Vt. 433, 435 (1989) makes clear that the second hearing 

provides defendant “the opportunity to avoid the default and contest on the merits.” 

(emphasis added). Thus, a plaintiff is clearly expected to have witnesses ready to present 

the merits of the case at both hearings. This is apparently why the Reporters Note 

suggests that it is an easier choice for a plaintiff to proceed to trial initially -- so its 

witnesses do not have to come twice. 

In sum, the two options in this case on May 4 were for plaintiff to proceed with its 

evidence as scheduled, or to schedule a future hearing on the oral motion for a default 

judgment. The third choice requested by plaintiff – an immediate default judgment –was 

not an option. 

2. The Plaintiff’s Unreadiness for Trial

The discussion above, however, does not address the entire situation in this case. 

Not only was the defendant not present and ready to proceed, but the plaintiff was equally 

unready to proceed. Although plaintiff’s counsel appeared, he came without witnesses 

and thus unprepared to present any evidence. The question, then, is whether plaintiff is 

entitled to request even a default hearing. If so, this means that both parties may come to 
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court unprepared for scheduled trials and gamble on whether the other side will show up. 

If plaintiff is not ready with witnesses at the appointed trial time, he may then ask the 

court for yet another hearing at which to present his evidence, using more court time in 

an already overburdened court system merely because he chose to delay his preparation 

for trial. 

In essence, both parties here have failed to comply with the court’s directive to 

appear and be ready to proceed to trial. If defendant had appeared, plaintiff would have 

had no way to establish its case. Although, as counsel for plaintiff pointed out, plaintiff’s 

counsel could call the defendant as a witness, the defendant may offer nothing helpful to 

plaintiff’s case, and even if useful on some issues is not in a position to testify to the 

exact amount due. In fact, in this case, defendant’s answer expressly contested the 

amount due. More importantly, however, since the defendant did not appear, plaintiff 

had no way of proving its case at all. It was therefore entirely unprepared to proceed to 

trial in the absence of defendant. 

Trials are set for the purpose of bringing a case to conclusion, not as optional 

events that parties may decide to be prepared for or not as they choose. It seems 

indisputable that if a plaintiff without good cause utterly fails to appear (meaning no 

party and no attorney), dismissal with prejudice is appropriate. “Judges must be firm and 

create the expectation that a case will go forward on the specific day that it is assigned. In 

order to dispose of our cases in a fair, timely, and efficient manner, everyone involved 

must be present on time, prepared, and ready to go forward.” Gionfrido v. Wharf Realty, 

193 Conn. 28, 33-4 (Conn. 1984) (citation omitted) (noting that it would “do a disservice 
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to the great majority of attorneys, who are conscientious, and to the litigants of this state” 

not to affirm trial court’s dismissal based on party’s failure to appear at trial). 

The question here is whether sending an attorney alone, without any evidence to 

present, can avoid that result. As the court in Reese noted, courts must be mindful of “the 

essential nature of burdens of proof in our system for dispute resolution, and ... any order 

upsetting these burdens of proof is inordinately drastic...” 443 N.E.2d at 997. If 

plaintiff’s counsel appears without any witnesses to present evidence, in direct disregard 

of the fact that the case has been scheduled for the presentation of evidence, the court 

views this an absence of proof to support the plaintiff’s case. “An action may be 

dismissed under ... Rule 41(b) if the plaintiff, without offering some explanation that is 

satisfactory to the court, is not ready to present his or her case at trial.” 9 Wright, Miller 

& Kane, Federal Practice & Procedure, 3d ed. § 2370 (West, Westlaw through 2010 

update). “Where a plaintiff does not appear at the trial date or, as in this case, is 

inexcusably unprepared to prosecute the case, Rule 41(b) dismissal is particularly 

appropriate.” Knoll v. American Telephone & Telegraph Co., 176 F. 3d 359, 364 (6th Cir. 

1999). This “constitutes the epitome of ‘failure to prosecute.’” Id. As the Second Circuit 

has said, “[i]t is beyond dispute under our precedent that a district court may dismiss a 

case under Rule 41(b) when the plaintiff refuses to go forward with a properly scheduled 

trial.” Lewis v. Rawson, 564 F.3d 569, 580 (2d Cir. 2009) (internal quotation omitted). 

See also, Moffit v. Illinois State Board of Education, 236 F. 3d 868, 873 (7th Cir. 2001) 

(“One naturally expects the plaintiff to be present and ready to put on her case when the 

day of trial arrives. A litigant’s day in court is the culmination of a lawsuit, and trial 

dates--particularly civil trial dates--are an increasingly precious commodity in our 
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nation’s courts.”). The Plaintiff having the burden of going forward, the only appropriate 

result in such a situation is dismissal with prejudice. 1

 

Order

Plaintiff’s motion for a default judgment against defendant is denied. Although 

the court “may dismiss a complaint for failure to prosecute even without affording notice 

of its intention to do so,” Link, 370 U.S. at 633, the court will permit plaintiff to be heard 

before ruling. The case will be dismissed with prejudice unless plaintiff shows good 

cause within ten days why it should not be dismissed. 

Dated at Burlington this day of May, 2010. 

 _____________________________ 

 Helen M. Toor 

 Superior Court Judge 

 

1

 It is also clear that Rule 41 does not prohibit a court from sua sponte dismissal in such a situation, despite 

the language of the rule suggesting that the motion must be made by the defendant. Link v. Wabash 

Railroad Co., 370 U.S. 626, 630-31 (1962) (“Neither the permissive language of the Rule--which merely 

authorizes a motion by the defendant--nor its policy requires us to conclude that it was the purpose of the 

Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that 

have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of 

a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ 

governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so 

as to achieve the orderly and expeditious disposition of cases.”); Theilmann v. Rutland Hospital, 455 F. 2d 

853, 855 (2d Cir. 1972) (“the authority to invoke [dismissal] for lack of prosecution, both on defendant’s 

motion and sua sponte, is an inherent” power of the court).