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Sharon
Hi All,

A party in my litigation defaulted and didn't show up until after I filed a Motion for Default Judgment.  Does anyone have any case law on default judgments.  So far I have found nothing that will excuse this financial entity but I'm looking for federal case law on the matter. 

Thanks.
Sharon
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bankbuster
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iknow
It does appear you don't have a clear grasp on what is actually going on and perhaps you should consider finding an attorney.

There are volumes of cases in both State and Federal Court that as a general policy, default judgements are disfavored. This is especially going to be the case where you only filed a motion for default but have not been granted an order of default. While you have not provided what jurisdiction you are in, I just picked one at random from the volumes of cases out there.

Eitel v. McCool, 782 F. 2d 1470 - Court of Appeals, 9th Circuit 1986

http://scholar.google.com/scholar_case?case=16473444772959808716&q=default+judgement+late+appearance&hl=en&as_sdt=3,60

Our starting point is the general rule that default judgments are ordinarily disfavored. Cases should be decided upon their merits whenever reasonably possible. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir.1985).

Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 6 Moore's Federal Practice ¶ 55-05[2], at 55-24 to 55-26. We find that several of these factors support the district court's denial of the default judgment.









Both State and Federal Courts have a strong policy of deciding cases on the merits. Because the party did show up, you just aren't going to have any luck with this argument, assuming you properly served the party to begin with.
"Between two evils, I always pick the one I never tried before."

-Mae West
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Sharon
iknow wrote:
It does appear you don't have a clear grasp on what is actually going on and perhaps you should consider finding an attorney. There are volumes of cases in both State and Federal Court that as a general policy, default judgements are disfavored. This is especially going to be the case where you only filed a motion for default but have not been granted an order of default. While you have not provided what jurisdiction you are in, I just picked one at random from the volumes of cases out there. Eitel v. McCool, 782 F. 2d 1470 - Court of Appeals, 9th Circuit 1986 http://scholar.google.com/scholar_case?case=16473444772959808716&q=default+judgement+late+appearance&hl=en&as_sdt=3,60 Our starting point is the general rule that default judgments are ordinarily disfavored. Cases should be decided upon their merits whenever reasonably possible. Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir.1985). Factors which may be considered by courts in exercising discretion as to the entry of a default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 6 Moore's Federal Practice ¶ 55-05[2], at 55-24 to 55-26. We find that several of these factors support the district court's denial of the default judgment. Both State and Federal Courts have a strong policy of deciding cases on the merits. Because the party did show up, you just aren't going to have any luck with this argument, assuming you properly served the party to begin with.


Is there a reason for your nastiness or are you always blatantly mean.  Given that you put yourself out there as an expert when you are not I won't bother to look at what you say.  You need to get a grip.  None of us that I am aware of are lawyers.

Sharon
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iknow
It is pretty interesting that you think it is "nasty" and "mean" to point out that you don't understand FRCP and suggest that you find an attorney to help.

Just because you don't know, understand, like, ect.. a response does not make it in any way adversarial.

Additionally, I don't think I, in any way, described myself as an "expert" as you put it. You asked for caselaw and I did you a service by pointing out the flaw in your course of action and provided a case for you to read (as I posted before you didn't post what jurisdiction).

Feel free to make which ever argument you like.

"Between two evils, I always pick the one I never tried before."

-Mae West
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iknow
I'm not quite sure why you insist on calling me names and using degrading terms (nasty, mean, a troll).

In an attempt to assist you I simply pointed out your misunderstanding of how the rules work. While the rules offer guidance on the proper procedure, the real importance comes from how the Courts interpret the rules. In the case I posted (appears to be a bad link), https://www.casetext.com/case/eitel-v-mccool, it clearly shows that once a party appears, the clerk can no longer enter a default, it must be entered by the District Court. They also restated the common theme that a default judgement is disfavored and a case should be decided on the merits.



Likewise, in the case YOU posted the Appellate Court found that is was an abuse of discretion by FAILING to set aside the default judgement because they are disfavored. See below...



"When Janet Knoebber failed to plead in response to the complaint or the cross-claim, the district court entered a default judgment against the deceased's wife in favor of his mother. The district court denied the wife's motion to vacate the default judgment. We hold, in accord with the long-standing principle that default judgments are disfavored, that the district court abused its discretion in failing to set aside the default and reach the merits."


I don't understand how this could be any clearer. If a party shows up, the case should be decided on the merits, a default judgement is improper. There are also volumes of case law, that in situations like the case you posted, even if the Court granted a default judgement, it should be set aside.

Feel free to post a case that says when a party shows up he should not be allowed to respond and a default should be entered, but I'm not sure there are ANY out there. It really is a due process violation.

While you don't like my response, it certainly is correct. Maybe you could refrain from your negative posts/language. If you don't want to accept the answer, maybe it's best not to ask.
"Between two evils, I always pick the one I never tried before."

-Mae West
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Sharon
iknow wrote:
I'm not quite sure why you insist on calling me names and using degrading terms (nasty, mean, a troll). In an attempt to assist you I simply pointed out your misunderstanding of how the rules work. While the rules offer guidance on the proper procedure, the real importance comes from how the Courts interpret the rules. In the case I posted (appears to be a bad link), https://www.casetext.com/case/eitel-v-mccool, it clearly shows that once a party appears, the clerk can no longer enter a default, it must be entered by the District Court. They also restated the common theme that a default judgement is disfavored and a case should be decided on the merits. Likewise, in the case YOU posted the Appellate Court found that is was an abuse of discretion by FAILING to set aside the default judgement because they are disfavored. See below... "When Janet Knoebber failed to plead in response to the complaint or the cross-claim, the district court entered a default judgment against the deceased's wife in favor of his mother. The district court denied the wife's motion to vacate the default judgment. We hold, in accord with the long-standing principle that default judgments are disfavored, that the district court abused its discretion in failing to set aside the default and reach the merits." I don't understand how this could be any clearer. If a party shows up, the case should be decided on the merits, a default judgement is improper. There are also volumes of case law, that in situations like the case you posted, even if the Court granted a default judgement, it should be set aside. Feel free to post a case that says when a party shows up he should not be allowed to respond and a default should be entered, but I'm not sure there are ANY out there. It really is a due process violation. While you don't like my response, it certainly is correct. Maybe you could refrain from your negative posts/language. If you don't want to accept the answer, maybe it's best not to ask.
Sharon
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Sharon
In DEMETRICRICE vs. MARKIVAUTOMOTIVE the court found: "Defendant has failed to establish grounds for setting aside a default judgment as provided in Fed.R.Civ.P.60(b). Specifically, Defendant has not shown that its failure to respond to the complaint was the result of mistake, inadvertence, surprise, or excusable neglect. See Fed. R. Civ. P. 60(b)(1).Consequently, Defendant’s motion to set aside entry of default is DENIED."

The case is similar to the one I am asking about.  I asked the question earlier but continued to research and found this case most instructive and the facts similar. 

http://www.tnwd.uscourts.gov/JudgeTodd/opinions/68.pdf 

So *iknow* you don't know.  Why did you join the group, to attempt to discourage the members?
Sharon
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iknow
Sharon wrote:
In DEMETRICRICE vs. MARKIVAUTOMOTIVE the court found: "Defendant has failed to establish grounds for setting aside a default judgment as provided in Fed.R.Civ.P.60(b). Specifically, Defendant has not shown that its failure to respond to the complaint was the result of mistake, inadvertence, surprise, or excusable neglect. See Fed. R. Civ. P. 60(b)(1).Consequently, Defendant’s motion to set aside entry of default is DENIED."

The case is similar to the one I am asking about.  I asked the question earlier but continued to research and found this case most instructive and the facts similar. 

http://www.tnwd.uscourts.gov/JudgeTodd/opinions/68.pdf 

So *iknow* you don't know.  Why did you join the group, to attempt to discourage the members?


I'm trying to help you not reinvent the wheel.

This case has no value at all in any Court. If this case was appealed, the Court of Appeals decision would be binding. A decision from a District Court is not going to be binding on any Court, even the same District Court (they could rule a different way). Courts make incorrect decisions all the time which is why there is a Court of Appeals and Supreme Court. This is the reason you won't be able to cite a Court order in a brief. Case law is Appellate and Supreme Court decisions.

I would also mention, the facts you posted are different than the case you just posted. You posted that the Defendant made an appearance after you moved the Court for a default judgement. Your question also implies that you do not have a default judgement granted meaning there is no reason to set aside the judgement.

I posted a case and YOU posted a case that default judgement is not proper. These are BINDING decisions. How many more do you need? I can assure you a Judge is not going to ignore the case law and has no interest in what a Judge in a different District Court decided.

Why you feel this is discouraging in some way is a bit perplexing. I would think that you would want to go into a courtroom with the correct arguments supported by binding case law so that the Judge can rule in your favor. I assure you, the opposing counsel will have all the cases that say it is improper to grant a default.

Please do update us on the progress of your default judgement motion.

Best of luck.
"Between two evils, I always pick the one I never tried before."

-Mae West
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Sharon
I'm trying to help you not reinvent the wheel. This case has no value at all in any Court. If this case was appealed, the Court of Appeals decision would be binding. A decision from a District Court is not going to be binding on any Court, even the same District Court (they could rule a different way). Courts make incorrect decisions all the time which is why there is a Court of Appeals and Supreme Court. This is the reason you won't be able to cite a Court order in a brief. Case law is Appellate and Supreme Court decisions. I would also mention, the facts you posted are different than the case you just posted. You posted that the Defendant made an appearance after you moved the Court for a default judgement. Your question also implies that you do not have a default judgement granted meaning there is no reason to set aside the judgement. I posted a case and YOU posted a case that default judgement is not proper. These are BINDING decisions. How many more do you need? I can assure you a Judge is not going to ignore the case law and has no interest in what a Judge in a different District Court decided. Why you feel this is discouraging in some way is a bit perplexing. I would think that you would want to go into a courtroom with the correct arguments supported by binding case law so that the Judge can rule in your favor. I assure you, the opposing counsel will have all the cases that say it is improper to grant a default. Please do update us on the progress of your default judgement motion. Best of luck.

Thank you, I like the tone much better.  In the case at bar is a corporation that had proper notice and didn't show up in court.  They never made an appearance until a motion for default judgment was filed and when they did show up they gave no explanation as to why they failed to show up but asked for an extension of time.  The law firm I believe solicited the business and are representing another party in the litigation.  So it shows somewhat that they intentionally defaulted.  They are not a major player in the litigation so I was surprised they didn't show up and attempt to get it dismissed. 
Sharon
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