Monday, October 24, 2005

Court Vacates Entry of Default for Defendant Whose Attorney "Forgot" to File an Answer

In Tesillo v. Emergency Physician Associates, Inc., 230 F.R.D. 287 (W.D.N.Y. Sep. 30, 2005) the court granted a motion to vacate entry of default on the grounds that the defendant's failure to file an answer was innocent and inadvertent and was non-prejudicial to the plaintiff. The case also provides a good example of a court evaluating a defendant's motion to vacate an entry of default. The court noted that in considering motions to vacate entries of default, courts must consider "(1) whether the default was willful; (2) whether setting aside the default judgment would prejudice the adversary; and (3) whether a meritorious defense is presented." The court then found that the default was not willful because defense counsel "inadvertently and innocently forgot" to file an answer after the court denied the defendant's motion to dismiss. Because plaintiff could show no prejudice and because factual disputes remained for resolution, the Court granted the defendant's motion to vacate the entry of default and denied plaintiff's motion for a default judgment.


At 10:49 AM, Anonymous Anonymous said...

What about a motion to vacate a rule 55(a) entry of default that is unsupported by an affidavit or a declaration?

At 12:39 PM, Anonymous Anonymous said...

This is an unusual case because courts generally will not vacate an entry of default for such a flimsy reason. I suspect the case went the way it did because the defendant had filed a motion to dismiss, showing a desire to defend and resist the lawsuit. This made the excuse more credible. But had the attorney simply not filed anything in response to the Complaint, the "I forgot" excuse probably would probably not have worked.


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