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CIV-243 Declaration Of Default Re Form

I traced Yvonne during the litigation lawyer we are talking in this video the difference between a default and a default judgment under the Federal Rules of Civil Procedure so without further ado let's head to the attorney Steve litigation white board all right pack it up people let's get some let's get this back up here there we go let's get our boxing gloves in there fighting for your rights fighting for your damages okay so we're going to talk a little bit about a default versus default judgment this is a topic that confuses a lot of people we'll get some calls from people that say I just got a default or I got a default judgment what do I do I didn't have a chance I was never served the papers what's going on here someone's trying to get a judgment against me so let's talk real quick about the process here if you've watched our other videos this is going to repeat a few things if you haven't seen our videos before we thank you for joining us and watching but basically when you're in litigation you always start with this complaint that complaint is the thing that triggers what's going on here so the complaint is filed these little boxes are my documents here these are my documents so you have a complaint that's filed in federal court you're going to get 20 days to respond to that complaint if you don't respond the other party gets to come in and file for a default to take your default okay so the complaint is filed the papers must then be served on you federal courts have a little more liberal standard than the state courts do but you have to give notice of the summons a complaint reasonably likely reasonably calculated to provide actual notice of the lawsuit so these service issues sometimes can become a big issue where somebody's being served at the wrong place or they're not being served at all what we call sewer service sewer service where you just throw it in the sewer and go yeah yeah proof of service week we serve them cheating lying sewer service so what happens is you've got this twenty days the the complaints filed you have 20 days to respond your response options in federal court are basic you have you can file your answer which basically says I deny this I admit that I deny that so you can file an answer or another popular favorite is a motion to dismiss for example you say that there's a lack of personal jurisdiction or other grounds what we call called a 12 B motion so if you want to look that up we should do another separate video on 12 B motions the grounds for filing a 12 B motion but like personal jurisdiction is a big one if you're an out of jurisdiction you're out a company that's out in Europe or Australia or something you're being sued here you may say well there's no minimum contacts why am I being served here motion to dismiss so what happens is within this 20 days if you fail to plead or otherwise defend there's your magic keywords that's why we're circling it if you fail to plead or otherwise defend in other words if you don't come in and do something in the federal court that's when the other party may move to take your default now the default this comes under Rule 55 it's basically a two-part process okay so the plaintiff in these cases has to be considering and thinking about to two separate things okay one is filing the default they haven't filed within 20 days you file a document with the court saying please enter the default please enter the default so the default once it's entered the clerk will we'll look it up and say yes then 20 days a valid proof of service of the documents so yep default now the default doesn't end the case it doesn't end there the default what it does is it sort of seals you off it seals off the defendant from coming in and pleading or otherwise defending it cut you off so at that point and what it does it doesn't it admits essentially it's deemed as an admission as to the liability portion of the case but it is not in admission to the damages portion of the case so that's something that's left to be determined but so you have the default admits a liability not the damages and that's because again you fail to come in and provide some sort of response now this is sometimes where clients will call us saying help me they've got a default never served I just got served that they're going to file the second part which is the application for the default judgment and as a adhere service of process this also has to be served on you this is the second part of the two-part test so people will call here and they say I just got served their notice their application for the default judgment judgment and that was served on me so people will call us often during this period here now they're being validly served for some reason you're like wow now now they actually serve you okay so that gives us a chance to come back in and look at what we call trying to set aside the default set aside the default okay so the two-part step is what one filing for the default and then the plaintiff does step two which is filed for the default judgment that's the judgment that they're going to wave around and try to enforce if it's in another jurisdiction they're going to domesticate the judgment in the other jurisdiction and then go try to enforce in that jurisdiction that's a whole nother ball of wax but where we may come in is to set aside the default here's what the courts look at its discretionary the courts have wide latitude and what they're looking for is good cause good cause in other words a good reason why didn't you answer why don't you please why don't you file a motion to dismiss so the courts looking for a good reason that you didn't do that if you have that the court may just go okay set it aside get back in here and go file a file something do something okay you're in court file something do something so the default that's where we come in again it's a good cause standard courts have broad discretion the courts favor a final decision on the merits of the case this can't be overemphasized the courts want you to have your day in court so these defaults are actually disfavored and a hearing or trial on the merits is favored so it's very important to make that case to the judge when you're coming in with these default set aside motions under Rule 55 of the Federal Rules of Civil Procedure FRCP Federal Rules of Civil Procedure that's what governs in the federal courts across the country and the courts are going to look at these factors now I'm going to give you three quick factors if you're filing this motion or contemplating filed this motion they're going to look at the defendants culpable conduct the defendants conduct why didn't you file something why didn't you do something why was it a result of failure to be served that's a good reason was it a mistake excusable neglect some sort of surprise as we call it was there fraud somewhere in the process they're going to look at these things now some common things that may not work they may but may not probably not oh I was just so busy I was so swamped at work I could I just couldn't find the time oh my gosh it slipped my mind you have to be careful with those kinds of Defense's also I didn't have money for an attorney I was kind of calling my friends trying to rustle up the money you can try these things I'm not saying they're losers but you want to have these good bonafide reasons okay the courts will also look at this is very important whether you have a meritorious defense okay so you could be for example in a in a well it doesn't matter you could be involved in a copyright lawsuit and they're alleging that you're infringing the copyrights and you say well I have five licenses right here you're saying I'm five short I have five licenses right here let's just say Microsoft or Autodesk IBM Oracle whatever and you say I have my licenses right here so that's a meritorious defense the courts want to know if I'm going to reopen up to this process if we're going to reopen this process up and let you come back in and plead file an answer or a motion to dismiss or do something that you have something meritorious okay so that's a big part of it bear that in mind and the courts may look at the prejudice to the plaintiff again it's a small factor the courts prefer the trial on the merits but if there's something significant there the judge could hang their hat on that so okay so you have to beware these are the factors to set aside if you fail to do that and you just you never get to that step and they get to the default judgment application this is where the plaintiff is going for the jugular they're going for the damages they're going for that piece of paper that gets in the judgment so this is where the game is going to really be ratcheted up you're going to see the default judgment application you're going to see proposed findings of fact and conclusions of law really trying to sell that judge on the case remember in cases the plaintiffs always almost always I should say there are circumstances where the burden shifts but the plaintiff is normally going to bear the burden of proof the burden of proof okay if you don't know what that is Google Fondren burden of proof we have a video on that explains it in two minutes for you okay but the default judgment application that may have evidence attached they may have affidavits attesting to the service of process that we validly served and so there could be a lots of different types of evidence but the plaintiff is going to meet that burden of proof and the court can either enter the judgment as requested or the judge at their discretion his or her discretion can say a what we call a proof of hearing they prove up that's where the plaintiff has to show up in court get dressed up have the big briefcase and exhibits and everything show up and prove the case the nice thing about that is you the this these are the nicest hearings that you'll ever be in as an attorney because you won't have somebody objecting opposing contradicting rebutting you won't have somebody doing oh that you're on your own but you have to you have to sort of meet the burden threshold so that your judge will say okay we'll give you that judgment okay half a million dollars copyright infringement half a million dollars you got it so that's the proof of hearing now the four things at the proof of hearing that may go on and this is per the code here is the court made conducting and accounting they make account and see what's going on put things together they may establish or rebut truth of your allegation so again you do have to come in and be able to show what you're saying is truthful and determine damages that's the big one determine damages because that's really what you're there for is to come out of there and go you know we got this damage award we got it and to have something that you can then go and try to enforce you know the old saying sometimes a judgement is only as good as the paper it's written on you still have to be able to go out and enforce that and hopefully your defendant or defendants have assets to go after okay and the court may investigate other matters that can be you know from here to there could be lots of different things but this is what could we wanted to prove up hearing okay when the hearing is done you have your final judgment stand prove there it is certified by the courts you've got your judgment hooray that's what you're looking for and then finally we're also we end up sometimes people come in to us with cases is I want a motion to set aside the default judgment this judgment right here okay so they may be saying that come to mean they say this whole process happened I had no idea I wasn't served or this or that or I was ill in the hospital and now there's a $500,000 judgment against me for willful copyright infringement I want to fight that I want to open that back up and I want to come in and fight this case on the merits get back here and file my motion to dismiss or file my answer and I want to defend this case or I want to file a countersuit I want to come back and sue them because they actually owe me so there's lots of different things that can go on motion to set aside what are the grounds the courts going to look at this is under Rule 60 B so you have the two-part process here under Rule 55 now we move over to rule 60 B of the Federal Rules of Civil Procedure F RCP right so you're getting good at this so FRCP now it's the same thing the court are going to look at the same factors that we had here to set aside is there good cause mistake inadvertence surprise excusable neglect those kinds of things is there a meritorious defense remember we talked about this you have to have a real defensible position something where you say I did not do that was it willful in bad faith was there newly discovered evidence was there fraud is it a void judgment is this something where the plaintiff is coming and trying to get a judgment on something that's already been paid or satisfied where you say the judgments void it's paid satisfied released why are we what's going on here so that's another ground or other valid reasons now for these these ones that I have checked in greeing if you can see that mistake excusable neglect and advert ins newly discovered evidence and fraud misrepresentation those are three three different grounds those motions should be brought within one year there may be some exceptions for equitable tolling which we've talked about in other videos or if it's any of these others bring it within a reasonable time reasonable time what's that mean whatever you can make it mean as a good advocate okay so that's the basic difference between a default which is step one stamping the default and the default judgment which is actually having that piece of paper that you can wiggle around and your two different mechanisms for trying to set these aside and get your trial on the merits okay so this is turning Steve honor and I hope this has been helpful for you we handle business real estate and intellectual property litigation if you need an attorney to help fight for you and get you justice give us a call we're happy to help you out you can find out more information on our website and ask attorney Steve calm that's ask attorney Steve calm and make sure you click on that red V that red V box wherever they put it these days could be over here now click on that so you get these free legal updates coming to your inbox okay as we like to say be smarter than your friends okay terney Steve Fondren thank you for joining us feel free to share this video on your social media networks have a great day