Tennessee Business Litigation Lawyers Blog
A plaintiff may obtain a judgment against a defendant under Tennessee law, and under federal law, if the defendant does not file a responsive pleading within the required time. Under the Tennessee Rules of Civil Procedure, a defendant must file a written response to a complaint within thirty (30) days of being served with the complaint. If you are a defendant against whom a default judgment has been entered, be aware that it can be set aside. With frequency, default judgments are set aside by Tennessee courts.
There are several different grounds on which a default judgment may be set aside. First, if a defendant was not properly served, then a default judgment may be set aside on the grounds that it is void. Service of process on a defendant can be tricky, and, even the validity of personal service by an officer or private process server may be successfully challenged.
Second, a default judgment may be set aside, even where there was valid service on the defendant, if the defendant was not given adequate written notice that the plaintiff had filed a motion for a default judgment. Under the Tennessee Rules of Civil Procedure, in most cases, a defendant is entitled to receive written notice of the motion for default judgment at least five (5) days before the motion is heard.
Third, a default judgment may be set aside for “mistake, inadvertence, surprise, or excusable neglect.” In my experience, these grounds are the ones most frequently used to support a motion to set aside a default judgment. Under Tennessee law, the party moving to set aside a default judgment has the burden to prove that it should be set aside. However, Tennessee appellate courts have said, time and time again, that the law does not favor judgments by default, and, if there is any doubt as to whether one should be set aside, it should be.
To set aside a default judgment for mistake, inadvertence, surprise, or excusable neglect, three things must be proven. First, the moving party must show that the default was not the result of willfulness. Second, the party must show that it has a meritorious defense. Third, the setting aside of the default judgment must not prejudice the opposing party.
Willfulness does not include negligence of either the defaulted party or its attorney. In fact, Tennessee courts have said that mere negligence is exactly the kind of conduct for which the rule allowing default judgments to be set aside was designed. The difference between willfulness and negligence is often not clear and can be a close call in some cases. It is critical for Tennessee lawyers who are assisting defaulted parties with setting aside default judgments to ensure that their motions to set aside are supported by as much evidence as possible. For example, in one case we had many years ago, our client had not responded to a complaint because she was suffering from depression. Rather than rely just on her affidavit that she had been diagnosed with depression, we filed a detailed affidavit from her treating psychiatrist attesting to, not only her condition and diagnosis, but also, his opinion that our client was unable to function adequately enough to deal with responding to the complaint. The more evidence in the record, the better.
With respect to the requirement that a party moving to set aside a default judgment show that it has a meritorious defense, it is not enough to rely on conclusory statements like “defendant has multiple defenses” or “defendant has good and valid defenses.” In my opinion, the best practice is to support a motion to set aside a default judgment with the answer or motion to dismiss that will be filed in response to the complaint, if the default judgment is set aside.
With respect to the last requirement, that the setting aside of the default judgment not cause prejudice to the plaintiff, this requirement, in my opinion, is pretty easy to meet in almost all cases because Tennessee courts have held that the fact that the plaintiff will have to try the case if the default judgment is set aside or the fact that there has been a passage of time are not prejudice.
Once you receive notice that a default judgment has been entered against you, or that a motion for a default judgment is pending, you should contact a Tennessee lawyer immediately. One factor courts also consider when weighing motions to set aside default judgments for mistake, inadvertence, surprise, or excusable neglect is how quickly the motion was filed after the default judgment was entered.