1Dear [FIRSTNAME], Filing a motion to vacate a default judgment in United States District Court under Federal Rule of Civil

Procedure Rule 60(b)(1) (Rule 60) on the grounds of mistake, inadvertence, surprise or excusable neglect is the topic of this issue of the newsletter. Rule 60 states in pertinent part that (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. And Rule 60 also states that (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable timeand for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. --------------Reminder: THE AUTHOR NOW SELLS COLLECTIONS OF SAMPLE LEGAL DOCUMENTS AT A HUGE DISCOUNT! VISIT THE WEBSITE BELOW FOR MORE INFORMATION. http://www.scribd.com/LegalDocsPro/collections --------------As with a motion to vacate a default judgment in California, it should be noted that Rule 60 does state that the motion must be made within a reasonable time. Anyone who finds out that a default judgment has been entered against them needs to act quickly if they want to increase the chances of having their motion granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion. They should also be sure to emphasize their defenses against the judgment as showing a meritorious defense is necessary A district courts denial of a motion to set aside either default under Rule 55(c) or default judgment under Rule 60(b)(1), is reviewed for abuse of discretion. United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (Mesle); TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695 (9th Cir. 2001) (TCI). The first step of our abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. The second step . . . is to determine whether the trial courts application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc). Where a defendant seeks relief under Rule 60(b)(1) based upon excusable neglect, the court applies the same three factors governing the inquiry into good cause under Rule 55(c). Mesle supra, 615 F.3d at 1091.

Those factors are: (1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default. Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). Again the motion can be denied if it is shown that the moving defendant was culpable, and that conduct led to the default. Although the law is settled that Rule 60 is to be liberally construed so that cases can be tried on the merits. In discussing Rule 60 the Ninth Circuit Court of Appeal has stated that this rule, like all the Federal Rules of Civil Procedure, is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits. Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.) See also Federal Rule of Civil Procedure 1, The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. Rule 60(b) is remedial in nature and . . . must be liberally applied. TCI Group Life Ins. v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (internal citations and quotations omitted.) To determine whether a partys failure to meet a deadline constitutes excusable neglect, courts must apply a four factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Pship, 507 U.S. 380, 395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (adopting this test for consideration of Rule 60(b) motions). The United States Supreme Court has stated that the determination of what conduct constitutes excusable neglect under Rule 60(b)(1) and similar rules is at bottom an equitable one, taking account of all relevant circumstances surrounding the partys omission. Pioneer Inv. Svcs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993). While a Rule 60 motion has a longer deadline than a California motion to vacate a default judgment it does differ in that showing a meritorious defense is required. Attorneys or parties in civil litigation in United States District Court who wish to view a sample motion to vacate a default judgment under Rule 60(b)(1) sold by the author can click the link below. http://www.scribd.com/doc/135549442/Sample-Motion-to-Vacate-Default-Judgment-UnderRule-60-b-1 If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm

It would be greatly appreciated if you would visit the website at http://www.legaldocspro.net and give it a like with Google + if possible. Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995, and recently relocated to Asia. Copyright 2013 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.