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  1. #1

    Default Citing Court Cases in a Response to Motion

    Concerning WA state

    I posted here early today about my ex filing a motion to set aside the default order by the Courts.

    I was made aware that I have to file a response to the motion within 10 days but had a big question.

    I have been reading over a lot of cases on motions to set aside default and was wondering if it is okay to quote (properly of course) a Circuit Court of Appeals case in a Family Law case...mostly because of the reasons on judgements against re-opening a defaulted order.

  2. #2
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    Default Re: Citing Court Cases in a Response to Motion

    Sure, you can do that.

    But you MUST make sure it's relevant in both subject and State matter before it will even be considered.

    (Out of interest, which case were you wanting to cite?)

  3. #3

    Default Re: Citing Court Cases in a Response to Motion

    Courts in the Second Circuit consider three contributing factors when deciding whether to set aside a party's default "(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented." Powerserve Int’l Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001) (quoting
    Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). These contributing factors should be balanced against the competeing interest in "maintaining 'an orderly efficient judicial system' in which default is a useful weapon 'for enforcing compliance with the rules of procedure.'" Sony Corp. v. Elm State Electronics, Inc., 800 F.2d 317, 320 (2d Cir. 1986)
    (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure Civil 2d,
    § 2693 at 478.).

  4. #4
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    Default Re: Citing Court Cases in a Response to Motion

    Hon you're looking at two cases completely unrelated to family law...and in your situation, it matters.

    Federal law is a completely different animal for one thing.

    Seriously if this is the route you want to take, I cannot emphasize enough the need for an attorney.

  5. #5

    Default Re: Citing Court Cases in a Response to Motion

    Well I basically go on to justify how his default would be considered willful by referencing other courts ruling on what "Willful" means..and also talk about how he doesn't have a meritorious defense...I don't talk at all about any prejudice.

    I realize that they are cases that aren't related, but I am referencing them only to the extent of the "deciding to default" not any other part of the case...is that not okay?
    If not I will take out the parts in my response that refer to the Circuit court.

    Wouldn't this be the difference in Persuasive precedent and Binding Precedent?

  6. #6
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    Default Re: Citing Court Cases in a Response to Motion

    Precedent needs to be relevant.

    In your family law situation neither of the two cases you quoted have any relevance.

    You're trying to compare apples to scrawny hedgehog roadkill (so to speak).

    Seriously, I really do advise you to stop what you're doing and in the morning call an attorney. WA Bar Association can help you as can your county's legal aid.

    I do understand where you're coming from and what you're trying to do, but you can actually hurt your case if you're not sure of what you're doing, you know?

  7. #7

    Default Re: Citing Court Cases in a Response to Motion

    I will take your advice and not make those references, and I will get some legal advice to assist me in my response..again, thank you very much.

  8. #8
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    Default Re: Citing Court Cases in a Response to Motion

    You're very welcome

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