The issue of excusable neglect often arises in the context of motions under Rule 60(B). And this case shows that when proving excusable neglect, you need to provide more than just argument.
Vanoy ran a red light and struck Denny’s car. Denny sued Vanoy, and Vanoy was served on September 14, 2018.
Over five months later (on February 25), an adjuster from Vanoy’s insurer (GEICO) called Denny’s counsel, who confirmed that suit had been filed and Vanoy had been served. He then emailed a copy of the complaint, crash report, and proof of service to the adjuster.
Two weeks later, Denny moved for default judgment. The trial court granted the motion and set a hearing for damages. But Vanoy moved to set aside the judgment before that hearing took place. The motion said that GEICO spoke with counsel’s office about the lawsuit on March 1, but that counsel was on vacation until March 18, that Denny did not send a copy of his motion for default judgment to the adjuster, and that they did not realize a motion for default judgment had been filed until April.
When filing the motion to set aside the judgment, counsel attached an affidavit describing a meritorious defense, but did not include any of the facts described above in that affidavit.
The trial court held a hearing on the motion, at which Vanoy did not introduce any evidence. It then granted the 60(B) motion, and Denny appealed.
On appeal, Vanoy conceded that he did not introduce any evidence of excusable neglect, but maintained that he presented “argument” on this issue.
But argument isn’t enough. The basis of Vanoy’s claim that excusable neglect existed is that a GEICO adjuster “contends she spoke to a member of counsel’s firm on March 1, 2019.” Vanoy, however, presented no affidavit or testimony from this adjuster. With no evidence to show that the adjuster called Metzger Rosta LLP on March 1, 2019, there is nothing to support Vanoy’s claim that there was “a breakdown of communication.” This then leaves evidence that Vanoy was served on September 14, 2018; that despite this service, Vanoy did not appear and defend the suit; and that GEICO did nothing to defend the suit, despite Denny’s counsel sending the complaint and related documents to GEICO. This is inattention, not excusable neglect.
The lesson here is clear: when you move under 60(B), provide evidence of both the meritorious defense and of the basis of the motion itself. Don’t just rely on argument and statements in your brief.
When moving for relief under Rule 60(B), a party must provide evidence of both the meritorious defense and of the factual basis for why the order should be set aside.