Gillman v. Gillman , 2021 UT 33 ( 2021 )

2021 UT 33IN THE
SUPREME COURT OF THE STATE OF UTAH
BROOKELYN GILLMAN, CINDY MAUGHAN, CHANCELOR MAUGHAN,
AND JOHN MAUGHAN,
Appellants,
v.
GARY WALKER GILLMAN AND LANCE FINN GILLMAN,
Appellees.
No. 20190404
Heard November 9, 2020
Filed July 22, 2021
On Interlocutory Appeal
Fourth District, Spanish Fork
The Honorable Jared Eldridge
No. 180300090
Attorneys:
James K. Tracy, James C. Dunkelberger, and Hyrum J. Bosserman,
Salt Lake City, for appellants
Michael F. Skolnick, Jeremy R. Speckhals, and Calvin C. Curtis,
Salt Lake City, for appellees
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 The defendants in this case missed the deadline to file an
answer. The court clerk entered their default and the plaintiffs
moved for default judgment. The defendants quickly opposed the
motion and requested that the default certificate be set aside
under Utah Rule of Civil Procedure 55(c). The district court
granted the defendants’ request, concluding they had shown
“good cause” under the rule. The plaintiffs then filed this
GILLMAN V. GILLMAN
Opinion of the Court
interlocutory appeal, arguing the district court abused its
discretion in setting aside the default certificate.
¶2 We affirm.
BACKGROUND
¶3 Decedents Glade and Betty Gillman left behind trusts for
the benefit of their children: appellees Gary Walker Gillman and
Lance Finn Gillman (collectively, the uncles), along with two other
siblings who are deceased. The deceased siblings’ share was to
pass to their children: appellants Brookelyn Gillman, Cindy
Maughan, Chancelor Maughan, and John Maughan (collectively,
the cousins), along with two additional non-party cousins. After
becoming concerned with their uncles’ handling of the trusts, the
cousins sued Gary Gillman for alleged mismanagement of the
trusts and both uncles for unjust enrichment. The cousins also
sought an accounting of trust funds and a declaratory judgment
establishing their rights under the trusts.
¶4 The cousins filed their complaint in May 2018. The uncles
timely moved for dismissal or, in the alternative, for summary
judgment on each claim. The cousins opposed the motion to
dismiss and moved the court to convert the motion to one for
summary judgment under rule 56 of the Utah Rules of Civil
Procedure. They also requested that the summary judgment
disposition be delayed so the parties could conduct discovery.
¶5 On October 10, 2018, the district court heard argument on
the matter and orally granted the motion to convert. The court
deferred ruling on the summary judgment motion and ordered a
period of discovery. At the end of the hearing, the court ordered
the cousins to prepare an order memorializing its decision. Over a
month later, on November 16, 2018, the cousins’ counsel sent the
uncles’ counsel, Calvin Curtis (Curtis), a proposed order.
¶6 Two weeks later, Curtis emailed the cousins’ counsel,
informing them he had been away for the Thanksgiving holiday
and would look at the order and respond the following Monday.
But he did not follow up. Just over five weeks later, on January 8,
2019, the cousins’ counsel emailed Curtis again to inform him
they would file the order on January 11 if Curtis did not respond.
Counsel also wrote that they anticipated the uncles’ answer
would be due by the end of January.
¶7 On January 10, Curtis responded that the order was
“fine,” that the uncles consented to entry, and that he would “be
back in touch shortly on the remainder” of the email. The cousins’
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counsel filed the order and the court entered it on January 16,
2019. The order specified that the uncles’ answer was due within
fourteen days of the entry of the order, which was January 30.
¶8 On February 1, two days after the answer deadline,
Curtis emailed the cousins’ counsel and informed them that the
uncles were going to engage separate litigation counsel and Curtis
expected to “have word on that within a couple days.” A week
later, on February 8, the cousins’ counsel emailed Curtis and
asked if he would be filing an answer. Curtis did not immediately
respond.
¶9 On February 14, the cousins filed a proposed order
entering the uncles’ default. It was entered the next day. Four
days later, Curtis emailed the cousins’ counsel and informed them
that the uncles had engaged separate litigation counsel, who
would be in touch about the answer and proposed litigation
schedule. The cousins’ counsel did not respond. Instead, on
February 20, they filed a motion for default judgment.
¶10 Five days later, the uncles filed a motion opposing
default judgment, which included a footnote requesting “that the
Court set aside [the] default certificate.”1 It included an affidavit
from Curtis, which stated that: (1) on or about February 1, he
advised the cousins’ counsel that he would “be engaging separate
litigation counsel”; (2) he had interacted with litigation counsel
and their firm on other matters but first contacted them about the
instant case on January 31, 2019; (3) he had “experience in
litigating trust and estate matters,” but had reduced his litigation
practice, and because the previous motion hearing had been
“focused . . . on procedural rules,” the advisability of hiring
separate counsel was “reinforced in [his] mind”; (4) between
January 31 and February 19, he communicated with litigation
counsel about the mechanics of their involvement in the matter
but never discussed a due date for the answer; and (5) both
parties had previously sought and received extensions in the case,
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1 See 10A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE § 2692 (4th ed. 2021) (noting that
“federal courts often view opposition to a motion for the entry of
a default judgment as a motion to set aside the default
[certificate], whether or not a formal motion under Rule 55(c) has
been made”).
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Opinion of the Court
but Curtis had never requested an extension for the answer, nor
did he “envision or foresee the possibility of entry of default
based on a three week delay” in filing the answer.
¶11 Also included as an exhibit to the opposition was the
uncles’ proposed answer, in which they asserted the following
defenses: (1) failure to state a claim upon which relief can be
granted; (2) expiration of the statute of limitations on one or more
claims; (3) waiver, release, and estoppel; and (4) unclean hands.
¶12 The district court denied the cousins’ motion for default
judgment and granted the uncles’ request to set aside the default
certificate. In its written order, the court noted that the case was “a
close call.” To determine whether the uncles had shown “good
cause” to set aside the default certificate under rule 55(c), the
court considered factors that have been outlined by the court of
appeals in Pierucci v. U.S. Bank, NA, 2015 UT App 80, ¶ 9, 347 P.3d
837, and Roth v. Joseph, 2010 UT App 332, ¶ 16, 244 P.3d 391.
Specifically, the court analyzed “whether the default was willful,
whether defendant alleges meritorious defenses, whether
defendant acted expeditiously to set aside the default certificate,
any prejudice to plaintiff and the existence of a public interest in
the outcome.”
¶13 First, the court found that, while Curtis “could have been
more diligent,” it was “not convinced that [his] omissions r[ose] to
the level of willfulness.” Next, the court recognized that the uncles
had asserted meritorious defenses and had acted expeditiously to
set aside the default certificate and oppose the motion for default
judgment. The court rejected the cousins’ contention that they
would be prejudiced if the default certificate were set aside. And
it found that the public interest weighed in favor of deciding the
case on the merits because “Utah courts disfavor default
judgments.”
¶14 The cousins sought this interlocutory appeal of the
court’s decision. We exercise jurisdiction under Utah Code
section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶15 We review a district court’s decision to set aside a default
certificate for an abuse of discretion. Lund v. Brown, 2000 UT 75,
¶ 9, 11 P.3d 277. While the “court has broad discretion in deciding
whether to set aside a default [certificate],” a “decision premised
on flawed legal conclusions . . . constitutes an abuse of discretion.”
Id. (citation omitted).
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ANALYSIS
¶16 The cousins contend that the district court abused its
discretion in setting aside the entry of default in this case. Their
primary argument is that to show “good cause” to set aside a
default certificate under rule 55(c), the moving party must
establish as a threshold matter that some event, exigency, or other
cause beyond the party’s own inaction caused the default. They
argue that if the defaulting party cannot proffer some reasonable
justification for the default along these lines, the party has
necessarily not shown “good cause.” And they assert that because
the uncles did not offer any explanation for their late filing other
than their counsel’s inaction, the uncles did not demonstrate good
cause as a matter of law, and the district court should not have
proceeded to consider whether other equitable factors—such as
the ones identified by the court of appeals in Roth and Pierucci—
weighed in favor of setting aside the default.
¶17 As we will explain, this is an incorrect reading of rule
55(c).
I. THE RULE 55(C) “GOOD CAUSE” STANDARD
¶18 When a party fails “to plead or otherwise defend as
provided by” our rules of civil procedure, the opposing party may
request that the clerk of court enter default—sometimes called a
default certificate—against the defaulting party. UTAH R. CIV. P.
55(a). This is “an interlocutory step” taken before the opposing
party moves for default judgment under rule 55(b). 10A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 2692 (4th ed. 2021).2 Obtaining an entry of default is
not an onerous task. “[A]ll that must be shown . . . is that the
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2 “In construing our [rules of civil procedure], we freely refer
to authorities which have interpreted the federal rule[s]” where
the state and federal rules are “nearly identical.” See Gold
Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 168 (Utah
1990). Compare FED. R. CIV. P. 55(c) (“The court may set aside an
entry of default for good cause, and it may set aside a final default
judgment under Rule 60(b).”), with UTAH R. CIV. P. 55(c) (“For
good cause shown the court may set aside an entry of default and,
if a judgment by default has been entered, may likewise set it
aside in accordance with Rule 60(b).”).
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Opinion of the Court
defendant has failed to answer . . . in a timely fashion.” Skanchy v.
Calcados Ortope SA, 952 P.2d 1071, 1076 (Utah 1998).
¶19 Once a default certificate is entered, the defaulting party
may move for it to be set aside under rule 55(c). A district court
may grant such a request “[f]or good cause shown.” UTAH R. CIV.
P. 55(c).
¶20 “Good cause” is not defined by our rules of civil
procedure. Black’s Law Dictionary defines “good cause” as a
“legally sufficient reason”—“often the burden placed on a litigant
. . . to show why a request should be granted or an action
excused.” Good Cause, BLACK’S LAW DICTIONARY (11th ed. 2019).
Accordingly, rule 55(c) requires only that a movant make a
showing that is sufficient to persuade the district court that the
default should be set aside. Nowhere does the rule require the
movant to show that the default was caused by an event,
exigency, or other external cause.
¶21 The cousins essentially read rule 55(c) to require the
moving party to show good cause for the default. But that is not
what the rule says. It provides: “For good cause shown the court
may set aside an entry of default.” UTAH R. CIV. P. 55(c). And as
discussed above, good cause is the burden placed on the movant
to show why a request should be granted. Thus, in this context,
the movant must show why there is good cause to set aside the
default—not why there is good cause for the default. Of course, a
party might argue that a default certificate should be set aside
because the late filing was caused by events beyond the party’s
control. Indeed, a party could proffer any fact or factor that is
relevant to determining whether there is good cause to set aside a
default. But the cousins’ reading of rule 55(c) inserts particular
requirements that are simply not found in the text of the rule. See
Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 21, 428 P.3d 1096(“We will not infer substantive terms into the text that are not
already there.” (citation omitted)).
¶22 The cousins also argue that their reading of the rule is
supported by our appellate case law. They assert that “Utah
appellate courts have consistently required some event, exigency,
or other cause to justify setting aside default or default judgment.”
This may be an accurate observation of the factual circumstances
that are often involved in such appeals. But the cousins have not
cited any case involving rule 55(c) in which we or the court of
appeals have held that “good cause” encompasses the mandatory
threshold showing they urge.
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¶23 Further, the cousins rely heavily on case law interpreting
the “excusable neglect” standard found in rule 60(b)(1). In those
cases, we have held that “excusable neglect requires some
evidence of diligence in order to justify relief.” Jones v.
Layton/Okland, 2009 UT 39, ¶ 20, 214 P.3d 859; see also Sewell v.
Xpress Lube, 2013 UT 61, ¶ 29, 321 P.3d 1080 (“To qualify for relief
under rule 60(b)(1), a party must show he has used due diligence.
Due diligence is established where the ‘failure to act was the
result of . . . the neglect one would expect from a reasonably
prudent person under similar circumstances.’” (alteration in
original) (citation omitted)).
¶24 The cousins assert that our analysis of the excusable
neglect standard applies equally here because the standard for
setting aside a default certificate under rule 55(c) is the same as
the standard for vacating a default judgment under rule 60(b). But
that is incorrect.
¶25 While a default certificate may be set aside for “good
cause shown,” UTAH R. CIV. P. 55(c), a court is given discretion to
vacate a default judgment only upon a showing of, among other
things, “mistake, inadvertence, surprise, or excusable neglect,” id.
60(b)(1). And “the vacation of a default judgment is subject to the
explicit provisions of Rule 60(b), which places additional
restraints upon the court’s discretion.” 10A WRIGHT & MILLER,
FEDERAL PRACTICE & PROCEDURE § 2692; see UTAH R. CIV. P. 60(c)
(establishing a filing deadline applicable to a motion under rule
60(b)(1)). Thus, the standard to set aside a default certificate is
lower than the standard necessary to set aside a default judgment.
See 10A WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2696
(“Any of the reasons sufficient to justify the vacation of a default
judgment under Rule 60(b) normally will justify relief from a
default entry and in various situations a default entry may be set
aside for reasons that would not be enough to open a default
judgment.”).
¶26 “Th[e] distinction [between relief from a default
certificate and a default judgment] reflects the different
consequences of the two events and the different procedures that
bring them about.” Id. § 2692. A default certificate is but a step on
the way to a default judgment. See UTAH R. CIV. P. 55; Skanchy, 952
P.2d at 1076; Roth v. Joseph, 2010 UT App 332, ¶¶ 15, 17, 244 P.3d
391. In contrast, a default judgment generally ends the litigation
and requires a more onerous showing. See UTAH R. CIV. P. 55(b)(2)
(providing, for example, that a court may hold a hearing to
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Opinion of the Court
establish damages or “the truth of any averment, . . . or to make
an investigation of any other matter” before entering a default
judgment). Thus, a party seeking relief from a default judgment
bears a higher burden than a party seeking only to set aside a
default certificate.
¶27 The federal courts interpret their rules similarly. See, e.g.,
Let’s Go Aero, Inc. v. Cequent Performance Prods., Inc., 78 F. Supp. 3d
1363, 1371 (D. Colo. 2015) (“The good cause required for setting
aside an entry of default ‘poses a lesser standard for the
defaulting party than the excusable neglect which must be shown
for relief from judgment under Fed. R. Civ. P. 60(b).’” (citation
omitted)); Insituform Techs., Inc. v. AMerik Supplies, Inc., 588 F.
Supp. 2d 1349, 1352 n.2 (N.D. Ga. 2008) (“The ‘excusable neglect’
standard . . . is more rigorous than the ‘good cause’ standard.”
(citation omitted)).
¶28 This is not to say that cases involving rule 60(b)(1) are
irrelevant to the rule 55(c) analysis. While the standards vary, we
note that oftentimes the reasons for relief from either type of
default will be similar. See 10A WRIGHT & MILLER, FEDERAL
PRACTICE & PROCEDURE §§ 2694, 2696. So, rule 60(b)(1) cases may
shed light on circumstances and factors that will often be relevant
to a rule 55(c) analysis. However, these cases have not grafted
additional requirements onto rule 55(c).3
¶29 Accordingly, we reject the cousins’ argument that the
good cause standard requires a movant to make an initial
showing that the default was caused by some event, exigency, or
other external cause before considering any other relevant factors.
¶30 Because we have not previously had occasion to interpret
rule 55(c), we take this opportunity to identify some guiding
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3 This case has highlighted an inconsistency in our rules of civil
procedure. Rule 6(b)(1)(B) requires that a party show excusable
neglect if moving the court to extend a deadline after that
deadline has expired. But if that same party fails to move the
court for an extension, has a default entered against them, and
then moves to have that default certificate set aside, the party
need only show good cause. Compare UTAH R. CIV. P. 6(b)(1)(B),
with id. 55(c). We direct our rules committee to review this
incongruity and to determine whether it is necessary to provide
further guidance as to the interplay between the two rules.
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principles to assist district courts in analyzing whether to set aside
a default certificate. Vacatur of a default is an equitable remedy
that necessarily requires the district court to exercise its discretion
and consider the facts unique to each case. “By their nature,
equitable inquiries are designed to be flexible, taking into account
all relevant factors in light of the particular circumstances.” Jones,
2009 UT 39, ¶ 17. In other words, the movant can assert, and the
court may consider, any fact relevant to the decision to set aside a
default because “the question is always whether the particular
relief sought is justified under principles of fundamental fairness
in light of the particular facts.” Id.¶31 With that in mind, any doubts should be resolved in
favor of setting aside a default certificate and allowing the case to
proceed on the merits. See, e.g., Helgesen v. Inyangumia, 636 P.2d
1079, 1081 (Utah 1981) (noting that courts should exercise
discretion “in furtherance of justice and should incline towards
granting relief in a doubtful case to the end that the party may
have a hearing”). The policy that “courts should be liberal in
granting relief against default judgments so that cases may be
tried on the merits” is equally applicable to default certificates. See
Erickson v. Schenkers Int’l Forwarders, Inc., 882 P.2d 1147, 1149
(Utah 1994). So, underlying any inquiry into whether a default
certificate should be set aside is the principle that defaults
generally are disfavored and cases should be tried on the merits
where possible.
¶32 But we recognize the competing need for judicial
efficiency and adherence to deadlines. “In exercising discretion
under Rule 55(c), the court will be very cognizant of the
competing policies and values that are relevant to entering
defaults and setting them aside. Both the default entry and
judgment play an important role in the maintenance of an orderly,
efficient judicial system.” 10A WRIGHT & MILLER, FEDERAL
PRACTICE & PROCEDURE § 2693 (footnote omitted). If parties were
able to miss deadlines without recourse, it would delay the
litigation process and place unnecessary strain on the judicial
system. Thus, the entry of default can be “a useful remedy to a
good faith litigant who is confronted by an obstructionist
adversary” and “a means of encouraging an unwilling or
uncooperative party to honor the rules established for . . .
litigation.” Id.
¶33 These competing policies illustrate why the district court
is granted wide discretion in its rule 55(c) determination: the court
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Opinion of the Court
is in the best position to know whether the conduct of a defaulting
party is such that the need to enforce deadlines in a particular case
outweighs the general policy that cases should be adjudicated on
the merits.
¶34 Our court of appeals has identified several factors that
could be relevant to this determination in a given case: “whether
the default was willful, whether the defendant alleges a
meritorious defense, whether the defendant acted expeditiously to
correct the default, whether setting the default aside would
prejudice the plaintiff, and the extent, if any, to which the public
interest is implicated.” Roth, 2010 UT App 332, ¶ 16; see also
Pierucci v. U.S. Bank, NA, 2015 UT App 80, ¶ 9, 347 P.3d 837. These
factors have also appeared frequently in federal case law applying
rule 55(c). See, e.g., In re OCA, Inc., 551 F.3d 359, 369 (5th Cir. 2008);
Let’s Go Aero, 78 F. Supp. 3d at 1371; Peoples v. Fisher, 299 F.R.D. 56,
59 (W.D.N.Y. 2014); Insituform Techs., 588 F. Supp. 2d at 1352.
¶35 We agree that these considerations could be relevant in
an appropriate case. However, we make clear that these factors do
not form a “test” that must be applied in all circumstances.
Rather, we reiterate that “[e]quitable inquiries defy distillation
into any formal legal test; instead, the question is always whether
the particular relief sought is justified under principles of
fundamental fairness in light of the particular facts.” See Jones,
2009 UT 39, ¶ 17. We caution that not every principle will weigh
equally or be relevant in a particular case. And the factors
identified are not an exhaustive list. A district court can consider
anything that is relevant to determining whether the default
certificate should be set aside. But because the factors identified in
Roth may often be relevant to a rule 55(c) inquiry, we briefly
discuss each one and offer related considerations that could be
relevant in individual cases.
¶36 First, a court could consider whether the defaulting
party’s failure to answer was willful. “A willful default is an
‘intentional failure’ to respond to litigation.” In re OCA, Inc., 551
F.3d at 370 n.32 (citation omitted). “Mere negligence or
carelessness is insufficient to support a finding of willfulness.
Willfulness requires egregious conduct that is not satisfactorily
explained,” such as “when a defendant ignores a complaint
without action and fails to offer an explanation for its failure to
respond to a motion or pleading,” Peoples, 299 F.R.D. at 59
(citations omitted), or “cho[oses] to play games,” Lacy v. Sitel
Corp., 227 F.3d 290, 292 (5th Cir. 2000) (citation omitted).
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¶37 Likewise, a court could consider more generally the
defaulting party’s conduct throughout the litigation—assuming
some litigation has taken place, as it has here. For example, if a
party has been actively engaged or otherwise diligent in the case
and the default appears to be an anomaly, that would weigh in
favor of vacating the entry of default. But if the party has been
repeatedly dilatory or otherwise noncooperative, the court may
decide default is warranted and decline to set it aside. See 10A
WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2693 (“The
default procedure offers a useful remedy to a good faith litigant
who is confronted by an obstructionist adversary.”).
¶38 Next, a court could consider whether the defaulting party
acted promptly to cure the default. There is no hard-and-fast rule
to determine what constitutes prompt action in every case. Courts
should look at the response to the default in relation to the overall
context of the litigation.
¶39 Further, a court could consider whether the non-
defaulting party would be unduly prejudiced if the default
certificate were vacated. Some courts have held that delay by itself
is insufficient to show prejudice. See Enron Oil Corp. v. Diakuhara,
10 F.3d 90, 98 (2d Cir. 1993) (recognizing that “delay standing
alone does not establish prejudice”). These courts require a
showing that the delay will “result in the loss of evidence, create
increased difficulties of discovery, or provide greater opportunity
for fraud and collusion.” Peoples, 299 F.R.D. at 61 (citation
omitted).
¶40 But although we agree that delay can be especially
pernicious when it leads to loss of evidence or witnesses, or
otherwise influences litigation, we decline to categorically
disqualify delay itself as a sufficient basis for a finding of
prejudice. Instead, we leave to the district court’s discretion
whether delay in a particular case has become sufficiently
egregious to constitute prejudice on its own. And it is appropriate
for the court to consider whether, if any harm was done to the
non-defaulting party, the harm can be remedied with a sanction
less drastic than default. See Jones, 2009 UT 39, ¶ 22 n.15 (“The
district court’s equitable discretion extends to fashioning the
remedy as well as granting it. In other words, a district court may,
as part of exercising its equitable discretion, in appropriate cases,
condition the relief from judgment on the moving party’s
payment of attorney fees incurred by the nonmoving party as a
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result of the moving party’s neglect or satisfaction of any other
equitable condition.”).
¶41 Additionally, it could be relevant whether the defaulting
party has a meritorious defense. This is a low bar. “A defense is
meritorious if it is good at law so as to give the factfinder some
determination to make.” Am. All. Ins. Co., Ltd. v. Eagle Ins. Co., 92
F.3d 57, 61 (2d Cir. 1996) (citation omitted). This does not mean
the court must consider whether the defendant will ultimately
succeed on the merits. A meritorious defense is merely an
indication of the defendant’s ability and desire to litigate the case
on the merits. Conversely, “if the defendant fails to present a
meritorious defense sufficient to support a finding on the merits
for the defaulting party,” the court may exercise its discretion not
to allow the case to proceed. Lacy, 227 F.3d at 293. In such an
instance, setting aside the default would be futile. Our policy
favoring adjudication on the merits would be overcome because
there would be no real legal issues to adjudicate.
¶42 We again emphasize that district courts have wide
discretion in determining whether a party has shown good cause.
The considerations we have discussed here are by no means a
complete list, and they may not be relevant in every case. Courts
should take the unique circumstances of each case into
consideration and determine “whether the particular relief sought
is justified under principles of fundamental fairness in light of the
particular facts.” See Jones, 2009 UT 39, ¶ 17.
II. THE DISTRICT COURT’S RULE 55(C) ORDER
¶43 To prevail on appeal, the cousins must demonstrate that
the district court abused its discretion in vacating the default
certificate. “Though broad, the court’s discretion is not unlimited.
As a threshold matter, a court’s ruling must be ‘based on adequate
findings of fact’ and ‘on the law.’” Lund v. Brown, 2000 UT 75, ¶ 9,
11 P.3d 277 (citation omitted). In light of the principles and
considerations we identify today and the district court’s findings,
the cousins have not carried their burden.
¶44 We find no error of law in the district court’s ruling. In
analyzing whether to set aside the default certificate, the district
court considered the factors previously identified by the court of
appeals, specifically: “whether the default was willful, whether
the defendant alleges a meritorious defense, whether the
defendant acted expeditiously to correct the default, whether
setting the default aside would prejudice the plaintiff, and the
extent, if any, to which the public interest is implicated.” See Roth
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v. Joseph, 2010 UT App 332, ¶ 16, 244 P.3d 391; see also Pierucci v.
U.S. Bank, NA, 2015 UT App 80, ¶ 9, 347 P.3d 837. As we have
discussed, a court is not required to apply these factors. But where
they are relevant, it is certainly not legal error to do so. A court
may consider any relevant factor.
¶45 And the court’s decision was supported by adequate
findings. The district court determined that the uncles’ default
was not willful. It recognized that the answer the uncles filed as
an exhibit alleged four defenses, all of which it categorized as
“meritorious.” The court found that the uncles acted
expeditiously in moving to set aside the default and oppose the
motion for default judgment. The court determined setting aside
the default certificate would not prejudice the cousins. And it
awarded the cousins attorney fees to compensate for the cost
incurred in moving for the default certificate and default
judgment. Finally, the court recognized that although the case was
a “close call,” the public interest weighed in favor of adjudicating
the case on the merits.
¶46 The cousins argue that the case before us is like Jones v.
Layton/Okland, in which we affirmed a district court’s refusal to
vacate a default judgment because the defaulting party failed to
show “even a minimum level of diligence” prior to default
entering. 2009 UT 39, ¶ 29, 214 P.3d 859. In Jones we noted that in
the realm of a rule 60(b) motion to vacate a default judgment,
“excusable neglect requires some evidence of diligence in order to
justify relief.” Id. ¶ 20. Upon examination of the record, we found
it to be “utterly devoid of any diligence by Jones that would
justify his neglect.” Id. ¶ 28. So we were able to affirm that district
court’s decision because there was “simply no basis in the record
for us to conclude that the district court abused its discretion by
refusing to set aside” the default judgment in that case. Id. ¶ 30.
¶47 We disagree with the cousins’ comparison. The uncles’
conduct is not akin to the defendant’s behavior in Jones, which
was “utterly devoid” of diligence.4 The record shows that the
__________________________________________________________
4 It is important to remember that the standard of review in
Jones and in this case is abuse of discretion. So any comparison of
facts across cases should be done with care. When reviewing for
an abuse of discretion, we are not determining whether the
district court was correct or objectively right. Rather, we are
looking at the case through a lens of deference and determining
(continued . . .)
13
GILLMAN V. GILLMAN
Opinion of the Court
uncles were actively involved in the case—they filed a timely
motion to dismiss, participated in oral argument, and
communicated with opposing counsel. And when Curtis
determined he was out of his element, he sought to engage
litigation counsel and informed the cousins’ counsel of this fact.
When the default certificate was entered, the uncles responded
within days. It is arguable that a court could find this level of
diligence sufficient to warrant vacation of a default judgment, not
to mention a default certificate. “Even where a course of events
does not make it strictly impossible for a party to meet its legal
obligations, the party’s choice to attend to another matter, or even
its simple failure to attend to its legal obligation, may be
sufficiently diligent and responsible, in light of the attendant
circumstances, to justify excusing it from the full consequences of
its neglect.” Id. ¶ 22. So while the court in Jones was within its
discretion to deny relief from a default judgment under the
circumstances before it, so too is the court here within its
discretion to grant relief from a default certificate in light of the
facts here.
¶48 Further, we note that the delay caused by the uncles’
failure to respond was not substantial in the context of the
litigation—considering the extensions the parties had given each
other and the time it took for the cousins to file their proposed
order. Indeed, the cousins’ briefing to this court acknowledges
that “[t]he parties, through counsel, communicated for months
leading up to the deadline to answer.”
¶49 The district court determined these circumstances
constituted good cause to set aside the default. And it did not
abuse its discretion in doing so.5
whether the district court’s ruling was within the bounds of its
wide discretion.
5 This does not mean that we condone Curtis’s handling of this
facet of the litigation. He should have either timely filed the
uncles’ answer or requested an extension while he assisted the
uncles in obtaining litigation counsel. That said, we note that our
Standards of Professionalism and Civility state that, “Lawyers
shall not cause the entry of a default without first notifying other
counsel whose identity is known, unless their clients’ legitimate
rights could be adversely affected.” UTAH STANDARDS OF
PROFESSIONALISM & CIVILITY 16. We do not intend this as a
(continued . . .)
14
Cite as: 2021 UT 33Opinion of the Court
CONCLUSION
¶50 In determining whether there is good cause to set aside a
default certificate under rule 55(c), a district court should weigh
any relevant facts and circumstances of the case before it and
decide whether it would be fundamentally fair to grant the
requested equitable relief. Adjudication on the merits is preferred,
and courts should err on the side of granting rule 55(c) motions
where it is appropriate. We conclude the district court did not
abuse its discretion in finding there was good cause to set aside
the default certificate here. We affirm.
criticism of the cousins’ counsel in this case. But in general, when
counsel knows the identity of opposing counsel, they should
notify opposing counsel explicitly that they intend to move for
entry of default before doing so “unless their clients’ legitimate
rights could be adversely affected.” Id.15