Background
Plaintiff Shaw, a landlord, served defendant Patterson with a complaint on August 5, 2023. Patterson had retained an attorney in August 2022 to respond to an earlier demand letter from Shaw. When served with the complaint, Patterson mistakenly believed her prior attorney still represented her and would respond to the lawsuit.
After “several weeks,” Patterson realized the prior attorney no longer represented her and had not received notice of the lawsuit. Patterson then attempted to retain new counsel but reported having difficulty obtaining appointments with attorneys in a timely fashion. She met with attorney Fournier on September 5, 2023—the thirtieth day after service—and retained him on September 6, 2023. On that same day, plaintiff filed a motion for default, which the trial court granted on September 7, 2023.
Fournier promptly appeared and moved to set aside the default, but the trial court denied that motion. After a default judgment was entered, Patterson moved to set it aside, supported only by her declaration explaining the circumstances. The trial court denied that motion as well, finding Patterson had failed to establish mistake, inadvertence, surprise, or excusable neglect under Oregon Rule of Civil Procedure 71 B(1).
The Court’s Holding
The Court of Appeals affirmed the trial court’s denial of Patterson’s motion to set aside the default judgment. The court held that Patterson failed to establish, as a matter of law, that her default resulted from mistake, inadvertence, surprise, or excusable neglect under ORCP 71 B(1). Patterson bore the burden of proving one of these grounds, and her vague declaration was insufficient.
The trial court properly found that Patterson failed to adequately explain why she believed her year-old prior attorney still represented her, why she did not inform that attorney of the lawsuit, or why she could not obtain attorney representation until the deadline day. The court concluded Patterson had essentially procrastinated until the deadline passed, knowing she had 30 days to respond but taking no concrete action until meeting with Fournier on day thirty.
The court distinguished this case from precedent like Morrell v. Lane County and Bella v. Aurora Air, Inc., where defendants had acted diligently but were delayed by their attorneys’ or insurance companies’ failures. Here, Patterson herself delayed responding, and the fact that Fournier later acted promptly after being retained did not retroactively establish excusable neglect for Patterson’s pre-default inaction.
Key Takeaways
- A party seeking relief from default under ORCP 71 B(1) must provide specific, detailed facts explaining the circumstances—vague or conclusory declarations are insufficient.
- Prompt action by newly retained counsel after default does not cure a party’s own procrastination in initially responding to service of a complaint.
- A party cannot establish excusable neglect by merely claiming attorney confusion or difficulty obtaining representation without explaining concrete steps taken or why reasonable diligence was impossible.
- The focus is whether the party themselves acted promptly and reasonably upon being served, not whether counsel later acts promptly after being retained.
Why It Matters
This decision reinforces that default judgments are difficult to overturn and that parties bear personal responsibility for timely response to lawsuits. The opinion sets a high bar for establishing excusable neglect: a party cannot rely on vague recollections of attorney relationships or generic claims of difficulty in obtaining counsel. Instead, the party must demonstrate diligent efforts and provide detailed, credible evidence of what prevented timely response.
Attorneys should advise clients to immediately take concrete action upon service of a complaint, regardless of prior attorney relationships or potential representation issues. The court’s emphasis on promptness and specificity means that detailed contemporaneous documentation of efforts to respond—such as records of attorney contacts, telephone calls, or scheduling attempts—becomes critical evidence in any subsequent motion for relief from default.