Questions about a default judgement in a civil case

[MidwestTech]

What is the name of your state (only U.S. law)? Illinois


Some time ago, I filed a complaint with the Illinois Department of Labor (IDOL) against a former employer for unpaid wages. The IDOL ordered my former employer to pay me several thousand dollars. The employer did not do so.

The IDOL then referred the case to the Illinois Attorney General (AG). The AG filed a civil suit against the employer in the Circuit Court of Cook County, Illinois. The Illinois AG was representing the IDOL in the civil suit.

On the date of trial, the defendant did not show up. The judge awarded the plaintiff (the IDOL) a default judgement. Part of the money was to go to the employee (myself), and the rest was to go to the IDOL.

The defendant had 30 calendar days to file a motion to vacate the default judgement. Within 30 days, the defendant did file such a motion. The motion to vacate was granted, and a new trial date was set.



Here are my questions:

1) Is it possible to ask the judge a) to reconsider the order to vacate the default judgement and b) to reinstate the default judgement?

2) If yes, what is the deadline for doing so?

3) I have read the defendant's motion to vacate the judgement, and the motion has some errors in it.

For example, the defendant states the following: "Plaintiff's failure to appear at trial was not intentional or done with the purpose of delaying the trial of this matter."

The defendant meant to say "Defendant's failure ..." and instead mistakenly said "Plaintiff's failure ...".

Later on, the defendant states the following: "Wherefore Plaintiff pray this Court to vacate" the judgement, instead of saying ""Wherefore Defendant pray this Court to vacate" the judgement.

In other words, the defendant used the word "Plaintiff" where the word "Defendant" should have been used.

Since this motion contains these errors, can the argument be made that the defendant did not file a proper motion to vacate within 30 calendar days and that the default judgement must be reinstated?

By the way, I would like to point out that the improperly written motion to vacate is just one of several reasons why I believe that the judge should reinstate the default judgement. However, I will not get into a discussion of the other reasons at this time.


Thanks for any information.

 

[Ronin]

In other words, the defendant used the word "Plaintiff" where the word "Defendant" should have been used.

Since this motion contains these errors, can the argument be made that the defendant did not file a proper motion to vacate within 30 calendar days and that the default judgement must be reinstated?

No. The motion was timely filed. These types of errors are presumed harmless. Worst case is the defendant files an amended motion.

By the way, I would like to point out that the improperly written motion to vacate is just one of several reasons why I believe that the judge should reinstate the default judgement. However, I will not get into a discussion of the other reasons at this time.

You will need to get into a discussion of these with the court, since your other arguments won't fly with the court. Any such arguments will have to be raised by the AG, which is representing IDOL in this case.

Since the motion was granted and a new trial was set, it is unlikely any arguments will change this at this point. These arguments should have been made before the motion was granted and a new trial set.

 

[MidwestTech]

No. The motion was timely filed. These types of errors are presumed harmless. Worst case is the defendant files an amended motion.

The defendant filed the motion only 2 days before the deadline. The hearing was held 12 days after the deadline. This motion was the only motion that the defendant filed within the deadline. So, if the motion was full of errors, why does the defendant get a pass on these errors?

Since the motion was granted and a new trial was set, it is unlikely any arguments will change this at this point. These arguments should have been made before the motion was granted and a new trial set.

This case was received by the AG from the Labor Dept. in the fall of 2007. The complaint was finally filed in court by the AG in December 2008. From fall 2007 to March 2009, the AG's office had a relatively experienced attorney working on the case.

Then, in March 2009, the AG's office hired some young, inexperienced attorney to also be part of the case. Both attorneys came with me to court on the date of trial in June 2009. But, only the young, inexperienced attorney went to the hearing on the motion to vacate. The experienced attorney supposedly was not available.

I did not know before the hearing that only the young attorney would be there. I thought BOTH attorneys would be there. Also, it was after the hearing that I went to the court house, looked at the case file, saw the motion, and found the errors. I have not yet spoken to either of these attorneys about the errors I found, but it is very likely that only the young attorney looked at the motion and did not find the errors.

 

[Ronin]

The defendant filed the motion only 2 days before the deadline.

Then it was timely filed. It would have been timely even if filed 5 minutes before the deadline.

The hearing was held 12 days after the deadline. This motion was the only motion that the defendant filed within the deadline.

This was plenty of time to have filed a response challenging the defendants motion. However, many judges are inclined to err on the side of affording defendants an opportunity to be heard. The judge granted the motion after a hearing in which all sides had an opportunity to present their arguments.

So, if the motion was full of errors, why does the defendant get a pass on these errors?

Because you had an opportunity to addresss any such errors at the hearing. That was your deadline to raise any issues with the motion. Now that the hearing is over any issues you may have over such errors are waived.

Because such errors require a finding of harm. In other words, what specific harm did this error cause, that would not have been caused if not for this error.

You are grasping at straws that will not hold up in court. Trial has been set and will proceed as scheduled, unless the parties are able to mediate the issues beforehand.

 

[MidwestTech]

OK. Let's talk about my other reason for wanting to reinstate the default judgement.

During the hearing on the motion to vacate, the defense had to come up with an excuse for not showing up at the trial. I believe that the defense's excuse was bogus.


In April 2009, in the last pre-trial hearing before the trial, the trial date was set. At the April hearing, the defense was represented by one attorney. No other defense attorney was present, and neither was the defendant.

At the August hearing on the motion to vacate, the defense argued the following: The attorney who was present in the April hearing, later left the law firm without telling the rest of the defense attorneys or the defendant what the trial date was.

The attorney from the AG's office argued that she had repeatedly phoned the defense law firm and left messages, asking for discovery material and reminding the law firm of the date of the trial.

However, the defense claimed that the AG attorney had left messages on the voicemail of the defense attorney from the April hearing. After that defense attorney left the law firm, the rest of the lawyers neglected to check that attorney's voicemail. Thus, the rest of the lawyers did not receive the AG attorney's reminders of the trial date.

The AG attorney told me that these are the arguments that were made in the hearing on the motion to vacate.


The excuses offered by the defense are very implausible. The one attorney who knew about the trial date left the law firm without telling anyone else at the law firm or the defendant? The other attorneys do not check the voicemails of the attorney who leaves the firm?

Well, somehow, the judge bought this and vacated the default judgement.


I believe that the defense's excuses are lies and that the defense missed the trial on purpose to avoid the day of reckoning. I believe that the defense perpetrated a fraud upon the court by telling these lies to the judge. Furthermore, when I saw the case file, I found out that the defense also did not show up for a pre-trial hearing in March 2009. The judge who presided over the motion to vacate is NOT the same judge who presided over that pre-trial hearing. So, the judge from the "vacate" hearing may not even have known that the defense had missed a pre-trial hearing.


So, if we find some proof that the defense's excuses are lies and/or we tell the "vacate" judge about the missed pre-trial hearing, will that cause the "vacate" judge to reinstate the default judgement?


Also, what happens if the defense does not show up for the next trial? How many times can the defense not show up for a trial before the judge denies the motion to vacate?


Thanks for any info.

 

[Ronin]

A hearing was held at which time both sides had the opportunity to make ALL their arguments. The judge ruled and it is over, end of story.

It doesn't matter any more if you do find additional evidence to support your position that could have been raised at the hearing but was not.

You should be asking the attorneys in your case these questions. They are handling this case and will decide how to best manage it.