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Tabberone is pronounced tab ber won
not tay ber own

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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


Last updated March 14, 2009

Default Judgment

If your opponent does not bother to answer the complaint you get to file for a default judgment. This doesn't happen very often so don't waste your time hoping. It's great if the other side never intends to fight it but it hs its drawback. The default gives you pretty much you have requested but it can be a weak victory.

Your opponent has 30 days after the default judgment is entered into the record. The judge's order to enter a default is not a default. The clerk must enter it into the record. Courts basically hate default judgments. If your opponent files a motion to set aside the default within 30 days it is very likely the court will set it aside. The courts use three ctiteria in determining if a default judgment should be set aside:

  • Was the default intentional or in bad faith? This is difficult to prove that it was. All the opponent has to do is have some reason, stupidity is a good one, and the court's tend to take their word for it.
  • Will the prevailing party be harmed by the time delay to hear the case? Forget it, you're not going to win this one.
  • Can the defaulting party put forth a meaningful defense? All the other side had to do is present a reasonable defense to the allegations and the court will set aside.
So, if the other party files in the 30-day period your default judgment is toast. We would suggest that if you get a default judgment you do not send a nanny-nanny-boo-boo email to your opponent to alert them of the judgment. Wait 30 days after the judgment is entered or six months if there is money awarded. That makes it harder for them to get it set aside.

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District, which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here. These pages are not a complete analysis of everything that can happen. These are intended a guide and starting point. Always consult competent legal help.

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