Defend your default judgment against a motion to vacate
- Peter Schneider
- Sep 15
- 23 min read
Updated: Oct 9
I've written about getting a default judgment, and it is time to write about how to keep it.
Keeping it is the next step, and in this part one of two series, I'll show you a real world example.
My law clerk Nathen Barton got a default judgment against Insurance Supermarket Inc, and they then came to vacate it. In Part One I'll show their motion to vacate, and in Part Two, the Response. To support their motion, Insurance Supermarket Inc relied on a declaration of Sydney Rau:
I, Sidney Rua, state and declare as follows:
I am VP of Privacy, Compliance & Legal for Insurance Supermarket, Inc (“IST”). I make this declaration based upon my personal knowledge and review of the records and files in this matter. I am competent to testify to the matters set forth herein
After ISI was served with the complaint, I began communicating with our codefendant EDM Leads, LLC (“EDM”). [Their motion says they were served on March 7, 2024, and on August 6, 2024. They waited till January of 2025 to communicate with EDM?] On January 14, 2025, EDM's President, Reda Ahlouche, stated in an email that Plaintiffs claims were "baseless and nonsensical" and that an internal investigation confirmed EDM had "no records indicating any publisher associated with DM Leads LLC sent such calls to ISI."
Also in January 2025, after ISI’s registered agent received Plaintiff's Requests for Admission , I sent a response directly to the Plaintiff on January 16, 2025. In that response I stated that ISI had no record of calling Plaintiff's number [I never saw where ISI was accused of calling Mr. Barton] and had not instructed EDM to do so. ISI reasonably believed this direct communication addressed the Plaintiff's inquiry. [Is it reasonable to think you dispense with lawsuits by directly communicating with the plaintiff and then not appearing in court? Asking for a friend.]
Relying on EDM’s initial assurances that the lawsuit was baseless, and having responded directly to Plaintiff, ISI did not file a formal appearance. [Apparently if your codefendant assures you that the lawsuit is baseless and you responded directly to the plaintiff you don't have to appear in court]
ISI was never served with and had no knowledge of Plaintiff's subsequent Amended Motion for Order of Default, the hearing scheduled for February 21, 2025, or the resulting Order of Default. [Yes if you don't appear in court you might not be served with more filings. That is why you should appear in court.]
On June 26, 2025, I contacted EDM for a status update. EDM’s CEO, Jamal English, sent an email explicitly assuring ISI that EDM’s legal team was handling the matter, had "met all required response deadlines," and expected the case to be dismissed.
These continued assurances from our co-defendant confirmed ISI's mistaken
belief that the case was being properly managed and prevented us from discovering the earlier entry of default. [Six months prior ISI thought the matter was closed. Six months later they find out it isn't, but that doesn't prompt them to think anything was wrong. Because the TELEMARKETER they hired to make phone calls had "met all required response deadlines". The funny part is EDM never appeared in the case either.]
ISI first learned that a final judgment had been entered against it on September 8, 2025, when we were inadvertently notified by our outside counsel. [For 18 months they are in the dark about what is going on, but six days after the judgment they inadvertently find out???]
Upon learning of the [$109,400] judgment, I immediately took steps on behalf of ISI to retain counsel to investigate the status of this case and prepare this motion.
ISI has meritorious defenses. ISI's internal records show no calls were made to or received from Plaintiff's number ending in 2139. [I don't think the lawsuit alleged ISI to have made the calls] Furthermore, the Complaint itself alleges the calls were from "Sam with BIS," not ISI. At no point did ISI direct or instruct EDM to place calls to the Plaintiff.
And now the motion to vacate.
I. INTRODUCTION AND RELIEF REQUESTED
Pursuant to CR 60, Defendant Insurance Supermarket, Inc. (“ISI”) moves the Court for an order setting aside the Order of Default entered against it on February 21, 2025, and the Order on Entry of Judgment entered against it on September 2, 2025 (this “Motion”).
II. EVIDENCE RELIED UPON
This Motion relies upon the Declaration of Sidney Rua in Support of Defendant Insurance Supermarket, Inc.'s Motion to Set Aside Order of Default and Order on Entry of Judgment (“Rua Decl.”), and the pleadings and records contained in this Court’s file.
III. STATEMENT OF FACTS
Plaintiff Nathen Barton (“Plaintiff”) filed this lawsuit against ISI and co-defendant EDM Leads, LLC (“EDM”) on July 5, 2024. After the lawsuit's filing, ISI was served with the summons and complaint on March 7, 2024, and on August 6, 2024. [Yet in Mr. Rua's declaration they first communicated with codefendant EDM in January of 2025]
Following service, ISI communicated with EDM’s CEO, Jamal English. Rua Decl. at ¶6. Based upon those communications ISI was under the reasonable belief that EDM’s legal team was actively managing the case for both parties and expected it to be dismissed. Id. at ¶¶ 6 - 7. [Because the telemarketer they hired to initiate phone calls is a crack team of litigation lawyers on the side???]
Unbeknownst to ISI [because they chose not to appear], Plaintiff filed several motions for an order of default. Id. at ¶ 5. The Court denied Plaintiff's initial ex parte motions on July 8, 2024, and December 12, 2024, for procedural deficiencies.
On December 18, 2024, Plaintiff served Requests for Admission on ISI, which were delivered to its registered agent on December 24, 2024 [So a third communication from the plaintiff that they are in a lawsuit]. In response, ISI’s representative emailed Plaintiff on January 16, 2025, denying the allegations, stating ISI had no record of calling Plaintiff's number, and confirming that ISI did not instruct EDM to make the calls. Id. at ¶ 3. ISI believed this communication addressed the matter. Id. [Because they thought that is how you do litigation?]
Plaintiff then filed an amended motion for default, arguing ISI's email did not constitute a formal appearance. ISI was not served with this motion and was unaware of the hearing. [Again, because they didn't appear] Id. On February 21, 2025, the Court held a hearing and entered an Order of Default against ISI. Subsequently, on September 2, 2025, the Court entered an Order on Entry of Judgment against ISI in the amount of $109,400.00. [Which is why ISI jumped in the case] ISI first learned of the judgment on September 8, 2025, when notified by its outside counsel. Id. at ¶ 8. Upon receiving this notice, ISI acted immediately to retain counsel to file this motion. Id. at ¶ 9.
IV. STATEMENT OF ISSUES
Should the Court set aside the Order of Default entered against ISI on February 21,
2025, and the Order on Entry of Judgment entered against ISI on September 2, 2025?
V. AUTHORITY
A. Standard for Vacating a Default Judgment.
“[D]efault judgments are disfavored.” Lamar Outdoor Advert. v. Harwood, 162 Wn. App. 385, 391, 254 P.3d 208 (2011) (citing Morin v. Burris, 160 Wn.2d 745, 754, 161 P.3d 956 (2007) and Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979)). Washington courts “prefer to give parties their day in court and have controversies determined on their merits.” Morin v. Burris, 160 Wn.2d at 754; see also LaBounty v. Mount Baker Sch. Dist. No. 507, No. 84610-8-I, 29 Wn. App. 2d 1048, 2024 WL 692500, *2 (Feb. 20, 2024) (citied as persuasive authority pursuant to GR 14.1). Relief to vacate a default judgment is to be liberally afforded in accordance with equitable principles. Morin v. Burris, 160 Wn.2d at 754 (“[F]or more than a century, it has been the policy of this court to set aside default judgments liberally”); Griggs v. Averbeck Realty, Inc., 92 Wn.2d at 582. Furthermore, “a default judgment should be vacated if the plaintiff has acted in such a way that enforcing the judgment would be inequitable.” Lamar Outdoor Adver. v. Harwood, 162 Wn. App. at 391. Thus, the “guiding principle is whether justice is being served; what is just and proper depends upon the facts and circumstances of each case.” Wilma v. Harsin, 77 Wn. App. 746, 749, 893 P.2d 686 (1995) (citing Griggs v. Averbeck Realty, Inc., 92 Wn.2d at 581-82; White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968)).
A court may relieve a party from a final judgment for “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.” CR 60(b)(1). In deciding whether to vacate a default judgment, the court should consider the following four factors: (1) whether there is substantial evidence to support a prima facia defense; (2) whether the moving party’s failure to timely appear and answer was due to “mistake, inadvertence, surprise, or excusable neglect;” (3) whether the defendant “acted with due diligence after notice of entry of the default judgment;” and (4) whether the plaintiff will suffer substantial hardship if the default judgment is vacated. White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968). The first two factors are of primary importance to the court, while the third and fourth factors are secondary considerations. Id. “Where the defendant promptly moves to vacate and has a strong case for excusable neglect, the actual strength of the defense is less important to the reviewing court.” Lamar Outdoor Adver., 162 Wn. App. at 391. Conversely, if the moving party can demonstrate “a strong or virtually conclusive defense,” the court will spend less time inquiring into the reasons behind the entry of the default, provided the moving party timely moved to vacate, and the failure to appear was not willful. White, 73 Wn.2d at 352.
B. All four factors favor vacating the default judgment.
1. Defendants can support a prima facie defense.
The first factor that courts consider when determining whether vacating a default judgement is appropriate is the existence of a prima facie defense. White, 73 Wn.2d at 352. In considering this first factor, the court “must take the evidence and reasonable inferences in the light most favorable to the” moving party. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 834, 14 P.3d 837 (2000).
Additionally, the court does not weigh the evidence presented. VanderStoep v. Guthrie, 200 Wn. App. 507, 519, 402 P.3d 883 (2017). The court only needs to determine “whether the defendant is able to demonstrate any set of circumstances that would, if believed, entitle the defendant to relief.” Ha v. Signal Elec., Inc., 182 Wn. App. 436, 449, 332 P.3d 991 (2014) (emphasis added).
Here, ISI has a complete defense to Plaintiff’s claims, which are premised on the allegation that ISI is responsible for 34 automated calls he received from co-defendant EDM. First, the entity that Plaintiff alleges placed the calls, EDM, asserted that Plaintiff’s claims were "baseless and nonsensical" and that an internal investigation confirmed EDM had "no records indicating any publisher associated with EDM Leads LLC sent such calls to ISI." Rue Decl. at ¶ 2. ISI does not have Plaintiff’s number in their system. Id. at ¶ 10.
Second, ISI has a defense against being held responsible for calls made by a separate entity. Plaintiff’s theory of liability requires proving that ISI is vicariously liable for EDM's actions. This defense is strengthened by the fact that the allegations in the Complaint confirm the call content never mentioned ISI. The prerecorded message alleged was from a "Sam with BIS," which does not show any direct connection to ISI in the calls themselves. Regardless, ISI denies that it directed or controlled the manner and means of EDM’s telemarketing activities in a way that would establish an agency relationship. Rua Decl. at ¶ 10.
Viewing the evidence in the light most favorable to ISI, Defendant has established a prima facie defense to both liability and the calculation of damages. This factor weighs heavily in favor of vacating the default judgment.
2. ISI’s failure to appear was occasioned by mistake and excusable neglect.
Washington courts may and should relieve parties from default judgment where the failure to appear is based upon mistake or excusable neglect. CR 60(b)(1); Gutz v. Johnson, 128 Wn. App. 901, 919, 117 P.3d 390 (2005) (holding no equitable and just reason to deny defendant an opportunity for a trial on the merits where he was unfamiliar with litigation and reasonably believed he need not do anything further). The court determines mistake and excusable neglect on a case-by-case basis. Gutz, 128 Wn. App. at 918.
Here, ISI’s failure to appear was not the result of willful disregard for these proceedings but was instead based on a good faith misunderstanding stemming from direct communications with its co-defendant, EDM [Apparently if you codefendant who didn't appear in the case assures you the lawsuit is baseless, that's good enough to not appear]. ISI was in contact with EDM’s CEO, Jamal English. Rua Decl. at ¶ 6. In an email, Mr. English explicitly assured ISI that EDM’s legal team was actively managing the case, stating that they had “met all required response deadlines,” [There you go right there, what more assurances could EDM have made beyond they had “met all required response deadlines,”] and expected the case to be dismissed. [Dismissed for who?] Id. Relying on these assurances from its co-defendant, ISI reasonably believed that EDM was handling the litigation [Apparently they believed the telemarketer they hired to initiate phone calls had a crack time of litigation lawyers on the side handling the litigation? Really?] and mounting a defense on behalf of both parties. Id. at ¶ 7. This belief was compounded by the fact that ISI was never served with notice of the subsequent proceedings that lead to this default judgement [You have to appear in court to be entitled to these, it is a good reason to show up in court]; it received no notice of the Plaintiff’s AMENDED Motion for Order of Default, the Order of Default entered on February 21, 2025, or the final entry of judgment on September 2, 2025. Id. at ¶ 5. This lack of notice prevented ISI from discovering that EDM was not, in fact, handling the litigation [Or was it their not appearing in court?]. This Court should find that mistaken reliance, based on specific representations from a co-defendant [What exactly where those representations, that they had “met all required response deadlines”? I didn't see where EDM had promised to do anything for ISI], constitutes excusable neglect. Given Washington’s strong preference for resolving cases on their merits, the default judgment should be set aside. Gutz, 128 Wn. App. at 920-21.
3. ISI acted diligently after receiving notice of the default judgment.
This Motion is timely under CR 60(b), which requires that motions brought pursuant to CR 60(b)(1) be brought “not more than 1 year after the judgment, order or proceeding was entered or taken.” CR 60(b). ISI acted immediately upon learning of the judgment. Rua Decl. at ¶ 9. ISI was never served with Plaintiff’s AMENDED Motion for Order of Default, the order granting default on February 21, 2025, or the final judgment entered on September 2, 2025. [Again, that is why you show up in court] Id. at ¶ 5. ISI remained unaware of these proceedings. Id. at ¶¶ 5, 8 and 9. ISI only learned of the judgment inadvertently on September 8, 2025, when notified by its counsel, who was not representing ISI on this matter at the time. [I guess that rules out EDM because apparently no one else was representing ISI in the matter] Id. at ¶ 8. Upon receiving this notice, ISI acted diligently to formally retain counsel and prepare this Motion, demonstrating a commitment to defending this case on the merits rather than a willful disregard of the Court's proceedings. Id. at ¶ 9.
4. No substantial hardship will result to Plaintiff by vacating this default judgment.
Plaintiff will not suffer any substantial hardship if the default judgment is vacated. The prospect of going to trial and proving the merits of one’s claims does not constitute “substantial hardship.” Pfaff, 103 Wn. App. at 836. Washington’s public policy prefers parties to resolve disputes on the merits, as opposed to default proceedings. Gutz, 128 Wn. App. at 920-21. There will also be no hardship if the damage award of $109,400.00 is vacated because vacating a windfall award does not create hardship. ISI did not make the calls to Plaintiff, and the calls were not made on ISI’s behalf by EDM or any other third party. Rua Decl. at ¶¶ 2, 3, and 10. As such, Plaintiff should not be entitled to collect from ISI for calls they have no association with.
Thus, the Court should set aside the Order of Default entered against ISI on February 21, 2025, and the Order on Entry of Judgment entered against ISI on September 2, 2025.
VI. CONCLUSION
The Court should set aside the Order of Default entered against ISI on February 21, 2025, and the Order on Entry of Judgment entered against ISI on September 2, 2025. A proposed order is submitted herewith.
My prediction
I predict ISI gets wrecked. A two minute search turned up Estate of Stevens, 94 Wn. App. 20, 971 P.2d 58, 1999 Wash. App. LEXIS 20. A Mr. Stevens died, leaving a trust administered by co-trustees, and beneficiaries, and a dispute arose between them over who was to get what.
Two beneficiaries sued trustees (and beneficiaries) Ms. Curtis and Ms. Knight. Ms. Night responded to the summons, Ms. Curtis did not and was defaulted. Eventually Ms. Curtis moved to set aside the default using the same excuse as ISI:
Curtis contended that she did not appear in the action because she relied upon the Response of Kathleen Knight. Curtis believed that Knight, as a cotrustee and co-personal representative, would be obligated to act in her best interests. Curtis, therefore, did not respond to notices from the court because she believed Knight would challenge Rita Stevens' position. In addition, Curtis declared that she only became aware of settlement negotiations on October 8, 1997, and that Knight had not given her notice that she intended to settle the dispute.
The trial court denied Ms. Curtis's motion and she appealed, only to be denied again:
As explained above, although the requirements for setting aside an order of default are not entirely the same as those for setting aside a default judgment, two factors to be considered are the same, excusable neglect and due diligence . . . Curtis also asserts that the trial court erred in determining that her failure to timely appear was not a result of excusable neglect. Curtis argues that the trial court erred by failing to consider whether Curtis had a right to rely upon Rita Stevens and Bob Stevens to discharge their fiduciary duties in the best interests of the beneficiaries, or whether Curtis had a right to rely on Knight's response. As there was no excusable neglect and three months is not within a reasonable time to respond to an order of default, the trial court did not abuse its discretion in denying Curtis' motion to vacate.
And the court ruled she didn't. In the meantime, the plaintiff in this case came back with a response.
Introduction
Insurance Supermarket Inc (“ISI”) has been served a summons and complaint twice,[1] followed up by Requests for Admissions. They admit to receiving all of it, yet none of that brought them to court to defend the case until Judge Sheldrick held a bench trial on the merits (Sub Number 38), and awarded Mr. Barton $109,400 in damages. Then they have done exactly what our state’s Supreme Court forbid in Morin: ignore the summons and complaint . . . and wait for the notice of default judgment before deciding whether a defense is worth pursuing.
ISI is well acquainted with litigation. In the year prior to this lawsuit, in federal court alone they were sued nine times in six different states:
This sophisticated litigant asks the Court to believe that in 2024 when they received each of the two summonses and complaints, instead of consulting with one of their many lawyers or hiring another one, they instead relied on co-defendant and non-lawyer EDM’s assurances that Mr. Barton’s claims where “baseless and nonsensical”. Rua dec. ¶2. Even though EDM’s phone calls on their behalf had previously pulled ISI into the Ulery litigation as a defendant on 6/8/2023, and into the Charman litigation as a defendant on 4/16/2024, and they’d hired lawyers.
ISI would have the Court believe that in June of 2025, instead of consulting with one of their many lawyers or just calling or emailing the Court themselves, sophisticated litigant ISI again relied on EDM’s assurances that it was handling the matter. When one phone call or email to the court would find EDM had never appeared in this case at all.
Notice Mr. Rua’s careful words in ¶8. Despite repeated motions for default starting about a year ago, and then a default judgment process spanning months, he says they were inadvertently notified of Judge Sheldrick’s Entry of Judgment, just six days after it became public. A more logical explanation is ISI was watching the case the entire time and was expecting Mr. Barton to be denied any relief at all, or perhaps a small judgment ISI could abide. How could ISI go 18 months knowing nothing about the events in the case, but in six days they know about Judge Sheldrick’s Entry of Judgment? They were sitting back, wait[ing] for the notice of default judgment before deciding whether a defense is worth pursing.
Argument
Defaults are disfavored, but more so is sitting back waiting to see if the default judgment process plays out adversely as ISI has done here and jumping into the case when it does. ISI is correct that the first two White factors are of primary importance to the outcome of their motion.
(1) whether there is substantial evidence to support a prima facia defense
ISI’s prima facia defense theory has two parts. First, they say they have a hearsay statement from EDM assuring them Plaintiff’s claims were "baseless and nonsensical" and that an internal investigation confirmed EDM had "no records indicating any publisher associated with EDM Leads LLC sent such calls to ISI." That isn’t a denial, and of course, this is the EDM who assured ISI they were handling the matter and expected it to be dismissed. Rua dec. ¶6.
Their second argument is lack of an agency relationship with EDM, and taken together, their two arguments amount to a prima facia defense. They overlook the Admissions: Mr. Rua in his dec. ¶3 admitted they were served with them and 30 days after ISI blew them off they were deemed admitted. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. CR 36(b).
The Admissions (Sub Number 24 Exhibit B) have conclusively established:
● [ISI was] served a summons and complaint in this Lawsuit on August 6, 2024
● during all times relevant, Nathen Barton was the subscriber of telephone number (469) 347-2139.
● during all times relevant, Nathen Barton was the customary user of telephone number (469) 347-2139.
● Nathen Barton registered telephone number (469) 347-2139 on the Federal Trade Commission’s National Do Not Call Registry on 2/10/2021.
● [ISI] hired EDM Leads to telephone solicit (469) 347-2139.
● [ISI] hired EDM Leads to telephone solicit (469) 347-2139 using artificial voice.
● [ISI] hired EDM Leads to telephone solicit (469) 347-2139 using prerecorded voice.
● [ISI] hired EDM Leads to telephone solicit (469) 347-2139 from 12/1/2022 to 1/6/2023.
● [ISI] hired EDM Leads to telephone solicit (469) 347-2139 34 times.
● [ISI] hired EDM Leads to telephone solicit (469) 347-2139 34 times from 12/1/2022 to 1/6/2023.
● [ISI] knew [ISI] [was] calling a resident of Washington State each time [ISI] hired EDM Leads to telephone solicit (469) 347-2139.
● [ISI] instructed EDM Leads not to identify themselves when they called (469) 347-2139 telephone soliciting for [ISI].
● [ISI] instructed EDM Leads not to identify [ISI] when they called (469) 347-2139 telephone soliciting for [ISI].
● [ISI] instructed EDM Leads to never state a telephone number that would allow Nathen Barton to make a do-not-call request.
● [ISI] instructed EDM Leads to never inform Nathen Barton to that the calls were initiated to him on Insurance Supermarket’s behalf.
● during the telephone solicitation calls EDM Leads initiated to Nathen Barton on [ISI’s] behalf, EDM Leads never informed Nathen Barton the calls were initiated on [ISI’s] behalf.
● during the telephone solicitation calls EDM Leads initiated to Nathen Barton on [ISI’s] behalf, EDM Leads never identified themselves.
● the telephone solicitation calls EDM Leads initiated to Nathen Barton on [ISI’s] behalf all used inaccurate caller identification information for the purpose of defrauding Nathen Barton.
● [ISI] instructed EDM Leads to use inaccurate caller identification information on the calls they initiated to Nathen Barton on [ISI’s] behalf for the purpose of defrauding Nathen Barton.
● [ISI] instructed EDM Leads to use an automatic dialing and announcing device for all calls EDM Leads initiated to Nathen Barton on [ISI’s] behalf.
● EDM Leads used an automatic dialing and announcing device for all calls EDM Leads initiated to Nathen Barton on [ISI’s] behalf.
● on 12/1/2022 [ISI] knew Nathen Barton did not consent to receive telephone solicitation from [ISI.
● from 12/1/2022 to 1/6/2023 [ISI] knew Nathen Barton did not consent to receive telephone solicitation from [ISI].
● from 12/1/2022 to 1/6/2023 [ISI] knew Nathen Barton did not consent to receive calls containing artificial voice from [ISI].
● on 12/1/2022 [ISI] knew Nathen Barton did not consent to receive telephone solicitation from you containing artificial voice.
f● from 12/1/2022 to 1/6/2023 you knew Nathen Barton did not consent to receive calls containing prerecorded voice from [ISI].
● on 12/1/2022 [ISI] knew Nathen Barton did not consent to receive telephone solicitation from [ISI] containing prerecorded voice.
● EDM Leads telephone solicited phone number (469) 347-2139 34 times on [ISI’s] behalf.
● EDM Leads telephone solicited phone number (469) 347-2139 34 times on [ISI’s] behalf from 12/1/2022 to 1/6/2023.
They’ve admitted EDM placed the calls to Mr. Barton on their behalf, Mr. Barton didn’t want their calls, and they hired EDM to initiate them anyway.
(2) whether the moving party’s failure to timely appear and answer was due to “mistake, inadvertence, surprise, or excusable neglect”
ISI’s motion doesn’t argue their failure to appear was due inadvertence or surprise, just mistake and excusable neglect. Neither excuse squares with the facts. Mr. Rua says “[a]fter ISI was served with the complaint” he began communicating with co-defendant EDM in January of 2025.[2] Rua dec. ¶2. If true, that conversation took place 313 days after service of process on March 7, 2024 (Sub Number 13 Exhibit A), and 161 days after the August 6th 2024, service of process (Sub Number 13 Exhibit B). His alleged January 2025 conversation seems prompted by the Requests for Admission (Rua dec. ¶3) mailed to ISI’s registered agent on December 18, 2024, (Sub Number 24 Exhibit B) rather than a sudden yearning to defend the case.
In any event, Mr. Rua’s declaration doesn’t say that prior to June 26, 2025, (474 days after the March 7, 2024, service of process and 324 days after August 6th) EDM gave ISI any reason at all not to appear in court. Rather it was ISI’s own decision to ignore two court summonses and complaints because hundreds of days later after receiving them, their co-defendant supposedly assured ISI the lawsuit was “baseless and nonsensical”. And on their own initiative ISI told the plaintiff it would ignore the summonses [assume the matter is closed] unless ISI hear[s] back from [Mr. Barton]. Rua dec. ¶4. If Mr. Rua thought EDM or anyone else was going to defend ISI in court, why say he considered the matter closed unless he heard from Mr. Barton again?
Nor does Rua’s declaration ¶6 save them. In ¶4 he claims that based on EDM’s initial assurances and direct communication to Mr. Barton, ISI considered the matter closed and they chose not to appear. If ISI thought the matter was closed, why reach out to EDM six months later on June 26 for a status update? Who asks for a status update on a matter they think is closed?
Prompted by his June 26, 2025, email, EDM’s CEO informed ISI that the lawsuit was actively being litigated. While others might have been shocked to spend the prior six months thinking the matter was closed and suddenly learning it was actively being litigated, Mr. Rua testified that Mr. English’s email only served to confirm ISI’s belief that the case was being properly managed, and Mr. Rua went on to testify this revelation from EDM’s part prevented [EDM] from discovering the earlier entry of default. ¶7. Really? ISI thought the agent they hired to telephone solicit for them was also a crack team of litigation attorneys on the side?
ISI is a sophisticated litigant, defending themselves against nine federal court telemarketing lawsuits filed in 2023. Nowhere does Mr. Rua say EDM agreed to defend ISI, or told ISI not to appear, or that ISI didn’t need to appear, or in any way implied ISI reasonably thought EDM represented them in this lawsuit. According to Mr. Rua, EDM said they were handling the matter . . . and expected the case to be dismissed, but where did EDM claim, imply, or represent they were handling the lawsuit for ISI? Or that the lawsuit would be dismissed for ISI? A sophisticated litigant like ISI could not possibly be under the mistaken belief that EDM – a telemarketer they hired to make solicitation phone calls – was also litigation attorneys going to represent ISI in court and ISI didn’t even need to appear.
ISI’s “mistake” was in thinking that it could ignore the summons and complaint for 313 days after the first service, and 161 days after the second. While they blame EDM for not appearing, they already had not appeared for hundreds of days prior to January of 2025 when they claim they first talked to EDM. For all ISI knew, EDM was busy in the lawsuit pinning the liability on ISI. A reasonable defendant would have looked for themselves, and it was unreasonable for ISI – defending itself against nine federal telemarketing lawsuits filed in 2023 – to think that EDM would get the lawsuit against ISI dismissed without ISI’s appearance.
None of this rises to mistake, or excusable neglect under White. Even if ISI genuinely believed EDM was somehow going to advocate on ISI’s behalf in court, it didn’t excuse failing to appear. See Estate of Stevens 1999 Wash. App. LEXIS 20, 94 Wn. App. 20, 971 P.2d 58 (Served a summons, Ms. Curtis didn’t appear and was defaulted – Curtis believed that Knight, as a cotrustee and co-personal representative, would be obligated to act in her best interests – Curtis moved to vacate the default arguing excusable neglect. The trial court denied the motion. Affirmed on appeal.). See also Brooks v. Univ. City, Inc., 154 Wn. App. 474, 225 P.3d 489, 2010 Wash. App. LEXIS 298 (registered agent failing to forward summons not excusable neglect), Prest v. American Bankers Life , 79 Wn. App. 93, 900 P.2d 595, 1995 Wash. App. LEXIS 374 (summons mislaid not excusable neglect), MDB Landmark LLC v. Washington, 2024 Wash. App. LEXIS 1414 (Defendant’s belief that the parties were in negotiations not excusable neglect), Rivas v. Russell, 2022 Wash. App. LEXIS 1759 (mistaking a summons as related to another lawsuit not excusable neglect), In re Dependency of C.M.L., 28 Wn. App. 2d 40, 537 P.3d 1044, 2023 Wash. App. LEXIS 1647, 2023 WL 5528038 (getting the dates mixed up not excusable neglect) and re Welfare of S.I., 184 Wn. App. 531, 337 P.3d 1114, 2014 Wash. App. LEXIS 2694 (disregard of summons is not excusable neglect).
(3) whether the defendant “acted with due diligence after notice of entry of the default judgment”
ISI did what the Washington State Supreme Court in Morin warned against: ignore the summons and complaint . . . and wait for the notice of default judgment before deciding whether a defense is worth pursing. Yes, as soon as the case went against them for $109,400 they suddenly wanted to defend on the merits. Would they be here now had Judge Sheldrick awarded Mr. Barton $500? No, they wanted to have their cake and eat it too.
(4) whether the plaintiff will suffer substantial hardship if the default judgment is vacated.
Sending this case to trial now would be a hardship on Mr. Barton because on 7/1/2025, EDM Leads filed Articles of Termination with the Arizona State government, attesting under oath that all of its known properties and assets have been applied and distributed. The main witness in the case has ceased to exist, records and witnesses scattered or lost, and at this late date, quite possibly phone records were deleted according to retention policies.
Conclusion
As their own motion acknowledges, they don’t even get to the White factors because their failure to appear was willful. White. Even without this, ISI would have to show both a prima facia meritorious defense and excusable neglect. The defense they tried to muster – EDM didn’t telephone solicit Mr. Barton and EDM wasn’t our agent – is at odds with their admissions in the case.
Nor can they show excusable neglect. ISI was served a summons and complaint not just once, but twice. If they still weren’t sure they were being sued, they acknowledged receiving a Request for Admissions which they also blew off. ISI failed to appear in court hundreds of days before Mr. Rua says he communicated with EDM for the first time in January of 2025. And nothing Mr. Rua claims EDM told ISI would have caused any reasonable litigant to skip appearing in court. Let alone ISI who had been sued nine times for illegal telemarketing in the year prior to this lawsuit and was well versed in how to respond to a summons and complaint.
[1] See their motion page 1 lines 24-25: ISI was served with the summons and complaint on March 7, 2024, and on August 6, 2024.
[2] ISI speaks of the emails’ contents in conclusionary language but dares not show them.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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