Under the Federal Rules of Civil Procedure, a default judgment can be entered against a defendant who does not make an appearance. Before the court grants a default judgment, the plaintiff must show that notice was properly served to the defendant. In situations where the defendant is in a foreign jurisdiction, the terms of The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents apply. Therefore, it is important to determine if and how notice was received by the defendant. If service was improper, a default judgment may be set aside upon motion by the defendant.
Under The Hague Convention, to effect service on Chinese nationals, the plaintiff must file a request with the Ministry of Justice which will provide service. Direct mail service from a US plaintiff to a defendant in China may not be effective.
Setting Aside a Default Judgment
A default judgment may be set aside if notice was improperly served upon the defendant or if the defendant can establish a legitimate reason for relief. Courts tend to favor setting aside default judgments and will generally do so as long as the defendant can show they were not willfully ignoring the summons. For example, courts have set aside default judgments where service was accepted by the defendant’s secretary (who was not authorized to do so) and never made its way to the defendant. There is no set time requirement to make a motion to set aside a default judgment however a court will consider the length of the delay in deciding whether to grant the motion.
If a court sets aside a default judgment, the case can be re-filed and the defendant will have to face the allegations against him.
Jason Lee
U.S. Legal Consultant
Allen & John Law Firm
www.allenjohn.com
Date: June 9, 2010
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