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RIDGEWAY SUPERIOR COURT
FOR THE COUNTY OF RIDGEWAY
JAMES_GARDAI,
Plaintiff/Counter-Defendant,
v.
ZONED_JJ,
Defendant/Counter-Plaintiff.
Action No. RSC-CV-0853
COUNTER-PLAINTIFF’S RESPONSE IN OPPOSITION TO
COUNTER-DEFENDANT’S MOTION TO SET ASIDE DEFAULT
Nicklaus_s (Rid. Bar No. 10241)
NICKLAUS & ASSOCIATES LLP
1 Jackson Road
Palmer, Ridgeway 90025
(123) 456-7890
[email protected]
Attorney for Defendant/Counter-Plaintiff
INTRODUCTION
Counter-Defendant JamesGardai asks the court to set aside an entry of default that
he brought upon himself through a pattern of deliberate non-participation, strategic delay,
and bad-faith litigation conduct. His motion should be denied. He did not fail to respond
because of excusable neglect, a good-faith belief that service was improper, or any other
circumstance beyond his control. He failed to respond because he chose not to. He was
aware of the counterclaim, engaged in substantive argument about the underlying legal
issues in the public record, sought discovery, and still declined to answer. That is not
excusable neglect. That is willful default—and courts across every circuit that has
considered the question have held that willful default precludes relief under the good
cause standard. The motion should be denied, and Counter-Plaintiff should be permitted
to proceed to a damages hearing.
STANDARD OF REVIEW
Rule 37 of the Ridgeway Rules of Civil Procedure provides that “when a
party…has failed to plead or otherwise defend as provided by these rules…the clerk shall
enter his default.” Id. at 37(a). After an entry of default is made, “judgment by default
may be entered.” Id. at 37(b). However, “for good cause shown the court may set aside an
entry of default” or “a judgment” if one “has been entered.” Id. at 37(c). The standard for
good cause is not defined in the rules, and it differs by jurisdiction; however, courts
considering whether good cause exists to set aside an entry of default generally weigh:
(1) whether the defendant was culpable for the default; (2) whether the defendant has a
meritorious defense; and (3) whether the plaintiff would be prejudiced by setting aside
the default. As the party that seeks to set aside the default, the defendant bears the burden
to show that all three factors are met. Critically, each factor is disjunctive such that the
court may deny a motion when any one single factor is absent. The preference to decide a
case on its merits is not absolute and does not overcome the deliberate failure to respond
to a complaint. S.E.C. v. Internet Solutions for Business Inc., 509 F.3d 1161, 1166 (9th
Cir. 2007) (“The defendant who chooses not to put the plaintiff to its proof, but instead
allows default judgment to be entered and waits, for whatever reason,…should have to
bear the consequences of such delay.”)
ARGUMENTS
I. The motion to set aside default should be denied because the default was
intentional, such that the other factors need not be reached.
Counter-Defendant JamesGardai ignored the counterclaim in this matter and
engaged in culpable conduct that led to the default. The timeline here does not reflect
confusion or an innocent mistake. It indicates a deliberate choice to ignore this case. As
such, the motion to set aside the entry of default should be denied because he was
culpable for the default by acting consciously, willfully, and intentionally in failing to
respond.
Especially relevant here, a party is culpable for a default when it “has received
actual or constructive notice of the filing of the action and intentionally failed to answer.”
United States v. Mesle, 615 F.3d 1085, 1093 (9th Cir. 2010). Any conduct that is willful,
deliberate, or bad faith in the failure to file an answer qualifies as intentional. TCI Group
Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001). But a represented party is
presumed to understand the “consequences of failing to answer” and is assumed to have
chosen to do so for “some advantage.” Id. at 699. Thus, when “considering a legally
sophisticated party’s culpability in a default, an understanding of the consequences of its
actions may be assumed, and with it, intentionality.” Mesle, 615 F.3d at 1093. In that
situation, no finding of willful, deliberate, or bad faith conduct is necessary. Id. Thus, a
party that is represented by legal counsel, has consulted with a lawyer, has experience in
other legal actions, or has general familiarity with the legal process is presumed to
understand the consequences and to have perceived an advantage in their choice to
default. TCI Grp. Life Ins. Plan, 244 F.3d at 699; Meadows v. Dominican Republic, 817
F.2d 517, 522 (9th Cir. 1987).
That presumption applies with full force here. Unlike in Mesle, Counter-Defendant
is not a “layman working without aid of an attorney” who is not held “to the same
standards to which we hold sophisticated parties acting with the benefit of legal
representation.” Mesle, 615 F.3d at 1091. He has held himself out as an attorney with an
extensive list of professional credentials. A party who presents himself to the court as a
licensed attorney cannot simultaneously claim ignorance of the consequences of failing to
answer a counterclaim. Mesle, 615 F.3d at 1093. The sophisticated-party presumption
applies, and intentionality is established as a matter of law without further inquiry.
Even setting aside the presumption, the factual record independently establishes
willfulness. The counterclaim was filed and served on April 14, 2026. On April 18,
2026—well within the window to respond—Counter-Defendant asked the court to
proceed to discovery. In response, we reminded the court that an answer needed to be
filed prior before we could move to discovery, and JamesGardai replied that he had not
been served. The parties then engaged in a substantive discussion about the applicable
service rules. On April 25, 2026, we moved for an entry of default against JamesGardai,
who maintained in response to the motion that he had never been served.
A party who disputes the merits of a case, cites controlling authority, and seeks
affirmative relief from the court cannot credibly maintain that he was unaware a
counterclaim had been filed against him. His service objection does not save him. Even
assuming for the sake of argument that service was imperfect, actual notice of the action
is sufficient to establish culpability regardless of whether formal service requirements
were satisfied. Counter-Defendant had actual notice. His own conduct proves it. Instead
of filing a motion to dismiss, a motion to quash service, or otherwise defend and respond
to the counterclaim, Counter-Defendant allowed the case to fester without an answer.
Because the default was willful, the court need not reach the questions of
meritorious defense or prejudice—although we maintain that the Counter-Defendant has
not carried his burden on those grounds either, merely making conclusory remarks.
CONCLUSION
For the foregoing reasons, the court should deny the motion to set aside default.
Dated: April 29, 2026
Palmer, Ridgeway Respectfully submitted,
/s/ Nicklaus_s
Nicklaus_s (Rid. Bar No. 10241)
NICKLAUS & ASSOCIATES LLP
1 Jackson Road
Palmer, Ridgeway 90025
(123) 456-7890
[email protected]
Attorney for Defendant/Counter-Plaintiff
RIDGEWAY SUPERIOR COURT
FOR THE COUNTY OF RIDGEWAY
JAMES_GARDAI,
Plaintiff/Counter-Defendant,
v.
ZONED_JJ,
Defendant/Counter-Plaintiff.
Action No. RSC-CV-0853
[PROPOSED] ORDER
UPON CONSIDERATION of Counter-Defendant’s Motion to Set Aside Default,
and good cause appearing, it is this __ of ________, 2026, by the Superior Court of
Ridgeway for Ridgeway County:
ORDERED that Counter-Defendant’s Motion to Set Aside Default is DENIED;
and it is
FURTHER ORDERED that Counter-Plaintiff shall file and serve a Motion for
Default Judgment on or before [DATE].
/s/
Superior Court Judge
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Notes
Response in Opposition to Motion to Set Aside Default
