• January 9, 2015

562px-Mustela_nivalis_-British_Wildlife_Centre-4Lawyers are often mocked for the way they parse words. They are often regarded as word weasels who flim-flam to make the obvious obscure.

But when the Minnesota rules of civil procedure require a motion to vacate a default judgment to be “made” within one year of when a judgment was entered, what does “made” mean? Does it mean that a litigant has to FILE the motion within a year? Does it mean that a litigant has to SERVE the motion within one year? Or does it mean that the motion has to have been HEARD within on year? Does it mean that it has to be DRAFTED (i.e., “made”) within one year?

Would it not be fun to study that puzzle?

No, I think it is safe to say that, for most people, it would not be fun to study that puzzle. But it was necessary in the case of Insulation Distributors v. Bourque, et al. We do not have to root out the meaning of “made” because the Minnesota Court of Appeals recently did the work for us.

(Why in the world would lawyers for Defendant William Bourque (and his company, MacGyver Services, Inc.) FILE a motion to vacate an October 17, 2012 default judgment against Bourque/MacGyver on October 15, 2013 (two days before the deadline) and then SERVE the motion on October 18, 2013 (one day after the deadline)? It’s almost as if they were trying to tee up a civil procedure exam question.)

Stories of litigation often have giant holes in them. Mysteries. Sometimes, what is left out of court opinions, what (or who) is left off witness lists or exhibit lists, left out of witness testimony, and so on, is more interesting (even tantalizing) than what is included.

In Insulation Distributors’ case against Bourque/MacGyver, the Bourque/MacGyver defendants deny they were served with the lawsuit even though a process server swore an affidavit of service of the summons and complaint on the defendants.

At the very last moment, almost one year to the day of the judgment, it seems the Defendants Bourque/MacGyver mysteriously learned of the judgment against them. And then they straddled the procedural fence “making” their motion to vacate the default judgment against them both before and after the deadline…

Photo credit: Jana M. Cisar / USFWS

Photo credit: Jana M. Cisar / USFWS

The case embodies an enigmatic duality — knowledge of a judgment, absence of knowledge about a judgment. Apparent knowledge of the deadline. Apparent absence of knowledge about the deadline. And there is a practice pointer or two in here as well. Civil litigators must all be very aware of the fact that filing with courts is often quite simple and straightforward while service on adversaries, whether or not they are service weasels (and many are) (a species different from word weasels, maybe), can take more time than one thinks…

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