Kreisman Law Offices Professional Corporation
The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by the U.S. district judge who refused to reopen a default judgment. Kyler Moje, a hockey player on the Danville Dashers of the Federal Hockey League, lost an eye to high-sticking during a game against the Akwesasne Warriors. Moje sued Oakley Inc., which made the visor that Moje blamed for offering inadequate protection to his face and eyes. But Moje also sued the Federal Hockey League itself.
Rather than notifying its liability insurer, the Federal Hockey League hired a lawyer based in Syracuse, New York, John LoFaro. A month after the lawsuit started in the U.S. District Court, Oakley’s attorney called Dan Kirnan, the Federal Hockey League president, to ask why it did not file an answer to the complaint filed against it. Kirnan in turn contacted LoFaro, the League attorney. LoFaro told Kirnan that he had filed an answer to the complaint. LoFaro sent the league what he claimed to be a copy of that answer.
However, the court’s docket did not reflect any such court filing made on behalf of the defendants. Moje asked the court to enter a default judgment. LoFaro did not respond to the default motion nor the court entry of the default judgment. The court permitted Moje to claim damages. Four months after the lawsuit was begun, the U.S. District Court entered a final judgment of $800,000 for the damages suffered by Moje against the Federal Hockey League.
Moje commenced collection proceedings in October 2014. It was then that Kirnan, the league president, notified the league’s insurer. The insurer then undertook the league’s defense under a reservation of rights for late notice and possibly because of liability coverage issues.
In December 2014, a lawyer hired by the insurer entered an appearance for the Federal Hockey League and filed a motion to set aside the judgment. The district court judge denied the motion and the League appealed.
The appellate panel began by noting that unlike the recently decided Choice Hotels International Inc. v. Grover case, the motion to set aside the judgment in the instant case was filed only six months after the conclusion of the case and therefore was allowed to be filed by Rule 60(b)(1), which allows relief on account of mistake, inadvertence, surprise or excusable neglect.
The appeals panel cited Pioneer Investment Services Co. v. Brunswick Associates, L.P., wherein the panel stated that, in order to meet the “excusable neglect” standard, a litigant must show that both it and its lawyer’s actions fit into the excusable neglect category. This holds true except for the case which a lawyer abandons their client. Should abandonment occur, then the question is whether the litigant’s conduct was excusable.
The panel assumed that LoFaro abandoned the league but found that the league’s conduct was not excusable. The panel found that the league failed to tender the defense of Moje’s lawsuit to its insurer when it received the complaint and, the league chose not to act prudently after first being alerted by Oakley that there was a problem with the lawsuit. The court of appeals concluded that had the league taken reasonable steps to protect itself based on LoFaro’s inaction, it could have had the judgment reopened under Rule 60(b)(1). However, as the league chose not to do so, the court of appeals determined that the district court did not err in denying the motion to reopen the case. There was no abuse of discretion. Accordingly, the court of appeals affirmed the district court judge’s decision denying the motion to vacate the default judgment.
Kyler M. Moje v. Federal Hockey League, LLC, No. 15-1097, (U.S. Court of Appeals, 7th Cir., July 7, 2015).
Kreisman Law Offices has been handling catastrophic injury cases, truck accident cases and automobile accident cases for individuals and families who have been injured or killed by the negligence of another for more than 38 years, in and around Chicago, Cook County and its surrounding areas including Hickory Hills, Summit, LaGrange, Western Springs, Hinsdale, Chicago (Marquette Park, Little Village, Garfield Park, Polish Village, Chinatown, Little Italy, Ukrainian Village, Goose Island, Old Town, Wicker Park), River Grove and Franklin Park, Ill.
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