Kentucky Motion to Vacate or Set Aside Judgment of Dismissal Due to Mistake, Inadvertence, or Excusable Neglect and to Reinstate Cause of Action

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In deciding whether to set aside a judgment of dismissal for failure of a party to appear, courts seek to balance two competing interests: (1) the need to promote judicial economy; and (2) the need to preserve an individual's right to have his day in court. Therefore, in addition to the requirement that plaintiff show that the judgment was entered through excusable neglect or another statutory ground, the court will consider a variety of factors, including:


- the nature and extent of the prejudice which may be suffered by the non-defaulting party if the judgment is set aside;

- the presence of material issues of fact;

- the presence of a meritorious claim;

- the significance of the interests at stake, including, but not limited to, the amount of money involved;

- whether the failure to appear was intentional or willful or the result of conscious indifference;

- whether party or counsel bears responsibility for default; and

- the availability of less drastic sanctions.

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  • Preview Motion to Vacate or Set Aside Judgment of Dismissal Due to Mistake, Inadvertence, or Excusable Neglect and to Reinstate Cause of Action
  • Preview Motion to Vacate or Set Aside Judgment of Dismissal Due to Mistake, Inadvertence, or Excusable Neglect and to Reinstate Cause of Action
  • Preview Motion to Vacate or Set Aside Judgment of Dismissal Due to Mistake, Inadvertence, or Excusable Neglect and to Reinstate Cause of Action

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FAQ

In determining whether the neglect is excusable, courts take a flexible approach and consider all relevant circumstances. For example, clerical errors, like a misreading of the filing date, have been considered excusable.

Examples of mistake, inadvertence, surprise, or excusable neglect include: ? Illness of defendant. Attorney's abandonment of client. Fraud of the plaintiff. The following instructions and forms assume that you are a defendant who is filing a motion to vacate a default judgment.

CR 59.05 Motion to alter, amend or vacate a judgment A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.

Ing to the court, ?excusable neglect is found 'where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.?

Inexcusable neglect is when someone fails to do something they were supposed to do, and there is no good reason for it. It's not just a mistake or forgetfulness, but a serious and unjustifiable failure to take care of something or someone.

Federal Rule of Civil Procedure 6(b) Nat'l Wildlife Fed'n, 498 U.S. 871, 896 (1990). Excusable neglect requires ?a demonstration of good faith ... and some reasonable basis for noncompliance within the specified period of time.? Kimberg v. Univ. of Scranton, 411 Fed.

Definition & Citations: the term given to negligence that the defendant could not control the circumstances of.

On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time ...

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Kentucky Motion to Vacate or Set Aside Judgment of Dismissal Due to Mistake, Inadvertence, or Excusable Neglect and to Reinstate Cause of Action