 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wood v. James W. Fowler Co.6/7/2000
As far as I can recall, I received the papers and followed my routine practice which was to give the Summons and Complaint to Susan Cusick, the office manager, or put it into her mail slot. She would then forward the papers to our home office in Springfield, Massachusetts. I believe I followed that procedure on this occasion.'" Mount, 103 Or App at 158.
Conversely, however, Cusick, although acknowledging that her ordinary practice would be to forward the papers to Massachusetts, stated that she did not recall receiving the summons and complaint from the registered agent. The trial court denied the motion to set aside, and we affirmed. In so holding, we distinguished Hackett and Reitz:
"We agree with defendant that those cases establish a liberal standard for relieving corporate defendants from default when process goes awry in the corporation's procedures. We do not agree, however, that those cases support relief on a mere showing that the corporate officer or employee who is held out as the agent for service, and who is responsible for setting matters in motion when he receives service, cannot say to a probability what he did with the papers and whose speculation that he followed normal procedures is belied by the recollections of the other employees that they did not receive the papers." Mount, 103 Or App at 159 (citations omitted).
From our review of the case law, we discern one dispositive and constant principle that transcends mere fact-matching: When a corporation's registered agent has been personally served and has, in fact, given the summons and complaint to an ostensibly responsible subordinate with instructions to take necessary steps to respond to the complaint, the defendant's failure to appear because of the subordinate's negligence is "excusable neglect." This case falls squarely within that principle. Here, as in Reitz, Fowler passed the summons and complaint on to a subordinate on the reasonable, but mistaken, belief that the subordinate "would take care of matters." Hackett, 71 Or App at 33. Indeed, this case is stronger than Reitz in that Fowler's instructions to Beals were unambiguous. Conversely, this is not a case like Lowe or Mount, where there is doubt or dispute about what the registered agent did after receiving the summons and complaint--here, both Fowler and Beals agree about what Fowler did. The only question is with respect to Beals's actions--and, under the entire line of cases we have canvassed from Lowe onward, the focus is on the registered agent's conduct--and not on the subordinate's. Finally, unlike the registered agent in Walker, Fowler neither ignored the complaint nor failed to give adequate direction to his subordinate. Rather, Fowler "knew what to do and thought that the controller would do it." Walker, 97 Or App at 572.
We thus conclude that the trial court erred in denying defendant's motion to set aside the default judgment. We note further, however, that, under ORCP 71 B(1), the court may grant relief "upon such terms as are just." Consequently, on remand, the trial court may exercise its discretion in that regard in the first instance.
Reversed and remanded.
Page 1 2 3 4 5 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|