Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Civil Practice / Civil Practice — Rule 60 Motion – Hurricane Florence – Default – Motion to Set Aside – Delay

Civil Practice — Rule 60 Motion – Hurricane Florence – Default – Motion to Set Aside – Delay

Where the trial court found that (1) defendant Rizk was a resident of South Carolina, (2) he was unable to attend the original hearing on plaintiff’s motion for summary judgment due to  “the approach of Hurricane Florence” which forced mandatory evacuations of the area around Rizk’s home, (3) Rizk’s responsibilities to his family and home during this natural disaster “prevented him from attending the Summary Judgment hearing,” (4) Rizk attempted to reschedule the hearing date but “was denied,” and (5) the trial court’s lower award of damages after a new hearing indicates that Rizk had a meritorious defense that reduced the damages, the trial court did not abuse its discretion when it set aside its original summary judgment order.

We affirm the trial court’s grant of Rizk’s motion to set aside judgment and its denial of his motion to set aside entry of default.

Given that (1) plaintiff properly served Rizk with its summons and complaint in June 2018 and served Rizk with numerous other filings for nearly a year; (2) Rizk waited until May 2019, when plaintiff sought to enforce its default judgment in South Carolina, to appear and seek to set aside the entry of default; (3) Rizk offers no explaining for why he failed to diligently respond to the allegations in the complaint; and (4) plaintiff presented evidence concerning the expenses it had incurred in seeking to enforce the judgment in South Carolina and how it would be harmed  if the entry of default were set aside nearly a year after it was entered, the trial court did not abuse its discretion by finding no good cause to set aside the entry of default.

Because Rizk failed to appear and assert his improper venue argument before the entry of default, his forum-selection argument is waived.

Associate MD, LLC v. Metabolic Medicine, LLC (Lawyers Weekly No. 012-032-22, 8 pp.) (Richard Dietz, J.) Appealed from Mecklenburg County District Court (Roy Wiggins & Paulina Havelka, JJ.) Harrison Lord for plaintiff; Jeremy Foster for defendant. 2022-NCCOA-63


Leave a Reply

Your email address will not be published. Required fields are marked *