COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. MALDEN DISTRICT COURT CIVIL ACTION NO. 9450CV872 __________________________________ ) PHILIP GREENSPUN, ) Plaintiff, ) v. ) PLAINTIFF'S MEMORANDUM IN ) OPPOSITION TO DEFENDANT'S SMYLY AUTOS, INC. ) MOTION TO REMOVE DEFAULT Defendant. ) __________________________________) Defendant Smyly Autos, Inc. ("Smyly") considers litigation with its customers to be a normal part of doing business. One of Smylys's senior managers asserted that the company was in court "all the time" and that Smyly "always won." That Smyly was being truthful in this if in little else was borne out by the Clerk's office when I filed the Complaint. One of the clerks glanced at my Complaint and said "Oh, Smyly Autos. They're here all the time." Smyly's original defense counsel was forced to withdraw because his firm was already representing someone else who is in litigation with Smyly. Smyly knows what litigation is. A sheriff came to their office to serve the Complaint. As described in the attached affidavit (Exhibit A), I telephoned them twice to ask why they hadn't answered despite the 20-day rule. Smyly knew they were being sued by me and that they were in default. Smyly was notified by a sheriff that it had been sued. Smyly was notified twice by myself that it had not complied with the 20-day rule and would be defaulted if it did not answer. "It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied * * *. Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs." Elms v. Elms, 72 Cal.App.2d 508, 513, 164d P.2d 936, 939 (quoted in Price v. Hibbs, 225 Cal.App.2d 214, 37 Ca.Rptr. 270, 274). A man of ordinary prudence would return a telephone call from his opponent in a lawsuit. "Ordinarily a party will not be relieved from a judgment or decree taken against him through the mistake, negligence, or inadvertence of his attorney, unless the act or omission of the attorney was such that had it been committed or omitted by the party himself, he would be entitled to a vacation of the judgment or decree."-Carlson v. Bankers' Discount Corporation, 215 P. 986, 988, 107 Or. 686. The Defendant has no meritorious defense. First, there is no doubt that the head unit of my car stereo disappeared while the car was in their possession. There is simply no way the owner a new $20,000 minivan would drive around with a CD changer, a power amplifier, and four custom loudspeakers in silence because he didn't want to spend the money for a head unit. Second, whether Smyly stole the stereo itself, one of its employees stole the stereo on his own account, or someone came in off the street and stole the stereo, Smyly was a bailee and clearly responsible for returning the car in the same condition they received it in. Thus, their refusal to install a new stereo or pay for the old one is a prima facie violation of G.L. c. 93A. Third, the idea that the burden is upon me to provide "documentation" of the loss as express in Defendant's Motion to Remove Default is absurd. Isn't a gaping hole in the dashboard documentation enough? (If not, attached as Exhibit B is a receipt from Tweeter, Etc. for the original stereo and attached as Exhibit C is a receipt from Rich's Car tunes for the replacement, which was installed the week after Smyly's returning the car stereo-less. Exhibit D is an affidavit from Mallory Stark that she was a passenger in my car and listened to the stereo one day before it went into Smyly's care.) In a case such as this, where Smyly has failed to set forth any facts that would constitute grounds for a meritorious defense, it has been held an abuse of discretion kfor a trial court to grant relief from default judgment (Lynch v. Spilman (1967), 62 Cal.Rptr. 12, 15, 431 P.2d 636, 639). It must be "made to appear, prima facie, that a different result would probably be reached" (Skolsky v. Electronovision Productions, Inc. (1967), 254 Cal.App.2d 246, 252, 62 Ca.Rptr. 91, 95). Smyly's best possible defense is that someone unrelated to their business broke through their fence, eluded detection by their night watchman, disarmed my vehicle's alarm system, entered my vehicle without picking the lock or breaking any glass, carefully removed the Alpine radio, and carefully reassembled the dashboard. Would there be a "different result" in this case? No. They were still a bailee and responsible to return my car with its stereo intact. They still violated 93A by refusing to replace the stereo or compensate me. The only possible question in this case is whether Smyly is liable for multiple damages under c. 93A. That Smyly is determined to drag this case out as long as possible with frivolous defenses is evidenced by the answer they propose to file. Note that they deny paragraphs 3 and 4 of my Complaint, which assert only that I brought the car in for repairs and that Smyly promised to do some of the work under warranty and some at my expense. These paragraphs that they deny are in fact easily proved with the service records that they provided me and still surely have in their computer files. Smyly also denies numerous other paragraphs that state fairly obvious facts. Smyly's argument that the failure by its insurance company to deliver the Complaint and summons to an attorney is excusable neglect does not hold water. In a case where default judgment was entered after only 22 days (as opposed to several months in Smyly's case) and where no reminder telephone calls were made, the misplacement of a complaint was held to be insuficient ground for vacation of the default judgment (Overseas Development, Inc. v. Dominion Mortgage Corporation, 330 So.2d 845). That the negligence of defendant's insurer may be imputable to defendant is well-established. Default judgment has stuck even where defendant was defaulted after only 15 days, where the insurance company had a pretty good excuse (the illness of an executive's wife), and where there was in fact a meritorious defense, Homuth v. Williams (1931 Texas, cited in C.J.S.), 42 S.W. 2d 1048. Even where settlement negotiations were taking place and the insurer swore that it had an oral agreement for an extension of time, the insurer's negligence has been held imputable and default judgment enforced, Luce v. Anglin, (1976 Missouri) 535 S.W. 2d 504. In my naive view of civil procedure, there would seem to be little point to having a 20-day rule if a sophisticated habitual defendant such as Smyly is allowed four months and four notifications (one from the sheriff, two from me by telephone, and one from the Clerk) before having to answer a complaint. At the very least, Smyly should be forced to post a bond of $3320 (the amount I requested for a default judgment) or $9960 (treble that amount) as in Burger Chef Systems, Inc. v. Servfast of Brockton, Inc., 393 Mass. 287 (1984), before being allowed the extraordinary leniency of a removal of the default. Philip G. Greenspun 55 Russell Street Melrose, MA 02176 (617) 662-8735 Dated: August 30, 1994 CERTIFICATE OF SERVICE I hereby certify that I have served the above document upon all other counsel of record by facsimile transmission, on August 30, 1994, and that the above document was served within the time limits set forth in Standing Order 1-88. Philip G. Greenspun 55 Russell Street Melrose, MA 02176 (617) 662-8735