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Act 18: I Oppose the Default

I have to admit that Ms. Greenberg's request for a default judgment put me in a mini-panic. (I hate to admit it, because I know she'll read this, but it's the truth. I realize that a compulsion to tell the truth puts me at a severe disadvantage in dealing with lawyers, but that's the way it is.) Had I already lost the case because of a procedural error? (That is exactly what every lawyer I know had been warning me might happen, which is one of the reasons that they unanimously urged me to get a lawyer.) Was the default request so straightforward that the Court may have already issued a default judgment against me? Should I be afraid to open my mailbox?

Since there was no way for me to answer those questions, I took a couple of deep breaths and tried to figure out what to do next. I had no idea if it were possible (in the sense of "procedurally correct") to file an opposition to a default request, but I thought that I had to do something, so I might as well write something quickly, mail it to the Court, and hope that it might delay my impending doom long enough for me to figure out what to do next.

So here's what I wrote. I don't think it's especially well written, and I don't know if it makes any sense, but I was under the gun, and this was the best I could do on short notice...

(Note: I have not included the "Certificate of Service.")


 Civil Action No. 01-72987
 Honorable Lawrence P. Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives



Defendant Henry Mishkoff (who is creating this document, and who will be referred to in the remainder of this document in the first person) hereby requests that the clerk of the above-entitled Court refuse Plaintiff's "Request To Enter Default" on the following grounds:

  1. I am not an attorney, and I cannot afford to engage an attorney. I recognize that "ignorance of the law is no excuse"; however, under the circumstances, and in light of the fact that I am and have been making good-faith efforts to fulfill my responsibilities in regard to my defense of this action, I respectfully urge the Court to use its discretion and allow me a reasonable amount of leeway in the timing of my responses. I am well aware that the Court would probably encourage me to seek legal representation so that the Court will not have to entertain requests for leeway. However, I respectfully submit that, to be worthy of its name, the system of American Justice must be flexible enough to allow a reasonable person, acting in good faith, to defend himself in a civil action. To believe otherwise is to believe that only those who can afford legal representation are entitled to justice in the United States, which is an abhorrent concept to which only the most cynical among us would adhere.

  2. I was not aware that a response to Plaintiff's Complaint was required, nor do I believe that a reasonable person (with no legal representation) would have been aware that a response was required. The primary reason for this belief is the final sentence of Plaintiff's Complaint, which reads: "Plaintiff demands a jury trial on all issues triable by a jury." Because I have no reason to oppose this concluding statement (in fact, I concur with Plaintiff's insistence on a jury trial), there was no reason to me to believe that there was any need whatsoever for me to respond. In other words: I interpreted Plaintiff's Complaint to essentially be a request for a jury trial to obtain the specified relief, and I maintain that any reasonable person (with no legal representation) would have drawn the same conclusion. (In fact, I still maintain that that is the most reasonable interpretation of the action sought in Plaintiff's Complaint, and I heartily concur in Plaintiff's demand for a jury trial. If any default is to be entered in this action, it should be in the form of acceding to Plaintiff's demand for a jury trial - a demand which, as I said, I do not oppose.)

  3. As related in Plaintiff's "Request To Enter Default," I did indeed accept "the copy of complaint as service in a telephone conversation on September 5, 2001." However, I accepted service in this way only because Plaintiff's representative (Ms. Greenberg) told me that if I did not agree to accept service verbally, she would have me served by a professional process server, and that I would have to pay for such service. Since that conversation, I have had reason to suspect that I may have been misled by Ms. Greenberg (although I do not know that for a fact). If, in fact, it is not necessarily true that I would have been responsible for the expense of serving the Complaint, then my verbal agreement was made only in response to a misrepresentation by Plaintiff, in which case I respectfully ask the Court to declare my verbal acceptance of service of Plaintiff's Complaint to be null and void.

  4. In a letter from Plaintiff's representative (Ms. Greenberg) dated August 16, 2001, Plaintiff set forth three specific conditions that I would have to meet to resolve their Complaint. They indicated that they would not pursue litigation if I accepted their terms; their exact words were: "Obviously, such a resolution is preferable to litigation, which we will pursue only if this resolution is not acceptable to you" (emphasis mine). In my return letter (also dated August 16, 2001), I unequivocally accepted their offer; however, in spite of this clear, unambiguous, written offer and acceptance, Plaintiff failed to execute their responsibilities under the contract. Finally, on October 8, 2001, I notified Plaintiff that I would withdraw my acceptance of their offer as of October 12, 2001, if they had not executed their responsibilities under our agreement by that date. That date passed, and my acceptance was withdrawn. However, until that date, I had valid reason to believe that there was still a chance that they would honor their commitment, and that they would not proceed with litigation. Therefore, I think it is reasonable to conclude that the date of Plaintiff's Complaint should be effectively regarded to be October 12, 2001, which was the first date on which I could be reasonably certain that Plaintiff and I did not have an agreement to avoid litigation. Today is October 18, 2001 - I have no idea how long the Federal Rules of Civil Procedure allow me to respond to a Complaint, but surely it is longer than six days.

In conclusion, I ask the Court to reject Plaintiff's "Request to Enter Default" and to allow this action to proceed toward its eventual resolution in a jury trial, as per Plaintiff's original request in their Complaint.

Respectfully submitted,

Henry Mishkoff
2661 Midway Road, #224-225
Carrollton, TX 75006


Dated: October 18, 2001

Next: I Answer the Complaint

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