Defendant appeals an order denying a motion to set aside a default judgment. ORCP 71B. Defendant argues that thе trial court abused its discretion in denying the motion to set aside, because defendant had established that, as a matter of law, its failure to appear timely was a result of excusable neglect. We find no abusе of discretion and affirm.
On July 25, 1996, plaintiff filed a complaint against defendant, a foreign corporation authorized to do business in Oregon. On July 30, a summons and complaint were served on CT Corporations Systems, defendant’s rеgistered agent in Oregon, and the documents were forwarded to defendant’s corporate offices. On August 1, 1996, Robert Koester, defendant’s general counsel, received the summons and complaint. Ordinarily, Koester would have given the file to a paralegal for calendaring and the creation of a legal file, but at that time, the paralegal position was vacant and was not filled until August 5. Meanwhile, other members of thе legal department staff — another attorney and a secretary — were on vacation. Koester did not calendar the matter for a response and did not contact plaintiffs counsel. He recalled that he intended to make a note about the answer deadline, but that he did not do so, most likely becаuse it was a busy day. He did give the summons and complaint to Terry Adams, defendant’s controller, and asked that she invеstigate whether the matter could be resolved without filing an answer. Adams made a note to herself to resрond within 20 days and put the papers on her desk. She took several days off, during which time her secretary clеaned her desk and misplaced the litigation papers. Plaintiff obtained a default judgment and, on September 11, 1996, Koester received notice of the judgment. Two weeks later, defendant filed a motion to set aside the default judgment along with an answer and counterclaim. The trial court denied the motion.
On appеal, defendant argues that it was entitled to have the default judgment set aside under ORCP 71 B. According to defendant, thаt rule provides the court with discretion to set aside a judgment on the ground of excusable
ORCP 71 B(l) provides, in part:
“On motion and upon such terms as are just, the court may relieve a party or such party’s legal representative from a judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect * * *.”
Wе review the trial court’s decision to allow or to deny a motion filed pursuant to that rule for an abuse оf discretion. Walters v. Kmart Corp.,
In Wagar, the Supreme Court acknowledged the deferential standard by which appellatе courts review trial court decisions under the predecessor statute to what is now ORCP 71 and emphasized that “[e]ach case must be considered on its own facts.”
In Reitz, the plaintiff personally servеd the president of the defendant corporation, who handed the summons
In this case, defendant’s general counsel received the summons and complaint and knew thаt a response would be required within a limited period of time to avoid a default. Without making what he acknowledges would have been appropriate calendar notations, counsel handed the file to a nonlawyer employee who misplaced the file. His only explanation for his failure to make note of the deadline for answering was that he probably was very busy that day. We cannot say that the trial court abused its discretion in concluding that a lawyer simply forgetting to take steps to ensure a timely response to a summons and complaint is inexcusable neglect.
Affirmed.