Wu v. Alem
After a facially regular return of service and a default final judgment, the defendant moved to quash service and to vacate the default, arguing solely that he was not the person served. The trial court denied the motion to quash (finding no clear and convincing evidence of non-service and expressly crediting the process server) but vacated the default on excusable neglect grounds. The Third DCA affirmed the denial of the motion to quash and reversed the vacatur, holding that where the asserted excusable neglect rests solely on a claim of non-service, it collapses into the same clear-and-convincing standard, which the defendant failed to meet; the absence of any proffered meritorious defense was independently fatal.
Key facts
- Defendant Wu was served with process according to a facially regular return of service, and a default final judgment was entered against him after he failed to respond.
- Wu moved to quash service of process and to vacate the default judgment, arguing solely that he was not the person actually served by the process server.
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Why it matters
The opinion supplies a clean rule that defendants cannot circumvent the clear-and-convincing burden for challenging a facially regular return of service by repackaging the same non-service claim as 'excusable neglect'… — full analysis with a trial
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